Intro
1) Sedition Act of 1798
a. Federalists enacted to silence dissenting Republicans
b. Mitigating
i. Truth as defense
ii. Malicious intent
2) First SCOTUS case: Espionage Act (1917)
a. WWI
3) Rationales for 1A
a. Marketplace of ideas
i. Search for truth
ii. Ex.: Holmes dissenting in Abrams v. US
iii. Against
1. Conduct can lead to truth too, but that can be banned
iv. Pro
1. John Stuart Mill
2. Greenawalt: gov pooly positioned to reg
v. Other
1. Market failures?
b. Self-governance
i. Town meeting conception (everyone speaks equally)
ii. Meiklejohn
iii. Against
1. Governance is only small part of our life; why not protect art?
iv. Pro
1. Sunstein: derp political deliberation herp derp
v. Other
1. Bork: must be cut off because economic activity is more like art than art
is like political speech
a. This is obviously wrong in that two of these things are speech
and one is an action
c. Self-fulfillment/autonomy
i. Against
1. Bork: people can find self-fulfillment in a lot of things, including
commerce, sex, etc.—doesn’t distinguish speech without arbitrary value
judgment on legitimacy of certain kind of self-fulfillment
d. Check on abuse of power
i. Warranted bc gov unique ability to employ legalized violence
e. Safety valve
i. Permits conflict without “might-makes-right” artificial conclusions
f.
Shaping a tolerant, free society
i. Demonstration of societal self-restraint when confronted with
offensive/disagreeable ideas
ii. Culture that prizes liberty inherently breeds mistrust of government and
courage to confront evil
4) Two important distinctions
a. Content based v. content neutral
i. Examples of content based
1. Confidential info
2. Forbidding hiring of teachers that advocate violent overthrow
3. Display of swastika
ii. Examples of content neutral
1. Noisy speeches near a hospital
2. Banning billboards
3. Requiring disclosure of names of leafleters
b. High value v. low value
i. Examples of low value
1. Obscenity
2. Commercial advertising (sort of)
3. False statements of fact
ii. High-value
1. Most others
Content-based restrictions: Dangerous Ideas and info
1) Four types of problematic expression
a. Induces unlawful conduct
b. Threats
c. Hostile audience reaction
d. Confidential info
2) Contrast
a. Clear and present danger test
b. Likely and imminent harm test
Induces unlawful conduct
1) Shaffer v. US (9 circ 1919)
a. Facts
i. Shaffer mails antiwar book
ii. Gov prosecutes under Espionage Act
b. Court
i. Statute does not ban expression, but rather expression that is calculated to
cause certain response
2)
3)
4)
5)
6)
ii. Intent: Natural and probable consequences
Masses Publishing v. Patten
a. Learned Hand, interpreting Espionage Act, distinguishes between speech against
legitimacy of a law from actively urging disobedience to that law
b. Hand’s attempt at a clean rule: express advocacy of lawbreaking is unprotected;
anything that is not express is protected (effect on hearers is only to counsel them to
violate)
Shenck v. US (1919)
a. Facts
i. Pamphlet: “Assert your rights” against the draft; propagated by “mercenary
capitalist press”
b. Court
i. Question = words used in circumstances of such nature as to create clear and
present danger that they bring about substantive evils that Congress has right to
prevent
1. Question of proximity and degree
ii. Things that might be said in peace will not be tolerated in times of war
c. Notes
i. Twin doctrines of bad tendency and constructive intent (nat/prob conseq)
Frohwerk v. US (1919)
a. Facts
i. Missouri German newspaper talked about how bad draft was
b. Court (Holmes)
i. Draft is immoral hints strongly that one should defy it
ii. Circumstances exacerbate likelihood of harm
iii. Counseling crime can be criminalized
iv. Conviction affirmed
Debs v. US (1919)
a. Facts
i. Eugene Debs (socialist candidate) expressed praise for draft dodgers
ii. “You need to know that you are fit for something better than slavery and
cannon fodder”
b. Court (Holmes)
i. Can infer from words that at least incidental effect of speech was to oppose war
ii. 1A claim “disposed of in Shenck”
c. Notes
i. Harding pardons Debs in 1921
Goldstein v. US
a. Robert Goldstein publishes movie accurately depicting Wyoming Valley Massacre where
Brits bayonetted women and children
b. Gov prosecutes because that might undermine confidence in Brits as current wartime
ally
c. Conviction
7) Abrams v. US (1919)
a. Facts
i. Russian anarchist immigrants distribute pamphlets from window
ii. Military police arrest them
b. TC
i. I hate anarchists
c. SCOTUS
i. No 1A claim under Schenck
d. Holmes dissenting
i. Clear and imminent danger test
ii. this speech is not likely to be effective; thus, 1A protects it
iii. Belittles “Silly pamphlet” by “unknown man”
8) Gitlow v. US (1925)
a. Facts
i. Δ published paper for Left Wing Section of Socialist Party USA
ii. Advocated violent overthrow
b. Court (Sanford)
i. Decides it doesn’t like as-applied challenges because when legislature
determines that certain class of speech tends to bring about violent revolution
(apparently a legit interest in suppressing) it does not matter whether, in the
actual facts, the statement would bring about that harm.
ii. Where language advocating specific harm is prohibited by legislature (as here:
violent overthrow/assassination), natural and probable effect is not applicable
iii. Natural and probable test only applicable where statute generally prohibits a
substantive evil like Schenck (obstructing the draft), and the effect of language
is up to interpretation (does saying draft is bad actually undermine it? = then
look to nat/prob consequences) ( question: how do you determine a statute
specifies the offense in nonspeech or nonpress terms)
1. If legislature decides that conditions exist, then enact statute on those
grounds, no clear/present danger test; if legislature enacts statute that
only applies IF certain conditions exist, then clear/present danger test
iv. Thus, there is no intent element in as-applied cases where legislature has
specifically prohibited specific language because of certain harms.
9) Whitney v. CA (1927)
a. Facts
i. Δ attends communist convention
ii. Sponsors moderate resolution; is defeated
iii. Gets arrested for criminal syndicalism
1. Participated in commy convention
b. Court
i. United action poses more danger than individual action
ii. Individual advocacy of violent overthrow is illegal
iii. Conviction upheld
c. Brandeis concurring
i. Liberty is both means and end; essential to happiness
ii. SELF-FULFILLMENT RATIONALE
1. Deliberative process
2. Public discussion
iii. Apply clear/imminent (Brandeis introduces seriousness element to intensify
clear/present danger test)
1. ONLY if there is no time to diffuse danger in interim
2. Remedy for bad speech is more speech
d. Note
i. Brandeis and Holmes just kept asserting that the clear/present danger test was
settled law, even tho the majority ignored it 6 times in a row and came to
results contrary to it… their outrageous dissent tactic saved free speech
10) Dennis
a. Facts
i. Statute: can’t advocate violent overthrow
ii. Δ Advocated overthrow when Propitious moment arises
b. Court
i. Conspiracy to advocate can be prohibited just as actual advocacy
ii. Gravity of evil discounted by improbability of the harm (adopting Hand’s
formulation from lower court)
c. Frankfurter concurring
i. Balancing of security interest with free speech
ii. This should be left to legislature.. what could go wrong?
d. Jackson concurring
i. Judges equipped to balance interests in small cases like a hot-headed speech on
street corner, but not major issues like “well-organized conspiracies” like
commie party
e. Black dissenting
i. This case abandons clear/present danger
f. Douglas dissenting
i. If the books from which the Party draws are not banned (and the majority does
not ban them) why does using those books become a crime?
ii. Marketplace of ideas has already destroyed the commies in the US
11) Yates
a. Facts
i. Same as above
ii. Different commie party members
b. Court (Harlan)
12)
13)
14)
15)
i. Distinguish between advocacy of abstract concept of revolution, and actively
seeking to ignite revolution
ii. Distinction between advocacy of belief and advocacy of action
Brandenburg v. Ohio (1969)
a. Facts
i. Kkk members burn cross
ii. Only ones there
iii. Not a “revengent organization”
b. Court
i. Whitney thoroughly discredited
ii. TEST: IMMINENT ACTION THAT IS LIKELY TO MATERIALIZE
iii. Statute that fails to draw distinction between advocacy of belief and advocacy
of action is unconstitutional
c. Black concurring
i. Keep the “clear and present danger” test away from me. Otherwise, concur
d. Douglas
i. Clear/present danger test has no place in 1A jurisprudence: it is too subject to
manipulation
ii. Line between permissible and impermissible is that between ideas and action
e. THE BRANDENBURG TEST
i. Express advocacy
ii. Imminent harm
iii. Likely harm
f. Notes
i. Chilling effect
ii. Pretext effect
iii. Crisis effect
Claiborne Hardware
a. Facts
i. Catch you going into any of those racist stores, will break your damn neck
b. Court
i. Advocacy is not the same as inducement
ii. Impassioned plea; emotional rhetoric
Rice v. Paladin (1997)
a. Facts
i. Hitman instruction manual
ii. Hitman follows instructions, kills victim
b. Court
i. Brandenburg does not control
ii. Publisher is liable bc intended to be used in that manner
Humanitarian Law Project (2010)
a. Facts
i. Legal advice to terrorist group
ii. Statute prohibits material support
b. Court (Roberts)
i. Distinguish Scales (cannot punish mere membership even if some activities of
group are illegal)
1. Roberts claims material support is different from mere membership
ii. Claims advice is material support
1. Problem: But is material support in form of speech really different from
mere membership?
iii. Resources are fungible; material support for legitimate frees up resources for
illegitimate
iv. Upholds statute
1. In natsec arena, defer to political branches evaluation of danger
Speech that threatens
1) Bridges
a. Facts
i. Union boss threatens to strike if court enforces order
ii. Held in contempt
b. Court
i. Not imminent (maybe serious)
2) Watts
a. Facts
i. First person in my sights will be LBJ
b. Court
i. Political hyperbole is protected
3) Planned Parenthood v. Am. Coalition of Life Activists
a. Facts
i. Wanted posters for abortionists
b. Court
i. Constitutes threat bc communicated with intent to intimidate with harm
c. Dissent
i. A true threat warns of violence that the speaker controls
Speech that provokes a hostile audience reaction
1) Terminiello
a. Guy agitates audience
b. Jury instructed “stirs public to anger…”
c. Stands for prop that speech cannot be banned bc offensive
2) Cantwell v. CT
a. Facts
i. Jehovah’s Witness plays recording that attacks catholic church
ii.
b. Court
i.
ii.
3) Feiner v. NY
a. Facts
i.
ii.
iii.
b. Court
i.
4)
5)
6)
7)
8)
Convicted of breach of peace
Effort to persuade willing listener
Conviction overturned
Guy speaking to audience, encourages blacks to stand for rights
Calls Truman a bum
Cops arrest bc audience getting roudy
Where speaker passes bounds of persuasion and undertakes incitement to riot,
cops can intervene
c. Black Dissenting
i. If goal is to protect speaker, not silence dissent, then cops should exhaust all
options to protect speaker first
Kunz
a. Permitting scheme for street worship invalid bc too much discretion in granting permits
Edwards
a. Opposite result of Feiner
b. Students sing/protest discrimination at State House grounds
c. Court: “far cry” from Feiner bc no threat of violence
d. Dissent (Clark): southern communities are volatile
Cox v. LA
a. Blacks/rights activists march on sidewalk; will not disperse when ordered
b. Court: students were not violent, no signs of eruption, call for sit-in does not deprive
speech of protected status
Gregory v. Chicago
a. Δ leads march to Daley’s home
b. Spectators yelled n*.. at them, threw stuff
c. Cops told them to leave; arrested when they refused
d. Court: conduct was not disorderly; not enough evidence to support due process
Chaplinsky v. NH
a. Facts
i. JW tells complainant that he is a goddamn racketeer
ii. State courts construed statute very narrowly as words that “have a direct
tendency to cause acts of violence by the person to whom, individually, the
remark is addressed”
b. Court
i. Test: ordinary man of common intelligence would understand words likely to
cause addressee to fight
ii. Upholds; narrow statute to prevent fighting words
c. Notes
i. INTRODUCE HIGH-VALUE/LOW-VALUE DISTINCTION
9) Gooding v. Wilson
a. Facts
i. “White son of a bitch I’ll kill you”
ii. Statute: opprobrious words or abusive language
b. Court
i. Even if statute was constitutional with regard to Δ (pretty clearly threat or
fighting words), it was unconstitutionally overbroad: state courts had not
narrowed it
10) Skokie case
a. Facts
i. Village gets injunction against Nazis wearing uniforms or swastika while
marching in Skokie
b. SCOTUS
i. Reverses injunction;
11) Snyder v. phelps
a. Court (Roberts)
i. Self-governance rationale to explain “profound national commitment”
ii. Leads to more protection for “speech on public issues”
iii. Speech on public issues = “fairly considered as relating to any matter of political,
social, or other concern to community”
iv. Distress turns on content conveyed, not any kind of interference with the
funeral
b. Alito dissenting
i. “vicious public assault” (note the recurring argument about speech as assault)
ii. Emphasizes other venues
Expression that discloses confidential information
1) Examples
a. Individual interest in privacy
b. Right to a Fair trial
c. Rehabilitation of juvenile offenders
d. National security
2) Landmark Comms v. VA (1978)
a. Facts
i. Newspaper publishes fact that Judicial Commission was contemplating
investigating a particular judge
b. Court
i. Unconstitutional bc less restrictive measures: forbid Commission participants
from divulging sensitive info
ii. Even if no less restrictive measures, “neither the Commonwealth’s interest in
protecting the rep of its judges, nor its interest in maintaining the institutional
integrity of its courts is sufficient to justify the subsequent punishment of
speech at issue here”
3) Nebraska Press v. Stuart (1976)
a. Facts
i. Judge issues injunction against newspapers publishing info indicative of guilt of
accused murderer
b. SCOTUS (Burger)
i. Lawl no
ii. Court has serious responsibility to protect impartial jury, but the injunction as a
means is foreclosed by 1A unless all other means are exhausted
iii. Prior restraints do immediate and irreversible damage
c. Brennan concurring
i. Prior restraint is ALWAYS impermissible means to protect impartial jury trial
4) NYT v. US; US v. WaPo (1971)
a. Facts
i. Newspapers published exerpts from top secred DoD study of Vietnam war
b. Court
i. Prior restraint comes to court with heavy presumption against validity
ii. Gov did not meet that burden
c. Black, Douglas concurring
i. The word “security” is a broad, vague generality whose contours should not be
invoked to abrogate the fundamental law embodied in the First Amendment.
The guarding of military and diplomatic secrets at the expense of informed
representative government provides no real security for our Republic
d. Douglas, Black concurring
i. Disclosures may have serious impact. Tough. Not a basis for sanctioning a
previous restraint on the press
ii. Highly relevant to debate in progress
e. Brennan concurring
i. 1A tolerates absolutely no prior judicial restraints of press predicated upon
surmise or conjecture that untoward consequences may result
f. Stewart, White concurring
i. Separation of powers argument: if this should be hidden from public
responsibility rests with executive foreign powers, not judiciary
g. White, Stewart concurring
i. Separation of powers argument: executive needs congressional approval to
itself impose prior restraints in name of natsec
ii. Might still successfully pursue post hoc criminal conviction
h. Burger dissenting
i. Meh, the people can wait to learn about this, the Government deserves a
chance to defend it’s secrecy
i. Harlan, Burger, Blackmun dissenting
i. In foreign affairs, natsec = sudo for executive branch. First Amendment can suck
it
j. Blackmun dissenting
i. 1A, after all, is “only one part of an entire Constitution”
5) Haig v. Agee
a. Facts
i. Agee was ex-CIA
ii. Disclosed some CIA info
iii. Had passport revoked
b. Court
i. Gov can prevent publication of location of troops (quoting Near)
c. Notes
i. Book: inconsistent with pentagon papers?
ii. Me: no, that didn’t involve suppressing an ex-employee who had himself
obtained info illegally; that was just newspapers with second-hand info
Trans-substantive doctrines Overbreadth, Vagueness, Prior Restraint
Overbreadth and Vagueness
1) Gooding v. Wilson (1972)
a. Facts
i. During protest, cop tries to move Δ from where Δ was at
ii. Δ: “White son of a bitch, I’ll kill you”; “Son of a bitch, I’ll cut you to pieces”
iii. Convicted for “opprobrious words”
b. State
i. GA courts construed statute very narrowly to only apply to actual fighting words
c. Court
i. Does not matter whether words Δ used could be constitutionally prohibited,
only if the statute as a whole was unconstitutional as construed by GA courts
ii. Examining the decisions that state claims limit statute to fighting words do NOT,
in fact, limit the statute as the courts had in Chaplinski
1. words that “have a direct tendency to cause acts of violence by the
person to whom, individually, the remark is addressed”
iii. examples of “clearly” NOT fighting words
1. waking people up by shouting loudly “Get the Goddamn bedrolls out,
let’s see how close we can get to the goddamn tents” (wut?)
2. “You swore a lie” (wut?)
3. “God damn you; why don’t you get out of the road?”
d. Burger dissenting
i. Court should evaluate constitutionality by language; not by how state courts
have construed it
e. Notes
i. Explanation of as-applied vs. facial on bottom of p131
2) Broadrick v. OK (1973)
a. Facts
i. State law restricted political activities of civil servants
ii. Δs convicted for soliciting funds for political candidates
b. Δ arg
i. Δs concede that state can properly restrict raising funds for candidates, but that
statute ALSO restricted civil servants from wearing buttons or bumper stickers
c. Court
i. Most of statute regulation is legitimate; whatever is not can be dealt with on a
case-by-case basis
d. Brennan dissenting
i. There is some element of substantial overbreadth inherent in the overbreadth
doctrine (bc not just any conceivable unconstitutional application is sufficient to
invalidate)
ii. Wholly unjustified; no explanation of why OK statute was not substantially
overbroad
3) LA City Council v. Taxpayers for Vincent (1984)
a. Court
i. Realistic danger that statute will significantly compromise recognized 1A
protections of parties not before the court for facial challenge on overbreadth
b. Notes
i. Maybe overbreadth real analysis is not substantial overbreadth but narrowest
tailoring
ii. ALWAYS BRING BOTH VAGUENESS AND OVERBREADTH
iii. Vagueness =” person of common intelligence must necessarily guess at its
meaning and differ as to application” (Connally v. Gen. Construction)
Prior Restraint
1) Lovell v. Griffin (1938)
a. Facts
i. Statute prohibits circulating circulars without a license
ii. Δ convicted for circulating JW lit
b. Court
i. Yeaaahhh no.
ii. Prior restraints strike at heart of foundation of freedom of press
2) Lakewood v. Plain Dealer Publishing (1988)
a. Facts
i. Statute gives mayor standardless discretion to deny permits
b. Court
i. Nope.
c. Notes
i. Reasons against prior restraint see page 142
3) Freedman v. MD (1965)
a. Court
i. Censor board’s job is to censor; less sensitive to 1A interests
4) Near v. MN (1931)
a. Facts
i. Statute: abatement as public nuisance of malicious, scandalous and defamatory
newspaper
ii. Put burden to show truth on publisher
b. Court
i. Reason for statute is to dissuade/affect editing decisions (State argued that post
hoc prosecution was insufficient to prevent libel)
c. Butler and other 3 horsemen dissenting
i. This is not a prior restraint; only prevents later publication of same information
(second round of publication)
ii. But this isn’t really true: apparently (according to majority) paper can be
enjoined even on learning of intent to publish “scandalous” material, rather
than after actual publication
d. Note
i. Problem with previous restraints via injunction: collateral bar ruleeven if
injunction is unconstitutional, Δ cannot assert that as defense to contempt
charge on violating injunction
5) Pittsburgh Press v. Pittsburgh Commission on Human Relations (1973)
a. Not all injunctions (previous restraints) are illegal; this one was based on repetitive and
continuing conduct eliminating need to guess at the harm caused by enjoined speech
therefore constitutional
Content-based restrictions: Low Value Speech
False statements of fact
1) NYT v. Sullivan (1964)
a. Facts
i. 4 civil rights activists take out newspaper ad that criticizes “the police”
ii. Ad has lots of false statements/exaggerations in it
iii. Commissioner sues rights activists claiming that they libeled him as
commissioner of “the police”
b. Court
i. Private lawsuit, even under common law, is still state action bound by 1A
ii. False statements are inevitable and must be protected to give breathing space
for free debate
iii. Cite to Bridges: criticism of judges is protected despite need for fair trial
iv. RULE: criticism/defamatory statements about public official protected UNLESS
public official can prove falsity AND malicious intent—actual
knowledge/recklessness as to falsity
c. Black and Douglas concurring
i. Malice is weaksauce protection for government critics
ii. Should grant absolute immunity
d. Notes
i. Barr v. Mateo: official cannot be liable for libel bc absolute immunity for
statements made in the outer parameter of his duties
ii. Harte-Hanks Comms v. Connaughton: neither failure to comply w professional
standards nor publication of falsehood to increase profits is in itself enough to
establish actual malice, but purposeful avoidance of truth may be sufficient
(wut?)
2) Curtis Publishing v. Butts (1967)
a. Facts
i. Coach accused of throwing game
ii. Coach worked for private Athletic Association, not school, although he coached
for a public school
iii. Coach sues Δ newspaper for libel
iv. Companion case: figure of national prominence from prior military service
defamed
b. Court
i. As a class, public figures have higher access to public officials than normal folk
ii. Criticism of Public figures, as well as public officials, is protected by 1A
c. Black and Douglas
i. Press should be absolutely free from libel charges
3) Gertz v. Robert Welch (1974)
a. Facts
i. Cop kills Nelson
ii. Nelson fam hires Gertz as attorney
iii. John Birch Society says Gertz framed cop; had history of crim behavior
b. Court (Powell)
i. False statements of fact do little to advance societies interest in robust debate
(contra NYT v. Sullivan)
ii. Public officials/figures have easier access to means to defend their name
iii. No 1A protection for libel against nonpublic figure or official, even if the event
involved is a public event (negligence; cannot impose “without fault” (strict
liability?))
iv. Punitive damages only for reckless or knowing libel
c. Notes
i. Powell: two types of public figures
1. General notoriety/fame
2. Limited purpose when individuals voluntarily inject themselves into
particular public debate
4) Dun & Bradstreet v. Greenmoss Builders (1985)
a. Facts
i. Credit reporting agency wrongly reports bankruptcy application to contractor’s
potential client
b. Court
i. State interest in protecting reputation of individual is same as in Gertz, while 1A
interest is less because it is a nonmedia entity disclosing :/
ii. No protection for private publication of libelous material
5) Hustler v. Falwell (1988)
a. Facts
i. Fake interview with Falwell in Hustler
ii. Falwell sues for intentional infliction of emotional distress
b. Court
i. no way to separate this from political cartoons
ii. no separate standard for emotional distress
Nonnewsworthy disclosures of Private information
1) Cox Broadcasting v. Cohn (1975)
a. Facts
i. Father of girl sexually assaulted and killed sued radio station and reporter
b. Court
i. Prosecution of crime/trial falls squarely within public concern
ii. If info is in public domain, publisher can publish
2) Bartnicki v. Vopper (2001)
a. Facts
i. Someone illegally taps union boss; radio publishes
b. Court
i. 1A protects press that publishes third-party illegally obtained info
ii. Privacy concerns give way to matters of public interest
Commercial Advertising
1) Valentine v. Chrestensen (1942)
a. Case in which Court magically farts out lessened protection for commercial speech
2) VA State Board of Pharm v. Citizens Consumer Council (1976)
a. Facts
i. Statute forbids price advertisement by phramacists
b. Court (Blackmun)
3)
4)
5)
6)
7)
i. Alternative to paternalism: assume info is not harmful in itself and people will
perceive their own best interest if they are well enough informed, and price
signals are the way to do that
1. Nothing prevents the “professional” pharmacist from marketing his
better service
2. Court notes “special problems of electronic broadcast media” were not
before court; might be subject to different standard
c. Rehnquist dissenting
i. Derp
Bolger v. Youngs Drug Products (1983)
a. Facts
i. Pamphlets linked product (condoms) to public debate over
contraceptives/sexuality/etc
b. Court
i. Not enough to provide 1A protection
Bates v. State Bar of AZ (1977)
a. Court invalidates ban on lawyer advertising as applied to “DO you need a lawyer? Legal
services at reasonable fees
Linmark Associates v. township of Willingboro (1977)
a. Court invalidates ban on “for sale” or “sold” signs in front of houses to prevent “panic
selling” in racially integrated neighborhoods
Central Hudson Gas v. Public Service Commission of NY (1980)
a. Facts
i. Commission allows electric advertising, but not advertising calculated to
increase electricity usage (bc, the environment bro)
b. Court
i. Test for commercial speech
1. Not misleading and Concern lawful activity?
2. Is asserted gov interest “substantial”?
3. Does regulation directly advance gov interest?
4. Is it narrowly tailored?
ii. Analysis: first 3 = yes
iii. Holding: ban not constitutional because not narrowly tailored
1. Could have required advertisements to disclose effect on energy
expenditure instead of complete ban
c. Blackmun concurring
i. Nothing justifies suppressing info for gov’s stated interest: manipulating the
public into different behavior by restricting available information
d. Rehnquist dissenting
i. Derp
SUNY v. Fox (1989)
a. Court (Scalia)
8)
9)
10)
11)
i. Just requires a “fit” not narrow tailoring
Posadas de Puerto Rico Associates v. Tourism Co (1986)
a. Court (Rehnquist): More intrusive possible total ban on CONDUCT justifies less intrusive
restrictions on ADVERTISING that conduct
44 Liquormart v. RI (1996)
a. Facts
i. Statute banned any advertising whatsoever of price of liquor except price tags
not visible from the street
b. Court (stevens)
i. Special dangers that attend complete bans on truthful commercial speech
cannot be explained away by greater hardiness of commercial speech
ii. central Hudson analysis
1. Speech is not misleading
2. “Protecting” subjects from truthful information is not a substantial
government interest
a. OVERRULES POSADAS RULE of greater power including lesser
b. bans against truthful info rest on “offensive assumption” that
public will respond irrationally to the truth
3. Although consumption will be lower when prices are artificially inflated,
no evidence that they are substantially lower, so no reason to believe
this directly advances gov interest
4. Alternative forms of regulation that do not obstruct 1A interests as
much do, in fact, exist: directly raising prices, educational campaigns,
per capita purchase limits
Lorillard Tobacco v. Reilly (2001)
a. Facts
i. MA forbids tobacco product advertising within 1000 feet of school/playground
ii. Would prevent advertising in 87% of Boston
b. Court
i. Invalid even under Central Hudson
1. Adopts Scalia’s “reasonable fit” bs
2. 87% ban does not represent reasonable weighing of costs/benefits
3. Adults have interest in receiving info
ii. Places burden to show narrow tailoring on state; says state failed to meet it
c. Thomas concurring
i. You guys are retarded, there’s no distinction in 1A between “commercial” and
“noncommercial” no matter how badly you guys want there to be one
Thompson v. Western States Med Center (2002)
a. Facts
i. Congress exempted compounded (personalized) drugs from standard FDA
approval requirements but only if they refrained from advertising
b. Court
12)
13)
14)
15)
i. Asserted interest is need to permit compounded drugs without FDA approval
while still requiring it for commercial drugs, but this could be accomplished by
ban on commercially scaling personally compounded meds
1. Could also prohibit pharmacist from creating more of compounded
drugs than he’s already got orders for
ii. Slaps down dissent’s ignorant suggestion that the reg serves gov interest to
protect consumers from buying drugs they don’t needagain, paternalism
Sorrell v. IMS (2011)
a. Facts
i. Pharmacies sell prescriber (doc) info to data miners, who sell to pharmaceutical
co’s who give to their sales reps to help pitch pharmas to docs
b. Court (Kennedy)
i. Rejects commercial speech analysis because reg burdens disfavored speech by
disfavored speakers
1. States asserted interest in doc privacy doesn’t make sense bc info can
be divulged, just not by certain speakers for one specific purpose
(marketing)
ii. Fear that people would make disfavored decisions based on truthful info is not
legit state interest to trump 1A
Cincinnati v. Discovery network (1993)
a. Facts
i. City allowed commercial and noncommercial newsstands
ii. Tried to restrict commercial ones on theory that aesthetic preferences, even tho
insufficient to overcome protections for noncommercial speech, was
nevertheless sufficient to overcome speech interest for commercial speech
1. Every little bit helps street be cleaner looking
b. Court
i. Distinction between commercial and noncommercial speech MUST BE
RELEVANT FOR GOVERNMENT INTEREST IN REGULATING
1. Bc same interest applies to both commercial and noncommercial
newsstands, both are protectedthis affects the tailoring prong
c. Notes
i. Metromedia v. San Diego (1981) seems to contradict this outcome: billboard
ordinance for aesthetic and safety reasons was invalidated as to noncommercial
billboards but not as to commercial bc court was reluctant to second guess
legislative determinations about aesthetics. Note this was before Discovery
Network, so this approach has probably fallen out of favor with restoration of
1A
Zauderer v. Office of Disciplinary Counsel (1985)
a. Lawyer who deceptively advertised could be punished bc 1A protection for commercial
advertising is justified primarily by benefit to consumers
Glickman v. Wileman Brothers (1997)
a. Facts
i. Agricultural group forced all producers in Cali to pay to advertise cali fruit
b. Court
i. Totally cool because it doesn’t fund a “political or ideological message”
Obscenity
1) Roth v. US (1957)
a. Facts
i. Dude mails obscene materials
b. Court
i. Obscenity is not constitutionally protected speech; may be suppressed without
proof of clear and present danger
ii. Utterly without redeeming social value: Whether average person, applying
contemp community standards, the dominant theme of the material taken as a
whole appeals to prurient interest
c. Douglas and Black dissenting
i. No historical evidence that sex is unprotected
ii. 1A issues are not to be resolved by weighing “redeeming importance” against
societal value of expression
d. Notes
i. Even meiklejohn acknowledges that the people do need novels and dramas and
paintings and poems bc they will be called upon to vote
ii. Support of Roth: idea that only words that communicate ideas rather than
evoke sexual/prurient interest are the target of 1A concern
2) Butler v. Michigan (1957)
a. Invalidated law preventing sale of lewd material that might have deleterious influence
on youth
b. Court: state may not reduce the adult pop of Michigan to reading only what is fit for
children
3) Ginsburg v. NY(1968)
a. Court
i. State has more authority over kids than adults
ii. State can decide to “help” parents raise their kids
4) Redrup v. NY (1967)
a. Court begins tradition of per curium opinions reversing convictions for obscenity; citing
redrup with no analysis
5) Stanley v. GA (1969)
a. State cannot criminalize mere private possession of obscene material
b. State has no concern in the control of the moral ccontent of person’s thoughts
6) US v. Riedel (1971)
a. State CAN prohibit use of mails to deliver obscene material to someone who states they
are an adult
7) Miller v. CA (1973)
a. Facts
i. Mass mailing of advertisements for adult book
b. Court
i. Test for obscenity
1. Part 1
a. Average person
b. Contemporary community standards
c. Taken as whole, work appeals to prurient interest
2. Part 2
a. Work depicts/describes in patently offensive way sexual
conduct
b. Specifically defined by state law
3. Part 3
a. Taken as whole, work lacks SLAPS value
ii. First amendment limitations do not vary from state to state, but definition of
obscenity does
iii. Mailings are obscene; can be prohibited
c. Douglas dissenting
i. People should decide by constitutional amendment if they wanna ban
something as obscene; judges can’t decide what’s “patently offensive” and what
is not
d. Brennan dissenting
i. Statute is overbroad
8) Paris Adult Theatre I v. Slaton (1973)
a. Facts
i. Private showings of adult movies for consenting adults
ii. Sign if nude body offends, do not enter
b. Court
i. Legitimate state interest in stemming tide of commercialized obscenity
ii. Home is only elevated privacy right to view obscene material
9) Ashcroft v. ACLU (2002)
a. COPPA is not facially invalid just because sender of online material cannot control same
way as mail does; Thomas reasoned that internet is not sufficiently different from mails
10) Smith v. CA (1959)
a. Cannot hold bookseller strictly liable for all books not to be obscene bc then he has to
inspect every book he sells thereby limiting info available to public
11) NY v. Ferber (1982)
a. Facts
i. Adult bookstore owner sells vids of cp masturbation
b. Court
i. Cp related to abusecompelling interest
12)
13)
14)
15)
16)
ii. Selling of cp creates economic motive to create
iii. Interest in that speech is exceedingly minimal
c. O’Connor
i. State may restrict even cp with SLAPS value
d. Brennan
i. State may NOT restrict cp with SLAPS value
Ashcroft v. Free Speech Coalition
a. Fake cp
b. Court: no children harmed, no crime committed state cannot ban expression that
looks like a crime but is not
Osborne v. Ohio (1990)
a. Stanley’s protection of obscenity within home does not extend to cp greater harms
and all
US v. Williams
a. Court (Scalia): offers that use fake cp to trick buyers into thinking they are receiving real
cp are illegal bc no constitutional protection for offer to engage in illegal transaction,
even if transaction itself would actually be legal
US v. Stevens (2010)
a. Facts
i. Crush video statute
b. Court
i. “slight social value” statemetns in precedent just descriptive; no free-floating
balancing test to find new areas of unprotected speech
ii. Statute not narrowly tailored bc even hunting vids could be outlawed in
jurisdiction where hunting is outlawed like DC
iii. Difference from cp statutes: market for cp directly related to underlying
abuse we do not take animal cruelty as seriously bc mcdonalds
iv. Statute is thus overbroad
Brown v. Entertainment Merchants Association (2010)
a. Facts
i. Video game violence-based restrictions in CA
ii. Tried to save by adding exception for SLAPS value
b. Court
i. Disgust is not a valid basis for restricting expression
ii. Wildly underinclusive because lots of other childrens media fits the interactive
violence influence rationale
1. Raises questions about whether gov is actually pursuing stated interest
rather than disfavoring particular speaker or viewpoint
iii. While some leg effect may indeed support what some parents of the restricted
children actually want, entire effect is only in support of what the State thinks
parents ought to want. This is not the narrow tailoring that 1A rights require
The Lewd, Profane, and Indecent
1) Cohen v. CA (1971)
a. Facts
i. Fuck the draft
b. Court
i. Privacy interest in courthouse may be more than in a park, but not as much as in
the home
ii. People in the courthouse can avert their eyes
2) Erznoznik v. Jacksonville (1975)
a. Facts
i. Statute forbids display of lewd (not obscene) movies in drive in theater if screen
is visible from the street
b. Court
i. When government undertakes selectively to regulate some speech on grounds
that it is more offensive than others, it must by only when it intrudes on the
privacy of the home
ii. Passersby can avert their eyes
iii. Other things could distract motorists (violence, soaps, etc)
iv. Statute is unconstitutional
c. Rehnquist dissenting
i. Derp
3) FCC v. Pacifica (1978)
a. Facts
i. George Carlin
b. Court
i. Can regulate bc uniquely pervasive
ii. Privacy of home
c. Brennan dissenting
i. First, listeners can turn off the radio: their decision
ii. Second, this rule allows majoritarian sensibilities to overrule rights of other
listeners to receive so called “offensive” speech
4) Sable Comms v. FCC (1989)
a. Facts
i. Dial-a-porn services are protected by 1A
b. Court
i. More affirmative steps in dialing
ii. Less intrusive measures/technical means
5) Reno v. ACLU (1997)
a. Facts
i. Communications decency act prohibits indecent comm knowing recipient is
under 18 years of age
b. Court
i. Distinguish pacifica
1. Pacifica was post-hoc targeted at one specific broadcast, not generally
applicable restriction
2. Pacifica was a TPM restriction—when can indecent talk air
3. Pacifica was directed at a medium that history received most limited 1A
protection partially bc warnings cannot protect listener that tunes in
after warning
ii. Vague bc two different terms “indecent” and “patently offensive” are undefined
iii. Less restrictive alternatives exist
iv. CDA unconstitutional
6) Ashcroft v. ACLU (2004)
a. Facts
i. COPA bans posting indecent things that pander to prurient interest for profit
b. Court
i. Filters are a less restrictive means
ii. Gov failed to introduce evidence that filters are less effective
1. Note that this again places burden on gov to disprove all alternatives
iii. THE NEED FOR PARENTAL COOPERATION DOES NOT DISQUALIFY FILTERS
1. Gov can rely on private action to find less restrictive alternative
c. Notes
i. FCC v. Fox (2009)
1. Thomas calls Pacifica into question: didn’t make sense in 1978, and has
been outstripped by tech advances since then
7) Denver Area Educational Telecommunications Consortium (1996)
a. Facts
i. Cable Act of 84 required cable operators to keep 15% of space for commercial
lease to anyone who requested, but allowed them to deny indecent
programming (depicts sex acts or organs in patently offensive manner)
b. Court
i. Permissive nature of provision + viewpoint neutral application
c. Kennedy concurring
i. singles out only one kind of speech for private discrimination either
ii. Thus, strict scrutiny
iii. But this passes bc of compelling gov interest in protecting the children
8) US v. Playboy (2000)
a. Facts
i. Statute gave cable operators who provide sexually-oriented programming to
either fully scramble those channels, or provide only between 10 and 6
ii. Impossible to fully scramble, so they had to time channel it
b. Court
9)
10)
11)
12)
i. Less restrictive alternative: parental channel blocking
1. Gov argument that society’s interest is unserved if parents fail to act
does not hold up: “fixing” the decisions of those parents who would fail
to act to “protect” their children for them is not a compelling interest,
and protecting the children of those who would act does not count
because they would act anyway
Young v. American Mini-Theatres (1976)
a. Facts
i. Statute: adult bookstores can’t be within 1k feet of each other
b. Court
i. Innovative land use reg that only incidentally implicates 1A interests
ii. Test
1. Content limitation on creators or ability to make available to those who
desire
2. Restrict in any way viewing of movies by those who desire
iii. At most, impact is miniman
c. Stewart dissenting
i. Not a simple tpm or zoning ordinance
ii. 1A is concerned with selective interference
Renton v. Playtime Theatres (1986)
a. Facts
i. Statute prohibits adult theater within 1k feet of residential zone
b. Court
i. Ordinance is aimed not at content of films but secondary effects
ii. Thus, tested as content-neutral
iii. Constitutional
iv. Even tho it was underinclusive, content-neutral regs can be because city is
starting one piece at a time
LA v. Almeida books (2002)
a. Facts
i. Same as in Young
b. Court
i. Will be upheld if
1. Designed to serve substantial gov interest
2. Reasonable alternative avenues of communication remained
c. Kennedy concurring
i. Content neutrality of Renton was a fiction
ii. But it’s still constitutional bc even if they are content based, zoning context
provides built in legit rational which rebuts usual presumption that content
based are unconstitutional
Schad v. Borough of Mt Ephran
a. Can’t completely prohibit nude dancing
b. Maybe lesser protection under 1A than other things, but still somewhat protected
13) LaRue v. CA
a. Can regulate more when alcohol is involved bc 21 amendment
14) Barnes v. Glen Theatre
a. Can ban completely nude dancing if just requiring minimal clothing
Hate Speech And Porn
1) Beauharnais v. IL (1952)
a. Facts
i. Δ convicted of distributing publication that portrays depravity or lack of virtue in
class of citizens of any race, color, creed, religion
ii. Publication just charged african americans generally, no one in particular
b. Court (Frankfurter)
i. This is libel; outside of 1A protection
ii. This statute is different than outlawing criticism of a political party because
race/creed/etc are different than political parties. Or something.
c. Black and Douglas dissenting
i. Constitutionally recognized libel must be made against individuals, not groups
d. Notes
i. Bunch of arguments about group defamation at page 296
2) RAV v. Saint Paul (1992)
a. Facts
i. Dd charged under statute that makes it illegal to display symbol likely to evoke
"anger, alarm, or resentment" on basis of race/creed/religion
b. Court (Scalia)
i. Even "unprotected" areas are protected as to discrimination within that class
ii. Can't make distinction within legally proscribable speech that does not rest on
VERY REASON ENTIRE CLASS IS PROSCRIBABLE
iii. Another valid basis is a LAW AGAINST CONDUCT that INCIDENTALLY SWEEPS UP
SUBCATEGORY OF PROSCRIBABLE SPEECH
3) WI v. Mitchell (1993)
a. Facts
i. Black guy watches Mississippi Burning; beats white kid
ii. Sentence enhanced under hate crime enhancement
b. Court (Rehnquist)
i. This is same as Title VII, which RAV says is valid
ii. This is directed at conduct, and thus unprotected even tho it specifically targets
conduct based on point of view to punish more than same conduct on different
point of view
1. This is just wrong. You can't get around 1A by saying that those who
have disfavored POV get more punishment for other crimes even if
those crimes are related to their POV
2. Court tries to justify by saying it is singled out for same reason class is
protected under RAV (bc it is more likely to cause retaliatory harm)
a. But problem is, separating the conduct from the hate speech,
this is unlike the fighting words case because the conduct is
unprotected sure, but the opinion, which is the basis for
differential treatment, IS protected--> so the enhancement does
not single out a section of unprotected speech for special
disfavor at all--if it did, than the distinction between singling out
something for the same reason as speech is unprotected, or
singling out for a different reason--would become relevant. But
here, the statute singles out protected speech, and no amount
of added conduct can change that
4) VA v. Black (2003)
a. Facts
i. Va statute banned buring cross on property of another or public property wth
intent to intimidate
ii. Dd burned cross on another KKK member's property
iii. Relative of property owner overheard KKK say menacing things about blacks;
was scared
iv. Dd2 actually burned cross on his black neighbor's yard
b. Court
i. Ban on crossburning is constitutional even after RAV bc it does not distinguish
between messages behind a threat but symbols--> does not touch the 'WHY' or
'WHO' is intimidated. Only the symbol used to intimidate writ large
5) Sunstein four factors for low value speech
a. Far afield from central concern of effective popular control of public affairs (lawl nope)
b. Distinction between cognitive and noncognitive speech
c. Purpose is relevant: if speaker seeks to convey message, more 1A than incidentally
conveying
d. Judgment that in certain areas, gov less likely to regulate discriminatorily
Content-Neutral Restrictions: Limitations on the means of
communication and the problem of content neutrality
General principles
1) Schneider v. State (1939)
a. Facts
i. Ordinance said can't distribute pamphlets on street
ii. Dds distributed pamphlets on street
iii. Recipients throw pamphlets on ground
iv. Dds charged with (essentially) causing littering
b. Court
i. Street is natural/proper place to disseminate lit; if city wants to prevent litter
they should take it up with the people who actually litter
1. This implies valid state interest in preventing litter at least to overrule
dissemination by throwing things on the street
2) Martin v. City of Struthers (1943)
3)
4)
5)
6)
7)
a. Facts
i. JW door to door pamphlets
ii. Statute prohibited ringing doorbell to distribute handbills
b. Court
i. Door to door distribution of circulars is essential to the poorly financed causes
of little people
ii. Interest in privacy and property would support a ban on soliciting ONLY FOR
THOSE HOMEOWNERS WHO INDICATE NO SOLICITATION
Kovacs v. Cooper (1949)
a. Facts
i. Sound truck ban
b. Court
i. Freedom is not beyond all controlreal state interest in traffic safety, etc.
c. Black and Douglas dissenting
i. You could constitutionally label extreme abuses nuisances, but the ordinance is
just a blanket ban
Metromedia v. San Diego (1981)
a. Facts
i. Statute banned outdoor advertising signs
b. Court
i. Applies Test for content neutral from Struthers and Schnieder
1. Substantiality of gov interest asserted
2. Whether those interests could be served by less 1A intrusive means
ii. Interest in aesthetics fails substantiality prong bc industrial district; interest in
traffic safety is substantial but no evidence that it is even served by ban on
billboards
City of Ladue v. Gilleo (1994)
a. Facts
i. Statute prohibits homeowners from displaying signs to minimize visual clutter
b. Court
i. Lawl no
ii. Handheld signs/bumper stickers are not alternative means bc displaying sign
from ones residence conveys an especially powerful message
iii. ALSO SPECIAL RESPECT FOR INDIVIDUAL LIBERTY IN THE HOME
Bartnicki v. Vopper (2001)
a. Facts
i. Anonymous hero illegally videotapes union negotiations
ii. Δ plays it on air
b. Court
i. NOTE THAT THIS PITS ONE PERSON’S INTEREST IN PRIVACY AGAINST ANOTHER’S
IN SPEAKING
1. Original means of obtaining was legal
ii. Privacy concerns give way when balanced against publishing matters of public
importance
Boos v. Barry (1988)
a. Facts
i. Prohibits signs within 500 feet of foreign embassy
b. Court
i. Rejects argument that it is aimed at secondary effect of poor international
image
ii. unconstitutional
c. Brennan concurring
i. Secondary effects doctrine is crap; easily manipulated (some political parties
might draw larger crowds, creating more congestion, so the city may restrict
rallies by that party and claim secondary effect of traffic)
8) LA v. Almeida Books (2002)
a. Facts
i. Ordinance prohibits commercial newsracks on public property but not
noncommercial ones
b. Court
i. Can’t use secondary effects to only ban part of the problem: e.g., while
aesthetics are improved by even partial reduction in newsracks, the aesthetic
concern does not justify making a distinction not based on that concern
(commercial v. noncommercial) and using that to arbitrarily reduce clutter
c. Madsen v. Women’s Health Center (1994)
i. Injunction directed at specific abortion protesters is content neutral because
their past conduct in violating other orders—the fact that they happen to share
the same viewpoint does not impose 1A protection
Speech on Public Property: the Public Forum
Streets and Parks
1) Commonwealth v. Davis (1895)
a. Facts
i. Preacher convicted for holding church on public property
b. Court
i. 1A does not create right in citizen to use public property in defiance of laws of
state
2) Hague v. Cio (1939)
a. Facts
i. Forbids all public meetings in streets and places without permit
b. Court
i. Streets/parts have immemorially been held in trust for use of public and, time
out of mind, used for purposes of assembly/communicating
3) Schneider v. State (1939)
a. City interest in streets clean is insufficient to justify banning distribution of leaflets
b. Public forum
c. Cited as rejecting Davis
4) US v. Grace (1983)
a. Prohibited display of flags/banners designed to bring attention to org/party/movement
near SCOTUS
b. Public forum
c. Sidewalks are public forums, gov authority is very limited; strict scrutiny
5)
6)
7)
8)
9)
10)
i. Maintain order and decorumdo not need total ban to effect this concern
ii. Prevent appearance of bias in courtdoes not sufficiently serve interest
Grayned v. Rockford (1972)
a. Facts
i. Loud protest on Public sidewalk near school
b. Court
i. Public forum
ii. Cannot be off limits for expressive authority
iii. But antinoise ordinance is narrowly tailored to Rockford’s compelling interest in
distraction-free classrooms
Frisby v. Shultz (1988)
a. Facts
i. Prolife protestors picketed outside abort docs house ON STREET
ii. Law forbids picketing outside residence
b. Court
i. Public forum
ii. Narrowly tailored
1. Leaves open ample alternative means of communications
iii. “significant” interest
1. Preventing targeted protests against “captives trapped in their homes”
Clark v. Community for Creative Nonviolence (1983)
a. Court upholds ban on sleeping in parks by demonstrators dramatizing plight of homeless
b. Apparently served significant gov interest of maintaining park attractiveness by
preventing sleeping
Ward v. Rock against Racism (1989)
a. Facts
i. Statute requires use of city-provided sound equipment and techies
ii. Interest: desire to control noise level
b. Court
i. Constitutional because city has substantial interest in protecting citizens from
unwanted noise
Madsen v. Women’s Health Center (1994)
a. Facts
i. 36 foot buffer zone around abortion clinic
ii. Ban on protestors creating noise
b. Court
i. Buffer zone is reasonable way to provide access to clinic
ii. Noise ban is constitutional bc state has interest in limiting noise near med
facilities
iii. STRUCK DOWN: Ban on images observable from inside bc proper remedy was
clinic to close curtains
Schenck v. Pro-Choice Network of Western NY (1997)
11)
12)
13)
14)
15)
a. Facts
i. Protesters lay in parking lots blocking entrance to abortion clinic
b. Court
i. Fixed buffer zones around entrance are fine to allow access
ii. Floating ones around persons are unconstitutional bc prevent people from
communicating message
Hill v. CO (2000)
a. Facts
i. Statute banned approaching within 8 feet of person without person’s consent in
order to distribute handbill
b. Court
i. Constitutional because apparently people have “right” to be free from
“following and dogging”
ii. Also, no one has the right to force good ideas on unwilling recipient, and
approaching to distribute literature without first obtaining permission is the
same as forcing it on an unwilling recipient (wut?)
Cox v. NH (1941)
a. Court upholds mandatory licensing of parades because state interest in policing/safe
travel/prevent conflicting parades
b. Noted that licensing board did not have arbitrary power to deny
Watchtower Bible & Tract v. Village of Stratton (2002)
a. Licensing scheme for door-to-door distribution
b. Court
i. Unconstitutional
ii. State interests in privacy and fraud/crime prevention outweighed by interest in
anonymity for speakers AND administrative burden to speakers
Murdock v. PA (1943)
a. State can’t charge for use of public forum unless nominal fee to defray policing expenses
Forsyth County v. Nationalist Movement (1992)
a. Skokie tries to charge fee up to 1k for anticipated expenses for policing
b. Court:
i. Unconstitutional because discretion to impose greater licensing burden on more
minority/controversial speech
Other publicly owned property
1) Adderley v. FL (1966)
a. Facts
i. Students try to protest arrest of fellow student civil rights activist on jailhouse
grounds after being told to leave
b. Court
i. Jail grounds reserved for jail uses
2)
3)
4)
5)
6)
1. Note that we see more protection for authoritarian functions of
government
c. Douglas dissenting
i. Right to redress grievances demands that this particularly salient location be
available for 1A uses
ii. Should be allowed on any gov property so long as not significantly interfering
(e.g., noisy meeting in the statehouse)
Greer v. Spock (1976)
a. Facts
i. Protest banned on military base
b. Court
i. upholds ban of speech on military bases because “the State, no less than private
owner of property, has power to preserve property under its control for the use
to which it is lawfully dedicated”see Adderley above
ii. Again points to special authoritarian use
c. Brennan dissenting
i. Just because something isn’t a traditional public forum shouldn’t foreclose 1A
protections
ii. Speech in this case was basically compatible with activities occurring at base
Heffron v. ISKCON (1981)
a. Fairgrounds are not city streets which have immemorially been used for expressive
purposes
i. Street is continually open, often uncongested, and place where enjoy air and
friends in relaxed environment
ii. Fair is temporary and flow of traffic is more pressing demand
b. Brennan dissenting
i. Booth rule is overly restrictive relative to interest of traffic flow safety
USPS v. Greenburgh Civic Associations (1981)
a. Mailbox is not public forum; never has been
LA City Council v. Taxpayers for Vincent (1984)
a. Utility pole not a public forum; no traditional right
b. Aesthetic problems of signs on utility pole is undisputedly a significant substantive evil
i. Mere fact that gov property can be used for communication does not mean
constitution requires that use be permitted
c. Narrowly tailored for specific visual clutter problem
ISKCON v. Lee (1992)
a. Facts
i. Karishna people challenge ban on repetitive solicitation of money or sale of
merch/brochures
b. Court (Rehnquist)
i. Not public forum because air terminals arrived recently (lolwut?)
ii. Furthers interest in preventing crowds/people missing flights
c. Kennedy sort of concurring
i. Compatibility test: If physical characteristics and uses of gov property are
compatible with expression, then it is a public forum
ii. Ban on solicitation is reasonable TPM restriction, but ban on free flyer
distribution is not reasonable bc not drawn in narrow terms/does not leave
other ample alternative channels for comms
7) Marsh v. AL (1946)
a. When company opens town up to public it cannot ban JW from leafleting
≠ Content Neutrality and Unequal Access
1) Police Dept. of Chicago v. Mosley (1972)
a. Facts
i. Statute bans protesting during school in session, EXCEPT labor disputes
b. Court
i. Unconstitutional bc describes impermissible picketing not in terms of TPM, but
rather in terms of content
c. Notes
i. Reaffirms in Cary v. Brown (1980)
1. Statute banned picketing infront of residence except when residence is
place of employment involved in labor dispute
2. Court: indistinguishable from Mosley
2) Widmar v. Vincent (1981)
a. Facts
i. reg allowing use of university buildings for 100 student group meetings, but
NOT purposes of religious worship or teaching
b. Court
i. University created a forum generally open to public; even if it was not required
to open forum in first place, once it does, it must show narrow tailoring for
compelling state interest
3) Lehman v. Shaker Heights (1974)
a. Facts
i. Transit system sold ad space, but not to political candidates
b. Court
i. Gov engaged in commerce; gotta avoid appearance of favoritism
ii. Captive audience in transit system
c. Brennan dissenting
i. Captive audience concern has hollow ring bc they opened their system up to
advertising, much of which could be more controversial than other politics
ii. Even if it were possible to actually draw an unbiased line between
“controversial” and “uncontroversial,” still captive audience rationale is bogus:
RIDERS CAN JUST AVERT THEIR EYES
4) Perry Educators Association v. Perry Local Educators Association (1983)
5)
6)
7)
8)
9)
10)
a. Facts
i. Perry Township operates email system
ii. Gives union exclusive access to system pursuant to bargaining agreement
b. Court
i. Some occasional use by other orgs (YMCA) did not transform mail system into
limited public forum
ii. Even if it had, the other unions did not have the exclusive bargaining agreement
with the Township, so it’s apples and oranges
Cornelius v. NAACP (1985)
a. Distinctions among charities are constitutional: Court upholds exec order giving only
some charities right to raise funds in federal offices because:
i. CONTROL OVER ACCESS TO NONPUBLIC FORUM CAN BE BASED ON SUBJECT
MATTER AND SPEAKER SO LONG AS
1. DISTINCTIONS ARE REASONABLE IN LIGHT OF PURPOSE SERVED BY
FORUM AND
2. VIEWPOINT NEUTRAL
Ysursa v. Pcatello Ed Association (2009)
a. Court upholds payroll tax deduction for labor union activities, but not for the union’s
political activities because state has no obligation to subsidize exercise of 1A rights
Arkansas Educational Television Commission v. Forbes (1998)
a. Court
i. To create a designated public forum, gov must intend to make generally
available to a class of speakers
ii. Designated public forum not created where gov allows selective access for
individual speakers rather than general for class of speakers
iii. Restriction to high-polling candidates reasonable in light of purpose of forum
b. Note: court tests speaker based restrictions under reasonableness under purpose of
forum test like a viewpoint neutral restriction, but they aren’t really viewpoint neutral:
they have very viewpoint differential effect
US v. Kokinda (?)
a. Post office sidewalk not public forum bc doesn’t have characteristics of traditional public
forums
Lambs Chapel v. Moriches Union Free school district (?)
a. Facts
i. School permits after-school use of property, but not for religious purposes
b. Court
i. Accepts that limited/designated public forums characterization, but school’s
rule still failed because it was not viewpoint neutral because movies on same
topic would be allowed, but this one was banned bc religious take on topic
Rosenberger v. Rector and Visitors of UVA (1995)
a. Reaffirms lambs chapel; school proscription on student activities fund used for
publications that take religious viewpoint is unconstitutional bc viewpoint based
11) Good News Club v. Milford central School (2001)
a. School allowed other orgs to use school building after school, but not for Christian org
b. Court
i. Unconstitutional
ii. Club seeks to address issues otherwise permissible, only from religious
standpoint
12) Christian Legal Society Chapter v. Martinez (2010)
a. Facts
i. CLS tries to get RSO status to use of school funds/facilities/etc
ii. RSOs must not discriminate members on basis of
race/religion/gender/orientation
b. Court
i. RSOs are limited purpose public forum
ii. Reg is viewpoint neutral bc it requires all groups to allow all comers to join—
that is all inclusive
≠ Government Speech and Unequal Access
1) Southeastern Promotions v. Conrad (1975)
a. Facts
i. Producer tries to show play “Hairspray” in community theatre
ii. City denies permit bc nudity
b. Court
i. This is a prior restraint
1. city forced those who wanted forum to apply to licensing board, which
would review their speech and decide based on that
ii. no safeguards, so unconstitutional
c. Douglas dissenting
i. Theatre is no less public forum than streets/parks
2) Board of Ed Island Trees Union v. Pico (1982)
a. Facts
i. School library removes books from library that conservative group named
“objectionable”
b. Court
i. Whether this action is unconstitutional DEPENDS ON MOTIVATION OF SCHOOL
in removing books
ii. If they intended to remove IDEAS from library then unconstitutional
iii. They intended to remove ideas (bc they got list from the conservative groups)
so unconstitutional
3) Regan v. Taxation with Representation (1983)
a. Facts
i. Statute removed tax-deductible status of lobbying orgs unless it was veterans
lobbying org
4)
5)
6)
7)
8)
b. Court
i. Not a 1A problem because government can selectively target speech for
subsidies
ii. Veterans orgs are subsidized regardless of the content of their speech
Rust v. Sullivan (1991)
a. Facts
i. Docs who take Title X funds cannot talk about abortion during Title X funded
activities
b. Court
i. Gov can make a value judgment and selectively fund childbirth but not abortion
ii. Gov can define limits of program
c. Notes
i. Difference with Rosenberger (Christian groups must be permitted to use
facilities if everyone else can)
1. There is distinction between gov creating a forum (rosenberger) and gov
pursuing its own policy--in the latter case, gov can selectively fund its
priorities to accomplish its objective
National Endowment for the Arts v. Finley (1998)
d. Facts
i. Congress requires NEA to ensure that funded projects respect diverse beliefs of
Americans (i.e., not "Piss Christ")
e. Court
i. Gov must decide between way more applications than funding, and can add
cultural respect as consideration of grantmaking
Legal Services Corp v. Velazquez (2001)
f. Facts
i. Statute prohibits gov funded attorneys from challenging
legality/constitutionality of existing welfare laws
g. Court
i. Unconstitutional because, unlike Rust, LSC program was created to facilitate
private speech (private low income advocacy groups receive funding). In Rust,
by contrast, gov was trying to convey information about its program through
the doctors involved
Pleasant Grove v. Summum (2009)
h. Facts
i. Cult tries to donate monument to park to match other 10 commandments
monument
i. Court
i. City was engaging in its own speech, not providing a forum, because CAN ONLY
SUPPORT LIMITED NUMBER OF "EXPRESSIONS" so permanent monument
becomes gov speech
ii. Because gov would have to destroy all speech if it were a public forum so as to
not discriminate, it must not be a public forum :/
US v. American Library Association (2003)
j. Gov can impose internet filter requirements (CIPA) on libraries that recieve public funds
bc totality of information has never been purpose of library; instead, there is limited
amount of high value info that they can provide
k. Dissent
i. Statute is overkill bc
1. Technical reality is that it will also block some innocuous content
2. Statute could have just required separate terminals for children with
more blocking, less for adults
Symbolic Conduct
9) US v. O'Brien (1968)
l. Facts
i. Burns draft card
m. Court
i. TEST FOR INCIDENTAL RESTRICTIONS WHEN DEALING WITH NONSPEECH
ELEMENTS
1. Within constitutional power of gov
2. Advance an important gov interest
3. Gov interest is unrelated to free expression
4. Restriction is no greater than essential to advance gov interest
ii. SS requirement is substantial gov interest (verify registration, reminder, keep
info handy)
10) Schacht v. US (1970)
n. Prohibition on using gov uniform in plays only when those plays discredit US military is
unconstitutional
11) Street v. NY (1969)
o. Unconstitutional to punish someone under statute that criminalizes burning flag
p. "We don't need no damn American flag"
12) Smith v. Goguen (1975)
q. Statute banning contemptuous treatment of flag was vague bc it could apply to any
clothing with flag on it--a common design
r. Even tho dd probably was being contemptuous, law is still unconstitutional
13) Spence v. Washington (1974)
s. Facts
i. Dd displays flag with tape peace sign on it
t. Court
i. This law is directly related to expression involving US flag--> NO O'BRIEN TEST
(SEE PRONG 3), AUTO INVALID
14) TX v. Johnson (1989)
u. Facts
i. Protesters burn flag outside R convention
v. Court
i. Flag desecration statutes, as justified by "interest in national unity" or
"preserving character of flag" are unconstitutional bc gov interest is thereby
related to expression
15) US v. Eichman (1990)
w. Nope, still can't burn flag
16) Barnes v. Glen Theatre (1991)
x. Facts
i. Nude dancing clubs
y. Court
17)
18)
19)
20)
21)
i. Applies O'Brien
1. Ban for moral reasons within state police power
2. gov interest in "health/safety/morals" is substantial
3. Ban on nudity exists for reasons unrelated to whatever expression is in
nude dancing
4. Ban on nudity is tailored to address nudity
ii. Constitutional
z. White dissenting
i. This is related to expressive activity because gov interest as applied to nude
dancing is not general protection of nonconsenting adults in streets andparks,
but consenting adults in private property
ii. Thus, what state seeks to prevent in this case is the expression among
consenting adults that nude dancing conveys
iii. Alternatively, if gov sticks with it's above interest, statute is more restrictive
than necessary, failing last prong, bc gov could create exemption for consenting
adults
City of Erie v. Pap's AM (2000)
aa. Even where gov specifically declares it bans nudity for secondary effects of nude clubs,
those secondary effects are sufficient to support ban
bb. Court (O'Connor)
i. Difference between nude and G-string is de minimus in terms of expression
(ORLY?)
cc. Stevens dissenting
i. Secondary effects cannot justify outright ban
ii. Incidental burden (as in Barnes) could support total ban but is precluded by
preamble stipulating that the law is aimed at expression
1. This doesn't seem right--yes, preamble concerned with effects of nude
dancing specifically, not other nudity, but could still believe that special
related harms attend nude dancing as opposed to other nudity
NAACP v. Claiborne Hardware (1982)
dd. Ban on boycotts unconstitutional bc aimed at expression
ee. Speech does not lose protected character simply bc might coerce others to action
ff. Note: But see International Longshore Association v. Allied International (1982)
i. Union's refusal to work on cargo headed to Soviet Union could be punished bc it
is conduct
ii. Bs
Rumsfeld v. Fair (2006)
gg. Ban onLaw school's exclusion of military for discrimination was constitutional bc the
conduct of excluding them from campus is not inherently expressive
hh. If explanatory speech is needed, conduct is not inherently expressive
Doe v. Reed (2010)
ii. Signing petition is speech
jj. Scalia-->not speech but legislative act
Nevada Commission on Ethics v. Carrigan (2011)
kk. Legislative vote is not speech bc apportionment of legislative power of state belongs to
people, not legislator
Political Solicitation, Contribution, and Expenditure
1) Buckley v. Valeo (1976)
a. Facts
i. Federal Election Campaign Act limited
1. Individual Expenditures on behalf of a candidate
2. Individual contributions to candidate
3. Disclosure requirements for contributions and expenditures
b. Court
i. Dependence of speech on money does not operate to remove 1A protection
ii. Would not meet O’Brien test even if expenditure of money were conduct bc
government interest is specifically aiming to suppress expression (the related
speech enabled by the “conduct” of money expenditures on behalf of
candidate)
1. In O’Brien, Selective Service System’s interest in preserving draft cards
was wholly unrelated to their use as means of expression. Here, it is
precisely the expression enabled by the money that gov seeks to limit
iii. Quantity limitations for the sake of “equalizing” speech are not the same as
TPM restrictions which can be justified by reference to unrelated interests
iv. Difference between expenditure and contribution limits
1. Expenditure bans ALL modes of speech
2. Contribution limitations only limit one means-giving to candidates
v. The expressiveness inherent in giving funds can be expressed by limited
contribution as well as unlimited one
1. The fact that the CANDIDATE can then use the money to engage in
speech does not count because he is a third-party actor
vi. Contribution limits
1. Rigorous standard of review bc freedom of association implicated
a. Substantial interest = avoid appearance of corruption
b. Tailoring = can’t accomplish any other way; bribery laws only
ban most egregious exchanges of money for favors
vii. Individual Expenditure limits
1. Does not serve gov interest bc underinclusive relative to interest in
reducing large expenditures (can still spend without mentioning
candidate) and overinclusive bc expenditures that it limits—those not
mentioning a specific candidate—are less likely to be quid pro quo bc
lower value to candidate
a. Note that these two justifications seem in conflictwhy would
it be underinclusive per point 1 if, per point 2, it limits precisely
those contributions (that mention candidate) that are most
likely to be quid pro quos
2)
3)
4)
5)
6)
2. Also, interest in suppressing some views to enhance relative voice of
others is wholly foreign to 1A
viii. Gov can’t limit candidate’s personal expenditures bc suppressing some views to
enhance relative voice of others is wholly foreign to 1A
ix. Gov can’t limit campaign expenditures bc interest in equalization is wholly
foreign to 1A; interest in alleviating corrupting influence of large contributions is
already served by contribution limitation
c. Burger concurring/dissenting
i. Contributions communicate a political idea same as expenditures, regardless of
whether the individual or the candidate “utters the words”
d. White concurring/dissenting
i. Well hey, just trust the government because they know best about corruption
ii. Argues that money is not speech bc then any tax/fin reg violates 1A
1. This seems wrong bc it’s not the fact that it affects money, it’s the fact
that the money was utilized for speech. Paint regulations are not 1A
violations, but regulations on what symbols can be painted are
iii. Legit gov interest in eradicating corruption
e. Marshall concurring/dissenting
i. Legit gov interest in appearance of corruption
f. Brennan
i. No principled distinction between expenditures and contributions (See Burger)
g. Notes
i. Court upholds equalization subsidies bc they are subsidies not restrictions
Nixon v. Shrink Missouri Government PAC (2000)
a. The 1k limit in Buckley was not a constitutional minimum; instead, test is whether limit
is so low as to impede ability of canddiates to amass resources necessary for effective
advocacy
Randall v. Sorrell (2006)
a. Facts
i. VT statute limits contributions to gov at 200
b. Court
i. Limit is so low as to arouse suspicion that motivation is not to prevent
corruption—limit could be higher without influencing legislators
CO Republican Federal Campaign Committee v. FEC –Colorado I (1996)
a. Gov can’t preclude expenditures of political party on behalf of own candidate for same
reasons as Buckley
CO Republican Federal Campaign Committee v. FEC –Colorado II (2002)
a. Party’s coordinated expenditures with candidate are contributions; can be limited
McConnell v. FEC (2003)
a. Court
i. BCRA limits “soft money” donations to state party committees—money not
subject to Buckley limits because they are committees not candidates
ii. Even tho party committees can’t coordinate with candidates any more than
individuals can, the state has an anticorruption interest in censoring/limiting
contributions to party committees as well as candidates
1. Apparently it’s an equally minimal restraint as contribution limits
2. Unlike general expenditure limits, contributions specifically to
committees for specific purposes close off only one avenue of speech
b. Kennedy dissenting
i. This court’s redefinition of corruption from actual quid pro quo arrangements to
anything that might engender goodwill of congress strips gov interest of
meaning/renders it insubstantial
c. Thomas dissenting
i. This never-ending chain of “circumvention” by people structuring monetary
expression to comply with the law cannot continually give rise to gov’s
“appearance of corruption” rationale. We bought that for direct contributions.
Thus far and no further
7) Davis v. FEC (2008)
a. Facts
i. If Candidate A spends more than 350K personal money, Candidate B gets
matching funds up to 3 times as much in individual contributions than otherwise
allowed from donors (1k per person cap becomes 3k)
b. Court
i. This forces Candidate A to choose between robustly exercising right to speak
from own money, and being subjected to discriminatory contribution ground
rules
1. Must be justified by compelling gov interest
ii. Equalizing speech is not legit gov interest
1. Dangerous business to allow congress to determine which personal
advantages possessed by a candidate may contribute to that
candidate’s campaign (wealth/supporters’ wealth/family name/etc)
iii. “fixing” the effects of the disparate treatment of expenditures and contributions
by Buckley is not a compelling interest
1. If campaign limits are not needed to fight corruption (as evidenced by
willingness to raise them for Candidate B), but are making it harder for
nonwealthy candidates to raise funds, the less speech-restrictive
remedy is to raise or eliminate the limits on contributions from Buckley
c. Ginsburg dissenting
i. Equalizing speech (“reducing influence of wealth in outcome of elections”) is
compelling interest
1. But even McConnell only indicated that this is a substantial or important
interest, not compelling as required to justify serious infringement on
1A rights
d. Notes
i. CRITICAL DIFFERENCE BETWEEN VIEWPOINT NEUTRAL GOV SPEECH/SUBSIDY:
SUBSIDY GIVES GOV FUNDS, RAISING CONTRIB CAP DIRECTLY OPERATES AS GOV
HANDICAP ON SPEECH
8) Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011)
a. Facts
i. AZ statute created grant of public funds to candidates who forgo privateand
self-financing
ii. Public matching funds for every $ in excess of initial public grant that privatelyfunded candidate raises in excess of initial public grant to publicly funded
candidate. Matching funds are in amount up to two times initial allotment
b. Court
i. This burden is worse than the one in Davis
1. In Davis, contribution limits were raised as “equalization” method, but
candidate would still have to go out and raise the funds—here,
opponent’s privately-funded expenditure automatically triggers release
of public funds
2. Unlike in Davis, All of this is out of Privately-funded opponent’s hands:
even if he spends less than limit, outside expenditures could trigger the
penalty
a. This argument is persuasive because the independent
expenditures on behalf of privately-funded candidate—which
cannot be coordinated—trigger subsidies for publicly funded
candidate that are directly under publicly funded candidate’s
control
b. Question then becomes: Is advantageous subsidy the same as
advantageous campaign contribution rules? I don’t think so.
Gov has much more discretion to discriminate in subsidies than
in limiting speech (via contrib limits)
c. BUT does fact that privately-funded candidate may suppress his
speech so as to not trigger matching funds change that analysis?
Incenting a candidate to self-censor?
d. I don’t think the above changes the analysis. Up to the limit,
privately-funded candidate is already just playing catch-up to
publicly funded candidate’s initial grant amount Nothing
changes when he hits that limit—if she stops beforehand, public
candidate has cash advantage; if she stops at some point
afterwards, both parties have same amount of expenditures
(even tho public candidate has more money over her
expenditures whereas uncoordinated third-party expenditures
count towards private candidate’s limit—but this was already
the case before limit; public candidate had direct control over
public funding grant while private candidate was already having
those independent uncoordinated funds counted against her
3. What about independent uncoordinated expenditures on behalf of
publicly-funded candidate? Are they even counted or is that a further
advantage?
4. At the end of the day, privately funded candidate does not face any
additional contribution limits relative to the publicly funded candidate,
and privately-funded candidate gets the opportunity to spend unlimited
amounts, while publicly-funded candidate is capped at 2X initial
allotment
ii. Takes into consideration that AZ already has stringent contribution limits and
disclosure requirements; marginal benefit to reducing corruption/appearance is
minimal
c. Kagan dissenting
i. Case after case, we have distinguished between speech restrictions and
(viewpoint-neutral) speech subsidies
9) First National Bank of Boston v. Bellotti (1979)
a. Facts
i. MA statute bans corporations from participating in elections/issues not
materially affecting the corporation; no issues only affecting taxation/etc of
individuals can possibly “affect” corps.
b. Court
i. Question is not whether corp has 1A rights, but whether statute burdens speech
1A is supposed to protect
ii. This speech (re: political elections) lies at core of 1A protection
iii. No indication that speech loses protection just cuz speaker is corp
c. White dissenting
i. Self-fulfillment rationale: doesn’t apply to corps bc no self
ii. This is not the interest in equalizing speech that was discounted in Buckley, but
rather an interest in removing special advantage given to corps under tax law—
restoring “natural” balance of speech
10) Austin v. MI Chamber (1990)
a. Facts
i. MI prohibited corps from contributing via general treasury funds; instead had to
have segregated political fund
b. Court
i. Segregated funds requirement is constitutional because
1. Compelling gov interest: removing special advantages given in law to
corps (limited liability, perpetual life, etc) allows them to amass wealth
a. Wealth reflects those advantages, NOT popular agreement with
corp’s political stance
2. Narrow tailoring: precisely removes this advantage bc it removes ability
of corp to use the wealth amassed via special advantages, and ensures
that the separate fund accurately reflects those who actually agree with
corp’s political stance
c. Scalia dissenting
i. Tons of groups or individuals get special case treatment
ii. It is rudimentary that the state cannot exact as a price of those special
advantages the forfeiture of 1A rights
iii. Therefore, one cannot count special advantages in amassing wealth, and all one
is left with to differentiate corp from other speakers is greater wealth
1. But this can’t justify 1A restrictions unless it would also be ok to restrict
1A rights of wealthy individuals just bc they are wealthy
2. Wealthy individuals’ expenditures also do not indicate popular support
d. Kennedy
i. PAC is not acceptable alternative means—between 25 and 50% of PAC funds are
spent simply administering PAC
ii. Moreover, company itself cannot contribute funds, but only direct
expenditure—(note: this seems to reflect unconstitutional ban on self-funding
campaigns in Buckley)—this debases corp voices; not acceptable alternative
11) FEC v. Beaumont (2003)
a. Facts
i. (same as above) Statute prohibited corps from contributing via general treasury
funds; instead had to have segregated political fund
ii. Nonprofit advocacy group (NC Right to Life) challenges as applied to nonprofts
b. Court
i. Upholds on same principle as above
1. Nonprofits enjoy special legal advantages
ii. Restrictions on political contributions are only marginal infringements on 1A
rights (citing Buckley)
1. But this ignores primary facet of contributions analysis in Buckley:
restricted parties could still make contributions to establish that they
support the candidate/show of support
2. This statute completely BANS ALL contributions directly from Corp
12) McConnell v. FEC (2003)
a. Court
i. Ban on ISSUE advocacy that mentions candidates (not just candidate advocacy)
is constitutional bc 1A does not erect a rigid barrier between express advocacy
and issue advocacy in this context
1. Ban on express advocacy can be gamed by ads that cause audience to
read between the lines
b. Scalia dissenting
i. Premise of 1A is that Americans are neither sheep nor fools, and hence fully
capable of considering both substance and source of speech—if this premise is
false, we have bigger problems than influence of amassed wealth
13) FEC v. Wisconsin Right to Life (2007)
a. Facts
i. WTRL violated BCRA § 203 (ban on issue advocacy that mentions candidate)
ii. Aired ad urging voters to call Feingold and oppose filibuster of Bush appointee
b. Court (Roberts)
i. McConnell only held § 203 constitutional as applied to ads that were the
functional equivalent of express campaign speech; WTRL ad was clearly an issue
ad
1. In drawing line, 1A requires court to err on side of free speech
2. TEST: only if ad is susceptible to no other interpretation than an appeal
to vote for or against specific candidate
3. § 203 IS susceptible to other interpretation, so it is not regulated by
McConnell, and we do not have precedent as to whether gov interest in
avoiding corruption specifically from genuine issue advocacy is
compelling
ii. Anticorruption interest has already been stretched beyond what is acceptable
for regulating individuals in context of corps (individuals CAN urge vote for
identifiable candidates, corps CANNOT); enough is enough. Court will not
further extend the stretch of that interest to genuine issue advocacy by corps
c. Scalia dissenting
i. Entire McConnell regime (permitting bans on express advocacy by corps) is a
failure; should overturn
14) Citizens United v. FEC (2010)
a. Facts
i. Ban on general treasury funds to make independent expenditures expressly
advocating an identifiable candidate
b. Court (Kennedy)
i. OVERRULES AUSTIN & MCCONNELL
1. Both were premised on new gov interest: antidistortion interest (e.g.,
the idea that special advantages to corps justify special 1A
infringements)
a. Note that antidistortion is different than anticorruption
2. At the end of the day tho, antidistortion seeks to equalize speech—
regardless of the merits of its concern with special treatment
ii. Speech restrictions on identity of speaker are all too often simply a means to
control content
c. Roberts concurring
i. I luv stare decisis, for realz. But seriously, Austin sucked
d. Scalia concurring
i. Founders distrust of corps do not remove 1A protections for them, sorry
e. Stevens dissenting
i. Identity-based distinctions have been upheld
1. Maybe. But those likely had reasons not related to believing that a
certain class of speech might be too effective, and thus should be
silenced
2. Also, Bellotti explicitly held that corps don’t lose 1A rights solely bc their
identity as corps
ii. Corps have long been banned from direct contributions
1. Well maybe this should be overruled too (remember, rationale for
contribs as speech includes (perhaps primarily) the statement that “I
support candidate x enough to give my own money”)—but even if not
overruled, it is clear that direct contribs pose special problems, and
their bans are significantly less intrusive than expenditure bans
(Buckley)
15) Buckley v. American Constitutional Law Foundation (1999)
a. State can’t prohibit paying petition circulators
16) Brown v. Hartlage (1982)
a. State can prohibit legislator candidate from actually buying votes, but not from policy
statements that would benefit voters (e.g., lower taxes)
17) Republican Marty of MN v. White (2002)
a. State can’t forbid judges in election race from making statements on issues that might
come before them
b. Lots of pressures from past statements (e.g., classes, previous opinions, interviews,
books, etc.) could theoretically render a judge less willing to accept a certain viewpoint
Other Means of Expression: Litigation, Association, and Right not to Speak
1) NAACP v. AL (1958)
a. Facts
i. During lawsuit, state moves to compel NAACP to disclose member list
ii. NAACP previous membership disclosures had resulted in bad things for
members
b. Court
i. Hardly novel concept that compelled disclosure of association can be an
effective restraint on freedom of association
2) Roberts v. Jaycees (1984)
a. Facts
i. MN Human Rights Act prohibits discrimination on sex
ii. Jaycees is a young men’s association…
b. Court
i. Freedom of association exists to facilitate effective exercise of other rights
guaranteed in 1A
3)
4)
5)
6)
ii. Forcing group to accept members it does not want is clearly infringement on 1A
iii. Strict scrutiny
1. Compelling state interest (must be unrelated to expression): eradicating
discrimination
a. Jaycees do not argue it infringes expression
2. Narrow tailoring: (?)
Rotary International v. Rotary Club of Duarte (1987)
a. Reaffirms that burden is on citizen/association to show that admitting other members
would change expression, not on government to show that it wouldn’t
CA Dem Party v. Jones (2000)
a. State cannot force political party to allow members of opposing party to vote in
primaries
b. FREEDOM OF ASSOCIATION IS AN EMPTY GUARANTEE IF ASSOCIATIONS CAN’T LIMIT
CONTROL OVER DECISIONS TO THOSE WHO SHARE INTERESTS AND PERSUASIONS THAT
UNDERLIE ASSOCIATION’S BEING
Dallas v. Stanglin (1989)
a. Dance halls get no protection bc teenagers apparently do not go there to express
themselves in 1A sense
Boy Scouts of America v. Dale (2000)
a. Facts
i. Gay dude has scoutmaster position revoked bc gay
b. Court
i. Boy scouts engage in expressive activity bc mission is to instill values
1. Can be by example
ii. Must give deference to association’s assessment of what would impair
expression
iii. Not every member of group need agree for group to express view on something
iv. Group need not associate “for purpose” of disseminating a particular message
for that message to receive protection
c. Stevens dissenting
i. Boy scouts have 1M members… surely the fact that 1 is gay does not send a
message
1. Um… if they know and do nothing about it, the message is that they
don’t care or have changed their view—maybe a good thing, but it
sends a message nonetheless. Lack of a policy where a belief would
indicate that a policy would naturally be present will raise questions—
and conveying ideas, including questions, is core 1A protected speech
d. Notes
i. Epstein: 1A says gov has no interest in interfering with ANY org that doesn’t
have monopoly power to demand they accept other members
Right Not to Speak
1) PruneYard Shopping Center v. Robins (1980)
a. Facts
i. Mall prohibits expressive activity
b. Court
i. Open to public
ii. Views by protesters/pamphleteers unlikely to be confused with those of owner
iii. No specific message dictated by state
iv. Owner can post signs disavowing
2) WV State Board of Ed v. Barnette (1943)
a. Forced to salute flag and say pledge of allegiance
b. If there is any fixed star in our constitutional constellation, it is that no official, high or
petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other
matters of opinion or force citizens to confess by word or act their faith therein
3) Wooley v. Maynard (1977)
a. Facts
i. family covers up “live free or die” on license plate because they enjoy being
mindless drone sheep
b. court
i. state’s interest in history/individualism/state pride is not ideologically neutral
ii. state’s interest in disseminating an ideology cannot outweigh individuals 1A
right to avoid becoming courier for that message
c. Rehnquist dissenting
i. For 1A to be implicated, state must put citizen in position of actually
representing statement as true
4) Hurley v. Irish-American GLIB Group of Boston (1995)
a. Facts
i. City gives group permission to run parade
ii. Parade organizers refuse to give place in parade to GLIB
iii. MA statute banned sexual orientation discrimination in places of public
accommodation
b. Court
i. Every participating unit affects message conveyed by private organizers
ii. Speaker has autonomy to choose own message
5) Rumsfeld v. FAIR (2006)
a. Facts
i. Law schools sue to enjoin Solomon Amendment, which removed funding for any
schools that don’t let military recruiters on campus
b. Court
i. Would be question of unconstitutional conditions (did not reach)
ii. BUT gov could constitutionally require universities to give military recruiters
access
iii. Law schools not speaking when they host employers
iv. Distinction with Dale is that Recruiters are not actually becoming “members” of
law school same way a scoutmaster is a member of the scouts
c. Note
i. Side note: what is the deal with the idea that Policies are not speech?? They
certainly are, in that they convey a message and shape the perception of an
institution (and perhaps, an idea) among the general public
6) Abood v. Detroit Board of Ed (1977)
a. required union dues for fed employers could only go to “germane” collective bargaining
activities, not political lobbying
7) University of WI System v. Southworth (2000)
a. Facts
i. UWI forced students to pay activities fee allocated to RSOs with various views
b. Court
i. While in Abood, required union dues for fed employers could only go to
“germane” collective bargaining activities, here, for a university that fosters
ideas, ALL ideas are germane, and court will not define which should be
excluded