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Course: First Amendment Keenan Fall 2001
School: University of Detroit
Year: 2001
Professor: Keenan
Course Outline provided by



Chapter 1 - Freedom of Speech - Why Govt Restricts Speech - Unprotected and Less Protected Expression

Section 1 - Free Speech Overview

  • Palko v CT (1937) - Cardozo said prot of speech is fundamental, indispensable to all of our other freedoms

  • prior restrains through licensing were a problem in England - they would require a license to be able to print something - so Royal officials had power to give or withhold a license at their discretion (idea is that this might have been catalyst for 1st amendment in this country)

  • seditious libel - also a problem. This was the intentional publication, w/out lawful excuse or justification, of written blame on any public man, or of the law, or any institution estab by law. English judges used to say that on quest of intentional publication, it was enough to show that D had intended to publish writings having a seditious TENDENCY; therefore the Crown did not have to show D maliciously intended to cause sedition

  • Sedition Act of 1798, enacted by the Federalists, barred publication of false, scandalous, and malicious writing against the govt, or the president, with intent to defame them; or to bring them into contempt or disrepute; or to excite against them the hatred of the good people of US, or to stir up sedition w/in US - BUT, unlike the English practice:

  • truth would be defense here

  • malicious intent was element of the crime

  • jury would decide issue of seditious tendency of publication

  • NOTE: the act expired on its own in 1801, ct did not rule on its constit

  • 1st amend has been said to serve 3 values: advancing knowledge & truth in the marketplace of ideas, facilitiating representative democracy and self-govt, and promoting indiv autonomy

  • ct has usually applied special protection to speech (contrast this with way court has been about econ legis - usually very deferential)

  • court’s double standard was evident in Footnote 4 of Carolene Products case (narrower presumpt of constit when dealing w/specific rights in bill or rights)

  • 2 main views on 1st amend

  • absolutes - Justice Black

  • balancing - Justices Frankfurter and Harlan

  • one other way court has dealt w/speech cases is through categorization (which provides bright line rules)

Section 2 - Incitement

  • WWI Cases and “Clear & Present Danger”

  • Schenck v US (US 1919) - D was charged w/violating Espionage Act of 1917, and his conviction was affirmed here. D was telling people they had a right to assert their oppostion to the draft. Ct said maybe in ordinary times this wouldn’t be a crime, but it’s war time - so ct says “the character of every act depends upon the circum in which it is done.” TEST: whether the words used are used in such circum and are of such a nature as to create a clear & present danger that they will bring about the substantitive evils congress has a right to prevent

  • Frohwerk v US (US 1919) - ct aff’d conviction under 1917 again. D allegedly was preparing and circulating articles in newspaper. Ct said once again that a person may be convicted for conspiracy to obstruct recruiting by words of persuasion.

  • Debs v US (US 1919) - this case involved Eugene Debs, leader of Socialist Party. They basically convicted d for what he said. D was a powerful leader (all these cases concerned obstructing the draft, obstructing the recruiting process, and they were convicted based on TENDENCY)

  • Abrams v US (US 1919) - ds were convicted under 1918 amendments to Espionage Act, they were russian immigrants. They were protesting war because they thought it would crush russian revolution. Ct sustained their convictions under Schenck once again for a tendency to cause.....

  • Dissent by Homes and Brandeis - they said people can only be punished if speech presents danger of immediate evil or an intent to bring it about. They saw nothing wrong w/the leaflets ds published. Focus is on a genuine immediacy element, therefore they’re arguing for more speech prot approach

  • Masses Pub Co v Patten (SD NY 1917) - Learned Hand - postmaster general denied d pub of its journal under espionage act. Ct looked at the speaker’s words. Ct said duty to resist was not mentioned, would not convict d (but 2nd cir reversed, saying this incitement test is not the law)

  • Red Scare Cases

  • Gitlow v NY (US 1925) - d was convicted under statutory crime of anarchy. D was member of left wing socialist party. The law prohibits the advocacy or teaching of overthrow of organized govt by unlawful means. Ct also said freedom of speech and press are fund personal rights and incorp into 14th amend to apply to states. Ct said statute should have presumption of constit, this is conservative jud approach. Dissent - Holmes

  • Whitney v CA (US 1927) - d was convicted under crim syndicalism act. Ct upheld d’s conviction, said stat was valid, state could punish speech dangerous to public, tending to incite....Concur: Holmes and Brandeis - to justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reas ground to believe that danger is imminent.

  • Fiske v Kansas (US 1927) - ct overturned conviction based on crim syndicalism act (rested mainly on proced dp grounds)

  • DeJonge v Oregon (US 1937) - ct reversed conviction solely on 1st amend grounds. D was charged under crim syndicalism act for participating in meeting called by Communist Party, ct held such participation could not be a crime.

  • Herndon v Lowry (US 1937) - overturned conviction of black communist party organizer in south, said no incitement (all he had were doc urging party members to vote for black self-determination

  • Smith Act Prosecutions

  • Dennis v US (US 1951) - ds were indicted under smith act for conspiracy to overthrow the govt. Ct said there’s no doubt congress has power to prohibit acts intended to overthrow the govt by force and violence. But the issue was whether smith act was constit - ct said it was because it was directed at advocacy and not discussion. Ct said success or probability of success is not the criteria under clear & present danger test. TEST: courts must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avid the danger. (4 justices adopted this statement of the rule)

  • Yates v US (US 1957) - ct aside convictions of ds. Ct said mere doctrinal justif of forcible overthrow, even though uttered w/the hope that it may ultimately lead to violent revolution, is too remote from concrete action to be regarded as the kind of indoctrination prepatory to action which was condemned in dennis. Telling someone to do something now or in the future is what ct is worried about, not telling someone to believe in X now or later.

  • Scales v US (US 1961) - d was convicted under membership clause of smith act, ct construed stat to req specific intent. Scales was last d to be convicted under smith act.

  • Noto v US (US 1961) - ct said the evid lacked compelling quality to convict, so they reversed ds conviction

  • NOTE: these cases came to court after red scare was pretty much over

  • under other anti communist legis cases, ct:

  • upheld SACB order req communist party to register w/attorney general as a “communist-party organizer” (includ member list)

  • held unconstit provision denying passports to members of communist party because it broadly restricted right to travel, violated liberty under 5th amend

  • Lamont v Postmaster General (US 1965) - ct invalidated a 1962 law where post office screened foreign unsealed mail that was communist pol propaganda and notified addressee that it would be destroyed if they didn’t pick it up. Ct said people have right under 1st amend to receive info and ideas

  • Vietnam era cases

  • Bond v Floyd (US 1966) - ct held that 1st amend barred GA from refusing to seat Bond, a duly elected rep, in the state legis. D was an official of SNCC (civ rights organiz) and issued a stmt, ct said d could not be convicted of aiding or abetting the refusal or evasion of draft registration (contrast w/Debs)

  • Watts v US (US 1969) - ct reversed ds conviction under stat making it a felony to knowingly and willfully make a threat to life of president. (I’m gonna get LBJ case). Ct said, taken in context, when d made it everyone laughed

  • Brandenburg v OH (US 1969) - KKK leader, convicted under OH crim syndicalism statute. Govt case rested on films and testimony identifying appellant as the person who communicated w/reporters and spoke at rally. They made derogatory stmts about jews and blacks, said they were gonna march on 4th of july. TEST: 1) need advocacy directed to inciting or producing imminent lawless action AND 2) that this is likely to produce such action. Ct overturned OH statute, said it punishes mere advocacy, violates 1st and 14th amend. This overruled Whitney.

  • Hess v IN (US 1973) - B.burg test was ground for reversal in this case where d was convicted for disorderly conduct. This is the “we’ll take the fucking street later” case. Ct said, at best, this was a future threat of illegal action

  • NAACP v Claiborne (US 1982) - ct set aside large damage award, under 1st amend, against alleged participants in an econ boycott of by black citizens of white stores in Mississippi. Ct said mere advocacy does not take speech out of prot under 1st amend (too remote)

Section 3 - Fighting Words and Hostile Audiences

  • typical claim here is that a speaker’s provocative message so outrages the audience that some listeners are likely to resort to violence in response.

  • Cantwell v CT (US 1940) - d was a jehovah’s witness, arrested while speaking on street for inciting a breach of speech. Ct said ds conduct did not amount to breach of peace, he was on public street, peacefully imparting his view to others, which he had a right to do.

  • Chaplinsky v NH (US 1942) - BIG CASE. Ct upheld conviction based on fighting words distinction. Ct said the right to free speech is not absolute. There are certain categories that are excluded from protection: lewd & obscene, profane, libelous, and fighting words (that by their utterance inflict injury or incite immed breach of peace). Says that these have no essential part to exposition of ideas.


  • Ct has not sustained a conviction under fighting words since chaplinsky

  • later cases tend to limit fighting words exception to face to face provocation, rather than those to group

  • should it matter if citizen addresses her epithets to cop? Cops are trained to exercise a higher degree of restrain than average citizens

  • Rosenfeld, Lewis, and Brown (US 1972) showed that sometimes profanity was prot speech (people at school board meetings swearing, in front of adults and kids)

  • Example: Texas v Johnson (US 1989) ct rejected govt arg burning flag was = to fighting words, said that no one would have regarded ds expression as a direct personal insult or invitation to fight.

  • Cohen v CA (US 1971) - “fuck the draft” case - guy was wearing this on his jacket in courthouse, he was arrested. Ct overturned his conviction because it was based solely on his speech, not on any identifiable conduct which was allegedly intended by d to be perceived by others. Ct said as long as their was no intent to incite disobedience or disruption of the draft, d could not be punished for wearing jacket. Ct limited fighting words exception to face to face provocation, and also said this was not an obscenity case (need something erotic). Ct says censorship is bad. “One man’s vulgarity is another’s lyric.”

  • Feiner v NY (US 1951) - d was convicted for disorderly conduct. D addressed a crowd of about 80 people, black and white, on street corner in predom black residential section. D made stmts about truman, protested cancellation of permit to hold meeting in public school. 2 cops were there, someone said to them you better get him down or i’ll get him down myself. The cops asked d to stop talking, he didn’t , they arrested him. Ct affd conviction and said d was not arrested based on content of his speech, rather for the reaction (breach of peace) that it actually engendered. Dissent - Justice Black - said cops have duty to protect speaker - d’s right to talk, by all reasonable means (instead they suppressed ds right to speak)

  • Edwards v SC (US 1963) - ct reversed breach of peace convictions of 187 black student demonstrators who walked along SC state house to protest against discrim. They were ordered to disperse w/in 15 min, when they didn’t, they were arrested. Ct said state infringed on ds constit prot rights. Ct said 14th amend does not permit state to make crim the peaceful expression of unpopular views

  • Cox v LA (US 1965) - ct invalid breach of peace conviction of a civil rights demonstrator who had attracted attention of a hostile crowd. Bunch of students were arrested for picketing stores that had segregated lunch counters. Students were in jail at local courthouse. Next day, d, who was a minister, led about 2000 students in peaceful march to cthouse to protest the jailing. Cop told them to stay on west side of street, across from cthouse. D told students to go ahead and sit at segregated lunch counters, cop saw this as inflammatory, let off tear gas shells. D was arrested next day. Ct said no evid of fighting words, no threats of violence from either side, ds had right to speak and assemble

  • Permit Requirements as an alternative approach

  • Kunz v NY (US 1951) - ct reversed conviction for violating ny ord which prohibited public worship meetings in the street w/out getting permit from police commissioner. Ds permit was denied many times. Ct condemned the permit system - said it involved impermissibly standardless discretion. Ct said this system gives an admin official discret power to control in advance the right of citizens to speak on religious matters on streets of NY

  • Forsyth County v Nat’l Mvmt (US 1992) - ct invalidated a county ord req demonstrators on public prop to pay a fee up to $1000 a day to cover cost that exceeds normal cost of law enforcement. Ct said this scheme was also impermissibly discretionary in hands of county adminstrator.

Section 4 - Injury to Reputation and Sensibility (also look at PROF HANDOUT)

  • Beahuarnais v IL (US 1952) - ct sustained an IL crim group libel law. Ct said IL legis was trying to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it is rep. Ct said libel is not prot under 1st amend, so it’s unnecessary to look at clear & present danger. IL had power to pass this law. This case has not been overruled

  • NY Times v Sullivan (US 1964) - issue was whether the 1st amend could limit a state’s power to award damages in a libel action brought by a public official against critics of his official conduct. Libel action stemmed from one page ad by committee to defend martin luther king. Sullivan was police comm in AL, objected to info in ad. Sullivan recovered $500,000 in lower ct. Ct said evid here was insufficient to sustain judgment. Under AL law, a pub is libelous per se is it tends to injure person and his reputation or to bring him into public contempt. Ct said there’s a profound nat’l committment that debate on public issues be uninhibited, robust and wide open and that it may include unpleasant attacks on govt and public officials. Ct also held that “what a state may not constit bring about by means of a crim stat is likewise beyond the reach of its civil law of libel. Also, no double jeop limitation on civil lawsuits - so paper could be sued numerous times for same ad. Ct feared newspaper would not survive this. Ct also said state rule is not saved by allowance of defense of truth. TEST: public official is prohibited from recovering damages for a defamtory falsehood relating to his official conduct unless he proves that the statement was made w/actual malice (with knowledge that it was false or with reckless disregard of whether it was false or not. Needs to be proved by clear & convincing. De novo review.

  • Immed impact of Times was that it saved newspapers from crippling damage awards and allowed for important coverage of civil rights mvmt

  • victory for plaintiffs - Herbert v Lando (US 1979) - ct rejected a tv producer’s claim to a broad 1st amend editorial privilege that would have precluded questions in pretrial discovery pertaining to his liability under the Times actual malice standard

  • Phil Newspapers v Hepps (US 1986) - ct held that plaintiffs are req to bear burden of proof in estab falsity of allegedly defamatory stmts.

  • Court has considered 3 variables in deciding how far to extend Times sub limits on liability to other setttings:

  • identity of plaintiff (public official, pub figure or private figure)

  • actual malice req has been extended to public figures but not identically to private figures

  • identity of defendant (media or non media)

  • ct has said principle of liability should be same for media or non media ds

  • nature of issue discussed (matter of public or private concern)

  • ct has relaxed Times standard for liability in suits by private figures alleging defamation of matters of pub concern but has held that standard inapplicable to suits by private figures alleging defamation on matters of private concern

  • Public figures - Butts and Walker (US 1967) ct extended rule of Times to public figures. This category has been construed narrowly (need some fame or notoriety in community or special prominence in society, need to voluntarily thrust themselves into controversy). case where lawyer who was well known in comm and active in social affairs was still private figure)

  • Private figures - this comes up where publishers claimed 1st amend defenses to defamation suits by private individuals.

  • Rosenbloom v Metromedia (US 1971) - case was about a libel action by a distrib of nudist magazines, based on radio reports about police action against his allegedly obscene books, about his lawsuit. Ct, in plurality opinion said critical criterion should be subject matter of allegedly defamatory report rather than status of P. Plurality here extended Times to private P action claiming defamation in report about the indiv involvement in an event of public or gen interest.

  • Gertz v Welch Inc (US 1974) - majority opinion - ct abandoned Rosenbloom and held that a private person should be able to recover w/out meeting Times standard. Standard of liability for private libel actions: so long as states do not impose liability w/out fault, states may define for themselves the approp stand of liability for a publisher or broadcaster in defamation suit to a private indiv. States cannot go further than compensation for actual injury (state can’t permit damages of presumed or punitive damages, unless it meets malice standard)

  • state interest in compensating injuries to private indiv is stronger than for public figures, so less demanding standard of liability is approp here

  • public figures can use remedy of self help, more access to media

  • private figures are more vulnerable to injury

  • Dun & Bradstreet (US 1985) - ct found that credit reports were outside scope of Gertz and involved nothing that concerned public matters. Prof had problem w/this case - look at handout

  • Summary of defamation law can be found in Hepps (O’Connor, ‘86)

  • find out whether plaintiff is public official or figure, or private figure

  • decide whether speech at issue is of public concern

  • when the speech is of public concern and P is a public official or figure, constit clearly requires P to prove a much higher barrier before recovering damages from a media D

  • when speech is of public concern but P is a private figure, the standard is lower for P

  • Hustler Magazine v Falwell (US 1988) - ct held that public figure offended by an outrageous magazine parody could not recover for intent infliction of emotional distress w/out a showing of actual malice req by Times. Ct said he didn’t meet this

  • Time Inc v Hill (US 1967) - case about false light privacy cases (claim is that disclosure not only invaded privacy but was also false, but not necessarily injurious to reputation). Ct said Times standard applies here too.

  • Cox Broadcasting (US 1975) - disclosure of rape victims’ names. Ct held that civil liability in true privacy action could not be imposed on public broadcaster for accurately pubishing info released to public in official ct records


  • appropriation torts - ct has held that this is more like suit based on right of publicity, so 1st amend does not immunize media from liability for damages when they broadcast a performer’s entire show w/out his consent

  • Hate Speech

  • some arguments for reg of hate speech

  • Beauharnais, where ct found no 1st amend bar against a law prohibiting group libel (because it’s outside of 1st amend) - it hasn’t been overruled. But it has been limited by Times - because Times makes it sound like not all libel is outside 1st amend prot, just libel that meets malice req

  • fighting words - words that by their utterance inflict injury or tend to incite immed breach of peace. But this doctrine has been limited by Cohen (now only for face to face provaction)

  • create new category - exclude it because it has no value

  • constit interest in equality

  • some arg against reg of hate speech

  • hate speech reg are too paternalistic. Idea that words can be reg based on their content, for their psychic impact is no good

  • hate speech reg are counter productive - doesn’t eliminate racism

  • Skokie (US, 1977) - Nazi demonstrations. In a nutshell, IL cts granted injunction against Nazis, enjoining them from displaying swastika during march. IL SUP CT held the entire injunciton, including swastika prov unconstit (they say citizens have the burden of avoiding the symbol if they can w/out unreas inconvenience). By the time injunction dispute was over, Skokie enacted 3 ordinances to prohibit such demonstrations.

  • 1st ord estab a permit system, req permit applicants to obtain $300K in public liability insurance and $50k in prop damage insurance.

  • 2nd ord prohibited the dissemination of any materials w/in Skokie which promotes or incites hatred against any person by reason of their race., religion, etc.

  • 3rd ord prohibited public demonst by members of political parties wearing military style uniforms.

In dist ct case, the ordinances were held unconst under 1st amend

  • Doe v U of M (ED MICH 1989) - ct held a U of M regulation unconstit as overbroad as impermissibly vague because it stated that indiv would be subject to discipline for “any behavior, verbal or physical, that stigmatizes or victimizes an indiv on basis of race, ethnicity, religion, sex, sexual orientation, creed, etch which has the purpose or reas foreseeable effort of interfering w/an indiv academic efforts, employ, participation in school activities, or personal safety.

  • RAV v City of St Paul (US 1992) - some kids put together a cross and burned it inside fenced yard of black family. Ct said this activity could have been punished under arson, trespass, or prop damage - St Paul has an ordinance which provides: whoever places on public prop a symbol, object, ...including but not limited to a burning cross or Nazi swastika, which one knows or has reas grounds to know arouses anger, alarm, resentment in others on basis of color, race, religion, gender commits disorderly conduct and is guilty of misdem. Ct held this ord was facially unconstit in that it prohibits otherwise permitted speech solely on basis of the subjects the speech addresses. Content based reg are presumptively invalid. Ct said chaplinsky categories are still around, and it just means that those areas of speech can be reg consistently w/1st amen because of their constit proscribable content.

  • Mitchell (US 1993) - ct made distinction between reg of hate speech and hate conduct. Case about black kids who saw movie and beat up white kid on street. At trial, D’s (black kid) sentence was enhanced from 2 to 4 yrs because it was a racially motivated crime. Ct held this was ok, did not violate RAV because a Ds motive can always be considered in sentencing. The ord in RAV was directed to suppressing expression the statute here is aimed to suppress conduct unprot by 1st amend.

Section 5 - Sexually Explicit Expression

  • obscenity is still outside of 1st amend prot, but ct has added another: child pornography is not prot speech under 1st amend

  • NOTE: if speech is sexually explicit but not obscene and does not constitute child porn, it is prot under 1st amend - but it might have tag of lower value speech

  • Obscenity

  • Roth v US; Alberts v CA (US 1957) - both Ds were convicted of mailing some type of obscene material. Obscenity has not been prot under 1st amend. Ct cites Beauharnais. Ct said obscene material deals with sex in a manner appealing to prurient interest. Ct said portrayal of sex in art, literature, science should not be unprot by 1st amend. Ct cited Regina v Hicklin (old english case) which defined obscenity as material tending to corrupt minds, judged obscenity based on how it would affect certain people, and rejected it. TEST: whether to the average person, applying contemp community standards, the dominant theme of matl taken as a whole appeals to the prurient interest. Convictions were affirmed

  • Memoirs v Mass (US 1966) - ct estab test : dominant theme of matl taken as whole appeals to prurient interest in sex; matl is patently offensive because it affronts contemp comm stand relating to descrip or rep of sexual matters; and the matl is utterly w/out redeeming social value. THIS IS NOT THE CURRENT TEST, so watch out

  • Stanley v GA (US 1969) - ct reversed a conviction for knowing possesion of obscene matter and held that 1st amend prohibits making private poss of obscene matl a crime. In this case, cops searched ds house for bookmaking evid and found the nudie films. Fact that it was in ds house is a big deal, big zone of privacy, and it was for mere possession

  • Reidel - (US 1971) - same fed stat involved in Roth. Ct relied on Stanley and dismissed indictment under fed law for prohibiting the mailing of obscene materials. Duh, if someone can have the stuff privately in their home, someone else has the right to mail it to them there. (Ct said the fed law can’t be applied where it’s not directed at kids, or an unwilling public). The matl here was solicited by adults

  • Miller v CA (US 1973) - BIG CASE. D was convicted of violating CA crim law because he conducted mass mailing campaign to advertise books of adult material. This case involves unwilling recipients. Ct says again obscene material is unprot by 1st amend. MODERN TEST: whether the average person, applying community standards would find the work, taken as a whole, appeals to the prurient interest, whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law, and whether the work, taken as a whole, lacks serious literary, artisitc, political, or scientific value. Ct rejects Memoirs test of “utterly w/out redeeming social value, but they reaffirm Roth.

  • Paris Adult Theatre v Slaton (US 1973) - ct noted state ability to protect social interest in order and morality, when making reg on obscene material. Ct held that states have a legit interest in regulating the exhibition of obscene materials in places of public accomodation, including “adult” theatres where minors are excluded. Ct rejected idea that there is no fund right to watch obscene movies in place of public accomodation

  • After these cases, ct seems to agree that obscenity may be regulated to prevent unwilling exposure people who don’t want to see it and to minors.

  • Idea that it can be reg to prevent inducement of crim conduct was mentioned by ct in Paris, said that there’s at least a tendency here. Ct has held that speech can’t be suppressed because it expresses immoral ideas. Some argue that after Miller, govt can punish sexual dissent

  • nudity alone is not enough to make material obscene under Miller

  • local standards are applied to obscenity prosecutions, not statewide or national. Local standards are to be determined by jury (whether it appeals to prurient interest). BUT court has held that the literary, articistic, pol, and scient prong of Miller is not measured by local community stand - the test for that is whether a reasonable person would find such value in the material taken as a whole.

  • Child porn

  • NY v Ferber (US 1982) - ct unanimously rejected 1st amend attack on NY stat designed to deal w/child porn. Law prohibited distrib of matl depicting kids engaged in sexual conduct, but it did not require that the matl be legally obscene. Child porn is outside of prot of 1st amend. IMPORTANT NOTE

  • state interest in safeguarding physical and psycho well being of minors is compelling

  • the distrib of these films is related to child abuse in 2 ways:

  • materials produce a permanent record of children’s participation and harm to kid is excaberated by their cumulation

  • distrib of child porn must be closed if sexual exploitation of kids is to be controlled

  • test for child porn is separate from obscenity standard in Miller. The Miller formulation is adjusted in the following ways for child porn: trier of fact need not find the matl appeals to the prurient interest of the average person; it is not req that sexual conduct portrayed be done so in patently offensive manner; and material at issue need not be considered as a whole.

  • Child porn does not contribute anything to marketplace of ideas - ct excludes it as category outside of 1st amend prot, whether or not the material is obscene

  • possession of child porn - Osborne (US 1990) - ct held Stanley was inapplicable to child porn, with the effect of allowing mere poss of child porn to be unlawful. Ct said same justif here as in Ferber (trying to eliminate the demand, distrib).

  • Porn as Subordination of Women

  • MacKinnon and Dworking ordinance - porn is sexual exploitation of women (glorifies rape, battery, etc). This was invalidated on 1st amend grounds - overbroad (sweeping in prot as well as unprot speech).

  • American Bookseller’s Assoc v Hudnut (7th cir 1985) - [prof said this is law of land because it was affirmed by memorandum opinion by us sup ct in 1986. Issue was Indianapolis ord that defined porn as discrim against women. Ct said the ord discrim based on content of speech, doesn’t meet Miller test. State may not ordain preferred viewpoints. This is thought control. Constit does not make dominance of truth a necessary condition of freedom of speech. Bottom line: this def of porn is unconstit.


  • Sexually explicit but non-obscene expression

  • low value speech idea (J. Stevens) has not prevailed in the court

  • Erznoznik (US 1975) - nudity bans. Drive in theatre that showed movies w/nudity which could be viewed from public streets. Ct invalidated the ordinance, said it was content based discrim (rejected city’s claim that it may protect unwilling citizens from viewing this stuff). Ct said a municipality may prot indiv privacy by enacting reasonable time, place, and manner restrictions applicable to all speech irrelevant to content.

  • Schad v Mt Ephraim (US 1981) - ct reiterated that total bans on displays of nudity are impermissible. This had to do w/coin operated machine that people could see live nude dancing through. Ct said ENTERTAINMENT,AS WELL AS POLITICAL AND IDEOLOGICAL SPEECH IS PROTECTED. Nudity alone is not enough to put something outside of 1st amend prot. So, live nude dancing is protected. Ct said when a zoning law infringes on a protected liberty, it must be narrowly drawn and further a substantial govt interest.

  • Erogenous Zoning

  • Young v American Mini Theatres (US 1976) - plurality opinion. Ct upheld parts of detroit “anti skid row” ordinance that differentiated between movie theatres that showed adult movies and those that showed other stuff. The ord req dispersal of adult theatres and bookstores - so you couldn’t have an adult theatre w/in 1000 ft of any two other regulated things (like bars, pool halls) OR w/in 500 ft of residential area. They were trying to get all the nudie places in one area, not to ban it from city entirely. Ct said this was low value speech (plurality). Ct held that a state may legitimately use the content of these materials as the basis for placing them in a different classif than other movies. Ct cites O’Brien 4 factors. This ordinance sought to disperse the nudie places, rather than put them all in one area

  • Renton v Playtime Theatres (US 1986) - SECONDARY EFFECTS. the ord here was trying to put them all togther. Ord said location of such theatres may not be located w/in 1000 ft of residential zone, single or multiple family dwelling, church, park, school. Ct upheld the ordinance, consistent w/1st amend. This is a proper time, place, manner restricition, but it also can’t be content based. Ct said content neutral is good if it serves sub govt interest and do not unreas limit alternative ave of communication. Ct said this ord is NOT aimed at CONTENT of films, rather it’s aimed 2ndary Effects of such theatres on community. Ds have to fend for themselves in real estate market. Dissent: this doesn’t provide reas alternative ave of communication & not narrowly tailored to serve signif govt interest

  • Indecency bans of communications media

  • FCC v Pacifica Foundation (US 1978) - ct held that the FCC has power to regulate radio broadcasts that are indecent but not obscene. George carlin monologue, guy driving in car w/his kid heard it, contained filthy words. Fed stat, ct said this was indecent under the statute. Broadcasting has received the most limited 1st amend prot because: people are constantly tuning in and out, in home or public, and warnings are inadequate to protect listener from unexpected program content (CAPTIVE AUDIENCE RATIONALE, which was rejected before by Harlan in Cohen), it is uniquely accessible to kids. So, the FCC reg does not depend on whether stuff is obscene because this involves a radio broadcast

  • this doesn’t work the same for public utitlity bills that contained inserts which discuss controversial issues - ct said it doesn’t matter if some consumers may be offended, just throw it in wastebasket

  • Sable Communications (US 1989) - ct struck down indecency component of fed law (dial a porn services). Ct said sexual expression which is indencent but not obscene is prot, this is not the same as turning on radio and being taken by surprise

  • ct has allowed cable operators to regulate indecent programming (by having a written policy of prohibit such programming) but it did not allow cable operator to impose blocking req on indecent leased access program the operator opted to show and promulgate reg to prohibit such indecent matl on public access channels

  • Reno v ACLU (US 1997) - 2 parts of the Communications Decency Act of 1996 were at issue. Ct held it unconstit. Internet is too hard to regulate (especially across state lines). Internet is not same as radio, need to really search for bad stuff. overbroad

  • Ginsberg (US ) - ct upheld the constit of ny stat that prohibited selling to minors under 17 material that was considered obscene to them but not to adults

Section 6 - Commercial Speech (unique area)

  • comm speech is prot, but not fully - considered low value speech

  • Virginia Pharmacy Board (US 1976) - VA law provided that pharmacists were guilty of unprof conduct if they advertised the prices of prescription drugs. Ct aff’d lower ct invalid of the law. This is valuable info, society has interest in free flow of this info. Speech does not lose its 1st amend prot because $ is spent to project it, like paid Ad. Comm speech can be reg

  • Real estate for sale signs as prot speech - city can’t prevent citizens from obtaining such info (like case above). Can’t suppress access to facts like this

  • Carey v Population Services (US 1977) - ct invalidated a ny ban on the advertising or display of nonprescription contraceptives. There’s a sub interest in free flow of commerical info

  • regulating the legal profession - Bates v State Bar AZ (US 1977) - held that states could not prohibit lawyers from price advertising for routine services. BUT WATCH OUT: ct has sustained supension of lawyers for soliciting contingent fee employement accident victims (face to face solicitatin, special danger). Ct has struck down flat ban on direct mail solicitation by lawyers that was targeted to specific recipeients known to need legal services of a particular kind. Generally, attorneys and other prof can advertise truthfully in yellow pages or business cards (nothing misleading in this)

  • Florida Bar v Went for It Inc (US 1995) - ct upheld fl bar rule prohibiting personal injury lawyers from sending targeted direct mail solicitations to victims & their relatives for 30 days following an accident and from receiving referrals from anyone who made such contact


  • Central Hudson Gas v Public Service Comm (US 1980) - EXAM. NY Pub Service Comm prohibited electrical utilities from engaging in promotional ads designed to stimulate demand for electricity (ban started during fuel shortage, but cont when threat was gone). Ct said there is 4 part test:

  • #1 - determine whether the expression is prot by 1st amend (for comm speech to be prot, it must concern lawful activity and not be misleading)

  • #2 - whether the asserted govt interest is substantial

  • if answer to both of the above quest are YES - then ask:

  • #3 - whether the reg directly advances the govt interest asserted AND

  • #4 - whether it is not more extensive than necessary to serve that interest

Ct said govt failed #4 here

  • ct has later said that under #4, state does not have to employ the least restrictive alternative (need to be reasonable alternative, not perfect)


  • Metromedia v San Diego (US 1981) - plurality. ct struck down an ordinance reg the placement of non-commercial billboards, but made clear that portions of the ordinance banning offsite commercial billboards would be permissible. Ct applied Central Hudson Test, said the ord satisfied 1st, 2nd, and 4th part of test - but 3rd prong was problem (didn’t seem to directly advance govt interest), but upheld the ord anyway (gave def to city to regulate traffic & safety).

  • Puerto Rico casinos case - us sup ct upheld a PR law that prohibited gambling casinos from adv to PR residents

  • us sup ct has also upheld a fed stat prohibiting the broadcast of lottery ads except by stations licensed to states that conduct lotteries. Cong was trying to balance the interests of lottery and nonlottery states (case involved a N.Carolina radio station, NC was nonlottery state, but 90% of listenders were from VA - lottery state. NC listeners could hear the VA radio stations broadcast lottery ads. Ct rejected NC radio station claim that it had 1st amend right to broadcast ads for the VA lottery)

  • no vice exception to prot of commercial speech. Rubin v Coors (US 1995) ct invalidated a prov of fed Alcohol Admin Act that prohib beer labels from displaying alcohol content

  • 44 Liquormart v RI (US 1996) - RI law prohib adv of the price of alcoholic beverages in any manner whatsoever except by tags or signs inside the liquor store. Ct invalid the law, but separated alot on reasoning. Stevens opinion said the state bears the burden of showing not merely that its reg will advance its interest, but that it will do so to a material degree. Ct here said price adv ban will not signif advance state interest of promoting temperance. Thomas - you can’t keep public ignorant, dissuade them from making legal choices, this is too paternalistic

Chapter 2 - Freedom of Speech - How Govt Restricts Speech - Modes of Abridgment and Standards of Review

Section 1 - Distinction Between Content-Based and Content-Neutral Regulations

  • Examples of content based regulations

  • any billboard supporting Republican cand (also viewpoint discrim)

  • any political billboard (also view point discrim)

  • any pol message on a billboard owned by a Republican

  • any billboard tending to arouse pol anger or hostility

  • any message on a billboard during 3 weeks prior to gen election

  • Examples of valid reg (no content based reg problem)

  • any structure, except a bldg, exceeding 12ft in height (zoning)

  • any billboard (maybe, Metro Media)

  • any billboard in any area zoned for residential use (not banned in other zones)

  • Content Based Restrictions

  • Viewpoint discrim is BAD - ct has said it numerous times. Ex: Kingsley (state can’t deny a license to a film because movie advocates an idea that adultery under certain circum is ok, freedom to advocate ideas); Brandenburg - mere advocacy of violent overthrow of democracy can’t be made crime; RAV - can’t prohibit fighting words by bigots, but not against them.


  • Subject matter restrictions usually reviewed w/Strict Scrutiny

  • Mosley (US 1972) - ct invalid a Chicago disorderly conduct stat which barred picketing w/in 150 ft of a school while it was in session, but exempted peaceful picketing of any school involved in labor dispute. Can’t restrict exp based on subject matter. Also EP case

  • Simon & Schuster (US 1991) - involved challege to NY “Son of Sam” law enacted to prevent a serial murderer & other crim from profiting at the expense of their victims from books about their crimes. Law req payment to victims board of any proceeds from these books and board was to place these funds in escrow for 5yrs to satisfy damage judgments of victims. Ct invalid the statute, it was content based, therefore it was subject to SS.

  • Burson v Freeman (US 1992) - ct upheld, against 1st amend challenge, a state law prohibiting the solicit of votes, display of pol posters or signs, and distrib of pol campaign materials w/in 100 ft of entrance to polling place

  • speaker based restrictions can be subject to SS too, but not always = to content based restrictions

  • Boos v Barry (US 1988) - ct struck down a prov of DC prohibit display w/in 500 ft of foreign embassy of any sign tending to bring govt official into public disrepute. Ct said it was content based

  • 2 types of content neutral laws

  • not specifically aimed at expression, aimed at wider range of behavior, has only incidental impact on speech. Ex is O’Brien

  • specifically aimed at expression, but for reasons unrelated to its content. Ex: a law limiting the decibel level of amplified sound or an injunction keeping protestors a certain distance from abortion clinic entrances, these aim at interest in tranquility and orderly mvmt, have nothing to do w/the communic impact of the speech

  • standard of review for content neutral reg is intermediate scrutiny

  • govt can justify content neutral reg of speech or conduct that might amount to speech only if it can show that they are closely tailored to serve a substantial govt interest (interest need not be compelling, don’t need to exhaust less restrictive means)

  • Content Neutral Laws and Symbolic Conduct

  • in gen, symbolic conduct is constit protected

  • Us v O’Brien (US 1968) - d burned his draft card on steps of courthouse, was convicted, ct upheld the conviction. TEST 4 factors: govt reg is sufficiently justified if:

  • it’s w/in constit power of govt

  • it furthers an important or sub govt interest

  • if govt interest is unrelated to suppression of free expression &

  • if the incidental restriction on alleged 1st amend freedoms is no greater than is essential to furtherance of that interest

  • NOTE: for last prong, govt doesn’t have to employ least restrictive means

  • for a law to be content neutral, the govt interest behind the law must be unrelated to suppression of free expression

  • the third O’Brien factor performs a switching function

  • where the state interest is related to suppression of free expression, strict scrutiny is required (unless the speech is in an unprot category)

  • where the state interest is unrelated to suppression of free expression, balancing is appropriate response (less than strict scrutiny)

  • Flag Desecration

  • Spence v Washington (US 1974) - ct overturned a conviction under a WA statute prohibiting improper use of flag (d had put big peace symbol on flag). Ct found this to be speech, and found the stat unconstit as applied to ds activity. TEST for something to be speech under 1st amend: an intent to convey a particularized message and the liklihood that the message would be understood by those who viewed it.

  • Texas v Johnson (US 1989) - d was convicted of burning flag in violation of TX law. D was doing it in protest. Ct said this is related to suppression of expression, therefore O’Brien does not apply. Ct reversed his conviction. Flag does not occupy special place in constit law. We don’t consecrate the flag by punishing its desecration, for in doing so we dilute the freedom this cherished emblem represents.

  • Flag Prot Act (by Congress) was found unconstit

  • Nude Dancing

  • Remember: the court invalidated a city wide ban on nude entertainment in Schad but upheld zoning reg concentrating or dispersing adult entertainment establishments in Young and Renton

  • Barnes v Glen Theatre (US 1991) - bar featured nude girls dancing behind glass panels in coin operated booth. Stat req the girls to wear pasties and g-strings. Ct held this stat constit (making them wear g-strings was not violation of 1st amend). Messy opinion.

Section 2 - Govt’s Power to Limit Speech in its Capacity as Proprietor, Educator, Employer and Patron

  • Early Public Forum Cases

  • ct has invalidated a conviction for leafleting w/out a license from the city manager on ground that this scheme vested unfettered discretion in city manager

  • Hague v CIO (US 1939) - ct said in dictum, priv to use streets and parks for communic of views on nat’l quest may be reg in the interest of all; but it must not, in guise of reg, be abridged or denied

  • Saia v NY (US 1948) - ct held invalid a ny ord prohibiting use of amplification devices w/out the permission of the police chief.

  • Lakewood (US 1988) - ct invalid city ordinance req a permit from mayor in order to place newsracks on public prop, holding that it conferred impermissibly unbridled discretion

  • NOTE: the idea is that these are standardless schemes and confer too much discretion w/officials to pick & choose who to give permit to

  • NOTE: cases where such schemes have objective criteria that curtail possibility of discrim have been upheld

  • Cox v NH (US 1941) - d here did not submit to the regulation, didn’t even bother trying to get permit. So, ct said state has interest in imposing reg to assure safety of people and their use of roads. Ct upheld scheme

  • Schneider v State (US 1939) - ct invalid 4 ord in diff parts of NJ forbidding distrib of leaflets (supposedly to prevent littering)

  • Martin v Struthers (US 1943) - invalid an ordinance prohibit a medium of comm - the distrib of handbills to residences by ringing doorbells or otherwise summoning residents to the door

  • Kovacs v Cooper (US 1949) - ct upheld an ord designed to regulate loudspeakers (on sound trucks) from ommitting loud and raucous noises. Plurality op.

  • City of Laude v Gilleo (US 1994) - ct invalid ord that banned the posting of most signs to minimize visual clutter, made 10 exceptions (for sale signs, signs identif home, etc - but not ds sign, on piece of paper that said peace in the gulf). Ct said it banned too much speech

  • The Modern Time, Place and Manner Test

  • Public Order and Safety

  • Cox v LA (US 1965) - ct invalid a breach of peace conviction arising from civil rights demonstration near a cthouse. Ct also overturned ds conviction for obstructing normal use of sidewalk, street by impeding, hindering,etc. However, parades were allowed on same streets - ct said this permits public officials to act as censors.

  • Heffron v Krishna (US 1981) - MN state fair rule prohibited the sale or distrib of any merchandise, including printed or written material, except from booths rented to all applicants in a nondiscrim, 1st come, first served basis. Ct found the rule permissible

  • Aesthetics

  • Metromedia (US 1981) - ct upheld part of the ord that restricting commercial billboard displays. BUT the ct struck down part of the ord that restricted noncommercial billboard displays. Ct indicated a willingness to defer to govt aesthetic interests. Billboards combine communicative and noncommunicative aspects. Govt has legit interest in controlling noncomm aspects (because these do not implicate speech interest), but the 1st amend forecloses a similar interest in controlling the communicative aspects.

  • Members of City Council v Taxpayers for Vincent (US 1984) - code prohibits posting of signs on public prop. Group of vincent supporters posted signs to utility poles. Ct uses O’Brien test. Here, the ord responds to the problem effectively (unlike Schneider) and ct says interests are sub to justify this content neutral prohibition.

  • Clark v CCNV (US 1984) - issue was whether a Natl Park Service regulation prohibiting camping in certain parks violates 1st amend when applied to prohibit demonstrators from sleeping in park and mall to call attention to plight of homeless. Ct said it did not. Ct said even if this is expression, all expression is subject to reasonable time, place, and manner restrictions. This was also content neutral. Dissent says that content-neutral can be bad too because they inhibit expression too.

  • Tranquility, Privacy and Repose

  • Ward v Rock against Racism (US 1989) - ct rejected a 1st amend challenge to ny city reg mandating use of city provided sound systems and technicians to control volume of concerts in central park. Ct said case involved public forum and that the city’s interest in controlling noise was sub, reg was content neutral.

  • Madsen v Womens’ Health Center (US 1994) - ct in part upheld and struck down a FL state ct injunction that limited the activities of antiabortion protestors on public streets outside abortion clinic. Injunction was aimed at prot women seeking to enter clinic. Ct said injunction was not content or viewpoint based just because it restricted speech of antiabortion protesters. Protesters had violated ct orders before, so ct imposed more restrictions on them. Ct held that the time, place, manner test should be used here. Ct agreed that this served to protect the women, ensured free flow of traffic, public safety,etc.

  • Summary: Ct upheld noise control level, but not the images observable part (said patients could close curtain) and the 36 ft buffer zone around clinic entrances because they burden no more speech than necessary to elminate unlawful conduct targeted by injunction. Ct struck down as unconstit the 36 ft buffer zone as applied to private prop, Ct also invalid 300 ft no touch zone and 300 ft buffer zone around residences because these sweep more broadly than necessary to accomplish goals of injunction.

  • Schenck (US 1997) - another abortion clinic case. Ct struck down floating buffer zone (because it burdens more speech than necessary to serve govt interest) but upheld fixed buffer zones (becaue people need way to get in and out of clinic).


  • US v Grace (US 1983) - challengers attacked prov of fed stat which prohibited displaying stuff on us sup ct grounds. Person was trying to distrib leaflets on sidewalk. Ct held the prohib invalid as applied to sidewalks surrounding ct bldg. This is public forum prop.

  • Speaker access to public places other than streets and parks

  • Brown v LA (US 1966) - arose from events at segregated library. 5 black guys came in, didn’t do anything wrong, librarian asked them to leave, they didn’t, instead they protested in whites only part, quietly, until sheriff arrived, asked them to leave, they didn’t he arrested them under breach of peace statute. Ct reversed convictions, no evid of breach of peace

  • Adderly v FL (US 1966) - ct upheld the convictions of 32 students at FL A&M Univ for trespass w/malicious intent on jail premises. They went to the jail to protest arrest of other students and segregation. They were in path used to transport prisoners to and from cts. Ct said sheriff, state had right to want to keep this area free

  • Grayned v Rockford (US 1972) - ct sustained an ord barring a demonstration near a school. Ct said this was a place restriction (nature of place, school, and fact that expressive activity may be prohibited if it materially disrupts classwork or involves sub disorder to rights of others

  • Buses, theatres and military bases

  • Lehman v Shaker Heights (US 1974) - ct upheld a city rule against political adv on city owned buses. City allowed commercial adv on the buses. Ct said people viewing commercial ads would not be offended as much as if they had to be bombarded w/pol ads.

  • Military bases might be treated as nontrad public forums

  • Modern trichotomy of traditional, designated, and nonpublic forums

  • US Postal Service v Council of Greenborough (US 1981) - ct rejected a 1st amend challenge to fed law that prohib the deposit of unstamped mailable matter in home letter boxes approved by the postal service. Ct sais this is not a trad public forum, no tpm analysis - ct said this can be subject to reg so long as govt acts reasonably and prohib is content neutral.

  • Perry Educ Assn (US 1983) - ct upheld a prov of the collective bargaining contract restricting access to interschool mail system and teacher mailboxes in schools to the incumbent union. Similar access was denied to a rival teacher group (PLEA). Ct gives ex of trad and non trad forums:

  • streets & parks - traditional public forums

  • public prop which state has opened for use by public as place for expressive activity - nontraditional pub forum

  • public prop that is not public forum (school mailboxes fall here in nonpublic forums).

  • US v Kokinda (US 1990) - ct upheld a postal service prohib on soliciting contrib on postal premises. Ct said the sidewalk here was not a trad public forum. Instead she said it was a nonpublic forum and that the reg was constit because it was content neutral and applied reasonably. If it was trad forum, SS would’ve applied

  • ISKON, Krishnas (US 1992) - upheld a ban on solicitation of $ in public airport terminal, but struck down a ban on sale or distrib of literature. Ct had found airport terminals to be nonpublic forums (not held in public trust or used for expressive activity).

  • Forbes (US 1998) - Prof doesn’t like this case. Ct rejected a free speech challenge to the exclusion of a candidate from a candidate debate televised by a public broadcasting system. This guy was running under independent ballot, got enough signatures to get on ballot, but was regarded by debate producers as lacking enough popular support to be included in Rep/Dem debate. Ct said this was a nonpublic forum (therefore lower standard applied, all ct asks is whether the exclusion is reasonable and viewpoint neutral). Ct said there was no open microphone here, broadcasters did not make it open generally, etc..

  • Religious Speech on Public Property

  • Widmar (US 1981) - ct exercised SS it usually applies to content based exclusions from public places. Ct held that a state university that makes its facilities gen available for activities of registered student groups may not constit bar a group desiring to use the facilities for religious worship and discussion. (School barred students from meeting anywhere on its grounds)

  • Lamb’s Chapel (US 1993) - case involved free speech challenge to local school dist policy that let public school facilities to be used after school hours for social, civic, recreat purposes BUT provided that the school couldn’t be used for any religious purposes. School dist denied lamb’s chapel permmission to use bldg to show movie about christianity. Ct held this rule unconstit as applied to lamp chapel. Ct didn’t say what kind of forum this was, but it said that this wsa imperissible viewpoint discrim.

  • Ct has invalid denial of permission to KKK to erect big cross on capitol square, which was a public forum by law. Ct said this was content discrim based on religion

  • First Amendment access rights to private property

  • Logan Valley Plaza (US 1968) - ct held that a state trespass law could not be applied to enjoin peaceful picketing of a supermarket in a privately owned shopping plaza. Ct looked at this like public forum, ct said this was equivalent of business district

  • Speech in Public Schools

  • speech in school is highly controlled (atmosphere)

  • Tinker (US 1969) - ct held that a public school coudl not discipline 2 high school kids for wearing black arm bands to publicize their objections to vietnam war. Students and teachers do not shed their constit rights to free speech or exp at schoolhouse door.

  • Hazelwood School Dist (US 1988) - ct looked at the extent to which educators may exercise editorial control over the contents of a high school newspaper produced as part of school journalism class and funded by the school. Ct upheld a high school principal’s deletion of 2 stories from school newspaper. (Stories were about divorce and pregnancy). Ct found the newspaper was not a public forum. School officials were entitled to reg it in any reasonable manner. Tinker does not govern here. Dissent - Tinker should apply, this is censorship

  • Speech and Assoc by Public Employees and Contractors

  • Pickering v Board of Educ (US 1968) - ct held that a public school teacher could not constit be dismissed from his job for writing letter to newspaper criticizing school board handling of revenue for school. Bottom Line: a state can’t condition public employ on basis that infringes the employ constit prot interest in freedom of expression

  • Connick v Myers (US 1983) - myers was an assistant DA and was informed by her boss that she would be transferred. She didn’t want to, so she told them and did questionaire getting views of coworkers. Boss told her this was insubord and that she refused to accept transfer and she was fired. She claimed this violated free speech, lower ct agreed - but Us sup ct reversed. Her speech was not matter of public concern.

  • Ct has held that a state employee in county office could not be fired for remarking that he wished the guy would have killed reagan on assass attempt. Ct said this was matter of public concern, his remark was speech, and firing him violated 1st amend.

  • Elrod v Burns (US 1976) - ct held that newly elected democratic sherrif in IL could not discharge several Republican employees (process servers, bailiff, security guard). Plurality. Rejected patronage practice.

  • Branti (US 1980) new rule after Elrod- the ultimate inquiry is whether the hiring authority can demonstrate that party affiliation is an appropriate req for the effective perf of the public office involved

  • Umbehr (US 1996) - court extended Pickering to independent contractors (trash hauler, tow truck operator)

  • Speech Subsidized by Public Funds

  • Speiser v Randall (US 1958) - ct overturned a Ca req that prop tax exemptions for veterans would only be available to those who declare they did not advocate forcible overthrow of govt

  • Regan v Tax W/out Rep (US 1983) - ct unam upheld, against 1st amend challenge, a prov of IRC barring a nonprofit organiz that engages in lobbying from receiving tax deductible contrib.

  • Fcc v League of Women Voters (US 1984) - ct invalid a prov of Pub Broadcasting Act forbidding any noncomm educ broadcasting station who receives a grant from corp to engage in editorializing. Ct said this is diff from Regan because the station can’t segregate its activities according to its source of funding. Station has no way of limiting use of its fed funds to all noneditorialized activities and more importantly it was barred from using private funds to finance its editorial activity. Prof said this is too much of restraint on speech

  • Rosenberger (US 1995) - ct invalid a funding limitation as viewpoint discrim. Program at univ of va had mandatory student fees to pay extracirricular costs, including cost of printing student edited publications. Univ refused to pay for printing costs of Wide Awake (a christian pub) under guidelines prohib use of fees for religious activity. Ct said this is viewpoint discrim. Ct said student act fee was kind of forum.

  • Natl Endowment of Arts v Finley (US 1998) - challenge by 4 indiv perf artists to cong amend req chairperson of NEA to ensure that artistic excellence and artistic merit are taken into consideration (not mandatory) for grant applications to be judged. Ct held the law constit on its face, discrim here

Section 3 - Impermissible Forms of Speech Restrictive Law: Overbreadth, Vagueness, and Prior Restraint

  • Overbreadth (Exam)

  • principle is that a govt purpose to control or prevent activities constit subject to reg may not be achieved by means which sweep unnecessarily broadly and invade area of protected freedoms

  • overbreadth analysis is an exception to 2 trad rules of constit litigation

  • it results in invalidation of law on its face (rather than as applied)

  • usually a litigant claims a stat is unconstit as applied to him or her, if litigant prevails, the courts carve away the unconst parts of the law by invalid improper applic on case by case basis


  • if law is held unconst as applied, the law is held inapplicable to that speaker and the court trims away bad parts

  • NOTE: overbreadth does not reach the quest of whether the challenger’s speech is constit prot, instead it strikes the whole statute down because it might be applied to others not before the ct whose activites are constit protected

  • when invalid for overbreadth the law is NOT narrowed, it becomes unenforceable until legis rewrites it

  • exception to usual rules of standing. Ordinarily, challengers of the law are not allowed to raise rights of 3rd parties and can only assert their interests. BUT in overbreadth challenges, challengers CAN raise rights of 3rd party.

  • Concern is w/chilling effect of overbroad statute on 3rd parties who can’t bring suit

  • this type of analysis helps judges look modest - they don’t have to rewrite law

  • Broadrick (US 1973) - ct req of substantial overbreadth

  • Ferber (US 1982) - ct said ny child porn stat was not overbroad

  • Brockett v Spokane Arcades (US 1985) - ct held that a WA obscenity law was unconstit because it defined prurient interest a that which incites “lascviciousness or lust” a defintion broad enough to encompass normal as well as shameful sexual responses. But ct limited challenge to “as applied”. This is limit on overbreadth analysis, it req that a stat be incapable of a narrowing construction

  • Osborne v OH (US 1990) - another child porn case, ct found that judicial narrowing of an otherwise overbroad law ENDED the overbreadth concern.

  • Houston v Hill (US 1987) - Big Case. Case arose where guy told cop, why don’t you pick on someone your own size? (Was arrested for interrupting cop while in his capacity making an arrest). Ct found this law overbroad. Ct said freedom to verbally oppose or challenge police action w/out fear of arrest is one of principle characteristics of free state.

  • Board of Airport Comm v Jews for Jesus (US 1987) - this case involved board resolution stated if any indiv or entity seeks to engage in 1st amend activities w/in terminal area in airport is acting in contravention to policy of board. Ds were prevented from distrib religious literature on pedestrian walkway in airport. Ct said this was overbroad , she said it prohibits all prot expression. No govt interest could justify such a ban

  • Vagueness

  • this also creates risk of chilling effect and produces rulings of facial invalidity (dont confuse w/overbreadth,even though people bring both claims at once)

  • this concept stems from proced due process req of adequate notice, rule is:

  • law must convey sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice (DeGeorge, US 1951)

  • a law will be void on its face for vagueness if persons of common intelligence must necessarily guess at its meaning and differ as to its application

  • legis needs to set reasonably clear guidelines

  • vagueness challenges under 1st amend usually produce facial invalidation

  • Coates (US 1971) - ord said it was illegal for “3 or more persons to assemble on any sidewalk and conduct themselves in manner annoying to persons walking by.” Ct found ord unconstit vague because it subjects the right to assembly to an unascertainable standard and it was unconstit overbroad because it auth punish of constit prot conduct

  • remember Finley - ct said no vagueness here

  • Prior Restraint

  • this comes to ct with heavy presumption of invalidity

  • Licensing (concern w/admin discretion)

  • Lovell (US 1938) - ct invalid a conviction under ord prohib circulars, ads, literature w/in city w/out written permission from city manager.

  • Freedman (US 1965) - guy was convicted for failure to submit the film for licensing (he was supposed to submit to state censorship board first). D arg censorship scheme was invalid prior restraint - ct found it unconst (delays were a factor too). Ct said the proced by the board must also assure a prompt final judicial decison, to minimize the deterrent effect of a possible erroneous denial of a license.

  • Note: speakers need not challenge denial of permission in advance or even to seek permission - where claim is that the law is unconstit on its face

  • Note: if challenge is that valid permit law is unconst as applied, the challengers may not go ahead and hold their meetings or parade if they want to preserve their constit defenses

  • Kingsley Books (US 1957) - ct upheld a NY proced which authorized an injunction to prevent the sale and distrib of allegedly obscene printed matter pending an expedited trial

  • Injunctions

  • Near v Minnesota (US 1931) - MN law auth abatement of a malicious, scandalous, and defamatory newspaper. Ct set aside injunction for the Saturday Press and said stat was suppressing the offensive newspaper.

  • Walker v Birmingham (US 1967) - rule - you better obey court orders (until reversed for error by orderly review)

  • Pentagon Papers Case (US 1971) - issue was whether the us could enjoin ny times and wash post from printing contents of pentagon papers. Ct said prior restraint carry heavy presump of invaldity, so govt has heavy burden of showing justif for the enforcement of such restraint. Ct said they did not meet burden here. Brennan concurrence - this was pure conjecture about security issue.

  • Something printed on bomb secrets might be different (govt has to show at least that it actually affects natl security interest)

  • of course one can’t be permitted to print place & time where troops are gonna land during war

  • ct are reluctant to issue gag order for d to get fair trial

Chapter 3 - Rights Ancillary to Freedom of Speech

Section 1 - Compelled Speech: The Right NOT to Speak

  • Compelled Indiv Speech

  • Barnett (US 1943) - ct held that rights of free speech and free worship precluded state from making flag salute and pledge compulsory (requires affirmation or belief)

  • Wooley (US 1977) - nh law req most cars to have license plate that said live free or die. Challengers were jehovah’s witnesses who said this was repugnant to their moral & pol beliefs. Ct stated that this was bad. Right to speak freely includes right to refrain from speaking.

  • Talley (US 1960) - ct invalid an ord that prohibited distrib of any handbill in city unless it had name and address of person who distrib it or sponsored it.

  • McIntyre (US 1995) - ct invalid oh law that prohib the circulation of anonymous leaflets in connection pol campaigns. Author decision to remain anonymous is part of free speech under 1st amend

  • Compelled access for the speech of others

  • may govt compel the press to furnish free coverage of replies by those it has attacked? NO,not in newspaper cases

  • BUT: ct has upheld FCC “fairness doctrine” which req broadcasts to provide free reply time for indiv subjected to personal attack on the air.

  • Hurley v GLIB (gay, lesbian, bi-sex group) US 1995 - ct held that a privately organized st patty’s day parade need not include, against the organizer’s will, a self-proclaimed gay contingent among its marchers. (War veterans club who organized parade did not want them there)

Section 2 - Freedom of Association

  • right of the people to peaceably assemble (1st amend)

  • ct views right of assoc as dependent on underlying indiv rights of expression - there is no right of association in the abstract

  • Compelled disclosure of membership

  • NAACP v AL (US 1958) - ct held unconstit al demand that the naacp reveal the names and addresses of all it al members and agents. Ct req sub relation between the govt interest and the info req to be disclosed.

  • Shelton v Tucker (US 1960) - ct held unconstit an ak stat which req every teacher as condition of employ in state supported school, to file an affidavit listing every organiz which he or she belonged or reg contrib w/in last 5yrs.

  • Buckley v Valeo (US 1976) - Big Case. Ct rejected challenges to the disclosure provisions of the fed election campaign act. This act req evry pol candidate to maintain records of names & addresses of every person contrib more than $10 and his/her occupational place of business if contrib exceeds $100 to make records available for inspection by fed election comm. Ct found sufficient govt interests here (info to electorate about where campaign $ comes from; deter corruption and expose large contrib; and necessary to gather data)

  • Restrictions on organizational activity

  • NAACP v Button (US 1963) - ct held unconstit a va prohib of the improper solicit of any legal or prof business as applied to naacp litigation activites.

  • Denial of Govt Benefits because of Association

  • Cramp (US 1961) - ct invalid, on void for vagueness grounds, law req public employ to swear that they had never given advice to communist party (it was bad too because it swept in prot speech)

  • Elfbrandt (US 1966) - case about constit of Az act which req oath to support state & fed constit from state employees, could be prosec for perjury if you took oath and then joined communist party. Challenger was a quaker - said she couldn’t take oath. This law threatens freedom of assoc.

  • Loyalty oaths might be upheld

  • Baird (US 1971) ct invalid a denial of admission to state bar of az based on applicant’s refusal to answer quest whether she had ever been member of communist party that advocates violent overthrow of govt. State need to show inquiry was necessary to protect a legit state interest

  • Abood v Det Board of Educ (US 1977) - ct recognized right to refuse to associate.

  • Roberts v US (US 1984) - ct rejected an all-male organiz claim that a state antidisrcim law infringed its freedom of assoc by req it to admit women

Section 3 - Money and Political Campaigns

  • Buckley v Valeo (US 1976) - ct held - we sustain the indiv contrib limits, the disclosure and reporting prov, and the public financing scheme of fed election campaign act. BUT, the limitations on campaign expenditures, in indep expenditures, and on expenditures by a candidate from his personal funds are unconstit. BIG CASE, p 398

  • ct used lower level of scrutiny on contrib limits than expend limits enabling it to uphold contrib limits as preventing corruption or appearnce of corruption (ct said this was sufficient govt interest)


  • Bellotti (US 1978) - ct invalid a mass law prohibit any corp from making contrib or expenditures for purpose of influencing vote on any question submitted to voters other than ones materially affecting prop, business or assets of corp. Corp here was opposed to proposed constit amendment

Section 4 - Freedom of the Press

  • Press Access to Newsworthy Governmental Information

  • Pell (US 1974) - ct rejected an attack on ca rule providing that press & other media interviews w/specific indiv inmates will be prohibited

  • Gannett (US 1979) - divided ct rejected a newspaper pub attack on an order barring the public including the press from a pretrial hearing on suppression of evid in pretrial hearing murder case. Ct held the public had no indep constit right to insist upon access to pretrial proceed when everyone (judge, prosec, accused) agreed to have it closed to assure fair trial

  • Richmond Newspapers v VA (US 1980) - ct held that absent an overriding interest articulated in findings, the trial of crim case must be open to public

  • Globe Newspaper Co (US 1982) - ct held that 1st amend was violated by mass law which had been construed to require the exclusion of press and gen public from ctroom during testimony of minor who was allegedly victim of sexual offense

  • Branzburg v Hayes (US 1972) - ct held that requiring newsmen to appear and testify before state or fed grand jury does not abridge freedom of speech or press (3 reporters wrote stories about drug activities they observed, was in black panthers headquarters, interviewed their leaders)

  • Minneapolis Star & Tribune Co (US 1983) - state imposed special tax on press (on ink and paper) ct said this violated 1st amend, state did not offer satisfactory justif for the tax. Press was singled out here

  • Turner Broadcasting v FCC (US 1994) - cable industry does not get less scrutiny like reg broadcast (in Red Lion)

Chapter 4 - The Religion Clauses: Free Exercise and Establishment

Section 1 - Overview of Religion Clauses

  • cong shall make no law respecting an estab of religion or prohibiting the free exercise thereof.

  • Voluntarism - the advancement of a church would come only from voluntary support of its followers and not from political support of state

  • separatism - both religion and govt function best if each remains indep

  • nonpreferentialism - 1st amend was intended to prevent the estab of a natl church or giving any religion a preferred status

  • Everson v Board of Educ (US 1947) - ct held that a state may, consistent w/estab clause, pay to bus kids to & from parochial school.

  • Wallace (US 1985) - ct invalid under estab clause several al stat permitting silent prayer or mediation in public schools

  • Rosenberger (US 1995) - ct held that the estab clause did not bar VA from including a religious magazine among the student activities it subsidized

  • Lee v Weisman (US 1986) - ct invalid recitation of a prayer at a middle school grad ceremony

  • free exercise bars curbing religious freedom by imposing penalties

  • free estab bars inhibitions on indiv choice that arise from govt aid to religion

  • US v Seeger (US 1965) -ct interpreted religion broadly. Seeger stated on his selective service form that he wanted to leave quest open to Supreme Being and had religious faith w/out belief in God. TEST:

  • test of belief is whether a given belief that is sincere and meaningful occupies a place in the life of the possessor parralel to that filled by the orthodox belief in God or someone else

  • Gillette (US 1971) - ct held that cong could constit refuse to exempt those who did not oppose all wars but only particular conflicts (catholic guy wanting to pick between just and unjust wars)

Section 2 - Free Exercise of Religion

  • Laws Discriminating Against Religion

  • Church of Lukumi Babalu Aye v City of Hialeah (US 1993) - case involved practice of Santeria religion. They sacrifice animals for rituals and to eat. City council adopted 3 ordinances dealing w/ritual animal sacrifice: sacrifice was defined as unecessarily kill or torment animal in public or private not for primary purpose of food consumption - restricted application of this prohibition to indiv or group that kills or sacrifices animals for any type of ritual. Ord contained an exemption for slaughter houses in specific zoned areas. Ct said if object of law is to restrict practices because of religious motiviation, the law is not neutral - so it’s invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest. Ct said the ord are unconstit because they have as their objective the suppression of the santerian religion. Ord target their religious exercises. Ct applied SS here

  • Neutral laws adversely affecting religion: are religious exemptions constitutionally compelled?

  • Reynolds (US 1878) - ct upheld application of a fed law making bigamy a crim to a Mormon claiming that polygamy is his religious duty. Law can’t interfere w/religious belief, but it can reg conduct

  • Prince v Mass (US 1944) - ct upheld a law making it a crime for kid under 18 to sell any newspapers in public places even as applied to Jehovahs witness, whose religious faith viewed this as a duty

  • Sherbert v Verner (US 1963) - appellant was a Seventh Day Adventist and was fired from her job because she would not work on Saturday because of her faith. Her claim for state unemploy comp was denied because the law barred benefits to people who failed to accept, w/out good cause, suitable work when offered. Ct said this burdens the free exercise of religion. This forces her to choose between between her religion and her work. Ct said this is unconst, but we’re not estab religion here.

  • TEST: govt action that sub burdens a religious practice must be justified by compelling govt interest

  • Thomas v Review Board (US 1981) - ct struck down IN denial of unemploy comp to a jehovah’s witness who quit his job in a munitions factory because of his religious objections to war

  • Wisconsin v Yoder (US 1972) - EXAM. yoder was amish and convicted of fined for refusing to send his 15 yr old daughter to school after she completed the 8th grade in violation of WI req of school attendance until age 16. This is part of their religious belief. WI SUP CT overturned yoder’s conviction because it violated free exercise cl - us sup ct affirmed. Ct will not dwell on sincerity of belief. Amish way of life was part of deep religious conviction. Dissent - Douglas said rights of amish kids should be looked at, some might want to attend high school.

  • US v Lee (US 1982) - amish guy employed others to work on his farm. Guy objected on religious grounds to paying social security tax arguing that amish believe it sinful not to provide for their own elderly. Ct upheld tax law as applied to lee and said govt may justify limitation on religion by showing that it is essential to accomplish an overriding govt interest, here the mandatory participation in soc security system is indispensalbe to vitality of system.

  • Bob Jones Univ (US 1983) - ct applied strict scrutiny and upehled IRS tax policy that denied tax exempt status to 2 instit that practiced racial discrim in accordance w/the religious beliefs they were founded upon. Ct said overriding govt interest here was eradicating racial discrim in educ (this was compelling)

  • Goldman v Weinberger (US 1986) - ct rejected free exercise challenge here, case involved military base, ct used deference not SS. Goldman was a jew who was disciplined for wearing yarmulke. Ct said military is different. Deference to judgment of military officials.

  • O’Lone (US 1987) - prison case. Inmates who were muslim objected to working on Friday because of religion. Ct was deferential to prison officials - ct applied reasonableness standard and rejected the view that prison officials have the burden of disproving availability of alternatives

  • Lying v NW Indian Cemetery Assn (US 1988) - ct rejected free exercise claim of indians who objected to forest service building road on land trad used for indian religious rituals. Ct did not apply SS

  • Employ Div v Smith (US 1990) - HUGE CASE. Issue was whether free exercise cl permits OR to include religiously inspired peyote use w/in reach of its gen crim prohib on use of drug, that allows state to deny unemploy benefits to persons fired from their jobs for using it. Holding:

  • ct has never held that an indiv religious beliefs excuse him from compliance w/an otherwise valid law by prohibitng conduct that the state is free to regulate

  • Sherbert has really only been used in unemploy comp cases

  • this rule is very deferential

  • court struck down fed statute - RFRA, said that it exceeded auth of cong and rewrote court’s decisions on religion clauses

Section 3 - The Establishment Clause

  • prohibits creation of official church

  • Lemon v Kurtzman (US 1971) - big case. The LEMON TEST held that a statute must meet 3 criteria in order to withstand estab cl attack:

  • statute must have a secular legis purpose

  • its principal or primary effect must be one that neither advances nor inhibits religion

  • the statute must not foster an excessive govt entanglement w/religion

  • Enshrining official beliefs

  • McCollum v Board of Ed (US 1948) - ct struck down school board practice of permitting students to attend sectarian classes held in public schools during school hours by parochial school intructors

  • Zorach v Clauson (US 1952) - ny city had a program which permits its public schools to release students during the day so that they may leave the school bldgs and school grounds and go to religious centers for religious instr. Student was released by written consent of parents. Those not released stayed in classrooms. All costs were paid by religious organ - not public funds. No one is forced to do this. Public school does not provide anything except accomodation to the schedule. Ct said this is not estab of religion. “WE ARE A RELIGIOUS PEOPLE WHOSE INSTITUTIONS PRESUPPOSE A SUPREME BEING.”

  • Ct has consistently struck down school prayer intiated by school officials as violation of estab clause


  • Wallace v Jaffree (US 1985) - ct struck down AL law that auth schools to set aside one minute at start of each day for mediation or school prayer. School can’t endorse this behavior from students

  • Stone v Graham (US 1980) - ct held unconstit a KY law that req posting of copy of 10 commandments purchased w/private contrib in public classes

  • Edwards v Aguillard (US 1987) - issue was whether LA Creationism Act violated estab clause. This act forbids the teaching of theory of evolution in public schools unless accompanied by instruction in “creation science.” Ct said this violates estab clause, it endorses a religious belief.

  • Ct has said that Sunday closings laws do not violate religion clauses

  • March v Chambers (US 1983) - ct upheld Nebraska legis practice of opening each legis day w/prayer by a chaplain paid by the state. Ct relied heavily on tradition here to sustain the practice. Ct did not apply Lemon test

  • Lynch v Donnelly (US 1984) - city christmas display - it had santa claus house, reindeer pulling santa sleigh, candy striped poles, trees, and a creche (which had Jesus and other religious figures). Creche is at issue. Ct said this is christmas time - viewed in this context, there is insufficient evid to estab the inclusion of the creche is a purposeful or surreptitious effort to express some kind of subtle govt advocacy of a particular religious message. (This was not intended to exclude someone or make anyone feel inferior). Concur - O’Connor - CLASS NOTE - this is wave of future (p 522)

  • Allegheny County v ACLU (US 1989) - ct held unconst a freestanding display of a nativity scene on main staircase of a county cthouse.

  • Financial Aid to Religious Institutions

  • Everson v Board of Ed (US 1947) -Big Case. nj stat authorized school dist to make rules and contracts to transport school kids to and from school (including to and from school other than public school, but not those for profit) pursuant to this law, local school board adopted resolution auth reimbursement to parents for $ spent to transport their kids on public buses. Problem here is that parents are claiming that these taxes will go to support parents who send their kids to catholic school. Ct held: the state does not contrib $ to schools, it doesn’t support them, all it does is PROVIDE GENERAL PROGRAM TO HELP PARENTS GET THEIR KIDS, REGARDLESS OF THEIR RELIGION, SAFELY AND QUICKLY TO AND FROM SCHOOL

  • Mueller v Allen (US 1983) - MN income tax permits its taxpayers to deduct from gross income actual expenses incurred for school for educ of kids in public or nonpublic schools. Ct said this did not violate estab clause.

  • Ct has found fewer estab cl violations to fin aid to colleges than in elementary or secondary school cases

  • Witters (US 1986) - ct held that effect part of Lemon test was not violated by law auth payment to blind person for vocational rehab services where blind person sought to use funds to pay tuition at christian college to be a pastor

  • Zobrest (US 1993) - ct held that a prov of a publicly funded sign lang interpreter to a deaf student in a parochial school did not violate estab cl

  • Agostini v Felton (US 1997) - ct held the estab cl barred city of ny from sending public school teachers into parochial schools to provide remedial educ to disadvantaged kids pursuant to cong mandate

  • ct struck down state law that gives churches and schools power to veto issuance of liquor license to restaraunts w/in 500 ft of school or church

  • ct has invalidated creation of special school district for kids of Satmar religion







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