I. CONSTITUTIONAL INTERPRETATION & THE JUDICIAL ROLE
I.
II.
DECLARATION OF INDEPENDENCE
A. C’s Purpose: protect unalienable, natural rights
B. Gov’t’s Purpose: promote equality and unalienable, natural rights
C. 1st A’s Purpose: limit gov’t suppression of FS based on gov’t’s interest in suppression
ROLE OF COURTS
A. Judicial Supremacy: SCOTUS is supreme interpreter of the C (SoP)
B. Federalist 78
1. Hamilton wrote to justify Judicial Supremacy
2. Argument: Courts will NOT be elevated above Congress, because the C is above both Courts and
Congress, and the people are above the C
i. Congress: exercise will of the people
ii. Courts: exercise judgment over that will
III.
SOURCES OF CONSTITUTIONAL INTERPRETATION
A. The Text: start here, but often vague or ambiguous
B. Original Understanding: effectuates framer’s intent, but may be out of date, or unclear
C. Precedent: promotes stare decisis and stability, but precedent may be wrong, or the case may be one of first
impression
D. Legal Traditions: look to consensus of state action, but may be unclear, or non-existent
E. Contemporary Values: promotes idea of the “People’s C,” but constantly evolving, and promotes majority
rule
F. Policy: justice as the purpose of C, but creates blurry SoP, and differing policy beliefs lead to inconsistent
outcomes
IV.
ACTIVISM VS. RESTRAINT
A. Activism: non-deferential to legislature; uses legal traditions, contemporary values, and policy to protect
minority rights (Living C)
B. Restraint: deferential to legislature; uses the text, original understanding, and precedent to protect majority
rule (Historical C)
C. Calder v. Bull (1798)
1. I: debate over natural law
2. J. Chase: judges can strike down laws violating natural justice
i. Implicit Unconstitutionality
ii. Activism / Living C
a. Blurry SoP
3. J. Iredell: Courts can enforce ONLY the C
i. NO implicit Unconstitutionality
ii. Restraint / Historical C
a. Sharp SoP
4. N: welfare state paradox
i. J. Chase: although liberal, would see violation of natural rights, and t/f implicit UC, in taking
$ from one and giving to another
ii. J. Iredell: although conservative, would NOT see violation, b/c NO express prohibition in C
V.
LIVING VS. HISTORICAL C
A. Living: b/c C will last forever, must be flexible in order to reflect contemporary values and policy judgments
B. Historical: purpose of C is to constrain and limit gov’t, so limit interpretation to text, original understanding,
precedent, and older legal traditions (flexibility diminishes meaning; NOT an aggregate of suggestions)
VI.
FREEDOM OF EXPRESSION
A. Rationales for Protecting Free Speech
1. Major Theories
i. Marketplace of Ideas: truth will win out in the long run
a. But . . . assumes people make rational decisions, and in the long run, we are all dead
ii. Democratic Self Governance: PS necessary to inform the people, who form the democracy
a. But . . . only protects PS, and what if bad people win out (i.e. Communists), will lose
democracy
iii. Individual Autonomy: human freedom requires the ability to express one’s self w/out gov’t
censorship
a. But . . . if all speech further autonomy protected, hard to draw line b/t expression and
criminal conduct (i.e. terrorism)
2. Minor Theories
i. Checking Function: hold gov’t accountable, even in non-democratic gov’t
ii. Safety Valve: allow blowing off steam, so less likely to take drastic action
iii. Articles of Peace: where majority doesn’t censor minority, have civil harmony
B. History of Free Speech
1. 1st A Text
i. “Congress shall make no law . . . abridging the freedom of speech.”
2. Three Early Interpretations
i. Blackstone @ CL / Federalists: no prior restraints, but subsequent punishment for BT (i.e. put
gov’t in ill repute) OK
a. Would NOT allow licensing schemes
b. Minimalist view of FS
ii. Jeffersonian / Federalism: referencing text, Congress has NO power; rather, states have ALL
the power
a. Ex: even to prevent sinking American ship, can NOT suppress speech
b. Ask states
iii. Madisonian: subset of Jeffersonians, but MUST protect PS for democracy to function
a. Early Minority
3. Sedition Act of 1798
i. First federal limitation on speech prohibiting publication of false, misleading, or scandalous
writing a/g gov’t w/ intent to defame
a. Jeffersonians  UC, b/c federal law
b. Madisonians  UC, b/c targets PS
ii. Demonstrates lack of speech protections at founding
4. Important Quotes
i. J. Harlan: if deviate from original understanding, violate / amend C
ii. J. Brennan: should read C in light of contemporary values
iii. J. Black: reference to policy usurps legislative authority
II. FREEDOM OF EXPRESSION
I.
CONTENT BASED RESTRICTIONS - DANGEROUS IDEAS AND INFORMATION
A. Advocacy of Unlawful Action
1. Introduction
i. Not much public support for WWI (opposition from isolationists and immigrants)
ii. Congress responds w/ Espionage Act, targeting…
a. False stmts used to hurt US or help enemies;
b. Insubordination, disloyalty, or refusal of duty in armed services;
c. Obstruction of draft
2. Important Elements in Analysis (ALL used by Brandenburg)
i. Clarity of Harm
ii. Probability Harm will Occur
iii. Imminence of Harm
iv. Degree of Danger
v. Intent
vi. Express Words of Advocacy
3. Three Early Tests
BT: “natural and probable tendency and effect of speech calculated to produce result
condemned by statute”
a. Pro: allows gov’t to prevent bad things from happening; supported by precedent (i.e.
Federalists)
b. Con: chills PS
ii. Express Incitement: express language of law violation
a. Pro: objective; much more speech protective
iii. CPD:
a. Different formulations
1) BT Type Test (flowery language)
2) CPD Speech Protective
3) CPD NOT Speech Protective
b. Con: retrospective analysis; ambiguous application leads to self censorship
4. Early Decisions
i. Shaffer v. U.S. (9th Cir. 1919)
a. H: upheld conviction under Espionage Act for publishing book linking patriotism too
murder under BT Test
b. T: gov’t can punish speech w/ BT
1) Constructive Intent  inferred from natural and probable consequences of
speech
2) Lacks clarity, probability, imminence, and express language lang
requirements (intent inferred)
c. BL: NO FS protection if undermining war!
ii. Masses Publishing Co. v. Patten (S.D.N.Y 1917)
a. H: postmaster’s refusal to deliver cartoon publication suggesting war opponents were
good people was C-al
b. T: Express Incitement (L. Hand)
1) BT test too broad (ALL PS)
2) Con: rewards clever speaker who doesn’t use express language; further, NO
intent requirement
iii. Schenck v. U.S. (1919)
a. H: upheld Δ’s conviction for circulating doc comparing the draft to slavery was under
J. Holmes’ CPD Test
b. T: Gov’t should be able to suppress speech creating CPD; however, speech must
attempt to bring about substantive evils statute intended to prevent.”
1) Question of Proximity and Degree
2) If have intent, NO social harm needed
5. Application of Early Tests
i. Frohwerk v. U.S. (1919)
a. H: upheld conviction of German paper writer for writing article opposing war under
J. Holmes CPD / BT Test
1) “A little breath may be enough to kindle a flame,” i.e. gov’t need not wait for
harm to occur if speech’s tendency is to incite law violation
ii. Debs v. U.S. (1919)
a. H: upheld conviction of Socialist presidential candidate for speech proclaiming “man
made for more than death on European front w
b. T: natural tendency and R probability
1) NOT clear whether specific intent required
6. Red Scare Cases
i. Abrams v. U.S. (1919)
a. H: upheld conviction of Δ for attempting to incite Russian immigrants to go on strike
1) Majority cites Schenck and Frohwerk
2) Intent inferred from words
b. J. Holmes Dissent: abandon BT, and use CPD
1) Need significant level of clarity and imminence (no intent to effectuate CPD
here)
i.
2) First time see FS policy justification  marketplace of ideas
3) Considering Jeffersonians beat out Blackstonians, doubt BT is the best
approach
4) Con: may only protect speaker when nobody listens (i.e. “puny anonymity)
ii. Gitlow v. New York (1925)
a. N: first time 1st A incorporated to apply to state via 14th A
b. H: upheld Δ Socialist’s conviction under state statute for distributing literature
advocating violent gov’t overthrow
c. T: R-ness  if legis belief on speech’s perniciousness is R, defer to their finding
1) Here, had speech specific statute
d. J. Holmes Dissent: CPD Speech Protective Test
1) NO deference
2) Every idea is an incitement; only difference is speaker’s enthusiasm for result
3) Again, marketplace justification; but, if allow Communist to win, and
violently overthrow gov’t, creates CPD
iii. Whitney v. California (1927)
a. H: similar conviction to Gitlow challenged on freedom of association grounds, but
upheld under R-ness Test
b. J. Brandeis Concurs: Intent to Create CPD
1) High probability / imminence w/ high degree of danger of serious,
substantive evil
2) Democratic Self Governance: real danger to democracy is an apathetic
people; need engaged citizenry
3) Best remedy for bad speech is counter / good speech
7. The Cold War Era
i. Dennis v. U.S. (1951)
a. N: R-ness test discredited in HAR cases
b. H: reversed conviction under Smith Act, which prohibited “advocating” of gov’t
overthrow (speech specific)
c. T: L. Hand Fluid Balancing
1) Ask whether gravity of evil, discounted by its improbability, justifies
invasion of FS
2) Pros:
i) Common sense
ii) Room to act (NO imminence requirement)
d. J. Jackson Concurs: test better for “puny anonymity;” C is NOT suicide pact (citing
dissent in Terminello)
8. Modern Test
i. Brandenburg v. Ohio (1969)
a. F: at KKK rally, leader said “may have to take some revengence”
b. H: conviction reversed, as statues was OB (further, no imminence)
c. T: Imminent Lawless Action
1) Advocacy (express words)
2) Directed too (intent)
3) Inciting or Producing
4) Imminent Lawless Action (imminence / danger)
5) Which is Likely to Produce Such Imminent Lawless Action (clarity /
probability)
d. J. Black / Douglas Concur: too close to CPD
1) Want more absolute protection so courts don’t allow suppression in times of
crisis
ii. Applications of the Modern Test
a. Hess v. Indiana (1973)
1) F: “We’ll take the fucking streets later”
2) H: b/c lacked imminence, conviction reversed
b. NAACP v. Claiborne Hardware (1982)
1) F: “If shop at stores, we’ll break your necks
2) H: lacked imminence and likelihood (conditional statement); further, lacked
intent (hyperbole)
c. Crowd + Speaker = Brandenburg
d. One on One (or small group), No Political Context = NOT Brandenburg
e. Solicitation vs. Advocacy
1) “Will you rob a bank w/ me?” = Solicitation  do NOT apply Brandenburg
2) “Lets rob a bank for a cause” = Advocacy  Apply Brandenburg
iii. Summary / Recap
a. BT  Blackstone / Schaffer
b. Express Incitement  L. Hand in Massses
c. CPD Formulations
1) As BT Test  J. Holmes in Schneck
2) As Speech Protective (intent req.)  J. Brandeis in Whitney
d. R-ness Test  Gitlow and Whitney
e. Fluid Balancing  Dennis
f. Imminent Lawless Action  Brandenburg
B. Hostile Audience Response
1. Introduction
i. I: Speaker provoking crowd to engage in unlawful conduct (think a/b advocacy elements)
a. Look for express words of provocation
ii. Justifications
a. Heckler’s Veto: if encourage crowd to get rowdy or violent b/f will arrest speaker,
allowing crowd to limit speech
b. Police Connivance: have duty to maintain law and order; h/w, don’t want them
choosing sides and arbitrarily enforcing the law
iii. N: see greater protection in HAR cases
a. Partially depending on the period, circumstances, dangerousness of circumstances,
etc.
b. Conspiratorial organizations vs. hot heads on street corner
2. Early Cases
i. Cantwell v. Connecticut (1940)
a. H: reversed Δ’s conviction for playing recording of “virulent anti-Catholic nature”
b. T: adopt CPD Test
1) Intent or express words of provocation;
2) To create CPD of riot, disorder, or interference w/ traffic on public streets, or
other threat to public safety, peace, or order
3) But . . . can NOT suppress speech under guise of preserving peace
c. A: no threat of violence; no express words of provocation
ii. Terminello v. Chicago (1949)
a. F: Fascist preacher b/f friendly crowd (800 inside; 1K outside) calls critics slimy
snakes and bead bugs
b. H: jury instruction requiring “stirring public to anger” for disorderly conduct was UC
under Cantwell
c. J. Jackson Dissent: C is NOT a suicide pact; this was serious disturbance
iii. Feiner v. New York (1951)
a. F: civil rights speaker b/f racially mixed crowd says “rise up and fight for equal
rights;” people forced in streets, crowd members said “if don’t stop him, we will;” Δ
arrested
b. H: conviction upheld under CPD test
c. A: danger of fight; traffic safety; defer to lower court on subjective GF of police (80
people; 2 cops)
d. J. Black Dissent: NO deference to lower court
1) Police could call for backup
2) Affirmative duty to protect speaker (i.e. arrest person who made threat)
3) ***Later cases follow J. Black’s approach***
3. “A Far Cry from Feiner”
i. Edwards v. South Carolina (1963)
a. F: 180 segregation protesters, 200 onlookers, 30 cops
b. H: conviction UC
1) Sufficient police presence to forestall any danger of disorder
2) Speech not as provocative as in Feiner (less grumbling, and more separation
b/t sides)
c. J. Clark Dissent: given circumstances (Southern Civil Rights Movement in 1960s),
could have CPD in a heartbeat
ii. Cox v. Louisiana (1965)
a. F: 2K segregation protesters, 200 onlookers, 75 officers
b. H: conviction UC
1) No indication that mood of crowd was ever hostile, unfriendly, or aggressive
2) Police testified that could have handled crowd
iii. Gregory v. Chicago (1969)
a. F: 85 protestors marching; 1K in crowd, 85 cops
b. H: conviction UC
1) Conviction so totally devoid of C-al support that violates DP
2) Police should have acted on counter protesters, who caused CPD
i) Must first attempt to control crowd, unless that would create CPD
c. ***Essentially overrules Feiner***
4. HAR Test Today
i. Paradox: 3 most recent cases do NOT mention CPD
ii. Two Options:
a. Feiner CPD (citing Cantwell) (most doctrinally conservative)
b. Brandenburg based on Provocation (maybe HAR and Advocacy areas are connected,
as use HAR to arrive at CPD in Dennis)
1) Provocation (replace advocacy)
2) Directed to
3) Produce or incite
4) Imminent lawless action
5) Which is likely to produce such action
iii. Remember: police has duty to control crowd!
iv. N: can NOT pass crowd control costs to speaker (i.e. no cash version of heckler’s veto). See
Foresight County
C. Fighting Words
1. Introduction
i. Defined: inflict injury OR tend to incite immediate BoP
ii. Elements (from various cases)
a. Abusive insults or epithets
b. Likely to cause BoP to average member of community
c. Directed to person
d. Purporting to describe that person
e. In a face to face encounter
iii. Objective test, i.e. likely to cause BoP to average member of community (unsettled whether
nat’l or local std applied)
a. N: if was subjective, would be duplicative of HAR, and FWs doctrine would collapse
into HAR
1) W/ HAR, must show ACTUAL CPD
2. Chaplinsky v. New Hampshire (1942)
i. H: upheld conviction of Jehovah Witness for denouncing all other religions as rackets, and
calling Marshall a “god damn fascist”
ii. Two Level Theory of Speech
a. High Value
b. Low Value (unprotected)
1) Slight social value to truth
2) NOT essential part of expression of ideas
3) Non-exhaustive list
i) Lewd
ii) Obscene
iii) Profane
iv) Libelous
v) Insulting
vi) FWs
3. Application of Chaplinsky
i. Street v. New York (1969)
a. H: reversed conviction of AA who burned flag after learning Meridth was shot (“we
don’t need no damn flag”)
b. A: b/c remark was NOT inherently inflammatory, did not come w/in narrow class of
FWs; further, NOT directed at any individual
ii. Cohen v. California (1971)
a. H: reversed conviction for wearing “fuck the draft” shirt
b. A: NOT directed at any individual
iii. Gooding v. Wilson (1972)
a. H: reversed conviction for Δ saying to policy “White son-of-a-bitch, I’ll kill you,” as
statute was OB
b. Dicta: look to the actual person the words are addressed too (bad approach)
c. N: NO FWs statute upheld since Chaplinsky (but assumed in RAV still valid doctrine)
4. U.S. v. Stevens (2010)
i. H: statute criminalizing depictions of animal cruelty OB, t/f UC
ii. N: 8 justices reinterpreted Chaplinsky Two Level Balancing Test
a. NOT for Court to strike balance
b. Rather, look to balance American history has struck
5. Cantwell HAR vs. Chaplinsky FWs Doctrine
i. Small groups ( < 5) or one-on-one encounters  FWs
a. Focus: nature of words
ii. Crowds, and political context  HAR
a. Focus: actual HAR in that specific context
iii. Crowd of 5-10 and political context  mixed analysis
iv. BL: look at statute prosecuted under!
D. Pure Criminal Speech
1. Introduction
i. Unprotected by 1st A
a. NO category or case
b. But . . . have crimes like conspiracy, solicitation, and aiding and abetting for
accomplice liability
c. N: political context does NOT remove from solicitation category (but may provide
argument)
ii. Significance: does NOT get Brandenburg protection, which requires imminence
iii. Contours of Pure Criminal Speech
a. Trad’l mens rea
1) Solicitation: intent for solicitee to commit crime
2) Conspiracy: intent that agreement will lead to crime
b. Actus rea: typically through words / actions
c. Individual or small group
d. Context other than political
2. U.S. v. Williams (2008)
i. N: actual (but not virtual) child porn is unprotected
ii. H: upheld conviction for pandering virtual child porn under PROTECT Act
a. NO distinction b/t real and virtual porn as to whether is a crime (like cocaine / talcum
powder)
b. NOT criminalizing porn itself, but the speech
iii. R: Offers to engage in illegal transactions categorically excluded from 1st A’s protection,
w/o/r/t offer’s mistake a/b factual predicate of offer
a. Under Chaplinsky, NO social value, whether court OR history does balancing
E. True Threats
1. Virginia v. Black (2003)
i. F: Δ convicted for cross burning under statute w/ prima facie evidence of intent provision
ii. S: Defines True Threats
a. Speaker means to communicate (subjective)
b. A serious expression of (objective)
c. The intent to commit an act of violence
d. Against a particular individual or group
1) Split: whether must be directly communicated
e. ***No imminence requirement; unclear whether intent to cause fear is required***
iii. PP Concerns:
a. Social harm to threatened person
b. Social disruption (bullet proof vests)
c. May lead to actual violence
d. Historically unprotected and punished, which is supported by Chaplinsky balancing
iv. Counter: BUT . . . is it not hyperbole, or a bluff?
v. N: most true threat cases are pre-Black
2. Watts v. U.S. (1969)
i. H: reversed conviction of speaker who, at public rally, said “If I get drafted, first person in
my sights is LBJ.”
ii. A:
a. Serious expression? NO, political hyperbole, crowd reacted w/ laughter, and a
conditional stmt.
b. In some j(x)s, MUST be directly communicated to threatened person
iii. BL: Courts rarely find true threats in political speech before crowds
3. Planned Parenthood v. ACLA (9th Cir. 2002)
i. H: Nuremberg files website, which pictured abortion doctors in old-Western posters w/
“Wanted,” was unprotected as true threat
ii. Key: whether saying “we” or “someone should” kill you
a. We  true threat (no imminence or intent requirement)
b. Someone  advocacy, apply Brandenburg (fails imminence)
iii. T: would RPP understand this as an attempt to incite imminent lawless action?
4. Hess v. Indiana (1973)
i. H: “We’ll take the fucking streets later” during anti-war protest protected under Brandenburg
a. Fails imminence
b. NOT advocacy, but counsel of moderation
5. Claiborne Hardware v. NAACP (1982)
i. H1: “If you shop at those stores, we’ll break your necks” at political speech NOT true threat
a. NOT directed at particular person, or particular group (100 people in audience)
b. NOT serious expression, but hyperbole (before crowd almost always hyperbole)
ii. H2: NOT advocacy of unlawful conduct
a. Fails imminence and clarity under Brandenburg
6. Rice v. Paladin Enterprises (4th Cir. 1997)
i. F: publish book entitled “Hit Man;” man read book, was hired as hit man, and killed
someone. In wrongful death action, stipulated that book was intended for small group of
hitman.
ii. H: although went out to large group, intended for small group, t/f solicitation
a. Trad’l mens rea? Aid person in committing crime
b. Trad’l actus rea? Publish book
c. Political Context? NO
d. Directed too few people? YES
iii. N: w/out stipulation, would be under Brandenburg (large group), and would lack imminence
F. Hate Speech
1. Introduction
i. NOT per se category, but interacts w/ other categories
ii. N: Canadian, and most European courts DO recognize
iii. R: since no special test, apply default SS for CB restrictions (CB, b/c turns on hate)
a. Gov’t must have CSI to censor;
b. Censorship must be narrowly tailored
c. ***Gov’t rarely wins, but hate crime sentence enhancers are C-al***
2. Vehicles Used to Fight Hate Speech
i. Libel - Beauharnais v. Illinois (1952)
a. H: affirmed Δ’s conviction for distributing leaflets blaming AAs for social problems
under statute prohibiting publishing materials putting other races in contempt, or
likely to cause BoP
1) Libel does NOT contrib. to exposition of ideas
2) NO distinction for group libel (but overruled in NY Times v. Sullivan)
3) Defer to legis, as Chicago has history of race issues (compare Dennis R-ness)
b. J. Black Dissent: group libel distinction imaginary; will lead to political censorship
c. N: court in deference mode
ii. Canada - Regina v. Keegstra (1991)
a. H: conviction of high school teacher for making anti-semantic remark in class C-al;
hate speech NOT protected
b. PP:
1) Marketplace  does NOT help find the truth
2) Individual Autonomy  subverts finding one’s ID
3) Democracy  open process premised on equality subverted by HS
c. U.S. Counter View:
1) Chilling effect concern
2) Counter speech better
iii. Fighting Words - RAV v. St. Paul (1992)
a. H: statute prohibiting “speech arousing anger in others,” as applied to burning a cross
in AA’s yard, was UC
b. R: can restrict subset of larger box (FWs) if restriction based on virulence, i.e.
restricting subcategory for very reason larger category unprotected
1) Virulence / Intensity Distinctions  C-al (e.g. FWs tending to cause death,
serious bodily harm, etc.)
2) Subject Matter Distinctions  UC (unless pass SS) (e.g. race based FWs)
c. A: this is SM distinction (expressing distaste for particular viewpoint); thus, apply SS
1) CSI? Protecting minorities
2) NT? NO, could prohibit ALL FWs
d. J. White Concurrence: NT, b/c prohibiting all FWs would suppress more speech
1) Virulence distinction, b/c restricting “fightingest of FWs”
2) Still, OB, as state court has applied outside of FWs category
e. N: court in speech protection mode
iv. Hate Crimes - Wisconsin v. Mitchell (1993)
a. F: AAs beat white boy after watching “Miss. Burning”
b. H: sentence enhancements based on race C-al
c. A: physical assault is conduct, NOT speech
d. Speech Neutral PP Concerns:
1) Danger of retaliation
2) Harm to victim
3) Community unrest
v. True Threats - Virginia v. Black (2003)
a. H: provision prohibiting cross burning as threat C-al
1) Intensity or virulence distinction? YES, history and association w/ hate
groups
i) Nowlin: especially likely to cause fear and social disruption like
death threats or threats against the president
ii) Specific history of KKK using cross burning to threaten impending
violence
iii) Counter: solidarity, or a prank
2) BUT . . . struck down b/c of prima facie evidence part
b. J. Souter Dissent: CB (state passed as political disproval of KKK, and have prima
facie evidence provision), and fails SS
c. J. Thomas Dissent: criminal conduct, NOT speech
d. TA: suggests St. Paul should select particular words w/ particularly hateful history
like that of cross burning
II.
MANNERS AND METHODS OF REGULATION
A. Introduction
1. Types of Challenges
i. As Applied: statute UC as applied to my speech, which IS protected
ii. Facial Challenge: challenge statute on its face
a. Trad’l  UC in ALL applications
b. Special  some applications C-al, but others are NOT, so must be struck down
1) Modern Version: Overbreadth Doctrine
2) Used in 1st A or 5th / 14th A DP context
2. Policy Considerations
i. For
a. Combat chilling effect
b. Prevent self censorship
c. Protect FS
d. Prevent arbitrary / selective enforcement
ii. Against
a. Standing not always proper
b. Not all OB statutes will be misapplied
c. Blurs SoP
d. Vague standards
e. Windfall to guilty Δs
B. Overbreadth
1. Gooding v. Wilson (1972)
i. H: statute prohibiting opprobrious / abusive language OB
a. Covers more than FWs
b. State courts have applied to C-ally protected speech
ii. N: does NOT apply to conduct-specific statutes (i.e. BoP, etc.)
2. Broadrick v. Oklahoma (1973)
i. H: statute prohibiting civil servants form soliciting funds for political candidates, and posting
car bumper stickers NOT substantially OB
a. OB as Strong Medicine; if NOT substantial, leave to as applied challenge
b. Factors:
1) What is the chilling effect? The speech’s value?
2) High ratio of UC applications?
3) High state interest in suppressing the speech?
i) Ex: does state really need two FW statutes?
3. Brockett v. Spokane Arcades (1985)
i. H: to bring OB challenge, speech can NOT be protected; if protected, must use as-applied
challenge
ii. PP: give court opportunity to construe o/w OB statute
a. Counter: perverse incentive for states to prosecute protected speech (trim back),
rather than unprotected speech (strike whole law)
4. Oaks (1989)
i. H: retroactive narrowing by legislature does NOT defeat OB
ii. PP:
a. Encourage legis to get it right first time
b. Narrowing renders laws C-al and broadens criminal liability, but the C prohibits ex
post facto laws
c. Formalism: distinction b/t courts and legislature
5. Osborne v. Ohio (1997)
i. H: retroactive narrowing by courts DOES defeat OB
a. Courts always interpret statutes.
b. As long as Δ had R notice his speech was criminal, he has no claim.
c. This rewards courts for curing OB through narrow construction.
6. N: does NOT apply to CS, b/c not worried a/b chilling effect due to hardiness (profit motive) of
speech. Flipside (1982)
C. Vagueness
1. Introduction
i. NOT 1st A, but DP doctrine; still, has “special bite” in 1st A context by interacting w/ OB
ii. Connoly Definition: “Persons of common intelligence must guess at statute’s meaning, and
differ in its application”
iii. PP:
a. Chilling Effect
b. Selective Enforcement
2. Smith v. Goguen (1974)
i. H: statute prohibiting treating flag “contemptuously” UC-ally vague
ii. S: last vagueness case
3. Village of Hoffman v. Flipside (1982)
i. H: perform OB analysis first, then look at vagueness, b/c OB statutes often vague too
ii. When then does vagueness come into play?
a. Statute not OB, but vague (i.e. “No unprotected speech in park”)
b. Conduct statutes applying to speech
c. Statute targets commercial speech
D. Prior Restraints
1. Introduction
i. Definitions
a. PR: must get gov’t’s permission before publication
b. SP: gov’t punishes speaker after publication
ii. Historical View
a. Disfavored, and presumptively UC, even under narrow view of FS
b. BUT . . . SP for BT were C-al
iii. Policy Concerns
a. What are PRs and SPs treated different?
1) PRs prevent ideas from reaching the marketplace
2) PRs are easier form of speech control (overzealous censors)
3) PRs can be selectively enforced, which leads to chilling effect
b. Counter Arguments:
1) Both PRs and SPs have same chilling effect
2) If violate PR, becomes SP, so really not that different
iv. Lovell v. Griffin (1938)
a. H: city ordinance requiring license to distribute pamphlets facially invalid as PR
2. Licensing Schemes - CN vs. CB
i. CN: restriction does NOT reference, or turn on, content of speech (time, place, and manner)
a. C-al as SP (i.e. passes IS)?
1) If YES  next step
2) If NO  clearly UC as PR
b. Clear Standards (City of Lakewood)?
1) Ensures judicial review
2) Limits selective enforcement
3) Reduces chilling effect
ii. CB: restriction DOES turn on content of speech (FWs, true threats, advocacy, pure criminal
speech, etc.)
a. C-al as SP?
b. Clear Standards?
c. Freedman Safeguards?
1) Final judicial determination on merits;
2) Only brief period of PR;
3) Burden on censor
4) ***These are necessary, but NOT necessarily sufficient***
i) Ex: obscenity vs. PS
3. Injunctions
i. Overview
a. Generally preferred over PRs
1) Occur subsequent to speech, so speech is allowed to enter marketplace
2) Target individual speakers, so chilling effect is not as palpable
3) Require neutral judges, and DP
b. But . . . may be problematic
1) Especially efficient and effective
2) Collateral Bar Rule: can NOT defend disobedience on ground that injunction
violated 1st A
3) Judges make mistakes
c. N: injunctions issues prior to publications WILL be treated as PRs
ii. Near v. MN (1931)
a. H: overturned injunction enjoining newspaper from publishing scandalous allegations
a/g public officials (malicious / nuisance)
1) Statute’s purpose was NOT punishment, but suppression
2) Proper remedy is SP, NOT PR
b. Dissent: this is SP for past libel
iii. CB PRs - Pittsburg Press v. Pittsburg Comm. (1973)
a. H: upheld CB injunction enjoining paper from carrying “Help Wanted” ads classified
by gender
b. A for CB PRs:
1) C-al as SP?
2) Clear standards built into judicial process?
3) Injunction ONLY went into effect after final judicial determination of
merits?
iv. CN PRs - Madsen v. Women’s Health Ctr. (1994)
a. H: upheld 36 foot buffer injunction (CN) a/g anti-abortion protesters
1) CN, b/c based on prior criminal conduct
b. A for CN PRs:
1) C-al as SP?
2) Clear standards built into judicial process?
v. National Security - NY Times v. U.S. (1971)
a. F: WP published sensitive information (Pentagon Papers) that threatened to interfere
w/ nat’l security. Nixon sought injunction.
b. H (per curiam): PR of PS presumptively UC, t/f gov’t bears heavy burden, which
they have NOT met
c. Black / Douglas / Brennan: FS does NOT allow injunction to be upheld
1) Brennan: narrow exception for immediate threat in time of war (“imperiling
safety of troop transport already at sea”)
d. Stewart / White / Marshall: At minimum, need Congressional authorization to issue
injunction, which Congress has NOT provided
e. Burger / Harlan / Blackmun Dissent: Need more fact finding to ensure injunction is
proper; but as here were nat’l security demands haste, should defer to executive
branch
1) Harlan: need testimony from executive branch that injunction a/b nat’l
security, and NOT domestic policy
Balancing Thought: executive branch nat’l security authority, and Congressional
authorization to issue injunction vs. free speech
vi. Bartnicki v. Vopper (2001)
a. H: can NOT prosecute radio station who aired illegal obtained phone conversation,
but did not participate in theft
b. PP: balancing privacy interest vs. 1st A (contra NY Times, were balancing 1st A vs.
nat’l security)
E. Switching Gears  Sexually Explicit and Violent Speech
1. Obscenity
i. Violent Speech
ii. Child Pornography
2. Lewd and Profane Speech
f.
III.
OBSCENITY
A. Introduction
1. UNPROTECTED; but . . . Court has struggled w/ definition, so that social harm clearly outweighs the
social value . . .
2. Chaplinsky Balancing  Social Value vs. Social Harm
i. Value
a. Marketplace of Idea
b. Individual Autonomy
c. Democratic Self-Governance
d. Feminism and Family Values
e. Political, Serious Literary, Artistic, and Entertainment Value (don’t want chilling
effect stifling creativity)
ii. Harm
a. Sexual Deviancy
b. Coarsening of Moral Fabric
c. Erosion of Family Values
d. Objectification of Women
e. Protecting Children
f. Protecting Unconsenting Adults
iii. Stevens (2010): determined by history
3. Early Attempts to Define Obscenity
i. Regina v. Hicklin (England 1868)
a. T: whether tendency of matter is to deprave and corrupt those whose minds are easily
open to such immoral influences (strict BT formulation)
ii. U.S. v. One Book Called “Ulysses” (S.D.N.Y. 1933)
a. T: is the material obscene as viewed by the average member of the community, and
in light of the entire work as a whole?
1) Objective / more speech protective
iii. Roth v. U.S. (1957)
a. H: upheld conviction for violating federal law prohibiting mailing of “obscene
publication”
b. T:
1) Whether to the average person, applying CCS;
2) The dominant theme of the material, taken as a whole;
3) Would appeal to the prurient interest (animalistic, diseased, wrongful)
4) ***Historical tradition of banning obscenity***
c. N: Roth applied until Miller (1973)
4. Redrup Period of Per Curiam Reversals
i. S: Court holds speech is protected, but NO elaboration; no majority opinion until Miller
a. Clark / White  Roth
b. Black / Douglas  absolute protection
c. Harlan  Federalism
d. Stewart  “I know it when I see it”
e. Warren / Brennan / Fortes  Memoirs (1966): is material utterly w/out redeeming
social value?
B. The Miller Test
1. Miller v. CA (1973)
i. H: uphold conviction for sending adult book ads to unwilling individuals
ii. New T: the trier of fact must ask whether . . .
a. Average person, applying CCS, would find the work as a whole appeals to the
prurient interest (Roth);
1) Hambling (1974): local std for CCS, even in federal cases
b. Average person, applying CCS, the work depicts, in a patently offensive way, sexual
conduct specifically defined by applicable state law (providing notice);
c. The work as whole lacks any serious literary, artistic, political, scientific, or social
value (similar to Memoirs)
1) Pope (1987): nat’l std for LAPSS
iii. How is this test different from Roth?
a. Must be patently offensive
b. Must lack serious LAPSS value (Roth assumed)
iv. How is this different from Memoirs?
a. “Utter lack” vs. “lack”  new version more flexible
v. Rationale:
a. Provide notice (i.e. defined by state law)
b.  litigation
c.  chilling effect
d. Respect diversity of opinion (i.e. CCS)
e. Backed by historic tradition and precedent
2. Application of Miller Test
i. Paris Adult Theater I v. Slaton (1973)
a. H: NO consenting adults exception
1) NOT mind control, but protection a/g social harm
b. A: defer to legis if have R belief on SIs…
1) Setting tone of society
2) Possible correlation b/t porn and crime
3) Protecting children and non-consenting adults
c. J. Brennan Dissent:
1) SIs (other than 3) do NOT justify substantial damage to 1st A; thus, when
children / non-consenting adults unaffected, should protect speech
2) Further, Miller Test is vague
i) NO adequate notice, thus will create chilling effect
ii) Varying CCS will lead to inconsistent results
iii) Case-by-case application puts stress on judicial machinery
iv) Allows for selective enforcement
3) BL: consenting adults exception would fix problems
ii. Stanley (1968)
a. H: right to possess obscene materials in one’s home
C. Post-Miller Guidelines
1. Jenkins v. GA (1974)
i. H: reverse state court determination that “Carnal Knowledge” was patently offensive on the
grounds that one scene showed a woman’s bare midriff
ii. A:
a. Nudity alone NOT patently offensive, t/f have not satisfied Miller
b. Where state applies Miller to materials NOT w/in its core definition, CAN review for
misapplication
1) Paradox: does this create nat’l standard?
2. Pope v. IL (1987)
i. H: in determining serious lack of LAPSS value, apply R person (i.e. nat’l) std
a. Now, court will require expert testimony
3. Local vs. National Standards and Federal Law
i. Hambling v. U.S. (1974)
a. F: federal obscenity statute regulating mail-a-porn
b. H: federal jury must apply local, NOT hypothetical nat’l std
ii. Sable Comm. of CA v. FCC (1988)
a. F: federal dial-a-porn statute
b. H: do NOT get nat’l std
1) Further, outright ban NOT NT to protecting children; CC requirement, access
codes, and scrambling codes are enough
iii. Ashcroft v. ACLU I (2004)
a. H: federal regulation of internet porn (COPA) applying local stds to determine
whether material was obscene was NOT OB
1) Signal: do NOT put porn on internet
b. O’Connor Concurrence: internet distribution presents special problems w/r/t local
stds; nevertheless, can examine these cases w/ as-applied challenges
1) N: at least 5 justices believe local stds may not be proper w/r/t internet;
suggest shift away from Hambling and Sable
i) Never resolved, b/c in ACLU II, strike statute down on other grounds
iv. Takeaway
a. Hambling  do not mail to conservative j(x)s
b. Sable  do not accept calls from conservative j(x)s
c. ACLU  if putting porn on internet, may need to bring as-applied challenge to get
nat’l standard, but unclear
D. Variable Obscenity
1. Ginsberg v. NY (1968)
i. H: statute prohibiting sale of nude pictures harmful to children under CCS C-al
a. Power to prohibit children’s access to such materials broader than that of prohibiting
adult access to the same materials
ii. BL: creates age appropriateness / overlay to Miller test
a. I: how do you define a child’s “prurient interest”
2. Butler v. Michigan (1957)
i. H: if statute, in trying to protect children, burdens adult access  will apply SS
a. Can NOT reduce the adult population to reading what is suitable for children.
b. S: preview of ACLU II, where burden on adult access was grounds for striking down
the statute
E. Possession of Obscene Materials
1. Stanley v. Georgia (1969)
i. H: can NOT criminalize private possession of obscene materials in one’s home
ii. Rationale:
a. State interests are paternalistic
b. Privacy of the home is a special interest
iii. Dicta: may have right to receive materials . . .
2. U.S. v. Riddel (1974)
i. H: distributing, selling, buying, or producing obscene materials may be criminalized, despite
narrow exception in Stanley
F. Prosecuting as Conduct (Prostitution), NOT Speech
1. I: filmmaker paying actors to have sex on film, not meeting Miller test
2. H: most state courts do NOT allow prosecuting as prostitution to circumvent Miller
i. Freeman (Ca. 1988)
ii. Theriault (NH 2008)
3. Practical Problem:
i. Have act of prostitution as defined by state law
ii. Must ask “what is principle purpose of paying person to have sex?
a. Sexual gratification  prostitution
b. Produce non-obscene porn  protected 1st A speech
iii. I: how do courts determine who is legit, and who is not?
4. Broader Problem:
i. Do we provide 1st A protection to criminal conduct simply b/c individual films it? NO. Do
not want to create loophole for future abuse.
ii. BUT . . . if allow these prosecution, renders Miller test and 1st A protection meaningless
5. Nowlin: likely to see SCOTUS decision in next 10-15 years
6. Issue: what about CP?
i. Here, start w/ criminal conduct (filming child sex acts), t/f speech is unprotected
ii. T/f, don’t have same paradox whereby protecting speech insulates criminal conduct (here,
going in opposite direction)
iii. Signal: states should target conduct, and NOT speech!
G. Violence as Obscenity
1. Brown v. Etm’t Merchants Assoc. (2010)
i. F: CA civil law prohibiting sale / rental of violent video games to minors
a. Defined by applying CCS as appealing to “morbid” interest in violence
b. Trying to “shoehorn” violence into obscenity category
c. State’s concern? Active participation desensitizing minors to violence, as opposed to
passive w/ movies and books
ii. H: UC (7-2)
iii. Majority:
a. Chaplinsky Balancing, but balance struck by history post-Stevens (freezing
unprotected categories in time (strange combination of liberal and conservative
justices)
1) Have tradition of criminalizing obscenity, but NOT violence
2) B/c social value not outweighed by harm, speech is protected
b. B/c CA restricting protected speech, apply default SS
1) CSI?
i) Need more proof of actual, psychological harm to minors
(correlation vs. causation)
ii) Under-inclusive, b/c reaches ONLY video games
iii) Over-inclusive, b/c requires parental consent, and not all parents care
2) NT? Do not reach, b/c NO CSI
c. N: analysis tracks that in Kendrick (7th Cir.)
iv. J. Alito Concurrence: striking balance w/ history problematic, as no developed social values
w/r/t video games
a. Paradox: can NOT create tradition if can’t regulate violence
b. Still, would strike down for vagueness (strange, b/c supposed to do OB first)
v. J. Thomas Dissent: NO 1st A protection for violence, b/c framers did NOT recognize
vi. J. Breyer Dissent: passes diluted SS
a. Common sense; should defer to legis
b. Modest restriction NOT inhibiting adult access
2. Aside: What is Speech?
i. Video of ping pong game  speech
ii. People playing ping pong  conduct
iii. Video game of ping pong  speech (interactive / complex nature)
iv. Video poker  maybe conduct (not interactive / complex)
H. Child Pornography
1. New York v. Ferber (1982)
i. F: adult book store owner convicted for selling CP
ii. H: 9-0, CP categorically unprotected (i.e. Miller does NOT apply)
a. SI  protecting children from physical and psychological abuse; harm ongoing, b/c
have permanent record of abuse; to shut down market, must ban outright
b. Chaplinsky Balancing (Court does here!)  NO value
1) Harm to children
2) Promotes child abuse
3) Creates economic motive for illegal activity (financial incentive to distribute)
4) De minimums LAPSS value greatly outweighed by harm
I.
iii. O’Connor: even if had LAPSS, NOT protected
iv. Brennan: disagrees w/ O’Connor
2. Osborne v. Ohio (1990)
i. H: Stanley exception N/A to CP
a. The abuse, reputational harm, and contribution to the market associated w/ CP are
NOT diminished where porn is privately possessed in one’s home
b. Protecting children is NOT akin to controlling citizen’s minds
3. Virtual Porn
i. Ashcroft v. Free Speech Coalition (2002)
a. H: invalidated two provisions of the CP Prevention Act, which criminalized virtual
CP, along w/ CP made w/ “youthful looking adults,” as OB
1) Ferber N/A, b/c not dealing w/ actual child victims here; t/f, state interests
and social harms implicated in Ferber N/A here
2) Thus, apply Miller, and hold statute substantially OB (did not use test
language)
3) Further, could have won under SS
i) SI? Say it is to prevent pedophiles from luring in kids w/ CP
ii) NT? NO, b/c other ways to protecting children, like educating kids,
parents, etc.
b. J. Kennedy: Any causal link b/t virtual CP and crime is “contingent and indirect”
c. J. Thomas Concurrence: if in future, becomes difficult to distinguish actual from
virtual, Court should reexamine
ii. U.S. v. Williams (2008)
a. F: PROTECT Act prohibited knowing solicitation of materials believed, or intended
to be believed, to be CP
b. H1: offers to engage in illegal transactions unprotected by the 1st A (pure criminal
speech)
1) Just as attempting to sale cocaine which is actually talcum powder is still a
crime, a mistaken belief as to whether CP is actual CP does NOT prevent
prosecution
2) Fact that this is unprotected speech (solicitation / fraud) about protected
speech (virtual porn) does NOT change anything; still NOT protected, under
historical doctrine of impossibility and attempt criminal law
c. J. Souter Dissent: speech a/b speech changes outcome
1) Virtual CP protected category of speech under Miller
2) By prohibiting speech about protected speech, Court is chilling, and allowing
punishment, of protected speech
Animal Cruelty - U.S. v. Stevens (2010)
1. H: crush video statute (linked definition of animal cruelty to that in j(x) where Δ watches film);
substantially OB under Chaplinsky Historical Balancing Analysis
i. NO historical category of “violent speech” based on violence (reaffirmed in Brown)
ii. OB Example: in state 1, bow hunting legal, and in state 2, illegal. Film hunt in state 1, and
watch in state 2. Literal language of statute requires prosecution.
a. Could have taken narrowing construction
b. BUT . . . did NOT, and strike down for OB; encouraging Congress to draft carefully
written statutes
iii. Leave open whether narrowly written statute would work
a. Could fit w/in newly articulated category of “speech integral to criminal conduct,”
which was based on history
b. Need this to keep from reversing Ferber, where Court did balancing themselves.
1) NO CP historical category.
2) Rather, CP fits w/in “speech integral to criminal conduct”
i) Cannot make speech w/out abusing children
ii) Cannot publish speech w/out further injuring the child
c. Congress need to target criminal conduct (animal abuse), rather than speech
1) Respond w/ law linked to speech integral to criminal conduct by its own
terms, along w/ obscenity
d. What justifies CP laws? How does this compare w/ animal cruelty?
1) Child abuse (similar)
2) Harm reproduction (not present)
3) Distribution (similar)
4) Financial Incentive (similar)
5) Minimal value of speech (similar)
2. J. Alito Dissent: under narrowing construction, NOT substantially OB
i. C-al as applied to Mr. Stevens
ii. Pissed that Congress struck down for OB, w/out first determining whether speech was
protected or unprotected
a. Remember, under Brockett, speech must be unprotected to bring OB challenge
b. If speech IS protected, must bring as-applied challenge
IV.
LEWD AND PROFANE SPEECH
A. Introduction
1. SCOTUS does NOT recognize unprotected category of lewd and profane speech
i. Rather, all we have is dictim in Chaplinsky
ii. Therefore, apply default test for CB restrictions of speech  SS
2. Analysis requires a Fluid Balancing Test
i. Weighing of…
a. Speech’s value (changes w/ time) vs.
b. State’s interest in suppressing the speech (i.e. the harm)
1) Protecting Children
2) Protecting Adults
i) Inside the home
ii) Outside the home
3) Cleansing Public Debate
4) Urban Blight and Property Value (secondary effects / zoning)
ii. Narrow Tailoring (cases turn on this!!!)
a. Extent of Ban
b. Existing Technology
3. Recall Ginsberg and Butler  while some materials obscene w/r/t children (i.e. lewd, profane,
indecent), should NOT restrict adult access. If do, get SS!
B. Cases on Primary Effects
1. Cohen v. CA (1971)
i. H: reverse conviction for wearing “fuck the draft” shirt in courthouse
a. NOT Miller  doesn’t appeal to prurient interest
b. NOT HAR  didn’t provoke riot
c. NOT captive audience under Rowan
ii. A: adults can look away, and any state interest in cleansing public debate incompatible w/ 1st
A (need robust speech)
iii. PP: word “fuck” invokes emotive response crucial to the speaker’s message; suppressing
speech leads to suppression of ideas.
2. Erznoznik v. Jacksonville (1975)
i. F: drive-in theatre next to church parking lot; nudity visible from road
ii. H: Time, place, and manner restriction, but CB (only applied to movies w/ nudity), so
applying SS, restriction UC
a. CSI?
1) NO; driver safety does NOT work, b/c movies w/out nudity just as
distracting
b. NT?
1) As for Captive Audience, can NOT render ALL nudity obscene w/r/t
children (lacks NT)
2) As for adults, “avert the eyes”
3. Radio Communications - FCC v. Pacifica Foundation (1978)
i. H: plurality upheld civil reprimand of radio station for playing George Carlin’s “Seven Dirty
Words” Monologue
a. Congress created FCC to regulate broadcast media, so should provide deference
b. Unlike Erznoznik, speech went into the home, and this is low value speech
1) Protecting children (hearing different than reading) and adult’s privacy
2) Warnings are ineffective, as people channel surf
c. Regulating words, NOT ideas; further, this is a burden, NOT a ban
d. Signal: radio station should time channel
e. N: this is NOT SS!
ii. J. Powell Concurrence: should not classify as low value speech, b/c part of our political and
cultural discourse
iii. J. Brennan Dissent: burdening adults in name of protecting children
a. Avert the ears
1) Counter: once heard, harm done
4. Telephone Communications - Sable Comm. v. FCC (1989)
i. F: federal dial-a-porn law restricting content
ii. H: NOT obscene under Miller, so apply SS, and hold law UC (modern analysis)
a. CSI? Protecting kids, but recognize Ginsberg / Butler problem
b. NT? NO, b/c less restrictive means existed
iii. Distinguishing Pacifica
a. Telephone conversations are NOT finite resources like radio waves
b. Unlike radio, requires an add’l affirmative step
c. Not a time channeling limitation, but a complete ban
iv. N: Court no longer beginning w/ premise that speech is low value, and now see express
statement of SS
5. Reno v. ACLU (1997)
i. F: CDA prohibits online distribution of “obscene or indecent” materials to minors (variable
obscenity under Miller)
ii. H: applying SS, law UC
a. Distinguish Pacifica
1) Criminal prohibition
2) Warnings more effective w/ internet
3) Not coming into home in same way
4) No agency authority to regulate internet
b. Less restrictive means to protect children (tags, filtering, parental control, etc.)
6. Ashcroft v. ACLU II (2004)
i. Recall Ashcroft v. ACLU I, about nat’l vs. local standards
a. Majority saw problems w/ local standard and the internet
b. But . . . never resolved issue, b/c was UC on SS grounds
ii. F: COPA enacted to fix problems w/ CDA; used Miller test language w/ variable obscenity
overlay, and provided affirmative defense if website required CC # or age verification
iii. H: placing burden on adult access (requiring CC or registration) to materials only lewd and
profane triggers SS (no longer low value), and law t/f UC
a. CSI? Protecting children.
b. NT? NO, encouraging filters would be less restrictive means
1) Filter do NOT burden adults
2) But . . . have empirical disagreements as to effectiveness of filters
iv. J. Breyer Dissent:
a. Filtering is faulty (over and under inclusive), expensive, and some parents are
inattentive
b. Filters + COPA is more effective than filtering alone
1) If want maximum achievement of SI, this is the most NT means!
2) J. Kennedy’s Response: must balance CSI to protect children w/ need to not
burden adult access
i)
Ex: 100 units of speech restricted, w/ 100% CSI achievement vs. 50
units of speech restricted, w/ 90% CSI achievement
ii) I: what is the goal?
7. U.S. v. Playboy Entm’t (2000)
i. F: § 505 of Tellecom Act required either fully scrambling or blocking of adult channels
during certain hours to protect kids a/g signal bleed; scrambling not technologically feasible
ii. H: applying SS, Act UC, b/c NOT NT
a. CSI? Gov’t substituting itself for informed parents is NOT compelling
b. NT? Other less restrictive alternatives available, such as parents calling cable
company to have channels blocked pursuant to § 504
iii. J. Breyer Dissent: again, § 504 and § 505 more effective together; further, § 504 requires
proactive parents
C. Secondary Effects & Zoning
1. Young v. Amr. Mini-Theaters (1976)
i. F: ordinance prohibited adult theatres from locating w/in 1K feet of residential areas;
challenged as CB
ii. H: under secondary effects doctrine, CN triggering IS, and C-al
a. Primary Effects  target hearer’s immediate reaction (i.e. offensiveness, corruption,
psychological harm to kids, etc.)  apply SS
1) Cases: Sable, Pacifica, Reno
b. Secondary Effects  not aimed at harms of speech, but indirect effects of speech
down the causal chain (association w/ crime, urban blight,  in property value)
1) Paradox: why is Court saying “we’ll protect your property, but not your
kids?”
iii. A: Statute here is a burden, NOT a ban (i.e. urban planning, NOT censorship)
iv. J. Stewart Dissent: CB of its face, so apply SS (Erznoznik)
2. City of Renton v. Playtime (1986)
i. F: same as Young
ii. H:
a. If law is based on secondary effects, will be treated as CN and trigger IS
1) Important state interest
2) No more extensive than necessary
3) Ample alternative avenues of communication (not guaranteed good place to
do business)
b. BUT . . . must present proper factual predicate that ordinance will  secondary
effects
1) Other town’s old study OK
c. N: IS formulation closer to RBR than SS
iii. J. Brennan Dissent: CB (i.e. targeting adult theatres), so apply SS; further, fails IS
a. NOT least restrictive means (restricting protected lewd and profane speech)
3. City of LA v. Alameda Books (2002)
i. H: ordinance prohibiting two adult businesses from locating in same building C-al
ii. J. Kennedy Concurrence: saying this is CN is fiction; still, should apply IS
a. BUT . . . shutting business down is NOT fighting secondary effects
iii. J. Souter Dissent: ordinance is content correlated (i.e. in b/t CN and CB)
a. Should apply less deferential standard requiring greater factual predicate
b. Concern: states using secondary effects doctrine to censor adult speech
V.
PORNOGRAPHY AS HATE SPEECH
A. Introduction
1. Argument IS HS
i. Exploits women
ii. Degrades women
iii. Encourages men to view women as sex objects
2. Argument is NOT HS
i. Contributes to marketplace
ii. Expression of individual autonomy
3. Feminist Thought
i. Should NOT ban ALL porn
ii. Rather, only that w/ aspect of exploitation / degradation
4. Traditionalist Thought
i. SHOULD ban ALL porn
ii. Encourages immorality and sexual deviance
B. Case Law
1. Amr. Booksellers Assoc. v. Hudnut (7th Cir. 1985)
i. H: invalidated ordinance prohibiting materials “sexually degrading to women,” as speech
oppressing women is NOT unprotected
ii. Signal: City must track Miller obscenity definition
2. Butler v. Regina (Canadian S. Ct. 1992)
i. H: unanimously uphold statute prohibiting HS degrading to women
a. Targeting harm through violence, NOT viewpoint expression
3. N: while U.S. courts do not recognize these categories, will validate hate sex / crime laws
i. For policy, listen @ 10/11 15 min
C. Alternative Approaches
1. Apply Ferber
i. Feminist  condescending / infantizes women
ii. Likely doesn’t work, as Ferber based on fact underlying conduct was a crime
a. What about speech integral to criminal conduct
2. Mitchell Hate Crime Doctrine
i. Maybe, use gender based sentence enhancers
3. I: rape films
i. CAN prosecute if tape is actually portraying a crime
ii. However, can NOT prosecute actors for prostitution
VI.
COMMERCIAL SPEECH
A. Defining CS
1. Introduction
i. Early on, unprotected. Why?
a. Objective
b. Lower value
c. Hard to chill because of profit motive
ii. OB does NOT apply to CS. Flipside
a. Policy behind OB doctrine is to protect a/g chilling effect
b. However, CS is hardy, as citizens will always be motivated to advertise by profits.
T/f, CS is more durable, and not as susceptible to the chilling effect.
2. VA Pharmacy v. VA Citizens Consumer Council (1976)
i. F: state law prohibited pharmacists from advertising R(x) drug prices (concern w/ quality,
service, and price wars)
ii. H: CS IS protected; law UC
a. CS Defined: speech proposing a commercial transaction
b. Why important?
1) Major interest in receiving price information
2) Free flow of information necessary to a free market economy
3) Advertising need of commercial business
c. Exceptions to Definition:
1) False or misleading speech
2) Speech proposing an illegal transaction
d. Signal: states should regulate conduct, NOT speech
B. Modern Test
1. Central Hudson Gas v. Public Serv. Comm. of NY (1980)
i. H: law prohibiting promotion of electricity use UC (METN) under new 4 part test
a. Is the expression a truthful, non-misleading advertisement concerning a lawful
transaction?
b. Is there an important, significant, or substantial state interest?
c. Does the restriction directly advance that interest (need empirical evidence)?
d. Is the restriction no more extensive than necessary?
ii. Why IS?
a. Maybe, CS has a lower value than PS
b. Often motivated by profit, so more durable, and less susceptible to a chilling effect
c. More objective
2. Bolger v. Young Drug Products Corp. (1983)
i. F: condom company distributing pamphlets concerning unplanned pregnancies and STDs
ii. H: protected CS
a. While an ad alone, even if mentions a specific product, may not constitute CS, the
following together typically creates CS:
1) Expression functioning as an ad
2) Expression mentions a specific product
3) Expression driven by profit motive
b. ***Open issue as to what would happen if all three not met***
C. Inconsistent Applications of Central Hudson Test
1. Posadas v. Puerto Rico (1986)
i. F: state permitted gambling of tourists, but not citizens (concern w/ excessive gambling)
ii. H: J. Rehnquist, applying R-ness overlay, held law was C-al
a. Substantial SI? YES
b. Watered down, deferential NT (like RBR!)
1) Did state have R belief that the restriction would directly advance the SI?
YES
2) Did state have R belief that the restriction was NMETN? YES
c. Greater Includes the Lesser  because the state can regulate gambling (conduct),
they can regulate gambling ads (speech)
1) Contra proposition in Va. Pharmacy, that states should regulate conduct, and
NOT speech
iii. N: doctrine did not last long d/t personnel changes
2. Rubin v. Coors Brewing (1995)
i. H: federal law prohibiting advertising alcohol content on beer labels UC
a. Important state interest? YES (concern w/ strength wars)
b. Directly advance? NO, because ads available elsewhere
c. NMETN? NO, because could have levied tax on beer (i.e. regulate conduct), or used
counter speech (educational programs)
ii. Takeaway:
a. Kills greater includes lesser argument; regulating speech is far more dangerous to 1st
A than regulating conduct
b. Court finds this regulation is paternalistic
c. Argument that better remedy is counter speech
3. Modern Application - 44 Liquor Mart v. RI (1996)
i. F: state restricted advertising alcohol content only on price tags and in store signage
ii. H: plurality applied CS version resembling SS, and held law UC
a. Important state interest? NO, was paternalistic, and regulations keeping people in the
dark are immediately suspect
b. Directly advance? NO, offered no evidentiary basis
c. NMETN? NO, less restrictive means were available
iii. N: both J. O’Connor and J. Rehnquist abandon greater includes lesser here
4. Lorillard Tobacco Co. v. Reilly (2001)
i. H: state prohibition of outdoor tobacco ads w/in 1K feet of schools, and in store ads less than
5 feet tall UC
a. 1K feet restriction
1) METN b/c leaves virtually nowhere else to advertise
2) Butler  can NOT restrict adult’s access to information in name of
protecting children
b. 5 feet restriction
1) Does NOT directly advance, because kids can simply look up
ii. J. Thomas Dissent:
a. RAV requires application of SS here, b/c restricting subcategory of CS based on
content (i.e. tobacco advertising)
1) Paradox: strange to require state’s too restrict ALL CS; would require
application of SS in ALL of our previous cases
i) OK w/ J. Thomas, b/c wants SS
ii) NOT settled by Court
5. Thompson v. Western States Med. Ctr. (2002)
i. H: FDA ban on sale of compound drugs w/out prior approval (expensive), unless agree not to
advertise, was UC
a. SI? Concern that ads would fuel patient demand, and create health risk.
b. NMETN? NO; could restrict ability to compound, or ban compound drugs (i.e. target
conduct, not speech)
c. Regulation is paternalistic: cannot justify suppression of speech by saying consumers
will otherwise make bad decisions
d. Signal: dissatisfaction w/ Central Hudson
ii. J. Breyer Dissent:
a. NOT paternalistic, b/c compound drugs are a luxury, NOT a necessity
6. Florida Bar v. Went-for-It (1995)
i. H: upheld state bar ban on contacting accident victims w/in 30 days of accident
a. Substantial Interest?
1) YES. Peace and tranquility of the home, protecting accident victims
2) NOT paternalistic
b. Direct advancement? YES; have studies showing negative public opinion toward
these practices
c. NMETN?
1) Victims can contact attorney on their own
d. Signal: less paternalistic = less scrutiny
ii. J. Kennedy Dissent:
a. NOT a substantial state interest, b/c can simply throw letters away
b. Targeting lawyer stereotypes IS paternalistic
D. Summary of Commercial Speech
1. Should the state be targeting conduct?
2. Is counter speech the more direct method to advance the state’s interest?
3. Is the state’s interest driven by a paternalistic motive?
4. Is the state regulating broadcast media (see Pacifica  may lessen scrutiny)?
E. Final Issues in CS
1. Tobacco Ad Hypo
i. I: can gov’t ban all tobacco advertising?
a. Most restrictions today are not imposed by gov’t, but agreed too part of settlement
agreement
b. Would absolute ban survive Central Hudson?
ii. A:
a. Does Law Get IS?
1) False or misleading? NO
2) Illegal product? NO
3) Therefore, apply IS
b. Application of IS:
1) Important SI? Likely YES (health problems associated w/ tobacco
consumption similar to those recognized in Rubin and 44 Liquor Mart)
2) NT:
i) Direct advancement? NMETN?
ii) Analysis:
a) Under more tighter version of IS, should regulate conduct
(ban smoking, tax smoking, counter speech campaigns)
b) Paternalistic: telling people tobacco harmful to health
c) Appears would be UC
2. Overbreadth Doctrine and CS
i. OB does NOT apply to CS, b/c speech’s hardiness (profit motive) renders less susceptible to
chilling effect. See Bates and Flipside
a. OB rationale does NOT apply to CS
ii. Thus, moving to vagueness
a. Connoly: persons of common intelligence must guess as to statute’s meaning, and
differ in its application
b. Flipside: do OB first, then vagueness (most vague statues also OB, so never get
here); thus, CS is area vagueness most likely to apply
c. Vagueness is a DP doctrine concerned w/ notice, w/ special bite in 1st A context b/c
of chilling effect
d. Remember, CS is hard to chill, so maybe vagueness shouldn’t have special bite w/r/t
CS
1) So, maybe vagueness shouldn’t apply w/r/t to CS, but lower courts applying
w/ full force
2) NO SCOTUS decision
3. RAV Twist
i. Recall FWs, where can make virulence distinctions based on “fightingest of fighting words,”
but some other CB distinction triggers SS
ii. J. Thomas Dissent in Lorillard: CB distinctions singling out tobacco, alcohol,
pharmaceuticals, etc. should trigger SS
a. SCOTUS has not adopted argument
b. Implicitly rejected in these areas, but no explanation why wouldn’t apply
1) Ex: could argue alcohol, etc. especially harmful, so as to justify virulence
distinction
i) Still, would need empirical evidence.
4. Compelled Disclosure and CS
i. Zauderer (1985)
a. H: upheld bar discipline of attorney for ad saying “no recovery, no legal fees,” which
left off part about paying court costs
b. R: state may compel disclosure of truthful information where “reasonably related” to
preventing deception.
1) Greater level of deference
i) Do NOT have to show that w/out information, ad is false or
misleading
ii) Rather, just show R-ly related to preventing deception (level of
deference)
c. PP: compulsion is less serious than restriction, because policy driving CS doctrine is
that citizens NEED information
ii. Example: graphic tobacco warning labels
a. Next year, unless get injunction, must put graphic pictures on tobacco products
b. Analysis:
1) Additional fact that could be helpful to consumers? R-ly related to
preventing deception?
i) If YES, could compel disclosure
a) Argument: already have surgeon general warnings, so maybe
these extra images are NOT necessary (i.e., already have
nutritional facts, twice sugar, etc.)
b) Argument: already said surgeon general warnings are C-al,
so by analogy, can use these similar ones are also C-al
ii) N: NOT applying Central Hudson here
2) BUT . . . Zauderer also said that if these disclosures are unduly burdensome,
may violate 1st A (potentially dicta)
i) Argument: this takes up 50% of our packaging, so can NOT o/w
advertise, t/f unduly burdensome
ii) Further, may be paternalistic, thereby relaxing scrutiny level (but,
would have to argue Central Hudson should apply)
iii) Likely will see SCOTUS decision soon
VII.
CONTENT NEUTRAL & CONTENT BASED RESTRICTIONS
A. Introduction
1. CN: restriction NOT based on content of speech (time, place, or manner)
i. Receive IS
2. CB: restriction based on content of speech
i. Receive SS, or some form thereof in several specialized tests
ii. Why? Much greater potential for harm to the 1st A
3. Distinguishing CN and CB Restrictions
i. What is the gov’t’s purpose in restricting the speech?
a. If targeting communicative impact (offense, anger, moral corruption, psychological
harm)  CB
b. If targeting secondary effects (urban blight, property values, crime)  CN
B. The Meaning of CN
1. Communicative Impact
i. If law CN on its face, but application turns on communicative impact  may be CB
ii. Ex: statute’s application turning on how people react to speech
2. Purpose or Motive
i. O’Brien (1968)
a. F: burning draft cards
b. H: any inquiry into the legislature’s subjective motive is problematic
1) Difficult to ascertain
2) Legislatures are diverse bodies w/ different motives
3) Insulting to the legislature
4) Can simply reenact statute w/ proper motive
ii. Ward v. Rock Against Racism (1989)
a. H: legislature’s motive is the CONTROLLING consideration for determining
whether restriction is CB or CN
b. T:
1) Did legislature pass law b/c disagreed w/ speaker’s message (i.e. VP
discrimination)?
2) Is the speech restriction justified by the content of the speech?
c. Reconciling w/ O’Brien  subjective motivation vs. objective purpose
1) Ex: “No vehicles in park”
i) Objective Purpose  safety, as inferred from text and social
circumstances
ii) Subjective Motivation  none, b/c made up
2) N: most recent cases looking at objective purpose
d. What about effect?
1) Inferring purpose from effect (i.e. presume legis intends the natural and
probable consequences)
3. Secondary Effects
i. Boos v. Barry (1988)
a. H: ordinance banning signs w/in 500 feet of embassy bringing foreign gov’t into
“disrepute” CB, triggering SS, and UC
1) Rejected application of secondary effects doctrine, as never applied outside
of adult business / zoning scenario
4. Speaker Status
i. Madsen v. Women’s Health Ctr. (1994)
a. H: upheld injunction prohibiting certain anti-abortion protesters from protesting near
abortion clinic as CN
1) Was injunction based on speaker’s message?
i) NO; based on prior course of criminal conduct, t/f CN
2) Was the speech restriction justified by the content of the speaker’s speech?
i) NOT targeting speech’s content, but prior course of criminal conduct
ii. Hill v. CO (2000)
a. F: ordinance prohibited, w/in 100 feet of healthcare facility, approaching w/in 8 feet
of person to distribute leaflets or pamphlets
b. H: C-al as CN restriction
1) Was the ordinance based on the speaker’s message? NO; applied to ALL
VPs
2) Was the ordinance justified based on the content of the speech? NO; intended
to prevent disruption at busy hospitals
c. Dissent: purpose and effect are VP based, so CB, and fails SS
1) Statute references “protest, education, and counseling,” which are types of
speech, so CB on its face
i) Would not be prosecuted for approaching and saying “Hi,” so
application turns on speech’s content
2) No groups, other than anti-abortionists, would be affected by ordinance
5. Effect
i. As stated above, most likely used to attribute purpose
C. The IS Test
1. Overview
i. Test
a. Significant, Substantial, or Important State Interest
b. No More Extensive than Necessary
c. Ample Alternative Avenues of Communication
ii. Also Emphasized in Past Cases
a. Total Impact of the Speech (NAACP v. AL)
b. Disparate Impact of Speech (Struthers; Kovacs dissent)
c. Free Speech Traditions (Laude)
d. Gov’t’s Illicit Motive
2. Schneider v. State (1939)
i. H: ordinance prohibiting ANY leafleting in public streets UC
ii. A:
a. CN b/c applies to ALL leafleting, so apply IS
1) Important state interest? Preventing littering, but does NOT override 1st A
2) NMETN? NO; should regulate conduct, NOT speech
3) AAAC? NO; alley ways not as good for conveying message
b. Other Factors
1) Disparate impact  banning cheap method of speech
2) FS traditions  streets are TPF, and natural / appropriate places for FS
3. Martin v. Struthers (1943)
i. H: ordinance prohibiting door-to-door leafleting UC
a. Significant state interest? Protecting privacy.
b. NMETN? NO; could regulate conduct by requiring opt-outs (i.e. trespass)
c. Disparate Impact? YES; hurts causes of poorly financed “little people”
4. Kovacs v. Cooper (1949)
i. H: ordinance prohibiting sound trucks on city streets C-al
a. Significant state interest? Tranquility of the home (outweighs speaker’s interest)
b. Disparate Impact? Fact that could reach larger audience did NOT warrant add’l 1st A
protection.
ii. Dissent: citing Struthers, ordinance creates disparate impact
a. Further, NOT least restrictive means, b/c could regulate conduct (volume, time
channeling, etc.)
5. City of Laude v. Gilleo (1994)
i. H: ordinance prohibiting residential yard signage UC (9-0)
ii. A: CN, so apply IS; while appears to meet test, Court defers to tradition
a. Significant state interest? Reducing visual clutter (questionable)
b. NMETN? NO; regulate conduct (size of signs)
c. Other factors:
1) Free Speech Tradition  not just public areas, but your home
2) Disparate Impact  cheap method of speech
3) Cohen and Communicative Impact  something special / personalized about
yard signs
VIII.
PUBLIC FORUM DOCTRINE
A. Introduction
1. Framing the Issue
i. Does the gov’t get special power to regulate speech occurring on gov’t property? Depends
on…
a. Who owns the property; AND
b. What the property is used for
ii. Public Forum Doctrine distinguishes b/t two types of gov’t owned property…
a. The Public Forum; AND
b. The Non-Public Forum
iii. N: whether restriction is CB or CN is HIGHLY RELEVANT
2. Five Categories
i. TPF: public streets and parks, including adjacent sidewalks
a. Gov’t afforded NO extra authority to regulate speech
1) IF CN  IS
2) IF CB  SS (or whatever other test would apply)
b. Cases
1) Davis
2) Hague
3) Frisby
4) Clark
5) Ward
6) Hill
ii. NPF: other gov’t property NOT held in trust for FS activities
a. Gov’t given substantially greater authority to regulate speech
b. Test:
1) Restriction R in light of use of the property?
2) Restriction VN?
i) Speaker status distinctions OK (Perry Edu. Assoc.)
ii) Subject matter distinctions OK (Lehman)
a) Ex: no discussing the war
b) NOT Ex: no opposing the war (VB)
c. Examples: military bases, post offices, etc.
d. Cases:
1) Adderley
2) Greer
3) Kokinida
4) Intn’l Society
iii. Subcategories:
a. Designated General PF  apply TPF test
b. “” Limited PF  apply NPF test
iv. Private Forum:
a. Marsh
b. Logan
c. Valley
d. Hudgens
e. Pruneyard
B. Speech on Public Property - The Public Fora
1. Davis v. MA (1897)
i. H: ordinance requiring prior approval b/f making speech on gov’t property C-al
a. Gov’t afforded same property rights as private citizens
b. Greater Includes the Lesser: if gov’t can decide what use property will be put too, can
also decide what uses property will NOT be put too
ii. N: technically NOT 1st A case, b/c before Gitlow incorporation
2. Hague v. CIO (1939)
i. H: ordinance prohibiting public meeting in public parks w/out permit UC (overruled Davis)
a. Gov’t property is held in the public trust, therefore have NO extra regulatory
authority w/r/t public property
b. Public Trust: gov’t owns property, but people are sovereign, t/f people own gov’t
3. Jamison v. Texas (1943)
i. H: ordinance prohibiting distribution of handbills UC
4. Frisby v. Shultz (1988)
i. H: law prohibiting picketing outside of residential homes C-al
a. Public forum? YES  streets and sidewalks
b. CN or CB? CN (applies to ALL speech)  IS
1) Substantial state interest? Peace / tranquility of the home
2) NMETN / AAAC?
i) Protesters can still protest, just not in that area
ii) Signal: protesters need to move around
ii. Dissent: should regulate conduct NOT speech (amt of protesters, time channeling, noise, etc.)
5. Clark v. Comm. for Creative Non-Violence (1984)
i. H: nat’l park reg allowing protesters to set up tent city, but not sleep there, was C-al
a. CN, so applied IS:
1) Substantial state interest? Yes; maintaining public parks
2) NMETN? Yes; R time, place, and manner restriction
3) AAAC? Yes; can still communicate plight of homeless w/out sleeping in
park
ii. Dissent:
a. SI obviously not legit, b/c allowed protesters to set tents up, which damages parks
b. Further, could be more NT (regulate pooping in park)
6. Hill v. CO (2000)
i. H: 8 foot bubble at healthcare facilities C-al
a. TPF? Yes  streets and adjacent sidewalks
b. CN or CB? Majority says CN  apply IS
1) Significant state interest? Patients should NOT have to run gauntlet
2) NMETN? Yes.
3) AAAC? Yes; just stay out of the bubble
ii. Dissent: CB, but even if CN, fails IS
a. SI  Cohen: adults can “avert their eyes”
b. NMETN  regulate conduct, not speech
7. Pleasant Grove City v. Summun (2009)
i. H: FS rights do NOT extend to unattended structures (e.g. monuments) in TPFs
a. Permanent monuments are GOV’T speech
1) If want to partner w/ private organizations  OK
2) If do NOT agree w/ your message  may say NO (i.e. CB restriction OK!)
ii. I: semi-permanent displays (e.g. cardboard cut outs) still unsettled
a. NOT clear whether gov’t speech, or private speech
1) Thus, not clear whether can leave semi-permanent display in park
2) Pinnette: gov’t CAN put up disclaimers
b. Ask: whether R observer would view as gov’t or private speech
c. At some point, becomes trash, NOT speech
C. The Non-Public Forum
1. Adderly v. FL (1966)
i. H: upheld arrest of 200 protesters on jailhouse grounds
a. PF? Jailhouse cartilage NOT PF; t/f, apply NPF test
1) R in light of property use? YES; must keep open jail entrance / exist
2) VN? YES; nothing surreptitious or discriminatory
ii. J. Douglas Dissent: jails are obvious places of protest
a. Compatibility Test: under certain circumstances, particular places are obvious and
appropriate places for FS activities
1) Should ask whether speech is compatible w/ normal activities of the public
place
2) Much tougher / less deferential test!
2. Greer v. Spock (1976)
i. H: policy prohibiting political campaigning at military base C-al
a. PF? NO; NOT held in trust for FS activities
b. R? YES; speech opposing Vietnam war would be bad for morale, and would distract
from normal operations of base
c. VN? YES; applies to ALL political campaigning
ii. J. Brennan Dissent: should apply compatibility test
a. Gov’t is the people’s gov’t, and their property is the people’s property; t/f, should
NOT use a deferential standard
b. Compatibility provides more flexibility (i.e. no need to line draw b/t PF and NPF)
3. U.S. v. Kokinda (1990)
i. H: upheld policy prohibiting solicitation on sidewalks entering post office
a. PF? NO; sidewalk here NOT PF
b. R? YES; allows for free flow of traffic in and out
c. VN? YES; applies to ALL solicitors
ii. J. Brennan Dissent:
a. These categorical distinctions are wooden
b. Should use compatibility test
4. Intn’l Society for Krishna Consciousness v. Lee (1992)
i. H: law banning solicitation in airport C-al, but provision banning distribution of literature UC
a. TPF? NO; haven’t been around long enough to form tradition (5 justices)
b. Solicitation Ban:
1) R in light of duress, fraud, and traffic concern
c. Distribution Ban:
1) NOT R b/c liberty of 1st A
2) NOT NT, and did NOT leave open AAAC (i.e., if worried about littering,
regulate conduct)
ii. Dissent: by analogy to streets and parks, airports ARE public fora (4 justices)
a. Very similar to major cross road areas, or parks
b. Proposed Compatibility Test:
1) 1st  determine property’s f(x)
i) Physical Characteristics
ii) Degree of Public Access
nd
2) 2  is property’s f(x) compatible, or appropriate, for FS activities?
3) 3rd  is property analogous to streets and parks?
iii. N: “bewildering array of decisions”
a. BL: very unpredictable (may want to list again)
5. Closing Thought - Reasonableness vs. Compatibility
i. Compatibility Test is good if want maximum TPF
a. Gov’t owns a lot of property, and should NOT shut out FS
ii. However, if want gov’t to be able to f(x) at maximum efficiency, need more deferential Rness standard.
a. Low burden, b/c easy for speaker to speak right outside gov’t property
D. The Private Forum
1. Marsh v. Alabama (1946)
i. H: company owned town treated same as gov’t owned town
2. Private Shopping Centers
i. Logan Valley (1968)
a. H: privately owned shopping center is TPF
ii. Hudgens (1976)
a. H: private shopping center is private forum (overruling Logan Valley)
E. Unequal Access & Problem of Content Neutrality
1. Introduction
i. I: gov’t opening forum to some, but not others
ii. Designated Public Forum  Two Types:
a. General Public Forum: wide open FS activity
1) Apply TPF test
2) Gov’t can NOT shut down
b. Limited Public Forum: policy limiting FS activity to certain groups or subjects
1) Apply NPF test
2) Gov’t CAN shut down
iii. Remember: can NOT shut down TPF, unless change nature of the property
2. Police Dept. of Chicago v. Mosley (1972)
i. H: ban on picketing at schools, other than for labor reasons, was UC as CB restriction
triggering SS
a. PF? YES  TPF
b. CN or CB? CB, b/c turned on content of picketing
1) CSI? NO
2) NT? NO
ii. Irony: regulating MORE speech would be LESS offensive to 1st A
3. Widmar v. Vincent (1981)
i. H: university policy prohibiting use of buildings for religious worship or teaching UC
a. PF? YES  designated general
1) N: today, would classify as designated limited, because have speaker status
distinction
b. CN or CB? CB (turns on religious content of speech)
1) N: as designated limited today, would still fail VN
4. Lehman v. City of Shaker Heights (1974)
i. H: city selling ad space for commercial and public service purposes NOT obligated to take
political candidate’s ads
a. PF? NPF
1) R? Yes; city trying to make money, concern of captive audience and
appearance of endorsement
2) VN? Yes; banning ALL political ads
ii. J. Brennan Dissent: should apply compatibility test
a. Already providing for commercial B, t/f NOT VN
b. Could use disclaimer
5. Perry Educator’s Assoc. (1983)
i. H: upheld school policy opening interschool mail system to officially recognized groups,
including official union, but not unofficial union
a. PF? Not TPF, and not designated general, t/f NPF
1) R? Yes; preventing junk mail from obscuring important mail
2) VN? Yes; turns on speaker status (official school recognition)
ii. J. Brennan Dissent:
a. Not NPF, but even if is, not VN, b/c obviously rival unions have different VP
6. Moving from NPF to Designated or LPF
i. Kokinda & Cornelius
a. To create public forum, need purpose and intent, as manifested by official designated
policy or clearly established practice
ii. Lamb’s Chapel (1993)
a. H: school policy allowing civic groups, but excluding religious groups, from after
school use of facilities UC
1) Designated limited because open to some, but not others
i) R? YES
ii) VN? NO; not a subject matter distinction (i.e. not saying “no family
values,” but “no religious family values”
b. N: would have been UC under EITHER test, as CB restriction triggering SS
iii. Rosenberger v. Univ. of VA (1995)
a. H: university’s exclusion of Evangelical student newspaper from student activities
fund was UC
1) PF? Metaphysical (stream of $)  designated limited
i) R? State is arguing would o/w be EC violation (majority thinks case
more a/b FS)
ii) VN? NO; based on religious VP
2) Signal: university either must fund paper or close forum
b. J. Souter Dissent: FS in designated limited forum can NOT justify EC violation
1) VN, b/c applies to ALL religions (Lehman)
iv. Good News Club (2001)
a. H: see Lamb’s Chapel
1) Designated limited forum, but VP discrimination
b. J. Stevens Dissent:
1) Should distinguish religious speech by….
i) Generic topics
ii) Worship
iii) Seeking converts
iv) ***Last two are proselytizing speech
2) Maj: religious speech has secular counterparts, i.e. community solidarity
v. CLS v. Martinez (2010)
a. H: university, who had “All Comers” policy, denied RSO status to CLS; Court held
C-al
1) Designated limited
2) VN, b/c prohibiting discriminatory conduct, NOT thoughts
b. J. Alito Dissent:
1) UR, b/c undermines campus FS, and interferes w/ expressive association
2) NOT VN b/c CLS only org ever not granted RSO status
3) Policy allows for diversity of groups, but not w/in groups
IX.
EXPRESSIVE CONDUCT
A. Introduction
1. Framing the Issue
i. Not all conduct is expressive, but Court recognizes 5 categories
a. Flag burning
b. Cross burning
c. Nude dancing
d. Wearing arm bands
e. Wearing military uniform
ii. N: if criminal act committed for expressive purpose, NOT expressive conduct (i.e. terrorism)
2. Expressive Conduct Test
i. Expressive Conduct?
a. Purpose
b. Effect
c. Filtered through our traditions
ii. IF Expressive Conduct  O’Brien Test
a. CB  apply default SS, or whatever test applies
b. CN
1) Is restriction unrelated to the suppression of ideas?
2) Is restriction w/in gov’ts C-al authority?
3) Substantial, significant, or important state interest?
4) Is restriction no greater than essential?
B. Draft Card Burning - O’Brien (1968)
1. H: conviction for burning draft card C-al
i. Expressive Conduct? Assume it is
ii. CB or CN? CN  IS (not really CN, but where CN on its face, will NOT look beyond
legislature’s stated motive)
iii. Substantial Gov’t Interest? YES; draft can’t f(x) w/out law
iv. No greater than essential? YES; only way to protect cards
2. J. Harlan Concurrence: should add AAAC, and only a mild burden (can speak a/b draft)
3. N: in Clark, FN 8, J. Kennedy said O’Brien and CN tests essentially the same.
C. Flag Desecration
1. Texas v. Johnson (1989)
i. H: conviction for burning flag UC (5-4)
a. Expressive Conduct? YES (1st A protections do not end at the spoken word)
b. CN or CB? CB (not physical integrity, but offensiveness of the act)  SS
1) Rather than focus on tests, look at marketplace and self-governing
democracy policies w/r/t PS
ii. J. Rehnquist Dissent: AAAC, and under Chaplinsky balancing, low value speech
iii. J. Kennedy Dissent: CN (applies w/o/r/t motive), and even if CB, have CSI (need to rally
around flag after nat’l crisis)
2. U.S. v. Eichmann (1990)
i. H: Flag Protection Act of 1989, although lacking “offense” language, still UC
a. CN or CB? Still CB!
1) Statute’s “implicit” purpose NOT unrelated to suppression of speech
2) Targets communicative impact  “mutilate, trample, and deface” show
disrespect for the flag
ii. J. Rehnquist Dissent: again, under Chaplinsky, high social harm, and low social value (maybe
zero)
a. N: Stevens (2010) amplifies argument, as have long historical tradition (48 states) of
these prohibitions
D. Nude Dancing
1. Barnes v. Glen Theater (1991)
i. H: law prohibiting public nudity, and applied to strip clubs, C-al
a. Expressive Conduct? YES; carries erotic message (but outer parameters)
b. CN or CB? CN; applies to ALL public nudity
1) State interest? Moral disproval of public nudity
2) NT? YES; AAAC (wear pasties and g-strings)
ii. J. Scalia Concurrence: where conduct prohibition only incidentally burden speech, apply
RBR
a. Cross reference Smith dealing w/ FE, where his view is adopted w/r/t religious
neutral conduct restrictions that incidentally burden religion
1) I: is difference justified?
iii. J. Souter Concurrence: C-al under Renton secondary effects doctrine
iv. J. White Dissent: CB (targeting erotic message), and SI is paternalistic w/r/t consenting adults
2. Paps A.M. (2000)
i. H: public nudity law, expressly mention nude dancing and secondary effects, C-al
a. CN? YES
1) State Interest? Public morality
2) NT? Burden, not ban; any effect on expression de minimus
ii. J. Stevens Dissent: CB b/c express mention of dancing, and evidence of selective
enforcement
3. Hypo: nude dancing, but on screen
i. Dancing  Expressive Conduct  IS
ii. Video  Representation of Conduct is Speech  SS
X.
XI.
EXPRESSIVE ASSOCIATION AND LITIGATION
A. Basic Test
1. Is conduct Expressive Association?
2. Is there a Significant Gov’t Infringement?
i. Change in membership structure (Roberts)
ii. Membership disclosure (Button)
iii. Membership penalty (Whitney)
3. Is the restriction CB or CN?
i. CB  trad’l SS
ii. CN  SS Balancing
a. CSI?
b. NT (closer to IS)?
c. Balanced against degree of infringement
1) If substantial  UC
2) If NOT  C-al
B. Expressive Litigation
1. NAACP v. Button (1963)
i. H: anti-solicitation law prohibiting NAACP from finding potential Πs there lawyers UC
a. Expressive Association? YES; litigation for “political mission”
b. CN or CB? CN, so apply SS balancing
1) Substantial infringement to NAACP strategy, and more NT law possible
2. Ohralik (1978)
i. H: simple N is NOT public, but private issue; t/f, NOT expressive association triggering 1st A
C. Expressive Association
1. Roberts v. U.S. Jaycees (1984)
i. H: state law requiring organization to admit women C-al
a. Expressive Association? Yes; empowering young men
b. Substantial Gov’t Infringement? Yes; any change in membership structure
c. CN or CB? CN (targeting discriminatory conduct)  SS balancing
1) CSI? Yes; fighting gender discrimination
2) NT? Yes
3) Balancing? No concrete evidence admitting women will change message
2. Boy Scouts of Amr. v. Dale (2000)
i. H: state action requiring BS to admit gay scout master UC
a. Expressive association? Yes; molding young boys
b. Substantial gov’t infringement? Yes; altering membership, and will defer to BS
c. CN or CB? CN (applies to ALL discrimination)  SS balancing
1) CSI? Fighting discrimination
2) NT? Maybe
3) Balancing: severe intrusion not outweighed by SI
ii. N: distinguishing CLS v. Martinez
a. Martinez  forum analysis; NOT gov’t infringement, but gov’t requiring no
discrimination as predicate for receiving goody basket
b. Dale  expressive association analysis; NO goody basket, just gov’t infringement
3. Limits of Expressive Association - Staglin (1989)
i. H: dancing at dance club NOT expressive association (i.e. every association is not expressive)
RIGHT NOT TO SPEAK
A. Basic Analysis
1. IF State Dictated Message  UC
i. Flag (Barnette)
ii. License Plate Motto (Wooley)
2. IF NO State Dictated Message  C-al, unless…
i. Speaker disagrees w/ message;
ii. Some attribution (often turning on what audience knows a/b speaker); AND
iii. Inability to disclaim
a. Shopping Center (Pruneyard)
b. Parade (Hurley)
B. State Dictated Message
1. WV v. Barnette (1943)
i. H: compulsory flag salute statute UC
ii. PP: right not to speak is corollary of 1st A and freedom of consciousness (i.e. freedom to hold
or consider a fact, VP, or thought independent of another’s VP)
2. Wooley v. Maynard (1977)
i. H: state law requiring state motto “live free or die” on license plate UC
a. State dictated message  applied some version of SS
b. CB or CN? CB, b/c could not prohibit saying, t/f can NOT require
1) CSI? State pride (shows CB)
2) Weighing SI a/g individuals interest  UC
ii. J. Rehnquist Dissent: use disclaimer
C. NO State Dictated Message
1. Pruneyard Shopping Ctr. (1980)
i. F: CA law treats shopping center as PF; injunction to require shopping center to allow UN
protest; shopping center claims right not to speak
ii. H: NO state dictated message, so apply different test
a. Disagreement w/ message? Never said so in litigation
b. Attribution to shopping center? Unlikely
c. Disclaimer available? Yes
2. Hurley v. Irish-Amr. GLBA (1995)
i. H: state action requiring Irish Veteran’s St. Patrick’s Day Parade to allow GLBA to
participate was UC
a. State dictated message? NO
1) Disagreement w/ message? Yes (Catholics disapprove homosexuality)
2) Disclaimer available? No (would be unusual in parade)
3) Attribution likely? Yes
3. Southworth (2000)
i. H: university requirement that students contribute to student fee fund (speech and other nonspeech activities) does NOT violate right not to speak
a. Designated limited PF
b. VN requirement ($ given in evenhanded fashion), and so long as VN, NO violation
ii. Signal: something different about gov’t acting as sovereign and gov’t as educator, because
different gov’t interests are involved, t/f requiring a special analysis
a. Related ex: unions
4. Zauderer and Commercial Speech
i. I: contingency fees and compelled disclosure
a. 1st  if lose, NO fees
b. 2nd  but, if lose, still pay costs
c. Gov’t  if say 1st, MUST say 2nd
ii. Two Options:
a. Strict View: 1st statement MUST be false or misleading to compel 2nd stmt
b. Deferential View (adopted): 2nd stmt only need be reasonably related to preventing
deception
1) Only need show some possibility that 1st stmt alone would be deceptive
2) Why take deferential approach? Anti-Paternalism Norm
i) Concern over suppressing facts b/c consumers can’t be trusted
ii) Here, NOT suppressing facts, but requiring extra, which is NOT
paternalistic
iii) ***This is why analysis is different than typical state dictated
message analysis***
I.
II.
IV. FREEDOM OF RELIGION
INTRODUCTION
A. Two 1st A Clauses Concerning Religion
1. Establishment Clause:
i. “Congress shall make no law respecting the establishment of religion…”
2. Free Exercise Clause:
i. “…or prohibiting the free exercise thereof…”
3. I: doctrines pushing in different directions (ECFE); must strike proper balance
B. Freedom of Religion Policy
1. Freedom of Consciousness: should not interfere w/ other’s choices concerning religion; o/w,
coercive and morally wrong
2. Gov’t Corruption of Religion: infusion of church and state, coupled w/ disdain toward gov’t, may
lead to anti-clericalism
3. Civil Strife: establishment of religion causes wars, and may lead to revolution
C. Roadmap
1. The Establishment Clause
i. School Prayer and Invocations
ii. Aid to Schools
a. Direct Aid
b. Indirect Aid
iii. Gov’t Displays of Religion
2. Free Exercise Clause
3. The Establishment Clause and Permissible Accommodations
THE ESTABLISHMENT CLAUSE
A. Overview
1. Historical Understanding
i. Basic Interpretations
a. Federalism: nat’l gov’t can NOT pass law respecting establishment of religion; state,
however, CAN
b. Substantive / Individual Rights: range of opinions
1) Madison and Jefferson (anti-federalist)  strict view
2) Washington, Adams, and 1st Congress (federalists)  less strict view
ii. Problems with Originalism as an Approach
a. Religious Diversity: at founding, everyone believed in the same god; now, society
has much greater diversity of beliefs
b. Expansion of Government: if must have separation, little room left for church
c. Rise of Secularism: at founding, everyone was either Christian or deists; now, have
much more non-believers
2. Three Different Views
i. Strict Separation: NO aid to religious schools
ii. Strict Neutrality: NO preferential aid to religious schools
a. Endorsed by Madison (sometime)
b. Winning out
iii. Non-preferentialism: CAN prefer religion to non-religion, but can NOT prefer one sect over
another
3. Lemon v. Kurtzman (1971) - The Lemon Test
i. To determine whether an EC violation exists, ask…
a. Secular Purpose?
b. Primary Effect Neither Advancing Nor Inhibiting Religion?
c. NO excessive Entanglement b/t Gov’t and Religion?
ii. N: no longer used unadulterated, but forms basis of other tests
B. School Prayer & Invocations
1. Early Cases
i. Engel v. Vitale (1962)
a. H: state mandated policy requiring students to either leave, or remain silent, during
school prayer UC
b. J. Stewart Dissent: FE, NOT EC; if do not allow voluntary prayer, religious liberty
shrinks
ii. Abington Sch. Dist. v. Schempp (1963)
a. H: state law requiring 10 bible verses to be read at beginning of class, but excusing
absence, UC
1) True threat to freedom of consciousness
2) Danger of corruption of religion
b. J. Stewart Dissent: voluntary prayer does NOT violate EC (again, more concerned w/
FE)
iii. BL: using policy, NOT doctrine
2. Modern Test - Lee v. Wiseman (1992)
i. H: policy of inviting preacher or rabbi to give invocation at graduation UC
ii. J. Kennedy (maj.): psychological coercion test (i.e. no real alternative other than
participation)
iii. J. Blackmun Concurrence: gov’t endorsement test (broader than psychological coercion)
iv. J. Scalia Dissent: actual coercion test (i.e. required and penalized for nonattendance)
a. Prayer has secular counterparts, i.e. community solidarity and  tolerance
3. Application of Wiseman
i. Santa Fe. v. Doe (2000)
a. H: student election to have prayer at football games UC
1) Majority combined psychological and endorsement tests
2) Because school sponsored vote, NOT private speech, and violates EC
3) Signal: can NOT use elections to circumvent Lee
b. J. Rehnquist Dissent: private speech; if wasn’t, still NOT actual coercion
ii. Elk Grove v. Nedow (9th Cir. 2004)
a. 9th Cir: b/c pledge of allegiance contains words “under god,” school violated EC by
requiring students to recite pledge
1) Applied ALL tests!
b. SCOTUS: denied cert for lack of standing (“punt”)
1) Thomas, Rehnquist, and O’Connor dissented, upholding policy
i) O’Connor: NOT endorsement, but solemnizing prayer (ceremonial
deism, or cultural norm of respect)
ii) Rehnquist & Thomas: no actual coercion; federalist understanding of
EC
2) N: If would have taken, likely violates psychological coercion AND gov’t
endorsement
C. Government Displays of Religion
1. Nativity Scenes
i. Lynch v. Donnelly (1984)
a. H: Christmas display (Santa, reindeer, sign, and nativity scene) does NOT violate EC
under majority’s “fluid” Lemon Test
1) Secular Purpose? Yes; by recognizing historical origins of civic holiday, 
holiday spending
2) Secular effect neither advancing nor inhibiting religion? Yes; primary effect
is celebrating civic holiday, and any advancement only incidental
3) Excessive gov’t entanglement? No; no religious groups involved
b. J. O’Connor Concurrence: Endorsement Test (majority today)
1) Excessive entanglement? No; passive display
2) Gov’t endorsement of religion?
i) Subjective  secular purpose?
ii) Objective  primary effect (e.g., would R observer view as gov’t
endorsement of religion)?
3) BL: crèche viewed in context of larger display
c. J. Brennan Dissent: crèche is central to Christianity; can NOT dilute its meaning w/
larger display
ii. Allegheny v. ACLU (1989)
a. F: one nativity scene; one group of Christmas tree, menorah, and sign “Salute to
Liberty”
b. H: majority adopts O’Connor’s Endorsement test
1) Nativity scene  purpose and effect is to endorse Christian aspect of
holiday, t/f UC (5-4)
2) Group  because tree is somewhat secular, purpose and effect is secular
celebration of pluralism (6-3), t/f C-al
i) 2 or 3 reindeer rule: need something relating to pop culture to shift
message from Christianity to “happy holidays”
c. J. Kennedy Dissent: symbolic endorsement does NOT violate EC; would require
something more extreme, like cross on gov’t building year round
2. Cross - Capitol Square Review v. Pinette (1995)
i. F: KKK wants to display cross on Ohio Statehouse grounds (TPF); gov’t refuses, citing EC
ii. H: applying forum and EC doctrines, denial UC (plurality)
a. TBF and CB restriction  SS
1) CSI? Avoid EC violation; thus, must perform EC analysis:
i) Excessive entanglement? No; this is private speech
ii) Intent / purpose to endorse? R person WOULD see as gov’t
endorsement
iii) T/f, CSI is valid
2) NT? No; could use disclaimer
b. J. Scalia Plurality: private speech can NEVER violate EC UNLESS have collusion
b/t gov’t and speaker
iii. BL: must let cross in, and should put up disclaimer to avoid EC violation
iv. N: assume R observer familiar w/ display
3. Ten Commandments
i. Stone v. Graham (1980)
a. H: under Lemon, 10 commandment display in classroom UC
1) Secular purpose? NO; historical significance NOT enough
b. J. Rehnquist Dissent: history of western civilization IS secular purpose
ii. McCreary v. ACLU (2005)
a. H: 10 commandment display in state courthouse UC (5-4)
1) Secular purpose? No; only added other symbols after litigation began
b. N: J. Breyer was swing vote, and focused on the state’s aggressive actions (e.g. civil
strife policy concern)
iii. Van Orden v. Perry (2005)
a. H: 10 commandment display, on Texas state courthouse grounds 40+ years, C-al
1) Citing Stone dissent, discuss importance to western legal history, and
distinguish schools from courthouses
2) Again, Breyer was swing vote, this time finding the citizen to be the
aggressor (no problems, 40 year existence, etc.)
i) “No test is a substitute for reasoned judgment”
ii) Maybe, doesn’t allow putting more up, but can’t take down existing
displays
b. Signal: potential exception to endorsement test for 10 commandments
1) Nowlin: can NOT doctrinally justify this; pragmatic decisions looking at
fault is for legislature
4. Legislative Chaplains - Marshall v. Chambers (1983)
i. H: opening state legislative session w/ prayer C-al
a. NO test applied, just look at 200 year tradition
ii. Dissent:
a. Tradition alone does NOT deem something C-al
b. Need to apply endorsement test
D. Aid to Schools
1. Overview
i. Lemon Test
a. Secular purpose?
1) Neutrality: is basis and content of aid neutral?
2) Can almost always be met
b. Secular effect?
1) Test depends on whether…
i) Direct aid; OR
ii) Indirect aid (filtered through private choice of parents)
2) N: if wasn’t for O’Connor, would be NO difference b/t direct and indirect
(but . . . she is off the court now))
ii. Indirect Aid Test
a. Secular purpose?
b. Secular effect?
1) Neutrality (or evenhandedness)
iii. Direct Aid Test
a. Secular purpose?
b. Secular effect?
1) Neutrality
2) Substantiality
3) Divertability: can aid be diverted from non-religious to religious purposes?
4) Entanglement
2. Indirect Aid Cases
i. Mueller v. Allen (1983)
a. H: tax deduction for education XP C-al
1) Secular purpose? Yes; promoting education
2) Secular effect? Yes; goes to ALL parents, and fact that 96% goes to
religious schools is irrelevant, as private choice of parents breaks causal
chain
3) N: J. Rehnquist decided excessive entanglement unnecessary
4) Concern: FE clause
b. J. Marshall Dissent: while facially neutral, overwhelmingly benefits religious
schools, amounting to gov’t subsidy of religion
1) Concern: EC
ii. Witters v. Washington Dep’t of Serv. for the Blind (1986)
a. H: aid to blind student, who used to attend seminary, was C-al
1) Secular Purpose? Promote education / help handicapped
2) Secular Effect? Yes; went to ALL handicapped students, who made
independent decisions were to use
i) Created NO financial incentive to attend religious school
iii. Zobrest (1993)
a. H: state providing sign language interpreter to deaf student attending religious school
was C-al
b. Dissent: excessive entanglement
1) Interpreter will directly participate in religious teaching and prayers
2) Unlike Mueller and Witters, have ongoing daily gov’t involvement in
religion
iv. Zellman (2002)
a. H: school voucher program including private religious schools C-al (5-4)
1) Secular purpose? Yes; promoting education for socio-economic
disadvantaged kids
2) Secular effect? Yes; neutrality…
i) Applies to ALL schools
ii) Further, most students have stayed in public schools
b. J. Souter Dissent: should apply direct aid cases
1) Substantially greater benefit to religious schools
2) Great danger of diversion to religious purposes
3. Direct Aid Cases
i. Aguilar v. Felton (1985)
a. F: sending teachers to religious schools to help w/ remedial learning; won’t do
religious teaching, and will have unannounced monitoring
b. H: UC direct aid
1) Neutrality  maybe CN
2) Divertibility  teachers could teach religion
3) Substantiality  yes
4) Entanglement  yes; unannounced monitoring could cause problems
5) Also, endorsement problem (R person could see view as “symbolic union”
b/t church and state)
i) Nowlin: asking about “symbolic union” is like neutrality plus
c. Signal: park trailers off campus and teach there
ii. Agostini v. Felton (1997)
a. H: overrules Aguilar
1) Secular purpose? Education
2) Secular effect?
i) Neutrality  yes
ii) Divertibility  teachers are professionals
a) Do NOT need unannounced monitoring (removes
entanglement problem)
b) Mere risk of slight diversion NOT enough
iii) Substantiality  supplemental vs. supplanted; remedial learning is
supplemental
iv) Excessive entanglement  no
3) Symbolic union paralleling endorsement? NO; b/c neutral in above
categories, no reason to find endorsement problem
b. Dissent: step away from state providing regular teachers
iii. Mitchell v. Helms (2000)
a. H: statute providing equipment (computers to religious schools C-al
b. J. Thomas Plurality: applied indirect aid test
1) Distinction b/t direct and indirect arbitrary
2) Just ask whether aid is neutral in its purpose and effect
i) BUT . . . if dealing w/ fungible $, would look at substantiality
c. J. O’Connor Dissent: applied direct aid test, because distinction matters
1) Divertibility  need actual, NOT potential or abstract diversion
2) Substantiality  supplemental vs. supplanted; computers are supplemental,
b/c still must get other equipment
3) ***Narrowest ground of concurrence***
d. J. Souter Dissent: should only apply direct aid test
1) Divertibility  potential diversion matters
iv. Utah Highway Patrol
a. F: crosses on highways were patrolmen killed
b. 10th Cir: endorsement of religion
c. SCOTUS: deny cert
d. J. Thomas Dissent: attacks tests as unclear; should clear this up
1) Lemon Test
2) Lemon as Factors
3) Psychological Coercion
4) Endorsement for Displays
5) 10 Commandments Cases
6) Aid Split into Two Tests
v. Rosenberger v. VA (1995)
a. H: university funding school paper was indirect aid
1) Forum supported by and for students; benefit to religious students only
incidental
2) Further, university paid the printer, NOT the students
3) NO EC violation, b/c students are not a religious organization or church
i) More about FS than EC
b. J. Souter Dissent: this is direct aid (i.e. paying their bills)
1) Violates EC, b/c of divertibility and substantiality
i) More about EC than FS
E. Summary of EC Tests
1. Prayer / Invocation:
i. Psychological coercion / endorsement test (Santa Fe)
ii. Like Lemon
2. Public Displays:
i. Endorsement Test:
a. Secular purpose?
b. Secular effect?
c. No excessive entanglement?
ii. O’Connor / Allegheney
3. Aid to Schools:
i. Indirect Aid:
a. Secular purpose?
b. Secular effect?
1) Neutrality
ii. Direct Aid:
a. Secular purpose?
b. Secular effect?
1) Substantiality
2) Divertibility
3) Neutrality
i) Maybe  Neutrality + (endorsement paralleling symbolic union)
4) Entanglement
III.
FREE EXERCISE CLAUSE
A. Sherbert Era
1. Sherbert v. Verner (1963)
i. H: denial of unemployment benefits to Seventh Day Adventists who did not want to work on
Saturdays violated FE clause
ii. Old Main Test: (basically same as Button expressive association)
a. Religious Conduct? Yes
b. Substantial gov’t infringement? Yes
c. Religion neutral / incidental burden  apply SS balancing
1) CSI? Fraud
2) NT?
3) Balance CSI and NT vs. severity of burden (choosing b/t work and religion)
d. Religion based  basically SS (gov’t almost always loses, w/ Locke, i.e. play in the
joints, being the exception)
2. Wisconsin v. Yoder (1972)
i. H: requiring students, including Amish, to attend high school until age 16 violated FE clause
a. Religion neutral / incidental burden  SS balancing
1) CSI? Education, but Amish different, as are self-sufficient and have no
history of social problems
2) NT? No, b/c unlikely to curb targeted social problem
3) Severe burden, as infringing on the Amish’s way of life
b. N: analysis would NOT apply to philosophical groups like hippies
B. The Smith Era
1. New Main Test
i. RN, generally applicable law incidentally burdening religion  Residual RBR (C-al!)
ii. RB, targeting religious conduct  SS
a. Almost certainly invalid, w/ Locke play in the joints being exception
1) Mild burden on religion?
2) Ad hoc balancing of burden w/ substantial, historic interest in separation of
church and state
iii. Other Minor Exceptions  Sherbert Balancing
a. Hybrid Rights: combine FE claim w/ another C-al claim (Yoder)
b. Individualized Assessments: gov’t actor making independent policy determinations
(Sherbert)
2. Employment Division v. Smith (1990)
i. H: denial of unemployment benefits to NA peyote user did NOT violate FE clause
a. RN / generally applicable law  residual RBR
1) FE means freedom of beliefs, NOT freedom of conduct
2) Text and history do NOT mandate Sherbert balancing
3) Should defer to states, and not make case-by-case decisions
4) Distinguishes Yoder and Sherbert
ii. J. O’Connor Concurrence: apply Sherbert Balancing
a. Court’s duty to balance interests, and protect minority rights
b. Will NOT create license to break criminal law in name of religion, as would still fail
Sherbert (CSI of fighting drug war)
iii. J. Blackmon Dissent: apply Sherbert Balancing
a. NO CSI, b/c not real drug war, as peyote is NOT recreational drug
C. SS - Laws Targeting Religion
1. Church of Lakumi Babalu Aye (1993)
i. H: city ordinance prohibiting ritual sacrifice of animals, w/ exception for butchers and rabbits
used to train greyhounds, violated FE clause
a. RB / targeting religion  SS
1) NO CSI when purpose is to oppress religion (i.e. Santeria)
2) Signal: ordinance under-inclusive
2. Locke v. Davey (2004)
i. I: EC doesn’t prohibit it, does FE require it
ii. H: denial of scholarship to pursue devotional theology degree did NOT violate FE clause
a. Looks like RB triggering SS
b. However, this is play in the joints: room b/t FE clause and EC for states to make own
determination w/r/t the appropriate balance b/t church and state
c. Play in the Joints (federalism):
1) Mild burden on religion?
2) Ad hoc balancing of burden w/ historic, substantial interest in separation of
church and state
iii. J. Thomas / Scalia Dissent: apply regular SS
D. Summary of Doctrine - New Main Test
1. Religion Neutral, generally applicable law, incidentally burdening religion  RBR, w/ gov’t almost
certainly winning, w/ exceptions…
i. Hybrid Rights  Sherbert Balancing
ii. Individualized Assessments  Sherbert Balancing
2. Religion Based  SS, gov’t almost certainly loses (Lukumi)
i. Statute written to target or oppress religion
ii. Exception  Play in the Joints (Locke)
a. I: permissible under EC, state doesn’t do it, Π says FE requires
b. T:
1) Legitimate separation of church and state
2) Ad hoc balancing of concerns a/g burden on religion
i) If mild burden  gov’t wins
c. PP: breathing room for federalism
E. Range of Opinions on School Vouchers
1. Include religious schools?
i. J. Rehnquist  EC does NOT prohibit, b/c indirect aid filtered through private choice
a. J. Scalia  C-al
ii. J. Stevens  violates EC (Zellman dissent)
a. J. Souter  violates EC
2. Exclude religious schools?
i. J. Rehnquist  C-al if under FE clause, not sever burden
ii. J. Souter  C-al
iii. J. Scalia  FE clause violation (Locke dissent)
3. NO school vouchers?
i. J. Stewart  because taxation takes away money from private schools, MUST have voucher
program to reimburse parents who want to send children to religious schools
a. Need voluntary prayer program, or release time program
IV.
PERMISSIBLE ACCOMMODATIONS AND EC
A. Overview
1. Accommodations
i. FE Clause  REQUIRED
ii. EC  PERMISSIBLE
2. I: FE doesn’t require, gov’t does anyway, Π raises EC claim; at what point does accommodation
become a preference to religion, and violate EC?
i. Play in the joints, but from opposite direction
B. Employment Discrimination - Amos (1987)
1. H: discrimination against non-Mormon janitor citing Federal Civil Rights law, while not required by
FE clause, did NOT violate EC
i. Apply Lemon Test
a. Secular purpose? Yes, lifting special burden on religion (would have to guess as to
application of federal law, and could not define themselves)
b. Secular effect? Yes, primary effect that neither advances or inhibits religion (gov’t is
getting out of the way)
c. Excessive entanglement? No, decreases entanglement, as will have less litigation
ii. Basic play in the joints
a. Accommodation not required by FE clause
b. Not prohibited by EC clause
c. Legislature gets to decide
2. J. Brennan Concurrence: does this not violate janitor’s FE?
3. J. O’Connor Concurrence: endorsement analysis
C. Texas Monthly v. Bullock (1989)
1. H: state tax exemption for religious organization’s publications violated EC
i. Lifting special burden? NO (everyone must pay taxes)
ii. Broader than religion? NO (contra Walz, where property tax exemption went to ALL nonprofits and charities)
iii. Burden on non-beneficiaries? YES (other taxpayers must pick up the slack) (contra Zorach,
where prayer release time program did not burden non-participating students)
iv. ***Only need meet one of these***
2. J. Scalia Dissent: this is benefiting religion in non-sectarian way, which is permissible under
historical view (i.e. non-preferentialism)
D. Kiryas Joel (1994)
1. H: special school district for disabled Hasidic Jews violated EC
i. This is NOT RN generally applicable law, but RB
a. NO upfront guarantee of equality
1) Concern: other less popular groups would NOT get similar equality
2) I: does this cast doubt on Smith dicta that states granting NAs exemptions for
using peyote was permissible under EC?
2. J. Scalia Dissent: founders would NOT find EC violation
i. Do NOT need similar guarantee for other groups
E. Application to Federal Statutes
1. Religious Freedom Restoration Act
i. Angry w/ Smith, Congress provided Sherbert SS balancing to individuals w/ religious claims
ii. Bourne: Court struck down as applied to the states on federalism grounds
2. Religious Land Use and Institutionalized Persons Act
i. Response to Bourne
a. Conditional spending: give $ to states if provide religious protections to prisoners
b. Form of Sherbert balancing  no significant burden unless CSI and NT
ii. Cutter v. Wilkinson (2005)
a. H: RLUIPA does NOT violate EC
1) Secular purpose? Letting religion advance itself
2) Secular effect? Lifting special burden
3) Entanglement? Not like Joel, b/c applies to ALL religions, and no concern
a/b unpopular ones not getting similar treatment
iii. O’Centro
a. H: allowing Amazonian religions to use hallucinogens via Sherbert balancing did
NOT violate EC as impermissible accommodation
3. Potential Problems
i. J. Blackmun in Smith  Sherbert balancing required by FE clause
ii. Contrast Stevens dissent in Bourne  Sherbert balancing conferred on religion violates EC
a. N: eventually retreats from view
iii. TA: judges taking different view on Sherbert balancing
a. Blackmun  aggressive approach w/r/t FE clause
b. Stevens  “” FE clause