FIRST AMENDMENT OUTLINE – FRIED

I. History and Theory

a. Fried’s work:
i. P 115, Hate Speech (assailing “those who promulgate these regulations for assigning to
themselves the authority to determine which ideas are false an which false ideas people may not
express as they choose)
ii. 76 Harv. L. Rev. 755 (arguing the notion that a ct decides disputes by balancing the competing
interests is essentially ambiguous, since this may mean, among other things, either that it
chooses between immediate and irreconcilable wants or that it allocates competence between
persons having social roles. The author reasons that many disputes, and particularly disputes
having constitutional dimensions, present a ct with the latter task, and that if it makes a highly
particularistic judgment in such a case the court will exercise the very competence it is being
asked to allocate between the parties.
II. The Freedom of Speech
III. The Core:
a. Clear and Present Danger; Incitement: Schenk to Brandenburg
i. Schenck v. United States (Holmes)(1919):
1. Document was circulated; a conscript is little better than a convict; “Do not submit to
intimidation”
2. H: Clearly to obstruct people complying with draft; violates Espionage Act
3. Rule: Clear and present danger the words will bring about the substantive evils that
Congress has a right to prevent
4. Court noted war context might allow more restriction
ii. Abrams v. United States (1919):
1. Russian immigrants opposing American forces in Soviet Union advocated general strike,
appealing to workers in ammunitions factories. Leaflet denounced capitalism and also
German militarism.
2. Clarke (majority): Men must be held to have intended and to be accountable for the effects
which their acts were likely to produce
a. Supporting the Russian Revolution here directly tied to defeat of US war program in
violation of the Espionage Act.
3. Holmes (dissent): Emphasizes that only present danger of immediate evil or an intent to
bring it about allows restrictions on expression. Makes clear and present danger test more
speech-protective.
a. Intent: Despite obvious consequences, aim to produce the effect was not the proximate
motive of the act. Says no intent here. Clear intent was to help Russian and stop
intervention there; not to impede the US in the war it was carrying on.
4. Hand told Holmes that liability for speech should not rest on guesses about the future
impact of the words. (Against clear and present danger).
iii. Masses Publishing Co v. Patten (1917, SDNY, Hand)
1. Plaintiff trying to enjoin postmaster from not mailing magazine with cartoons and text that
attacked the war.
2. H: Word “cause” in Espionage Act cannot be interpreted broadly to suppress all hostile
criticism. “If one stops short of urging” to resist the law, can’t have violated Act. And don’t
be literal about it; think about if truly implied duty to follow the words.
3. Note: While technically just interpreting the Act, speaks to how he views clear and present
danger. Birth of incitement test.
iv. Gitlow v. New York (1925)
1. Convicted under NY law for criminal anarchy for publishing “Left Wing Manifesto.”
Advocated necessarily of accomplishing militant communist revolution.

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 2. Sanford (majority): Statute is aimed at incitement so its ok. Jury was warranted in finding it
advocated force, violence, and unlawful means beyond abstract doctrine.
a. Schenk does not apply where legislative body has previously determined the danger of
substantive evil arising form utterances of a specified character. Statute is OK if
constitutional.
b. If legislative body hasn’t directly proscribed speech, must be found that the specific
language involved has clear and present danger of bringing about the substantive evil
proscribed.
c. This is first situation, so Schenk doesn’t apply; incitement was all that was needed
here.
3. Holmes: Schenk should apply. Incitement is a dumb test: only difference between the
expression of an opinion and an incitement is the speaker’s enthusiasm for the result.
v. Whitney v. California (1927)
1. Convicted under CA criminal syndicalism act for advocating criminal syndicalism. She
attended a convention of the Socialist Party; split into group that formed the Communist
Labor Party; she supported a moderate resolution, but a more militant program was
adopted; she remained a member, but didn’t intend for the party to be an instrument of
violence.
2. Sanford (majority): Argument that mere presence, especially given her protest, cannot show
support for criminal syndicalism rejected; that is simply part of factual question of if she
joined with knowledge of the CLP’s unlawful character and purpose.
a. A state may constitutionally punish those who tend to incite crime, Gitlow.
b. Act was not unreasonable in punishing those who join orgs menacing peace.
3. Brandeis, joined by Holmes (concurring):
a. Notes that this statute is novel in that it prohibits association with criminal
syndicalism. Says clear and present danger should be shown.
b. Here, CA statute was OK in providing rebuttable presumption that clear and present
danger of violence was there when criminal syndicalism was advocated. Danger may
have existed here since evidence of present crimes being planned.
c. But disagree that assembling to have a revolution some time far in the future is
proscribable.
vi. Dennis v. United States (1951) (“discredits” Whitney)
1. Leaders of Communist Party prosecuted under Smith Act (similar to NY criminal anarchy
law in Gitlow) for organizing party advocating violent overthrow of gov’t.
2. Vinson (plurality): Fear of overthrow of gov’t by violence provides substantial gov’t
interest.
a. Discusses Holmes-Brandeis clear and present danger test. Says obviously cannot
wait until the putsch is about to be executed if plans laid and signal awaited.
b. Adopt Hand (2d Cir.) statement:
i. “Must ask whether gravity of evil, discounted by its improbability, justifies
invasion of free speech.
3. Frankfurter (concurrence): Must balance interest in security with free speech and Congress
has done that balancing for us and is better at it in this context.
4. Jackson: (concurrence): Should not apply clear and present danger to cases like this;
requires us to consider “imponderables”; phenomena which baffle the best foreign offices
about the danger of violent overthrow. Would fail under clear and present danger
because of lack of imminence.
5. Black (dissenting): Clearly fails under clear and present danger.
6. Douglas (dissenting): All petitioners did was organize people to learn about Marxism.
Books about this stuff are allowed; court makes freedom of speech turn on the intent with

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 which something is said rather than what is said, which is dangerous. Must be some likely
immediate injury, lacking here.
vii. Bond v. Floyd (1966): Adds more speech protection under clear and present danger; Warren says
statements critical of draft protected.
viii. Brandenburg v. Ohio (1969) (overruling Whitney)
1. Per Curiam: KKK leader convicted under Ohio criminal syndicalism law for advocating
violence.
2. Notes the Whitney allowed statute that outlawed mere advocacy of violence; but that later
decisions have moved toward only allowing statutes to proscribe advocacy:
a. Directed to inciting
b. Imminent lawless action
c. And is likely to incite or produce such action.
3. Ohio law did not distinguish advocacy from incitement; condemned by First Am.
ix. Hess v. Indiana (1973):
1. Campus antiwar demonstrators stopped by police; Hess says “we’ll take the fucking street
later.” Court says at best the statement was counseling present moderation, and at worst
advocated illegal action at an indefinite future time; not likely to produce imminent
harm.
x. NAACP v. Claiborne Hardware Co (1982):
1. Illegal boycott of white merchants “incited” by Evers of NAACP. In one speech Evers said
boycott violators would be disciplined by their own people. Court notes context of
passionate atmosphere; says the emotionally charged rhetoric did not go beyond mere
advocacy; any violence connected happened weeks/months later. No incitement.
xi. Planned Parenthood v. Am. Coalition of Life Activists (9th Cir. 2002):
1. Upheld act which allows suit against those for threaten people who provide repro health
services. Threatening is unprotected. Distinguishes Claiborne “threat” because no
individuals targeted, and that was hyperbole.
a. Majority said reasonable person would foresee that it would interpreted as threat
xii. Factual Data/Crime Facilitation (see also, Scales and Progressive in next section):
1. Volokh proposes: crime-facilitating speech ought to be constitutionally protected unless (1)
it’s said to a person or small group when the speaker knows these few listeners are likely to
use the info for criminal purposes, (2) it’s within one of the few classes of speech that has
almost no noncriminal value, or (3) it can cause extraordinarily serious harm (nuclear
attack/plague) even when valuable for lawful purposes.
2. Rice v. Paladin Enters. (4th Cir. 1997) allowed suit to proceed against manual for hitmen as
it was stipulated to be known the book would be read by would-be hitmen.
xiii. Terrorism?:
1. Other nations less stringent: British Terrorism Act prohibits encouraging terrorism.
2. In US, prosecuted under material support statute
3. Holder: Speech can be support can be prohibited given compelling interest in preventing
terrorism.
xiv. General Policy:
1. Incitement vs clear and present danger, around p 29 note 3
2. Hand “prefers a test based upon the nature of the utterance itself.” Clear and present danger
is hard to administer and provides heckler’s veto; very context-dependent and requires
guesses about the future.
3. But clear and present danger more directly examines the extent to which the interest (e.g.
protection of war efforts) is affected. And maybe incitement is also hard to administer
(Gitlow dissent).

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 4. Under Brandenburg Hand’s original focus on “objective” words is now the major
consideration (though probability of harm is part of the test to avoid punishment of the
harmless inciter)
b. Triggers of Action
i. “Ready, aim, fire”
1. Commonwealth v. Michelle Carter (2016, MA S Ct)
a. Denial of MTD affirmed; grand jury justified in returning indictment of involuntary
manslaughter in suicide. Emphasized “coercive quality” of verbal conduct; justifies
finding that wanton or reckless conduct caused the death.?????anything else?
2. Scales v. United States (1961)
a. Smith Act prohibits membership in an org that advocates overthrow of the government
by force. Petitioner was member of Communist Party, with knowledge of their illegal
purpose.
b. Harlan (majority): Dennis shows not protected speech. No reason why membership,
when it constitutes a purposeful form of complicity in a group engaging in forbidden
advocacy, should receive protection.
c. Overbreadth avoided by requiring knowledge of the proscribed advocacy and
specifically intended to accomplish aims by violence.
d. Reviews sufficiency of evidence to support conviction:
i. Advocacy? Yates used “conspiratorial nexus” between individuals charged to
find conspiracy; impermissible because didn’t show forcible call to action.
Episodes of impermissible action were too sporadic and remote to justify
attribution to the Party there. But systematic teaching of techniques to employ in
the revolution would be attributable to the Party.
ii. Here, advocacy was sufficiently broad to be attributed to the Party.
Advocacy involved specific violence techniques (e.g. jujitsu).
e. Black (dissenting): First Am forbids Congress to outlaw membership in a political
party merely because one of the philosophical tenets is overthrow of the gov’t in the
future.
i. This case reemphasizes the freedom-destroying nature of the balancing test.
3. United States v. Progressive (WD Wis. 1979)
a. Prior restraint: The Progressive, magazine, was enjoined from publishing technical
material on hydrogen bomb.
b. Held that a mistake in ruling against the US here could pave the way for thermonuclear
annihilation for us all. Disparity of risk justifies prior restraint.
4. Snepp v. United States (1980) footnote recognized compelling interest in secrecy of
information important to national security; CIA can restrict employee speech.
ii. Provocations
1. Fighting Words (one on one)
a. Chaplinsky v. New Hampshire (1942)
i. Jehovah’s Witness denouncing religion as a racket; calls cop “a damned
Fascist,” convicted for calling someone an offensive name and using offensive
words. (Not mentioned in the opinion is the abuse he suffered prior to the
altercation; religious persecution?).
ii. Murphy (majority):
1. “Narrowly limited classes of speech, the prevention and punishment of
which have never been thought to raise any Constitutional problem.”
a. The lewd and obscene,
b. the profane, (not after cohen)
c. the libelous, and

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 d. the insulting or “fighting” words: those which “by their very utterance
inflict injury (not after Cohen) or tend to incite an immediate breach
of the peace
2. Statue only proscribes fighting words, so it’s constitutional.
iii. Note: In reaching categorical holding, Murphy engaged in balancing; attaching
low value to speech claiming protection and weighing it against state interest in
order and morality.
iv. Court has not sustained a fighting words conviction since Chaplinsky
b. Gooding v. Wilson (1972): Statute void for proscribing speech beyond the fighting
words punishable under Chaplinsky; has to be limited to words with a direct
tendency to cause violence by the person to whom the remark is addressed.
c. Rosenfeld v. New Jersey (1972): Vacating conviction of D who used the word
“motherfucker” to describe teachers at a school board meeting; in context of meeting
would not incite breach of peace.
d. Texas v. Johnson (1989): No reasonable onlooker would have regarded the flag
burning as an invitation to exchange fisticuffs; fighting words limited to those
directed face-to-face at an individual.
2. Hostile Audiences (Heckler’s veto)
a. Unlike fighting words, these cases don’t need to involve speech directed at the listener;
the form the message takes doesn’t matter; and partially because of that, the approach
is more about balancing than categorization.
b. Cantwell v. Connecticut (1940) (“not directed to the person of the hearer”)
i. Jehovah’s Witness arrested while proselytizing for breaching the peace.
ii. Court invalidated conviction. Right to peacefully impart his views; no breach
of peace apart from effect of his speech on hearers. Statute overbroad: needs
to be drawn narrowly to punish conduct constituting a clear and present danger
to a substantial interest of the State.
c. Terminiello v. Chicago (1949) (need “provocative” speech that “invites dispute”)
i. Father Terminiello, well-known national personality who said US had to be
saved from communists and Jews; viciously denounced them. Gives speech in
auditorium refers to crowd outside as “snakes” among other epithets. Crowd
outside threw shit, breaking windows in the hall; Terminiello convicted for
breach of the peace.
ii. Douglas (majority): Breach of peace statute about “stirring public anger” was
unconstitutional; speech is often provocative and challenging. Statutes can only
proscribe that speech which is likely to produce a clear and present danger of a
serious substantive evil, far above public inconvenience or unrest. Need
provocation.
iii. Jackson (dissent): Must take account of nature, methods, and objectives of forces
involved. Demonstrations like this have the potential to cause great disorder and
violence. Hitler succeeded through conquest of the streets.
d. Feiner v. New York (1951)
i. Feiner said “Negroes don’t have equal rights” among other derogatory remarks.
One onlooked told a cop “If you don’t get that son of a bitch off, [I will do it
myself].” Arrested, after being asked to stop and refusing, for disorderly
conduct.
ii. Vinson (majority): Community has interest in peace and order. Ordinary mumurs
of hostile audience can’t silence a speaker, but here speaker undertakes
incitement to riot. Imminence of greater disorder coupled with deliberate
defiance of cops means conviction stands. Provocation existed arguably.
iii. Black (dissent): Far-fetched to suggest imminent threat of riot.

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 e. Street demonstrations:
i. Edwards v. South Carolina (1963): Reversed breach of peace convictions for
black student demonstrators; no evidence of fighting words. Dissent said great
danger of riot.
1. Perhaps because audience was peaceful? Should the focus be the
reasonable audience’s reaction or the actual one? [Notice is important; due
process]
ii. Cox v. Louisiana (1965): Cox led peaceful march of students to protest arrest of
others who were arrested for picketing; urged demonstrators to sit at segregated
lunch counters; evoked grumbling from white onlookers; sheriff saw this as
inflammatory; when they didn’t leave, shot tear gas. Invalidated; no indication
any member of white group threatened violence; no provocation concern.
f. Permit requirements as an alternative approach:
i. Kunz v. New York (1951): Reverses conviction prohibiting public worship in
street without permit. Vinson majority condemns standardless discretion;
clearly invalid as prior restraint. Jackson dissent says permits are better than
letting police be the ones with discretion.
g. Permit fees:
i. Forsyth v. Nationalist Movement (1992): Ordinance required demonstrators to
pay fee to cover public costs above normal law enforcement costs. Blackmun
majority holds invalid, standardless discretion in hands of county
administrator; and says speech can’t be financially burdened; can’t have tax
based on content of speech. (flat fee could be ok)
h. Cohen v. California (1971):
i. CA law prohibited disturbing the peace by offensive conduct. Wore “Fuck the
Draft” jacket in a courthouse.
ii. Harlan (majority):
1. Not fighting words since not directed at the hearer.
2. Not hostile reaction; no one intended/actually violently aroused.
3. “Words are often chosen as much for their emotive as their cognitive
force.”
4. “We cannot indulge the facile assumption that one can forbid particular
words without also running a substantial risk of suppressing ideas in the
process.”
iii. Blackmun (dissent): This is conduct, not speech; and within Chaplinsky.
iv. Note; Cohen placed 3 limitations on Chaplinsky:
1. Profanity is at least sometimes protected speech.
2. Fighting words have to be directed at person of hearer.
3. Undermines notion of unprotected category of words that by their very
utterance inflict injury; emphasizing emotive power of words; psychic
offense is not an important interest.
iii. Policy:
1. “Fighting words” are based on an outdated and gendered honor culture; wrongly reinforces
a macho code of barroom brawls (p59).
2. Hostile audiences gives police discretion
a. Better to give an administrative official discretion via permit system?
IV. The Periphery:
a. Defamation (including libel) (speech potentially chilled not only by direct prohibition, but by allowing
civil liability for certain speech)
i. The Court’s first major defamation decision was Beauharnais, about groups rather than injury to
individuals.

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 ii. Beauharnais v. Illinois (1956):
1. Beauharnais organized circulation of leaflet/petition to halt the encroachment of the Negro.
Illinois group libel law said you can’t portray lack of virtue in a class of citizens . . .”
2. Frankfurter (majority): Law is specifically directed at a defined evil. If utterance
immediately directed at individual may be sanctioned, can’t deny State power to punish
same utterance at group. Legislature had good reason to curb malicious defamation of racial
groups.
a. Later cases describe this as based on tendency to induce violence (e.g. Collin v. Smith)
3. Black (dissent): Libel has historically been crime for malicious charges against individuals,
not huge groups [But some would say that ignored a key difference between reputation
concerns and the broader concern for fundamentals of anyone’s civic dignity]
4. Note: Low continued vitality? (p75): 7th Cir: It may be questioned after Cohen and
Brandenburg whether the tendency to induce violence approach sanctioned implicitly
in Beauharnais would pass constitutional muster today.
iii. New York Times v. Sullivan (1964)
1. Fundraising ad by civil rights group which claimed truckloads of armed police surrounded
a college campus among other inaccuracies. Alabama libel law allowed damages if words
injured a person in reputation, with truth as a defense.
2. Brennan (majority): Invalidates law. Notes the expression is critical of official conduct of
public officials.
a. Don’t drop protection for falsity: erroneous statement is inevitable in free debate.
b. Criticism of official conduct doesn’t lose its constitutional protection merely because it
is effective criticism and hence diminishes their reputations.
c. A public official can’t get damages for defamation relating to official conduct
unless he proves the statement was made with “actual malice”
3. Black (concurring): Malice is an elusive concept, hard to prove or disprove; thinks D’s had
an absolute right to publish criticisms.
4. [Page 82 for burdens and procedures around application of NYT]
iv. False statements of fact:
1. Garrison v. Louisiana (1964): Knowing/reckless disregard for truth; no constitutional
protection.
2. Court has said any statement without a provably false factual connotation will receive full
protection, but can’t get immunity by adding the words “I think.” Lorain Journal.
3. United States v. Alvarez: Stolen Valor act makes it a crime to falsely claim receipt of
military decorations
a. Kennedy (plurality): Rejected argument that false statements were completely outside
First Amendment protection; counter-speech served gov’t interest in integrity of
medal. Content-based restriction got “exacting scrutiny.”
b. Breyer (concurrence): False statement can serve useful human objectives (e.g. protect
privacy, shield from prejudice); but didn’t think strict scrutiny was necessary for them;
but found Act failed intermediate scrutiny.
c. Alito (dissent): No protection for false statements for their own sake.
v. Scope of New York Times:
1. Identity of Plaintiff (Public official, public figure, private figure)
a. NYT applies to actions against persons who are public figures and involved in
issues in which the public has a justified and important interest (Curtis Publishing
v. Butts, Associated Press v. Walker).
i. Butts: Newspaper articles said football coach fixed a game.
ii. Walker: Retired general challenged AP report that he had led a violent crowd
opposing desegregation.

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 1. Warren (plurality): No point differentiating between public officials and
public figures. Figures also play an influential role in ordering society and
have as ready access to officials to mass media to counter criticism.
2. Harlan: Thinks lower standard for public figures appropriate.
b. Public figures are a narrow category
i. Gertz: private figure because he had achieved no general fame in the
community or pervasive involvement in the affairs of society.
ii. Hutchinson and Wolston: Not a public figure as he had not thrust himself or
his views into public controversy to influence others.
c. Rosenbloom v. Metromedia, Inc. (1971):
i. News reports said re: nudist magazines; a “smut literature racket” and referred to
“girlie book peddlers.”
ii. Brennan (plurality): critical criterion is subject matter of report. Don’t lose
public interest just because a private individual is involved.
iii. Extend constitutional protection to all discussion and communication
involving matters of public or general concern, without regard to whether the
persons involved are famous.
d. Private figures:
i. Gertz v. Robert Welch (1974):
1. Lawyer brings libel actions against publisher of magazine that said he
framed a policeman in a murder trial, called him a “Communist-fronter.”
2. Powell (majority):
a. No constitutional value in false statements of fact (but protected
because inevitable in free debate).
b. There is a legitimate state interest in individual’s right to protection of
his own good name
c. Self-help is less available to private figures
d. Private individual has not invited attention and comment
e. So long as they do not impose liability without fault, the States may
define for themselves the appropriate standard of liability for a
publisher of defamatory falsehood injurious to a private individual.
i. Only for actual injury.
3. Brennan (dissenting): This will lead to self-censorship of publishers.
4. White (dissenting): Other extreme: Strict liability should be allowed???
Ordinary citizen should not carry the risk of damage and suffer the injury to
vindicate First Am values.
ii. Dun & Bradstreet v. Greenmoss Builders (1985):
1. Private credit report given to bank erroneously saying Greenmoss has filed
for bankruptcy.
2. Powell (plurality): Speech on matters of private concern is less
protected. State interest thus supports awards of damages (even
punitives).
3. Burger and White asked for Gertz to be overruled (allowing for strict
liability I guess???)
4. Brennan (dissent): No distinction between media and other forms.
However, also objects to distinction between public and private concern;
much expression not directly involving public issues should be protected.
2. Issue discussed (matter of public or private concern)
a. Dun & Bradstreet above
b. Snyder v. Phelps below
b. Publicity:

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 i. Zacchini v. Scripps-Howard Broadcasting Co.: Right of publicity exists to hold a party liable
when they broadcast a performer’s entire act without his consent. Property interest in
performance/identity was appropriated?
c. Privacy:
i. Bartnicki v. Vopper (2001):
1. Chief negotiator for teacher’s union had phone convo with president of the local union who
said “if they’re not gonna move [gonna blow off their front porches.” Call was intercepted
and taped by unindentified party who gave tape to local radio talk show host who played it
on the air. Negotiators sued radio broadcasters.
2. Fed statute imposed liability on those who had disclosed intercepted communications if
they had reason to know it was obtained in violation…
3. Stevens (majority): Broadcasters protected by 1st Am.
a. Gov’t interests are reduce incentives for interception and minimize harm to those
who’ve been intercepted.
b. Noted the tapes were obtained lawfully and Ds played no part in their interception and
topic of public concern.
c. Privacy concerns give way when balanced against interest in publishing matters of
public importance: worth on constitutional protection.
4. Breyer (concurring): Agree with narrow holding: broadcasters acted lawfully and
matter of unusual public concern. No broader immunity for media. Notes competing
constitutional right to privacy. Should avoid broad rules to allow legislature to adapt to new
technology***.
5. Rehnquist (dissenting): Incidental restriction on 1st Am here was no greater than essential
to further the interest in protecting the privacy of individual communications. Chilling
private conversations sucks ass. Also did not thrust themselves into public.
d. Outrage: Intentional Infliction of Emotional Distress:
i. Hustler Magazine v. Falwell (1988):
1. Hustler ran a parody of Campari Liquer’s ads with nationally known minister about his
drunken incestuous first time. Bottom of page said “Ad parody—not to be taken seriously.”
2. Rehnquist (majority): No one could reasonably have interpreted it as actually stating fact.
a. Public figures and public officials may not recover for the tort of IIED by reason of
publications such as the one here without showing false statements of fact with actual
malice. (Basically NYT applies)
ii. Snyder v. Phelps (2011):
1. Westboro picketed funeral on public lad 1000ft from funeral.
2. Roberts (majority): No tort liability due to 1st Am.
a. Deals with matters of public concern.
b. For IIED “outrageousness” is a highly malleable standard; unacceptable in public
debate.
3. Breyer (concurring): Balancing with facts is appropriate, rather than category of public
concern and the analysis ends.
4. Alito (dissenting): 1st Am doesn’t protect stuff with no social value. Speech regarding
Matthew Snyder was not of public concern at all.
e. Obscenity and Sexually Explicit Speech (from Roth to Miller and Paris Adult)
i. Roth v. United States; Alberts v. California (1957)
1. Roth and Alberts mailed “obscene” advertisements and books.
2. Brennan (majority): Statutes/convictions upheld.
a. Obscenity is not protected.
b. But only obscene if it deals with sex in a manner appealing to prurient interest.
i. Tendency to excite lustful thoughts.

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 c. Whether to the average person, applying contemporary community standards, the
dominant theme of the material taken as a whole appeals to prurient interest.
3. Douglas (dissent): Legality of publication turning on purity of thought it instills in the
reader is dumb. So is saying that a form of expression has no social importance.
ii. Redrup v. New York (1967): Treated obscenity cases as numbers game; “Redrupping” was
members of the Court applying their own tests for if something was obscene.
iii. Kingsley Int’l Pictures Corp. v. Regents (1959): Court invalidated State ban of “immoral” films
(e.g. showing adultery); noting difference between sexual immorality and obscenity.
iv. Stanley v. Georgia (1969): Reversed conviction for possession of obscene matter; right to
receive information only limited in rare circumstances (ease of administration of other laws not
legit here).
v. Miller v. California (1973):
1. Caused unsolicited advertising brochures for adult material to be sent through the mail with
pictures explicitly depicting sex with prominent display of genitals.
2. Burger (majority):
a. States have legit interest in limiting exhibition/dissemination of obscene material when
there is risk of offending sensibilities of unwilling recipients.
b. Test:
i. “Whether the average person, applying contemporary community
standards” would find the work as a whole appeals to the prurient interest;
ii. whether the work describes in a patently offensive way, sexual conduct
specifically defined by the applicable state law;
iii. whether the work taken as a whole lacks serious literary artistic, political,
or scientific value.”
iv. Test will only allow “hard core” stuff to be prosecuted.
c. Does not go as far as “utterly without redeeming social value”
d. Note: lack of national uniformity with “community standards”
3. Douglas (dissent): Rude to send men to jail for violating imprecise standards.
4. Brennan (dissent): Under Paris dissent, this is overbroad, unconst on face.
vi. Paris Adult Theatre I v. Slaton (1973):
1. Georgia civil proceeding enjoined showing of obscene films at two adult theatres.
2. Burger (majority): If it meets Miller, Georgia can regulate obscene material inside
theatre.
a. No immunity from regulation just because it’s only exhibited to consenting adults.
b. Legitimate state interest in stemming the tide of commercialized obscenity
i. (Quality of life, tone of commerce, public safety)
ii. This is not a private home.
3. Brennan (dissent): This chills protected expression; impossible to discern obscenity. Other
opinions cared about protecting children and unconsenting adults; here must show strong
interest in regulating the viewing habits of consenting adults; not shown.
vii. Jenkins v. Georgia (1974): Juries don’t have unbridled discretion to determine what’s
patently offensive. No exhibition of genitals in the sex scenes. Starred prominent actors and
nominated for awards; Court thus implicitly concluded obscenity laws couldn’t easily be
extended to mainstream materials.
viii. Hamling v. United States (1974): Court opted for local rather than state/national standards,
rejecting arg that local standards would unduly inhibit producers of material for national market.
ix. Smith v. US (1977): Used local standards for instrastate mailings for federal obscenity
prosecution in state with no obscenity law.
1. Also held “literary, artistic, policial, or scientific value” factor was not to be measured by
local standards.

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 x. Pope v. Illinois (1987): On value factor: “whether reasonable person would find such value
in the material as a whole.” Stevens in dissent said it should be some reasonable persons.
xi. American Booksellers Ass’n v. Hudnut (7th Cir. 1986):
1. Ordinance defined porn as practice that discriminates against women.
2. Easterbrook (majority):
a. Constitution forbids declaring one perspective right.
b. Justifications (reducing perpetuation of subordination) for banning actually showed
power of porn as speech. Under Gertz, no false ideas. Not low value speech. Doesn’t
matter than unanswerable.
xii. Policy:
1. Problematic unequal protection with “value” factor—e.g. Jury finds nude photos artistic,
but testimony on antecedents of rap didn’t avert obscenity conviction for Florida jury.
2. Sunstein; Anti-porn is directed at harm rather than viewpoint
3. Tribe: All viewpoint regs are targeted at some supposed harm
4. MacKinnon-Dworkin sees sexual speech as shaping the community rather than merely
gratifying individual customers.
a. Other feminists say porn can be liberating and MacKinnon’s problematic (p150)
5. Community standards: chill communications among fringe subcultures, especially online?
Where the eavesdropper is arbiter of propriety on the web? Deny some communities access
just because others in some community may find it indecent?
xiii. Child Pornography:
1. New York v. Ferber (1982):
a. Bookstore owner convicted for selling films of young boys masturbating. Law
prohibited distribution of kids engaged in sexual conduct; w/out regard to obscenity.
b. White (majority): States have greater leeway to regulated porn w/ children.
i. State interest in safeguarding physical/psych wellbeing of kids is compelling
ii. Harm to child is exacerbated by circulation
iii. Distribution network has to be closed to control exploitation (promotion of the
material is harmful)
iv. Economic motive is an integral part of the production of materials
v. Value of permitting performances of children engaged in sexual conduct is very
low; probably not necessary to any literary/scientific work.
vi. For child porn, Miller does not apply:
1. Need not find prurient interest of average person
2. Need not be patently offensive
3. Material need not be considered as a whole
vii. Simply must:
1. Be adequately defined by applicable state law
c. O’Connor (concurring): Notes that majority does not hold that any social value can
save any child porn.
d. Brennan (concurring): Disagrees that social value cannot provide protection.
e. Note: Majority engaged in “definitional balancing” seen in NYT as opposed to
Chaplinsky which did not consider the state interests.
2. Osborne v. Ohio (1990):
a. Stanley not applicable to child porn; possession is unlawful. White (majority) said
interest in eliminating the entire chain justified criminalizing possession. Brennan
would have extended Stanley.
3. Ashcroft v. Free Speech Coalition (2002): Court (Kennedy) struck down Act that
prohibited child porn that didn’t have real kids in it.
a. The harm of child porn doesn’t flow from the speech, but from some potential for
subsequent criminal acts.

11
 b. Can’t control private thoughts
c. Also strikes down provision that prohibits “pandering” or advertising depictions of
minors; overbroad.
d. Thomas (concurrence): noted that in future if virtual child porn was indistinguishable,
might be allowed to ban to actually allow enforcement of child porn laws.
e. Rehnquist (dissent): Congress has compelling interest in enforcing prohibitions of
actual child porn and we should defer to their findings that new tech will make it hard
to continue that without the Act.
xiv. Violence and Disgust:
1. United States v. Stevens (2010):
a. No new category for violence
b. Fed statute criminalized videos of animal cruelty without serious value; legislative
history was about crush videos. Stevens indicted for distributing dogfighting videos.
c. Roberts (majority):
i. Ad hoc balancing of free speech is not OK.
ii. Ferber (child porn) was not balancing competing interests; child porn market
was intrinsically related to the underlying abuse
1. [probably true because dogfighting will happen anyway? But what about
crush videos?????Would this case have gone the other way if the statute
was narrowly tailored?????]
iii. Also statute here is overbroad because applies to hunting magazines etc.
iv. Long-settled tradition of subjecting certain categories of speech to regulation is
required for those categories to receive an exemption from First Am protection.
d. Alito (dissent): Core characteristics of Ferber are shared.
2. Brown v. Entertainment Merchants Ass’n (2011):
a. CA statute prohibits selling violent games to minors that lack
literary/artistic/political/scientific value.
b. Scalia (majority): Statute fails strict scrutiny.
i. Video games communicate ideas; protected by 1st Am.
ii. Minors are entitled to a significant measure of 1st Am protection and only in
relatively narrow, well-defined circumstances may gov’t bar public
dissemination of protected materials to them.
iii. Tradition would strengthen CA’s arg.
iv. Fails strict scrutiny because no causal link show between violent video games
and harm to minors.
1. Also there are cartoons and toy guns and stuff so underinclusiveness raises
doubts about actual pursuit of interest in lowering aggression.
c. Alito (concurrence): Statute void because impermissibly vague. But video games are
different than what we’ve seen before and could seriously fuck kids up.
d. Thomas (dissenting): 1st Am doesn’t include right to speak to minors without going
through their parents/guardians.
e. Breyer (dissenting): Modest restriction on expression; psych studies presented are
enough for them to conclude harm to children; we owe deference.
f. Hate Speech:
i. Collin v. Smith (7th Cir. 1978)
1. Nazis were going to march in Skokie (town with holocaust survivors) so town made
ordinances for permit system prohibiting dissemination of materials that promote hate.
2. Pell (majority): Ideological tyranny is forbidden. Basic content/viewpoint-
discrimination.
a. Not lacking in social content: no such thing as false ideas.
b. Beauharnais does not control because possible violence is not asserted

12
 c. Can’t make criminal the peaceful expression of unpopular views.
3. SCOTUS denied staying the ruling, but dissent noted tension with Beauharnais.
4. SCOTUS later declined to review the decision, but dissent there argued when citizens assert
that a demonstration in context will be taunting and overwhelmingly offensive to the
citizens of that place, should be examined.
ii. On Campus:
1. Doe v. U Mich. (ED Mich): struck down regulation disciplining individuals who stigmatize
people on basis of race, sex, etc; overbroad and impermissibly vague.
2. Cal Court struck down Stanford prohibition of discriminatory harassment; overbroad
because it reached insults that did not threaten or provoke immediate violence under
Chaplinsky.
iii. R.A.V. v. City of St. Paul (1992)
1. Teens burned cross in yard of black family. Not charged under property/terrorist laws, but
instead under “Bias-Motivated Crime Ordinance” which prohibits symbols including
burning crosses used with knowledge that it will arouse anger on basis of race…
2. Scalia (majority): Ordinance unconstitutional
a. When the basis for content discrimination consists entirely of the very reason the entire
class of speech is proscribable, no danger of viewpoint discrim exists.
i. Also when the content-defined subclass is associated with particular secondary
effects
b. But this ordinance is only applies to fighting words that insult race, religion, etc., but
not fighting words generally; First Am doesn’t permit special prohibitions on
disfavored subjects
c. Also, this is viewpoint discrimination; could use fighting words in favor of racial
equality.
d. Ordinance not limited to the favored topics would serve all the state interests.
3. White (concurrence): ***
a. Inconsistent to say gov’t can proscribe a category because the content is evil, but can’t
treat a subset of that category differently without violating the 1st Am. The content of
the subset is by definition worthless.
b. Also this is a renunciation of strict scrutiny; majority says compelling law can’t be
constitutional if its object could be accomplished with a wider ban.
c. Concurs because overbroad applying to anything that causes hurt/offense.
4. Stevens (concurring): In ruling that proscribable speech can’t be regulated based on subject
matter, court gives protection to fighting words and obscenity not before afforded. Not
viewpoint discrim because regulates injuries, not discussions. Would uphold if it weren’t
overbroad.
iv. Regulating Hate Crimes vs Speech vs Threats:
1. Wisconsin v. Mitchell: Conduct (as opposed to speech) can be regulated on the basis of
viewpoint. Increased sentence of black men who beat white boy selected on basis of race.
This was permissible; looking at motive in considering sentencing.
a. RAV is limited to viewpoint-selective laws aimed expressly at otherwise unprotected
words or symbols.
2. Watts v. United States: True threats can be proscribed to protect people from fear of
violence. Guy said if they make him carry a rifle he’d shoot the president. Threats must be
distinguished from political hyperbole.
3. Virginia v. Black (2003):
a. VA statute banned cross burning with intent to intimidate. But also had provision
treating any cross burning as prima facie evidence of intent to intimidate.
b. O’Connor (plurality):

13
 i. RAV was different; here VA statute doesn’t single out speech directed toward
“one of the specified disfavored topics.” Intent to intimidate is independent of
animus toward race/gender/etc.
ii. Thus First Amendment permits VA to outlaw cross burning with intent to
intimidate because cross burning is a virulent form of intimidation.
iii. But the prima facie provision lets a jury convict when defendants use
constitutional right not to put on a defense (allowing conviction based solely on
cross burning without intent to intimidate).
c. Scalia (concurring/dissenting): Agree VA can regulate, but shouldn’t have invalidated
prima facie provision. Statute only applies in conditions where intent to intimidate is
obvious; plurality’s concern is absurd.
d. Souter (concurring/dissenting): Statute should fail under RAV; Content-based
proscription could be subtle effort to ban particular message of white supremacy
(official suppression of ideas). Only way to pass RAV would be content-neutral statute
banning intimidation; that doesn’t single out particular content.
e. Thomas (dissenting): Cross-burning is rude af. You can’t terrorize and intimidate to
make a point. This is conduct, not speech, so First Am doesn’t apply.
4. Elonis v. United States (2015):
a. Made threatening statements about former wife in rap-lyric form on Facebook. Court
overturned on non-constitutional ground that statute required showing of purpose to
make threat which jury didn’t decide. Concurring, Alito argued that conviction on
recklessness grounds wouldn’t violate the First Am.
i. After all, whether or not the person making a threat intends harm, the damage is
the same. Context matters.
5. Consider true threats issues relation to factual data stuff (50-55), encouragement/support
of terrorism? Solicitation/encouragement of violence?
a. Holder v. Humanitarian Law Project (2010):
i. Plaintiffs want to support groups designated as foreign terrorist organizations;
claim they only want to facilitate lawful, nonviolent purposes of the groups by
teaching how to peacefully resolve disputes.
ii. Roberts (majority): Material-support statute is constitutional as applied.
1. Rejects argument that specific intent to further unlawful ends is necessary.
2. Statute does not cover independent advocacy; only that which is
coordinated with or under the direction of the orgs.
3. Defer to Congress finding that contributions to terrorist orgs furthers
terrorism.
4. Easy for judges to draw the line between support and not (as opposed to
something vague like “offensiveness”)
5. The teachings of plaintiffs could be used as part of broader terrorism strat
(e.g. help them acquire money).
6. National security is important af; passes strict scrutiny.
a. [but maybe this was “more rigorous scrutiny” for laws generally
directed at conduct but triggered in particular case by communication
of a message.
iii. Breyer (dissent):
1. Gov’t hasn’t made strong showing to justify criminalizing speech. No
incitement (Brandenburg).
2. Unclear how statute helps achieve national secutiry.
3. “Fungible” argument is shaky.
4. “Coordination” is too broad; will restrict independent advocacy.
b. HLP is limited to the statute’s prohibition on material support for foreign terrorist orgs:

14
 c. Haramain Islamic Foundation v. US Dep’t of Treasury (9th Cir. 2011):
i. Domestic status undermined gov’t interest in prohibiting advocacy for
domestic foundation tied to int’l terrorist org. There was little evidence the pure-
speech activities would aid the int’l org’s sinister purposes.
d. British Terrorism Act doesn’t allow encouragement or inducement of terrorism
e. Shkreli: Solicitation to assault in exchange for money is not protected by the First
Amendment said NY Dist Ct. Satire? Risk it would be taken seriously?
v. Policy:
1. (p115 for hate speech debate)
2. Other countries regulate based on need to protect human dignity, apart from safeguarding
public order
3. Note Beauharnais has never been overruled. NYT perhaps unsettled notion of group libel.
4. Racism in schools: can’t prohibit because of 1st Am or can because creates hostile
educational environment for others?
5. Objective intent or subjective intent for threats? Question is open (Elonis Alito
concurrence)
6. How much should courts defer to Congress’s findings of dangerousness of speech (not at
all, Brandeis in Whitney, a lot, Roberts in Humanitarian Law Project).

g. Commercial Speech
i. Generally
1. Speech that merely proposes a commercial transaction. Has received low but existent
protection since 1976.
a. This is the only exception to the two-level approach to speech set out in Chaplinsky
b. E.g. old case Valentine v. Chrestensen (1942): No restraint on gov’t as respects purely
commercial advertising.
2. Virginia Pharmacy Bd. v. Va. Citizens Consumer Council (1976):
a. VA law prevented pharmacists from advertising prices of prescription drugs;
effectively prevented dissemination of prescription drug price info.
b. Blackmun (majority):
i. Notes that audience has standing; First Amendment protects source and
recipients both.
ii. Says that in Bigelow the year before, had protected an ad with material of clear
public interest
iii. This is a case of pure commercial speech (just proposes transaction)
iv. Commercial speech does not lack all protection (as in Chaplinsky)
1. Advertising is dissemination of information; enlightens public
decisionmaking.
2. State interest in professionalism was based on fear of aggressive price
competition, which could be regulated. (though this was rejected as an
antitrust regulation in Professional Engineers two years later).
3. State interest relies on keeping citizens in ignorance; that’s
unacceptable
v. Footnote: this speech is profit-driven and more objectively verifiable than other
speech: lower level of protection than other speech; less necessary to tolerate
inaccurate statements; less need to avoid prior restraints.
c. Rehnquist (dissent): Legit for state to stop encouraging of illicit use of drugs.
3. Mixture of commercial and non?:
a. In Bolger v. Youngs Drug Prods. (1983), Court said ads for contraceptives combined
with info pamphlets about sexuality were commercial speech. Company can have full
protection by speaking outside context of proposing transaction.

15
4. Real Estate For Sale Signs:
a. Linkmark Associates v. Town of Willingboro (1977): Struck down ordinance
prohibiting For Sale and Sold signs to stop white flight; based impermissibly on
keeping in ignorance.
5. Contraceptive Ads:
a. Carey v. Population Servs., Int’l (1977): Invalidated NY ban on ads based on societal
interest in free flow of commercial info.
6. Lawyer advertising:
a. Bates v. State Bar of AZ (1977): states can’t prohibit lawyers from price advertising
of routine legal services.
b. Ohralik v. OH State Bar Ass’n (1978): May proscribe in-person solicitation for
pecuniary gain under circumstances likely to result in adverse consequences
(ambulance chasing).
c. In re Primus (1978): Can’t punish lawyer who seeking to further ideological goals
advises a lay person of legal rights and discloses that free legal assistance is available
(asked woman who was sterilized if she wanted to be in ACLU lawsuit)
d. Zauderer v. Office of Disciplinary Counsel (1985): Court struck down restriction on
illustrations; state interest in attorney dignity not enough to abridge 1st Am rights.
e. Shapero v. Kentucky Bar Ass’n (1988): Struck down flat ban on direct-mail
solicitation targeted to specific recipients known toned legal services of a particular
kind. Danger of overwhelming people was considered way lower by mail than face to
face.
f. Pell v. Attorney Registration and Disciplinary Comm’n of Ill. (1990): Invalidated
disciplinary sanction for attorney advertising he was certified specialist by National
Board of Trial Advocacy; not misleading under 1st Am.
g. Florida Bar v. Went For It (1995): Upheld FL rule prohibiting personal injury lawyers
from sending targeted direct-mail solicitations to victims and their relatives for 30
days after accident/disaster. Legit means of protecting privacy and tranquility of
victims. Kennedy dissented saying it’s urgent to investigate things immediately.
7. Central Hudson Gas v. Public Service Comm’n (1980):
a. NY Public Service Commission prohibited electrical utilities from engaging in
promotion advertising to stimulate demand for electricity.
b. Powell (majority): Prohibition is invalid.
i. Four-part Test:
1. (1) Does it fall under the 1st Amendment? Only if it concerns lawful
activity and is not misleading.
2. (2) Is the asserted governmental interest substantial?
3. If both inquiries yield a positive answer, must determine
4. (3) Does the regulation directly advance the gov’t interest asserted?
5. (4) Is the regulation more extensive than necessary to serve the interest?
ii. Here, fails the more extensive than necessary prong because it reaches all promo
advertising regardless of impact on energy use.
c. Blackmun (concurring): Doesn’t like the 4-pt test. Doubt suppression of info
concerning availability of a legal product is ever a legit way to lower demand. Can’t
manipulate citizens by depriving info.
d. Stevens (concurring): Not commercial speech case; ban stops all kinds of speech. So
obviously invalid.
e. Rehnquist (dissenting): State-created monopoly shouldn’t get 1st Am protection;
closer to a state-controlled enterprise.***. Marketplace of ideas can have market
imperfections too that state can correct. Also, this is regulating business conduct, not
speech.

16
8. Not “more extensive than necessary”
a. Board of Trustees, State Univ. of NY v. Fox (1989): This is not a “least restrictive
alternative” analysis. All that’s required is a fit between the legislature’s ends and
the means chosen to accomplish those ends. A fit that is not necessarily perfect, but
reasonable; that represents not necessarily the single best disposition but one whose
scope is in proportion to the interest served. Narrow tailoring.
9. Differential treatment of commercial speech:
a. Metromedia v. San Diego (1981): Court struck down ordinance regulating placement
of noncommercial billboards, but allowed portions banning commercial.
b. City of Cincinnati v. Discovery Network (1993): Commercial speech can’t be treated
differently from noncommercial speech for aesthetic or safety purposes in the absence
of some distinctive harm from commercial speech. City had allowed normal
newsracks, but none distributing commercial handbills. Distinction can’t bear no
relationship to the particular interests asserted (e.g. commercial newsracks aren’t
uglier). Low value speech isn’t enough for discrimination.
c. Los Angeles Police Dep’t v. United Reporting (1999): State law permitted arrest
records to be disclosed for scholarly purposes but not to sell products. Court said this
was just a law regulating access to info in the hands of the police department; not
abridging anyone’s rights to engage in speech.
10. Rise and fall of the “vice” exception:
a. Posadas v. Tourism Co. of Puerto Rico (1986): Upheld law prohibiting gambling
casinos from advertising.
i. Court said reducing demand for casino gambling was legit interest and met
Central Hudson.
b. United States v. Edge Broadcasting (1993): Allowed to enforce policy against
gambling against radio station.
c. Rubin v. Coors Brewing (1995): Rejected any notion of vice exception. Act prohibited
beer labels from displaying alcohol content; gov’t asserted interest in avoiding
“strength wars.” Court said Central Hudson always applies; no exception for
socially harmful activities. Failed Central Hudson; didn’t directly advance health and
more extensive than necessary because could just regulate alcohol content, etc.
11. 44 Liquormart v. Rhode Island (1996):
a. RI law prohibited advertising price of booze in any manner except by tags/signs inside
stores.
b. SCOTUS invalidated, but with varied opinions:
c. Stevens [+Kag+Gins]
i. When a state regulates commercial messages to protect consumers from
deception/aggression, the purposes are consistent with lower protection for
commercial speech
ii. But commercial speech restrictions should receive strict scrutiny when they
are unrelated to the preservation of a fair bargaining process
1. Bans against nonmisleading commercial speech rest on offensive
assumption that public will respond irrationally.
d. Stevens [+Ken+Gins+Sout]
i. Fails under Central Hudson. This doesn’t directly advance promotion of
temperenace. Also too extensive.
e. Stevens [+Kennedy+Thomas+Ginsburg]
i. Posadas was wrong in allowing legislature to choose suppression over less
speech-restrictive policy; reject contention that because it can ban sale of alcohol
outright, it can ban speech around it. Banning speech can be worse than conduct.
Also no vice exception.

17
 f. Scalia (concurring): Central Hudson is the law, and this fails under it.
g. Thomas (concurring):
i. Where gov’t interest is keeping legal users of a product ignorant, don’t apply
Central Hudson. That’s per se illegitimate. Plus, when the purpose is
discouraging consumption; direct regulation will always make it fail the 4th
prong.
h. O’Connor [+Rehn+Sout+Brey]: Too extensive under Central Hudson.
12. Commercial Speech After Liquormart:
a. Many justices have advocated full strict scrutiny for some commercial speech
(e.g. Stevens in Liquormart); but never have five sat on the court at the same time.
b. So we still use Central Hudson.
c. Lorillard Tobacco v. Reilly (2001): Tobacco advertising regs invalidated under CH
i. Outdoor advertising regs not narrowly tailored; also kids can look up, making
height restrictions on merchandise dumb.
d. Thompson v. Wester States Medical Center (2002): Act conditioning FDA approval on
not advertising drugs invalidated, paternalism.
e. Sorrell v. IMS Health (2011): State can’t restrict sale/use of pharmacy records for
purpose of revealing to pharmaceutical manufacturers the prescribing practices of
individual doctors. State can’t obtain policy objectives through restraining speech.
ii. Policy:
1. Advertising is merely a first step in contracts or exchanges that are fully regulatable?
2. Antipaternalism arg born in VA Pharmacy led to Thomas and Stevens in Liquormart
h. Compelled Commercial Speech:
i. Glickman v. Wileman (1997): Upheld compulsory funding of advertising: Assessed CA fruit
growers costs of generic advertising of CA fruit.
1. Stevens (majority): Simply a question of economic policy for Congress/Executive to
resolve.
a. Doesn’t restrain other messages
b. Doesn’t compel any actual/symbolic speech
c. Doesn’t compel endorsement/financing of any political/ideological views.
d. Purpose of stimulating demand in regulated market is legit.
2. Souter (dissent): Central Hudson; Court assumes respondents don’t disagree, but they claim
to. And anyway, requiring a profession of disagreement to avoid compelled speech is
wrong; they don’t want to support the message.
ii. United States v. United Foods (2001): Invalidated
1. Fed law mandating fresh mushroom handlers pay assessments to fund mushroom ads.
Mushroom grower didn’t want to have to support generic mushroom ads; wanted to convey
that its mushrooms were better.
2. Kennedy (majority):
a. No comprehensive program of cooperative marketing, unlike Glickman. There,
assessments were ancillary to comprehensive program restricting marketing autonomy.
Here, the advertising was the principal object of the regulatory scheme.
3. Breyer (dissent): This is Glickman. No reason that price/output regs should affect First Am
analysis. Same rationales like avoiding free-riding for a generic product applies.
a. Also, this isn’t even compelled speech, it’s compelled payment of money. No First Am
scrutiny. Even if it was, would pass under Central Hudson.
iii. Johanns v. Livestock Marketing Ass’n (2005):
1. Taking money for beef promotion
2. Scalia (majority): Upheld
a. Not like Glickman, because no broader regulatory system
b. But uphold because the beef exaction, like taxation, supports government speech

18
 3. Souter (dissent): No indication that content was gov’t message; should follow United
Foods.
iv. Policy:
1. This is the gov’t’s message; think of it as a tax used to fund gov’t speech.
2. Avoid free-riding for undifferentiable products (but perhaps the sellers less likely to agree
their products aren’t differentiable
V. Regulation of Speech
VI. Content Neutrality
VII. Viewpoint Neutrality
VIII. Speaker Restrictions
IX. Restrictions justified according to audience response
X. Compelled Speech in General:
a. Minersville School Dist. v. Gobitis (1940): Jehovah’s Witnesses challenged school requiring kids to
worship graven images (against their religion). Here, Court sustained the flag salute requirement.
National unity is the most important thing ever.
b. West VA State Bd. of Educ. v. Barnette (1943):
i. Jackson:
1. State was precluded from making the flag salute compulsory; that requires affirmation of
a belief and an attitude of mind.
2. To sustain the compulsory flag salute we are required to say the Bill of Rights guards the
right to speak, but allows public authorities to compel him to utter what is not in his mind.
3. Can’t coerce uniformity; that doesn’t even work.
c. Wooley v. Maynard (1977):
i. NH law requires “Live Free or Die” plate. Jehovah’s Witnesses challenged.
ii. Burger:
1. State here forces individual, in public view, to be an instrument for fostering public
adherence to an ideological point he finds unacceptable.
2. Invades the sphere of intellect and spirit which it is the purpose of the 1st Am to
reserve from all official control.
d. Miami Herald v. Tornillo (1974) (Burger):
i. Right of reply law (for political candidates, applies to newspapers) held unconstitutional.
ii. Press responsibility is not mandated by Constitution; don’t intrude on editorial control.
iii. (But see Red Lion Broadcasting v. FCC, allowing due to limited broadcast spectrum)
e. Policy:
i. Would probably really attribute a license plate to a speaker rather than the gov’t? Or does that
arg always apply and is there something to say about dignity/degradation?

XI. Speech: How, Where, By Whom?

XII. Conduct as Speech; Content-Neutrality
a. Content-Neutral vs. Content-Based; and Communicative Impact
i. Reed v. Town of Gilbert (2015):
1. Town prohibited outdoor signs without permit, but then exempts 23 categories of signs,
including ideological signs (very favorable treatment), political signs (a little less
favorable), temporary directional signs for qualifying event (even less favorably).
2. Thomas (majority):
a. Gov’t regulation of speech is content based if a law applies to particular speech
because of the topic discussed or the idea or message expressed
b. Here, it is, so strict scrutiny.
c. Fails strict scrutiny because distinctions are hopelessly under-inclusive; aesthetics not
protected.

19
 3. Alito (concurrence): Gives e.g.’s of content neutral rules: size of signs, locations, private vs
public property, commercial vs residential, time restrictions, etc.
4. Kagan (concurrence): Don’t need to apply strict scrutiny when there is no possibility that
official suppression of ideas is afoot. E.g. here, that’s not realistically possible. Here, the
ordinance fails even very low scrutiny though.
ii. Police Dep’t v. Mosley (1972):
1. Statute barred picketing, but exempted peaceful picketing of a school in a labor dispute.
2. Marshall (majority): Impermissible because it describes the permissible picketing in
terms of its subject matter.
a. Gov’t can’t decide what issues are worth discussing.
b. Nonlabor picketing is obviously no more disrupting than labor picketing
iii. Carey v. Brown (1980):
1. Statute banned picketing, exempting picketing of place of employment in labor dispute.
2. Brennan (majority): Preferential treatment for one subject, so unconstitutional.
3. Dissent said it was the character of the residence not the subject matter.
iv. Simon & Schuster v. Members of New York State (1991):
1. “Son of Sam” law to prevent criminals from profiting off books about their crimes requires
proceeds due to the people accused/convicted of crimes to an escrow account where they
could satisfy damage judgments brought by victims.
2. O’Connor (majority): Invalidated the statute. Content-based; financial disincentive for
only particular content; strict scrutiny failed; compelling interest in ensuring criminals don’t
profit from crimes, but not narrowly tailored.
3. Kennedy (concurrence): Would have found invalid per se because raw censorship based on
content.
v. Burson v. Freeman (1992): Upheld law prohibiting soliciting votes within 100 ft of polls.
1. Blackmun (plurality): Content-based, strict scrutiny; compelling interest in letting
people vote freely in election conducted with integrity and reliability; against voter
intimidation and election fraud.
2. Kennedy (concurrence): Admitted his Simon & Schuster idea of per se illegality for content
discrimination could yield in narrow area to accommodate another constitutional right.
3. Stevens (dissent): Content regulation; specifically harms poor candidates who benefit
disproportionately from last-minute campaigning.
vi. Republican Party of Minnesota v. White (2002):
1. Invalidated MN law that said judicial candidates can’t announce views on disputed
political/legal issues; prohibits speech on basis of content. Judges need to be impartial
wrt parties, not politics; nothing compelling.
vii. Williams-Yulee v. Florida Bar (2015): Roberts: Upheld law that prohibited judges from
personally soliciting campaign funds; got strict scrutiny, but passes with interest in
protecting integrity of judiciary and maintaining public confidence. Scalia dissented noting that
this disadvantages poor candidates without connections who will struggle to fundraise.
viii. Speaker restrictions:
1. Sometimes gets same strict scrutiny as content restrictions
2. But sometimes not considered equivalent to content restrictions:
a. Regan v. Taxation with Representation (tax benefits to vets but not other lobbyists,
looking to vet’s service to nation)
b. Turner Broadcasting v. FCC (required cable operators to carry programs of over-the-
air broadcasters, but not other video programmers (relating to cable’s chokehold
monopoly)
c. Madsen v. Women’s Health Center enjoined protesters outside abortion clinics, but not
other entities (relating to the protesters’ past actions that gave rise to the injunction)

20
 d. Cornelius v. NAACP allowing charitable orgs but not advocacy orgs to solicit funds
from fed office workers
e. Perry Education Ass’n v. Perry Local Educators’ Ass’n allowing access to public
teachers’ mailboxes to incumbent union, but not rival, because current collective
bargaining representative).
ix. Communicative impact on audience:
1. Forsyth, Cohen, RAV, show basing laws on audience is viewed with skepticism, but
2. Boos v. Barry (1988): Court struck down DC Code prohibiting display of signs bringing a
foreign gov’t into disrepute close to embassies. Content-based, and not narrowly tailored to
interest in protecting dignity of foreign diplomatic personnel.
3. Decline to extend Renton secondary effects rationale to political context.
x. Time, place, manner vs. symbolic conduct restrictions?
1. Somewhat different language has been used; e.g. “ample alternative channels of
communication” seems necessary with TPM restrictions
a. But the Court has said the O’Brien test is “little if any, different from the standard
applied to time, place, and manner restrictions.” Clark v. Community for Creative
Non-Violence (1984).

xi. Total medium bans:

1. Court struck down a bunch in 30s and 40s focusing on their negative effects on distribution
of speech.
a. Restriction of a format might discriminate in effect against groups financially
unable to resort to other formats
b. Seems less important in modern times.
c. Court has made clear it will still invalidate them if they suppress too much speech;
City of Ladue v. Gilleo (1994) (ban on residential signs).
d. See these below:
xii. Policy:
1. Is content discrim suspect when no risk of viewpoint discrim?
2. Reasons for treating content-neutral laws differently:
a. Purpose: more likely disapproval of ideas
b. Effect: More likely to distort dialogue
c. Political safeguards:
b. Content-Neutral Regulation and Symbolic Conduct: O’Brien and Flag Desecration Cases:
Symbolic speech in cases like RAV (see p243). What happens to laws not aimed at speech, but that
limit conduct such that it hits symbolic speech?
i. U.S. v. O’Brien (1968):
1. O’Brien burned his Selective Service registration certificate on steps of Boston courthouse
as antiwar statement in violation of statute saying can’t destroy the certificate.
2. Warren (majority): Upholds statute.
a. O’Brien Test: Gov’t regulation is sufficiently justified if:
i. (1) Within the constitutional power of the gov’t
ii. (2) Furthers important/substantial gov’t interest
iii. (3) Gov’t interest is unrelated to suppression of free expression AND
1. [Content-neutral]
2. Must look at causal connection to the case (e.g., if interest in discouraging
riots is tied to danger of riot caused by what defendant was saying, state
interest is related to suppression of expression)
3. Not about gov’t’s subjective motive.
iv. (4) Incidental restriction is no greater than essential to furtherance of interest.
b. Statute meets all requirements; facilitates communication; reminds registrants…

21
 c. Also will not invalidate constitutional statute on basis of alleged illicit motive.
ii. Ward v. Rock Against Racism (1989): Need not employ the least restrictive alternative; just
needs to be closely tailored.
iii. Incidental restrictions on expression:
1. Arcara v. Cloud Books (1986) (Burger): Upheld NY law defining places of prostitution as
public health nuisances. Law didn’t single out bookstores; the sexual activities weren’t
protected by First Am; doesn’t even get intermediate O’Brien scrutiny, because just
incidentally affects a bookstore.
a. Blackmun dissent: when the State impairs First Amendment activities (like bookstore
operation), even through content-neutral laws, it’s unconstitutional as applied without
showing least restrictive means.
iv. Flag Desecration
1. Street v. NY (1969) (Harlan): On record, desecration law unconstitutionally as applied to
permit punishment of Street merely for speaking defiant or contemptuous words about the
flag (but he did burn one). Dissent thought he was being punished for action not speech.
2. Smith v. Goguen (1974) (Powell): Struck down under due process doctrine of vagueness,
but White concurrence said can’t punish for unpopular views.
3. Spence v. Washington (1974)(Per curiam):
a. Spence displayed a US flag with a peace symbol on it to protest the invasion of
Cambodia.
b. Conduct is speech when?
i. Intent to convey a particularized message was present, and in the surrounding
circumstances, the likelihood was great that the message would be
understood by those who viewed it.
4. Texas v. Johnson (1989):
a. Guy publicly burned American flag in protest violating TX law (that had
offense/desecration in language).
b. Brennan (majority):
i. Spence: it’s speech
ii. Disturbance of speech interest not implicated.
iii. Preserving symbol of national unity interest is implicated, but is related to
suppression of expression, so doesn’t get lower O’Brien standard (state
concern only arises when the treatment of the flag communicates a message)
1. Content-based
iv. Strict scrutiny:
1. Preventing offensiveness is not legit interest.
v. No separate juridical category for the flag.
c. Steven (dissent): Flag is intangible national asset being harmed, analogous to spray
painting Lincoln Memorial.
5. Legislative response trying to criminalize flag desecration was struck down in United States
v. Eichman (1990):
a. Brennan (majority): While new law did not target expressive conduct on basis of the
content of its message (was about physical integrity of flag), it was clear that the
government’s asserted interest is related to the suppression of free expression. It
suppresses expression out of concern for its likely communicative impact.
b. Stevens (dissent): Legit societal interest unrelated to suppression of ideas; symbolic
value of flag can be protected.
6. Attempts to amend the constitution in response fell short in the House and Senate.
7. Policy:
a. Rehnquist thinks flag is important symbol of national unity
b. Stevens thinks it’s a national asset

22
 c. Flag misuse laws protect government speech of flag? (as opposed to prohibiting
messages against it?)
d. Stevens footnote in Johnson: Opinion might have been introduction of disparate
impact analysis because Court suggests flag desecration is not content-neutral because
it is used only by people critical of the US/flag.
c. Nudity
i. Erznoznik v. Jacksonville (1975): Ordinance prohibited drive-in theaters visible from public
streets from showing nudity. City defense was protecting unwilling citizens from exposure.
1. Powell (majority):
a. TPM restrictions have to be content-neutral.
b. Selective restrictions only when speaker intrudes on privacy of home or degree of
captivity makes it impractical for unwilling viewer to avoid exposure.
c. Fails strict scrutiny because privacy interest is limited (avert eyes); can’t justify
censorship.
2. Burger (dissent): Legit to think this will distract drivers.
ii. Schad v. Mount Ephraim (1981): Coin-operated mechanism permitting customers to watch live
nude dance performance behind glass panel. Zoning rules had permitted use which banned all
live entertainment.
1. White (majority): Excluding live entertainment prohibits a wide range of protected
expression. Nudity alone does not place protected material outside 1st Am.
a. Fails to show “substantial” gov’t interest
2. Burger (dissent) Minimal intrusion on expression.
iii. Barnes v. Glen Theatre (1991):
1. Bar featuring go-go dancers and adult bookstore challenge statute that provided nudity fell
under public indecency.
2. Rehnquist (plurality): Banning nudity across the board is content-neutral.
a. Substantial gov’t interest in societal order and morality.
b. Interest is unrelated to suppression of free expression.
3. Scalia (concurring): Regulates conduct, not directed at expression, no 1st Am at all.
4. Souter (concurring): Order and morality doesn’t justify, but secondary effects are what get
this through O’Brien.
5. White (dissent): Aimed at communicative impact, so content-based. Purpose is to protect
viewers; the nudity is an expressive component of the dance. No compelling interests, not
narrowly drawn.
XIII. Where and How: Gov’t as Proprietor, Educator, Employer, Patron
a. The Concept of the Public Forum
i. Hague v. CIO (1939):
1. Roberts: Public has a First-Amendment easement of access to the streets and parks for
purposes of speech.
ii. Early cases invalidated standardless licensing schemes for conferring too much discretion on
public officials to discriminate on basis of content:
1. e.g. Lovell v. Griffin
2. Saia v. NY: Invalidated NY ordinance prohibiting use of amplification devices without
permission of police chief. See more, p279.
iii. Upheld when they have some objective criteria. Cox v. New Hampshire (1941): could only
consider time, place, and manner to conserve public convenience.
1. “Cannot be denied authority to give consideration, without unfair discrimination, to
time, place and manner in relation to the other proper uses of the streets.”
2. Here no evidence statute administered unfairly.
iv. Total Medium bans, and problem of distribution:

23
 1. Schneider v. New Jersey (1939): Invalidated local ordinances forbidding distribution of
leaflets; purpose of keeping streets clean not sufficient to justify ordinance prohibiting
person rightfully on public street from handing literature to people willing to receive it.
2. Martin v. City of Struthers (1943): Invalidated ordinance prohibiting door-to-door
handbill handouts. Door-to-door distribution noted as crucial for poorly financed causes.
Naked restriction on dissemination was too much (but perhaps would be ok if limited to
people who indicated they didn’t want to be disturbed).
3. Kovacs v. Cooper (1949): Upheld NJ statute that banned sound trucks/loudspeakers in
public; applied only to “loud and raucous” noises, would be dangerous to traffic.
a. Probably a repudiation of Saia. Dissent says laws which hamper free use of some
instruments of communication favor competing channels, which is dangerous. Too
hard to reach people without loudspeakers. Poor man’s printing press.
4. Distributive strand of Schneider line stayed partially alive as Court maintained “time,
place, and manner laws must leave open ample alternative channels, but began to
upheld TPM regs as long as they were closely tailored to a significant gov’t interest.
a. But Schneider presumption still alive:
i. City of Ladue v. Gilleo (1994) invalidated ordinance against posting of signs;
even assuming it was content-neutral, the ordinance banned too much speech.
Foreclosing an entire medium is not cool.
ii. Watchtower Bible & Tract Society v. Stratton (2002) invalidated ordinance’s
permit requirement for door-to-door activity; inhibited too much speech.
1. Noted historical importance of pamphleteering.
v. Policy:
1. Licensing schemes; loss of spontaneous demonstrations, requirement that protestors bow to
the very authorities they may be criticizing, opportunities for subtle harassment
a. But are cops better?
b. Time, Place, and Manner:
i. Cox v. Louisiana (1965): Invalidated breach of peace conviction:
1. Though statute facially prohibited all street assemblies, authorities had discretion, allowing
them to act as censor.
ii. Heffron v. Int’l Society for Krishna Consciousness (ISKCON) (1981): Upheld MN rule
prohibiting distribution of printed material at state fair.
1. Content-neutral justification; significant gov’t interest; leaves open alternative channels.
2. Basically, O’Brien, but also need alternative channels left open; that’s TPM test.
3. Note: brought up arg of differential impact on less popular speakers who have to approach
rather than get approached; rejected.
iii. Aesthetics:
1. Metromedia v. San Diego (1981): Struck down the part restricting noncommercial
billboards; indicated general willingness to defer to gov’t aesthetic interests:
a. White (plurality): “Gov’t has legit interests in controlling noncommunicative aspects
of the medium, but 1st Am forecloses similar interest in controlling communicative
aspects.
b. Brennan (concurrence): Total medium ban; needs substantial gov’t interest that
requires total medium ban, not found here.
c. Majority of the court found aesthetic considerations would be sufficient to justify
a content-neutral ban on all outdoor advertising signs.
2. Members of City Council v. Taxpayers for Vincent (1984):
a. LA Ordinance prohibiting posting signs on public property
b. Stevens (majority): No hint of bias/censorship, so apply O’Brien
i. Substantial interest in avoiding visual clutter
ii. Narrowly tailored.

24
 iii. Schneider was harming speech to avoid littering.
iv. But here, substantive evil is created by the medium itself (visual blight).
v. Alternative modes exist.
vi. Utility poles aren’t a public forum.
c. Brennan (dissent): Fails substantial interest; Aesthetic interests are easy for a city to
assert and hard for a court to evaluate; so need more stringent scrutiny.
3. Clark v. Community for Creative Non-Violence (1984):
a. National Park Service prohibited camping; demonstrators wanted to do it to draw
attention to plight of homeless.
b. White (majority): Upheld prohibition.
i. Content neutral; gov’t interest in maintaining attractive parks; responds
precisely to the substantive problems that legitimately concern the gov’t.
c. Marshall (dissent): No substantial interest; sleeping won’t cause wear and tear;
underinclusive because feigned sleeping is just as bad.
4. Noise regulations:
a. Ward v. Rock Against Racism (1989): Upheld NYC reg mandating use of city-
provided sound systems to control Central Park concerts.
i. Kennedy (majority):
1. O’Brien does not require the “least intrusive means.” Not invalid simply
because of some imaginable alternative.
2. Narrow tailoring is satisfied as long as reg promotes substantial gov’t
interest that would be achieved less effectively absent reg, as long as
not substantially broader than necessary to achieve gov’t interest.
ii. Marshall (dissent): This mandatory deference fucks up the test.
b. Protecting “captive audiences”:
i. Carey invalidated law banning all residential picketing except labor picketing
ii. Frisby v. Schultz (1988):
1. Upheld flat ban on “focused picketing” of a particular residence.
a. Passed O’Brien, and left alternative channels.
iii. Abortion Clinic Protests:
1. Madsen v. Women’s Health Center (1994): Partially upheld FL state
injunction on activities of anti-choicers outside abortion clinic.
a. Rehnquist (majority): Gov’t purpose was content-neutral because it
was based on a violated earlier (narrower) order.
i. Applies Ward TPM test with special stringency in context of
injunction because greater risks of censorship and discriminatory
application.
ii. Patients are a captive audience. Upheld restrictions on picketing
that interfered with clinic access.
iii. Did not uphold restriction on images, approaching, or 300 ft ban on
picketing/demonstrating.
2. Schenck v. Pro-Choice Network of Wester NY (1997): Injunction had fixed
buffer zones (couldn’t demonstrate within 15 ft of doors); could approach
people until told to go away, then retreat to 15 ft, floating buffer zones.
a. Rehnquist: Floating buffer zones burden more speech than necessary.
Fixed buffer zones allow for exit and entry.
3. Hill v. Colorado (2000): Statute upheld that prohibits knowingly
approaching person around health facilities for purpose of
counseling/educating/etc.
a. Stevens: Valid content-neutral TPM regulation under Ward.

25
 i. Content-neutral, though only applies to protest/counseling
rather than random conversation. This is appropriate level of
neutrality.
ii. Concurrence notes it addressed circumstances of delivery of
speech rather than content.
4. McCullen v. Coakley (2014): Struck down law that excluded anyone except
people actually using/working at clinic from buffer zone.
a. Roberts (majority): Content-neutral; doesn’t become content-based
from disparate impact.
i. But not narrowly tailored.
ii. Did not address Hill, but concurrence said Court has sub silentio
overruled Hill (p311)
iv. SEE ALSO, Pacifica line of cases below.
c. Basically, TPM review requires a gov’t to make an evidentiary showing of
substantial ends, and means closely tailored to those ends.
d. E.g. of invalidated TPM restriction:
i. United States v. Grace (1983):
1. Statute prohibited display of any flag adapted to bring into public notice
any org or movement around Supreme Court building.
2. White (majority): Those sidewalks aren’t different from other
sidewalks.
a. No sufficient connection to any asserted interest e.g. appearance that
SCOTUS is not subject to outside influence.
c. Forum Types:
i. Libraries:
1. Brown v. Louisiana (1966):
a. Sat in whites only library, convicted for breach of peace.
b. Fortas (plurality): Convictions reversed because statute had been applied to terminate a
reasonable orderly protest of an unconstitutional segregation. Right to protest?
ii. Jails:
1. Adderley v. Florida (1966):
a. Upheld conviction of trespasss when protestors stayed on jail driveway (presumably
blocking vehicle access) against sheriff’s request.
b. Black: State no less than private owner of property can preserve property under its
control for use to which it is lawfully dedicated.
iii. Schools: Grayned v. Rockford (1972) (Marshall):
1. Upheld anti-noise ordinance against demonstrators near school
a. “The crucial question is whether the manner of expression is basically
incompatible with the normal activity of a particular place at a particular time.
b. Here disrupts classwork, invades rights of others.
iv. In mid-1970s, nature of the property beings to be more of a focal point than functional
compatibility:
1. Public transportation: Lehman v. Shaker Heights (1974)(Blackmun plurality):
a. Upheld rule against political ads on buses; though commercial ads allowed.
b. Transit system has discretion to make reasonable choices concerning type of ads
displayed; decision is within their discretion same as what fare to charge; want to
spare riders from blare of political propaganda.
2. Municipal theaters: Southeastern Promotions v. Conrad (1975)
a. First Am rights held violated when municipal board refused permission to present the
controversial rock musical hair at city theatre.

26
 b. Municipal theatres were public forums; this was a prior restraint without sufficient
procedural safeguards. (This wasn’t TPM, or violation of anything).
3. Military bases:
a. Flower v. United States (1972):
i. Reversed conviction for distributing peace leaflets on street in Army base.
ii. Commander had chosen not to exclude the public from the street.
b. Greer v. Spock (1976):
i. Upheld two regs barring political activities on the based.
ii. Here, unlike Flower, had never abandoned any claim of special interest in
regulating political activities.
iii. Said base wasn’t a public forum.
c. United States v. Albertini (1985):
i. Upheld exclusion of individual from base after he had previously been barred for
prior unlawful conduct. Though general public had been invited that day for
open house, did not become public forum.
ii. Court generally defers to military in range of constitutional contexts.
v. Public and Nonpublic Forums
1. Mailboxes:
a. US Postal Serv. V. Council of Greenburgh Civic Ass’n (1981)
i. Upheld prohibition of depositing unstamped mail in postal service boxes.
ii. Letter box is not traditionally a public forum;
iii. Property owned by gov’t which is not a public forum may be subject to
prohibition of speech if content-neutral.
b. Teachers’ mailboxes: Perry Education Ass’n v. Perry Local Educators’ Ass’n (1983)
i. Upheld provision of bargaining contract giving incumbent union access to
teacher mailboxes, but denying same access to rival groups.
ii. Depends on character of property at issue:
1. Traditional Public Forum: Streets and parks; quintessential public
forums. Content-based exclusion must pass strict scrutiny. TMP restrictions
must be narrowly tailored and serve significant gov’t interests and leave
alternatives channels open.
2. Designated Public Forum: Opened for use by public as place for
expressive activity; even if state was not required to create the forum in the
first place; same standards as traditional public forum.
3. Nonpublic Forum: Not by tradition or designation a public forum. State
may reserve forum for intended purposes as long as regulation is reasonable
and not an effort to suppress expression according to viewpoint.
4. [Limited Public Forum: Probably just the new word for nonpublic forum,
used because selective access does not transform into public forum]
iii. Allowing some selective access does not create a public forum.
iv. Even if they’ve created a limited public forum, right of access would only
extend to other entities of a similar character.
1. Can grant some access to a nonpublic forum based on subject matter
and speaker identity so long as the distinctions are reasonable in light of
the purpose served by the forum and are viewpoint neutral
2. Charitable campaigns in fed offices: Cornelius v. NAACP Legal Def. & Ed. Fund (1985):
a. Upheld exclusion of political advocacy groups from annual fundraising drive
conducted in federal offices.
b. The charity campaign was a nonpublic forum:
i. Looked to policy and practice of gov’t to ascertain whether it intended to
designate. Moving away from functional approach.

27
 c. Can grant some access to a nonpublic forum based on subject matter and speaker
identity so long as the distinctions are reasonable in light of the purpose served by
the forum and are viewpoint neutral (Perry cited for this)
3. Post office sidewalks: United States v. Kokinda (1990):
a. Upheld postal service prohibition of soliciting contributions on postal premises.
b. Nonpublic forum; leads only from parking area to door of post office.
4. Airport terminals: Int’l Soc. For Krishna Consciousness v. Lee (1992):
a. Upheld ban on solicitation of money, but struck down ban on distribution of literature.
b. Airport terminal lacks history to be traditional public forum and created by users
fees to make regulated profit, so nonpublic forum.
i. But see Kennedy response in Policy section.
c. Upheld solicitation ban because it impedes flow of traffic, invalidated distribution ban.
5. Student activities fund as a non-physical limited public forum:
a. Rosenberger v. Rector (1995): UVA activities fund not available to religious groups.
i. Invalidated rule: State may not exclude speech where distinction is not
reasonable in light of purpose served by the forum.
ii. Court thus held there was viewpoint discrimination in a “metaphysical” forum
6. License plates: Walker v. TX Division, Sons of Confederate Veterans (2015):
a. State didn’t allow confederate flag on license plates.
b. Breyer (majority): upheld because license plates are gov’t speech and it is allowed to
decide what it says.
i. So not even a nonpublic forum.
ii. Alito dissenting notes that the sentiments would be attributed to the owner not
the state, and this is viewpoint discrimination.
7. Candidate debate on public television: Arkansas Ed. Television Comm’n v. Forbes (1998)
a. Upheld exclusion from debate; nonpublic forum; exclusion was reasonable and
viewpoint-neutral, based on objective lack of support.
8. Public Libraries: United States v. American Library Ass’n (2003):
a. Upheld act which required filtering software blocking obscenity etc.
b. Libraries have broad discretion to decide what to show patrons; analogize Forbes
c. Dissent notes that curating books makes sense because limited shelf space, but not
internet…
9. Student organization membership at a public law school:
a. Christian Legal Soc. Of Hastings v. Martinez (2010):
i. Hastings didn’t give official status to group because they required members to
renounce homosexual conduct.
ii. Upheld law school’s decision: Limited public forum; reasonable to have policy
that groups need to be open to everyone.
10. Rights of access to private property:
a. Marsh v. Alabama (1946) there was right to distribute religious literature in a
company-owned town since the town served a public function.
b. Amalgamated Food Employees v. Logan Valley Plaza (1968):
i. Trespass law could not enjoin peaceful picketing of shopping center; shopping
center was functional equivalent of business district in Marsh.
c. Lloyd Corp. v. Tanner (1972): Logan Valley distinguished.
i. There, picketing was related to shopping center. Here, handbilling had no
relation to center. Ban upheld.
d. Hudgens v. NLRB (1976): Says Lloyd in effect overruled Logan Valley:
i. Picketers were employees of warehouse maintained by store owner at shopping
center. Said Lloyd controlled…. (But it was probably distinguishable…)
vi. Policy:

28
 1. Two approaches: compatible or not with other principal uses? Vs Classify it in advance
2. Kennedy concurrence in ISKCON v. Lee 239, Court is wrong to say need to have public
discourse as principal purpose. Streets and parks don’t…
a. With changing times, parks aren’t where people gather to talk, new types of gov’t
property may become the important platforms, and we need to evolve with the times.
3. Pro or against the three forum categorizations: p335
4. Solicitation? Kokinda and ISKCON, p336.
d. Zoning: (of Commercial Sexual Expression):
i. Following cases, court upholds local gov’t zoning, looking increasingly to “secondary effects”
ii. Young v. American Mini Theatres (1976):
1. Detroit required dispersal of adult theatres/bookstores; couldn’t be near other regulated uses
like bars.
2. Stevens (majority):
a. Content-based, but viewpoint-neutral.
b. Attributes low value: “Few would march [kids] off to war to preserve the citizen’s
right to see “Specified Sexual Activities.”
c. Justified by city’s interest in preserving character of its neighborhoods.
3. Powell (concurring):
a. No content/viewpoint limitations; should use O’Brien.
4. Stewart (dissent): Wtf, content-based so strict scrutiny, can’t only protect what people
would go to war for.
iii. Renton v. Playtime Theatres (1986):
1. Zoning attempted to concentrate theaters rather than dispersing them in Seattle.
2. Rehnquist (majority): This is aimed not at content but at secondary effects of the theatres,
so not related to suppression of expression.
a. Test in such contexts: Substantial gov’t interest and allows for reasonable alternative
avenues of communication?
b. Met here.
3. Brennan (dissent): Content-discrimination based on content of films. Never reviewed any
studies; this allows retrospective justifying of special zoning regulations for adult theatres.
Even under content-neutral standards, should fail because no legit interest demonstrated.
Also no reasonable alternatives; only left with 5% of city.
iv. City of Los Angeles v. Alameda Books (2002):
1. Density limits on adult “establishments”; also can’t build more than one in the same
structure.
2. O’Connor (plurality): Haven’t shown any problem with municipality’s belief that lower
concentration of establishments can lower crime. Plaintiffs have to demonstrate evidence
doesn’t support or furnish evidence that disputes.
3. Kennedy (concurrence): Zoning with goal of targeting secondary effects should get
intermediate scrutiny (but fiction that it’s content-neutral should be disregarded). Zoning
context rebuts the usual presumptions that content-based stuff is harmful.
4. Souter (dissent): No evidence law achieves purpose, even under intermediate scrutiny.
Need empirical justification.
v. Policy:
1. Secondary effects reasoning is garbage. Can a city ban inflammatory speeches in ap ark to
preserve tranquility? All content regs are ultimately based on secondary effects in the sense
of listener response.
e. Schools:
i. Black armbands as nondisruptive symbolic conduct:
1. Tinker v. Des Moines School District (1969):
a. School could not discipline students wearing black armbands to object to Vietnam.

29
 b. Students and teachers have First Am rights.
c. To justify prohibition of expression, must show action was caused by something more
than mere desire to avoid discomfort and unpleasantness that always accompanies
an unpopular viewpoint.
ii. Book removal from public school libraries:
1. Bd. of Ed. v. Pico (1982):
a. First Am rights of students can be directly implicated by removal of books from
shelves; but we hold only that discretion may not be exercised in a narrowly partisan
or political manner.
b. Depends on motivation: If trying to deny access to certain ideas, unconstitutional.
c. Holding only affects discretion to remove books.
iii. Sexual innuendo at student assembly:
1. Bethel School Dist. v. Fraser (1986): Student for elective office gave speech with sexual
innuendo; was suspended.
a. Have to balance freedom to advocate unpopular views with interest in teaching
students the boundaries of socially appropriate behavior.
b. This is viewpoint neutral and fine.
iv. Articles on pregnancy and divorce in school newspaper:
1. Hazelwood School Dist. v. Kuhlmeier (1988):
a. Upheld deletion of two stories; newspaper was not public forum.
b. This would be affirmative promotion of student speech; not required.
c. Fine as long as restrictions related to legitimate pedagogical concerns.
v. Drug-related speech at school-sponsored event:
1. Morse v. Frederick (2007)
a. Had “BONG HiTS 4 JESUS” banner on school trip
b. School was allowed to discipline;
i. He was at school because school hours and school-sanctioned activity amidst
peers.
ii. This was promoting illegal drug use which goes beyond Tinker situation of
abstract desire to avoid controversy.
vi. Public schools and tech:
1. Off-campus speech? Fake online profiles of school officials; 3rd circuit found could not
punish students absent reasonable forecast expression would disrupt school operation. 9th
circuit said instant messages to classmates could be interpreted as plan to attack school, so
reasonable to expel.
vii. Policy:
1. Where is the present issue on the spectrum from Tinker where students are free as public
citizens, to curriculum, which can be controlled?
2. Would it have the “governments imprimatur” (e.g. school newspaper)?
f. Public Employees:
i. Old Holmes view: In employment, right of free speech is suspended (McAuliffe, 1892)
ii. Pickering v. Bd. of Ed. (1968):
1. Teacher could not be dismissed for writing letter to newspaper criticizing board.
2. Must balance interests of teacher as citizen commenting on matter of public concern
and interest of state in efficiency. Speech rights win balance here.
iii. Givhan v. Western Line School Dist. (1979): Extended Pickering to private encounters with
principal where teacher criticized racially discriminatory policies.
iv. Connick v. Myers (1983) (White):
1. Boss told her she’d be transferred and she objected, complained to others creating a “mini-
insurrection by distributing a questionnaire soliciting views on transfer policy among other
things. Discharged.

30
 2. Upheld discharge.
3. Pickering balancing not necessary when not on matter of public concern.
a. Determined by content, form, and context of statement.
4. Though part of her questionnaire did touch on public concern, Pickering balancing won by
gov’t.
5. Brennan dissent: mere apprehension that speech will be disruptive should not have justified
suppression here.
v. Public employee political hyperbole:
1. Rankin v. McPherson (1987):
a. Could not be discharged for wishing for successful assassination of president.
b. Matter of public concern; state interest low where employee serves no confidential,
policymaking, or public contact role.
vi. Who decides public v. private concern?
1. Waters v. Churchill (1994):
a. Fired based on conversation with coworker, complaining about training that could
harm patients.
b. Standard for public concern is subjective: Employer does not violate First Am when
it reasonably believes speech was on matter of private concern.
vii. Scope of speech on matters of public concern
1. United States v. Nat’l Treasury Employees Union (1995):
a. Ethics Act barred range of officers from being paid to speak on stuff directly related to
duties because of their status.
b. Invalidated; citizen comment on matters of public concern; speeches were typically
addressed to public audience, outside workplace, unrelated to their gov’t employment.
c. Significant burden on expressive activity.
2. City of San Diego v. Roe (2004): Police officer sold porn of himself on eBay.
a. Not all public employee speech unrelated to workplace is entitled to Pickering review.
b. This did not touch on public concern.
3. Garcetti v. Ceballos (2006):
a. Wrote memo to supervisors that affidavit had misrepresentations.
b. Retaliation was upheld
c. Controlling factors is expressions were made pursuant to duties as calendar deputy;
spoke as prosecutor fulfilling responsibility to advice supervisor about how to proceed.
d. When public employees make statements pursuant to official duties, they are not
speaking as citizens for First Amendment purposes; can be disciplined by
employers for their communications.
e. Stevens dissent: value might even be greater when speaking on official duties…
4. Lane v. Franks (2014):
a. Employee’s truthful testimony in court outside scope of job duties necessarily
counts as protected citizen speech.
i. Quintessential example of speech as citizen.
viii. Pickering, Connick, and School Athletic Associations
1. TN School Athletic Ass’n v. Brentwood Academy (2007):
a. Athletic association was state actor by virtue of entwinement with 290 public schools.
Coach sent recruiting letter to 8th graders; violated antirecruiting rule; coach
sanctioned.
b. Sanctions upheld: League has interest in enforcing rules; can curtail speech of
voluntary participants.
ix. Political Party Affiliation:
1. Hatch Act Cases:

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 a. United Public Workers v. Mitchell (1947): upheld constitutionality of Act that
prohibits fed executive branch employees from taking part in campaigns.
b. US Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers (1973):
i. Rejected overbreadth challenge to Act, applying Pickering balancing.
2. Patronage dismissals of public employees:
a. Elrod v. Burns (1976):
i. Could not discharge several Republican employees; Patronage dismissals
limited to policymaking positions, in other positions, gov’t interest is not high
enough.
b. Branti v. Finkel (1980): broadened Elrod
i. Inquiry is not whether label of policymaker or confidential first a particular
position, but rather, whether the hiring authority can demonstrate that party
affiliation is an appropriate requirement for the effective performance of the
public office involved.
ii. Republic public defenders successfully challenged dismissal by Dem head of PD
office.
3. Patronage sanctions short of dismissal:
a. Rutan v. Republican Party of Ill. (1990) (Brennan):
i. Extended Elrod and Branti to decisions about hiring, promotion, transfer,
and recalls after layoffs.
1. Don’t need to show constructive discharge.
ii. Challengers claimed denied those things because they lacked Republican
credentials.
4. Independent contractors:
a. Bd. of Cty. Commisioners v. Umbehr (1996): County terminated contract when he
criticized at board’s meetings and wrote editorials in newspapers.
i. Pickering extended to independent contractors.
ii. No meaningful distinctions between public employees and contractors in this
context.
b. O’Hare Truck Serv. V. City of Northlake (1996):
i. Extended Elrod line to independent contractors.
5. Policy:
a. Arguably speech interests on both sides in patronage cases?
b. Note patronage cases have stricter scrutiny than Pickering; presumption that party
affiliation is not justifiable gov’t interest.
g. Speech on the Government’s Nickel (Conditions on Public Funds):
i. Unconstitutional Conditions:
1. Speiser v. Randall (1958):
a. Overturned CA req that tax exemptions for vets would be available only to those that
declared they didn’t advocate overthrow of gov’t
b. Can’t deny an exemption to claimants who engage in certain forms of speech; that’s
penalizing speech.
ii. Penalties vs nonsubsidies:
1. Can’t deny benefits when operates as penalty, but can refrain from paying for speech gov’t
disagrees with (“unconstitutional conditions” vs. “permissible nonsubsidy”).
2. Regan v. Taxation With Representation of Washington (TWR) (1983):
a. Upheld IRC provision barring nonprofit orgs that lobby from getting tax-deductible
contributions.
3. FCC v. League of Women Voters (1984):
a. Invalidated Act forbidding editorializing by any noncommercial educational
broadcasting station that engages in “editorializing”

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 4. Abortion: Rust v. Sullivan (1991):
a. Abortion; upheld regs forbidding projects that get federal family planning funds from
counseling or refrring women for abortion.
b. Not viewpoint discrimination because gov’t can selectively fund a program to
encourage certain activities without at the same time funding an alternative program
which seeks to deal with the problem another way.
c. “Unconstitutional conditions” cases involve situations where gov’t has placed
condition on recipient of subsidy rather than on a program or service.
5. Religion: Rosenberger v. Rector & Visitors of UVA (1995):
a. Religion and student activity: Invalidated funding limitation of Wide Awake;
Activities fund was a metaphysical public forum, said this was viewpoint discrim (but
it was probably just content discrim).
6. Arts: NEA v. Finley (1998):
a. Performance artists challenge fed statute that says chairperson of National Endowment
for Arts must ensure artistic excellence merit grant considering general standards of
decency.
b. Constitutional on its face; it’s so vague, it doesn’t even seem to do much more than
determination of artistic excellence itself. No impermissible discrimination mandated.
7. Legal Aid: Legal Servs. Corp. v. Velazquez (2001):
a. Invalidated law barring LSC funding of any org that represented indigent clients in
effort to amend existing welfare law; impermissible viewpoint discrimination.
b. Viewpoint-based funding decisions can be sustained in instances where gov’t is
speaker, or like Rust, where gov’t used private speakers to transmit info
pertaining to its own program. Rosenberger.
c. This is not gov’t speech. Also no alternative channel here as in Rust.
8. Library internet access: United States v. Am. Library Ass’n (2003):
a. Act requires libraries with fed funding to install filters.
b. Gov’t entities do not have First Am. rights.
c. Gov’t can limit programs it runs, e.g. Rust.
9. Agency for Int’l Development v. All. For Open Soc. Int’l (2013):
a. Act makes reduction of HIV/AIDS behavioral risks a priority of prevention efforts.
b. Funds used by orgs fighting HIV can’t be used by orgs without a policy explicitly
opposing prostitution and sex trafficking (except a few named orgs).
c. Relevant distinction is between conditions that define limits of gov’t spending
program, and conditions that leverage funding to regulate speech outside the
contours of the program
d. Here, unconstitutional, here, recipient can’t avow belief required by policy and then
express another belief on its own time.
XIV. Association
XV. Association and Speech:
a. Compelled disclosure of membership:
i. NAACP v. Alabama (1958):
1. Held unconstitutional, Alabama’s demand that NAACP reveal names and addresses of
members.
2. Vital relationship between freedom to associate and privacy in one’s associations
3. Production order entails likelihood of substantial restraint on exercise of right to
freedom of association.
a. Risk loss of employment, public hostility, etc.
4. Fails strict scrutiny.
b. Compelled disclosure in civil rights era:
i. Public employment: Shelton v. Tucker (1960):

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 1. As condition of employment teachers had to write affidavit with every org they belonged
to. Shelton refused.
2. Req was unconstitutional.
ii. Legislative investigations: Gibson v. FL Legislative Investigation Comm. (1963):
1. Imprisonment of NAACP official for failure to comply with committee’s request for
membership list violated First Am.
2. Essential prereq to validity of investigation that intrudes on constitutional rights that
State show substantial relation between info sought and subject of overriding and
compelling state interest to justify the abridgment.
3. Not found here; no connection between NAACP and communist activities.
c. Restrictions on Organizational Activity:
i. Definitely can’t stop people from holding meetings without misconduct (Healy v. James (1972)).
Political litigation and boycotts are more controversial.
ii. Impact Lit: NAACP v. Button (1963):
1. NAACP financed litigation to end school segregation. VA prohibited improper solicitation
of legal business; included employing “runners” which is anyone who employs a lawyer in
connection with proceedings it doesn’t have a pecuniary stake in.
2. Unconstitutional as applied.
a. First Amendment also protects vigorous advocacy, certainly of lawful ends, against
gov’t intrusion.
b. Impact lit is a form of political expression
c. No doubt First Am protects certain forms of orderly group activity like this.
3. State interest in regulating illegal practices of barratry does not justify.
4. Dissent: litigation is conduct, not protected.
iii. Boycotts:
1. NAACP v. Claiborne Hardware (1982):
a. NAACP boycott of white merchants to induce business leaders to comply with
demands for equality.
b. Nonviolent elements of boycott entitled to protection of First Am. State may not
award compensation for consequences of nonviolent protected activity.
c. Right to association not lost because some members did unprotected activity.
d. While states can regulate economic activity, no comparable right to prohibit peaceful
political activity like this boycott.
i. Purpose was not to destroy competition here.
ii. Liability may not be imposed merely because an individual belong to a
group some members of which committed acts of violence (cf. Whitney)
iii. For liability to attach to association, must establish group itself possess unlawful
goals and individual has specific intent to further those aims
2. Probably doesn’t apply to economically motivated boycotts (Int’l Longshoremen’s Ass’n v.
Allied Int’l (1982), decided just before Claiborne.
iv. Material Support and Terrorism:
1. Gov’t can restrict individuals from associating with terrorists even without engaging in
violence stuff (Holder v. Humanitarian Law Project (2010))?
2. Well, can restrict material support.
XVI. Compelled Association:
a. Red Lion v. FCC: Upheld FCC “fairness doctrine” based on scarcity of broadcast frequencies.
i. Where there are substantially more individuals who want to broadcast than frequencies to
allocate, it is idle to posit an unabridgeable First Am right to broadcast comparable to the right of
every individual speak or publish.
b. Compulsory fees to unions:
i. Abood v. Detroit Bd. of Educ. (1977):

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 1. Public sector employees where nonunion employees had to pay union service fee.
Challenged being forced to finance collective bargaining (rejected challenge) and
ideological union expenditures (invalidated mandated payments).
2. Court said strong interest in collective bargaining system operation without free riders
3. But employee may not be required to contribute to the support of an ideological cause
he may oppose as a condition of holding a job as a public school teacher.
ii. Harris v. Quinn (2014):
1. Declined to extend Abood to partial public employees; can’t force them to pay union
fees. (Home healthcare assistants who belong to union that contracted with state, but
answerable to their patient’s employers).
2. Conservatives hate Abood so it’s going soon.
iii. Fees to public universities:
1. Bd of Regents of Univ. of Wisc. v. Southworth (2000):
a. Students had to pay student activities fee to finance student orgs, some of which
engage in speech they object to.
b. Upheld fee; fine as long as no viewpoint discrimination. Standard for germane speech
outside of labor context in university context is unworkable; insisting on asking what
speech is germane would be antithetical to goal the university seeks to pursue.
iv. Compulsory inclusion in membership
1. Roberts v. United States Jaycees (1984):
a. Upheld state antidiscrimination law that required all-male org to admit women.
b. True that freedom to associate includes freedom not to associate
i. But here, passes strict scrutiny; compelling interest in eradicating
discrimination.
2. Boy Scouts of Am. v. Dale (2000):
a. Allowed Boy Scouts to exclude a scoutmaster based on homosexuality.
b. Forced inclusion of unwanted person infringe on freedom of association if their
presence affects in a significant way the group’s ability to advocate public or
private viewpoints.
c. Step 1:
i. Must determine whether group engages in expressive association.
1. Yes here, trying to transmit values to kids is expressive.
d. Step 2:
i. Now must decide if significantly affect ability to advocate public or private
viewpoints.
1. Must accept assertion of group of its values.
a. They say they want to teach gayness is wrong.
2. And then determine if presence of member would burden their goal.
a. Give deference to org’s view.
b. Here, accepting gay scoutmaster would endorse gayness.
e. Step 3:
i. If it infringes on freedom of association, apply strict scrutiny.
1. Here, fails because state interests in eliminating discrimination is at more
direct odds with org’s right to disfavor homosexual conduct than in Roberts
with women.
3. Hurley v. Irsih-American Gay, Lesbian, and Bisexual Group of Boston (1995):
a. Private organizers of St. Patrick’s parade excluded GLIB from parade.
b. Souter (unanimous): State could not force inclusion in parade.
i. Parades are a form of expression.

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 ii. Boils down to choice of speaker not to propound a particular point of view, and
that choice is presumed to lie beyond the gov’t’s power to control. GLIB
presumably would have had a fair shot at obtaining a parade permit of its own.
4. On-campus recruiting:
a. Rumsfeld v. FAIR (2006):
i. Solomon Amendment requires equal access for military recruiters on campus as
condition on federal funds.
ii. Upheld: Recruiters by definition are outsiders who come on campus for limited
purpose of hiring; this is not compelled association; not being forced to accept
undesired members.
XVII. Press
XVIII. Access to Gov’t Information
a. Press Access to criminal trials
i. Richmond Newspapers v. VA (1980):
1. Absent overriding interest articulated in findings, trial of a criminal case must be open to
public; longstanding tradition
2. Right to attend criminal trials is implicit in guarantees of the First Am.
3. Reasonable restrictions such as preferential seating for media are fine.
ii. Press-Enterprise v. Superior Court (1984):
1. Richmond applies to voir dire examination of prospective jurors in a criminal trial.
a. As in Richmond, not absolute right.
iii. Press-Enterprise v. Superior Court (1986):
1. And to transcripts of a preliminary hearing in a criminal case. (not absolute)
2. Stevens dissent: Risk of prejudice to defendant’s fair trial conflicts and is more important
here.
b. Press interference with judicial proceedings
i. Landmark Communications v. VA (1978):
1. Invalidated conviction of newspaper publisher for printing report of inquiry by judicial
commission investigating judge.
a. State law deemed the info confidential; asserted interest in efficient commission
proceedings and reputation of judges.
2. Interests advanced by imposition of sanctions were insufficient to justify encroachment on
freedom of speech/press.
c. WikiLeaks revealed NSA data collection program. “State action to punish publication of truthful info
seldom can satisfy constitutional standards.” Bartnicki. p577
XIX. Press Privilege
a. Governmental demands for information from the press
i. Branzburg v. Hayes (1972):
1. Journalists were allowed close contact with Black Panthers. Gov’t wanted them to tell a
grand jury their findings.
2. Requiring newspeople to appear and testify before grand juries does not abridge
freedom of speech/press; no first amendment interest in protecting sources.
3. Public interest in possible future news from undisclosed/unverified sources doesn’t
outweigh interest in prosecuting crimes. Privilege would present insane
practical/conceptual difficulties.
4. Powell concurrence: ad hoc, consider reporter status plz
5. Stewart dissent: 1st Am is implicated because informants will not come forward if gov’t
can subpoena reporters, limiting the flow of info.
ii. Press Shield Laws have provided qualified speech privilege though.
b. Searches of newsrooms pursuant to warrants:

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 i. Zurcher v. Stanford Daily (1978): warrant to search university newspaper offices for photos of
violent demonstration.
1. Upheld execution of warrant authorizing search; no special protection for press.
2. Powell concurrence advocates ad hoc balancing again.
XX. Targeting Press
a. In one line of cases, Court has suggested even content-neutral law requires special scrutiny when it
singles out the press; even if it arguably benefits press:
i. Minneapolis Star & Tribune v. Minnesota Comm’r of Revenue (1983):
1. Newspaper had exemption from tax under scheme was amended to impose tax on paper and
ink products consumed in production of publication; exempting first 100K. Appellant
ended up paying two thirds of tax collected.
2. Tax that burdens rights protected by the 1st Am cannot stand unless the burden is
necessary to achieve an overriding gov’t interest.
3. Interest in raising revenue is not enough to justify the censorial threat implicit in a tax
that singles out the press.
4. Also this targets a small group of newspapers due to the exemption; which also makes it
violate the First Am.
ii. Turner Broadcasting v. FCC (1994):
1. Requirements that cable operators carry broadcast signals upheld; gets content-neutral
scrutiny. Gov’t interest in not killing Big Bird.
2. Don’t automatically get strict scrutiny because a reg applies to one medium, but not
others.
3. Also, speaker-partial laws don’t automatically get strict scrutiny, when it doesn’t
reflect gov’t preference for the substance of what the favored speakers have to say.
iii. Cohen v. Cowles Media Co. (1991):
1. First Am did not bar promissory estoppel action against newspaper that breached its
promise of confidentiality to a source.
2. Generally applicable laws do not offend the First Am simply because their
enforcement against the press has incidental effects on ability to gather/report news.
3. Reject arg about cases that say state can’t punish publication of info without state interest,
e.g. Landmark.
iv. Red Lion Broadcasting v. FCC (1969):
1. FCC fairness doctrine; free reply time; OK because of scarcity of broadcast frequencies.
XXI. “The Information Age”
a. Generally, pattern is that outright bans are invalidated, but some partial regs upheld.
b. FCC v. Pacifica Foundation (1978):
i. “Filthy Words” monologue by George Carlin. Lots of swears.
ii. Swears aren’t entirely outside the protection of the First Am.
iii. Constitutional protection doesn’t need to be the same in every context; must examine
context.
iv. Context:
1. Broadcasting has uniquely pervasive presence; enters the privacy of the home; prior
warnings can’t fully protect.
2. Also, uniquely accessible to children.
v. So; can regulate here (probably couldn’t do flat ban though).
c. FCC v. Fox (2009): FCC had not acted arbitrarily or capriciously by changing its policy to extend to
fleeting expletives.
d. Captive audiences: Pacifica’s privacy invasion rationale:
i. Rowan v. US Post Office Dep’t (1970):
1. Upheld law permitting recipients of pandering advertisement to request post office order
requiring mailer to remove name from mailing list

37
 2. People have a right to be left alone to be balanced with right to communicate.
3. Basically, individuals have the right to stop receiving mail themselves.
ii. Con Ed. v. PSC (1980):
1. Law prohibiting including inserts discussing political issues with electric bills was not
permissible; people can throw the bill insert in the wastebasket.
iii. Bolger v. Youngs Drug Prods. (1983):
1. Struck down law barring mailing unsolicited ads for contraceptives.
2. Gov’t can’t shut off mailings to protect people who might be offended.
3. First Amendment does not permit gov’t to prohibit speech as intrusive unless the
captive audience can’t avoid objectionable speech.
iv. Sable Communications v. FCC (1989):
1. Dial-a-porn services; Congress prohibited them.
2. Sexual expression indecent but not obscene is protected by the First Amendment
3. No captive audience problem here.
4. This law far exceeds what’s necessary to limit access to minors.
e. Total bans on indecent speech on cable and online:
i. Denver Area Ed Telecom Consortium v. FCC (1996):
1. Lawful for fed gov’t to authorize cable operator to enforce policy of prohibiting
programming that depicts sex or excretory activities in a patently offensive manner.
2. Again considering accessibility to children and privacy as in Pacifica
3. Not a total ban like Sable.
ii. US v. Playboy (2000):
1. Struck down law that regulated indecency on non-broadcast medium, even though it wasn’t
a total ban.
2. Law said they have to scramble sexually explicit programming or confine it to late-night
hours.
3. Content-based so strict scrutiny; Fails because can block channels at individual households
on request.
4. Different from broadcasting cases because cable systems can block unwanted
channels.
f. Cable and internet:
i. Reno v. ACLU (1997):
1. Invalidates statute that prohibits knowing transmission of obscene messages to recipients
under 18.
2. Internet is not as invasive as radio or television.
3. It is not scarce.
4. No basis for qualifying strict scrutiny.
5. Statute lacks precision the First Am requires when a statute regulates content of speech.
a. This broad suppression would be addressed to adults, not just kids.
ii. COPA enacted in response; gave affirmative defenses of requiring credit card or digital
certificate verifying age.
iii. Ashcroft v. ACLU I (2002):
1. Use of community standards did not by itself render COPA unconstitutional (facial
challenge).
2. “when the scope of an obscenity statute’s coverage is sufficiently narrowed by a “serious
value” prong and a “prurient interest” prong, we have held that requiring a speaker to
observe varying community standards does not violate the 1st Am”
iv. Ashcroft v. ACLU II (2004):
1. Blocking and filtering is a less restrictive alternative to COPA, so
2. Not abuse of discretion for dist ct to grant PI against COPA saying likely to fail as applied.
v. Ashcroft v. Free Speech Coalition (2002):

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 1. Child Porn Prevention Act prohibited sexually explicit images that appear to depict minors
but are produced without using real children.
2. In Ferber, production of work, not its content, was targeted.
3. Cannot ban speech fit for adults simply because may fall into hands of kids
4. Cannot control private thoughts.
5. Act is unconstitutional.
g. Cable and Internet and cyberbullying and shit:
i. CBS v. FCC (1981):
1. Statutory right of access; authorization of FCC to revoke license for repeated failure to
allow reasonable access to legally qualified candidate was upheld.
ii. FCC v. League of Women Voters (1984) invalidated conditioning funding on not editorializing;
special features of broadcasting allowed lower scrutiny; but still invalidated because content
based and not justified.
iii. Arkansas Educational TV Comm’n v. Forbes (1998):
1. First Am obligations of neutrality might not apply at all to most decision by public
broadcasters to exclude speakers; editorial discretion.
h. The Information Age:
i. Turner Broadcasting: Chokehold monopoly:
1. Cable doesn’t have same scarcity issues as broadcasting; so don’t apply lower Red Lion
standard.
2. But potential for abuse of private power over central avenue of communication could not be
overlooked though; so allowed must-carry laws.
ii. Denver Area:
1. Categorical approaches are dangerous; don’t decide if cable is more like print or broadcast.
We should be shy about saying the final word today about what will be accepted as
reasonable tomorrow.
iii. Net Neutrality p605
iv. Policy: p607
XXII. The First Amendment and the Regulation of Politics
XXIII. Money and Politics
a. How much?
i. Buckley v. Valeo (1976):
1. FECA had contribution and expenditure limits.
2. Contributions/expenditures are speech, not conduct, and even if conduct, would be subject
to strict scrutiny under O’Brien.
3. Expenditure ceilings impose much more severe restriction on protected freedoms of
political expression and association:
a. Contribution limits mean you have to raise funds form more people
b. But communicating itself requires expenditure.
4. Concerns about quid pro quos justifies contribution limits.
5. But expenditure limits fail strict scrutiny; gov’t interest in equalizing fails
a. Can’t restrict speech of some to enhance the relative voice of others.
6. Justice White partial dissent:
a. Would uphold both limits; trusts the Congressional judgment that other steps have to
be taken to counter the corrosive effects of money in federal election campaigns.
7. Note: applied less stringent scrutiny to contribution limits; This two-tier review has been
increasingly formalized.
ii. Nixon v. Shrink Missouri Gov’t PAC (2000):
1. Rejected challenge to limits on contributions to candidates for state office.

39
 2. Contribution limits need not satisfy strict scrutiny, but will survive if closely drawn to
a sufficiently important interest such as prevention of corruption and the appearance of
corruption.
iii. Randall v. Sorrell (2006):
1. Contribution limit so low it could not satisfy Buckley’s avoidance of corruption rationale.
2. Fails the lower contribution limit scrutiny.
3. Invalidated Vermont’s expenditure limits under strict scrutiny.
iv. Soft Money:
1. After FECA, donations to state or local elections were not subject to restrictions and
unlimited amounts could be donated to political parties for local/state elections.
2. That’s “soft money”
3. Circumvention of FECA: National parties solicit soft money for use by state parties for de
facto federal campaign activity.
v. McConnell v. FCC (2003):
1. § 323:
a. BCRA was Congress’s effort to plug the “soft-money” loophole; prohibited local party
committees form using funds for activities that affect federal elections and prohibits
national parties from soliciting/spending soft money.
b. Apply lower contribution limit scrutiny.
c. Upheld ; Congress has established legit interest in preventing corruption.
2. § 201
a. BCRA restricts corporation and labor funding of electioneering communications
b. That’s fine. Expands BCRA beyond express advocacy (magic words, vote for X) to
issue advocacy (X will ban abortion). Permissible because distinction was never
constitutionally mandate, but was result of statutory interpretation.
vi. McCutcheon v. FEC (2014) (Roberts):
1. Statute restricts how much money a donor can contribute to a particular candidate or
committee and how much money a donor may contribute in total to all candidates or
committees.
a. Only the aggregate (the latter) limits challenged.
b. Gov says they’re there to prevent circumvention of the base limits.
2. The aggregate limits don’t address that concern really and seriously restrict participation in
the democratic process; invalid.
3. Congress may only target a specific type of corruption; quid pro quo
4. Fails lower contribution scrutiny; Experience suggests unlikely that contributions will be
rerouted to candidates to circumvent.
5. Plus there are alternatives like restrictions on transfers; or disclosure (particularly effective
in the internet age).
6. Dissent: defer to Congress on existence of such risks…
b. Who?
i. First National Bank of Boston v. Bellotti (1978):
1. First Am prohibits restriction on corporate expenditures for political speech from their own
treasures to express corporate points of view in state referenda campaigns.
2. Speech doesn’t lose protection just because corporation
3. Strict scrutiny: failed;
a. interest in sustaining active role of citizen not implicated;
b. corruption issues not implicated in referendum context.
c. Shareholders whose views differ; statute doesn’t fit that concern
4. White dissent: First Am is concerned with preventing corporate domination to promote free
marketplace of ideas.
ii. Citizens against rent control v. Berkeley (1981):

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 1. Court refused to allow contribution limits for committees formed to support or oppose
ballot measures.
iii. WRTL: Can’t ban issue ads in months before election.
iv. Citizens United v. FEC (2010):
1. Citizens United is a non-profit corporation; gets small portion of funds from for profit
corps. Released doc called “Hillary” critical of Hillary. It is the equivalent of “express
advocacy.”
2. Statute makes felony for corporations to expressly advocate or do electioneering
communications around election times.
3. PACs don’t supply an alternative because they are burdensome; expensive and subject to
extensive regulations.
4. Bellotti says cannot allow political speech restrictions based on speaker’s corporate
identity.
5. Corporations can make independent expenditures related to campaigns
v. Davis v. FEC (2008):
1. Invalidated statute providing that when a candidate’s expenditure of personal funds
exceeded 350K he would remain subject to normal contribution limits but opponent would
be permitted to receive more than before.
2. Impermissibly burdens First Am right to spend own money for campaign speech:
a. Requires a candidate to choose between right to engage in political speech and
subjection to discriminatory fundraising limitations.
3. Fails strict scrutiny; equalization is not legit.
a. Though Stevens dissent says it should be; decreasing importance of wealth as criterion
for public office.
vi. Arizona Free Enterprise Club v. Bennett (2011):
1. Invalidated Act that allowed candidates for state office who participated in public financing
additional matching funds if expenditures by/for privately financed candidate exceeded the
publicly financed candidates initial allotment of funds.
2. Burdens speech because each dollar spent results in award of almost a dollar to opponent;
multiplier effect for multiple opponents
3. Also burdens speech of those seeking to support or make independent expenditures.
4. Equalization rejected as legit interest
XXIV. The Petition Clause (Lobbying)
a. ABA Report:
i. Lobbying is indispensable to the functioning of government. It is also enshrined in the 1st Am:
“The right of the people . . . to petition the Government for redress of grievances.” Petitioning
clauses as a parallel to speech and press clauses—the latter say people may spread their views
through broadcasting, the latter by addressing governors directly. Does not include a right to an
answer from the official. Restrictions are necessary to restore honor and enhance efficacy of
those in the profession. The proposals here are along two main themes: (1) Public policy
advocates should work in the open, on the record. Disclosure regime. (2) The function of
lobbying (urging elected officers of government to take action) should be separate from the
function of campaign financing (raising funds for and transmitting money to those governmental
officers). Combining these contributes to perception of corruption.
b. Lobbying and the Petition Clause (Maggie McKinley):
i. The right to petition historically protected a formal, transparent platform for individual—and in
particular, minority—voices to participate in the lawmaking process. Petitions received equal
process and consideration without regard to number of signers or political power of the
petitioner—a right to equal access to lawmakers. The current lobbying system violates the right
to petition. This is like only giving court access to those with power. Revisions are needed: (1) A

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 stronger petition right, especially a right to consideration and response. (2) A narrowed petition
right that protects only practices that correspond with traditional petitioning practices.
XXV. Religion (EC vs FE > Favoritism/endorsement not coercion/entanglement v. Burdens)
XXVI. What is religion?
a. Hasn’t been given clear definition under constitution; has been statutory defining of religion under
Universal Military Training and Service Act which exempted people from service by reason of
religious training and belief.
b. United States v. Seeger (1965):
i. “The test of belief in relation to a Supreme Being is whether a given belief that is sincere and
meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox
belief in God”
ii. Douglas (concurring): Yea, and this broadness is mandated by Free Exercise.
c. Welsh v. United States (1970):
i. Exemption was appropriate even though Welsh had struck the word “religious” on his
application
ii. Court: Claim was not barred by exclusion of “essentially political, sociological, or philosophical
views, or a merely personal moral code:
iii. Not exempted if:
1. Not deeply held; nor if
2. objection does not rest upon moral, ethical, or religious principle, but instead rests solely on
considerations of policy, pragmatism, or expediency
3. [isn’t policy a set of principles?]
d. Gillette v. United States (1971):
i. Congress can constitutionally refuse to exempt those who did not oppose all wars, but only
particular conflicts
ii. E.g. Catholic guy said he had to discriminate “unjust” wars
iii. Court said statute requires an opposition to any and all war
1. No EC problem because purposes underlying the statute are neutral and secular.
2. Sufficient gov’t interest to pass FE challenge.
e. P620 on more definition issues.
f. US v. Ballard (1944):
i. First Amendment bars submission to the jury the issue of the truth or verity of
respondents’ religious doctrines or beliefs; though it did not bar submission to the jury of
the question whether the defendants sincerely believed their representations.
1. Men may believe what they cannot prove.
g. Presbyterian Church v. Hull Church (1969):
i. Religion clauses preclude determining matters at the core of religion, the interpretation of
particular church doctrines and the importance of those doctrines to religion.
XXVII. Free Exercise
a. Pretty much about whether gov’t can disadvantage religion (especially deliberately), and whether they
are entitled to exemption from generally applicable laws (at a certain point will run into EC issues).
b. Basically: No burdening/regulating/prohibiting/rewarding religion [rewarding is a comparative
burden, turns on phrasing really]
c. Also Art VI says no religious test shall be required as qualification to office under US
d. Laws Discriminating Against Religion:
i. Torcaso: Court struck down MD requirement that holders of public office declare belief in God;
Can’t force someone to profess a belief or disbelief.
ii. McDaniel v. Paty (1978): Court struck down TN provision disqualifying clergy from being
legislators or const. convention delegates.
1. Bar on interference with religious beliefs was inapplicable, because the state barrier referred
to status (minister or priest).

42
 2. Applied strict scrutiny to the disqualification’s burden on religious practice.
3. Freedom of belief embraces freedom to profess or practice that belief, even including doing
so to earn a livelihood.
iii. Church of the Lukumi Babalu Aye v. City of Hialeah (1993):
1. Santeria religion involved animal sacrifice. Plans to open Santeria church prompted city
resolutions/ordinances.
2. Ordinance had stated purpose of prohibiting acts of “any and all” religious groups
inconsistent with public morals, peace, or safety. Prohibited sacrifice for any ritual,
regardless of consumption, exempting licensed establishments.
3. If the object of the law is to infringe upon or restrict practices because of their
religious motivation, the law is not neutral; invalid unless passes strict scrutiny.
a. Here intent could be discerned from operation of the provisions (which clearly are
meant to gerrymander around allowing Kosher slaughter but not Santeria slaughter.
Also devaluation of religious reasons (vs hunting, slaughter for food, etc) is
discriminatory.
b. Kennedy and 3 others were also willing to discern intent from legislative history which
show hostility toward Santeria religion.
c. Fails strict scrutiny; not narrowly tailored to gov’t interests (in public health)
4. Scalia concurrence would not examine subjective motivations via legislative history.
5. NOTE: Religious gerrymanders also struck down under EC:
a. Larson v. Valente (1982):
i. Preferred traditional over untraditional religions because it only applied to
religious orgs that solicit more than 50% of their funds from nonmembers.
e. Religious Exemptions:
i. Reynolds v. US (1878): Upheld application of law making bigamy a crime to Mormon claiming
polygamy was religious duty.
1. Congress has no power over mere opinion, but free to reach actions in violation of
social duties or subversive of good order
2. Can’t interfere with belief and opinions, but can with practices (this hold very little weight
now… see Wisconsin v. Yoder opinion).
ii. Cantwell v. Connecticut (1940):
1. Cut back on Reynolds: can’t unduly infringe on religious practice.
iii. Minersville v. Gobitis (1940):
1. Did not grant FE exemption for Jehovah’s Witness refusing to salute flag.
2. Religious liberty does not exclude legislation of general scope not directed against doctrinal
loyalties of particular sects.
iv. West VA Bd of Ed v. Barnette (1943): reversed on free speech grounds though.
v. Braunfeld v. Brown (1961): rejected FE challenge to Sunday closing law; Jews said they have to
close Saturday and being closed Sunda makes competitive disadvantage.
1. Freedom to act, even when action is in accord with one’s religious convictions, is not
totally free from legislative restrictions; this simply made practice of their religious beliefs
more expensive.
2. General law with secular goal will be valid despite indirect burden on religious
observance unless State can accomplish purpose by means which do not impose such a
burden (?????is this its own level/type of scrutiny?)
3. SEE ALSO: McGowan v. MD (1961): EC challenge to Sunday closing laws; fails because
in light of evolution through centuries, as presently administered, they are of a secular
rather than religious character
vi. Sherbert line of cases:
1. Sherbert v. Verner (1963):

43
 a. Must pay unemployment benefits to Saturday sabbatarian; she got fired and couldn’t
find new job because would not work Saturday; state compensation laws said you had
to pay workers who failed without good cause to accept suitable work.
b. Here, free exercise burdened because ineligibility for benefits is solely because of the
practice of her religion
c. No compelling state interest; fears about malingering unsubstantiated.
d. This is mere desire for neutrality with Sunday worshippers [but we don’t know they
wouldn’t be penalized…]
2. Thomas v. Review Board (1981): Quit munitions factory because of religious objections to
war; law denied compensation to employees who voluntarily left employment without good
cause; followed Sherbert and said need to grant benefits.
3. Hobbie v. Unemployment Appeals Comm’n (1987): Followed Sherbert in upholding claim
of employee whose religious beliefs changed during the course of her employment.
4. Wisconsin v. Yoder (1972):
a. Fined for refusing to send his 15 year old daughter to school when state req was until
16.
b. Amish object to high school education
c. Strict scrutiny because burdens
d. Fails because state interest in one or two more years is low
5. Below we see Three ways of distinguishing Yoder and Sherbert:
a. Overriding gov’t interest (e.g. uniformity); from application of strict scrutiny.
b. Free exercise interest attenuated and/or lower scrutiny with context like military.
c. Narrow definition of “burden”; rejecting claims that alter “internal” gov’t ops.
6. US v. Lee (1982):
a. Amish object to Social Security tax because they take care of their own elders
b. Burden exists, but passes strict scrutiny since essential gov’t interest in those taxes.
7. Bob Jones Univ. v. US (1982):
a. IRS denied tax exempt status because their racial policies were contrary to settled
public policy.
b. Rejected FE claim, even after applying strict scrutiny; interest in eradicating racial
discrimination compelling.
8. Goldman v. Weinberger (1986):
a. Deferential review of military regs
b. Upheld reg barring headgear as applied to yarmulke wearer; justified under deferential
standard; interest in uniformity; subordination of personal preferences in favor of
group mission.
9. Bowen v. Roy (1986):
a. Rejected FE challenge to req that applicants for welfare benefits be identified by
Social Security numbers. Little Bird of Snow.
b. Claimed assignment of SS number to their daughter would violate their religious
beliefs; would rob the spirit of the child.
c. Rejected the claim regarding gov’t use of the number: Never to our knowledge has
the Court interpreted the First Am to require the gov’t itself to behave in ways
the individual believes will further their spiritual development.
d. But five Justices indicated that exception from furnishing the number should be
granted (because it burdens, and then strict scrutiny)
10. Lyng v. Northwest Indian Cemetery Protective Ass’n (1988):
a. Forest Service’s plan to build road through national forest used by several Indian tribes
as sacred areas.
b. Rejected FE claim

44
 c. Religion not burdened here: Building of road can’t be meaningfully distinguished from
use of Social Security number in Roy. Gov’t action doesn’t coerce the individuals
into violating their beliefs.
d. So don’t even get strict scrutiny.
e. But notes that incidental effects that make it more difficult to practice could
create coercion and amount to a “prohibition” in other cases.
vii. Employment Division, Dep’t of Human Resources v. Smith (1990):
1. Oregon included religiously inspired peyote use in general criminal prohibition of use of
drug. Allows unemployment benefits to be denied because of religious use.
2. Scalia (majority):
a. Distinguish Sherbert, Thomas, Hobbie; those didn’t involve conduct prohibited by law.
b. Have never held religious beliefs excuse one from compliance with otherwise valid
law prohibiting conduct state is free to regulate.
c. Only decisions where First Am. bars application of neutral generally applicable law
has not involved the FE clause alone, but the FE clause in conjunction with other
constitutional protections
d. Since this is not an attempt at regulating religious beliefs; Reynolds holds.
e. Now hold Sherbert test for substantial burden doesn’t apply to challenges to
across-the-board criminal prohibition of a particular form of conduct.
i. Only applies to individual assessment of applicants (e.g. unemployment benefits)
f. Now rational basis review for laws of general applicability.
i. Must be preferred to system in which each conscience is a law unto itself.
3. O’Connor: But laws like never single out religion; they always look like laws of general
applicability.
a. Also this harms minority religions which need court support since they won’t have
legislative support.
viii. Congress reacted with RFRA which basically codifies Sherbert again.
ix. City of Boerne v. Flores (1997): Congress lacked authority under civil rights clauses to enact
statue applying Sherbert rather than Smith to claims of religious exemption from generally
applicable state laws.
1. RFRA does not apply to the states. Does apply to the fed gov’t.
x. Hosanna-Tabor Church and School v. EEOC (2012):
1. There’s a ministerial exception that precludes application of employment legislation
(including the ADA) to employment relationship between religious institution and its
ministers; can’t interfere with internal governance of church.
xi. Burwell v. Hobby Lobby (2014):
1. Affordable Care Act requires employees to get reproductive healthcare.
2. Closely-held corporation whose owners have sincerely-held religious beliefs can claim
a RFRA exemption. Here state refusal is not narrowly tailored because the gov’t could
pay for the contraceptives itself or shift the cost to insurance companies, as it did with the
exceptions it did include.
XXVIII. Establishment Clause
a. James Madison wrote “Religion [of] every man must be left to the conviction and conscience of every
man.”
b. In the words of Jefferson, the EC clause was intended to erect a “wall of separation between
church and State”
XXIX. Three types of EC claim:
a. 1) Impermissibly provided aid to religion
b. 2) Impermissibly allowed religion to intrude into public schools
c. 3) Impermissibly sponsored religious doctrines or symbols.
XXX. Aid to religious schools

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a. Lemon v. Kurtzman (1971):
i. Struck down types of financial aid to nonpublic schools
ii. Statute must meet three criteria to withstand EC attack:
1. Secular legislative purpose
2. Principal or primary effect must be on that neither advances nor inhibits religion
3. Must not foster excessive gov’t entanglement with religion
iii. Criticisms on p663.
b. Everson v. Bd. of Education (1947):
i. NJ law reimburses parents who send kids to school on public transport.
ii. Black mentions Jefferson’s “wall of separation”
iii. General services can be provided to religious institutions without violating Establishment,
like police and fire protection, and here, public busing.
c. Identity of the recipient of aid matters.
d. McCollum v. Bd. of Ed. (1948):
i. School’s practice of holding sectarian classes in public schools during school hours taught by
parochial school instructors
ii. Violates EC because:
1. Public school buildings used to provide religious education
2. Aids sectarian groups by using compulsory machinery of public education to provide
classes.
e. Zorach v. Clauson (1952):
i. NY public schools had program where students would be released during normal hours to attend
religious instruction. Other students kept in building until religious students return.
ii. When state encourages or accomodates religious instruction it is following tradition of public
recognition and respect for religion. Merely an accommodation; funds and facilities aren’t being
used for instruction.
iii. [Totally inconsistent with McCollum because on/off campus does not change the coercive
effect].
f. Mueller v. Allen (1983):
i. Challenge to tax deduction for the educational expenses of parents who send their children to
either public or private schools. Bulk of benefits go to parochial school parents.
ii. Passes Lemon test.
1. Secular purpose, promotes education
2. Primary effect is not to advance sectarian schools; all parents; facially neutral despite
disparate impact
3. Does not excessively entangle church and state.
g. Tilton v. Richardson (1971):
i. College students are less impressionableand less susceptible to indoctrination than primary
and secondary school students; upheld federal construction grants to church-related colleges.
1. SEE ALSO Locke v. Davey (2004):
a. Washington state’s refusal to allow student recipients of scholarship to spend it on
theology.
b. No FE problem because doesn’t burden religious exercise; but WA is not forbidden by
EC from funding religious education as long as scholarship is facially neutral and
money is directed to religious study
c. “Play in the joints”: some policies motivated by EC values are permitted by FE clause,
but not actually required by EC clause.
h. Roemer v. MD Pub. Works Bd. (1976):
i. Approved annual noncategorical grants to eligible private colleges, including some church-
related ones, subject only to the restriction that the funds not be used for sectarian purposes.
1. [But money is fungible, Holder]

46
 Witters v. WA Dep’t of Servs. For Blind (1986):
i.
i. Effect prong of Lemon test not vilated by law authorizing payment to a visually handicapped
person for vocational rehab services, where the recipient sought to use the funds to pay his
tuition at a Christian college to prepare for career as pastor.
ii. Did not provide any greater or broader benefits for recipients who apply their aid to
religious education.
j. Bowen v. Kendrick (1988):
i. Rejected facial attack of Act that authorizes fed grants to orgs, including orgs with ties to
religious denominations for counseling services and research in the area of premarital adolescent
sexual relations and pregnancy. Some went to religious orgs.
ii. Court insisted that when aid goes to religiously affiliated institutions not pervasively
sectarian, it would not presume that it will be used in a way that would have the primary
effect advancing religion.
iii. Also said ongoing interaction with government would not happen; so no entanglement
k. Zobrest v. Catalina Foothills School Dist. (1993):
i. Publicly funded sign language interpreter for deaf student in parochial school classroom did not
violated EC.
ii. Programs that neutrally provide benefits to broad class of citizens without reference to
religion are not readily subject to EC challenge, just because sectarian institutions may also
received an attenuated financial benefit.
l. Rosenberger v. Rector, UVA (1995):
i. Wide Awake publication case.
ii. Benefit to religion is incidental to the gov’t provision of secular services for secular purposes on
a religion-neutral basis.
m. Agostini v. Felton (1997):
i. Overruled decisions where court struck down programs in which public school teachers paid
from public funds would offer supplementary classes in parochial school classrooms.
ii. Have abandoned the presumption that placement of public employees on parochial grounds
inevitably results in state-sponsored indoctrination
iii. Gov’t aid that directly aids educational function of religious schools is not necessarily invalid
anymore
iv. These services are supplemental and thus do not relieve sectarian schools of costs they otherwise
would have borne educating their students.
XXXI. Prayer and Other Religious Observance: No coercion (schools), no endorsement (some stuff), but
acknowledgement is fine (legislative prayer).
a. Engel v. Vitale (1962):
i. Nondenominational prayer to be recited by class.
ii. Gov’t has no business writing prayers for the American people. Not dependent on
compulsion, doesn’t matter that voluntary or nondenominational. Establishment prevents
entanglements.
b. Abington School Dist (1963):
i. Kids could opt out of reading bible stuff at start of school day
ii. What are the primary effects? Religious rather than just teaching about bible secularly?
Even a small entanglement is prohibited.
c. Wallace v. Jaffree (1985):
i. Struck down Alabama law letting schools set aside a minute for prayer or meditation.
ii. Not motivated by secular purpose
d. Lee v. Weisman (1992):
i. Middle school had rabbi deliver nonsectarian prayer at school graduation.
ii. Gov’t can’t coerce anyone to support or participate in religion or its exercise.

47
 1. Here, reasonable dissenter could believe the group exercise signified
participation/approval (standing or staying silent for prayer)
e. Good New Club v. Milford Central (2001):
i. Permissible to use school facilities for worship and prayer as part of extracurricular afterschool
program; open to other groups like Boy Scouts.
ii. Neutral treatment of private groups is OK.
f. Epperson v. Arkansas (1968):
i. Law criminalized teaching evolution.
ii. Selects particular segment on basis of conflict with particular religion; gov’t cannot be hostile
to or promote any religion.
g. Edwards v. Aguillard (1987):
i. Balanced Treatment Act (must pair evolution with creationism). See in legislative statement
disdain for evolution; this does not advance goal of academic freedom; purpose is to give
advantage to religious belief.
ii. looked at legislative history.
h. Marsh v. Chambers (1983):
i. Upheld Nebraska Legislature’s practice of opening day with prayer by state-paid chaplain.
ii. In light of 200-year history, starting sessions with prayer is part of “fabric of society.”
Tolerable acknowledgement of beliefs held in this country.
i. Town v. Greece v. Galloway (2014):
i. Upheld legislative prayer again.
1. Under Marsh, historical foundation makes a bit of religious acknowledgement ok.
j. Lynch v. Donnelly (1984):
i. City funds used for nativity scene; surrounded by most-secular display.
ii. Soft Lemon test: Secular because it recognizes celebration of holiday nation has historically
celebrated.
k. Allegheny County v. ACLU (1989):
i. Challenge to two displays; crèche and menorah and stuff in courthouse
ii. Court adopts O’Connor’s endorsement test over coercion test.
iii. Creche unconstitutional because it stands alone and conveys religious message. Other display
taken as a whole celebrates religious diversity.
l. Capitol Square v. Pinette (1995):
i. EC did not forbit KKK putting up cross in public square; Free speech compelled it.
ii. Free speech can’t violate EC where it’s purely private and occurs in a public forum.
m. McCreary County v. ACLU of Kentucky (2005):
i. 3 consecutive displays in courthouse. 10C alone, then with other founding documents, then as
part of “foundations of american gov’t” display.
ii. Lemon purpose test must be applied through eyes of reasonable observer familiar with
recent and legislative history. Here, would be seen as sneaking in religious message.
n. Van Orden v. Perry (2005):
i. Challenge to display of 10C on Capitol grounds; one of 17 monuments.
ii. Don’t apply Lemon, some symbols have dual meaning; 10C has secular meaning here;
Moses was a lawgiver.
XXXII. Ceiling and Floor
a. Widmar v. Vincent (1981):
i. University that makes facilities general available for activities of registered student groups can’t
bar a group from using the facilities for worship.
ii. To justify discriminatory exclusion from public forum based on religious content, must
satisfy strict scrutiny.
b. Rosenberger v. UVA above: can’t discriminate with student activities fund.
c. Estate of Thornton v. Caldor (1985):

48
 i. Struck down law that said anyone who states a certain day is their Sabbath doesn’t have to work
that day.
ii. Impermissible establishment of religion because it advanced a particular religious practice.
d. Corporation of Presiding Bishop v. Amos (1987):
i. Act exempts religious orgs from religious discrimination laws.
ii. Uphled because gov’t can lift regs that burden exercise of religion; gov’t here is not
advancing religion through its own activities and influence
e. Bd of Ed of Kiryas Joel v. Grumet (1994):
i. Ultra-orthodox Jews live in town of Kiryas Joel named after rabbi. Boundaries of town drawn to
exclude everyone else. Got own school district to keep kids separate to not get ridiculed.
ii. Invalidated; State may not delegate its civic authority to a group chosen according to a
religious criterion.
f. Trinity Lutheran Church v. Comer (2017):
i. Missouri program that denied grant to a religious school for playground resurfacing, while
providing grants to similarly situated non-religious groups, violated Free Exercise clause.
XXXIII. Zelman:
a. Zelman v. Simmons-Harris (2002) (Rehnquist):
i. Challenge to a Cleveland program to offer parents the chance to choose a public, private,
community, or magnet school and receive tuition support from the gov’t. 82% of the private
schools participating have religious affiliation.
ii. Law clearly has secular purpose; providing parents with educational choice.
iii. When a gov’t aid program is neutral wrt religion, and provides aid directly to a broad class
of citizens who, in turn, direct gov’t assistance to religion institutions as a result of their
wholly private choice, the program does not violate EC.
XXXIV. O’Brien
XXXV. Holder, Scales, Turner, Whitney, Cohen,

49