Constitutional Law II
Special Issues in 1st Amendment
Forced Speech
Background
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
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Official orthodoxy is odious to free gov’ts
Orthody enforced through licensing/prohibition
Even more objectionable with forced speech
“If there is any fixed star in our
constitutional constellation, it is that no
official, high or petty, can prescribe what
shall be orthodox in politics, nationalism,
religion, or other matters of opinion or
force citizens to confess by word or act
their faith therein.”
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WV v. Barnette
(1943)
Compulsory flag salute/pledge

Is this speech?
 “symbolism is a primitive but
effective way of communicating”

applies both to the flag and to the salute
 the pledge is more traditional (verbal) speech

Is it a religious belief (or violation of one)?
Compelling state interest?

Inculcation of civic virtue (patriotism)
Necessary means?
Frankfurter dissent. On what grounds?
Fall 2006
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Wooley v. Maynard
(1977)
“The right to speak and the
right to refrain from speaking
are complementary components
of the broader concept of
`individual freedom of mind’”
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PG&E v. PUC
(1987)
Is speech found inside a billing envelope?

Is it usually private or public (3d party) speech?
What type of forum is the envelope space?
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
Public, limited public, non-public
Private property
 Whose property? The utility’s or the customer’s?
Can gov’t require access to private property
for speech purposes?


Fall 2006
Only if it satisfies strict scrutiny
Why this standard of review?
Con Law II
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Boy Scouts v. Dale
(2000)
To what extent can a private firm or entity
discriminate in its membership?

Ex: hospitals, private schools, colleges, labor
unions, commercial enterprises
 Discrimination doesn’t violate EP (unless SAD found)

Can state law prohibit private discrimination?
 Yes, unless it violates the entity’s own const’l rights
To what extent does a private firm or entity
have a 1st Amd right in selecting members?

Fall 2006
State restrictions on membership might violate
the entity’s right of expressive association
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Right of Expressive Association
Source
Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances
 Unless people are expected to exercise religion,
engage in speech, to assemble, or to petition gov’t
by themselves, these textual rights imply a
correlative right to “associate” for such purposes
 Expressive association – First Amendment
 Intimate association – due process liberty
Fall 2006
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Right of Association - Interference
Prohibited organizations, Membership

Dennis v. US (CPUSA) - disapproved
Associational fund raising

Buckley v. Valeo (campaign contributions)
Forced disclosure of membership

NAACP v. Alabama (regulatory disclosure)
Required association (open membership)

Public accommodation laws (clubs, groups)
 Basic inquiry: is this an “expressive” association?

Fall 2006
Hurley v. GLIB (participating in private parade)
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Boy Scouts v. Dale
(2000)
IS BSA an expressive association?

Private, non-profit organization
 Most hospitals, private schools, colleges, unions
 Even some commercial enterprises

Principal mission
 Commercial
 Social organization


Mixed purposes often found
(e.g., country club)
Inculcation of values
Scout oath; Scout law
Does forced admission interfere with its
rights of expressive association?
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Boy Scouts v. Dale
(2000)
Does state regulation (forced membership)
implicate the organization’s expression?

Does it cause a “deprivation” of 1st am rights?
I.e., "significantly affect the Boy Scouts' ability to
advocate public or private viewpoints" ?

Is the membership criterion central to its mission?
Ex: Ku Klux Klan, BALSA, Church/Synagogue/Mosque
Ex: country club, membership store (Costco)
Are views on gays central to BSA’s mission?


Athiests? What if the Boy Scouts
excluded minorities?
Girls?
 Single sex schools, clubs, etc.
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Boy Scouts v. Dale
(2000)
What are BSA’s core (expressive) principles?

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A Scout is: Trustworthy, Loyal,,
Helpful, Friendly, Courteous,
Kind, Obedient, Cheerful, Thrifty,
Brave, Clean, Reverent
Where does “straight” come in?
 NJSC: exclusion of gays contradicts BSA’s principles
 Shouldn’t the USSC defer to the lower courts’
findings of fact?


Are they really mixed fact/law questions?
Any more than any other finding of fact?
 Should it accept BSA’s assertion of principles (gays)?
Fall 2006

Who normally has burden of proving a “deprivation”?
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Boy Scouts v. Dale
(2000)
Do anti-discrimination laws survive SS?

See Roberts v. United States Jaycees (1984)
 "infringements on the right [to
association] may be justified by
regulations adopted to serve compelling
state interests, unrelated to the
suppression of ideas,
that cannot
be achieved through means significantly
less restrictive of associational
freedoms."
See also
Unconst.
Conditions
 Does
BSA have a right to use public property?
 Or can state exclude discriminatory groups from a
limited public forum (if related to the limitation)?
Fall 2006

Barnes v. BSA, 275
F. Supp.
2d 1259 (SD CA 2003)
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Fall 2006
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NY Times v. United States
(1971)
Publication of
material whose
disclosure posed
“a grave and
immediate danger
to the security of
the US”
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NY Times v. United States
(1971)
Sunday
13-Jun
Monday
14-Jun
7:30 PM
Call from Asst. AG Robert Mardian; Telegram from AG Mitchell
14-Jun
8:30 PM
Times replies, rejecting cancellation of story
Tuesday
First NYT article on Pentagon Papers
15-Jun
Third Installment
15-Jun
US v. NYT filed in SDNY; TRO granted
Weds
16-Jun
Request for production by US.
Thurs
17-Jun
SDNY (Gurfein) denies gov’t motion
Friday
18-Jun
Washington Post publishes 1st Pentagon Papers segment;
18-Jun
PI Hearing in US v. NYT
Saturday
Fall 2006
18-Jun
5:00 PM
US v. WP (DCDC) filed; TRO requested
18-Jun
8:00 PM
DCDC (Gesell) denies TRO
18-Jun
9:45 PM
US appeals denied TRO to DCCir. (Wright, Robinson, Robb)
19-Jun
1:20 AM
DCCir. reverses Gesell
19-Jun
Post publishes 2nd installment
Con Law II
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NY Times v. United States
Saturday
Monday
(1971)
19-Jun
SDNY denies PI & dissolves TRO; allows time for US to appeal.
19-Jun
2nd Cir (Judge Kaufman) extends TRO until Monday June, 21st.
21-Jun
8:00 AM
DCDC (Gesell) holds hearing on PI
21-Jun
4:30 PM
Gesell denies injunction
21-Jun
DCCir. continues TRO until June 22
22-Jun
2nd Circuit hears argument in NYT
22-Jun
DCCir. hears argument in WaPost
23-Jun
2nd Circuit reverses SDNY & extends stay
23-Jun
DCCir denies gov’t appeal but stays its order to June 25
24-Jun
NYT files pet for cert in USSC
24-Jun
US files pet for cert in USSC
Friday
25-Jun
USSC grants both petitions.
Saturday
26-Jun
Weds
30-Jun
Tuesday
Weds
Thurs
Fall 2006
11:00 AM
Oral Argument in USSC
Decision in NYT v. US.
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NY Times v. United States
(1971)
Black: (absolutist)
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Summary action - no oral argument
Flagrant violation of express constitutional text
No inherent presidential authority to halt the press
(recall his view of SoP in Youngstown)
Douglas: (near absolutist)


Stays themselves are a violation of free press
Secrecy is fundamentally anti-democratic
Brennan: (near absolutist)
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Fall 2006
Super Summary Judgment.
Impose heaviest burden on gov't to make out a prima
facie case for Near exception (not even alleged here)
Con Law II
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NY Times v. United States
(1971)
Stewart: (rejects judicial participation)


Self help for executive.
The responsibility must be where the power is.
White: (SoP)

In the absence of Congressional authorization,
President's inherent powers not broad enough to
enjoin press. But had Congress authorized, then prior
restraint might be available because disclosure will do
substantial damage to nat'l interests.
Marshall: (SoP)

Fall 2006
SoP issue: Up to Congress to authorize prior restraints.
Con Law II
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NY Times v. United States
(1971)
Burger (dissenting):


Judicial haste unwarranted
Court’s function exceedingly narrow; only to determine
subject matter of dispute lies within executive branch
Harlan (dissenting):



Irresponsibly feverish
No problem with TROs and regular calendar
Greater deference needed to executive in national
security matters.
Blackmun (dissenting):

Follow formal rules of procedure.
Why did court rush to judgment?
Fall 2006
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