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CONTENT-BASED RESTRICTIONS
1.
ADVOCACY OF UNLAWFUL CONDUCT
Factors: (1) clarity/probability; (2) imminence/presence; (3) degree of harm; (4) intent; (5) express words
Applied through Test Evolution
a. Bad Tendency (Shaffer) – book that was intended to obstruct the draft; people presumed to intend
natural/probable consequences of their actions
b. Express Incitement (Masses) – postmaster refused to delivery revolutionary journal; Learned Hand’s per se rule
focusing on conduct rather than consequences
c. CPD-BT Test (Schenck) – circulated document intending to obstruct the draft; prohibits speech if, under certain
circumstances, it created a CPD *test can fluctuate in war times
d. CPD (Abrams dissent by Holmes) – D had no intent to obstruct war against Germany; intent should mean
purpose
e. BT State Reasonableness (Gitlow) – manifesto calling for social disruption; if state makes reasonable judgment
to regulate bad tendency speech, court will defer to their judgment
J. Holmes in dissent reiterates CPD test bc “Every idea can be an incitement”
f. CPD Balancing (Dennis) – at some point danger is high enough for regulation;
Jackson concurring – constitution is not a suicide pact and it should not apply to well-organized conspiracies
Black dissenting – CPD should be tougher, no one is listening to communists in the U.S., so no CPD here
g. CURRENT TEST – Bradenburg (1969) – Advocacy directed to inciting or producing imminent lawless
actions, and is likely to incite or produce such action
 Must be imminent – not “take the streets later” (Hess)
 Must have intent – not political hyperbole or exaggerated hot heads’ statements – “I’ll break the neck of
anyone who goes to boycotted store (Clairborne)
 Criminal speech excluded – (Rice – hit man book – intended audience & audience size is impt.)
2.
SPEECH THAT PROVOKES AUDIENCE REACTION
- Bradenburg does not specifically apply to Hostile Audience Reaction or Fighting words because it is limited to
advocacy of unlawful action
- Court treats Hostile Audience Response and Fighting words separately – fighting words are directed at individuals/small
groups usually face-to-face
Factors: (1) probability; (2) presence/imminence (riling up crowd/person); (3) intent; (4) express words
a.
b.
c.
Fighting Words - Chaplinsky (1942) – Jehovah’s Witness called City Marshall a fascist. Court set forth high/low
balancing – 2 tiers of protected and unprotected categories and ruled that D’s fighting words were unprotected so
no need to apply CPD bc no 1A protection
i. Stevens (2010) – ruled this balancing was performed by looking to historical traditions
Hostile Audience Response - Feiner - CPD applied to street corner speech calling mayor a champagne sipping
bum. Court found motivation for arrest was public safety. Black’s dissent disagreed and said police should have
tried to control the audience man who made the threat. *never overruled but cases now look more like dissent
 Stirring to anger is not enough – angering audience by calling them snakes was not actual incitement to
violence (Terminello)
 Offensive language is not sufficient, if no CPD – phonograph attacking religion caused no CPD by
offending hearers (Cantwell)
CPD language disappeared: (Far Cry from Feiner cases)
 Generalized fears insufficient – i.e. Edwards – no speaker or crowd express threat of violence and adequate
police pressure
 Crowd control required when the police have the physical ability to control an angry crowd to prevent
violence – i.e. Cox – no threatened violence and police could’ve handled the crowd & Gregory (looks like
Black’s Feiner dissent) – emphasized police duty to protect speakers and dismantle Heckler’s veto (incentive for
onlookers who dislike speaker’s words to shut it down with riots/threats of violence)
 Permit fee based on need for police presence is unconstitutional bc unpopular views/speakers would have to
pay more (Forsythe).
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3.
TRUE THREATS – speaker means to communicate a serious expression of intent to commit an unlawful, violent act to a
particular individual or group
 Doesn’t need to be executed
 Must have intent (Reasonableness standard) – Planned Parenthood – abortion doctor wanted ads were threats
 Court usually excludes metaphor/exaggeration/political hyperbole – “If they ever make me carry a rifle, the first
person I want in my sights is LBJ,” crowd laughed, Court ruled this was political hyperbole
4.
ILLEGAL TRANSACTIONS EXCLUDED - Pure criminal speech is not protected (Rice)
Williams – virtual and actual porn banned. Supreme Court upheld ban because speech was an offer to engage in an illegal
transaction – real or virtual speech is unprotected bc offers to give/receive what is unlawful to possess receive no 1A
protection
5.
HATE SPEECH –triggers SS
**Regina - Canadian Supreme Court recognized that hate speech is not protected and used the very same policies the U.S.
uses to protect it, to allow it to be prohibited/regulated.
-- Beauharnais – Il had history of racial conflict, so court deferred to their judgment to ban libel; This was doctrinally
invalidated by NY v. Times which shrunk the box to protect political speech – libel can’t be used to justify hate speech
restrictions
a. A ban on speech/conduct likely to incite anger/violence based solely on topics is CB (R.A.V.)
b. State may impose CB ban on particular instances of unprotected speech if ban forbids only the worst examples
(R.A.V.)
i. Majority (Scalia) – CB ordinance subject to SS - not narrowly tailored bc there were alternatives i.e.
ordinary criminal laws, counter speech, prohibit all fighting words). *Unprotected categories
(obscenity, defamation, fighting words) can be regulated, but gov. may not regulate those areas based
on hostility, or favoritism, towards messages they contain
ii. Concurrence (White) – would strike statute down as overbroad, but does recognize if entire category is
prohibited it shouldn’t be a problem to prohibit only some.
Virulent-Intensity distinction –prohibition of a subcategory of unprotected speech is viewpoint
discriminatory and probably unconstitutional (unless passes SS) unless there is an Virulence-Intensity
exception. Basically: Unconst. if restriction is based on content or viewpoint = CB regulation; or
Const. if restriction is based on intensity or virulence (ok to prohibit the fightingest words).
c. Penalty enhancement statutes– conduct distinction
i. Mitchell – hate speech v. hate crimes Black teen was convicted of aggravated battery of a young white
boy bc of state enhancement statute. Unanimous – no 1A here – enhanced penalty for victim
selection is conduct. Policy – singles out conduct thought to inflict greater harm. Criticism: passing
laws for what’s in somebody’s head is penalizing thoughts. We don’t do that with hate speech, so we
shouldn’t do that with hate crimes
d. A state may ban a particular type of expressive act and punish all instances where it’s done to threaten or
intimidate (Va. v. Black)
i. Majority thinks this threat can be punished as a permissible virulence distinction. Prima facie evidence
provision is what makes this statute unconstitutional for different reasons; the fact that a cross is burned
in front of someone is sufficient evidence to find intent to intimidate. O’Connor says problem is we
must distinguish bw cross-burning and cross-burning as a threat, this provision blurs the line and thus
it’s unconstitutional – prosecution must prove that it’s a threat. Souter says the problem that the statute
blurs the line between klan hate speech and expression is evidence of the lack of compelling interest
and true state motives
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CONTENT-BASED RESTRICTIONS: LOW VALUE SPEECH
1. OBSCENITY –listed in Chaplinsky dicta as unprotected
State’s interest in suppression: (1) offensive; (2) degradation of women; (3) corrupts youth; (4) erodes moral environment
a. Roth Test - whether to the average person, applying contemporary community standards, the dominant theme of
the material taken as a whole appeals to the prurient interest (material tending to excite lustful thoughts)
i. Roth (J. Burger 1957) (Plurality) - Obscenity is not constitutionally protected speech bc obscenity is
without redeeming social importance. Noted sex & obscenity are not synonymous distinguishing as
protected sex in art, literature, and scientific works (“all ideas having even the slightest redeeming
social importance” are to be protected).
b. Redrup Period - Ginzburg (1966) - obscenity determinations may consider the setting in which the publications
were presented; Redrup (1967) - Case began per curiam reversals of convictions for sale of obscene material
(Court applied at least 5 separate tests - Roth test breaks down)
c. Miller Majority Test- Whether: (1) The average person, applying contemporary community standards would
find the work, taken as a whole, appeals to the prurient interest (Roth) – local stnd; (2) The work depicts or
describes, in a patently offensive way, sexual conduct specifically defined by applicable state law – local stnd;
and (3) The work, taken as a whole, lacks serious artistic, literary, political, scientific value – nat’l stnd
i. Miller (J. Burger 1973) - (a) Adds #2 & #3: Roth assumed something that was prurient lacked serious
redeeming social value; (b) Community standards – Miller majority rejected national standard bc our
nation is simply too big and too diverse; & (c) Limits to “hard core” sex & requires states to be
specific (“fair notice” and avoid chilling effect)
d. Miller Limits
i. Prurient Interest Defined: Community is not free to say that material that excites “normal, healthy
sexual desires” is “prurient” or “offensive.” (Brockett).
ii. Consenting Adults:
1. Private possession may not be made a crime in your own home (Stanley).
2. BUT that doesn’t mean freedom from suppression for materials exhibited only to consenting
adults (Paris Adult Theatre). Gov. may make it a crime to mail obscene materials to
consenting adults (Reidel).
iii. Local/National Standards:
1. Local standards DO NOT have to be statewide; community standards can refer to a small town
within a state. *If you don’t want to get prosecuted in another state, stay out of the
jurisdictions you are worried about. Hamling (1974).
2. Court may review lower court decisions for mal-applied Miller analysis. (Jenkins – State court
found woman’s bare midriff was obscene – determination overturned).
3. Reasonable standard, not community standard, is used to determine whether a work lacks
serious literary, artistic, political, or scientific value. Pope (1987).
4. Community standards on the internet - Ashcroft (2002) – Federal obscenity statute regulated
material on the Internet by applying local community standards to determine if material was
obscene. Even if it would force speakers on the Web to abide by the “most puritan”
community’s standards, 3-justice plurality that was not a problem bc if posters don’t want to
prosecuted they shouldn’t post it, thus statute was not invalid
iv. Intent Requirement – Smith v. California (1959) – seller of an obscene work may not be convicted
unless the prosecution proves that D had knowledge of materials’ contents. Any other result might
discourage booksellers from selling books which they haven’t inspected. NO SL FOR OBSCENITY.
Hamling = Doesn’t mean they have to know it will fail the Miller test – they just have to know that it is
not “Bambi” – if their mental state is in the ballpark, it will work
e. Miller applied to Minors: Ginsberg (1968) – variable obscenity - it may be obscene for children but not for
adults; in trying to keep inappropriate material way from children, does it become harder for adults to have
rightful access; if so then use rationale from Butler (1957) (state may not reduce adult population to reading only
what is fit for children) and apply SS
f. Child Porn:
i. Ferber (1982) - Adult bookstore owner convicted for selling child porn. Court upheld conviction and
ruled child porn is unprotected speech separate from Miller so no need to determine if it is obscene.
Policy: (1) State interest in protecting children; (2) Child porn is a permanent record of abuse; (3) Child
porn encourages network /distribution; (4) Free speech value, if any, is modest – reaffirmed Chaplinsky
- some CB restrictions are okay and don’t always trigger SS
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g.
h.
ii. Ashcroft I (2002) – Court invalidated Act that prohibited actual and virtual child porn. Distinguished
Ferber – virtual child porn does not harm children. Once outside of Ferber, it could still be prosecuted
under Miller for obscenity. The Act prohibits speech that is not obscene under Miller, so it is overbroad.
iii. Williams (repeated) – J. Scalia majority found that even if it is virtual child porn, but either the person
thinks it’s real or makes someone else think that it’s real, that is an offer to engage in an illegal action,
child porn and/or fraud, and that can be prohibited.
iv. Stevens (2010) – Congress passed an act making animal cruelty films illegal if the jurisdiction rules the
act is illegal. 8-1 statute was held invalid.
- Chaplinsky balancing is historical (this is the case that explicitly establishes this rule) – there is no
historical category that prohibits speech because it is violent. In Ferber the Court balanced themselves,
but there’s no historical treatment of child pornography categories, so Ferber is still correct bc child
porn fits into speech integral to criminal conduct.
- Sp Ct interpreted the statute very broadly - if deer hunting is legal in one state and person films it, but
video is shown to someone in state 2 where deer hunting is not legal, that would fall within this statute’s
scope. Thus, the Court says this statute is overbroad. *Court could have taken a narrowing common
sense construction (what J. Alito wants in dissent), but the Court reads it as written and says they will
leave it open to Congress to pass a narrower statute
Note: Similar to Ferber: abuse of children/animals; no circulation injury like Ferber; distribution
network incentives to cause abuse; & both are of low social value. So, maybe a properly written statute
could say this was speech integral to criminal conduct. *Back to the paradox of filming illegal acts
(prostitution/porn) - all depends on which analysis the court does and which way the arrow was drawn
Alito’s dissent – Congress meant actual animal cruelty and we should interpret the statute to effectuate
congressional intent & avoid constitutional issues
Note: Normally before an overbreadth challenge in a criminal constitution case, if speech is protected
you have to raise as-applied challenge, if it was unprotected then can raise overbreadth. Court here
didn’t determine if Steven’s speech was protected or not protected
Miller applied to Violence:
i. Brown v. Ent. Merchants (2011) – state statute (keyed to Miller & Ginsberg) prohibited violent video
game sales/rentals to minors. “Morbid interest in violence based on contemporary community standards
that was patently offensive under contemporary community standards and that it lacked serious
redeeming social value.” Majority (Scalia) does Chaplinsky-historical balancing (social harm v social
value balancing ). Court ruled history did not recognize violent speech as an unprotected category. So
applied SS and found the statute invalid. Court rejected CSI bc causation of violent temperament by
games was not proved. It was under-inclusive by not prohibiting violent movies and cartoons
(paradoxical bc it needs to be narrowly tailored) and over-inclusive by requiring parental controls when
some parents didn’t want them.
Alito concurred: should strike down on vagueness; games do cause harm and state might prove it later
Thomas dissented: should be a special doctrine for children’s rights
Breyer dissented: agrees with SS, but thinks it passes – violent video games cause violence and we
should be deferential to legislatures. Plus, restriction is modest – not a ban and not limiting adults.
ii. Kendrick (2001) – 7th circuit’s three-judge panel led by Judge Posner declared the ordinance
unconstitutional, reaffirming that children have 1A rights. Judge Posner stated that "[T]o shield children
right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic,
but deforming; it would leave them unequipped to cope with the world as we know it.”
Prostitution Paradox – a nude woman protesting with a nude picture of herself – her protest is not protected,
but her picture is. Paying someone for sex is prostitution, but if you add a camera then it becomes expression
i. Freeman (1989) & Theriault (2008) – anti prostitution laws raise an issue of whether the state can
prosecute porn makers for prostitution. The broader problem is principle – can you film a criminal act
to make it legal (that’s not the case with other crimes, for example filming an assault). On the other
hand, what was the point of all this protection of speech under Miller if the state could criminalize the
conduct under prostitution laws!?
-- If the speech is not obscene under Miller, we can’t then use the prostitution law to prohibit it, thus the
camera insulates what otherwise would be criminal conduct. No Sp Ct decision on this yet, but that’s
the thought. In child porn – we start by saying this behavior is criminal, thus the speech is unprotected.
There are huge distinctions, we are just looking at the analytical behavior: (1) bc the speech is
protected, the conduct is protected; or (2) bc the conduct is prohibited, the speech is not protected
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2.
LEWD, PROFANE, AND INDECENT (although mentioned in Chaplinsky dicta, not a recognized unprotected category)
Fluid balancing: (1) regulation of low value speech; (2) that advances a state interest (protection of kids/adults; cleansing
debate/urban zoning); (3) that is narrowly tailored (i.e. extent of ban; existing technology)
a. No Test in Cohen - fluid balancing: high 1A/Low state interest bc state can’t prohibit offensive speech. Justice
Harlan said adults can avert their eyes and cleansing debate is not compatible w 1A. “One man’s vulgarity is
another man’s lyric.” Problem with the look-away argument: you can’t “un-see” something – you can just avoid
seeing it twice; if the speech becomes so prevalent and unrestricted you can’t look anywhere
b. SS emerging - Erznoznik – ban on nudity at drive-in-theater held invalid. CB - not narrowly tailored bc drivers
would be distracted by anything (under-inclusiveness shows weak state interest). Plus, not every kind of nudity
is obscene and inappropriate. J. White dissented – we are headed to eliminating the ability to make indecent
exposure laws
i. Broadcast Radio - the radio is invasive; warnings aren’t sufficient bc people spin the dials; children can
hear/repeat words before they can read them; FCC has authority to regulate and it’s only regulating a
single event, not a sweeping ban. (Pacifica 1978 – Court upheld FCC sanctions for station that played 7
dirty words monologue). J. Brennan & J. Marshall Dissent – It’s protected speech, turn off the radio if
you don’t want to hear it; the radio doesn’t come into anyone’s home who doesn’t want it. Butler said
you can’t force adults down to the level of children to protect children
Discrepancy in rationale: We say look away from movie screen and F the Draft shirt, but we can’t ask
people to change the radio station
ii. SS applied & indecent commercial phone messages are different than the radio - Sable (dial-a-porn)
(1989) Federal statute prohibiting indecent phone messages held unconstitutional under SS – CSI in
protecting kids, but it’s not narrowly tailored. Placing a call is not the same as turning on the radio and
being surprised by an indecent message. Plus there are alternatives for the government’s interest
c. SS applied:
i. Reno (1997) – Statute trying to protect minors from indecent/offensive communications on the internet;
Court held statute was unconstitutional - speech is not low value (still gone) and we use SS like Sable –
not narrowly tailored (even dissent agrees this is SS)
ii. Ashcroft II – Congress attempted to ban child access to material that was prurient, patently offense, and
lacked redeeming value (Miller test/Ginsburg invariable obscenity), but this limited adults’ access too.
Court applies SS – finds CSI, but it’s not narrowly tailored bc it is not the least restrictive mean
(filtering) & it substantially burdens adults’ access of info only obscene to children (Butler). J. Breyer
dissenting – less-restrictive alternatives are inadequate bc filtering software is faulty, costly, imprecise,
& requires parental enforcement. To maximize child protection – filter & restriction should be applied
together.
1. Majority - don’t need 100% of an achieved CSI – just a balance bw lower speech restriction &
achievement of CSI - Least speech restrictive avenue that gets us in the ballpark of the CSI.
Dissent - we need 100% of CSI to be valid
d.
Principle that all constitutionally protected expression is equal under 1A, but cases do suggest that courts view
value differentiations
i. Young (1976) - Zoning ordinance restricted locations for adult theater. Court upheld it bc it targeted
secondary effects. *Sexually explicit speech is low value (after Pacific in 1978 the Court stopped
clarifying this).
ii. Renton (1986) – Secondary Effects Doctrine – Ordinance prohibited adult theaters from locating within
1,000 feet of churches, parks, schools, etc. Court upheld it under Young’s secondary effects rule. Court
articulated IS: (1) impt state interest, (2) served by a narrowly tailored statute (3) that leaves open
reasonable alternative avenues of communication. Here the important state interest was not more
protective than necessary (study) – City was able to look at other states’ studies – you don’t have to do
your own study and it doesn’t have to be a recent study. It only includes adult movie theaters - could be
under-inclusive suggesting the City isn’t really attempting to further the zoning interest, but the
majority says that just bc this is the first thing doesn’t mean it is the last thing. And Ample Alternatives
- 5% is plenty for adult movie theater zoning; city doesn’t have to zone to guarantee businesses nice
choice of locations. *Not very tough IS – closer to RBR
iii. Alameda Books (2002) - Renton (establishing a deferential standard) and the gov only needs to show a
minimum factual predicate to establish that certain adult speech can have harmful secondary effects
J. Souter’s dissent: Ordinance is really content-correlated (appearance of new category). It kind of takes
J. Kennedy’s concurrence and proposes an explained solution (why it’s both CB &CN). Court should
apply a less-deferential standard & the gov. should be required to show a greater factual predicate.
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States will use zoning ordinances now to silence adult speech. This warrants tighter IS. Should be
resolved on SJ bc LA didn’t put forward any evidence to refute the suspicion of the act’s censorship
3.
COMMERCIAL SPEECH
- Speech that proposes a commercial transaction (not necessarily costs money/anticipates profit). Advertising is a
dissemination of info & some ads may be of general public interest (Va. State Bd of Pharm).
Low Value – SS – default content based - compelling state interest – protection of children, *cases turn on narrow
tailoring – usually a result of technology (Butler thoughts)
Profit-motivated speech is not necessarily commercial speech. Although it does not receive equal protection as other
forms of speech, it is not unprotected
a.
Va. State Bd. of Pharm. (1976) - establishes protection for commercial speech. Court looks at interests
(consumer and societal interest) & decides price limitation is unconstitutional bc state interest is paternalistic *no
test language. *FN – Commercial speech is hardy, less likely to be chilled bc of profit motive & truth is more
easily verifiable by its disseminator, which makes it less necessary to tolerate inaccurate or deceptive statements
b.
Specifying Commercial Speech – Bolger (1983) - In combination, (1) an ad with (2) a specific product and (3)
an economic motive is likely commercial speech. Court held that info pamphlets promoting a condom brand was
commercial speech, but clarifies that a product referred to generically does not remove it from the realm of
commercial speech. For a company with sufficient control of the market for a product may be able to promote
the product without reference to specific brand names
c.
Truthful, non-deceptive ads after Va. Pharmacy
i. Bates - statute prohibiting attorney ads was invalid
ii. Linmark Associates - ordinance banned sold/for sale signs outside homes attempting to prevent panic
selling & white flight. Court recognized the state goal as vital, but found the state ordinance was not
proved necessary to achieve the goal.
iii. Carey - contraceptive ad ban invalidated bc concern of offensive ads or legitimizing sex was
insufficient. See Bolger (interest in shielding recipients of mail from materials that are likely to find
offensive is not sufficiently substantial to justify suppression of protected speech).
d.
Central Hudson Test - (1) is speech protected? (a) illegal; (b) false or is it misleading?– if not, then move on to
next three prongs: (2) is there a substantial government interest? (3) that is directly advanced? (narrow tailoring)
and (4) no more extensive than necessary (narrow tailoring)
- State only allowed electric utilities to engage in ads to further energy conservation, not stimulate its’ use. The
complete ban on promotional advertising was too extensive bc (a) no exception for promotional ads of specific
electric products (services that would increase use & conserve energy by diverting demand from less efficient
sources); and (b) comm’n did not demonstrate that its interest cannot be protected by a more limited regulation
i.e. requirement that ads include info about relative efficiency and expense of the offered service
e.
Truthful, non-deceptive ads after Central Hudson
i. Final prong “no more extensive than necessary” required only that the restriction constitute a
“reasonable fit” in proportion to the interest served. Suny (1989).
ii. Fla. Bar v. Went for It - Court upheld a Fla. Bar rule prohibiting lawyers from sending mail to
prospective clients after an accident involving addressee for at least 30 days. Impt state interest person’s privacy in the home – not paternalistic bc it’s not trying to prevent people from making bad
decisions. **This case suggests Central Hudson test is more relaxed in application if state interest is not
paternalistic
iii. Posadas – lowered IS to something like RBR without saying so - interest was directly advanced because
Puerto Rico may reasonably believe it does. This is the funny business -- (a) “greater includes the
lesser” argument & (b) reasonableness overlay on the analysis. Question is whether Puerto Rico
reasonably believes it’s no more extensive than necessary and since they have the greater power to ban
gambling altogether, they certainly have the lesser power to restrict advertising.
iv. Then IS tightened up (more protective of commercial speech)
1. Rubin (1995) - Court asks do we on the court think it’s no more expansive than necessary and
the court says it doesn’t really directly advance the state interest because beer sales can be
advertised in stores or commercials and this is also more extensive than necessary because if
they were concerned about people drinking too much they could regulate the sale of beer with
“conduct restriction” and the state could engage in counter-speech campaigns
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2.
f.
44 Liquormart (1996) - Court invalidated a statute that restricted alcohol ads to only price tags
and display signs that were not visible outside liquor stores. J. Stevens plurality applied
Central Hudson in an SS manner.
- Commonsense suggested direct advancement but the Court wanted proof (what SS demands).
If a state interest seems paternalistic, it must support its interest with hard evidence – not
commonsense speculation.
3. Lorrilard Tobacco co (2001) - Court invalidated tobacco ad prohibition near school/playground
or lower than five ft off the ground in stores. Fairly strict SS application - although it may
theoretically achieve interest, it is far more extensive than necessary. Court implied that a
commercial speech restriction may not reduce adults to consumption of only child-friendly
info. *Echoes Butler – hindering adults’ rightful access by legally preventing children is not
ok.
Overbreadth does not apply to commercial speech
Bates – no overbreadth because, the Court reasons, commercial speech is “more durable” and less susceptible to
the chilling effect of overbroad regulation some people think it’s dicta/some people think its holding
Village of Hoffman Estates – overbreadth doctrine does not apply to commercial speech because the fear of
chilling speech, the basic policy reason supporting overbreadth is not present because the profit motive makes it
hard to chill “hardy.”
g.
Compelled Disclosure – okay if they are reasonably related to preventing deception – reasonableness aspect that
gives some deference to the state Zauderer (1985) – reasoning that restricting speech (depriving consumer of
info) is more serious than adding information (providing consumer with extra information)
h.
Summing up Commercial Speech - tight version of IS – Gov. should regulate conduct and engage in counter
speech: if there’s a paternalistic motive, it’ll be struck down & if it’s broadcast, there might be a special
deference to the FCC
Why only IS? Commercial speech (1) may have a “lower” value than political speech; (2) is more “hardy” frequently motivated by profit, so it is “more durable” and less susceptible to a chill effect; and (3) it is easier to
determine whether it is false or misleading.
R.A.V. analysis: R.A.V. held that a state may regulate speech that is virulent – but that restrictions of virulent
speech that are CB will still receive SS. Each commercial speech case above involved CB restrictions – but
none merited SS. Why hasn’t the Court applied R.A.V. analysis to commercial speech restrictions? (J. Thomas
concurrence in Lorrilard – rest of the justices don’t respond to that). Almost all of our commercial speech cases
are restricting specific areas, but Court doesn’t apply R.A.V
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FACIAL VALIDITY OF STATUTES
1. OVERBREADTH – in addition to constitutional prohibition, it also prohibits 1A protected expressions; if overbroad whole
statute is knocked down; justifications: (1) chilling effect and (2) selective enforcement
a. Overbreadth must be real and substantial compared to legitimate statute applications - Ratio Concept bc overbreadth is
strong medicine. Broadrick – statute prohibiting civil servants from political fundraising and bumper stickers was okay
bc statute regulated a broad spectrum of speech already subject to regulation
b. Can only bring overbreadth challenge if attacking statute on its face bc if statute applies to P it would be an as-applied
challenge (Brockett)
c. Narrowing Construction - courts can narrowly interpret it an overbroad statute to be constitutional; requires fair
warning & notice; must be a foreseeable interpretation
i. Osborne – facially overbroad statute saved from invalidation by narrowing court construction, but legislature
can’t do that (ex post facto). *Policy – legislature get it right the first time
ii. Oakes – If court narrows statute, then overbreadth is mooted, since the repealed, former version can no longer
chill protected expression.
2. VAGUENESS - when persons “of common intelligence must guess at statute’s meaning and differ in interpretation i.e. “treating
a flag ‘contemptuously’ is vague and unspecific. (Goguen).
*Due Process doctrine w a stricter 1A application; justifications – chilling effect & selective enforcement
a. Order of analysis – overbreadth first and vagueness second, if at all. Also, the overbreadth doctrine does not apply to
commercial speech. (Flipside).
Vagueness Doctrine is not gone, but it’s not used as much; 3 places it’s likely to appear:
(1) Vague and not overbroad - No unprotected speech in park - wouldn’t be overbroad if interpreted carefully, but it
could be vague bc it’s not specific – could say everything we can criminalize in the park, we will.
(2) Overbreadth does not apply to conduct, so we might apply the vagueness doctrine
(3) Commercial speech – courts do vagueness analysis
3. PRIOR RESTRAINTS - Disfavored bc they (1) block speech; (2) are too effective; (3) censors are inclined to be overzealous; (4)
can be arbitrary. Lovell v. Griffin (1938): A Jehovah’s Witness convicted of violating a state ordinance prohibiting distributing
leaflets without the mayor’s written consent. Court invalidated it on its face bc licensing schemes strike at the core of 1A.
a. CN Prior Restraint – (1) constitutional as a subsequent punishment – IS & (2) clear standards
i. Plain Dealer – ordinance gave mayor complete discretion to grant or deny news rack permits. Because standardless licensing schemes are especially evil, CN restraints must have clear standards (allow court to review; limit
selective enforcement; limit chilling effect) to prevent licensors from applying shifting or illegitimate standards.
ii. Madsen – antiabortion protesters prohibited near abortion clinic; upheld since it was CN unlawful conduct
restriction; clear standards are already built-in via the judicial process. Court suggested that CN injunctions are
not “prior restraints,” but that they should still be tested by more “rigorous” standards than other forms of CN
restrictions bc injunctions carry greater risks of censorship and discriminatory application
b. CB Prior Restraint – (1) constitutional as a subsequent punishment – SS, (2) clear standards, & (3) Freedman
safeguards: (1) A non-criminal process, (2) that imposes only a brief restraint, (3) by which only a judicial
determination is final, & (4) in which the censor bears the burden of justifying censorship
Freedman v. Maryland – Court invalidated motion picture censorship board for film review because censorship is
particularly dangerous.
i. Near – Court overturned injunction on publishing scandalous allegations against public officials; statute’s
purpose was not punishment, but suppression; city should use subsequent punishment, not prior restraint.
**Permissible as prior restraints: (1) Location of troops / troop movement; (2) Low-value speech such as
obscenity
c. Injunction – applies to individuals/small groups (BUT can be “more chilling” bc enforcement is high); injunction
occurs after speech (BUT more than chilling effect, it freezes); issued by judges
Licensing Scheme – applies equally to everyone (BUT censors can be overzealous); Collateral Bar Rule –injunction
must be obeyed until set aside; but license can be violated, then, if prosecuted, persuade a court of the statute’s
unconstitutionality
d. Speech that discloses confidential information - Pentagon Papers case – prior restraints are disfavored; some limits on
sailing dates and time of war publications. *Open question: if congress authorized an injunction
- It’s free speech and that’s important. Presumption for prior restraints is against constitutional validity. J. Black &
Douglas concurring: FREE SPEECH IS ABSOLUTE - only a free and unrestrained press can effectively expose
deception in the government. Dissents: (1) Court decided with irresponsible haste; (2) judicial restraint – (Blackmun 1A is part of an entire constitution – including Article II which vests in the Executive Branch primary power over the
conduct of foreign affairs and places in that branch the responsibility for the Nation’s safety).
e. Restricting speech because it was obtained illegally - Bartnicki – Anti-wiretapping statutes cannot be applied to
prosecute a radio station that broadcasted info illegally obtained where subject was a matter of public concern and the
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broadcaster did not participate directly in the unlawful wiretap, even though the broadcaster knew that the material had
been obtained unlawfully. Balancing test: privacy interest of anti-wiretappings protection (person who illegally
wiretaps can be prosecuted, but not the person who broadcasts the information).
CONTENT-NEUTRAL RESTRICTIONS: PUBLIC FORUM DOCTRINE
A. TIME, PLACE, & MANNER RESTRICTIONS
Purpose or Motive:
 O’brien (1968) – Court said no subjective motivation, but ruled generally that an inquiry into the subjective motives
congress is hazardous. Several congress members said, “We’ll get those hippies burning their draft cards.” Thus, the Court
is only concerned with the objective legislation.
 Rock against Racism (1989) - Purpose is principal inquiry
 Distinguish – subjective motivation and objective purpose: we don’t know the final answer maybe: (1) they are inconsistent,
(2) maybe purpose is objective state interest, not subjective motivation, or (3) maybe O’brien is distinguished as a conduct
case, even though the Court’s language is general
Speaker Status based restrictions: A restriction that treats some speakers differently than others may be CN or CB, depending on
the circumstances. Why was the speaker selected? Prior course of criminal conduct - CN, but if prior content – CB.
Madsen (1994)- A court-ordered injunction prohibited certain antiabortion protesters from protesting near an abortion clinic. The
Court treated and upheld the injunction as content-neutral. The restriction targeted the speakers because of their past conduct, not
because of the content of their speech
Some cases fall between CB & CN (the messy middle):
Hill v. Colorado (2000) - a no speech bubble around abortion clinic. Court concluded CN regulation bc it serves gov interests
(prevent disruption) that are significant and legitimate (people have engaged in harassment, criminal trespass in these areas) &
statute is narrowly tailored to serve those interests and leave open ample alternatives.
Dissent argues for CB bc effect is on pro-life motive, look who is effected, we might infer from that that the purpose was against
that group; no other groups that this statute effects. Majority counters and says that protest, education, and counseling is content
neutral because it’s all protest, education, and counseling
B. GOVERNMENT PROPERTY REGULATION
TEST
Traditional Public Forum
Limited Public Forum
(1) Designated (general)
public forum
(2) Designated (limited)
public forum
Non-public forum
a.
CB - SS
CN - IS (Bartnicki)
(1) Reasonable (in
light of use of
property)
(2) Viewpoint
neutral (allows
subject / speaker
status restrictions)
TRADITIONAL PUBLIC FORUMS If regulation is CB then SS; if CN restriction then IS
Hague (1939) - public trust idea - streets and parks “have immemorially been held in trust for the use of the public.”
i. CN restrictions receive IS - Bartnicki a state must demonstrate: (1) substantial / impt state interest; (2) narrowly
tailored that is no more extensive than necessary; (3) ample alternatives for communication; AND where appropriate:
(4) no disparity in impact, and (5) history of tradition
ii. Mere administrative convenience does not suffice as governmental interest - Schneider – Court invalidated ordinance
that prohibited distribution of leaflets on streets. No test, but Court laid out factors. Interest in litter-free streets does
not override 1A and there were less restrictive alternatives –punish litterers
iii. Court looks for disparity in impact and less restrictive means - Martin - Court invalidated ordinance that prohibited
door-to-door leafleting Disparity in impact: essential to poorly-financed causes of little people.” Less restrictive means:
prohibit leafleting at homes that want to be undisturbed
iv. High Interest in tranquility and expression in homes
Kovacs - Upheld ordinance that prohibited sound trucks on streets. Individuals’ interests in the home’s tranquility
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outweighed speakers’ interests in communication. High state interest and ample alternative avenues makes regulation
okay. Dissent: BUT disparate impact bc sound trucks may be only adequate means for some to reach large audiences
Gilleo – Court invalidated, 9-0, an ordinance that prohibited home-sign displays. Tradition: special respect for liberty in
the home - something personal about a message in a home/window & no alternatives bc no substitute & such speech
conveys a particular, committed, and inexpensive message
b.
NON-PUBLIC FORUM – reasonableness test
i. Jails - Adderley (1966) – at a jail, students protested the arrests of civil rights demonstrators. Court upheld convictions
for trespass. Jail is not a traditional public forum bc the purpose is to house prisoners, not be held in public trust for free
speech activities. No official language of reasonableness and viewpoint neutral test, but it’s what the court does.
Reasonable in light of property’s use - sheriff was trying to make sure the jail facility could function as a jail and there
were other avenues – i.e. take protest to street outside jail.
ii. Military Bases - Spock: A presidential candidate was prohibited from hosting an election mtg at Fort Dix military base.
Military base was not a traditional public forum. Court upheld prohibition under Adderley’s reasonableness test.
Policy was (1) viewpoint neutral – applied to everyone and (2) reasonable in light of the use to which the property was
lawfully dedicated.
iii. Post Office - Kokenda (1981): Post office sidewalk is a non-public forum. Policy was (1) reasonable (prevent post
office congestion and interference with post office functions – deferential test and this is reasonable) and (2) viewpoint
neutral (banning all solicitation).
iv. Airports - ISKCON (J. Kennedy) – ban on (1) solicitation of money & (2) distribution of flyers at 3 major airports.
Majority says airport is a nonpublic forum bc, in looking to actual traditions, airports are too new to be traditional free
speech areas. Solicitation ban (upheld) v. Distribution ban (struck down). Solicitation can lead to fraud and duress
(overcharge airport customers in a rush). Dissent: traditional public forum. To determine forum - consider property’s
(1) function: physical characteristics & accessibility to the public; (2) compatibility for free speech use; & (3)
comparisons to streets and parks
**Not much predictability (i.e. maybe bus terminals are a little older than airports so it could be a traditional public
forum). *What about post-9/11 degree of airport public access changes
v. J. Brennan & J. Douglas’s repeatedly dissent arguing for a compatibility – whether in certain circumstances particular
public places are obvious and appropriate places of protest
vi. Buses – Shaker Heights – buses that are part of municipally-owned transit systems are non-public forums
c.
PRIVATE PLACES
Marsh (1946) – Business district of a company town should be treated as the equivalent of public property for 1A purposes.
Logan Valley Plaza (1968) – Extended Marsh to shopping centers as a traditional public forum BUT . . .
Hudgens (1976) – Court overruled Logan Valley, finding private property is not to be treated like public forums. Present rule
– no citizen has 1A rights to express themselves in shopping centers over property owner’s objection.
BUT access can validly be guaranteed by state constitutions – Pruneyard
d.
PUBLIC FORUMS (started out as nonpublic forums):
Designations – requires intent - Court stated that a government designates a forum for public use only where it provides an
express written policy or clearly established practice. The designation must be purposeful, intentional, and not a matter
of mere ad hoc permissions. Kokenda.
1. Designated general public forum – CN - IS
i. Widmar (1981) – University prohibited use of university buildings for religious purposes; Used for students, so
it’s a designated forum for students, general public forum (origin of this category). CB – restricting religion school claims separation of church and state.
-- Never been overruled but if we were doing this case today, would it be a general public forum since only nonstudents are being denied access – speaker status restriction would make this a limited public forum which would
fall under reasonable/viewpoint neutral and is this viewpoint neutral? Probably not
2. Designated limited public forum - Reasonable & Viewpoint Neutral (*not official names)
i. Lamb’s Chapel – church wanted to use public school building to show a film on d family values. Explicit
standard constitutes the designation, but the designation is limited. (2) Reasonable & viewpoint neutral test –
court struck down school regulation 9-0 bc although restriction was not a subject matter restriction, it’s a religion
perspectives restriction, so it’s not viewpoint neutral
ii. Can’t bar religious viewpoint: where a public university funds a range of student publications, it cannot exclude
religious-oriented publications; similarly where a school admits various community groups to use facilitates, the
school cannot exclude a Christian group. Good News Club.
iii. Even spending must be viewpoint neutral
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
Rosenburger - Student activity fee denied funds to a student org that published a religious journal. Income
stream counts as a forum (limited public forum here) so it must be reasonable & viewpoint neutral. Court
invalidates restriction as a viewpoint based restriction. J. Kennedy said this money is not the school
endorsing religion, but a knock out of all subjects with religious views. Dissent (Souter) Distinction is a
permissible subject matter distinction by denying any view on the subject of religion
 CLS (2010) – Christian Legal Society was excluded from campus org designation bc it violated the
schools no discrimination policy by requiring members to be Christian and not homosexual. The school
didn’t ban them, but did say they couldn’t be a registered school org. Sp Ct 5-4 (Ginsburg) said it’s
reasonable and viewpoint neutral
EXPRESSIVE CONDUCT - “Speech is conduct and actions speak; nothing intrinsically more sacred about wagging the tongue or
wielding a pen.” To determine if expression – look to purpose, effect, and tradition
1.
SYMBOLIC CONDUCT
O’Brien – conviction for burning draft card. Court (J. Warren) upheld his conviction. It’s not pure expression, but the Court
indulges the assumption that burning a draft card is expressive conduct.
O’Brien test: Is the regulation: (1) within the government’s constitutional power? *We could add this to every test really
(2) furthering an important or substantial government interest? Draft won’t function without these laws that is (3) unrelated to
suppression of free expression? (CN or CB?) & is it (4) no more extensive than necessary? (Narrowly tailored). Yes bc no other
way to do this
Note: Statements by members of congress mad about people burning draft cards – arguing the law is CB – Sp Ct says we aren’t
looking at the subjective motive, so if the law on it’s face is CN that’s where the analysis ends because what motivates one
legislator might not motivate another.
(1) Legislatures are diverse and collective bodies that may not hold one single motive.
(2) A new legislature could reenact a disputed law with a different stated interest
a.
b.
c.
Flag Desecration and Misuse – expression - Texas v. Johnson (1989) – Johnson prosecuted for burning an American Flag.
Suppression of ideas – CB - SS is the doctrinally correct answer, but J. Brennan looked to broader free speech
principles/policies and is concerned that statute is viewpoint discriminatory and detrimental to political speech. C.J.
Rehnquist dissenting: “flag burning is an inarticulate growl” – there are alternatives for his “expression”, flag burning
should be unprotected, and there is a state right to protect national symbols
Eichman (1990) – gov. took out “audience offended” part, but Sp Ct says we aren’t buying it – it’s still CB – SS – still
viewpoint discrimination and pretty much the same split in the court. Later efforts to introduce constitutional
amendments but that requires 2/3 – 5 justices trumps president, congress, and all 50 states – shows power of Supreme
Court
Public Nudity – not expression - Barnes – Nightclub dancers had to wear pasties and a G-string. Court says nude dancing
is expressive conduct, “outer perimeters of 1A.” Upheld statute under CN bc it’s not blocking only erotic message, but all
nudity. O’Brien Test: (1) Within government’s constitutional power. (2) Furthers an impt/substantial gov. interest
(public welfare) (3) that is unrelated to suppression of free expression – CN; (4) Suppressing no more speech than
necessary
Pap’s A.M. (2000) – City, in its preamble, declared it banned public nudity to target nude dancing, but the Court treats it
as CN and upholds it bc secondary effects. Majority says its under O’Brien and preventing urban flight is a sufficient state
interest; same as Barnes, but only difference is City Council put in preamble that secondary effects were important to
them. Scalia and Thomas say it’s a conduct regulation that incidentally hurts expression, so RBR
J Stevens’ dissent: Preamble says purpose – limit form of speech – it targets, through the text of statute, live nude
entertainment; so this is not under O’Brien because it’s CB.
2.
EXPRESSIVE LITIGATION - Button (1963) – Va. is unhappy that the NAACP is retaining civil rights specialist lawyers by
paying P’s bills. State calls arrangement a conflict of interest and in a statute prohibited any org from retaining a lawyer in
connection with litigation of which it was not a party. Court invalidated it – mixed balancing test: (1) litigation is an expressive
way to petition their government for redresses; (2) statute significantly infringed this expression; (3) Statute is CN – CSI?
Narrowly tailored? Dissent: client is the only person that should matter to lawyer, but doesn’t happen if lawyer is being paid by
someone else; lawyer might listen to org’s interest over client’s.
3.
EXPRESSIVE ASSOCIATION
a. Jaycees – state anti-discrimination law required the Jaycees to admit women. Court upheld it under “SS balancing” test.
(1) Expressive Association – Jaycees goal to empower young men (doesn’t need to be put on signs/org message is
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b.
c.
4.
sufficient). (2) It is significantly infringed. (3) Is statute CN or CB? (CN – SS balancing) this is not the he-man woman
haters club – letting in woman won’t interfere with group; court says prove it & they cant
Boy Scouts - state required Boy Scouts to admit homosexuals. Court held the state action unconstitutional under SS
balancing test. (1) Expressive Association – Boy Scouts guide and lead men. (2) Statute significantly infringed on
association (like Jaycees, alters membership). (3) CN/CB? CN restricting discrimination, conduct. CSI? Maybe – notice
how balancing works this time, normally tilting it to give state an SS break, but Court (Rehqnuist) found a major impact
on boy scouts and that was not overbalanced by state interest. Narrowly tailored? Maybe. But infringement is too high.
Boy scouts official position is homosexuality is wrong, thus requiring the BSA to admit homosexuals would contradict
their expressive message.
Irony – if you are outwardly and strongly discriminatory there’s a 1A right to express that and restrict members, but if you
are not preaching discrimination then there’s less 1A right.
Right not to Speak
State dictated message: Barnette says can’t. Non-State Dictated Message: Wooly sets out 3 Prongs: (1) Disagreement, (2)
Disclaimer, (3) Attribution [if you don’t disagree you lose - Pruneyard, if you disagree but no attribution you lose - Wooly, not
every possible disclaimer is recognized as an appropriate disclaimer - Hurley]
a.
b.
c.
d.
e.
f.
Barnette (1943) – state law requiring public school children to pledge allegiance to the flag was unconstitutional
Wooly v. Maynard (1977) – requiring Live Free or Die on license plate was unconstitutional
J. Blackmun Dissent – (1) disagrees; (2) disclaimer could put a bumper sticker instead; (3) attribution – do people really
think that driver is willing to “live free or die” no one is really going to attribute it to anyone
PruneYard (1980) – state law requires malls accommodate private speech or protest. Court say we are asking
disagreement, disclaimers, and attribution (Wooly dissent), when there’s no state-dictate message, Pruneyard loses –
don’t disagree with message, no attribution bc anyone can come on property, and they are free to post a disclaimer
Hurley (1995) - state required no exclusion of gays from St Patty’s Parade. no state-dictated message (1) Disagreement – floats don’t want to promote that lifestyle or demonstrate tolerance. (2) Attribution – if you see a
parade you are likely to think that each group is part of a whole and each message would be attributed to the whole. (3)
Disclaimers – it would be curious and weird. Thus, the right not to speak is violated.
Board of Regents (2000) – Students are saying you are taking our money and funding speech we don’t agree with; funds
extracted from them. Court rejected this challenge – no violation of right not to speak as long as it is viewpoint neutral,
similar viewpoint neutrality argument like Rosenburger magazine, same viewpoint neutrality means the right not to speak
has not been violated. **Take home point: So as long as we are establishing a limited public forum that is viewpoint
neutral it is constitutional
Zauderer – compelled speech - suppose attorney wants to (1) advertise contingency fee basis so you would owe no
attorneys fees if you lose, but (2) you might have to pay court costs. Statement 1 is not false, but does statement 2 make it
misleading. Strict View – statement 2 cures deception, but court took a deferential view that said the compelled statement
needs to only be reasonably related to cure the deception (under deferential view we don’t have to show that the first
statement is definitely misleading, just that it might be misleading). Policy – since we aren’t suppressing facts here just
requiring an additional one, the paternalistic concern is not present and the standard is deferential
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CHAPTER VIII THE CONSTITUTION AND RELIGION
TWO RELIGIOUS CLAUSES
- Free exercise clause – right to free exercise of religion
- Establishment clause – government not allowed to establish religion
BASIC POLICIES FOR RELIGIOUS FREEDOM
(1) Freedom of conscious – foundation of our country – people should be able to think what they want about religion
(2) Concern for civil disorder – avoid religious strife in Europe
(3) Government can corrupt religion – bad gov acts will spill over/religion run by politics would be held in low regard
SPECTRUM OF FOUNDERS
Strict separation of church and state
Less strict interpretation of church and state
Jefferson and Madison said there should not be
Washington, Adams, and First Congress
separation
-Wrote the Est. Cl. & hired chaplains for first congress;
Presidents referenced God, Religion, and made proclamations
of days of prayer
Souter, Stevens
Scalia
CONCERNS OF HISTORICAL ANALYSIS - social changes complicate reach of establishment clause
 Diversity/Pluralism – greater religious diversity
 Expansion of government – enormous government as compared to our original government
 Rise of secularism as a world view – siding w no-religion (more atheist or agnostic) – makes gov decisions seem less neutral
BROAD PHILOSOPHICAL APPROACHES TO THE ESTABLISHMENT CLAUSE
Strict separatism - NO special/extra gov. aid to religion at all (fire dept can still report to a fire at a church)
Strict neutrality – Gov. can aid religion as long as it acts in a religion-neutral fashion with a secular purpose
Non-preferentialism – Gov. may aid religion in a nonsectarian way (not favoring a religion); Gov. may favor religion over irreligion
A. ESTABLISHMENT CLAUSE
1. PRAYER AND INVOCATION: Lemon Test (1971): (1) action must have a secular purpose; (2) its primary effect must not be to
advance or inhibit religion (“secular effect”); & (3) no excessive entanglement bw church & state
i. Engel (1962 - prayer in public school unconst,) & SCHEMPP (1963 - bible-reading in public schools unconst.).
Majority: no prayer in schools - focused on policies: (1) Liberty of Conscious – might be atmosphere of coercion –
school bullying for being different; (2) Civil Strife – religious groups competing alienating those who lose; (3)
Government – what they have done for education they might do to religion and that would not be a good thing (i.e. kids
who hate literature bc they were forced to read it in school)
Dissent: designs away religious education that parents may want; can allow some prayer in schools
ii. Lee (Kennedy) – Rabbi’s invocation at middle school graduation unconst under psychological coercion test.
J. Kennedy’s majority: Liberty of conscience – invocation was not voluntary bc skipping isn’t an option and by being
there, even if you are quiet, you are in some sense participating
J. Blackmun’s concurrence (Stevens and O’Connor): invocation constitutes “government endorsement”
J. Scalia’s dissent: tradition of prayer – wants actual coercion test: (1) no coercion - religious people that are not
participating –tune out – being there doesn’t mean participation; (2) no endorsement – it’s not a problem – declaration
of independence/on our coins; (3) no civil strife – religion mix will make stronger communities
iii. Doe: High school vote on if football game prayer and if so which student would give it. Court held prayers at football
games unconst because of psychological coercion & endorsement.
J. Stevens’ majority, 6-3, – Because school sponsored vote, it was not private speech & it violated est. cl. Students felt
pressure to be at games (some had to be: BAND, cheerleaders, players) this amounted to forcing participation
J. Rehnquist’s dissent speech was private action bc its an elected students decision; no coercion. Dissent still wants
“actual coercion” analysis
iv. Discussion: PATERNALISM THOUGHT – are we teaching our kids to ignore religion or respect religion – Stewart thought
that part of education is how to get along with others and taking religion out completely results in an incomplete
education. BUT maybe children’s education in certain social areas is not meant to be fulfilled by the school but rather
by certain civil areas like sunday school
v. Newdow (2004) – pledge allegiance has “under God.” Under Barnette no mandatory pledge of allegiance bc that
violates 1A right not to speak. But does “under god” violate the establishment clause?
Tests: Lemon test, Endorsement, Psychological coercion – no one in the circuits knows which test to apply so the 9 th
circuit essentially does all three and found that “under God” violated the establishment clause. Court dodged the issue
by holding the parties did not have standing. (Newdow is girl’s father, but non-legal guardian – girl doesn’t have a
problem and neither do her real parents – so without the appropriate relationship he does not have appropriate
prudential standing). But three justices addressed the merits of the case.
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J. O’Connor wrote that “ceremonial deism” does not constitute endorsement bc it is “not really religious.”
J. Rehnquist and J. Thomas held there was no actual coercion, so no est. cl violation
2.
GOVERNMENT DISPLAYS
UNATTENDED DISPLAYS - Religious Displays Test: Lemon/Endorsement
 Endorsement test (proposed in O’Connor’s Lynch concurrence; Adopted in Allegheny):
- Is there endorsement – an effect on an observer (reasonable person – aware of history and context of community and
forum in which religious display occurs))
 J. Kennedy in dissent proposes not a test, but symbolic endorsement - coercion guy - absent an extreme example
like a Latin cross on gov. building year-round, symbolic endorsement doesn’t violate establishment clause
Under Lynch and Allegheny, add frosty the snowman to baby Jesus and your display is okay bc it loses it’s religious
message – the question is how many do you need
i. Lynch (1984) – Multiple items in a private shopping center park: Santa Clause, reindeers – 2 Reindeer Rule, Christmas
tree, clowns, and crèche. Court found crèche did not violate est. cl., as it’s viewed in the context of the holiday season it
was intended to push selling stuff at shopping people and getting people in the buying spirit. Majority (Burger) Lemon
provides factors to look at (but not a rigid 3-prong test) - (1) Secular purpose here is to celebrate holiday; (2) No
primary effect of advancing or inhibiting religion; (3) No excessive entanglement issue (no religious group involved in
display)
Concurrence (O’Connor) - No endorsement (purpose / effect) or entanglement problems here (1) Endorsement
Analysis: (1) subjective purpose to endorse & objective effect on reasonable observer; &
(2) Entanglement (same as Lemon)
Dissent (Brennan) - State is celebrating Christian holiday (to advance Christian religion)
Dissent (Blackmun) - Crèche alongside clowns – this is anti-religious and devout Christians should be offended
ii. Allegheny (1989) - formally adopted endorsement test, crèche alone – endorsement; it needed a reindeer or two;
menorah next to Christmas tree is happy holidays/religious diversity msg so not an endorsement of religion
- Crèche with angel (5-4 invalid) - reasonable observer would think this is a community endorsing Christianity; no
secular aspects of Christmas, we would need other items (Santa, “two reindeer” rule) to make constitutional
- BUT four justices find it permissible applying a no coercion test – passive display doesn’t coerce anyone
- Christmas tree and menorah with a “Salute to Liberty” sign (6-3 valid) - reasonable observer would not think
community was endorsing one religion (religious pluralism here) – overall message is happy holidays
- BUT four justices apply no coercion test – gov. is seeking converts for one of these two religions only.
- 4 think both displays are const. - Apply no coercion test and a passive display doesn’t coerce anyone
- 3 think neither is const. - Apply no endorsement test and these both endorse religion **No reindeer here and there’s
nothing to make the crèche less of a crèche here – maybe if there was a frosty the snowman this might remove the
religious symbolism of crèche and the menorah actually adds more religious symbolism to the Christmas tree
- 2 (Blackmun, O’Connor) swing - Apply no endorsement - Crèche is unconst, but menorah & tree are const.
Pinette – KKK wants to put up cross in a public forum. Ohio says no.
4-Justice plurality – private speech cannot violate est. cl. NO CSI, have to allow cross
3-Justice concurrence (O’Connor) – private speech can violate est. cl. if there’s endorsement.
- Does Traditional Public Forum analysis - CB regulation gets SS. State says we have a CSI to avoid reasonable
observer thinking state is endorsing Christianity; but they could post a disclaimer, so loses on narrow tailoring.
Dissent: reasonable person would think this was gov. endorsement and no disclaimer could cure that, it would be too
small and inadequate
OUTCOME (narrowest grounds of concurrence – Marks rule): let the cross in (4-justice plurality) and put up the
disclaimer (3-justice concurrence)
**State could ban all unattended signs CN regulation and state would probably meet IS
b. TEN COMMANDMENT CASES – Lemon test w endorsement test influence; **close votes, thus are fact-bound inquiries
Stone (1980) – prior to Lynch and Allegheny; applies Lemon test and court says no secular purpose.
Dissent: secular purpose is that western world is based on Ten Commandments.
McCreary (2005) – Ten Commandments next to declaration of independence, lyrics of star spangled banner, etc. 5-4 Court
said attempt to meet 2 reindeer rule failed bc there clearly was religious purpose.
Perry (2005) - Ten Commandments part of 16 other monuments on Capitol grounds for over 40 years. Court rejects its
removal bc the reasonable observer would know the monument had been there and would not think this was
government endorsement. J. Breyer (dispositive vote) - no test can be a substitute for reasoned judgment. Pragmatic
resolution: anyone trying to manipulate the system loses; we aren’t going to go through our historical markers and tear
them down, but maybe wont’ encourage the construction of new ones
c. VARIOUS OTHER “PUBLIC” DISPLAYS OF RELIGION
a.
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Marsh (1983) – ability of the court to avoid any test application and simply point to historical tradition. Court says
prayers go way back with an unbroken history to the writing of the first amendment thus the historical basis is
an exception and does not violate the establishment clause. States can do it because congress can do it and congress
can do it because of history. Court did not apply the Lemon test, the endorsement test, or even psychological
endorsement. So, What about city councils? What if prayer becomes sectarian – Jesus Christ or other religious-specific
comments? What if it’s rotating sectarian prayers – represents every religion in a broad context? No guidance
3.
AID TO SCHOOLS
GENERAL CONCERNS: (1) Aiding private schools may ultimately fund some religious instruction. LINE-DRAWING issue - i.e.
providing fire protection to school frees up other money the school would have to spend, thus more money for religious
instruction. (2) Denial of money to religious schools: might damage private education; endorse secularism; punish religious
schools (discrimination)
LEMON VARIANT:
(1) SECULAR PURPOSE: (1) religious-neutral basis and (2) religious-neutral content – handing out crucifixes or bibles is not
content-neutral, but supplying tuition money could be
(2) SECULAR EFFECT: (1) indirect aid – test is NEUTRALITY - not favoring religion and (2) direct aid – NEUTRALITY &
DIVERTABILITY – diversion of aid – can money/services be diverted to religious purposes, SUBSTANTIALITY – amount of
aid given, and ENTANGLEMENT (some justices think these are the same
i. INDIRECT AID CASES
Mueller (1983) – statute tells parents whatever you spend on school costs you can get a tax deduction and it applies whether
children go to public/private schools. 96% of private schools are religious & the tax break benefits the religious school
attendance because in private school – books, transportation all costs money, but not in public schools. This is indirect
aid because tax break to parents not to religious schools.
*Footnote --- the division direct and indirect is not solidified in Mueller – it solidifies in 2000- 2002 period
 O’Connor was the only one who thinks there is a distinction; 8 justices think they are basically the same; now it’s 44, but the swing vote decides for distinction
- It has a secular purpose because the state providing help for education regardless of school is both secular and
understandable. Additionally, by these parents sending their kids to private schools they aren’t costing money in the
public school system. And, if tax deduction wasn’t given to private schools that could be religious discrimination
- Secular effect because the choice of whether the money goes to a religious school is a private parental choice, which
would break the causal link connecting the state and religion.
- It does not excessively entangle the state in religion - that indirect aid cases rarely result in government entanglement.
As a result “entanglement” drops out of indirect aid cases’ analyses
J. Marshall dissent – aid goes to religious schools just because it’s being filtered through the parents shouldn’t matter;
this is government subsidizing religious education – concerned with substantiality and support of religious education
Witters (1986) - Court upholds giving money to a visually handicapped person for vocational rehab when person was going
to a Christian college. (1) secular purpose: education; secular effect: plan is content neutral and aid is distributed on a
neutral basis bc it goes to all handicapped persons.
Because the payment was the production of indirect aid filtered through personal choice, and because it was created
with a secular, neutral purpose, it is constitutional. The payment creates no financial incentive for a recipient to
choose religious or irreligious uses.
Zobrest (1993) - Court upholds state paying salary of sign-language interpreter for a deaf student attending a Roman
Catholic high school. (1) Secular purpose: Education; (2) Secular Effect – content neutral and basis neutral.
Dissent: concerned that the faculty is involved every day – ongoing, daily, and intimate governmental participation.
Zelman (2002) – look at gov. aid problems broadly; look to all choices private v. public and all public schools – new
thought on neutrality. Court holds school voucher program (providing tuition aid and tutorial aid) does not violate
establishment clause. Lemon Variant: (1) Secular purpose – neutrality - promoting education; (2) “Secular” effects
prong -- Indirect aid (vouchers go to parents) & Neutrality (available to all). Recipients are not chosen based on
religion; no government indoctrination (individuals make choices); multiple public school options and most kids are in
public schools so how could anyone be concerned.
J. Stevens & J. Souter dissenting – the place to look is not where all the kids are, but the kids who have opted out; this
program cannot be religiously neutral when anyone who wants to opt out of public school goes to a private school
which are mostly religious.
- Has concern with the substantiality of aid and diversion of aid (but neither make it into analysis for indirect aid cases)
; he doesn’t think there should be a direct aid/indirect aid distinction
- Four justices here apply same test in DIRECT AID cases, and win over O’Connor to apply this test there (though not
for indirect aid).
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Under the dissent – the state could keep their voucher program if they stopped allowing vouchers to religious schools
 this might raise concerns for religious discrimination – we will get to this later
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ii. DIRECT AID
Aguilar (1985) (overruled by Agostini) - Court invalidated New York system providing public school employees teaching
remedial reading in parochial schools. Despite efforts to comply (removing religious symbols from walls & providing
supervision.). Court found the program unconstitutional because it involved excessive entanglement. Secular purpose:
education; Secular effects: the aid may be neutral, but there may be divertability concern – teacher might do remedial
reading from a religious book – limit/cure that divertability concern with monitoring but then that creates an
entanglement problem. Background concern that it is too substantial. Also concern that there is an endorsement concern
(not normally done in direct aid cases, but we see it floating in some of these early cases) – not quite language of
endorsement, but we have public school teachers in private schools, which could be seen as a symbolic gesture of state
supporting religion.
CORRECTED - Just took teachers and students off-site (this version upheld by lower courts)
Agostini (1997) - Court overrules Aguilar, explaining there is no reason to presume putting public teachers in parochial
schools would result in state-sponsored indoctrination or create an impermissible symbolic link
Majority: (1) Secular purpose (promote education); (2) Secular effects – direct aid case – it’s clearly neutral
(doesn’t skew people to religious schools); divertability – teachers are trained professionals there’s no reason to
assume they will violate the rules; if there’s no divertability than there is no need for monitoring or subsequent problem
with entanglement; substantiality – distinguishes supplemental (small- ok) and supplanted (taking over part of the
educational mission - not okay) aid & remedial math teaching is supplemental because it is a one class/supplement to
math instruction/help to the program
Mitchell (2000) - Plurality relies on a neutrality approach to uphold statute providing funds for state education agencies to
lend computers, including software and library books, to nonpublic schools
Plurality does indirect aid in a direct aid case (*direct aid is an arbitrary distinction) – (1) secular purpose: -equipment
case to aid with their secular education; (2) secular effects: neutral in purpose and neutral in effect – this is just
computers and textbooks. NEUTRALITY IS ENOUGH
Concurrence does direct aid case (that’s the narrowest ground): they say yes distinction bw direct and indirect matters.
Secular purpose – promote education; Secular effect – neutral, nobody is diverting material to religion and there’s a
safeguard in place – no evidence of more than de minimus diversion, the question becomes substantiality and this is
supplemental, not supplanting bc it’s not all their materials it’s just a small contribution.
Dissent (Souter, Ginsburg, Stevens) – finds program unconstitutional. Don’t believe in distinction, but think direct aid
analysis should be applied in every case; we should be worried about theoretical diversion- you can do practically
anything with a computer so there’s a real divertability problem; there’s a lot of aid – too substantial.
Rosenberger (1995) – U of Va – student group deciding what magazine is going to say and printers are printing it, school is
giving money to printers
Majority (kennedy) said state established a limited public forum; their restriction has to be reasonable and viewpoint
neutral – finds no establishment clause violation; dissent said it was viewpoint neutral bc religion was a subject matter
not a viewpoint and felt there was an establishment clause violation
This shows the messiness of deciding direct and indirect aid cases (our other cases were pretty cut and dry)
VIOLATION OF EST CL - Souter thinks this is direct aid – paying their printing bills is in fact giving them money –
which means we should worry about neutrality, divertability, substantiality, and entanglement. Thus, not funding the
magazine should not violate free speech bc funding it would violate the establishment clause
NO VIOLATION OF EST CL - Kennedy says it’s closer to indirect aid – religious content in the magazine is a student
choice and neutrality is enough to comport with the Establishment Clause
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B. FREE EXERCISE CLAUSE
a. OLD TEST: (Sherbert) – (1) religious conduct, (2) burden, (3) religious neutral (SS balancing) or religious based (SS)
i. Sherbert (1963) – woman doesn’t want to work on the Sabbath, denial of unemployment benefits burdens her; It’s
religious neutral, but there is an incidental burden - triggers SS balancing: CSI – people will get fired and then cook up
claim that it is religious, NT – other ways to deal with fraudulent claim AND this is weighed against severity of burden –
she can’t get a job and she doesn’t get benefits – she is being forced to choose bw religion and unemployment so this
balances and she wins.
ii. Yoder (1972) – Amish man took 15 yr old kids out of school before 17 for religious reasons, substantial burden, religious
neutral law– promoting education  SS Balancing – religious neutral incidental burden on Amish. CSI – universal
education (this sounds compelling, but the Court says the state interest is making members of the Amish community go to
school for an extra year or two and these kids aren’t people we are trying to keep in school to keep out of
gangs/violence/etc) - state interest is small when we clarify; it balances in Yoder’s favor.
*Note - some restrictive lines implying that not every group can win under this test – the Amish don’t cause social
problems, they have a long history in this country, basically we like the Amish.
b.
NEW TEST: Smith (1990) – man fired for using peyote (drugs) for religious purposes. (1) Test and History do not mandate
Sherbert (1960); (2) Policy: (a) balancing test is messy & requires litigation (what is CSI, NT, and severity of burden? What is
central/peripheral to religion? – i.e. wearing a suit to church); (b) constitutional anomaly – religious people can violate
criminal laws and get a free pass; (c) if we do want to help religion than those people should go to the political process (half
the jurisdictions in the country have peyote exemptions for Native Americans). (3) Distinguished Sherbert (applies only to a
narrow class of individual hardships created by general, not criminal, laws) and Yoder (applies only to “hybrid” rights,
parental substantive due process right to upbringing of child and freedom of religion; other examples - freedom of speech,
freedom of the press). **Hybrid rights distinction doesn’t make any sense (other than simply distinguishing Yoder bc they
don’t have 5 votes to overrule it); potentially an exception that swallows the rule – substantive due process right to control
substances in the body; go form an association and ingest peyote and right to association …seems to be an instruction on how
to litigate
TEST: Religious neutral - RBR. UNLESS it falls under: (a) hybrid rights situation (Yoder)– not just free exercise claim,
but something else and that would yield SS balancing; or (b) discretionary judgment situation (Sherbert - SS balancing)
i. Smith Under Sherbert, this would have been religious conduct (native Americans do ingest peyote as a religious
purpose); significant burden (if chemical is required to be ingest to honor your diety that’s a burden); this is religious
neutral (it’s not about oppressing the native American church it just incidentally burdens the native American religion).
So SS balancing – CSI/NT v. Severity of the burden. Concurrence and dissent who wanted to apply Sherbert, split on
balancing
J. O’Connor concurrence: disagrees with everything but the verdict; she argued free exercise is talking about free
conduct as well; when the government incidentally burdens religion (1A), there is still an entitlement of SS of some
kind to make sure that the government has a good reason. Nonetheless, even under Sherbert and Yoder, Oregon has a
CSI in “war on drugs” that outweighs even a high burden on religion (ceremonial peyote use). Religion is in the first
amendment it should have the first word, but under the balancing, the court/government gets the last word.
J. Blackmun & J. Brennan dissent: Court should have applied Sherbert test. CSI low & individual interest high.
TEST: Religious-based – Regular SS (Lukami). BUT THEN Locke – if gov. has historical concerns about separation of
church and state then it’s “play[ed] in the joints” & if it’s a mild burden than state wins (no real articulation of balancing, but
that’s what they do)
i. Laws that Target Religion
Lukimi Babalu Aye – Church of Santoria opens in town & they practice animal sacrifice; Hialeah passes ordinance
prohibiting the unnecessary killing of animals. Religion-based it triggers SS and statute is found unconstitutional. The
court looks at this and says statute is not a generally applicable religious neutral law, it targets the Santoria religion and
the statute itself uses the words “ritual” and “sacrifice” that carry religious connotations.
Locke (2005) – Davey wanted to pursue a degree in devotional theology in a Christian school with a state scholarship
and state says he can’t do that. He could use state scholarship to attend Christian school and even take course in
devotional theology, but cannot major in it.
- State is allowed to give him scholarship under the Establishment Clause bc Est. Cl. does not prohibit this Zelman –
indirect aid to religious schools is okay as long as its filtered through individual’s private choice. Davey brings suit
under Free Exercise Clause – State’s scholarship restriction is religious-based, so SS - government should fail, BUT 7-2
Court upholds Washington’s actions. “Play in the joints” – room bw Establishment Clause and Free Exercise Clause for
states to interpret and make choices when either action is constitutional under either clause. If state has historical
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concern over separation of church and state that is substantial than instead of SS, court applies ad hoc balancing. Here
state policy places only a mild burden on religion, so government wins.
Dissent: if the mildest burden in the world is facially discriminatory that’s enough to trigger regular SS
PERMISSIBLE ACCOMMODATIONS – Free exercise clause doesn’t demand accommodation, but at some point a permissible
accommodation may become an establishment clause violation
-- Layman’s terms: you must understand that the two religion clauses often work together. The fact that the establishment clause
doesn’t forbid the state from doing something does not mean that the free exercise clause mandates it.
Example: State school voucher program provides vouchers, but excludes using them at religious schools -- this is clearly not a
violation of the establishment clause.
o Free Exercise analysis:
-- Lukumi held that a law targeting religion triggers SS: this law would fail SS.
-- Locke v. Davey held that if the burden is mind and if the state interest is a historic and substantial interest in the separation
of church and state, the law can beupheld.
o Therefore, Locke v. Davey and the “play on the joints of the religion clauses” would suggest upholding the law.
1.
2.
3.
4.
5.
Amos – janitor fired since he wasn’t a Mormon in good standing. Test for a permissible accommodation, not necessarily
mandated by the Free Exercise Clause, but not prohibited by the Establishment Clause must meet Lemon Test:
(1) Secular Purpose – lift burden on religion imposed by the threat of litigation/chilling effect is a secular purpose;
(2) Secular Effect – it’s allowing all religions advance themselves is a secular effect bc no religious advancement can be
attributed to the government
(3) No excessive entanglement – this cuts entanglement because it is reducing litigation
J. Brennan’s Concurrence: we should be concerned with religious being discriminated against because if the church wins
that is technically a violation of his free exercise of religion, thus little religious liberty. But he ultimately agrees with the
outcome because think of religious organizations and their good works we don’t want litigation to chill their activities
J. O’Connor Concurrence: we should put this through prism of endorsement to ask if we are endorsing religion
Texas v. Bullock (1989) – If it has any of these three it’s likely to meet the Lemon Test:
(1) does not lift a special burden, so no secular purpose (Unlike Amos - no special burden here bc they are just paying their
taxes like everyone else)
(2) not broader than religion, so no secular effect (Unlike Walz 1970 where tax exemption included non-religious
organizations for charitable tax break, there’s no broad inclusion here)
(3) was a burden on non-beneficiaries of exemption (Unlike Zorach 1952 where school system released children from 6 th
period to go to church, which was okay bc it didn’t hurt the non-religious kids, but this tax exemption places a burden on
others because those people have to subsidize their exemption cost)
J. White says this is not a religion clause case, CB speech restriction triggers SS so unconstitutional on free speech grounds.
*Serious free speech argument on here – makes this a much cleaner, neater case
Kileyas Joel (1994) – free exercise doesn’t require accommodation, but statute permits it; court says it’s unconstitutional – it
doesn’t apply Lemon test, but cites a deeper fundamental problem – no upfront guarantee of equality (BIG THOUGHT) -it
needs to be religion neutral and this looks like favoring religion; school district - zoning and political issues (narrow thought)
J. Kennedy concurs – school district is a political boundary & if we start gerrymandering that’s a problem.
J. Scalia dissents – tiny religious minority that the state gave a break to in order to help disabled children who are suffering
additional troubles with culture of public schools. This is something good that we should be proud of in America.
RFRA – after Smith, congress passed Religious Freedom Restoration Act – conferring SS balancing protection on individuals
with religious claim; overruled Smith with statute, then in Boerne the Supreme Court struck statute down on federalism
grounds as it applied to the 50 states. Do statutes conferring SS balancing violate Est Cl – Sp Ct unanimously ruled they don’t
-- O’Centro – RFRA applied to US customs – requiring religious hallucinogens to be allowed
-- Espierta - dicta language that says we are following cutter; SS balancing for religious claims for free exercise are
permissible accommodations; general exemptions and both pass the Amos test. RFRA – court finds no reason to think it
violates the establishment clause
RLUIPA – Religious Land Use and Institutionalized Persons Act
-- Cutter v. Wilkinson – federal law grants institutionalized persons additional religious rights. Secular purpose – lifting
burden; Secular effect – letting religion advance itself; No entanglement. **No kileyas Joel problem bc it’s a universal
religious exception
Where are we – ask, what is the government doing?
Locke/Davey – state not giving accommodation – free exercise
Cutter – state extended protection not prohibited – establishment clause
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