A Sketch of First Amendment Law
First Amendment, Fall 2012, BYU Law, Prof. RonNell Andersen Jones
Contents
I.
Freedom of Speech................................................................................................................................... 3
A.
Theory ................................................................................................................................................. 3
1. Why Free Speech? ............................................................................................................................. 3
2. Free Speech Jurisprudence—The How of the Equation ............................................................. 4
3. The Circle ........................................................................................................................................... 4
B.
Incitement .......................................................................................................................................... 5
C.
Fighting Words .................................................................................................................................. 6
1. Man to Man ........................................................................................................................................ 6
2. Hostile Audience/Heckler’s Veto................................................................................................... 6
D.
Hate Speech ....................................................................................................................................... 6
E.
Sexually Explicit Expression............................................................................................................ 7
1. Roth Era ............................................................................................................................................. 7
2. Redrup Era ......................................................................................................................................... 8
3. Miller Era ............................................................................................................................................ 8
4. Question of Adult Viewers Only .................................................................................................... 8
5. Policy Justifications for Obscenity Regulations: ........................................................................... 8
6. Child Porn .......................................................................................................................................... 8
7. Sexually Explicit but Non-Obscene Expression .......................................................................... 9
F. Commercial Speech.............................................................................................................................10
1. The Test ............................................................................................................................................10
2. Rise and Fall of Vice Exception ....................................................................................................10
G.
Content Based Restriction on Speech in Circle ..........................................................................10
1. Subject Matter Discrimination. .....................................................................................................11
2. Speaker Restrictions ........................................................................................................................11
3. Impact on Audience........................................................................................................................11
4. Flag Desecration ..............................................................................................................................11
H.
Content Neutral Laws Over Stuff in Circle ................................................................................11
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1. Question of Whether Behavior is Communicative ....................................................................11
2. Nude Dancing—Bottom Line Application for Content Neutral ............................................12
3. O’Brien Test .....................................................................................................................................12
4. Time Place & Manner .....................................................................................................................12
5. Rules in Light of the Location.......................................................................................................12
I.
Ancillary Freedom of Speech Rights ................................................................................................13
1. Right Not to Speak .........................................................................................................................13
2. Right to Speak Anonymously ........................................................................................................13
3. Access Property to Reply? .............................................................................................................13
4. Right to Limit Speech on Your Property? ...................................................................................14
5. Right to Associate? ..........................................................................................................................14
6. Right to Not Associate? .................................................................................................................14
II.
Impermissible Methods of Restriction ................................................................................................14
A.
Overbreadth .....................................................................................................................................14
1. Policy Arguments ............................................................................................................................15
B.
Vagueness .........................................................................................................................................15
C.
Prior Restraint ..................................................................................................................................15
1. Analysis .............................................................................................................................................15
2. Views on Prior Restraint ................................................................................................................15
3. Examples ..........................................................................................................................................15
4. Fair Trial?..........................................................................................................................................16
III.
Freedom of the Press ..........................................................................................................................16
A.
Access to Criminal Trials ...............................................................................................................16
B.
Government Demands Information the Press Has ...................................................................16
C.
Laws Singling Out the Press ..........................................................................................................17
1. Laws of General Applicability .......................................................................................................17
D.
Libel ...................................................................................................................................................17
1. Sullivan ..............................................................................................................................................17
2. Public Officials ................................................................................................................................17
3. Public Figure ....................................................................................................................................18
4. Private Figure ...................................................................................................................................18
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IV.
Religion Clauses ...................................................................................................................................18
A.
Background ......................................................................................................................................18
B.
Free Exercise....................................................................................................................................18
1. Easy ...................................................................................................................................................18
2. Harder ...............................................................................................................................................18
3. Hardest..............................................................................................................................................19
C.
Establishment Clause......................................................................................................................20
1. Lemon Test ......................................................................................................................................20
2. Endorsement....................................................................................................................................20
3. Coercion ...........................................................................................................................................20
4. Voluntarism, Separatism, Non-preferentialism ..........................................................................20
5. Examples ..........................................................................................................................................20
6. Stuff Taught in School....................................................................................................................21
7. Stuff Displayed Outside School ....................................................................................................21
I.
Freedom of Speech
“Congress shall make no law abridging the freedom of speech.” The Freedom of Speech,
however, is not recognized as a license to say anything anywhere.
A.
Theory
Historically, England used to have a system of imprimatur that amounted to prior
restraint. There was also the tendency of the government to put down anything that
could be said to have had a seditious tendency. In the U.S., the Federalists (sedition
acts) and the Civil War government had issues with Free Speech, but a lot of the
modern case law arose from the World War I government.
1.
Why Free Speech?
 Marketplace of Ideas: We think that prior restraint is bad and that
it is better to let ideas out and let folks buy or ignore. In most cases,
the theory is that if the market has enough time, it will be able to
digest and appropriately deal with certain ideas. Admittedly, the
marketplace is not always a clean-cut way of approaching things. It
can be controlled by media giants. Should it be regulated? Milton
suggested that truth can stand on its own. Mills suggested that it is
wrong to suppress something even if it is wrong.
o We assume infallibility if we ignore other things.
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

o False ideas can have a measure of truth, and it is impossible
for the prevailing idea to be absolutely complete.
o An unchallenged truth becomes weak.
o The meaning of the prevailing opinion will be lost without
something to help define it.
Consistent with Democracy: Even if Free Speech does not help
solve the problem, it is still consistent with the idea of democracy. It
also has benefits that improve the government.
o Free speech informs the debate.
o It prevents the government from entrenching permanently—
it improves policy.
o As a check on behavior, it can prevent government abuses.
o It promotes stability by giving a safety valve for dissent.
Self-Fulfillment Theory: Free speech is an ends and a means. It
feels good. Although this element cannot really stand on its own, it is
an important element of what makes Free Speech desirable.
2.
Free Speech Jurisprudence—The How of the Equation
 Special Protection: The courts treat the economic marketplace and
the marketplace of ideas differently. The Carolene footnote
suggests that the courts will only give a narrow presumption of
constitutionality when a law appears to clash directly with one
of the ten amendments—ultimately, this boils down to a
presumption against content-based laws affecting Free Speech.
 Absolutes & Balancing: Should the court always find for Free
Speech? Or are there other interests? Obviously, the Court has
balanced interests rather than hold absolutes. Absolutes, furthermore,
can lead to absolute exceptions, which would not be good.
 Categorization v. Balancing: Ahead of times, the Court could
categorize some things as being irrelevant to Free Speech. Arguably,
this is like balancing ahead of time. It could lead to something things
being banned or tolerated according to category despite other
important factors.
3.
The Circle
The relevant diagram to all of this is a circle with a wavy line running through
the middle. In one half of the circle there is content-based speech law that is
presumed unconstitutional. In another half, non-content based law that
probably is constitutional. Outside of the circle are the sorts expression that
are not held to be speech and not protected by the First Amendment. The
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expression outside of the circle includes incitement, fighting words, and
obscenity.
B.
Incitement
In the pertinent case law, the Court repeatedly attempts to draw a line between mere
advocacy and actual incitement. There is always a continuum between talk and
action. Ideally, we would like for the marketplace of ideas to be able to digest ideas
appropriately and then discard them as necessary. After all, there is still a strong
interest in granting the spirit of democracy and allowing for a safety valve.
Gitlow is an example of the court being especially willing to defer to states. It was in
1925 and dealt with socialist propaganda.
In Whitney, Brandeis suggested that the legislature cannot be declaring stuff a clear
and present danger, we should protect advocacy of bad stuff because good counsel is
a better remedy, but clear and present danger is needed for if the market cannot shut
it down. You can punish the action if necessary. (Whitney was the lady who got
busted for being the extreme leftist organization in California.) Brandeis wanted
assessment of the court’s role, assertion of the theoretical reasons for protection, and
an element of clear and present danger.
Schenk: The sap was circulating pamphlets
detailing why people should hate the
draft and rise up against it.
Holmes suggests a rule where the Court
should look as to whether the alleged
inciter’s actions are taking place in
circumstances of such nature where
what he is doing is creating a clear &
present danger that certain substantial
evils will occur.
Dennis: This was against someone who
was involved in the Communist party.
The Court came out with a test that boils
down to the gravity of the evil
discounted by its improbability
justifies invasion of rights to avoid
danger. This harked back to the evil
tendency test, which is really what
decided Schenk. We see from this that
sometimes the Court is influenced by the tenor of
the times. Not always is it so clear that people
like the Communists never really stood a
chance—though arguably, perhaps they did.
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Masses Publishing: The sap wanted the
Postal Service to accept certain
pamphlets. Learned hand seemed to
think that he should look to the extreme
latitude of what the pamphlets were
suggesting and judge based on not
allowing people to counsel people
into doing unlawful acts. This text is
pretty much not very popular.
Brandenburg (The modern test): This was the
KKK guy in his field preparing to get
revengeance. The 1st Amendment does
not permit the government to forbid or
proscribe advocacy of use of force or of
law violation except where such
advocacy is 1. Directed to inciting or
producing imminent lawless action
or 2. Is likely to incite or produce
such action. (We see from this that
immediacy is key in addition to an evil
tendency. Learned Hand also gets some
credit for lawless action.)
C.
Fighting Words
You are no longer in the marketplace if you are out to do harm. On the other hand,
some fighting words situations are subjective and you can have a slippery slope
with a majority abusing a minority. Pulling down a speaker ends the conversation,
offensive stuff can have value, there is an advantage to safety valves.
1.
Man to Man
The watershed case is Chaplinsky (1942) in which a JW managed to offend
enough people to get arrested, or at least taken into police custody. He then
mouthed off to the cop and got busted. The reasoning of Chaplinsky is as so:
 Some words, like fighting words, contribute nothing to the
marketplace.
 If they actually do have worth, such worth is outweighed by the harm
to peace/morality that follows.
Chaplinsky’s chaser is Cohen, in which a moron wearing an “F the Draft” tshirt got busted for allegedly inciting violence by standing in a courthouse
with a bunch of protesters. The court reasoned:
 Courts are not in the business of cleansing the debate, and the
government likewise should not control.
 Words may be chosen for their emotive & cognitive effect. Here, the
guy was expressing his deep dislike of the draft.
In light of Cohen, Chaplinsky now controls fighting words differently:
 Lewd, profane, and immoral words are protected.
 Fighting words must be directed to the person of the hearer, not the
world at large. (We’re now talking about words that are an invitation
to brawl.
 Sticks and stones break bones, but injurious words are not going to
be held as hurting anybody.
2.
D.
Hostile Audience/Heckler’s Veto
The Cohen precedent is suggestive that a hostile audience does not have the
right to shut down the speech of some minority. The one precedent had a
crowd member telling the cops that something bad would happen, but
generally, the courts have not allowed a heckler’s veto. We see this with the
racist crowd. Also with civil rights protests.
Hate Speech
The 1990s saw a fad of hate crime laws. Some focused on the crime, others on
enhancing sentences on crimes that were apparently motivated by hate. The first
related incident of hate crime law came with Skokie, in which Nazi-minded people
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fought for the right to have a demonstration in a predominantly Jewish town.
Ultimately, the courts sided with the Nazi bums because it is not appropriate to ban
things that are merely offensive/hurtful (as per fighting words law).
R.A.V. v. City of St. Paul: The city made a statute that when one puts burning crosses
or Nazi swastikas on public/private property, they are guilty of disorderly conduct.
Scalia, at this point, extends the line through the circle to outside the circle—he
doesn’t like having a content-based law against expression that is not Speech.
Otherwise, the majority could use non-speech as a vehicle for viewpoints. Scalia
enunciates an exception, however. “When the basis for the content discrimination
consists entirely of the very reason the entire class of speech at issue is proscribable,
no significant danger of idea or viewpoint discrimination exists.” (So, this would
probably tie to the theory of what an incitement or fighting word is. It would
probably have to be tied up in a crime, somehow. Pure threats against the President’s
life are proscribable, but not those threats associated with his policy, viewpoint.)
When the basis for the content discrimination consists entirely of the very
reason the entire class of speech at issue is proscribable, no significant danger
of idea or viewpoint discrimination exists.
Other Justices suggested that the statute was overbroad anyway. It would have been
better for the city to have made a broader ordinance.
We later see that sentence enhancements are okay—you’re dealing with a crime that
has happened.
Then, there is the cross burning in Virginia v. Black. The court found the statute
overly broad where it said the crime was action + intent, but action was proof of
intent. Scalia seemed okay with the law. That should inform understanding of
R.A.V.
E.
Sexually Explicit Expression
There is a difference between obscenity and mere porn. Obscenity is outside of the
circle, and mere porn is inside of the circle, though there are many who argue that
sexually explicit expression has a lower value inside of that circle.
It should be noted that in Stanley v. Georgia, the court declined to let the government
exercise control over what somebody might possess in their home.
1.
Roth Era
Obscenity is something that the average person, applying contemporary
community standards, thinks it is, and the dominant theme taken as a
whole appeals to the prurient interest.
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2.
Redrup Era
The Court knew obscenity when they saw it.
3.
Miller Era
 Average person, applying contemporary community standards would
find the work taken as a whole appealing to the prurient interest.
(Subjective, community standard)
 Work depicts or describes in a patently offensive way sexual conduct
specifically defined the applicable state law. (Objective standard)
 Work taken as a whole lacks serious literary, artistic, political, or
scientific value. (Overall standard)
4.
Question of Adult Viewers Only
As per Paris Adult Theater I, the Court rejects the theory that adult viewers at
a business result in immunity for obscenity. The Court determined that states
have a legitimate interest in regulating commerce in obscene material, and
regulation exhibitions in places of public accommodations—including adult
theaters.
It should be noted, that statutes preventing kids from seeing porn will be
legit, so long as the city is using the least restrictive means possible.
5.
Policy Justifications for Obscenity Regulations:
 Corruption (though it’s okay in own home)
 Offense to unwilling onlookers
 Inducement of criminal conduct (weak argument)
 Eroding moral standards (hard to use)
a)
6.
Subordination of Women
Some tried to argue that you should be able to declare that porn that
depicts domination of women is bad for society and thus, it should
be banned. However, this cannot stand because it is content-specific
and viewpoint discrimination.
Child Porn
Child Porn can pretty much claim its own spot outside of the circle.
Obscenity is not required to ban it, thus, Miller does not really govern
determinations. The idea that it’s okay in your own home is also defeated
here.
a)
Ferber v. New York
 State’s interest in safeguarding minors is compelling.
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



b)
7.
Distribution of child porn is related to sexual abuse of
children because it is a permanent record, and because
control of the distribution is the only way to control
production.
Advertising and selling child porn provides an economic
motive for doing acts on children that are already illegal.
No value
You can look at Miller, but the appeal to prurient interest is
not required. You need only the little value and objective
standards of the statute.
Ashcroft v. Free Speech Coalition
Porn depicting but made without children is not banned. Absent the
child connection, there just is no justification for putting it beyond
Miller’s scope.
 Fact that pedophiles might show such porn to kiddies is not
sufficient.
 Not an empirical connection between child porn and crime
 If virtual child porn is so good as to be undistinguishable and
thus in need of an across-the-board ban, wouldn’t it drive the
child abusive stuff out of the market.
Sexually Explicit but Non-Obscene Expression
Justice Stevens thinks that even within the circle, there should be lower
protections for sexually explicit speech. He doesn’t think we send soldiers to
fight for sexually explicit expression. The balancing of interests often results
in the Court allowing the curtailing of sexually explicit expression.
As per Erznozink, the Court might not like a ban on nude stuff on a publicly
visible drive-in movie screen because such ban would be content based.
But, erogenous zoning statutes have been held legit.
a)
Erogenous Zoning
 Young v. American Mini Theatres: A plurality allowed the
city to control placement of adult establishments in relation
to other sorts of establishments. They cited that sexual
expression is of lower value, and it is not being completely
suppressed.
 Renton v. Playtime Theatres: Secondary effects (aka, Pigpen)
are a good reason to uphold such ordinances.
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

F.
L.A. v. Alamdea Books: City can show a state interest, and it
doesn’t have to be all that empirical.
BOTTOM LINE: An ordinance backed by a substantial
interest and that still allows the speech somewhere is legit.
Commercial Speech
Commercial speech is categorized as lower value speech. The court was originally
quite hostile to commercial speech until the following case:
Virginia Pharmacy Board v. Virginia Citizens Consumer Council: Speech doesn’t lose
protection merely because there is money behind it. Economic motive is no different
from labor strikes. You can’t protect consumers by keeping them in the dark about prices. You
can regulate false commercial speech, make broader time, place, manner restrictions.
However, you cannot do prior restraint. There is the argument that commercial
transactions and the advertising involved can be regulated, but also the idea private
economic decisions are a subset of public decisionmaking. Truth prevails in the
marketplace.
1.
The Test
As per Central Hudson Gas:
 Is the commercial speech lawful and not misleading?
 Is the asserted government interest substantial?
 If yes to the last two, ask whether regulation directly advances the
governmental interest asserted and
 Whether it is not more extensive than necessary to serve that interest.
2.
Rise and Fall of Vice Exception
Should government be allowed to suppress advertisements for vices? The
theory under Puerto Rico gambling case is that the ability to ban gambling
should indicate that state has authority to ban advertising of gambling. The
court combined with the Hudson test.
Then, a state’s attempt to ban advertising of alcohol content got struck
down. The tailoring was off.
Then, in 44 Liquormart, the Court struck down the greater/lesser standard
and required application of the Hudson test.
G.
Content Based Restriction on Speech in Circle
If you are going to restrict based on content, you had better be prepared to meet
strict scrutiny, which requires a compelling state interest and narrow tailoring (too
big or too small will kill it). As far as policy goes, it isn’t good to have laws targeting a
specific content. They are weapons and cuts off stuff out of the market.
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1.
Subject Matter Discrimination.
The examples are picketing bans in front of school based on subject or
where picketing is banned in general except for limited exceptions. These
restrictions were held as not being legit. The New York statute requiring
proceeds from “How I did my crime” books to be confiscated was struck
down under strict scrutiny.
BUT: Burson v. Freeman: State ban on activity within a certain distance of a
voting location was upheld. There was a compelling interest, and the
restrictions were okay. This shows that something to do with upholding
another Constitutional right where that right has been endangered is possibly
okay. However, the Minnesota case frowned on laws about what could be
said in elections for judges.
2.
Speaker Restrictions
Subject to strict scrutiny. Keep in mind that this applies not only to
restrictions, but possibly endorsements or tax deductions.
3.
Impact on Audience
Not usually a legit excuse.
4.
Flag Desecration
Street v. New York saw guy get busted, but Court determined he got busted
for later mouthing off to cops. Smith v. Goguen strikes a statute down for
vagueness, and another case was okay with a peace symbol on the flag.
Texas v. Johnson: The act was expressive. Furthermore, the ban is not
content neutral, mostly because it is obvious what you’re after. So, strict
scrutiny and failure. Same to the revised statute.
H.
Content Neutral Laws Over Stuff in Circle
Basically, the question is time, place, and manner. Such laws are subject to
intermediate scrutiny. Intermediate scrutiny requires a significant or substantial
government interest (lower than compelling) and the restriction needs to be
somewhat well related to accomplishing the interest. As for time, place and manner
restricts, there should be ample alternate opportunity for the speech. The hallmark of
content neutral is that it aims at speech or behavior, but not at messages.
1.
Question of Whether Behavior is Communicative
The government might ban some act that is said to be speech. The example
is draft card burning. In order to be communicative, an actor must 1)have
intent to convey a particular message, and the audience 2)must be able to
understand what that message is—reasonable viewer. Spence v. Washington:
Peace sign taped to flag.
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Obviously, if the government has banned an act, and it isn’t communicative,
the First Amendment can’t do much for them.
So, with O’Brien, the government banned draft card burning. The burning of cards
was communicative, however. So, the Court reasoned that the government has
authority to make draft card burning illegal, making it illegal furthers a substantial
government interest, the interest is sufficiently unrelated to the free expression, and
the incidental restriction is no great than essential to further the interest. Obviously,
there were other ways to communicate the message.
2.
Nude Dancing—Bottom Line Application for Content Neutral
Barnes v. Glen Theatre: Indiana has requirements for g-strings and pasties.
Nudity can be expressive, but the statute is pretty much an incidental
restriction (flag burning was not incidental, it was aimed at a message) on
some of that speech. So, see O’Brien. Law in Constitutional power. There is a
substantial state interest. It is unrelated to free expression. No greater than
necessary. Also see the pig-pen idea.
3.
O’Brien Test
 Incidental limitation?
 Legitimate government action?
o Within constitutional power?
o Further a substantial interest?
o Interest is unrelated to suppression of free expression
o No greater than essential?
o Also, from elsewhere, ample alternatives.
4.
Time Place & Manner
You’re dealing with time, place, and manner if the restrictions are justified
without reference to the content, if they serve a significant governmental
interest, and if in doing so, they leave open ample alternative channels of
communication. Heffron v. Krishna, state fair example. As per the camping on
the mall case, there is deference to the forum administrators making safety,
convenience, aesthetics, etc.
5.
Rules in Light of the Location
a)
Public Forum
For example, parks. Strict scrutiny is applied if content based,
intermediate if a time, place, or manner thing. The doorstep is
considered public enough to be open to speech.
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Flat bans don’t often stand, and licensing schemes must be
objectively neutral. The Court has forbidden bans on pamphleteering
or door knocking.
The National Park Service was able to ban overnight camping as a
protest. It was an incidental restriction. It was in the park service’s
authority. It was based on a substantial government interest. The
interest was unrelated to suppression of expression. It was no greater
than essential (tailoring narrowly). There were ample alternatives, etc.
I.
b)
Non-Public Forum (Government Office)
Restrictions must be reasonable in light of purpose served by
government. They must also be viewpoint neutral.
c)
Limited Purpose Public Forum
For instance, a school rented for a meeting. This is the same as public
forum once it is opened up.
d)
Other
Court has rules for prisons, schools, military bases, and other
authoritarian places. The rules revolve around expectations.
Ancillary Freedom of Speech Rights
ASK is this compelling speech? If yes, determine whether content neutral, then go
on through and do normal analysis.
1.
Right Not to Speak
This is a right. As per the JWs and the pledge of allegiance. Also, New
Hampshire license plates. This would be coming from the inverse of the idea
that you can’t have content specific bans. You can’t have content specific
requirements. Thus, strict scrutiny.
2.
Right to Speak Anonymously
Similar to right not to speak. Strict scrutiny. Anonymity is a well-founded
tradition in American politics. Good things come from it. This is anonymous
political ads.
3.
Access Property to Reply?
No, this is not a right. With print, there is absolutely on right to force
anything. (Tornillo) With broadcasting, there are limited waves, so some
rights might be forfeited (cable forced to carry local). The mall in California
was based on a California constitutional provision, and it was a mall, to boot.
That was Pruneyard, they also reckoned that the speech wasn’t the mall’s
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speech. But overall, private property is too protected. Also utility envelopes
as per PG&E are not free game. But Turner Broadcasing made it different..
II.
4.
Right to Limit Speech on Your Property?
Yes, see above.
5.
Right to Associate?
Yes. With the Jaycees, a state law made it so that people could join clubs.
This was a content neutral law and met scrutiny. There was speech involved,
a compelling interest (anti-discrimination can be compelling, apparently—
where there is a compelling interest, tailoring fails where the person
cannot have their viewpoint), and a tailored law because they could still
hold their message. Furthermore, the rights of the Jaycees to continue
expression of their idea was not impinged.
6.
Right to Not Associate?
Yes, but only if the association would work against the message. The parade
being forced to allow gay people club would express endorsement of the gay
rights movement. (But it would be okay from above to force gay people to
be able to march with other organizations.) Also, the Boy Scouts. The
question is whether there is expressive association and whether allowing the
person in would interfere with the message. Apparently, the lawsuit was
based on a New Jersey law against discrimination. This was basically strict
scrutiny.
Impermissible Methods of Restriction
These things can kill a speech restriction that might otherwise be legit.
A.
Overbreadth
 Precision is key. This is closely related to tailoring, and is often discussed
interchangeably by the court.
 Facially invalid: such laws chill speech and make people suffer all around.
Thus, the court will strike the statute down.
 Litigants bringing overbreadth have 3rd party standing: It doesn’t matter if
your stuff is obscene and unprotected—if you’re being prosecuted under a
bad statute that hits other people who are protected, you can still facially
invalidate.
 Overbroad must be substantial overbreadth. If it’s just a little overbroad, it’s
not worth it.
 Legislature can only rework things prospectively. A state court might be able
to narrow it down to prevent the statute from being struck down.
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1.
Policy Arguments
It leaves options to legislature when the Court says the statute can be
reworked to not be overbroad. It’s also good to have the Court not trying to
rewrite the statute and just sticking to a neutral facial invalidation. However,
it gives the court a lot of power, make decisions abstract, and can put
speakers on uneven ground.
B.
Vagueness
 This is about clarity
 This is closely related to Due Process—people should have forewarning.
 Vagueness gives rise to prosecutorial discretion problems. Enforcers should
have clear guidelines.
 Facial invalidation occurs. No chilling allowed.
 If you have overbreadth, look for vagueness.
 The law is vague if persons of average intelligence must necessarily guess at
its meaning and differ as to its application.
C.
Prior Restraint
1.
Analysis
 Scope: Often sucks in more than it is designed to cover
 Timing: Shuts down communication and cripples the market before
ideas get there. We speculate about the seriousness.
 Ease: Too easy to ban stuff. It gets out of control.
 Secrecy: Speaker cannot be anonymous. Censor board is secret, too.
 Incentives: Crazy censor person is naturally conservative, and
eventually moves to forcing a viewpoint rather than any legit
purpose.
2.
Views on Prior Restraint
 Absolutism: It is never okay to have prior restraint.
 There might be occasion to restrain, but that would be a direct,
immediate threat on irreparable damage. The dicta of Near
suggests that it would have to deal with the draft or troop
movement and locations.
 Separation of Powers: This is a political question and the court need
not worry about it.
3.
Examples
 Pentagon Papers: The Court found it convincing that things in
question were historical. There is ample ways to keep things secret.
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4.
Fair Trial?
Nebraska Press v. Stewart, prior restraint
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III.
H-Bomb Instructions: The judge said that if we all die because of
this, there’s no point in freedom of speech.
Must be showing of publicity so intense that it would destroy ability
to have a fair trial.
There are no alternative measures to achieve protection of a fair trial
as detailed in the record.
Must be showing that a gag order would be effective.
Freedom of the Press
The First Amendment has a speech clause and a press clause, but the courts have generally
declined to recognize any special privileges for the press under the press clause, choosing to
cast language on press decisions in speech terminology. Many have argued that the clause
creates a practical fourth branch of government and that the media is an essential check on
the government. However, it is difficult to figure out what constitutes the press, nowadays.
A.
Access to Criminal Trials
With Richmond Newspapers, the court took a penumbra approach and said that if you
read all the rights of the Constitution, one of the sums you get is that there is a
guarantee to see trials, or have trials witnessed. The defendant didn’t want a trial
witnessed, but in a way, that is a safeguard. Ultimately, the court applied a strict
scrutiny standard, requiring a compelling interest and narrow tailoring. Completely
barring the press from the courtroom did not suffice as tailoring for the admittedly
strong interest of giving the defendant a fair trial. Globe Newspaper Co. is where the
narrow tailoring really came into play—with testimony of a child sexual victim and a
statute that was too broad about excluding the press. The court recognized a
compelling interest in avoiding trauma to the child, but not an interest in having
witnesses afraid to testify.
B.
Government Demands Information the Press Has
The press would like to claim that they have a duty to find information and should
have the right to protect that information and preserve their sources. The Court in
Branzburg didn’t buy the arguments of chilling or special status. The press has to give
evidence. However, it was a 4 + 1 majority, and clever media lawyers have cooked up
a test that the press should have a qualified privilege—1) there must be probable
cause that the reporter has something specific, 2) they must demonstrate that
there is no less intrusive way to get the information, and that 3) there is a
compelling interest in knowing. Only with the specific Branzburg situation, does
it seem to stick, unless you’re Posner or in the 6th circuit. (6th and 7th, apparently).
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Branzburg involved a reporter witnessing drug making and two reporters in Black
Panther headquarters.
Much of this is moot, however. All states but Wyoming have enacted press privilege
statutes.
C.
Laws Singling Out the Press
With Minneapolis Star & Tribune, the state cooked up some use tax on paper and ink
and charged it to all but the top newspapers. This basically singled the newspapers
out. The Court compared it to the Grosjean mess where Huey Long tried to punish
newspapers with a tax. Although this seemed more neutral, the Court theorized that
even a benefit can become a way to control a newspaper, and concluded that the law
was not legit. Another Arkansas law got struck for taxing based on content, but yet
another Arkansas scheme upheld because it was broad on its face and pretty neutral.
There is also the Turner Broadcasting forcing cable to carry TV. Where there are
special characteristics of the medium, a narrower sort of tax or treatment could be
okay.
1.
D.
Laws of General Applicability
The press is also subject to laws of general applicability. In the case where
they agreed to keep an identity secret, but didn’t, the newspaper got busted
under promissory estoppel. They still have to obey the law in gathering their
news, though some of the dissent argued that what was being punished was
core political speech.
Libel
The common law had a presumption that any kind of defamation was false. The
victim proved that what was said hurt them, and then the defendant had to prove
that what was said happened to be true. This is chilling. Thus came NYT v. Sullivan.
Also, this all stretches to other torts coming from speech. IIED is one thing for sure.
1.
Sullivan
The police commissioner sued because some of the things said had
technically been false. The Court declined to allow some sort of truth test to
control the marketplace of ideas. Now, the victim must prove that the
statement was 1) false and 2) made with actual malice, which is either that the
defendant knew the statement was false or acted with reckless disregard.
2.
Public Officials
Elected figures, or figures that make decisions. The standard they operate
under is Sullivan.
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3.
Public Figure
Also fit under Sullivan. A public figure is someone with access to the media
or has voluntarily exposed themselves or thrust themselves in the limelight.
Ideally, the remedy is just to have some more speech.
4.
Private Figure
In public or on topic of public concern: There needs to be a measure of
negligence at least and only actual damages are allowed unless actual malice
can be proved.
In private on private: They get actual damages and punitive damages.
IV.
Religion Clauses
A.
Background
What did founders intend?
How can clauses (free expression and
anti-establishment) be reconciled?
What should count as religion?
B.
Voluntarism? (religions needs to thrive
on their own, otherwise it cheapens)
Separatism? (there needs to be a big, firm
wall)
Non-preferentialism? (so long as a
national church is not established, what is
the problem?)
Neutrality? (religion not the reason to do
or not to do something)
Individual freedom to or to not worship?
Genuinely held beliefs? (Needs to be like
a moral belief, not a logical conclusion or
political position)
Religion-y stuff?
Free Exercise
 Easy: Laws prohibiting/compelling belief
 Harder: Laws targeting religious behavior
 Hardest: incidental burdensome effects to religion
1.
Easy
Such examples are rare. Torcaso v. Watkins, 1961, Maryland requirement that
public officers believe in God struck down. McDaniel v. Paty, 1978,
Tennessee law barring clergy from the legislature struck down.
2.
Harder
Churck of the Lukumi v. City of Hialeah, 1993: The city ordinance went after
the ritual sacrifice of animals. It was clear in the records that they were going
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for that. Where the law is not neutral or of broad application, the state
must meet a strict scrutiny requirement. That would be compelling
interest and narrow tailoring. Scalia and Rehnquist are concerned that you
should just be sticking to the test to figure out whether it is neutral. There is
also the possibility that they could have used Establishment case law here,
because the law allowed kosher butchering. Ultimately, the law was
overbroad.
Lock v. Davey, 2004: State of Washington wouldn’t let its scholarship
proceeds go to people training to be priests. This deals with a state
constitution, and is merely the state declining to give benefits, rather than
targeting people. Scalia and Thomas argue that this is a generally available
benefit and that religion is being excluded.
3.
Hardest
Most problems come from rather neutral laws and religious people wanting
to have exemptions. Reynolds sets the tone for this, even though it isn’t
properly categorized here. Basically, the precedents are that you can believe
what you want, but the law of the land is what it is.
Braunfeld, 1961: Too bad so sad for Jews who have to close on their Sabbath
and on Sunday, too. Indirect costs of practicing religion are okay.
But then, in Sherbert, you have the lady who couldn’t get benefits for
unemployment because she wouldn’t work on Saturday and all the jobs she
was turning down required Saturday work. The bottom line here is that 1) is
there a burden being imposed on those who wish to have free exercise and 2)
strict scrutiny applied if there is a burden.
Following Sherbert, it became practically impossible to meet strict scrutiny in
any instance. Hobbie allowed an exception for somebody who changed
beliefs during employment. Frazee allowed someone without a sect to still
claim Sabbath. In Yoder, the Amish were allowed to not send their children
to school.
So, there were ways to get around Sherbert: 1) Say that the case wasn’t similar
to Sherbert’s facts, 2) say that strict scrutiny was met, and 3) say that the
imposition wasn’t significant enough to trigger Sherbert.
Then came Employment Division v. Smith. People were fired for doing
their peyote as per a Native American Church ritual. The unemployment
benefits did not issue because of the circumstances.
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Generally applicable laws get rational basis, but hybrid cases involving
other constitutional rights will get strict scrutiny. We don’t want
people have exemptions left and right, particularly in the face of
criminal laws. Sherbert is limited to its facts, period.
RFRA was passed. It applies only to federal laws (forces strict scrutiny)
because of City of Boerne. You don’t apply strict scrutiny unless you have a
narrow Sherbert pattern, or perhaps a federal law subject to RFRA.
C.
Establishment Clause
The Lemon Test is the official precedent for establishment questions, but there are
other things that the Court talks about.
1.
Lemon Test
 Statute must have a secular legislative purpose (criticism of this
indicates that this would strike down all accommodation of religion)
 Its principal or primary effect must be one that neither advances nor
inhibits religion
 Statute must not foster an excessive government entanglement with
religion
2.
Endorsement
Does the action put a stamp of approval on a set of beliefs or on religion in
general?
3.
Coercion
Any sorts of action that would coerce an individual to believe or adopt a set
of beliefs is bad.
4.
Voluntarism, Separatism, Non-preferentialism
General sort of thing to draw upon
5.
Examples
 McCollum: Seminary in school building taught by school teachers—
bad because you have public buildings and school hours and
sectarian groups are able to access the students.
 Zorach v. Clauson: Allowing children to leave school grounds for
religious instruction. No coercion. All costs are paid by religion.
Nobody is forced. Some say this is the same as McCollu, and that this
is during school time.
 Engel v. Vitale: Teacher leading non-denominational prayer is held to
be bad. Kind of a pre-supposed coercion.
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Abington School v. Schempp: Bible reading—coercion based on the
purpose and effect.
Wallace v. Jafree: One minute for contemplation and prayer. This is a
violation of Lemon because there is no secular purpose.
Lee v. Weisman: Formal religion at graduation: Kennedy does
coercion, O’Connor focusses on endorsement. The idea is that
endorsement begins to prevail here.
Sasnta Fe Independent v. Doe: Student is still basically endorsing
from school despite this being an election sort of situation.
Extra curc? No coercion with a club, no heckler’s veto.
6.
Stuff Taught in School
 Elk Grove v. Newdow: O’Connor gives us an argument on
ceremonial deism. Solemnizing, confidence in the future,
acknowledging what is in our society.
 Epperson v. Arkansas: Anti-evolution is struck down because of
purpose as per Lemon.
 Edwards v. Aguillard: Also purpose as per Lemon.
7.
Stuff Displayed Outside School
McGowan: Sunday closing laws upheld because they are old.
Marsh v. Chambers: Legislative prayer upheld because it’s old.
Lynch v. Donelly: Christmas display, prices of it all, etc. Meets Lemon, or
Reindeer, anyway. O’Connor: not endorsement, and in any case, ceremonial
deism to solemnize, confidence in the future, acknowledging what is in our
society.
Allegheny County v. ACLU: Nativity scene on courthouse steps alone bad,
but the menorah, Christmas tree, and salute to liberty is legit.
McCreary County: 10 Commandment display later included with other things
violates establishing. As opposed to Van Orden v. Perry where the Texas
market on the capitol grounds among others is okay. The context seems to
be important, history helps, purpose is probably what trumped on McCreary.
Forty years is a magic number.
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