Con Law
Outline
EXAM
- Look for cases on the docket from the US SCT; generally looks for circuit splits
Philosophies
Sources of Constitutional Interpretation:
- Text
- Original understanding
- Precedent
- Legal traditions
- Contemporary values
- Policy judgments
Federalist #78 – Judgment vs. Will [come back to – first pg of notes]
- Judgment – Court
o Determine if the statute is constitutional
- Will – Congress/Legislatures
o Will to create the statute
Calder v. Bull: debate over Natural Law
- Chase: judges can strike down laws that violate “natural justice”; Constitution’s basis in
NL & Rights
- Iredell: Court can only enforce the Constitution – must look to the text as interpretive
source; Disagreement about the contents of NL & Rights  write the compromise in the
constitution to settle; rely on amendments to constitution to create new rights 
legislature’s will
POV on Constitutional Interpretation:
- Judicial restraint:
o Calder v. Bull - Iredell
o Historic Constitution: focuses on history as interpretive method; courts cannot
change unless amended
o Interpretation focus:
 Text
 Original understanding
 Precedent
 Tradition
o Benefits:
 Restraint/Stability
 Majority Rules
o Sharp S/P  Deferential to legislatures
- Judicial activism:
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o Calder v. Bull - Chase
o Living Constitution: emphasizes contemporary values and policy judgments
o Interpretation focus:
 Text
 Contemporary values
 Policy judgments
o Benefits:
 Flexibility
 Protect minority rights
o Blurry S/P
 Not deferential to legislatures
Philosophies behind FOS
- Marketplace of Ideas:
o SCt often endorses this approach
o John Stuart Mills: competition of ideas
o The best ideas will win acceptance in the search for truth over time  restrictions
on liberty would inhibit a person’s ability to gain experience and find the truth
o Closely related to economic market of ideas
o First articulated in Abrams
o Problems:
 Assumes people will make rational decisions in seeking the “truth”
allowing the best ideas to win
 If there is a market – is it a free market? Or is it skewed?
- Self-Governance:
o Political speech must be allowed to inform the public who controls the democracy
o Illogical to allow politicians representing the people to restrict speech when
people retain the power
o Minimum  there must be free political speech (strong justification)
o Problem:
 Only protects political speech
 No reason to extend FOS to other forms of speech
- Individual Autonomy:
o About self-expression – derives from self-determination and self-respect
o Problem:
 Very difficult to draw a line between conduct as a form of expression and
speech; we often restrict the conduct
- Catch all Categories (lesser theories)
o Checking Function:
 Check abuses of government power
o Tolerance:
 Allowing speech teaches others to be tolerant of differences
o Civil Peace:
 Reciprocity; I won’t censor you when I’m in power if you don’t censor me
History of Free Expression
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1st Amend: “Congress shall make no law . . . abridging the freedom of speech
Sedition Act of 1798:
o First federal limitation on FS prohibiting the publication of false, scandalous and
malicious writings against the government with intent to defame. SCt never ruled
on constitutionality; expired after 2 years
o Point: little FS protections early in history; founders intent – not what it is today
3 early meanings of FOS:
o Blackstone
 No prior restraint (i.e. licensing of the press)
 Subsequent punishment for bad tendency acceptable
 Sedition Act would be constitutional – no prior restraint/enforced after the
speech
o Federalist
 Congress shall make no law…States retain complete power to regulate
speech
 In the words of Josh Kyle “states can do whatever the hell they want”
o Madison
 Federalist position – states retain power to control
 EXCEPT: political speech which cannot be regulated; prior restraints/bad
tendency can’t be used
 Philosophy – self-governance; FOS must include protections to discuss
politics
WWI historical development
- After the 1790s – there are no cases interpreting FOS until WWI
- Intense political debate on whether to enter war in WWI
- Wislonian/Congressional Response:
o Espionage Act of 1917 – violations are conduct (not speech) related
o Sedition Act of 1918
Tests Overview
- Incitement/Advocacy of Unlawful Action  Brandenburg
- HAR  Cantwell/Feiner
- FW  Chaplinsky
- Criminal Speech  Williams
- TT  Black
- Hate Speech  CB  SS, CSI, NT
Advocacy of Unlawful Action
- Factors Ct used when creating the test for unlawful advocacy:
o Clarity – likely – probable (how probable was the unlawful conduct)
o Presence/Imminence (need to act)
o Degree of danger (C&P)
o Intent (important)
o Express words of advocacy
- 3 Tests Fed Cts used:
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o Bad Tendency Test - Schaffer
 Pro:
 Original interpretation - Federalists - Blackstone/English CL
 Sedition Act of 1798
 Con:
 Chills political speech
 Offers a pretext to suppress
 Used in all federal courts
o Express Incitement – Masses/L. Hand
 Pro:
 Objective
 Significantly more protection for speech
 Limitation placed on government’s ability to restrict speech
 Con:
 Easy to circumvent law by not using express words & avoid
charges even when a danger is posed
o Clear & Present Danger –
 Schenck/Holmes
 May not be very protective of FOS; only punishes when people are
listening
 Unclear whether C&P is an interpretation of BT or if it stands alone as a
test
 Pro:
 Circumstances: Accounts for time & place
 Con:
 No guidance on how to test intent
 Vague test – too many interpretations
Schaffer – 1919
o Facts: Mailed a book condemning American war efforts; equated patriotism with
murder in the spirit of the devil
o Prosecution based on statutory conduct violations
o Bad Tendency Test – If the speech has a bad tendency, Congress may restrict
o Focus on Intent which is inferred - speaker intended the natural and probable
consequences of his speech
o Practically – no voice of opposition allowed
o Does not view effect of the speech to determine if actually caused unlawful
behavior
Masses Publishing Co. – (SDNY 1917)
o Facts: postmaster refused to deliver issues because it was against the Espionage
Act
o Learned Hand
o Test: Express Incitement - Focus on content of speech/not intent
 Only if the content of speech expressly incites can Congress regulate
o Why advocate express incitement: need more protection than BT; people should
be able to question decision and administration of war
o Con: Circumvent law & pose danger by not use express language
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Schenk - 1919
o J. Holmes – fire in theatre
o First iteration of C&P Test
o Prosecution based on statutory conduct violations
o Facts: ∆s convicted of violating EA of 1917 by circulating pamphlets obstructing
the recruitment/enlistment
o Test: Clear & Present Danger – whether the words are used in circumstances
and of such a nature to create a C&P danger that they will bring about the
substantive evils Congress has a right to prevent
 Focus: Circumstances
 Not clear there is anything different than BT test
 Conspiracy and action are the same thing
Application of Unlawful Advocacy Tests & Confusion
- Frohwerk – 1919
o Facts: ∆ published a newspaper article criticizing American war policies against
Germany
o Prosecution based on statutory conduct violations
o J. Holmes
o Test: either BT OR C&P
 Test language: little breath will kindle a flame/natural tendency and
reasonably probable effect
 Express C&P danger language missing
- Debs – 1919
o Facts: Speech at a public assembly by Debs (a major leader of Socialist party)
about recruiting and enlisting services
o Prosecution based on statutory conduct violations
o Test: variation on BT - Natural tendency + specific intent
o No C&P language – begin to question if C&P is precedent
- *Although Homes’ opinion in Schenck used CPD language, at this point it appears CPD
actually was nothing more than BT since Holmes wrote Frohwerk & Debs
Transition Case: Red Scare
- Abrams - 1919
o Facts: ∆s were Russian-American socialists; protest US entry into Bolshevik
Russia; called for general strike
o Prosecution based on statutory conduct violations
o J. Clark – majority; affirms conviction citing Shecnk (CPD), Debs and Frohwerk
(BT); Intent can be inferred from words
o Holmes Famous Dissent:
 Advocates a more liberal application of CPD
 Demanded either a significant level of clarity, imminence and danger OR
intent [as a separate basis]
 Greater protection of speech
 1st articulation of the Marketplace of Ideas
 BT does not offer enough protection
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Irony: No CPD because no one cares about Abrams; the more known a
person  greater ability to distribute communication on mass level of
unpopular ideas  greater the CPD
 Reconciling SA of 1798 precedent – focus on Jefferson as next party in
power and they pardoned and paid restitution to those who were convicted
(not the best argument, but it is what Holmes had to work with)
Gitlow v. NY – 1925 – Speech Specific
o Facts: Red Scare Case; ∆ left wing of the Socialist Party involved in getting Left
Wing Manifesto published advocating overthrowing government (including:
radical action, mass strikes, assassination of political leaders, revolution)
o Incorporates 1st via 14th without analysis (and the most discussion ever made)
o Test: Reasonableness – gives deference to state legislatures as long as they act
reasonably
 Still BT test – conduct regulations
 Reasonableness overlays the BT because this is speech specific legislation
 Less protective of speech than earlier cases because this is speech specific
o Holmes Dissent: CPD Test – absent a CPD or intent to produce a CPD, speech is
protected (otherwise, every idea is an incitement)
 Marketplace of ideas – even if socialism wins out (paradox – FOS would
allow government to come to power to ban FOS)
Whitney v. California – 1927
o Facts: ∆ prosecuted for association with left wing socialist movement, even
though she was a moderate and loses the debate within the party to use a more
moderate line
o Majority: Reasonableness Test – follow Gitlow
o Brandeis Concurrence (famous): substantively dissenting
 Similar to Holmes’s dissent in Gitlow & Abrams
 Test: CPD or intent to create CPD
 Intensity of the CPD
 Imminent - Reasonable ground to believe that serious harm will
result
 Probability – denunciation of law, [condonation] of breach,
expression of approval, advocacy of lawbreaking, past conduct
 Philosophical justification:
 Self-governance – importance of engaged citizenry
 Remedy for bad speech: counterspeech; logic/reason to beat bad speech
(marketplace of ideas)
Dennis v. US – 1951/Cold War/2nd Red Scare
o Facts: The Smith Act prohibiting advocating violent overthrow of the gov’t; ∆
conspired to advocated the overthrow of government
o Speech specific legislature
o Discards Reasonableness Test (from Gitlow & Whitney); HAR cases have
discredited the reasonableness test
o Test: NEW CPD Test – Gravity of Danger x Probability = CPD
 If the gravity of harm is high  probability only has to be low (vice versa)
 Learned Hand formulation
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 Fluid balancing test
Frankfurter concurrence:
 Reasonableness test
Jackson concurrence:
 Split the test further
 Homes/Brandeis CPD Test – less organized groups
 Should not apply CPD Test – more organized groups
 Influenced by Bio: Prosecutor for Nazi War criminals at Nuremburg;
worried about disorder/conspiracy to overthrow government
Black Dissent:
 Holmes/Brandeis CPD – plurality is caught up in the same fear as
legislature
Douglas Dissent (how Holmes/Brandeis would have argued)
 No imminent danger; threat is not domestic
 How dangerous can ∆s be; no one is listening to communists
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After Dennis, Court is apply 3 versions of CPD:
o Holmes/Brandeis CPD: CPD or intent to produce CPD
o Fluid Balancing Test: Dennis – gravity of danger x probability = CPD
o BT version of CPD: Abrams, Frohwark, Debs
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Brandenburg v. Ohio - 1969
o Plurality opinion – written by J. Fortas before leaving
o Modern Test: Advocacy directed to imminent, likely, lawless action
 Form of CPD – but rejects language – too confusing
 Can’t punish for mere advocacy, unless these elements met (factors):
 Advocacy (may mean express language)
 Directed (some kind of intent)
 TO inciting or producing (presence)
 Imminent lawless action (danger)
 Likely to produce such action (clear/Clarity/LH)
o Very protective of speech
o Facts: KKK leader prosecuted under syndicalism statute for advocating political
change using force and violence; prosecuted under Ohio law (same as law in
Whitney)
o Uses overbreadth doctrine to find statute facially unconstitutional – does not
include a distinction between advocacy and teaching
o Douglas concurring:
 Agree the court should not use CPD
 The line should be drawn at ideas vs. overt acts (problem: calling in bomb
threat[?])
 Too flexible a standard: fear can grip the court leading to restrictions
o Definitely overruled Whitney; case doubt over Dennis, Whitney & Schenk [Wiki]
Application of Brandenburg
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o Hess v. Indiana - 1973
 Facts: Vietnam protestor, “we’ll take the fucking street later or again”
during a demonstration
 Not imminent
o NNACP v. Claiborne Hardware Co. – 1982
 Facts: NAACP sponsored boycott of rally discriminating merchants in
MS; “if you shop at the stores, we’ll break your necks”
 Not imminent & No likelihood
 Precedent condition
 Hyperbole
o Speech is protected when crowd is listening to a speaker  and they are
incited to act
Re-cap of different tests Court formulated:
- BT: Blackstone
- Express Incitement Test: Massey - Hand
- CPD as BT Test: Holmes
- CPD as Speech Protective Test: Holmes/Brandeis
- Reasonableness Test: Gitlow, Whitney
- CPD Balancing: Dennis – Gravity x Probability of Harm vs. Value of Speech
- Brandenburg: advocacy directed to inciting or producing imminent lawless action
likely to incite or produce that imminent lawless action
Unlawful Advocacy vs. HAR
- Unlawful advocacy: A tells B to violate the law
- HAR: A angers B; B breaches peace
Hostile Audience Response
- Heckler’s Veto: If listeners don’t like what the speaker is saying, the heckler can threat
to riot causing the police to silence the speaker
- Police duty to control the crowd:
o Concerns: LE can use pretext to arrest the speaker; collusion with LE to allow
heckler’s veto to win
o 1st duty  control the crowd
o If police can’t control the crowd  shut down the speaker
- Cantwell v. Connecticut - 1940
o Jehovah’s Witness played a record on the street that anti-catholic propaganda;
listeners wanted to beat him up; conviction – breach of peace
o No test articulated – CPD language
o Intent OR Express Language of Provocation
 To create a CPD of riot, disorder, interference with traffic upon the
public streets, or other immediate threat to public safety, peace or
order
o Ct looked at intent separately – Cantwell no intent to have listeners punch him
o No express language that is insulting individuals
o Doctrinally erodes BT with Reasonableness test of Abrams & Gitlow
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Terminiello v. Chicago – 1949
o Facts: fascist called some public members “slimy scum;” antagonistic atmosphere
with both sides present
o JI at issue – speech stirs public to anger and get the public fired up invites dispute
o Holding: JI flawed; speech may not be restricted b/c the ideas expressed
offend the audience
o Cantwell - CPD language
o Jackson – Dissent: JI needs to be read in context – constitution not suicide pact
- Feiner v. New York – 1951 (if occurred today, dissent would win)
o Facts: ∆ chastised president, mayor and Americans; civil rights speech advocating
racial equality; 2 LE and crowd of 80; some pushing and shoving in crowd; after
asking ∆ to stop, LE arrested ∆ for breach of peace
o Test: Cantwell CPD – Intent OR Express Language of Provocation
o Speaker had intent and used express language
o Heckler’s Treatment: suppression of speech of one person because of the
beliefs of crowd
 Cops acted in good faith
o Black Dissent: Arrest based on pretext; LE bad faith didn’t warn Heckler;
constitutional duty to protect right to speak
Doctrinally eroding Feiner – Civil Rights era Cases
- Edwards v. South Carolina – 1963
o Facts: 187 civil rights protestors, 30 police; unsympathetic crowd; protestors
arrested for breach of the peace
o No mention of CPD – only implied
o Sufficient LE to forestall any danger of disorder
o Holding may not have been because of speech, but because of the ratio of police
o Clark Dissent: violence could have broken out in a heartbeat
- Cox v. LA – 1965
o Facts: 2,000 protestors – peaceful, singing, chanting; 80 LE, 200
counterprotestors; arrested for sit-in
o Test: Implicitly applying CPD
 Ratio of police – nearly as many LE as counterprotestors
- Gregory v. Chicago – 1969
o Facts: 85 protestors – call mayor Daley a snake, singing, chanting, 100 cops,
1,000 onlookers – threw eggs and rocks
o Facts most similar to Feiner – treated much differently
o Test: implicitly applying CPD
o Looks like Feiner dissent – concerns about LE pretext/Heckler’s veto
- *Edwards, Cox, and Gregory follow Black’s dissent in Feiner, concern for the heckler’s
veto and recognition of police duty to quell crowd
- * Cannot charge protestors a fee to have a permit - Forsythe Cnty GA v. The Nationalist
Movement
Current HAR Tests:
- Cantwell CPD Test:
o Language has not appeared in the last three cases
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Feiner CPD Test:
o Conservative position would advocate Feiner
Brandenburg Test: (advocacy element changes to provocation)
o Provocation (provocation directed to imminent, likely, lawless action
o Directed
o To inciting/producing
o Imminent lawless action and
o It’s likely to produce such imminent lawless action
Fighting Words – one person talking to another person; insulting words that would cause RPP
to act; not clearly defined in modern era
- Chaplinsky - 1942 (last FW to be upheld)
o Facts: Jehovah’s witness distributes literature on a street and calls a person a GD
racketeer and a damned Fascist, arrested for addressing annoying words at
another)
o First statement of 2-tier theory
 High value speech – protected (SS)
 Low value speech – unprotected
o Today’s Test: looks at social value vs. social harm – to determine if high or low
value
 Ferber - Early – SCt did the balancing to determine the values
 US v. Stevens (animal cruelty on internet)- Today – SCt says history
strikes the balance (no new categories)
o FW defined:
 Words which inflict injury or tend to incite an immediate breach of the
peace
o Ct gives nonexclusive list of low-value, unprotected speech:
 Lewd, obscene, profane, libelous, insulting, FW
Application of Chaplinsksy
- Street v. NY – 1969
o Facts: AA burned an American flag in public when learning Meredith (civil rights
activists) was killed
o FW require a direct insult to an individual face-to-face
- Cohen v. CA – 1971
o Facts: fuck the draft
o Must be directed to someone
- Gooding v. Wilson – 1972
o Facts: white SOB, I’ll kill you, said to LE
o Statute overbroad
FW requires:
- Abusive insults likely to cause breach of peace
- Face to face encounter
- Purport to describe an individual
- Directed to that individual (NOT a 3rd party)
FW v. HAR:
- FW – small encounter
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HAR – speaker in front of large crowd
FW & HAR – speaker in front of small group. Not clear how large the small group must
be (5-10 questionable)
Pure Criminal Speech [how is it different than Unlawful advocacy]
- Speech which is an offer to engage in illegal transaction  not protected
o Also includes: attempt/actual crime/ fraud/ aiding & abetting
- A tells B how to commit a crime; B commits the crime; A liable
- Typically Pure Criminal Speech has the following qualities:
o Directed to a few people
o No exposition of ideas
o Advancing traditional mental state of crime
o No political context
- Under Brandenburg – normally would be protected because it is often not imminent
- Chaplinsky Analysis: no social value; little value to exposition of ideas – Low value
speech
- US v. Williams
o Facts: Congress passed PROTECT Act criminalizing knowingly distributing
materials with minors engaging in sexually explicit conduct
o No Brandenburg protection for:
 Solicitation
 Conspiracy
 Aiding & Abetting
o Test: Actus reus & mens rea
o No protection even if the person is attempting to sell child porn as real children
when the goods contain virtual porn
- [notes a little confusing/ Sept. 6]
Problems arise when speech is in the middle:
- Rice v. Paladin Enterprises
o Facts: published book entitled “Hit Man” detailing how to commit murder
o Dilemma: publication to large audience suggests a Brandenburg test, but
advocating pure criminal speech suggests unprotected speech
- Argue all 3 tests:
o Brandenburg: advocacy directed to imminent likely, lawless action – book may
not meet imminence element. Problems with intent
o Pure Criminal Speech  could argue  no intent (mens rea)
o TT  Question comes down to whether it was directed to individual or group
 Intent to small group A&A or solicitation
 Intent to large group  fails to be directed to particular individual or
group of individuals
True Threats
- Policy behind TT:
o Fear
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o Disruption
o Violence will actually occur
Virginia v. Black – 2003 Modern test for TT
o Facts: cross burning on private property – could be seen from the road
o Definition: Encompasses 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
o Test: 4 elements:
 Speaker means to communicate (subjective standard)
 A serious expression (RPP standard)
 Of an intent to commit an act of unlawful violence
 To a particular individual or a group of individuals (circuits split on
whether should be communicated directly)
o **NOT Required:
 Imminence
 Intent – to carry out the threat/a bluff is still a threat
Watts v. US – 1969
o Facts: ∆ says if he is given a rifle in the army, the 1st person he will kill is the
president
o Pre VA v. Black
o If VA v. Black test applied:
 Failed serious expression – political hyperbole; crowd laughed
 Threat wasn’t communicated to an individual (depends on circuit)
Planned Parenthood v. Am. Coalition of Life Activists – 2009 (9th Cir.)
o Facts: ∆ kept files of abortion docs on website. When one of them killed, a red
line drawn through their name
o Issue: whether TT or Brandenburg level protection  depends on whether intent
is tested objectively (listeners) or subjectively (from the threatened person’s POV)
 Objective: Someone ought to kill you  Brandenburg
 Subjective: ∆ is going to kill you  TT
o Arguably, criminal conduct could have been used as COA
o (one of 3 tests could have applied: TT, Brandenburg, & Pure Criminal Speech)
Hess v. Indiana – 1973 (already seen under Brandenburg)
o Facts: “we’ll take the streets later”
o Protected under Brandenburg “Later” is not indicative of imminence
o TT: Not a serious expression; not against a group of individuals
NAACP v. Clairborne Hardware – 1982
o Facts: “we’ll break your necks if you shop in racist stores”
o Protected under Brandenburg  not imminent & no LH
o VA v. Black TT  not directed to individual or group
 Not a Serious expression  only 1-2 sentences were hyperbole
 No subjective intent
o *But you can have TT when an individual makes a definite threat to a group
Hate Speech – NOT a 1st Amendment Category
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Academic category
Other doctrines that may be used in lieu of hate speech:
o Libel
o FW
o TT
Crimes vs. Speech:
o CB Restriction: If government attempting to restrict speech because it is hateful:
 SS; CSI & NT
 Gov’t nearly never wins
o If gov’t criminalizing hate crimes  SCt unanimous that enhanced sentences are
proper
Policies behind Hate Speech:
o Democratic self-governance
o Marketplace – search for truth
o Individual autonomy
US is outlier; Canada/Europe recognize category
Beauharnais v. IL – 1952
o Facts: White supremacist distributing leaflet about blacks moving into white
community; ∆ argues he did not create a CPD & should not be liable
o Libel Case – group
o Modern Test would be: SS & statute would fall
o Not CPD
o Ct, applies Chaplinsky, Low value, socially harmful speech  unprotected
 Libel explicitly listed in Chaplinkshy
o Rule: Group libel can be criminalized like individual libel
o Implied - No longer good law b/c of NY Times v. Sullivan
o You can no longer suppress speech by claiming group libel
o Black Dissent:
 Libel limited to individuals; extension to groups fundamentally alters
nature of libel – including suppression of political groups
 For minorities – this decision, while celebrated is really a means of
suppressing speech
o Douglas Dissent: CPD
RAV v. City of St. Paul - 1992
o Facts: Juvenile burns a cross in the lawn of AA family; City ordinance prohibits
the display of burning cross, swastika, or other symbol on the basis of race, color,
creed, religion or gender
o Scalia Majority (5/4 split): CB/Viewpoint restriction  presumptively invalid
o Low value speech  Facially constitutional [?] based on FW
o Rule: Hate Speech legislation  unconstitutional
 Exception: Virulence distinction allowed
o Rule:
 Virulence distinction in FW/TT allowed
 Virulent: suppressing a category b/c they are more likely to cause the
harm; more likely to provoke a fight  CB  SS
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Virulent Fighting
Words/Threats (I’ll kill you)– more
likely to cause violence than regular;
nearly certain to cause fight
Regular Fighting Words/Threats (I’ll
punch you in the nose)
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Subjects
But: SM distinction  CB  SS
 Policy: can be used as a form of political censorship
 App: statute not narrowly tailored – it allows other FW
o State can prohibit entire category – but not just a
subcategory
Races, color, creed
Virulent
Regular
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White concurring:
o If the state is allowed to prohibit the entire category, why can’t they prohibit part
of category?
o The speech is based on intensity or virulence
o FW prohibition may be used to suppress speech that is based on intensity or
virulence
o Problems with Scalia’s analysis is that he say NT is suppressing more speech,
more speech is a broader speech; What would Scalia respond? In this case
punishing more speech is a guarantee that the gov’t is acting neutrally and not
punishing speech b/c it disagrees with it
o Overbroad; hits political speech protected by 1st Amend.
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Wisconsin v. Mitchell – 1993
o Facts: After watching MS Burning, a black beats up a with boy; ∆ gets sentence
enhancement based on the selection of victim based on race
o Unanimous
o Rule: Hate Crime legislation  constitutional
 Based on conduct; NOT speech
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o Sentence Enhancements based on race, religion, etc.
o Hate crimes create unrest, retaliation, emotional harm more probable
o Counterargument: the gov’t may punish somebody based on the fact that a person
has views that the gov’t dislikes. Evidence – how do we prove that the crime was
based on the race of the victim?
Virginia v. Black – 2003
o Facts: statute prohibiting cross burning with intent to intimidate/threaten;
evidentially provision [?]; any such burning of a cross shall be prima facie
evidence of intent to intimidate a person/group of persons; Issue: Communicate a
threat or Klan solidarity?
o Court follows RAV – SM/Viewpoint distinction OR intensity/virulence
distinction
o Intensity/Virulence distinction  Constitutional
o O’Connor Majority:
o If a threat  it falls under virulence distinction (historical use of cross burning to
intimidate)
o BUT the statute struck down because of the prima facie evidence provision in
which jury could only infer intent from the cross burning
 Chills political speech
 Klan burns the cross for 2 reasons; only one to intimidate
o Souter, Kennedy & Ginsburg – concurring in judgment & dissenting:
 CB distinction  under RAV  unconstitutional
 Legislative History – passed in 1950s as VA legislature attempting to
improve national image
 Evidence – prima facie evidence that if you burn a cross  guilty
o Thomas – concurring & dissenting
 Conduct – not expression  no 1st Amendment protection
o Scalia
 Virulence distinction;
 Prima facie element is not enough to make unconstitutional  rebuttable
o Nowlin about Majority: Ct recognizes that categories of TT and FW can be used
to achieve some category of hate speech
 Example: State law prohibits certain words/phrases that are “unAmerican.” This is a CB speech restriction that requires SS. Unless CSI 
statute invalid
HYPO:
o We are going to punish all FW and we are going to enhance the sentence if the
victim was selected on the basis of race, religion, creed, or gender. Tension b/w
RAV and Mitchell:
 White’s argument – speech is based on intensity or virulence is clearer in
Mitchell. The fact that St. Paul can enact the statute means that the speech
was based on intensity or virulence.
 Making RAV statute constitutional/Obtain St. Paul’s objectives:
o Prohibit all FW; add sentence enhancement to conduct for
fighting words
15
o The sentence enhancement constitutional extends under
Mitchell to conduct of victim selection
 What is the argument that the statute is not constitutional? It is speech, not
conduct. We are not dealing with crimes, we are dealing with speech
o Using VA v. Black – to allow St. Paul in RAV to restrict hate crimes:
 No prima facie evidence
 Historical discrimination could be used as a virulence distinction;
particular words
Shift from Content of Speech/Words  to method of Regulation of Conduct
Overbreadth & Vagueness Doctrines
Overbreadth – even with problems, the SCt is not retreating from Doctrine
- Doctrine limited to Speech Laws (FW, TT, etc.)
- Does NOT apply to laws:
o Regulating conduct
o Commercial Speech (profit motive  makes CS hardy  less concern about
chilling effect)
- 2 types of challenges:
o As applied – not necessarily unconstitutional; but is being interpreted in
unconstitutional way  Partial invalidation
o Facial: On its face, the statute and the method are unconstitutional  Total
invalidation; statute will not contain conduct regulations
 Traditional Facial Challenges: invalid in all or almost all of its
application
 Special Facial Challenges:
 1st Amend doctrine/DP doctrines:
o Overbreadth
o Vagueness
o Prior restraint
- Policy in favor of doctrine:
o “Chilling Effect” – overbroad statutes create a chilling effect (no π if chills)
o Overbroad statutes encourage self-censorship which in effects deters speech
o Selective enforcement may occur with a overly broad statute
o Allowing facial challenges if very protective of free speech
- Policy against doctrine:
o Used to strike down laws that will never be misapplied/portions of statute may be
fine
o Give windfall to guilty ∆s
o Often, standing of π is not appropriate
o Erodes S/P – SCt may cherry pick cases
o Overbreadth does not clarify what is constitutional; division b/w acceptable &
unacceptable is blurry
 Gives no notice
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 Prevents clarification
Gooding v. Wilson - 1972
o Facts: Protestors/Demonstrators at induction center; “white son of a bitch, I’ll kill
you” – convicted for using opprobrious words tending to cause a breach of the
peace
o Brennan majority: definition of “opprobrious” and “abusive language” was
overbroad
o Issue: whether the statute is overbroad relating to FW or TT
o Statute is overbroad in interpretation; effects constitutionally protected speech 
facially unconstitutional
o Not protected speech  either FW or TT; Gov’t can restrict
 If as applied challenge, ∆ would lose  not constitutionally protected
speech
o Blackmun – Dissent
 The GA courts were interpreting the statute based on pre-Chaplinsky
cases; no reason to believe GA would ignore Chaplinsky and not interpret
the statute more narrowly
Broaderick v. OK – 1973 – Triggering Overbreadth Doctrine
o Facts: law restricting political activities of civil servants
o Rule: To find a statute unconstitutional based on overbreadth, it must be
substantially overbroad
o 4 possible ways to determine substantial overbreadth:
 Significant LH of deterring important 1st Amend speech
 Possible for selective prosecution
 High ratio of unconstitutional applications
 High state interest in suppressing the speech (is it NT to restrict that type
of speech) vs. how important is the free speech interest/value of speech
If fails to trigger overbreadth  use the as applied challenge
Brockett v. Spokane Arcades – 1973 – Partial Invalidation
o As applied challenge  when the person has a as applied challenge, they may
not raise a facial challenge; the person’s speech is protected
o Rule: Allows partial invalidation of a statute
o State is in a better position if they actually violate ∆’s right to speak  allows
state to trim statute without invalidating entire statute in FC
o Still confusion over whether Brockett always the rule;
 Not suppose to get FC; But in 3-4 cases, ∆ has been able to FC
 Brockett probably has exception  but SCt is not addressing until they
figure out how to fix the problem
Osborne v. Ohio
o Rule: Judicial Narrowing defeats overbreadth challenge
o As applied challenge
o If facial challenge unavailable for unprotected speech  legislative incentive to
punish only persons whose speech is unprotected because facial challenge is not
available to them
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Problems with narrowing construction: Retroactive analysis  Can the ∆ challenge the
FC
o Legislative narrowing does not defeat overbreadth claim. Oaks. This is b/c it
would be an ex post facto law
 Policies:
 Want legislatures to get it right the first time
 Don’t want to encourage legislatures to try to see if they can draw
the line back to get away with more
 Ex Post Facto: Legislatures can’t retroactively criminalize conduct
o If allowed to retroactively amend  still ex post facto law
 law ∆ charged with is facially unconstitutional  ∆
never charged to begin with  if leg. Then amends  ex
post facto
o Judicial narrowing does defeat an overbreadth claim. Osborne. This is essentially
interpreting the law
 Policies:
 DP – As long as notice and the interpretation is foreseeable, cts
allowed to interpret broadly or narrowly  foreseeable
construction
 Gives courts incentives to get the interpretation right the first time
they see it
o Complication of fed review of state laws – Narrowing of overbroad statute 
broadens criminal liability
 If the narrowing of overbroad statute is facially invalid (even thought it
hasn’t been ruled on), then the original statute is void because the statute is
invalid; ∆ is not liable under the first statute which is gone
 If narrowed  some conduct is criminalized
 Legislature amendment  can’t because ex post facto law
 Cts can narrow  if notice and foreseeable
 It is almost always foreseeable that the courts will construe the
statute constitutionally even if legislature screwed up
 BUT: Fed cts can’t reinterpret state statutes
Vagueness
- DP Doctrine 5th and 14th Amends. (ordinary criminal conduct) – not FOS
- Vagueness has “special bite” in 1st Amendment issues  greater notice must be given
- Policies:
 Chilling effect
 Selective enforcement by LE
- Village of Hoffman Estates v. Flipside of Hoffman Estates – 1982
o Rule: look at overbreadth doctrine first (b/c it is a FOS doctrine)  THEN move
to vagueness analysis
- Ct will almost always strike down on overbreadth – last vagueness case in 1970s
- Connelly Rule: “a law is void on its face if it is so vague that persons of common
intelligence must necessarily guess at its meaning and differ as to its application”
- Goguen
o Facts: flag burning – statute barred “contemptuous” treatment
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o Chilling effect – we have to guess what “contemptuous” means
o Selective enforcement  one guy is a hippie/another is patriotic
o If statute especially vague  unconstitutional
Overbreadth vs. Vagueness
- Likely to see vagueness:
o No constitutionally unprotected speech activity in the park  response: specifics
about FW, TTs, etc.
o Conduct statutes that apply to speech
o CS
- Overbreadth vs. Vagueness - Examples
o It is a crime to advocate criminal conduct  overbroad but not vague
o It is a crime to engage in constitutionally unprotected speech –> vague, but not
overbroad
o It is a crime to annoy any person  vague & overbroad
o No person may engage in constitutionally unprotected speech that annoys a public
official  overbroad & vague
o No person may engage in expression in park  tremendously overbroad
 If no FC – we would apply “as applied” challenge
 [?] The statue would read no person may engage in expression in park,
unless the speech is constitutionally protected
- Nowlin on Vagueness:
o Sometimes distinction between protected & unprotected speech is not clear. We
don’t know what the rules are under vagueness, the court has not told us. The
argument for applying vagueness analysis – overbreadth is like vagueness
doctrine, so it should be applied. Argument against – those doctrines are not clear
and we should not complicated things any farther
Prior Restraint (PR)
Restraints on speech prior to speech engagement  presumptively unconstitutional
- Origins: Blackstone – even the most narrow founding father’s interpretation didn’t allow
- Policy arguments against Prior restraints:
o Prevents ideas from reaching marketplace
o Often decided by overzealous censors
o Potential for selective enforcement  chilling effect
o System set up in favor of censorship
- Policy in favor of Prior Restraints:
o Subsequent punishment is still enforced – why not PR?
o Deterrent on FOS even without PR - Police could say if you violate PR – you will
die as subsequent punishment
- Lovell v. Griffin- 1938
o Facts: Ordinance prohibiting leaflet distribution without obtaining a permit
o Facially unconstitutional  strikes at the core of 1st Amend protection
Licensing Statutes as PR
- Constitutional Content Neutral Regulations
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o Speech regulation is otherwise constitutional as a subsequent punishment
o Clear standards govern the exercise of prior restraint
o No Freedman Safeguards needed
 Ex: parade permits. Constitutional as subsequent punishment based on
TPM restriction. If there are clear standards for the permits, constitutional
PR
Constitutional Content Based Prior Restraints
o Speech regulation is otherwise constitutional as a subsequent punishment
o Clear Standards govern the exercise of PR. Lakewood.
o Freedman safeguards:
 BOP on censor to go to court
 Final judicial determination on the merits
 Brief Period of PR prior to going to court
o (example – movie house trying to restrict showing a movie)
Freedman Safeguards – necessary, but not necessarily sufficient
o Even if met – may still be unconstitutional
o Speech surrounding prohibited speech
 i.e. Defamation of Public Figures:
 protected speech
 near an unprotected category; if the outer limits are pressed – may
challenge protected speech
Injunctions as Prior Restraints – Can have the effect of prior restraint
- Only in rare instances will an injunction be allowed – 5 times total
- Injunction is issued after the speech
- Are injunctions better or worse than licensing scheme:
o Better:
 Provides notice of law
 Directed to individuals/small groups where Licensing schemes are broad
 No prior submission requires
o Worse:
 Collateral Bar Rule – must follow injunction even if it is invalid; if ∆ held
in contempt for violating injunction  can’t use invalidity as a defense
 Chilling effect is greater for the people the injunction is targeting
- Near v. Minnesota – 1931 – Unconstitutional Injunction – Serves as PR
o Facts: Injunction issued after article in press alleging Chicago LE are corrupted by
organized crime; statute provided for the abatement, as a public nuisance, of a
malicious, scandalous and defamatory newspaper, magazine, or other periodical
o Collateral Bar Rule – prevents violator of injunction from raising the
constitutionality of the injunction as a defense to enforcement
o Holding: injunction works as an unconstitutional PR
o Butler Dissent: not PR; newspaper operating for years before being shut down;
Counterargument: it’s not the same material reprinted each time
Constitutional Injunctions
- Madsen v. Women’s Health Center – 1994 – Content Neutral
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o Facts: upheld injunction against protestors at abortion clinic based on prior
conduct
o Injunction is not PR, but should be carefully scrutinized b/c they can act like PR
o Content neutral  IS (tightened)
 Constitutional IF 
 constitutional as subsequent punishment (via TPM); and
 Lakewood clear standards
- Pittsburgh Press –
o Facts: city commissioner issues order prohibiting newspaper ads organized by sex
preference
o Content BASED injunction
 Constitutional as subsequent punishment
 Clear Lakewood standards (built into judicial process)
 Freedman safeguards
Unconstitutional Injunctions
- Pentagon Papers – 1971
o Facts: NYT receives sensitive information about Vietnam War. Gov’t gets
injunction from district ct; flies up to the SCt in about 2 weeks, little record
developed
o 10 OPINIONS; 6/3; 6 – Violates PR; 3 – Too quick of a decision
o Per Curiam:
 PR – heavy presumption of unconstitutionality
 Closest thing to a test: Heavy BOP on Government; not sure what this
entails; closest analysis is Brennan – troop movement
o Black & Douglas: Government accountability – citizens must be free to discuss
Vietnam
o Brennan: Defining the heavy burden; some information might meet the burden
(i.e. sailing date of troops)
o Stewart, White, Marshall: structural argument, S/P
 It is the executive branch’s job to keep the information secret  can’t rely
on courts to enforce your responsibility; pentagon at fault
 SCt would need congressional act for the Courts to get involved –
Congress not authorized PR, only a criminal act as subsequent punishment
o Burger, Harlan, Blackmun – Dissent:
 Too quick; incomplete record; arguments about the harm to American
foreign policy inconclusive – lack of factual development;
 S/P: FOS doesn’t trump the rest of the constitution – some deference to
other branches
 Test(ish):
 Check the exercise of the Executive power  is it constitutional?
 Is it really about foreign policy/national security
 Someone at cabinet level must testify about the level of national
security (creates near absolute deference to Exec)
 Deference to Executive
- What questions remain unanswered after Pentagon Papers:
o What is heavy burden?
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o Would the result have been altered if Congressional authorization existed?
o What about subsequent punishment?
 Ellsberg stole the information – could have been charged; he was
prosecuted, but the charges were dropped when Nixon’s goons broke into
Ellsberg’s psychiatric office to search for information
 Probably not able to prosecute NYT – not involved in the illegal
acquisition of the information
Bartikicki v. Vopper – 2001 (closes case to trying NYT after Pentagon Papers)
o Facts: radio station broadcasted conversation illegally obtained; can’t be
prosecuted
o Balancing Test:
 Privacy interests vs. Importance of FOS
o Radio stations who play illegal recordings (i.e. wiretaps) can’t be punished unless
the radio station was directly involved in obtaining the illegal recordings
Categories and protected vs. unprotected Speech (often reverts back to Chaplinsky)
- Obscenity - unprotected
o Miller
o Ginsberg – Variable Obscenity
- Violent - protected
o Brown v. Entertainment Merchants
o US v. Stevens
- Child Porn - unprotected
o Ferber
o Since the Ct decided Chaplinsky is historically balanced; had to create new
category (affirmed in Brown)
o US v. Stevens – creates new unprotected category – Speech integral to criminal
conduct
o Child porn will probably go under this category
Sexually Explicit Speech
- Speech with Sexual Content:
o FS Value:
 Contributes to marketplace of ideas
 Self-expression (individual autonomy)
 Promotes democratic self-government
o Social Harm:
 Children may suffer harm
 Promotes violence against women
 Public health: produces promiscuity
 Moral corruption/degradation of family
 Desensitized – slippery slope of morality
- Problem:
o Difficult to discern the line between obscenity & arts/literature
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Obscenity
- Does NOT originate with founding fathers – emerged in Victorian period
- Chaplinsky FW case – obscenity always an unprotected category
o Social value vs. social harm (obscenity defined where low social value and high
harm)
o History plays increasing role
- 1st Amend extends beyond political speech
Early Cases – Pre-Miller
- Hicklin- 1868
o Bad Tendency Test: Whether the tendency of the matter is to deprave and
corrupt those whose minds are open to such immoral influences
o Used in many American courts in the 19th century
- One Book Called “Ulysses”:
o Rejected Hicklin BT test
o Test: is material obscene based on average member of the community and
work as a whole
o More speech protective
- Roth v. US- 1957
o Facts: CA statute prohibiting to write/print/sell obscene writing
o Test: Whether the average person, applying contemporary community standards,
the dominant theme of the material taken as a whole appeals to prurient interests
o Test – broken into Elements:
 Average person
 By contemporary community standards
 Theme of work as a whole
 Appeals to prurient (lustful) interest  social harms
o Once deemed to be obscenity  unprotected speech
o Harlan Concurrence
 Depends on which level of government (state or federal) is prosecuting
 Jeffersonian interpretation
o Douglas Dissenting
 History doesn’t support suppression – lots of sexual speech at founding
 FOS should win to support marketplace of ideas
- Roth test only lasted until the 1960s
- Memoires v. Mass [don’t think we studied]
o Only 3 Justices used this test – but used until Miller
o Elements – extension of Roth
 The dominant theme of the material, taken as a whole, appeals to a
prurient interest in sex
 The material is patently offensive (new part of test) because it affronts
contemporary community standards
 The material is utterly without redeeming social value (new part of test)
- Redrup v. NY – 1967
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o Example of a period in late 60s where court began reversing obscenity
convictions with per curium opinions
o Clark & White – want to stick with Roth
o Black & Douglas – no category of obscenity; absolute protection
o Harlan: National Gov’t has little authority to regulate – state power
o Stewart: “I know it when I see it”
Miller – MODERN test – 1973 [notes have disappeared – double check other folders]
- Facts: statute prohibiting sales of obscene materials
- Burger – Majority
- Test:
o Whether the average person, applying contemporary community standards, would
find that the work, taken as a whole, appeals to the prurient interest
o Whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined in the applicable state law [Based o n Contemporary
Community Standards (CCS)]
o Whether the work, taken as a whole, lacks serious literary, artistic, political or
scientific (LAPS) value
- Defines a larger box of obscene speech than Memoirs
- Applying CCS leaves determination with jury
- Douglas – Dissent: 1st Amend protects obscene speech, absent const. am
- Brennan – Dissent: statute is overbroad because it extends to consenting adults
Miller – Criticism/Approval
- CCS criticism – the country is big; national CCS is hard to define
- No censorship – people will take 1st Amend seriously, had more censorship in the 19th
Cent. And preserved political speech
- Unclear? This is clear enough, it provides notice, relieve institutional stress on the courts
Application of Miller
- Paris Adult Theatre - 1973
o Facts: movie theater with signs warning of sexually explicit materials age limit
o Rule: There is no consenting adult exception to the Miller obscenity test
o “We categorically disapprove the theory that obscene, pornographic films acquire
constitutional immunity from state regulation simply because they are exhibited
for consenting adults only”
- [Some additional information p. 25 long outline]
- Pope – 1987
o Rule: Third Prong of Miller (lacks serious LAPS value) is a national standard
- Jenkins v. Georgia – 1974
o Facts: carnal knowledge movie
o Rule: Miller test only applies to hard core pornography
o Outer limits to the jury decisions – jury did not understand GA’s values because
the movie is not patently offensive
- Ginsberg
o Rule: Variable Obscenity- with respect to minors may be banned from minors
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o Although something may not be banned as obscene to adults, it may be banned as
to minors, if under the Miller test (taking minors into account) the item is obscene
Local vs. National standards Obscenity online – Ashcroft v. ACLU – 2002
o Facts: Child Online Protection Act; Variable obscenity concept – the material is
not obscene for adults, but it is for children; Banning access to children to that
speech; no technology to block children from the speech at a reasonable costs
o Not overbroad in Facial Challenge  but using CCS may be unconstitutional as
applied in some jurisdictions
o Rule: The use of CCS is correct for a federal statute banning obscenity.
o [double check the book]
Local vs. National Standards – Hamling and Sable
o Federal obscenity prosecution
o Jury can rely on local community standards
o Policy concerns: can be prosecuted in a state from which obscenity did not
originate
o [double check the book]
o Kyle’s outline:
 No SL for obscenity
 Mental state element: probably knowledge of character of materials
Stanley v. GA - 1969
o Exception to obscenity doctrine: You may possess obscene material in your own
home
o Anti-paternalistic thought – freedom to think in the privacy of home
Ridell
o There is no right to deliver or produce it even though in Stanley there is a right to
possess
Violent Speech – trying to draw a parallel with Obscenity
- Not going to happen – history strikes the balance
Brown v. Entertainment Merchants Assoc – 2011
- Facts: CA law prohibiting sale or rental of violent video games; civil fine
- Scalia Majority – 7/2 invalidate
- CA argument – CSI – protect children
- Chaplinsky – SH vs. SV – history strikes the balance
o Rule: violence is a traditionally protected category
- Since protected category of speech  SS
o CSI
 Protect minorities
 Need Empirical evidence to demonstrate regulation required to
protect kids
 Underinclusive  difficult to prove the CSI is really that
compelling
 Parental Control of Kids
 Supports parental authority
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Overinclusive because some parents don’t care if their children
buy violent video games
Alito – Concurrence (with Roberts)
o Strikes down on vagueness (but didn’t start with overbreadth)
 Probably used vagueness first because can’t doctrinally justify overbreadth
o Doesn’t want to strike down on 1st Amend grounds so it can get back to SCt [?]
o Vagueness analysis:
 Based on constitutional doctrinal Miller test
 History doesn’t support same analysis under violence
 Law is vague regarding obscenity but without the historical background 
even more vague
Thomas Dissent:
o Consistent with the original intent of the 1st Amend
Breyer Dissent:
o SS – but believes constitutional
o Common sense – leads to violence; deference to legislatures
o It is only a modest speech restriction
Are video games speech?
- SCt seems to think it is speech
- Early video games – more questionable than now:
o Film of guys playing table tennis – speech
o Guys playing table tennis – not speech
- Some questions remain – i.e Video Poker
o Probably not – probably considered conduct
Child Pornography - unprotected
- NY v. Ferber – 1982
o Rule: Child Porn is an unprotected category of speech
 SCt – Similar to Chaplinsky balancing test
 Harm outweighs the value  unprotected
 Social harms:
o State interest in protecting children from physical &
psychological abuse
o Children harmed by ongoing existence of permanent record
of abuse – re-publication
o Child abuse
o Financial incentives
o Ct wants to shut down national market
o Low FOS value
o High social harm
 Social Value – low
o Ct still must define “child porn”
o Statutes MUST be:
 Specific
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 Defining what type of speech
 Who is a minor
 To give notice
o O’Connor’s Concurrence:
 If there is a case that has serious SV – Ct will address later
o Brennan concurrence:
 If someone can show SV  it is protected
Osborne v. Ohio
o Facts: private possession of child porn (does Stanley v. GA extend to child porn)
o Rule: Gov’t can criminalize private possession of child porn
o Stanley does not extend
o It is about protecting the kids
Ashcroft v. The Free Speech Coalition - Ashcroft II
o Facts: Child Pornography Prevention Act of 1996 – ban on virtual child porn (CSI
or youthful looking adults)
o Unconstitutional  substantially overbroad
o Reconciling with Ferber
 Outside the scope of Ferber - There is no injury to kids
o Reconciling with Miller
 Need a statute tied to Miller test to keep it from running against
overbreadth; outside the scope of obscenity
 If statute tied to Miller  probably constitutional
o SS Analysis:
 CSI – Congress concerned use of virtual porn will inhibit trying actual
criminals using real kids
 But Ct doesn’t allow suppression of protected speech to get at
unprotected speech
 NT - NO
 2 options: pass stronger laws against pedophiles or parental
safeguards
o O’Connor – joined in part, dissented in part
 Concurs - Statute unconstitutional when restricts speech using youthful
looking adults
 Dissent – Constitutional if NT when applied to CGIs because hard to
prosecute
US v. Williams
o Facts: statute that made it a crime to advertise, promote, distribute, etc. child porn;
basically deals with virtual child porn that people believe to be actual porn; Fraud
& solicitation
o Prohibition: offer and fraudulent offers to engage in activity – NOT the speech
o Constitutional b/c solicitation & fraud are not protected
o Raises impossibility and attempt issues
o Souter Dissent:
 Really about speech of VCP – not an unprotected category
 Worried about chilled speech
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US v. Stevens - 2010
o Facts: Statute prohibiting “crushing” where video viewed – person sitting on
small animal to kill; dog fighting were also included; animals killed
o 8/1 decision – unconstitutional law  overbroad
o Jurisdictional issue – it is illegal where the film is viewed; doesn’t take into
consideration whether it is legal where video made
o Establishes history strikes the balance b/w Chaplinsky SV vs. SH
 Court can’t create new categories
 BUT – one existing category – Speech integral to criminal conduct
(Child porn – not a historic category; Ferber will now be placed under
this category)
o SCt interpreted the statute very broadly – i.e. bow hunting illegal in some states;
legal in others
o Alito – Dissent:
 Thought statute NT; there is no reason to interpret so broadly
Potential Issue – NO SCt decision:
- Can’t use anti-prostitution laws to prohibit the conduct to prohibit the speech of filming
o Speech is protected  can’t criminalize conduct
- In the child porn cases  the arrow goes the other way
o b/c conduct is criminal  speech rendered unprotected
Lewd & Profane Speech – Protected Speech (CSI can be overcome when protecting kids)
- SCt does NOT recognize a category of lewd & profane speech (at least since Chaplinsky)
- All we have is Chaplinsky dictum – which states it is unprotected
- CB restriction
- CSI – often to protect children
- The cases normally turn on NT – Technology issues/how to apply NT in tech issues
- Potential State Interests:
o Protecting children
o Protecting adults
o Concern over cleansing public debate
o Concern of subcategory – urban blight
- Most of the issues revolve around NT – Application & interaction with technology
- Default Test: SS – CSI/NT
- Factors to look at:
o Value of speech
o State interest in suppression
o Test – SS
o Ban or simply burden on speech (TMP restriction)
o Property Value concerns
o Technology & its relationship in the legal doctrine (NT)
- Butler v. Michigan – don’t think it is a Lewd & Profane case
o Variable obscenity under Ginsberg
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o Balancing protecting children vs. limiting adults access to constitutionally
protected speech
o Some cases – test:
 Targeting lewd & profane  SS
 Or
 Protecting kids, but effects adults  SS
- Cohen v. CA- 1971
o Facts: Fuck the Draft; prosecuted for willfully disturbing the peace by offensive
conduct
o Harlan Maj:
 No Test enunciated
 Ct lists potential theories: Obscenity (no –not erotic); FW (no- not directed
to individuals); HAR (no – no one violently aroused; not ∆’s intent)
 SS – CSI at issue/Response
 Speech intrusive on others
o Avert your eyes
 Protect Children
 Cleansing Public Debate
o Incompatible with 1st Amend
 Impact of Speech
o Profanity has role in society
 Value in political debate; emotional resonance of
profanity
 Communicating shocking value of words
 Limits the message
o “One man’s vulgarity is another’s lyric”
o Blackmun – Dissent: Not conduct – this is speech
[Rowan v. PO & Bolger v. Youngs – long outline]
- Erznoznik - 1975
o Facts: drive-in movie theater that could be seen from public places; City
ordinance prohibiting images of nudity in public places
o Powell Majority:
 CB  Unconstitutional
 Not obscene under Miller
 Burden on viewer  avert your eyes
 Test beginning to look like SS
 Protecting kids  is a valid CSI
 Protecting adults  not a valid CSI
o Burger & Rehnquist – Dissent: Theaters should take efforts to shield; modest
burden; adults shouldn’t be subjected either
o White – Dissent: we can protect adults & children outside of the home from
offensive communications  statute valid
- FCC v. Pacifica Foundation – 1978 [Important Case]
o Facts: Carlin’s 7 dirty words aired over the radio with warning during day
o Plurality –
 CN  FCC may restrict speech via TPM
29


-
-
-
Low value – not saying unprotected
Technology: Radio, but not a ban (can play at night)
 Intrusiveness in the home
 Warning insufficient – people flip channels
 Audio rather than written - Children – can hear even if not old
enough to read (referencing presumably unacceptable restrictions –
bookstores)
 Single event – not recurring
 FCC should be given deference - Radio is finite resource
 Maybe SS  but FCC wins
o Powell concurring in the judgment:
 Not Low Value speech, but the rest of the value is the same
o Brennan – Dissent:
 Protected speech
 Can turn it off; no invasion of privacy
 Burden on people who have to stay up late to hear the broadcast
 Violation of Butler v. Michigan; principle that adults have right to access
info – can’t dumb adults access down to protect kids
Sable Communications v. FCC – 1989 [ very important – moving in the direction of a
test]
o Facts: statute total ban prohibiting indirect phone communications - dial-a-porn
o Distinguish from Pacifica
 Technology: Phone – must take affirmative steps; not regulated
o Clearly establishes SS for CB
o Low value speech drops out
o App: Not NT - Less restrictive alternatives exist (credit cards for companies)
o No deference to FCC
Reno v. ACLU- 1997
o Facts: Communications Decency Act – restriction on non-obscene
communications patently offensive to minors – early internet regs
o Distinguishing from Pacifica:
 Ban vs. TPM restriction
 Warning effective over interests
 Criminal (Reno) vs. civil punishment (Pacifica)
 Butler v. MI – dumbing down adult interests for kids
 SS – failed NT – filters
o Law is ambiguous – what does “indecent” mean?
o Less Restrictive Alternative exists – Credit card, v-chip, tagging, etc.
Ashcroft v. ACLU I – 2002
o [Don’t know the facts]
o Variable obscenity under Ginsberg and Miller
o Lacks serious redeeming value
o National Reg: Local community standards that effect national standards
o 3 Justice Plurality
 No final resolution about variable obscenity & local standards
o Concurrent:
30
-
-
-
 Maybe national/local standard
 Problems with local standards
Ashcroft v. ACLU II – 2004
o Facts: COPA – filters; Miller test adjusted for minors; criminal sanctions for
failing to block kids access to lewd & profane speech on internet; prelim
injunction – remanded
o Lewd & Profane – categories based on age:
 Minors – unprotected speech (lewd & profane, obscenity)
 Adults – protected speech – no longer category for adults
o Miller Test with Ginsberg variable:
 Banning something offensive to children can place a burden on adult
access  triggers SS
o Kennedy Majority: Protecting kids is a valid CSI
 Not NT – Filters offer a less restrictive alternative & they can block
foreign content; Congress can encourage people to use filters
 Proportionality b/w Valid CSI and the amount of variable speech
restricted
o Breyer Dissent:
 Filters aren’t sufficient; not every family can afford; tech difficulties;
inattentive parents
o Tension between the Justices: How compelling is the CSI and NT– and what level
of restrictions are allowed on adults to accomplish CSI
 Breyer – Goal: 100 units; 100% restriction for max CSI; 100 units
achieved
 Kennedy – Goal 100 units; 70% restriction for sufficient CSI; 50 units
achieved
o Procedurally – brought on injunction; remanded; gov’t could have won by
demonstrating filters don’t work; SCt later denies cert
US v. Playboy
o Facts: Provision 504 – block at parents request, provision 505 – scramble fully, or
time requirements at night
o Kennedy Majority:
o Test: SS  not NT; less speech restrictive alternatives
o § 504 offers a more NT way to protect children; § 505 unconstitutional
o Distinguishing Pacifica: radio is more available and must be regulated
[questionable]
o Breyer Dissent: CSI of protecting kids – too important; some parents may not
know about § 504
What is enough to constitute the state interests – ACLU II & Playboy
o Breyer: If the CSI needs to reach 100%  must figure out what gets us to 100%
o Kennedy: If the CSI only 70% child protection  less units is more NT
Regulating Indecency by Zoning – Secondary Effects - Part of L&P
- Secondary Effects  IS
o Urban Blight
31
-
-
-
-
o Property Value
Facially CB (but emphasis on secondary effects)  CN& TPM restriction
o Test: IS
 State interest (property values, urban blight)
 NT/Ample Alternative Avenues of Communication (AAA)
Burdens  NOT banning activity
Factual Precedent needed to ensure they are CN via evidence
Young v. American Mini-Theatres – 1976
o Facts: Detroit zoning laws; adult theaters can’t be near “regulated use”
establishments (bars, hotels, etc.) or residential properties
o Stevens
o No test; Ct upheld TPM restrictions
o SCt moving towards IS
o Open question whether court consider CB (facially) or CN (test language)
 State Interests:
 Secondary effects provide real rationale for law
 Reduce crime/urban blight
 Provide factual study
o Stewart – Dissent: facially CB  SS
City of Renton v. Playtime Theaters – 1986
o Facts: Zoning ordinance prohibiting adult motive theaters close to public areas
o Rehnquist Majority - Young applies
o Test: If law is based on secondary effects & is a TPM restriction  considered
CN  IS
 Substantial state interest (can tackle the problem 1 step at a time – which
allows state to target only adult movie theaters)
 Law substantially related to state interest
 Ample Alternative avenues of communication (which can be only 5%
of town)
o Evidence required – that the zoning ordinance will reduce secondary effects
(only minimal effect required)
o IS can vary in the strength of its application
o Holding: Constitutional
o Brennan & Marshall Dissent: CB  SS
 Even if not CB  restricts too much speech  unconstitutional
Alamdea Books - 2002
o Facts: Reg. can’t have 2 adult business in one location, based on 1977 study that
adult establishments are correlated with higher crime rates; closing an earlier
loophole; Alameda – 2 business under same roof
o O’Connor – Plurality  CN  IS
 City can rely on old study from another city as factual support
o Kennedy – Concurring
 CN is pure fiction – really CB
 Test should be IS+ to ensure city is not attempting to ban the speech,
which would be constitutional
o Souter – Dissenting
32

Content Correlated; IS, but the strength of the test varies based on the
evidentiary support
Lewd & Profane Overview
- Primary Effects  CB (first section)
o Constitutional – but government generally loses on NT/Tech issues
 Valid CSI:
 Protecting children
 Protecting privacy of adults in home
 NT
 Application
 Technology
o Unconstitutional
 Invalid CSI:
 Offense
 Moral Corruption
 Cleansing public debate
 NT – doesn’t matter – invalid CSI
- Secondary Effects  though CB – treated as CN (second section)
o Valid Important State Interest
 Property values
 Increased violence – skid row
 Urban blight
 Reduce crime
o NT: (greater deference)
 Factual study – to prove not pretextual
 Ample Alternative Avenues of Communication – NOT a complete ban
(Alameda – Kennedy concur)
Pornography – Feminism – Hate Speech
- Traditional Argument against Porn  ban all porn
o Moral objection
- Feminist Argument against porn  ban only porn that exhibits degradation, exploitation
& oppression
o Exploits women
o Degrades women
o Encourages men to view women as objects of aggression
- Argument that porn should be protected:
o Contributes to marketplace of ideas
o Expression of individual autonomy
- Hudnut – (7th Cir.)
o Facts: city ordinance prohibiting porn (defined as material sexually degrading to
women)
o CB  SS
 CSI – protecting women (valid)
33
-
 NT - Ordinance is not narrowly tailored
Butler – Canadian Case
o Upholds an ordinance similar to Hudnut
o Hate speech laws are constitutional in Canada
US Cts: No recognition of hate speech or porn categories; but will validate hate crime
or sex crime laws
o States probably can’t prohibit CB hate speech; SS; always less restrictive means
Commercial Speech
- Not categorized under Chaplinsky as unprotected speech  but Ct until 1970s treated as
unprotected
- Still unprotected speech under CS:
o False & misleading
o Illegal transactions
o TPM –
o Still concerns over broadcast (Pacifica) – FCC may get special deference
- Why IS and not SS; Same reason Overbreadth (Bates) does not apply
o Ct: hardy – more difficult to chill b/c of profit motive
 More objective test needed – more facts/less opinion (puffery)
 And make sure we can determine false or illegal speech from CS
o Rehnquist (VA Pharmacy) – low value
- Virginia Pharmacy: 1976
o Facts: pharmacists can’t advertise issue relating to drugs
o State rationale: price wars will ensure; quality of pharmaceuticals will suffer;
pharmacy services will suffer
o Held: CS protected
o CS Defined: speech that proposes a commercial transaction
o SCt interest in recognizing CS as protected category:
 Consumer interests – concern over the poor making poor decision based
on lack of information (most important)
 Societal interest in free flow of information – Free Market economy
 Seller
o SCt concern over state espoused interest - Paternalism
 Can’t trust paternalism  highly suspect
 To protect consumers – they need more information; not less
 Alternatives for the state almost always exist:
 Regulate conduct
o OR
 Regulate Prices
o NO Test
o Rehnquist Dissent: valid CSI; CS not protected
- Bolger v. Youngs Drugs - 1983
o Defining CS – individually not enough; but together CS
 Is it an ad?
 Mention a specific product?
34
-
 Economic motive?
o Unanswered question – what happens when 1 or 2 elements missing?
Central Hudson
o Facts: law forbade promoting electricity use
o 4 part Test (similar to IS):
 Is speech false or misleading or about illegal product or service:
 If yes  unprotected & regulation acceptable
 If No  protected & continue with test
 Is there a substantial state interest?
 Does regulation directly advance the state interest?
 Is regulation NMETN? (reasonable fit – SUNY v. Fox; in effect, this
can increase the protection to SS)
Derivating from Central Hudson
- Posados -1986 - Rehnquist
o Facts: Speech restriction regulations – restrict casino ads to people of Puerto Rico;
wanted money from tourists only
o Still uses Central Hudson; but applies like RBR
o Protected speech – 1st prong Central Hudson
 Substantial state interest – yes
 Advance the interest: (RBR) deference to legislatures
 NMETN: Greater includes the less
 B/c the government could regulate the conduct (gambling) 
govt allowed to regulate the speech
o Direct contradiction to VA Pharmacy
- Rubin v. Coors Brewing
o Central Hudson – tightened back up to original meaning
o State interest: worried about ABV war
o 3rd prong: Directly Advances the state interest  NO
 Information listed in other locations
th
o 4 prong: NMETN  NO
 Regulate the conduct
o Statute unconstitutional
- 44 Liquormart – Plurality
o Facts: RI banned price ads for alcohol sales; concern will lead to prince wars;
greater demand for alcohol – public health problems
o IS+
o 3rd Prong: Directly advances state interest  NO
 Not enough evidentiary support  suggestive of SS – level is probably
now at IS+
o 4th Prong: NMETN
 2 alternatives:
 Regulate conduct
 Engage in counterspeech – PSAs
o Rehnquist gave up in his fight to make CS unprotected
- Lorillard Tobacco Co. v. Reilly
35
-
o Facts: Statute banning 1) cigs ads near schools; 2) POS for tobacco had to be
higher than 5 ft off the ground
o State interest – protecting kids
o 4th Prong: NMETN – Cigs near schools
 Restricts adult access as well
 Butler v. MI
th
o 4 Prong: NMETN – POS
 Pointless – kids can look up
o Thomas concurring:
 Get rid of Central Hudson; SS should apply
 Primary concern – paternalism
Thompson v. Western States Medical Center – 2002
o Facts: FDA – safety testing for new pharmaceuticals; there is exemption from
testing requirements for compounding drugs – mixing drugs to fit one patient; as
long as pharmacist don’t advertise compounded drug; Companies given a choice:
FDA approval (expensive) or advertise
o O’Connor Majority
o Some Js. Dissatisfied with Central Hudson  SS should apply
o Central Hudson will work for this case
o Paternalism  statute premised on restricting freedom of information
o 4th Prong – NMETN
 Regulate conduct
o Breyer Dissent
 Harks back to Rehnquist concern in VA Pharmacy
 Concerned about the motivation in asking for compounding drugs;
 Procedurally should work: Doc  patient  Pharmacy
 Procedurally risk: Pharmaceutical Comp. and Ads  patient  doc
____
- Florida Bar v. Went For It
o Non-Paternalistic Case
o Facts: Upheld a rule of FL bar prohibiting any lawyer to mail a document prior to
30 days after an accident
o State interest – protection of the privacy of the home
o Ct applies a more deferential standard of IS for 3 possible reasons
 Not paternalistic
 Protecting privacy in homes
 Not a total ban
o Potential Red Flag – if real interest is to ensure lawyers don’t look like
ambulance chasers – CB restriction
o Kennedy – dissent:
 Protecting Peace & Tranquility in home – NOT a valid state interest
 Avert your eyes – throw the mail away
-
RAV & CS:
o CS regs are CB  so should be SS
36
o SCt never applied RAV to CS
o Could distinction be viewed as virulence? Why does CS get lower level of
protection? Lower value, hardier, objectively provable
o Maybe the court has been reluctant to apply RAV b/c those characteristic are hard
to articulate
o Practically – RAV would swallow Central Hudson (which would only apply to a
complete ban on advertising)
Compelled Disclosure
Zauderer
- Facts: Disciplinary rule required attorneys to disclose, on ads, that clients must pay for
“costs” of unsuccessful suits
- Test:
o Government may compel disclosure about a product if reasonable related to
preventing consumer deception
- High level of deference
- Basic Concerns:
o Want consumer to recive information
 Suppressing ad – bad
 Forcing disclosure – good
- If “compelled disclosure” are unduly burdensome  may be paternalistic
Hypos:
- Compelled disclosure of the pics on tobacco packaging:
o 2 ways to look at it
o Analyze Zauderer & Central Hudson
o Could be unduly burdensome
o If Surgeon General warning already on packaging – new required pic could be
viewed either way
 Already being forced  constitutional
 Not adding anything new  unconstitutional
- Can federal govern ban electronic ads on tobacco
o Central Hudson
 1st Prong: Lawful, nonmisleading ad
 2nd prong: substantial govt’ interest – health, safety, welfare
 3rd prong: need empirical study showing direct advancement. 44
Liquormart
 4th Prong” Probably NMETN – gov’t could
 Levy tax. 44 Liquormart
 Also, can’t prohibit lawful communication based on harm to
children. Butler v. MI
 Probably unconstitutional – Prongs 3 & 4 not met
 Also, throw in cite to Pacifica claiming that gov’t may have greater
authority to ban broadcast advertising
- Can Govt ban all tobacco ads
37
o No – Problems:
 Paternalistic
 NMETN
Content Neutral vs. Content Based & Default Tests
- Distinction made because of the underpinning philosophical justification of FOS:
o Marketplace of ideas
o Self Governance
o Individual autonomy
- CB restrictions – More serious than CN
- How to determine whether CN or CB if it is blurry:
o Communicative Impact
 CN on its face, but turns in application on communicative impact
 CN b/c any speech regulated
 Ct treats as CB b/c turns on interaction with audience (Cantwell,
HAR, Edwards, Terminiello)
 If restriction is about how the audience will react  indication of CB
 Examples:
 Offense
 Anger
 Corruption (moral)
 Psychological
o Secondary Effects
 Facially CB – but since it is focused on the secondary effects  treated as
CN
o Purpose & motive
 3 potential treatments regarding whether purpose & motive should be
considered in assessing CB or CN:
 O-Brien
 Rule: Purpose and Motive of statute – will generally not be
considered in determining CN or CB
 3 reasons not to consider:
o Difficult to ascertain
o Impugns the motive – insulting to legislature
o Easy to reenact statute with better motive
 Ward v. Rock against Racism – 1989
 Rule: Purpose is the controlling consideration (used nearly
interchangeably with subjective intent)
o Might implicitly overrule O’Brien
 OR
o Might create a (Nowlin) distinctions between subjective
motivation vs. “objective purpose”
 Use effect to presume the natural consequences of legislature’s purpose
o Speaker Status
38


Can be outcome determinative on whether CN or CB; but depends on the
basis of the injunction/relief
Example: Madsen v. Abortion Clinic (prohibiting distribution of literature
outside clinic)
 CB – if statute is attempting to restrict the POV of pro-lifers
o OR
 CN – Based on prior criminal conduct (winner in the case)
TESTS:
- CB Restrictions:
o SS  CSI/NT
o Exceptions – unprotected categories
- CN Restriction
o i.e. TPM, Secondary Effects
o Test: IS
 Substantial/Significant State Interest
 NT
 Alternative Avenues of Communication
o Other Factors Ct has considered
 Traditional expressions (Metromedia – yard signs)
 Disparate impact on poor (Struthers & Metromedia)
 Disparate Impact of speech (NAACP v. Alabama)
 Motive to censor
Difficult Cases – CB or CN?
Hill v. Colorado
- Facts: State statute: unlawful approach someone within 100 ft of healthcare facility
without their consent; to pass out leaflets or engage in protect, edcution or counseling
- CN – applies to all viewpoints. Constitutional TPM restrictions
Schneider v. State
- Facts: Ordinance prohibits distributing leaflets in public street to prevent littering
- CN – applies to all types of littering;
- IS  BUT not NT; lest restrictive means
Martin v. City of Struthers
- Facts: city ordinance against knocking on doors to distribute leaflets
- CN - IS Test; Not NT, less restrictive means available
- Concern – Impact on Poor (restricting AAAC)
Kovacs
- Facts: city ordinance prohibits use of sound trucks to prevent loud/raucous noises
- CN – upheld b/c there are AAAC
39
Metromedia v. San Diego
- Ordinance banned all lawn signs because they looked bad
- CB
- State interest – not good enough
- NT – could have restricted the types of signs that could be used (i.e. only small ones);
- Disparate impact on poor – one of their only means of communicating – no AAAC
NAACP v. Alabama
- Facts: State law required disclosure of names/addresses of in-state members of
corporation; NAACP is a corporation but wants to keeps its members names private to
prevent harassment
- CN b/c applies to all corporations
- BUT – Ct takes into consideration the disparate impact on the speech
Forums
Traditional Public Forums
- 3 traditional Public Forums:
o Parks
o Sidewalks near streets & parks
o Street
- Test:
o CB  SS
o CN  IS
- Government may dictate TPM restrictions
- Government does not have any additional authority
Traditional Public Forum Cases
- Commonwealth v. Davis
o Not a 1st Amendment case
o Ct held gov’t has same property rights as homeowners – can restrict at will
- Hague v. CIO
o Overruled Davis
o Public Trust Doctrine: streets & parks are held in public trust for public use.
Government has no additional authority to restrict speech
- Frisby
o Ordinance prohibits residential picketing (outside certain homes)
o Public Form – sidewalk & street
o CN – IS Test & constitutional
 Is there a substantial state interests?
 Protect people in their homes
 Is the restriction No More Extensive than Necessary?
 Targets the manner
 Are there Alternative Avenues of Communication?
40

-
They can walk up and down the street; just can’t camp out in front
of one home
o Brennan Dissent:
 Not NT – Complete Ban
Clark v. Community for Creative Non-Violence
o Facts: Nat’l park regulation; no sleeping in the park overnight
o Public Forum – Parks
o CN – TPM; meets the IS test
o Brennan Dissent
Traditional Public Forum & Unattended Structures
- Pleasant Grove v. Summan – 2009 – permanent Structures
o If permanent display  it is construed as government speech
o Government may speak together with private groups
 If govt’ likes  they can join in the permanent display
 If gov’t doesn’t like  they can regulate
- Semi-Permanent Structures
o Still an open question
Non-Public Forums
- Forum owned by gov’t, BUT not for public use
- Gov’t has additional power to restrict speech
- Recognized non-public forums
o Jails
o Military bases
o USPS
- Places not normally used for traditional speech  government has additional authority to
regulate speech
- Test:
o Reasonableness
 AND
o Viewpoint neutral
- Allows for speaker & SM distinction
The battle of the tests: Adderley versus Grayned!


ADDERLEY:
o Protests outside county jail.
o Court states that jailhouse curtilage is not a public forum.
o Test for non-public forum: Reasonable in light of the use of the property and
viewpoint neutral.
o Early case showing that gov’t will have more power to regulate speech in nonpublic forums.
GRAYNED:
41
o Suggests, in dicta, alternative test for non-public forums: is speech compatible
with the function of the normal activity of a particular place at a particular time.
Winner is….Adderley!

GREER v. SPOCK:
o Army base regulation prohibits campaigning.
o Non-public forum: not held in public trust for public use (like parks).
o What test? Adderley or Grayned dicta? ADDERLEY!!!
o Test: reasonable and viewpoint neutral
o Reasonable: military base doesn’t want politics on base.
o Viewpoint Neutral: applies to all political speeches.
o Regulation Upheld

Deciding b/w traditional & non-public forums


KOKINDA:
o Law prohibits solicitation on sidewalks entering Post Office.
o Sidewalk on private property is a non-public forum. Plurality opinion.
o O’Connor
o Test: Reasonable and Viewpoint Neutral (Adderley; Greer)
o Reasonable: allows for free flow of traffic in and out of post office.
o Viewpoint Neutral: applies to all solicitors.
o Kennedy Concurrence
 Doesn’t decide b/w types of forum; meets the more stringent traditional
PF analysis
o Brennan Concurrence:
 Alternative test – Compatibility Test
 PO is compatible with allowing people FOS
INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS:
o Law bans solicitation and distribution in airport.
o 5 justices hold airport to be non-public forum.
o Why? Haven’t been around long enough to be considered a tradition.
o Solicitation Ban: Upheld b/c reasonable to be concerned about duress, fraud, and
traffic congestion.
o Distribution Ban: Struck Down b/c not reasonable.
o Traditional PF vs. Non-Public Forum
 Majority – Non-public form
 Not old enough to create traditional PF
 Mark your calendars
 Dissent – Traditional Public Forum
 Analogize airports to traditional PFs:
o Physical characteristics
o Degree of public access
o Use of property
42

 Very similar to major thoroughfares/parks  traditional PF
 Kennedy
 CN test
 Compatibility test mentions
*Note: Airport situation changed since 9/11
o Use of property – same
o Public access – significant decrease
o Physical characteristics – significant changes
Private Forum – do we have a right to a public forum?





MARSH v. ALABAMA:
o Privately-owned town.
o Holding: Company-owned town treated exactly the same as gov’t owned town.
o “The more an owner…opens up his property for use by the public in general,
the more do his rights become circumscribed by the statutory and
constitutional rights of those who use it.”
What about private shopping centers?
LOGAN VALLEY:
o Ct, citing Marsh, held shopping center – although private – is a traditional public
forum.
HUDGENS:
o Overrules Logan Valley!!!
o Rule: Private shopping center is private forum.
Hypo: Municipality sells a park to a private owner. What type of forum?
o Marsh suggests treating it as traditional public forum.
o Hudgens suggests treating it as private property.
o Also, raise issue of takings. Pruneyard.
Designated Forums – Equal Access Cases

Designated General Public Forum: designated by gov’t for wide open free speech activity
o Gov’t can take public designation away at any time.
o Test: Same as Traditional Public Forum:
 CB- SS
 CN- IS
*Only difference: gov’t can close forum down at anytime.

Designated Limited Public Forum: limited to certain groups and certain free speech
activities.
o Test: same as non-public forum
43

-
-

Reasonable and Viewpoint Neutral
PD of Chicago v. Mosley
o Facts: Ordinance – prohibition of picketing around schools; exception – for labor
organizations
o Marshall Majority
 Invalidated law under EP Cl.
 Traditional public forum
 CB Restriction  Ct called it “heightened scrutiny” – really SS
 No state interest distinguishing labor vs. non-labor
Widmar v. Vincent
o Facts: Regulation- broad access to university; but not to religious groups; state
argues interest in avoiding Est. Cl.
o Origin of Designated PF
 Official university policy that students have full access to FOS
o CB – SS  Same subjects can be discussed under full spectrum of theories
o Avoiding Est. Cl. violation is insufficient CSI (how does “play in the joints” fit
in)
-
PERRY:
o High school’s inter-school mailing system can only be used by certain groups.
o Forum Analysis: inter-school mailing system is not traditional (not held in public
trust); not designated general (not held open to all public).
o Therefore it’s either designated limited or non-public. Note: either way, same
test applies (reasonable and viewpoint neutral).
o Regulation upheld.
o Reasonable: school wants to limit access to mail system.
o Viewpoint Neutral: excludes all sorts of groups.
 Note: speaker status distinction is okay!
o Brennan Dissent: Disparate Impact – not Viewpoint Neutral
-
Lehman v. City of Shaker Heights – Viewpoint vs. SM
o Facts: politicians wanted to put ads on public transit; barred political ads
o Modern analysis: Designated limited PF (not being used yet); irrelevant b/c
decided under nonpublic forum
o Reasonable: government didn’t want to be perceived as endorsing; imposition on
captive audience
o Viewpoint Neutral: Commercial speech vs. political; not well reasoned
o Brennan Dissent:
 SM distinction; once placards are open for ads; barring political speech is
SM
CORNELIUS: [didn’t study]
o For court to find designation, need evidence of purpose or intent manifested in
official policy.
Designations – what we need to designate as a limited PF:
44



LAMB’S CHAPEL: viewpoint vs. SM
o School district allowed after school use of classrooms for community groups but
prohibited use by religious groups.
o Forum: limited public forum b/c open to some of the public.
o Test: reasonable and viewpoint neutral.
o Fails test.
o Not viewpoint neutral b/c excludes based on religious viewpoint.
ROSENBERGER:
o UVA funds student publications but excludes those promoting religion.
o Forum: student activities fund is a metaphysical forum- limited public forum.
o While the speaker status distinction is reasonable, it’s not viewpoint neutral b/c
discriminates on basis of religious viewpoint.
o Kennedy Majority –
 Viewpoint discrimination; views more as FOS case
o Souter Dissent:
 Views more as Est. Cl. Case
GOOD NEWS CLUB:
o Middle School allowed groups on school grounds, but prohibited groups seeking
to worship, or convert people.
o Limited public forum: not viewpoint neutral b/c prohibits only religious groups.
o Compares secular counterparts seeking converts to RNC/DNC who are all
advancing their cause seeking converts
-
Christian Legal Society v. Martinez – 2010; Ct couldn’t agree on anything
o Facts: Hastings Law School – Excluded CLS from forum based on antidiscrimination policy; CLS discrimination on sexual orientation
o Designated limited PF
o Ginsburg – weird opinion
o Alito –Dissent:
 Disparate impact on religious groups
 FE Cl. allows the groups to discriminate to maintain their Christian beliefs
 School seeking diversity of groups – not diversity within groups
EXPRESSIVE CONDUCT
-
NO Test; Only modes of analysis
Summary:


Both CN & CB tests filtered through:
o Traditions
o Culture
First Determine: Is conduct expressive conduct?
o Expressive Conduct:
 Arm bands to protest war. Tinker; Military uniforms
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
 Flag burning. TX v. Johnson; Eichman
 Wearing military uniforms. Schacht
 Dancing. Glen Theatre
 Litigation
 Cross Burning RAV & VA v. Black
o Not Expressive Conduct:
 Crimes
 Expressive Association (litigation for political purposes, Jaycees, Boy
Scouts)
 Will apply BUTTON test (see below)
Second: If Expressive Conduct, Apply O’BRIEN TEST:
o Regulation is within the government’s constitutional power
o Important or Substantial governmental interest
 E.g. moral disapproval of public nudity Glen Theatre
 Secondary effects. Pap’s (O’Connor for plurality)
o CN: unrelated to suppression of ideas
 If CB apply SS (almost always fails)
o NT: restriction is no greater than essential
Expressive Conduct Cases:



O’BRIEN:
o Fed’l law prohibits destruction of draft card.
o D burns draft card in protest of Vietnam.
o Ct faced with question of whether conduct is speech entitled to 1st Amd.
protection. Court does not decide the issue.
o Instead, Ct assumes that burning the draft card is speech and gives four part test.
o Test: Conduct combining speech and non-speech elements can be regulated
if…
 The regulation is within the government’s constitutional power
 Important or Substantial government interest
 Gov’t interest is unrelated to suppression of ideas (CN)
 Restriction is no greater than is essential (NT)
o Ct upheld law finding that gov’t had an important interest in proof that someone
has properly registered for draft.
TX v. JOHNSON:
o No flag burning
o Expressive Conduct? Yes.
o Brennan: Focused on policy viewpoint discrimination  politics  CB 
Unconstitutional
o Rehnquist Dissents: Chaplinsky balancing; Historical traditions – balancing –
not protected
EICHMAN:
o Flag Burning
o Flag Protection Act of 1989 protected flag under all circumstances.
o Ct invalidated: still CB b/c state interest is physical integrity.
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
o Rehnquist Dissents (again): broaden Chaplinsky!!!
GLEN THEATRE:
o Dancing at strip club
o Law requires pasties and g-string.
o Dancing is expressive conduct, so apply O’Brien
o O’BRIEN TEST:
 W/in state’s constitutional power
 State interest: moral disapproval of public nudity
 CN: applies to all public nudity, not just dancing
 NT: doesn’t ban, just requires pasties and g-string
o Constitutional burden!
o Note: decision will almost always turn on whether Ct considers law CN or CB.
o Scalia – Concurrence:
 Preserving morality allows for conduct restrictions
 Case is about conduct regulation with an incidental burden on speech 
1st Amend not implicated
o White Dissent: CB – related to suppression of ideas
Cross reference in notes:
- Scalia - FE Cl. & Smith; FOS & Barnes v. Glen Theater  incidental burdens
- Scalia’s view loses in FOS  conduct incidentally affects expression
- Scalia’s view wins in religion neutrality  Smith; RBR when expression
incidentally effects conduct

PAP’S A.M.:
o O’Connor Maj: Ban on public nudity. Preamble of law: purpose is to respond to
secondary effects of property value.
o O’Brien Test applied. Same result as Glen Theatres. CONSTITUTIONAL!
o Secondary effects are considered CN citing Renton.
o Stevens Dissents: O’Connor erred when she combined O’Brien test w/ Renton
rationale. Renton was for burdens on speech, not bans.
EXPRESSIVE ASSOCIATION & LITIGATION
Summary:



First: Is conduct expressive association?
o E.g., litigation (Button)
Second: Button Test: Is there a significant burden on the expressive association?
o There is an assumption that no significant burden exists.
Third: CN or CB
o If CN: (weak form of SS)
 Compelling State Interest (this is SS language)
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
Narrowly Tailored- no significantly less restrictive means (this is IS
language)
* Then balance state interest with level of intrusion (if intrusion significantly
burdens suppression even though CSI and NT, unconstitutional)
o If CB:
 Strict Scrutiny: CSI and NT





Expressive Association Cases:
BUTTON:
o State law prohibits organization from retaining lawyer for litigation in which
it’s not involved.
o Effect: stop NAACP from funding law suits.
o Rule: Litigation for political purposes is expression.
o Unconstitutional to prohibit litigation. Ct uses above “Button Test”.
OHRALIK:
o Law prohibits ambulance chasing attorneys.
o Not litigation for expressive association political purposes.
o Mere private practice of law is not expressive association.
ROBERTS V. U.S. JAYCEES
o Men’s social organization limits membership to middle-aged men.
o State law does not allow such sex discrimination.
o First: expressive association? Yes.
o Second: significant burden?
 Ct decides that requiring non-discriminatory membership policy is no
significant burden.
o Note: Not clear whether Court determines law is not significant burden at second
step or whether they go through the test, and when balancing determine it is
significant burden. Not important, just know there is a significant burden analysis
at two places.
DALE:
o Boy Scouts forced by state court to let in gay scoutmaster.
o Are Boy Scouts an expressive association?
 Yes. They have oath, motto, handbook, etc.
o Apply Button Test: Is there a significant burden?
 Yes. Ct defers to what group believes will significantly burden their
message.
o CN or CB?
 CN b/c anti-discrim law applies to all.
 CSI (SS): eradicating discrimination.
 NT (IS): maybe
 Balance: This is a severe intrusion and NJ’s interest does not
outweigh Boy Scout’s interest.
o Unconstitutional as applied!!!
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RIGHT NOT TO SPEAK
Summary:



Two ways to analyze:
o If state dictates a message, it will be invalid. Barnette (flag salute); Wooley
(license plate motto)
o However, even if no state dictated message exists, but there is i) some
attribution; and ii) inability to disclaim, right not to speak is violated.
Pruneyard (shopping center); Hurley (Irish parade)
Note: requiring students to pay into student activity fund, so long as viewpoint neutral, is not
a violation of right not to speak. Southwark
Commercial Speech: The state may constitutionally require advertisers to disclose specific
information in their ads if that requirement is reasonably related to the state’s interest in
preventing deception of consumers. Zauderer
Right not to speak cases:




BARNETTE:
o Compulsory pledge of allegiance.
o Rule: State cannot dictate a message and force citizens to endorse or appear to
endorse that message.
WOOLEY:
o License plate motto: live free or die.
o Court applies balancing analysis: state interest v. individual interest.
o Unconstitutional
o Nowlin: balancing language is dead today.
PRUNEYARD:
o Calif. Constitution: protects speech and petitioning in private shopping centers.
o Shopping center sues claiming right not to speak is violated.
o Protests upheld b/c:
 No state dictated message
 No attribution to owner of shopping center
 Disclaimer available
 Ct said owner could put up signs expressly disclaiming
HURLEY:
o St. Patty’s Day Parade put on by veterans groups.
o Gay/Lesbian Irish group (GLIB) wants to be in parade.
o State ct rules anti-discrimination law allows GLIB to be in parade.
o Veterans group sues claiming right not to speak.
o Analysis (Pruneyard)
 State dictated message? No
 Attribution issue? Yes, some concern that gay group will be attributed to
Veterans group
 Possibility for disclaimer? Not really possible for parade.
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


o Note: attribution and lack of possibility for disclaimer will invalidate even when
state dictates no message.
SOUTHWARK: Think of Rosenburger
o Univ. required students pay into student activity fund.
o Viewpoint neutral requirement.
o Rule: So long as viewpoint neutral, requirement is no violation of right not to
speak.
o Rosenburger - the fund VP neutral  Students want the money to speak
o Southwark – students funding the speech  violation of our right not to speak
through the organization
ZAUDERER:
o Issue over right not to speak and commercial advertising.
o Rule: State may constitutionally require advertisers to disclose specific
information in their ads if that requirement is reasonably related to the state’s
interest in preventing deception of consumers.
o Court had 2 options to decide the Zauderer case
 Strict view of government authority
 Conducted the analysis as a state dictated message
 Deferential View (Court chose)
 Only needs to be reasonably related to preventing deception
o Why did the court chose deference:
 Anti-paternalism is not a factor; not suppressing facts
o When the speech is paternalistic  will ct continue to use Compelled disclosure
vs. state dictated message
o Ct has not decided what analysis if the compelled disclosure is not reasonably
related
 State-dictated  SS
 Central Hudson
o If the first statement is shown to be misleading  compelling disclosure of the 2nd
statement may reasonably cure the 1st statement
Potential Exam Question: Zauderer – tobacco compelled disclosure
FREEDOM OF RELIGION



Two constitutional provisions address religion:
o Free Exercise Clause
o Establishment Clause
Religion is an important part of our constitutional tradition. Many historical documents,
including Washington’s farewell address and the Pledge, mention religion.
Freedom of Religion Policy:
o Freedom of Conscience: it’s morally wrong to coerce someone to say or believe
religious beliefs they do not, in fact, believe.
o Gov’t Corruption of Religion: an infusion of church and state leads to anticlericalism
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




o Civil Strife: establishment of religion causes wars and may lead to revolution.
Historical Understanding of the Est. Clause:
o Federalism: only the national government is prohibited from establishing a
religion. There is no prohibition on the states from establishing a religion.
o Founders: the founders disagreed over what Est. Clause meant.
Originalism as an Approach: this is a problem b/c…
o Today we have greater religious diversity
o Growth in government presents a special challenge
o There is a rise in secularism as an alternative viewpoint
Three different views of the Establishment Clause:
o Strict Separation: gov’t should do nothing that aids religion.
o Strict Neutrality: no preferential aid to religion. Neutrality is okay, e.g. gov’t can
give aid to both public and private schools.
o Non-preferentialism: gov’t cannot aid one sect of religion over another, but can
aid religion over non-religion.
In General  Neutrality has been the predominate polestar consideration regarding Est. Cl.
cases
In Lee v. Weisman & other cases – there is a constant struggle b/w Justices regarding
whether civil religion can be recognized AND if religion can be favored over non-religion
Est. Cl. Prayer Cases
Early Cases
Engel v. Vitale & Schempp
- SCt strike down both prayer in school cases
- Cite policies:
o Liberty of conscience
o Civil strife policy
o Government corruption of religion
- Stewart Dissent [comes back up in aid to school cases]
o Poor Parents who wish to give their children sectarian education are inhibited
from doing so b/c taxes allocate their money to secular public schools
o Violation of FE if the system is designed to discriminate against parents seeking
religious education
Lemon v. Kurtzman (1971)
- 3 prong test:
o Secular purpose
o Primary effect – which neither advances nor inhibits religion
o Excessive Entanglement
- While the Lemon test is not used often, elements often appear throughout cases

LEE v. WISEMAN:
o School prayer at graduation from rabbi.
o Is this a violation of the establishment clause?
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

o Court split three ways: it’s important to understand the rationale of each group.
o Kennedy: psychological coercion test. Because students will want to attend b/c
of peer pressure and will participate because of peer pressure, it is psychological
coercion and violates est. clause.
o Four liberals: endorsement of religion. The mere fact that the gov’t has an
invocation is an endorsement of religion and therefore unconstitutional. These
justices agree that psychological coercion is also a violation.
o Four conservatives: actual coercion test. If school had required students to
attend and penalized them for not participating, it would have been
unconstitutional.
SANTA FE INDEP. SCHOOL DISTRICT:
o School district has prayer before football games. Students vote whether to have
invocation and who speaker will be.
o Stevens combines psychological coercion test with endorsement of religion test to
obtain a majority.
o Dissent: still wants actual coercion.
NEDOW:
o 9th Circuit. 2004.
o Parent challenged the words “under God” in pledge of allegiance claiming they
violate est. clause when students are required to recite pledge in school.
o 9th Circuit panel held it was a psychological coercion.
o USSC denied cert for lack of standing.
o Note: if USSC did take it, it looks like it is both a psychological coercion and an
endorsement of religion.
o O’Connor, Rehnquist and Thomas dissented in denial of cert and upheld the
words.
Public Displays of Religion
Modern Test:

Endorsement Test:
o No excessive entanglement
o No endorsement (purpose or effect)

DONNELLY:
o City sets up Christmas display in public park which includes: Santa, reindeer,
seasons greeting banner, and nativity scene.
o Berger majority: changes Lemon test to factors.
 Secular purpose: facilitates commercial sales, holiday atmosphere
 Secular effect (primary effect can’t be to inhibit religion): effect is
celebration of the holiday season, not the birth of Christ in particular.
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



No entanglement: gov’t put it up…didn’t put it up w/ a church or
religious group.
o Brennan’s majority upholds the display, but O’Connor’s concurrence is most
important b/c it is the majority approach today.
o O’Connor Concurs: establishes 2-prong test for public displays:
o The Endorsement Test Excessive Entanglement:
 Endorsement: concerned about both the purpose to endorse and the
effect of endorsement. Ask: would a reasonable observer understand the
gov’t to be endorsing the display?
o Under test, O’Connor saw no entanglement w/ religion, nor did she find a purpose
to endorse religion. This was simply a celebration of a traditional holiday.
ALLEGHENY:
o Town has two displays. First is a nativity scene on county courthouse steps.
Second is a Christmas tree, Jewish menorah, and statement declaring the city’s
“salute to liberty.”
o Majority of the court adopts O’Connor’s Endorsement Test.
o Nativity Scene: there is clearly a purpose to endorse the Christian aspect of the
holiday. Invalidated 5-4.
o Tree/Menorah Scene: The tree is somewhat secular. Combining a religious scene
with another religion and secular things is not an endorsement of religion.
CAPITAL SQUARE v. PINETTE:
o City denies KKK permission to put up a cross in a public park b/c the city doesn’t
want to violate the est. clause.
o This situation requires a forum analysis and an establishment clause analysis.
o This is a traditional public forum and a content-based regulation. Therefore,
gov’t must show CSI and NT.
o CSI: the city’s state interest is that it’s trying to avoid an establishment clause
violation. Therefore, in order to validate the state’s CSI, must determine if this is,
in fact, an est. clause violation.
 Endorsement Test:
 Excessive Entanglement: gov’t isn’t putting cross up, private
group is.
 Intent or Purpose to Endorse: a reasonable observer would see
cross as being endorsed by the city.
 So, CSI is valid: this would be an establishment clause violation.
o NT: While there is a CSI, the prohibition is not NT b/c the city could have
simply put a disclaimer under the cross.
o Scalia’s plurality: 4 justices. Private speech can never violate the est. clause
unless there’s some type of collusion b/t the gov’t and the speaker.
STONE:
o 10 commandments are posted in school rooms.
53


o Ct applies Lemon test: it’s not possible to see a secular purpose in posting 10
commandments.
McCREARY COUNTY:
o 10 commandments are displayed in KY courthouse.
o Invalidated 5-4.
o No secular purpose. While there were other non-religious items surrounding
display (would seem to be Donnelley), the state had added the other secular items
recently. Clearly, there was a religious purpose.
VAN ORDEN:
o 10 commandments free-standing display on capital grounds in TX that had been
up for 40 years.
o Breyer was swing vote (he invalidated the display in McCreary Co).
o He likened this display to Donnelley’s nativity scene surrounded by other
displays. He also saw this as a celebration of history rather than an endorsement.
Aid to Schools





Issue: whether government aid to schools, specifically religious schools, violates the
establishment clause.
The court applies the Lemon test:
o A secular purpose can almost always be found.
o Secular effect: this is where the court has split. Current test depends on whether
aid is direct or indirect
Direct Aid
o State gives money directly to school.
o Majority Rule:
 Neutrality/evenhandedness
 Substantiality
 Divertibility
o Minority Rule: only requires neutrality.
Indirect Aid
o State gives money to individuals, who make choice of where to use it.
o Majority Rule:
 Neutrality
o Minority Rule: (not really a rule anymore)
 Neutrality
 Substantiality
 Divertiblity
Split in courts: is due to O’Connor, who found neutrality enough for indirect aid cases, but
switched to stricter standard for direct aid cases. Test will be up in the air when she is off.
Direct Aid to Schools
Direct Aid to Schools:
- Secular purpose – neutrality
- Secular effects – only one Justices thinks there is a distinction b/w the two
54
o (4 justices each espousing the different tests)
o Direct
 Neutrality
 divertabiltiy
 extensionality
 entanglement
-
Aguilar
o Facts: Fed. Financial assistance to educationally deprived kids in low-income
bracket; Public school teachers sent to religious schools to teach secular subjects
o Test isn’t quite developed at this point
o Secular Purpose – Neutral – to help kids
o CN – But concerns about Divertability, entanglement & endorsement
 If compensate for one  another element gets violated
-
Agostini
o Overruled Aguilar
o Same law/issue as Agostini - Difference in opinions
o Divertability – don’t have to worry about teachers; they are trained professional;
no oversight needed
o Substantiality – a little more concern
 General Rule
 Supplemental – small $ - constitutional
 Supplanting – large $ - not constitutional
 i.e. remedial math is supplemental to math program  constitutional
o entanglement – not a concern b/c divertability issue removed
o Dissent:
 Divertability/Entanglement still concerns
 Concerns about symbolic union
-
MITCHELL:
o Overruled Aguilar
o State statute provides aid, in form of equipment, to be provided to private schools.
o 5 justices apply three prong test: neutrality; substantiality; divertibility
 3 justices find test violated, i.e. unconstitutional
 2 justices find test met, i.e. constitutional (part of the opinion that
really matters – narrowest ground of concurrence)
 O’Connor and Breyer claim equipment isn’t substantial, nor is
there actual diversion (3 only req potential diversion)
 Direct/Indirect distinction matters
o Diverability – safeguards for monitoring - which doesn’t
create entanglement; only minimal oversight
o Substantiality – only a small amount  Supplemental
o 4 justices apply neutrality test and find it met.
55
Indirect Aid Cases:
Test:
- Neutral Purpose
- Neutral Effect – neither advances nor inhibits religion
o The private choice of individuals is what severs the effect

MUELLER v. ALLEN:
o State tax credit for tuition, textbooks, and transport available to all kids enrolled
in a school (public, private-religious or secular)
o Indirect Aid case b/c individual has choice of where to attend school.
o Neutrality Test: neutral b/c available to all parents regardless of where child is
enrolled.
o LEMON TEST:
 Secular purpose: clearly
 Secular effect: b/c aid is indirect and neutral, it’s secular
 No entanglement: these cases leave out the entanglement analysis
Witters: p. 1496
- Blind student attending private Christian college
- Filtered through the student
o Indirect aid
- Is there neutrality purpose:
Zobrest:
- Sign-language teacher paid by state & services in school
- Maj – indirect aid
o Filtered through parents of child
- Dissent –
o Worried about convertabiltiy
- Sets up conflict b/w Est. & FE

ZELMAN:
o Rehnquist Maj
o OH issued school vouchers for tuition. Parents’ choice where to apply them.
o Aid is indirect (to parents rather than schools), so apply neutrality test for secular
effect prong of Lemon.
o LEMON TEST elements
 There is a secular purpose: education.
 Secular effect: Neutrality test- available to all schools.
o Souter Dissenting
 It matters what the available options are of the schools
 Concerned about divertability, entanglement, substantiality
Establishment Clause Tests:

Prayer/Invocation:
56


o Endorsement/ Psychological Coercion Test. Lee v. Wiseman (this is a version
of the Lemon test)
Public Displays:
o Endorsement Test. Allegheny O’Connor
 Can’t have purpose or effect of endorsing religion
 No excessive entanglement
Aid to Schools:
o Indirect Aid: neutrality test
o Direct Aid:
 Neutrality
 Substantiality
 Divertibility
Free Exercise Clause



SMITH Test: a neutral, generally applicable law that is not targeting religion is
constitutional no matter what burden that law places on someone’s religion.
o Exceptions:
 Sherbert balancing test (same test as Button free expression test) is used
if individual administrator is making an individual assessment. Sherbert.
 Substantial infringement
 CSI
 NT
 Balance above against degree of intrusion
 Hybrid rights analysis grants strict scrutiny if a free exercise claim is
combined with another constitutional claim. Yoder.
Strict Scrutiny: for facially discriminatory law, i.e. targets religion. Will almost always fail.
o Example: Church of Lukimi Babalu Aye- city ordinance prohibits animal
sacrifice. Court found this directed at religion: applied SS. Preventing animal
killing for religious purposes isn’t CSI. Court calls this a Gerrymandering law.
The law seems to make what the church does illegal but excepting everything that
is well liked in the town. Government was obviously oppressing the religion.
Locke v. Davey ad hoc balancing test: A law that i) places a mild burden on religion, and
ii) state interest is a historic and substantial interest related to the separation of church
and state, is constitutional. (The establishment clause would not prohibit the state giving the
scholarship if the wanted took because it is filtered through private choice.)
o Locke- State scholarship program prohibited using it to pursue degree in
devotional theology. While looks to be targeting religion which should trigger
SS, Court applied ad hoc balancing. “Play in the joints” is the over-arching
concept in this case. Court says that this is a historical concern v. a mild burden.
This is some ad-hoc balancing test.
o Dissent- Wants to apply regular strict scrutiny. The Government does not have to
be the adversary of religion.
PERMISSIBLE ACCOMODATION
57
Play on the Joints of the Religion Clauses





Layman’s terms: you must understand that the two religion clauses often work together. The
fact that the establishment clause doesn’t forbid the state from doing something does not
mean that the free exercise clause mandates it.
Example: State school voucher program provides vouchers, but excludes using them at
religious schools.
o This is clearly not a violation of the establishment clause.
o Free Exercise analysis:
 Lukumi held that a law targeting religion triggers SS: this law would fail
SS.
 Locke v. Davey held that if the burden is mind and if the state interest is a
historic and substantial interest in the separation of church and state, the
law can beupheld.
o Therefore, Locke v. Davey and the “play on the joints of the religion clauses”
would suggest upholding the law
Analyzing a law to ensure the Free Exercise Requirement does not violate the
Establishment Clause:
AMOS:
o Test for a permissible accommodation, not necessarily mandated by the Free
Exercise Clause, but not prohibited by the Establishment Clause must meet
Lemon Test:
 Secular Purpose: if gov’t is lifting a special burden on religion, it’s a
secular purpose.
 Secular Effect: lifting the burden is not advancing religion, but allowing
religion to advance itself.
 No excessive entanglement
o Above test would be used for something like a law criminalizing use of peyote,
but exempting use for religious purposes.
CUTTER V. WILKINSON:
o Fed’l Law: grants institutionalized persons additional religious rights.
Essentially, Congress prescribed use of Sherbert balancing (rather than Smith) for
institutionalized persons.
o USSC: Under Amos and Lemon Test for Permissible AccommodationsConstitutional.
Earlier Thoughts
Unlawful Advocacy vs. HAR
- Unlawful advocacy: A tells B to violate the law
- HAR: A angers B; B breaches peace
FW v. HAR:
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-
FW – small encounter
HAR – speaker in front of large crowd
FW & HAR – speaker in front of small group. Not clear how large the small group must
be
HAR v. Unlawful Advocacy:
- Differences:
o Unlawful Advocacy (Brandenburg) – influences the crowd; speaker is persuasive
o HAR – speaker angering the crowd; speaker is provocative
- Similarities:
o Crime producing speech
o TT
Hypos:
- Speaker & crowd of people or publication to wide audience: Apply Brandenburg
- Political Speech: Apply Brandenburg
- Pure criminal speech: likely unprotected – Apply Stevens
o Exception: unless crowd or wide audience – may want to apply Brandenburg
- Example: Speaker says to crowd: “What’s needed is a generation of people/hippies who
smoke pot and take acid”
o Probably apply Brandenburg because there’s a crowd and it’s political
- Example: Speaker tells someone on street corner to try heroin:
o Individual speech and not political  Pure Criminal Speech – Stevens
- Problems arise when speech is in the middle:
o Rice v. Paladin Enterprises
 Facts: published book entitled “Hit Man” detailing how to commit murder
 Dilemma: publication to large audience suggests a Brandenburg test, but
advocating pure criminal speech suggests unprotected speech
o Argue both tests:
 Brandenburg: advocacy directed to imminent likely, lawless action – book
may not meet imminence element. Problems with intent
 Pure criminal speech – could argue no intent
59