----------------------------CONSTITUTIONAL LAW II FINAL

OUTLINE----------------------

1. The Reconstruction Amendments: State Action and Congressional Power

to Enforce Civil Rights
a. Overview
i. Endorsed the state view. Court followed federalism principles of state
sphere of dominance
1. 14th Amendment = Congress Enforcement power
ii. State Action
1. Need for state action is because 14th Amendment applies to the
State, not individuals
2. State action extends to private entities when acting as a state actor
a. Public Function Theory – When private actors perform traditional
state functions (Private Prison)
b. Nexus Theory – Combination of actors, state/private are joint
participants; hold state responsible.
iii. Amendments
1. 13th Amendment – abolish slavery
2. 14th Amendment - requires each state to provide equal protection
under the law to all people
3. 15th Amendment – Citizen right to vote
B. CIVIL RIGHTS STATUTES OF RECONSTRUCTION ERA
i. 1870’S statutory acts
C. REQUIREMENT OF STATE ACTION
I. CIVIL RIGHTS CASES

1. Strauder Case (Cannot exclude blacks from juries) + Slaughter House

Cases (Restriction of 14th Amendment)
a. States that 14th prohibits state action, not private discrimination.
i. Reason for the use of Commerce clause to reach private
actors instead of 14th.
b. 13 Amendment” “primary” “direct”
th

i. No Slavery provision – Does not require state action.

Congress can write criminal or civil law punishing individuals
who try to own slaves.
ii. Primary, Direct power  Legislates before any violation is
found (not remedial amendment not “no state shall”; there
is no requirement of state action in the 13th Amendment
1. Not “badge of slavery” – extends 13th Amendment too
far.
iii. Dissent (Harlan) : Public actor theory arises
1. 14th Section 5  Like the necessary/ proper clause for
enforcement
2. Badges and Incidents
c. 14th amendment applies only to state and local government
actions, not to private conduct
II. SCOPE & LIMITS OF STATE ACTION AFTER CIVIL RIGHTS CASES
1. State Action
a. When private actor will be subject to the constitutional
guarantees ordinarily applicable to government
i. Whether actor is sufficiently entangled with state to
consider private action state action.
 ii. Whether applicability of con. Guarantees to private actor
unduly impinges on the private interest in being free to
behave in ways constitutionally barred to the state.
2. Marsh v. Alabama
a. Town wholly owned by corporation; stopped woman from
distribute material.
i. Court said private owned town took on public function (Case
is limited to facts, does not apply to shopping centers).
1. Public interest in functioning channels of
communication.
2. Facilities built for public benefit; ergo public function
test satisfied.
a. Holding is not applicable to private shopping
malls.
3. Evens v. Newton
a. Public function question of land donated for park via will that
states “whites only”
i. 14th applies even to trustees because municipal and public
nature of the property.
ii. Mass recreation through the use of parks in public domain
1. City Cannot avoid problem by turning control of park to
private entity.
4. White Primary Cases
a. Democrats wanted to exclude Blacks from party primary
i. 15th Argument – State power delegated to others is still state
action.
1. Private voting is still part of electoral scheme.
2. Cannot delegate public function to private
discriminator.
ii. Public Function approach – must meet the requirements of
equal protection.
5. Jackson Case (Rehnquist)
a. Utilities of residence were turned off without a hearing.
i. State Action Test
1. Test is whether action is traditionally and exclusively
reserved to states.
a. Modified and made public function theory harder
to satisfy.
i. “Must be traditionally
and exclusively reserved
function of the state”
ii. Power must be “traditionally exclusive” governmental
function
1. Court said furnishing of utility was not state action.
Mere fact that business is subject to regulation is not
enough for 14th.
a. Private Prison = Public Function.
iii. Nexus Overview
1. Constitutional applies if the government affirmatively authorizes,
encourages, or facilitates private conduct that violates constitution. 2
outcomes:
a. Government ceases involvement
b. Private entity reforms activity to comply
IV. SHELLEY V. KRAEMER
 1. Private covenant restricting race in property, question was whether
judicial enforcement constituted state action.
a. Rule: Judge, sheriff, and judicial branch are subject to the 14th
Amendment.
b. Private covenant was constitutional; however court enforcement
= impermissible state action.
i. Evens Case
1. Distinguished because park was eliminated all together
unlike Shelly where action either way was necessary.
V. STATE ACTION AFTER SHELLEY

NE 1. BURTON CASE
a. Coffee shop refused to serve other race, shop was leased out
XU from public property ergo state makes money on private
discrimination.

S
i. Rule – This satisfied test of being a joint participant.
1. Look to ongoing, long-term business relationship
(money and location).
ii. Factors
1. Publically owned land

CA 2. Joint participation
3. Financial interdependence.
2. Moose Lodge Case
SE a. Private club, which wouldn’t serve African American. Question
was whether liquor license is state action.
S i. Rule – License along does not amount to significant state
action.
3. Reitman Case
a. Similar to Romer where political system was no longer available.
People voted to repeal anti-discrimination laws.
i. Rule: Surmounted to state encouragement (Disable political
process) of discrimination.
1. Even though private voters, involved state legislative
process.
b. Public Function + Judicial Enforcement + State Encouragement
i. Traditional and exclusive state function
VI. JACKSON V. METROPOLITAN EDISON CO.
1. Procedural Due Process – entitled to hearing for cut-off electric
service. City approved the plan.
a. Monopoly Franchise is not Nexus of State Action
i. Approving/Granting of monopoly is not enough to fulfill
nexus.
ii. State regulation alone does not = 14th violation
VII. LIMITS ON STATE ACTION AFTER JACKSON/MOOSE LODGE
1. Flagg Bros Case
a. Argument of lien on goods in warehouse because of state action
by authorization and encouragement of U.C.C.
i. Requirement of Compulsion; look to who has discretion to
make the decision.
ii. Adoption of UCC not enough, must show that state
compelled the decision (Rehnquist).
b. Dissent – State action because presence of state law
i. Problem w/ dissent – everything in law is state action; too
broad.
2. Blum Case
 a. Nursing home subsidized which challenged judgment of doctors.
i. Look to discretion of case; Only where coercive power or
significant involvement of the state.
1. State is responsible only when it exercised a power or
encouragement, theat the choice must in law be
deemed as that of the state.
3. Deshaney Case
a. Report of child abuse where state failed to act and kid was
damaged.
i. State not responsible for well being because no
encouragement or coercion of private actor.
1. Exception: Involuntary confinement with affirmative
duty.
4. Lugar v. Edmonson Oil
a. Creditor attached land in ex parte proceeding without notice.
i. Court found state action. Private party’s joint participant w/
state in seizure of property is state action for 14th.
5. Edmonson v. Leesville Concrete Co.
a. Private parties in civil litigation, preemptory challenges to exclude
jurors on the basis of race.
i. This constituted state action
1. Only judge can dismiss juror, ergo state action
2. Does actor have source in state authority and in all
fairness must be deemed a government actor.
6. Athletic Association
a. May be state actor if high enough state intertwinement and
control. Most members must be that of the state.
D. CONGRESSIONAL POWER TO REACH PRIVATE INTERFERENCE W/ CONSTITUTIONAL RIGHTS
i. Views
1. Federal Congressional Power is broad (McCulloch/Brennan)
2. Limited because of Requirement for State Actoin
ii. State delegation of authority – Scope of state action
1. Public Function Metro Test (Private Prisons)
2. Nexus – Components towards state action (Majority)
a. 1986 – Cannot strike jurors based on race in either civil or
criminal trial Edmonson Case
i. This is state Action because the court dismisses jurors; not
private actors
iii. Overview of Amendments
1. 14th Amendment = Broadest
2. 15th Amendment = Voting Rights
a. Both require state action for violation
3. 13th Amendment = Primary but Remedial
a. No state action is needed but is limited to discrimination
4. No requirement of state action under the commerce or spending
power
iv. UNITED STATES V. GUEST (Stewert Opinion)
1. Finds state action in allegation (arrests made on false reports.
a. (Brennan/Clark)
i. All conspiracy should reach 14th amendment
ii. Congress has broad power to protect rights, even against
private actors (Means/Ends test)
iii. Cramped view of congress would reduce congressional
power to judicial branch.
 b. Case involves fundamental right to travel, which makes extension
to private actor necessary.
v. CRIMINAL SANCTIONS FOR PRIVATE INTERFERENCE W/ 14 AMENDMENT RIGHTS
TH

1. United States v. Price

a. Murder of civil rights workers in Mississippi, defendants was
officers and members of public.
b. Conspiracy to let people go from jail and kill them.
i. Individuals were deprived of 14th Amendment right to no
punish without due process of law.
2. Screws v. United States
a. Police defendant beat black man until he died
b. Deprived of his right not to be deprived of life without due
process of law
vi. CONGRESSIONAL POWER TO REACH PRIVATE CONDUCT UNDER THE 13 AMENDMENT
TH

1. Griffen Case
a. §1985(c) = found to cover private conspiracies if conspiracy was
done with an invidiously discriminatory motivation
i. Congress can reach private actions through 13th amendment
as long as intent is present.
1. Racial or class-based deprivation of equal protection.
2. Scott Case
a. Does not reach 1st Amendment without discrimination.
b. §1985 not violated unless showed state involved or aim of
conspiracy was to influence activity of the state.
3. Bray Case
a. Discrimination of woman is not enough because lack of race.
VII. JONES V. ALFRED H. MAYER CO.
1. Refused to sell home to black people
a. Private seller refused to sell home b/c racial discrimination
i. No evidence of 14th limitation without state action
ii. Congress has power of necessary & proper to dissolve
badges and incidents of slavery
1. Congress determines badge or incident of slavery.
b. §1982 bars all discrimination, private as well as public
i. 13th is primary & direct, in can reach private actors.
c. Harlan Dissent – traditional rights run against the government,
right is to be free of racial discrimination.
viii. 13 AMENDMENT POWERS & 1866 CIVIL RIGHTS ACT
TH

1. Sullivan Case
a. White member suing for 3rd party – unknown limits of 13th
amendment.
i. Congress can pass law against private covenants based on
race even without a state action if it decides that the
covenants are badges and incidents of slavery.
ii. Violation of 1866 act because there was no other selective
element other than race.
2. Runyon Case (Stewart)
a. Post brown white parents moved kids to private school – touches
on right to educate children as they see fit.
i. Issue was whether §1981 prohibits such action.
b. Rule - §1981 gives congress the power to reach private schools;
privacy and liberty to rear other children was not violated
i. Dissent (White) – Look to statute to see scope of power.
 1. Argument of abuse of power.
3. Overview
a. 13th Amendment can reach private actors, state action not
needed.
e. CONGRESSIONAL POWER TO ENFORCE CIVIL RIGHTS UNDER §5 OF 14 AMENDMENT
TH

I. CONGRESSIONAL PROTECTION OF VOTING RIGHTS

1. Historical literacy test – Read/Write English to vote in an election
a. South Carolina Case
i. Different standards of test for black/whites
b. Lassiter Case
i. State has reasonable interest in literacy tests, therefore
allowed to be constitutional.
c. 1965 Voting Rights Act
i. Suspended voting literacy tests Nationwide.
ii. South Carolina v. Katzenbach (Warren)
1. Literacy test was device used to keep Blacks from voting
2. Overall history of discrimination make power of presentation
appropriate
a. Permanent suspension was upheld.
b. No requirement of discriminatory purpose or prior violation
i. May regulate so long as danger present.
iii. THE MEANING & AFTERMATH OF KATZENBACH
1. Lassiter v. North Hampton County Election
a. Education populace = valid state interest
b. Literacy tests are constitutional
c. Unanimous court rejected a black citizen’s attach on North
Carolina’s literacy test.
i. Literacy is neutral on race, color, and sex.
ii. Congress later suspended the use of literacy test with voting
rights act.
2. Voting Rights Act
a. Response to Lassiter, suspended the use of literacy test on
national basis.
i. Oregon v. Mitchell
1. All justices upheld the constitutionality of the literacy
test.
2. Use of §5 of 14th, necessary and propery.
II. KATZENBACH V. MORGAN
1. New York literacy test – state argued no prior violation
had occurred
a. (Brennan) – Congress has power under section 5
because necessary and proper to prevent
discrimination.
b. (Other) Issue not voting rights; Instead issue of
congressional power
i. Used lee optical any
rational basis test
c. Peace mill Approach – Can target only ? (1 step at
a time approach)
i. Dissent (Harlan) –
Constitutional right for
test as announced in
Lassitor.
ii. Majority uses Anti
 Marburry argument –
Congress is announcing
something
unconstitutional
(Lassitor), which was
already litigated.
3. Rome v. United States
a. Congress has power to allow proof of discriminatory impact to
establish violation of voting rights.
f. Confinement of Congress’s Civil Rights enforcement power to proportional and
congruent remedies
i. CITY OF BOERNE V. FLORES (Kennedy) (Current Law)
1. Religious restoration act – told court to use strict scrutiny
2. Rely on §5 of 14th as well as religion amendment.
a. Enforcement power – Congress has power for remedial and
possible preventative (Enforcement power)
b. Ruling: Court sets standard which congress can enforce:
i. Congruence
ii. Proportional between injury to be prevented and means to
that end.
1. Must be narrowly tailored to the constitutional
violation.
iii. Requirements:
1. Pattern of Violation
2. Evidence of limitation
3. Limitation of Power
c. Application
i. Not pattern – Over sweeping – Not proportional.
1. Preventative measures appropriate when congruence
between means/ends
ii. Must show reason to believe that many of the laws affected
by the congressional enactment have a significant likelihood
of being unconstitutional.
3. §5 power extends only to enforcing the provisions of the 14th.
a. Congress cannot determine substantive rights, or enforce a right
by changing the nature of it.
II. THE MEANING & SCOPE OF BOERNE
1. Seminole Tribe v. Florida
a. Congress may enact legislation under article 1 that abrogates the
state’s immunity for monetary damages.
i. Authorized via §5 of the 14th
ii. Must be proportionate and congruent.
2. Florida Prepaid Postsecondary Education v. College Bank
a. Abrogates state sovereign immunity against patent/trademark
suits.
i. No rationale basis if not remedial
ii. Must first begin with identifying the constitutional wrong
iii. This law was not in response to long history of depriving of
constitutional right.
III. UNITED STATES V. MORRISON

1. Court struck down the Violence against women’s act which deterred
gender-motivated violence
a. Law imposed civil liability on perpetrators; not state actors
b. Court found this was not proportionate response because
 Congress did not identify that it was a national problem
i. Problem must exist in most if not all states
c. Non-economic activity so cannot use cumulative impact or
interstate commerce.
IV. THE MEANING & SCOPE OF MORRISON
1. Kimel v. Florida Board of Regents
a. Age discrimination where court applied rational basis.
b. Congress exceeded 14th amendment remedial authority in
allowing employees to sue states for damages for violation of
discrimination act.
i. Congress attempted to elevate age to a heightened scrutiny
ii. Discrimination act was out of proportion to be a supposed
remedial preventative object that is in response to or
designated to prevent unconstitutional behavior.
2. Board of Trustees of the University of Alabama v. Garrett
a. Disability discrimination where court applied rational basis.
i. Court found that congress had exceeded ∞5 enforcement
power in providing money damages remedy against a state
employers for discrimination based on non-suspect.
1. States are not required by the 14th amendment to
make special accommodations for the disabled.
2. The 14th Amendment is the sole amendment to
abrogate state sovereign immunity.
3. Nevada Dept of Human Resources v. Hibbs
a. Gender Discrimination; use intermediate scrutiny
i. Court upheld FMLA via §5 of 14th amendment
ii. Intermediate Scrutiny allows Congress to show a pattern of
state constitutional violations
4. Disabled and Elderly
a. Discrimination based on A or D, Congress must identify both:
i. Existence of age/disability based decisions AND
ii. Widespread pattern of irrational reliance on such criteria.
5. Gender
a. Intermediate scrutiny
b. Because the standard for demonstrating constitutionality is
harder, it is easier for Congress to show a pattern of
constitutional violations.
2. FREEDOM OF SPEECH – WHY GOVERNMENT RESTRICTS SPEECH – UNPROTECTED AND LESS
PROTECTED EXPRESSION
A. FREE SPEECH: AN OVERVIEW
I. FIRST AMENDMENT HISTORY

1. 1 Amendment – Congress shall makes no law abridging the freedom

ST

of speech, or of the press.

2. Palko v. Connecticut
a. Protecting speech = fundamental liberty b/c indispensable
condition on every other freedom
i. Advance knowledge/truth in marketplace of ideas.
ii. Facilitate representative democracy/ self government
iii. Promote individual autonomy.
II. FIRST AMENDMENT THEORY
1. Broad debate informs and improves the making of public policy
2. Free speech prevents government from entrenching itself indefinitely
3. Free speech prevents government abuse of power
4. Promotes political stability by providing a safety value for dissent.
 III. FIRST AMENDMENT JURISPRUDENCE
1. Non-protected speech =- clear and present danger, obscenity,
fighting words.
2. Semi-protected = sexual explicitly,
3. Government interest in speech = protecting non-consenting adults
and children.
B. INCITEMENT TO VIOLENCE
I. SCHENCK V. UNITED STATE
1. Obstruction of the draft where person must have the intent
2. Test = Whether words are used in such circumstances and are of
such a nature as to create a clear and present danger that they will
bring about the substantive evils that congress has a right to prevent
a. Question of proximity and degree
ii. Debs v. U.S.
1. Test = natural tendency and probable effect to obstruct.
a. No protection if one’s purpose (incidental or not) was to oppose
the war and if in all circumstances that is the probable effect.
III. THE “CLEAR AND PRESENT DANGER” TEST
IV. ABRAMS V. UNITED STATES
1. Leaflets passed out urging for a general strike
a. Holmes Dissent – requires that the danger be imminent
i. Looks at tendency test
ii. Looks for specific intent
iii. Danger must be imminent
iv. Relies on Marketplace of ideas for protection.
1. Cornerstone of Modern 1st Amendment.
b. Present danger of immediate harm/ danger
i. Immediate danger of harm requires immediate, imminent
action to save the country.
V. REFINEMENTS OF AND ALTERNATIVES TO CLEAR AND PRESENT DANGER
1. MASSES PUBLISHING CO. V. PATTEN
a. Person must know that the statement is false – 1st charge
b. Must cause insubordination; not broad extension
c. Must be direct incitement.
2. General Clear and Present Danger Test
a. Must show likelihood of both:
i. Imminent danger
ii. Significant Harm
VI. COMPARING THE HOLMES AND HAND APPROACHES

vii. GITLOW V. NEW YORK (Bad Law)

1. No evidence of effect; does not use the clear and present danger
test.
2. Case is not good law and today dissent is correct.
a. Majoirty used reasonableness approach upholding laws.
b. Dissent (Correct) – Every idea includes incitement, therefore clear
and present danger test should be applied on a case by case
basis.
VIII. ***WHITNEY V. CALIFORNIA
1. Helped organize group and remained member of group
2. Majority – no clear and present danger test
a. The final end to state is to guarantee individual autonomy.
i. Idea must be public and available for public discussion
ii. Discussion is protection and remedy is the use of speech
iii. Serious injury is insufficient to curve speech.
 1. Imminent Danger + Serious Danger + Specific Intent +
Causation.
2. Application: When harm is imminent and threatens the
existence of the state.
IX. CRIMINAL ANARCHY AND SYNDICALISM LAWS
1. DENNIS V. UNITED STATES
a. Instance when not to apply the clear & present danger test.
b. Defendant argument:
i. Put a person in prison for academic discussion of
communism
c. Threat was more serious, however it was hard to evaluate
imminence of threat.
d. Plurality:
i. Hands Test: - Whether the gravity of evil discounted by
probability justify the invasion of free speech
1. Masses Test
e. Frankfurter Concurrence:
i. Deference with legislature via rational basis test; admits
chilling effect on exchange of ideas.
f. Jackson Concurrence:
i. Danger actually happened or never actually any danger.
g. Douglas Dissenting:
i. Teach in classroom and books on communism cannot be
banned, therefore can not publically ban discussion.
1. Stands for clear/present danger test; free speech =
rule, not the exception
2. Only acceptable risk is overthrow of government
2. Yates v. Us
a. Must distinguish between advocacy in abstract and advocacy
directed at promoting unlawful action
i. Must be urged to do something rather than merely believe
in something
X. “CLEAR AND PRESENT DANGER” AFTER DENNIS
1. Issue – Why protect the ideas of others who would not protect other
speech?
a. Reason – 1st Amendment means toleration of ideas, which is vital.
2. Bond v. Floyd
a. Legislature not seated because statement of group who
supported draft dodger
b. Majority (Warren) – Does not constitute violation of law; does not
limit view/idea
3. Scalesv. U.S
a. Must be clear proof that defendant specifically intends to
accomplish the aims of the organization by resort to violence.
4. U.S v. Robel
a. Court invalidates no-hire provision against communist party
members as infringment on 1st amendment rights.
xi. BRANDENBURG V. OHIO (Modern Clear and Present Danger Test)
1. KKK leader was convicted under Ohio criminal syndicalism law.
2. Does not forbid or advocate use of force or violence, except where
a. Such advocacy is directed to incite or produce imminent lawless
action AND
b. Action is likely to produce or incite such action
i. Standard is beyond a reasonable doubt
 ii. Must have intent to cause imminent illegality.
c. Effectively overruled Whitney which stated that congress could
conclusively presume entire category of speech was dangerous.
3. Hoss v. Indiana
a. Words lacked imminent danger; advocacy of illegal action at
some indefinite time does not matter.
XII. THE MEANING AND IMPLICATIONS OF BRANDENBURG
1. NAACP v. Clayborne
a. Boycott of white merchants, threat to break necks when disobey
boycott.
b. Stevens Majority – found only advocacy of law breaking,
c. problem of showing incitement when no action has occurred.
i. violence occurred must be later than the speech.
2. Landmark Communications v. Virginia
a. Deference to a legislative finding cannot limit the judicial inquiry
when 1st amendment rights are at stake.
3. Planned Parenthood v. American Coalition
a. True threat (not metaphors) of real person by heard reasonable
person
i. Application of clear/present danger to information that
material is dangerous in wrong hands does not fit
4. Teaching terrorism: knowing or intending to make bomb or teach
how to make bomb
a. Fails clear/present danger because of imminence.
C. FIGHTING WORDS AND HOSTILE AUDIENCES
I. “FIGHTING WORDS”
1. Cantwell v. Connecticut
a. Jehovah’s witness stopped on sidewalk (public) with anti-religious
statements
i. Audience offended along does not mean breach of the
peace.
ii. Instance was not fighting words because words were not
directed towards any particular individual.
b. Do not apply clear and present danger to religious speech, clear
and present danger is for incitement cases
i. Fighting words must be directed towards particular person;
directed towards large group is not enough.
2. Chaplinsky Case
a. Unanimous fighting words, case was disregarded but never
overruled.
b. Interpret law as men of common intelligence would understand as
causing average addressee to fight.
i. Murphy opinion – Narrow idea; don’t like because too old.
1. Lewd or obscene, profane, libelous, inflict injury; tend
to insight breach of peace all based on slight social
value balancing test.
ii. No conviction was sustained because Supreme Court.
1. Test – Would the words cause the average addressee
to fight
a. Fight = those by which their very utterance inflict
injury or tend to incite an immediate breach of
peach.
b. Balancing test – Speech claiming protection vs.
state interst.
3. Texas v. Johnson
 a. Court invalided on free speech grounds the conviction of a
political protester who burned the American flag.
i. Burning the flag = political expression.
4. Gooding v. Wilson
a. Found statute void because of limitation to narrow interpretation
of law.
i. Flag burned is not exempted under fighting words doctrine
because action is not directed towards anyone.
b. Cohen approach to speech:
i. Obscenity
ii. Fighting words doctrine
iii. Etc., if run out then speech is protected.
II. COHEN V. CALIFORNIA
1. Defendant wore a jacket that said F the draft and was arrested for
disturbing the peace.
a. Content discrimination – court said this was speech and not
conduct.
i. “One mans vulgarity is another man’s lyric”
ii. Offended listeners have duty to avert their eyes, no privacy
interest outside home.
b. Approach – go through unprotected speech, if not on list then
speech is protected.
III. HOSTILE AUDIENCES AND THE HECKLER’S VETO
1. FEINER V. NEW YORK
a. Inciting a riot as opposed to simply speaking mind
b. Look to imminence of disorder + deliberate defiance to officers
i. Police may step in to stop a the riot.
c. Dissent approach (modern approach)
i. Police should first make all reasonable to protect the
speaker.
IV. DISTINGUISHING FEINER IN LATER CASES
1. Edwards v. SC
a. 187 black student demonstrators who had walked along the state
house grounds to protest against racial discrimination.
i. Absent imminent threat, officers should not be allowed to
shut up speaker.
2. Permit Fees
a. Speech cannot be financially burdened, anymore than it can be
punished or banned, simply because it might offend a hostile
mob.
D. INJURY TO REPUTATION AND SENSIBILITY
I. BAEUHARNAIS AND GROUP LIBEL
1. Bad case which states do not even follow
a. Upheld conviction of libel towards a whole group
b. Court stated that if the government can provide a tort remedy to
an individual, it may do the same to a group.
2. Dissent –
a. These are matters of public concern – the government cannot
suppress this speech on the basis of its content.
II. LIBEL
1. NEW YORK TIMES CO. V. SULLIVAN
a. Principle – debate on public issues should be uninhibited, robust,
and wide-open, and that it may well include vehement, caustic
and sometimes unpleasantly sharp attacks on government and
public officials.
 i. Constitutional protection does not hinge on truth or
popularity.
ii. Court must be cautious of the chilling effect.
b. Malice is constitutionally required.
i. Public official cannot recover damages for a defamatory
falsehood relating to his official conduct unless he proves
1. Statement was made with actual malice
a. Knowledge that is false or with reckless disregard
of whether it was false or not.
iii. The Meaning and Implications of New York Times
1. Curtis Publishing Co v. Butts
a. Public officials and public figures always have access to the
media.
b. Extended NY Times to public figures
i. You can make yourself a public figure by thrusting yourself
into the public eye.
iv. Extension of New York Times to Other Settings
v. Torts Other than Defamation
1. IIED – Hustler Magazine v. Falwell
a. Unanimous court held that a public figure offended by an
outrageous magazine parody could not recover for the tort of IIED
w/o showing actual malice.
i. Even when speaker/writer is motivated by hatred/ill will his
expression will be protect by the 1st.
2. Invasion of Privacy
a. 4 types of privacy invasion
i. Intrusion into private affairs of plaintiff
ii. Public disclosure of non-newsworthy facts that the plaintiff
would prefer to keep secretes.
iii. Publicity placing the plaintiff in a false light
iv. Appropriate of the plaintiff name or likeness.
b. Time v. Hill
i. The claim is that disclosure not only invaded privacy but
was also false, though not necessarily injurious to
reputation.
ii. Court stated that NY Times v. Sullivan standard should be
applied.
c. Cox v. Cohn
i. Disclosure of rape victims name
ii. Court held that civil liability in a true privacy action could
not be imposed upon a broadcast for accurately publishing
information released to the public in official court record.
d. Florida Star v. BJF
i. State cannot prohibit a newspaper from publishing the name
of the rape victim when such information is available to the
public.
e. Bartnicki v. Vopper
i. Stranger illegally wire-tapped a phone conversation and the
tape was given to a radio talk show host who played it on
his program.
1. 1st amendment will prevail when the information is
lawfully obtained from an illegal source.
ii. Court applied Strict scrutiny
1. No liability because the press did not participate in the
 illegal interception, the criminal liability falls on the
one who intercepted the message.
3. Appropriation torts:
a. Zacchini v. Scripps – Howard Broadcasting Co.
i. Suit was based on the plaintiff right to publicity rather than
any interest in privacy or reputation
1. Court held that the 1st amendment does not immunize
the media from liability for damages when the media
broadcast a performer’s entire act without his consent,
vi. Hate Speech
1. Cannot be criminalized or forbidden
2. National Socialist Party v. Skokie
a. Cannot ban the swastika
b. Intendancy to incite is not enough to ban speech,
vii. R.A.V. v. City of St. Paul
• Case was a test case where other violations were
available.
• Content based laws = Strict scrutiny = presumptive
unconstitutional
o “Color” “Creed” “Nouns” = content based
• Symbolic Speech is conduct
o Special circumstances exception, based on
reason speech is unprotected
• Government does not have power to discriminate certain
viewpoints
o When government goes into subjects and
• Steven’s Concurrence – Hierarchy of speech
o Different categories of speech have different
scrutiny standards.
 Points out that subsets of fighting words
have always been singled out and
protected (those that contain an idea).
 Overview of Restrictions
• Content based restrictions are presumptively invalid
o Secondary effects of speech are not listeners
reaction, but incidental effects caused by the
speech.
• Test – Whether content discrimination is reasonably
necessary to achieve the state’s compelling interest.
o When content-based are within category of
unprotected speech, then SS unless:
 Directly advances the reason why the
category of speech is unprotected OR
 Directed at remedying secondary effects.
viii. The Meaning and Implications of R.A.V.
1. Wisconsin v. Mitchell
a. Sentence law that increases because of conduct or intent
i. Punished initially because of conduct then heightened
because of intent.
ii. Constitutional to have an additional race-motivated element
in the crime
b. Hate crimes not protected because they are based on conduct.
ix. Virginia v. Black
 1. Cross burning with intent to intimidate
a. State needs to prove that element of intimidation
i. Presumption of law was unconstitutional
ii. Not necessary that speaker actually carry out threat
iii. Law is ok to be under inclusive if it does not ban protected
speech.
2. Plurality: Law is part constitutional, part unconstitutional.
x. Kingsley Case
1. Sexual immortality and infidelity is Not obscenity
2. Cannot ban ideas, adultery under certain situations is acceptable.
xi. Stanley v. Georgia
1. Privacy and 1st Amendment – obscenity in house includes no
sensitive audience or children.
xii. U.S. V. Reidel
1. A state can ban the public distribution of obscene materials
2. Must distinguish between private and public to determine what the
state may regulate
a. Government can prohibit the mailing of obscene materials (not
overrule Stanley)
e. Sexually Explicit Expression
i. Obscenity
1. Adult speech – if not obscene, it is protected by the first amendment
a. Focus on 4 things:
i. Miller guidelines
ii. Governmental justifications
iii. How government controls obscene material
iv. Suppression and chilling effect.
ii. Roth v. United States
1. Court sustained the validity of federal and state obscenity laws w/o
reaching the question of whether any particular materials to which
the laws were applied were obscene.
a. Sex and obscenity are not same thing; must analyze each under
the miller v. ca test.
b. Obscene material = deals with sex in a manner appealing to
prurient interest.
i. Having or intended to arouse an unwholesome interest in
sexual matters.
c. Test – Whether to the average person, applying contemporary
community standards, the dominant theme of the material taken
as a whole appeals to the prurient
i. Obscenity = not within the area of constitutionally protected
speech.
iii. Kingsley Pictures v. Regents
1. Sexual immortality and infidelity is NOT obscenity
a. State cannot prevent the exhibition of a motion picture simply
because it advocates an idea.
iv. Obscenity Between Roth & Miller
1. Miller v. California
a. Mailed material with sensitive audience & children.
b. Miller Test:
i. Whether average person, applying legal standards, would
find that work as a whole appeals to prurient interest
ii. Whether the work depicts/describes, in a patently offensive
way, sexual conduct specifically defined by applicable state
law.
 iii. Whether work, taken as a whole, lacks serious literal,
artistic, political, or scientific value.
1. Can still be prosecuted if work has just “some” value.
iv. Court rejects the notion of fixed, uniform nation standards of
precisely what appeals the prurient interest or is patently
offensive
1. Two governmental interest
a. No consenting adults – sensitive audience
b. Children protect them because they cannot
consent.
v. Paris Adult Theatre I v. Slaton
1. Private theatre showing adult films to consenting adults; Not
constitutional.
2. Burger Majority – Club limited admission to willing adults.
a. Statement of valid state interest; quality of life, total community
environment, or public safety
i. Public exposure – Use Cohen approach.
b. Constitutional does not prohibit legislation because lack of
evidence.
3. Case distinguished because commercial venture; if at home use
Stanley
a. No empirical evidence or scientific data is needed.
b. Rejects claim that because only consenting adults items are
protected.
i. State (Legitimate) Interest
1. Morality – Interest in public quality of life – Tone of
commerce – public safety
4. Brennan Dissent – vague standards which burden the court system;
morality is ill defined.
vi. Obscenity Law After Miller & Paris
1. Jenkings & Hamley Cases
a. The court unanimously reversed a state conviction for showing
the film Carnal knowledge
i. Hollywood film and mainstream media is probably not
obscene.
b. Nudity does not alone constitute obscene material
c. Decisions by communities are reviewable.
i. Juries do not have unbridled discretion in determining what
is patently offensive
2. Hamling v. U.S.
a. Court opted for Local rather than state or nationwide standards in
federal obscenity prosecutions.
3. Pope Case
a. Literary, artistic, political, or scientific value factor of the Miller
test was not to be measured by local standards.
i. Whether a reasonable person would find such value in the
material taken as a whole.
ii. Reason why experts are called up.
4. Smith Case
a. Local standards in federal obscenity prosecutions is for jury
i. State law is not conclusive
ii. Literary, artistic, political or scientific value is not to be
measured by the local community standards
5. Miller Test Overview
a. Local community standards
 b. Defined by state law
c. Reasonable person standard on a national level (expert)
vii. Child Pornography
1. Ferber Case
a. Producing or distributing child pornography material
i. Court categories the child porn out of 1st Amendment
without using the Miller standard
ii. Harm is production as well as distribution of material.
1. Not obscene, instead picture itself is the problem.
2. Established absolute ban, even when in privacy of
home.
b. Brenan Concurrence – protected depending on content because
some material does have social value (Romeo & Juliet.
2. Osborne Case
a. No Stanley protection of child pornography in the home.
b. Nudity – lewd exhibition or a graphic focus on the genitals and
the person depicted is neither the child nor ward of the person
charged.
3. Aschcraft Case (Kennedy)
a. Computer generated child pornography
i. Lost Ferber rationale because does not portray actual
children. Instead just an idea.
ii. Kennedy explicitly rejects the tendency test.
viii. Pornography and Subordination of Women
1. American Booksellers Ass’n v. Hudnut
a. Vague definition outlawing pornography (speech not yet covered)
i. Content and Viewpoint discrimination – constitution forbids
the state to declare one perspective right and silent
opponents.
b. Strength of support for the belief is irrelevant
i. There is no such thing as a false idea – marketplace of ideas
argument.
ix. Sexually Explicit but No obscene Expression
x. Nudity Bans
1. Content based = Strict scrutiny
2. Erzonaznik Case
a. Drive in Screen visible from public streets banned from showing
nudity.
b. Content based banned – burden is on the viewer to look away
i. Statute was overbroad; some nudity is accepted for
children.
ii. RTPM regulations applicable to all speech may be
appropriate
3. Schad v. Mount Ephraim
a. Ban on live nude dancing
b. Overbroad and banned permissive source of live entertainment. –
subject to SS
i. Nudity alone does not place otherwise protected speech
outside 1st.
xi. “Erogenous Zoning” (Stevens)
1. Young v. American Mini Theatres
a. Detroit attempts to spread out adult theaters through zoning.
b. Stevens Approach – Low value of speech in classification process.
i. Problem: Justices create classification; not the people
 ii. Can look to the content to determine whether speech is
unprotected (low value)
1. This type of regulation should yield strict scrutiny.
c. Doctrine of Secondary Effects: Because of speech, x,y, and z
happen (Property falls, Crime Rises)
i. Does the ordinance impose content limitation and restrict
ability of availability to willing listeners?
ii. Does this place a significant restriction on those who want
to view it?
1. Uses part of O’Brien approach – substantial =
intermediate scrutiny.
2. Sidesteps 1st amendment problem w/ secondary effects
argument.
d. Powell Concurrence – Calls the case a zoning case + expression
e. Dissent – objection to reasonable place regulation because
classification must be content neutral.
xii. Indecency Bans in the Communications Media
1. Renton v. Playtime Theatres, Inc (Rheinquist)
a. Intermediate scrutiny requiring adequate alternatives.
i. Adult places zoned out 95% of city. Court found this to be an
adequate alternative – Adoption of Powell’s dissent in
Young.
b. Dissent –
i. Content based = SS
ii. Not adequate alternatives
iii. No proof by city of effects but based on conclusion from
other cities.
2. Los Angelos v. Alameda Books
a. LA had study on stores to show secondary effects – No studies of
AEU concentrated.
i. O’Conner – implied secondary effects puts burden on
business to show lack of effects
1. No need for real evidence, just reasonable predictions
from other data.
ii. Kennedy – Content based zoning subject to intermediate
scrutiny
1. Substantial Interest
2. Adequate Alternatives.
iii. Dissent – Problem b/c city did not prove any secondary
effects.
3. Secondary Effects Overview
a. Must be aimed at the secondary effects, no the content of the
speech
b. Works b/c secondary effects do not require the SS that content
based would require
i. Limited to sexually explicit speech.
4. Empirical evidence of secondary effects
a. City of LA v. Alameda Books
i. Allows cities to make inferences in determining secondary
affects:
1. City has burden of providing evidence that supports a
link between the concentrations of adult operations
and the secondary effects
a. City does not need to rule out every theory that is
 inconsistent with it own.
2. City may rely on any evidence that is reasonably
believed to be relevant for demonstrating the
connection between the speech and the substantial
government interest
ii. Plaintiff can rebut with evidence; it they do not then city
meet the Renton standard.
f. Indecency bans in the Communications Media
i. Overview
1. Profane/Indecent language not obscene
ii. FCC v. Pacifica (Captive Audiences)
1. FCC changes “patently offensive speech” with 1st prong of Miller
2. One letter because George Carlin monologue which uses F word.
Station had warning about the content.
a. Stevens - Low value which isn’t political speech, look to context
i. Television/Radio intrusion into the home and warning may
be ineffective
ii. Children at risk using semi nuisance rationale.
b. Powell Concurrence – Did not agree w/ classification system.
Place lacked space for physical separation
c. Brennan Dissent – Radio was affirmative action that
distinguishable from intrusion into the home.
i. Government cannot regulate/ban speech. Only available to
children which is protected for adults.
3. FCC has power to regulate radio broadcasts that are indecent but not
obscene (no use of Miller test)
a. Warning are insufficient; medium is available to children
iii. The Limits of Pacifica
1. Rowan v. U.S. Post
a. People take themselves off the list to receive certain material.
i. In own home, no problem with the regulation. People could
take their name of the list
1. Government did not ban speech but left it up to the
home owner’s discretion
2. Con Adult Public Service
a. Users can avoid by putting message in garbage. Case was
political advocating of nuclear power.
i. Limitation to Rowan to lower value speech, cannot ban all
advertisements.
3. Sable Communication Case
a. Dial a porn case where affirmative step to hear message.
i. Court found sexual expression but not obscene, therefore
invalid regulation.
ii. Medium required listener to take steps to receive the
information (no captive audience)
1. Other least restrictive means to keep children out.
4. Denver v. Playboy Case
a. Discretion for cable operator to ban programs with sexually
explicit
i. Court Found Analogous to Pacifica; protecting children
ii. Government can allow cable operators to prohibit
broadcasting programs
iii. Government can’t require the cable systems allowing
material to segregate it to single channel and block said
 channel unless viewer requires it.
iv. Playboy Case – use less restrictive means – content based
yields SS.
1. Regulation, however very burdensome. Content-based
burdens must satisfy SS just like content-based bans.
iv. Reno v. American Civil Liberties Union
1. Act made it a crime to transmit obscene or indecent messages to any
recipient under 18 & prohibited the knowing sending or displaying of
patently offensive messages in a manner that is available to a person
under 18
a. Unconstitutional under SS because content based
b. Statute did not define indecent or require patently offensive
i. Government cannot restrict speech available to adults so as
to safeguard children.
v. Ashcroft v. ACLU
1. Indecency case where court rejected argument that the child online
protection act was unconstitutional on its face simply by virtue of its
use of community standards to identify material that is harmful to
minors.
a. Standards – contemporary community standards, need not be
defined by reference to a precise geographic are, the standard
does not change just because the material is published
everywhere
vi. Indecency Regulation on the Internet After Reno
g. Commercial Speech
i. Virginia Pharmacy Board v. Virginia Citizens Consumer Council
1. Listener’s right to receive information. Pharmacist wanted to publish
ads about the prices of prescriptions.
2. If right to advertise, then there is an adjacent right to receive
advertising.
a. Speech does not loose protection b/c money was spent to project
it.
3. Scrutiny
a. Speech is lawful and not misleading
b. Substantial Government interest
c. Directly and Material fits goal
d. Reasonably Fit (NT) – not rational basis w/o SS.
i. Elements of narrow tailoring.
ii. Commercial Speech and 1st Amendment Theory
1. Bolger v. Young Drug Products Corp:
a. Court invalidated a federal statute prohibiting the mailing of
unsolicited advertisements for contraceptives.
2. Board of Trustees, State University of NY v. Fox
a. Promotional speeches at student run Tupperware parties were
commercial speech even though they pitched other topics in
addition to the sale of Tupperware
i. If you have mixed speech – governed under the commercial
speech test – Central Hudson
ii. Intermediate scrutiny; not least restrictive but at least
narrowly tailored.
1. State must affirmatively establish the reasonable fit
between legislative ends and means
iii. Commercial Speech After Virginia Pharmacy
iv. Standards of Scrutiny for Commercial Speech
 v. Central Hudson Gas v. Public Service Comm’n
1. Commercial speech – expression related solely to the economic
interest of the speaker and its audience
2. TEST FOR COMMERCIAL SPEECH: (under IS)
a. Whether the expression is protected by the first (concerns lawful
activity and is not misleading)
b. Whether the asserted governmental interest is substantial
c. Whether the regulation directly advances the governmental
interest asserted
d. Whether it is not more extensive than is necessary to serve that
interest
i. State interest – conserving energy
ii. Here the regulation did not pass the 4th prong because it
was a total ban
vi. Commercial Speech Regulation After Central Hudson
1. Metromedia v. San Diego:
a. Ct struck down an ordinance regulating the placement of
noncommercial billboards, but made clear that portions of the
ordinance banning offsite commercial billboards would be
permissible
2. City of Cincinnati v. Discovery network:
a. Ct held that commercial speech may not be treated differently
than non-commercial speech for aesthetic or safety purposes in
the absence of distinctively commercial harm
i. Government interest – safety and attractive appearance of
its streets and sidewalks
ii. Here the law was unconstitutional because the cities
interest in safety and aesthetic was not sufficient because
free newspapers did not effect safety and aesthetic more
than regular newspapers.
3. LAPD v. United Reporting:
a. Becomes an access case – refusal to sell arrest records to some
parties
b. Ct rejected a facial attack on a state law that permitted arrest
records to be disclosed for scholarly, journalistic, political or
governmental purposes, but not in order to sell a product or
service.
vii. Rise and fall of the vice exception: (vice – drinking, smoking, gambling)
1. Posadas De Puerto Rico v. Touris, Company:
a. Applying the 4-step test of Central Hudson, the Ct upheld a
Puerto Rico law prohibiting gambling casinos from advertising
their facilities to residents of Puerto Rico
i. this has been overruled
2. Us v. Edge Broadcasting Co:
a. Ct upheld a federal statute prohibiting the broadcast of lottery
ads exception in stations licensed to states that conducted
lotteries.
i. governmental interest --- supporting the antigambling policy
of certain states
3. Rubin v. Coors Brewing Co:
a. here the law had too many loopholes and exceptions – the law did
not apply to all alcohol, only labels
b. Ct decisively rejected any notion that there is a vice exception to
the protection of commercial speech
 i. The regulation must directly advance to a material degree
the state interest.
viii. 44 Liquormart, Inc. v. Rhode Island
1. ESTABLISHES THAT THERE IS NO VICE EXCEPTION – use Central
Hudson for All Commercial speech
a. Overrules Posadas in stating that the:
i. Ct will not accept the state’s contention that it may ban
liquor price advertising because it may ban the sale of
alcoholic beverages outright.
ii. Banning speech may sometimes be far more intrusive than
banning conduct
iii. Commercial speech can be regulated to prevent commercial
harms; however, the danger here is moral harm, therefore,
the law is unconstitutional.
ix. Commercial Speech Regulation after Liquor mart
1. Gluckman Case (Compelled Commercial Speech)
a. Fed requires growers of fruit to have generic advertising.
i. Speech did not amount to compelled speech
b. Dissent – Government fails to show that mandatory speech was
better than private protected speech.
2. New Orleans
a. Ban on gambling advertising in radio broadcast
i. Met prongs 1 & 2; Failed prongs 3 &4 b/c of other adequate
alternatives
1. Other reasonable alternatives were available which
didn’t involve speech.
3. Lorillard
a. Ban on snuff and cigar advertising
i. Failed on the 4th prong because the effect is a total ban on
advertising; not narrowly tailored.
4. Thompson
a. Compound drugs case which bans advertising on a particular
drug
i. Again fails the 4th prong (matter of degree particular to each
justice)
ii. Regulated speech must be the last resort (not the 1st)
3. GOVERNMENT REGULATION OF SPEECH
A. DISTINCTION BETWEEN CONTENT-BASED AND CONTENT-NEUTRAL REGULATIONS
i. Content neutral = intermediate scrutiny (O’Brian, Time, Manner, Place)
ii. Content Based = Strict scrutiny
1. Mosley Case
a. Law lets peaceful picketing but made other picketing illegal
i. Strict Scrutiny - Either allow picketing or no picketing
2. Simon v. Schuster Case
a. Criminals who write book about crimes must put proceeds in
Escrow account
i. Strict Scrutiny – Fails b/c over inclusive. Only income
restricted was income derived from expression.
ii. Kennedy Conclusion – Went through unprotected speech
and exhausted the list, therefore law is per se invalid.
3. Burson v. Freemen
a. Picketing or signs within 500 feet of a polling place
i. Justified law by passing strict scrutiny, which targets political
speech.
 ii. 2 competing interests; right to vote and right to speak.
4. White Case
a. Judicial candidates were not allowed to speak of their political
views.
i. Clear strict scrutiny case which lacks narrowly tailored prong
ii. Minority of court stated that this passes SS.
5. Speaker Restrictions
a. Not considered equivalent of content restrictions so long as the
ground on which speakers are classified can be described as
some aspect of their status independent of their beliefs/ points of
views.
6. Boos v. Barry
a. Not permitted to have signs or people outside a foreign embassy
SS
i. Not narrowly tailored; other alternatives available
ii. Fails secondary effects because it is not the listeners
reaction.
1. ESTABLISHES – that 2dary effects are not the reaction
of the listeners, but attendant crime.
2. 2dary effects is CONFINED to sexually explicit --
Renton
a. Ordinance was obviously content-based –
government prohibited an entire class of speech –
displays critical of foreign government.
B. CONTENT-NEUTRAL REGULATION AND SYMBOLIC CONDUCT
i. United States v. O’Brien
1. 1965 Amendment and selective service law – burned draft card and
punish for knowingly destroying any such draft card
a. Rule – when speech and nonspeech elements are combined in the
same course of conduct, a sufficiently important governmental
interest in regulating the nonspeech element can justify
incidental limits on 1st amendment freedoms.
i. 4-part test for Symbolic Speech:
1. Within the constitutional power of the government
2. Need an important or substantial justification
3. Interest is unrelated to the suppression of free
expression
a. KEY ELEMENT – if it is related, it has failed the
O’Brien tests and must now pass SS.
4. The incidental restriction is no greater than necessary
to serve that purpose.
a. This is IS – do not have to employ the LRA
b. If the law passes the test, IS – if the law fails – SS
b. Part 3 is the hardest to meet
i. This test should be used when there is a content-neutral law
that is aimed at or related to the suppression of expression.
ii. Must decide if the conduct or speech is the predominant
factor.
iii. The court will not conduct a motive review.
ii. Significance of O’Brien
1. Arcara v. Cloud Books
a. Closed Adult book store b/c of nuisance – upheld closing because
looked at crime, not place
i. Ex. Could close school with prostitution
ii. Incidental restriction.
 iii. Nuisance case b/c regulates conduct, not speech.
iii. Flag Burning & Nude Dancing
1. Holder Supplement Case
a. Aid to foreign terrorism organizations – lawful activity
i. Went to court with speech, not conduct = strict scrutiny
b. Held – Actions still give material aid to terrorist organization.
i. All justices agreed that government had compelling interest
c. Dissent: Advocates need mental state of knowing they will assist
a terrorist organization
2. Street, Spence, & Smith Cases
a. Flag burning laws held invalid. Question was whether government
can find sufficient interest to ban flag burning
i. Court held No.
1. Street case because letting non salute for religious
reasons
2. Smith case because law to mutilate flag was too vague
in statute.
ii. Dissent – (Rhenquist) – unique physical object needing more
protection
1. Problem w/ dissent – Flags are an item available on the
public market
2. Symbol == intent to convey a message that was in
surrounding circumstances likely to be understood.
a. Ask this question before applying O’Brien test.
3. US v. Eichman
a. The ct invalidated the Flag Protection Act of 1989, which omitted
the word public.
i. Relatedness (the 3d prong of O’Brien) was found because:
ii. The law protected a symbol, which is a statement of
something
iii. The law concerns disrespecting the Flag; therefore, it is
aimed at expression.
iv. Texas v. Johnson
1. Republican national convention where flag was burned as protest of
foreign policy.
a. Strict Scrutiny – First apply Spence test of symbol then ask
whether O’Brien test is satisfied
i. Cannot stop conduct because expression in either
application or form
b. Government interest
i. Breach of peace that fails b/c Brandenburg test
ii. Protection of flag as symbol that fails because law doesn’t
protect flag but instead inhibits speech.
c. Jump off O’Brien test in 3rd prong to use SS (Cohen)
i. Government cannot proscribe what will be orthodox.
ii. Preferred method – more speech, not criminalization
d. Dissent (Rhenquist)
i. Could have expressed message differently = inadequate.
ii. (Stevens) – Just conduct therefore no speech; excuse
element
1. Could have been prosecuted under Arson/Theft.
v. Aftermath of Texas v. Johnson
1. Federal law passed banning burning which was challenged in
Eichman – Law loses because overbroad government issue
 a. Probably better chance if punish private acts that must adhere to
explicit rules.
vi. Nude Dancing
1. Barnes Case
a. Ban of public nudity, not banning public dancing with general
rule.
i. 3 Justices (Rhenquist view) – Use O’Brien and say not
related to expression.
1. Problem – as applied targets expressive conduct.
2. Really a nuisance problem.
ii. Scailia – Uses point that law of general applicability is not a
1st Amendment concern
b. Dissent (Souter) – Secondary effects (not zoning case)
c. Dissent (White) – Different than public with no government
interest because people pay and choose to send message.
2. Three possibilities based on 2dary effects:
a. Zone – Renton
b. Nuisance – close establishment down
c. General Ban – Criminal Court
3. Erie Case
a. 4 justices say secondary effects argument
b. 2 justices say conduct meaning no 1st amendment issue
c. Souter – Secondary effects, now extend secondary effects from
just zoning to a total medium ban.
C. GOVERNMENT’S POWER TO LIMIT SPEECH IN IT’S CAPACITY AS LANDLORD, EDUCATOR, EMPLOYER AND
PATRON
i. Speech in Public Forums and other Government Property
1. Three categories of public forum
a. Traditional public forum
b. Designated public forum
c. Non-Public forum
ii. Traditional Public Forum
1. Streets, Signs, Parks
a. Hague Case (Holmes)
i. Items which have been immemorially been held in trust for
the use of the public w/ purpose of assembly.
2. Speech Protection = View only as ban on medium itself
a. Guarantee Access Rights ---- Equal access rights
i. Neither view is superior.
b. Hauge/Saia Case
i. Permit for speaking or using loudspeakers – Reasonable TMP
regulation
1. Court said that loudspeakers were indispensible – take
away loudspeaker to silence labor unions.
c. Cox Case
i. Permits must be objective and take discretion away from
police. Court upheld permits because on application law was
RTMP regulation
d. Schneider Case
i. Ban on distributing leaflets because of littering problems.
1. Court held reason was insufficient to uphold statute
a. Alternative methods of preventing littering
available.
b. Means/Ends test with slight sense of SS.
 2. Ct establishes that a city must allow speech on its
property, even if doing so will imposes costs on the
city
e. Martin Case
i. Door to door leaflets handed out.
1. Held that it was the only way to help minority speech
because they cannot afford to write newspapers.
a. *Homeowner can prevent with no solicitation sign.
f. Kovacs Case
i. Loudspeaker regulation that made it impermissible when
sound was a certain decibel level.
ii. Ct upheld an ordinance regulating loudspeakers because it
only applied to a loud and raucous volume.
1. Reasonable TPM
iii. Black Dissent quote on 997 – All instruments of
communication cannot be banned.
g. City of Ladue v. Gilleo
i. Ban the posting of most signs in order to minimize visual
clutter w/ 10 exceptions
1. 10 exceptions means content-based regulation and
thus subjected to SS.
2. Holding:
a. Overbroad limitation of too much speech
b. Traditional protection of home
c. No adequate alternatives of speech.
h. Watchtower Case (1996)
i. Permit required to go door-to-door w/ exceptions – bans too
much speech
1. Historical importance rationale w/ least restrictive
scrutiny
2. Interest in privacy or crime provision can be handled
with alternative means.
a. Banned both commercial and noncommercial
speech; if just commercial possibly ok.
iii. Reasonable TMP Test
1. Public order/safety are justifications for RTMP regulation.
2. Cox v. Louisiana
a. Ct invalidated a breach of peace conviction arising from a civil
rights demonstration near a court house
i. Obstruction of passageway was illegal and not upheld
because too broad.
ii. Here the statute had not been applied even handedly, the
statute did not provide any standards for determination of
which to permit and therefore allowed the officials to have
uncontrolled discretion.
3. Heffron Case
a. Booth regulation prohibiting sale or solicitation w/o booth permit
b. Not traditional public forum; Applied RTMP regulation
i. Needs to be content neutral
ii. Needs to have significant government interest
iii. Needs to have ample alternative channels for
communication.
1. *Note – No least restrictive alternatives in test.
c. Brennen Dissent -
 i. Ban on total medium is impermissible
ii. More attuned to earlier cases (Speech protective
1. Modern approach is a question of where the speech is
taking place.
iv. Aesthetics – Total bans may be ok (white) because of reasonable TMP
regulation
1. Members of City Council v. Taxpers of Vincine
a. Distinguish from Schneider because conduct is immediate
whereas the light is an ongoing problem
b. Signs light is source of evil not the speaker or conduct.
c. Holding
i. Adequate alternatives for lawful communication exist.
ii. No Access right to government property; government own
pole and can restrict it.
iii. Category III Forum; no need for RTMP regulation but only
reasonable and content neutral.
d. Dissent
i. Burdens little people and no reasonable alternative exists.
ii. Total medium ban – subjective suppression and total ban
“pleasing the eye”
iii. Not part of bigger scheme but infringes on 1st Amendment.
2. Clarke v. Community for Creative Non-Violence
a. Prohibit camping on Whitehouse lawn – Question was whether to
use O’Brien or RTMP (symbolic speech)
i. Government interest – wear and tear on government
property b/c all groups would come out and camp.
ii. Upheld b/c satisfied O’Brian test
3. Distinction between Tests
a. O’Brien government interest cannot be related to speech.
b. RTMP – related to oral or written expression.
i. Content Neutral either on application or on it’s face.
ii. Narrowly tailored; not lest restrictive alternatives
iii. Other available alternatives; Significant Government
Interest
d. Tranquility, Privacy And Response
1. Greenbourgh Case
a. Soundboard tax of Public Park; least restrictive alternatives.
2. Fritz Case
a. Ban of focused picketing – found significant interest with
adequate alternatives.
i. Case was held as captive audience in their home.
ii. Had to limit to focus picketing; flat ban would fail.
3. Street – gov. can regulate using RTPM:
a. Must be content neutral
b. Must have substantial govern. Interest
c. Ample alternatives for speaker (it does not matter that the
regulation bans the most effective medium)
i. A street does not lose its classification as a traditional public
forum simply because it runs through a residential
neighborhood
d. Dissent (Brennan) – Makes least restrictive means argument;
improper analysis under RTMP
4. Madsen v. Women’s Health
a. Abortion injunction/Buffer zones
 i. Applies to only 1 place with 1 circumstance. Took place on
street so public forum
ii. -> Injunction is regulation, therefore subjected to RTMP
iii. Court decided to do strict RTMP analysis; said patients are
pseudo-captive audience.
b. Case was dirty hands defendant because they already violated
the law
c. Noise violation upheld because impairs government interest
d. Signs violation invalid because patients can avert eyes; captive
audience more protected from noise than sight.
i. Invalid part of approaching because burdens too much
speech
e. In determining content- neutrality, the Ct looks to the
governmental purpose as the primary consideration
i. Dissent
1. – Use Strict Scrutiny because whole group was target
= content based
2. Identify of speaker = Proxy for viewpoint.
5. Schenck v. Pro-Choice Network of Western NY:
a. Here the injunction created fixed buffer zones and floating buffer
zones; ct upheld the fixed, but invalidated the floating
6. Hill v. Colorado
a. Abortion Injunction which listed problem with protest education
i. Dissent – This list means other means are permissible =
content based limitation (SS)
b. Majority – Content neutral with significant government interest of
persons right to get abortion + privacy rights + access to facility
i. Curtilage of health facility is apparent exception.
e. Invalid Time, Place Or Manner Regulation
1. Speaker Access to Public Places other than Traditional Public Forum
a. 2 Viewpoints
i. Whether speech is compatible with principle use
ii. Categories of property with different rules.
ii. Libraries, Jails And Schools
1. Brown v. Louisiana
a. 5 Black people kicked out of library charged with breach of peace.
i. Public forum analysis labels library as category III invalid
law.
2. Adderley v. Florida
a. Jail case where people backed in to convict based on trespass.
i. Black – Government has right to designate use of the
property
1. Not traditional public forum = category III
a. 1) Reasonable
b. 2) Viewpoint neutral
2. Consumed with idea that conduct is not speech.
ii. Dissent – Douglas limits trespass to areas – adjust right of
petitioner with use of facility
3. Grayned v. Rockford: (schools)
a. Ct sustained an ordinance barring a demonstration near a school.
b. TEST – whether the manner of expression is incompatible with the
normal activity of a particular place at a particular time.
i. For reasonableness – court must look to the communication
involved
 ii. Regulation must be narrowly tailored to further legitimate
interest.
1. Expressive conduct may be prohibited if it materially
disrupts the class work or involves substantial disorder
or invasion of the rights of others.
iii. Here the ordinance was narrowly tailored to further the
city’s compelling interest in having an undisrupted school
session conductive to the students’ learning and does not
necessarily interfere with 1st amendment rights.
iii. Buses, Theaters, and Military Bases
1. Lehman Bus Case
a. Ban political ads but allow commercial ads on buses. Government
role has changed to enter a commercial venture (Proprietor)
i. Test: Can be content based when commercial actor; not
traditional public forum, instead limited forum
1. Valid for limits of commercial property only.
2. Southeastern Case
a. Prior restraint on theatre –
i. Labeled as designated forum (Cat II)
ii. Must have some objective criteria for turning people down.
iv. Traditional, Designated and Nonpublic Forums
1. Greer v. Spock
a. Military base category III case
b. Brenan Dissent – Not categories; should view the nature of
property and say what is permissible
2. US v. Albertini:
a. The air force base had not become a public forum merely
because the general public had been invited on that day
3. Postal Case
a. Mailbox case saying illegal to give mail w/o stamp
i. Category III property w/ no 1st Amendment rights
ii. RTMP analysis is unnecessary
4. Perry Education Case
a. Union has exclusive access to teachers mailbox; Rival union
brings suit
b. School has created mailbox for teachers
i. Court listed mailbox as category III and restriction is
reasonable
ii. Selective access to category III is permissible
1. Can make distinction on speaker/issue identity.
5. Cornelius Case
a. Forum of charity which allowed some groups to ask for money but
excluded other groups
i. Labeled as category III with government interest as
employer and minimizing distinction in work place.
1. The gov cannot create a public forum by inaction or by
permitting limited disclosure, but only by intentionally
opening a nontraditional forum for public disclosure
ii. Limitation was both reasonable and viewpoint neutral.
1. Speaker Distinction so long as the distinctions drawn
are reasonable in light of the purposes served by the
forum and are viewpoint neutral
b. Kennedy Concurrence - TPM fails on reasonableness – protection
of public places where traditional modes of speech take place.
 6. US v. Kokinda:
a. Ct upheld a postal service prohibition of soliciting contributions on
postal premises.
i. Here the sidewalk was only open for people going to the
post office – the ct stated that use of an area that seems to
be a sidewalk does not necessarily assure the most careful
scrutiny.
1. the postal sidewalk was a category 3
ii. the regulation was VP neutral and reasonable
1. the fact that entryways are open to the public does not
establish that such areas must be treated as category
1
iii. Governmental actions are subject to a lower level of 1st
amendment scrutiny when the gov. is not acting as
lawmaker but rather as proprietor
7. Airport Case – International Krisha
a. 1992 before 9/11 – Airport solicitation and distribution case
b. Solicitation has anti fraud component making it different
i. Subject to less reasonable TMP requirement – like rational
basis.
ii. Airports are commercial establishment and nonpublic
forums.
1. Ban upheld because duress/fraud – limited solicitation
to outside sidewalks.
iii. Court invalidated the provision disallowing distribution of
literature.
c. Dissent – open public places subject to discourse = public forums
i. Look to use of property to see if forum is public
8. Arkansas Case
a. Exclude 3rd party from PBS show even though candidate was on
the ballot
i. Held as category III which has selective access ability
1. The gov. does not create a cat. 2 when it does no more
than reserve eligibility for access to the forum to a
particular class of speakers, whose members must
then, as individuals, obtain permission to use it
2. gov must intend to make the property generally
available to a class of speakers
ii. Kennedy – The law was based on objective support
b. Dissent – Law includes too much discretion
c. Answer to case is Cornelius (selective access)
9. Library Case
a. Federal Money = Filter system that allows people to access only
parts of the internet
i. Held as category III b/c internet access isn’t forum b/c
editorial discretion
1. People can ask to unblock if of Age.
v. Religious Speech on Public Property
1. Supplement Case
a. Hasting college of law policy of limited forums
b. Had all comers policy where every member could join every club.
Christian group had bad faith clause that was against school
policy.
i. Conelius Anaysis as category III selective access forum.
 ii. Rule was viewpoint neutral.
2. Widmar v. Vincent
a. Student groups of state university wanting to use forum for
worship
i. Court agrees that this is content based discrimination (SS)
ii. Different from Conelius because they created a generally
open forum
1. Stevens – Not viewpoint discrimination but wide
amount of latitude to university
2. School does not distinguish between speech + prayer /
worship.
3. Lamb’s Chapel Case
a. School leases out property to make money; then excluded to rent
to religious groups
i. Held unconstitutional because generally open forum with
viewpoint discrimination
4. Good News Case
a. Ct held unconstitutional a district’s refusal to allow the Good
news club to hold weekly after school meetings for elementary
school students in order to sing religious songs, hold bible
lessons, and memorize scripture
5. Capitol v. Pinette
a. KKK wanted to erect cross in public park
i. Private religious speech is protected in public forum.
6. Pleasant Grove
a. City accepted private donation of monuments and put them in
public parks (Eagles club gave 10 commandments)
b. Other groups wanted to give 7 commandments tab
i. New Rule – Permanent monument is government speech not
tested under free speech clause.
1. Government message can be different than donor’s
message.
2. View on monument was history not religion.
vi. First Amendment Access Rights to Private Property
1. Property owners of private property need to let in picketing. Private
property includes right to restrict.
a. Amalgated food employees v. Logan valley:
i. Ct held that a state trespass law could not be applied to
enjoin peaceful union picketing of a supermarket in a
privately owned shopping center.
ii. The ban on picketing could not be justified on the ground
that picketing constituted an unconsented invasion of
property rights.
b. Lloyd Corp v. Tanner:
i. Ct held that a shopping center ban was constitutional as
applied to anti-war leafleteers.
ii. Distinguished from Logan Valley – in that case the union
picketing was related to the shopping center’s operations
and the store was in the center of a large private enclave
with the consequence that no other reasonable
opportunities to convey the picketer’s message existed.
1. Here the handbilling had no relation to any purpose for
which the center was built and being used and
alternative methods of communication were available.
c. Hudgens v. NLRB:
 i. Announced that Lloyd had overruled Logan Valley.
ii. Involved labor picketing of a store in a private shopping
center.
iii. The constitutional guarantee of free expression has no part
to play in a case such as this
vii. Speech in public Schools
1. Tinker Case
a. Black armband case in protest to Vietnam war – School board test
was specifically for one symbol which would not pass any test b/c
viewpoint discrimination
i. Test: Materially disrupt class work or involves substantial
disorder
ii. Case has never been overruled.
2. Pico Case
a. Parent organization restricting books from library
b. Brennan – Remove books for motivation reasons of vulgar or not
educational
i. Suitability  Will not get involved for curriculum matter.
c. Right to receive information was not majority; only 3 votes
i. Dissent (law) – Constitutional rule that schools K-12 teach
value lessons, which give schools more discretion (Good
Citizen etc.).
1. Adequate alternatives exist because books are
available elsewhere.
2. Closer to curriculum means 1st amendment attenuates
and government interest increases.
3. Fraser Case
a. Speech given, which was lewd – held ban on actions
constitutional.
i. The undoubted freedom to advocate unpopular and
controversial views in schools and classrooms must be
balanced against the society’s countervailing interest in
teaching students the boundaries of socially appropriate
behavior
ii. Distinction from Tinker was sexual content
4. Kuhlmeier Case
a. Educators are entitled to exercise greater control over school-
sponsored publications, theatrical publications and other
expressive activities that students, parents, and members of the
public might reasonably perceive to bear the imprimatur of the
school.
i. Reasonably related to goal the constitutional.
ii. This is appropriate for schools because of non-public forum
(Cat III) rational basis criteria.
iii. Part of curriculum which pulls away from Tinker
5. Morse v. Frederick
a. “Bong hits for Jesus” sign why torch was passing during school
trip; outside school grounds
i. Said that principle was reasonable in their interpretation.
ii. During school hours which made speech unprotected
because school environment
iii. This was reasonably related to legitimate government
interest.
viii. Speech and Association by Public Employees and Contractors
 1. Pickering v. Board of Education
a. Teacher wrote article criticizing board for spending method.
b. Issue was can speaker either as employee of government or as a
private citizen.
i. To be government employee, must be speaking about
matter of public concern.
ii. Balancing test – Employer purpose and effect of the
employee speech on that purpose against the employee’s
right to free speech
ix. Public Employee Speech
1. Connick v. Myers
a. Court said matter was public concern whas whether idea is
newsworth and people whol pay attention
i. Rejects Tinker Test and adopts balancing approach
1. Closely working relationships = defer to employer
2. Deter government employee speech is allowable
downside.
b. When an EE’s speech contributes to his discharge, the court’s
task is to seek a balance b/w the interest of the EE, as a citizen, in
commenting upon matters of public concern, and the interest of
the state, as an ER, in promoting the efficiency of public services
it performs through its EE
i. Whether an EE’s speech addresses a matter of public
concern must be determined by the content, form, and
context of a given statement
ii. The when, where, and how
x. Pickering vs. Connick
1. Brankin Case
a. Employee at law enforcement office said something about
wanting Regean to die at assassination attempt. Talking in
private conversation where 3rd party overheard.
i. Court said speech was constitutionally protected because it
was not newsworthy and did not disrupt workplace
enviroment
1. Persons job description was non policy making and not
enforcement
2. Waters v. Churchill
a. A public employer does not violate the 1st amendment if it fires an
employee for what the employer reasonably believed was speech
on a matter of private concern, even if that belief turns out to
have been mistake
i. more employer friendly than Rankin – RB test
3. National Treasure Case
a. Stevens Majority – Matter of public concern = tinkering balanzing
test
i. Test = interest of citizen v. federal interest (Prevention of
impropriety)
b. Court doesn’t buy government interest because exemption
allowing some speakers
i. Case was won as citizen speaking of matter of public
concern.
4. Gardetti Case
a. DA wrote memo saying search warrant had major
misrepresentation
 i. Held as speaking in official capacity; therefore not private
citizen speaking of public concern.
1. When speaking as official it is not public concern but
rather employer concern.
5. Brentwood Academy
a. Private school with coach actively recruiting in violation of state
law.
i. Because school joined athletic association conduct is
impermissible.
ii. Held as citizen speaking with public concern; however case
where government interest outweighs citizens rights.
xi. Public Employee Political Party Affiliation
1. Hatch Act – Work for government makes participation in political
campaigns limited
a. Elrod v. Burns –
i. Rejected Argument of political loyalty – Can use least
restrictive alternatives by limiting patronage cases to
policymaking. SS
1. More conservative judge = more patronage.
ii. non-policymaking, non-confidential govt employees cannot
be discharged from a job that he is satisfactorily performing
upon the sole ground of his political beliefs.
2. Branti v. Finkel
a. Office of public defenders who were dismissing with other party
leaders.
i. Held – Public defender does not have policy concerns, ergo
dismissal of employees was improper.
b. the question is whether the hiring authority can demonstrate that
party affiliation is an appropriate requirement for the effective
performance of the public office involved.
3. Rutan v. Republican Party
a. Hire freezes of employees – Patronage practices even short of
dismissal or its equivalent.
i. Held that must be narrowly tailored to further vital
government interest = subject to strict scrutiny.
b. Ct held that SS is the test for patronage and held that the Std of
scrutiny is stricter in patronage than employment
i. Government must show that party affiliation is important.
4. Twin Independent Contractors Case
a. Switched over to use Pickering balancing test
b. Applies only to cases of termination
i. Independent contractors have less protection than
government employees
xii. Speech-Restrictive Conditions on Public Funds
1. Overview Penalties v. Non-subsidies:
a. Rule: government cannot condition a benefit on the requirement
that a person forego a constitutional right
i. Penalty – government may not use the leverage of a subsidy
to induce recipients to refrain from speech they would
otherwise engage in with their own resources.
ii. Non-subsidy – the government may refrain from paying for
speech with which it disagrees.
b. Rule: Government subsidies will survive 1st amendment
 challenges under the following circumstances:
i. Alternatives – if a physically separate entity or affiliate can
be established in order to pursue the recipient’s goals
(regan)
ii. Program – when the government appropriates public funds
to establish a program, it is entitled to define the limits of
that program (rust)
c. Government as speaker – when government itself is the speaker,
or using private speakers to transmit a government message
(Rosenberger)
i. Value/Decency & Competitive Process – no one knows what
all this can be applied to. (finly)
2. Speiser v. Randall
a. Vetrans have to sign pledge of no overthrow of government to
get exemption on property tax
i. Found law as unconstitutional penalty
3. Regan Case
a. If lobby, than cannot accept funds for tax-deductions
i. Held (Rhenquist) – Scheme was congressional subsidy; not
penalty
ii. Use of rational basis test absent viewpoint discrimination;
regulation was based on status not viewpoint.
b. Concurrence – Alternate group can be formed, therefore scheme
is alright.
4. FCC. v. League of Woman Voters
a. Limitation on grants not allowing PBS to editorialize - old rule of
fairness docrine making balanced media.
i. Applied intermediate standard of scrutiny
1. Narrowly tailored
2. Substantial government interest
ii. Held that regulation was not narrowly tailored.
5. Rust v. Sullivan (Abortion Case)
a. If take federal money in counseling, then cannot advocate
abortion
i. Construct of limiting ideas of project, not grantee
ii. Not required to accept project, can merely decline subsidy.
1. Dissent: Project includes viewpoint discrimination
iii. Alternatives still available for advocacy is important for
concurring judges.
6. Rosenburger Case
a. Mandatory student fees and clubs which exclude religious groups
from activity.
b. Government subsidized speech with created limited forum
generally open to expression
i. Difference was open forum.
ii. SS b/c viewpoint discrimination
1. Distinction between content discrimination, which may
be permissible if it preserves the purposes of a limited
forum, and on the other hand, viewpoint
discrimination, which is presumed impermissible when
directed against speech otherwise within the forums
limitations
iii. Distinguished from Rust because who conveyed the
message.
 1. Rule: - If government is paying, then may have
viewpoint discrimination.
a. Speaking via private actor = Rust.
c. In this case university was not speaking through private actor,
ergo impermissible viewpoint based.
7. Finley Case
a. Grant for arts needs artistic excellence and morals judged by
board; viewed under general standard of decency
i. Court found content based without SS because the statute
did not impose a categorical requirement, but merely takes
decency and respect into consideration.
8. Valazquez Case
a. Legal aid under restriction of helping indigent clients challenging
welfare laws.
i. Not government speech or transmitted through 3rd party,
therefore impermissible viewpoint discrimination.
ii. No Alternatives were available.
b. VP based funding decisions can be sustained in instances in
which the government is itself the speaker or instances, like rust,
in which the government used private speakers to transmit
information pertaining to its own program.
9. United States v. American Library
a. Cite Rust as way to do things via project/program.
b. When government creates program, it can define the limits of the
program.
f. IMPERMISSIBLE METHODS OF RESTRICTING SPEECH: OVERBREADTH,
VAGUENESS AND PRIOR RESTRATION
i. Overbreadth
1. Gooding Case
a. Swept in too much protected speech
i. Applied the test to law “on its face” rather than “as applied”
basis.
ii. Exception to rules of standing allowing 3rd parties to raise
rights of others.
2. Broadrick v. Oklahoma City University
a. Overbredth analysis of political contributions. Broadrick clearly
fits constitutional standard, however 3rd party would be injured
i. Must be substantial interference
ii. Facial overbredth for speech; more conduct = more
constitutional laws
1. Don’t use when limiting construction; look to law as a
whole
2. Don’t use for ordinary criminal laws.
iii. Ferber Rule – Must amount to more than tiny fraction.
3. Ashcroft Case
a. Virtual pornography law = substantially overbroad
i. Dissent: Should not be invalidated if can be construed in
narrow fashion.
4. Hicks Case
a. Challenge law of public housing – law must have legitimate
purpose.
b. Challenge was because too much discretion to police officers
i. Holding: Constitutional because law applied to all people,
 not just those speaking.
5. Schamberg Case (Solicitation Case
a. Reduce fraud/annoyance by restriction of solicitation to charities
spending over 75%.
i. Could not apply to public interest groups. Uses language of
least restrictive alternatives (SS)
6. Illinois v. Telemarket
a. Calling and advertising for veterans and made false statements
about where money goes.
i. Court said misrepresentation is not shielded by 1st
Amendment.
7. Massachusetts v. Oakes
a. Change laws while in judicial system; court says legislation
amendment doesn’t save law but narrow court interpretation will.
8. Houston v. Hill
a. Person interrupted officer, which was against law.
i. Brennen – Law was invalid because too much discretion
within the hand of the police officer
ii. Applied analysis as speech and not conduct.
1. When law is aimed at speech, it can be overbroad
because of too much discretion.
9. Jews for Jesus
a. Dumb law said all expression was banned.
b. 2 arguments
i. Say law is overbroad
ii. Say law is capable of limited construction.
ii. Vagueness
1. Coakes Case
a. Vague for walking or assemble for annoying conduct
i. Vague because no standard of conduct was established –
“On its face” application
2. Finley Case
a. Different role as patron rather than sovereign, therefore no
extension of vagueness.
iii. Prior Restraint
1. Lakewood Case
a. News racks on public property with approval –
b. Mayer has too much discretion and overbroad because no
guidelines
i. Rejection of mayor acting in good faith.
2. Freedman Case
a. Must submit copy of movie to board before selling
i. Long waiting time for city manager to approve/reject movie.
ii. Burden on proof was on Censor – Must immediately go to
court.
3. Dallas Case
a. License on sexually explicit where censor does not have burden
because censor business material not conduct
i. Invalid because no time standards.
4. Thomas Case
a. Permit in park for 50+ pelpe
i. Permissible TMP regulation and legitimate government
purpose
ii. Government said item had sufficient guidelines for
accepting/rejecting the application.
 iv. Licensing
1. Lovell v. Griffin (Licenses
a. City law not allowing distribution of literature without license.
i. City managers had too much discretion (Facially Invalid).
2. Standing when challenge licensing application
a. If statute is invalid on face, then permit is unnecessary.
b. If statute is invalid as applied to you, then must go to court first.
i. Poulos
1. Did not seek permit and went ahead with scheme –
went to jail because invalid as applied, not on it’s face.
v. Injunctions
1. Near v. Minnesota
a. Involves police officer periodical of police chief. Sets aside
injunction because limits
i. Recruiting service obstruction
ii. Sailing dates of cargo
iii. # and location of troops.
b. Walker view – Cannot defend contempt
c. Carroll view – Adversarial Hearing.
i. Must have an adversarial hearing before an injunction is
issued.
vi. Prior Restraint and National Security
1. New York Times Co, v. United States (Pentagon Papers)
a. Papers about Vietnam and policies during the war
b. Government argued that these papers were dangerous to
national security.
i. Holding – Government did not overcome presumption
(Heavy)
1. Douglas/Black – P-C, Congress did not give authority
via statue.
2. Brennen Concurrence – For government to satisfy prior
restraint, government must satisfy clear/present
danger test
a. Substantial
b. Inevitable, direct, and immediate danger.
c. There is no guaranteed access to the press; however, once the
press has access to information, they can publish it.
i. Blocking access is how the government gets around a prior
restraint
ii. At-war exception: prior restraints may be appropriate at
times of war, which is to be factually determined
1. Harlan Dissent – Courts have very narrow role because
foreign affairs.
d. Subsequent punishment may be allowed, but prior restraint is
greater fear.
vii. The Scope and Limits of Pentagon Papers
1. Progressive Magazine Case
a. Article of how to make atomic bomb – uses statutory basis of
atomic act.
i. District court says meets burden of proof because
immediate threat.
viii. Prior Restraint and Fair Trial
1. Snepp Case
a. Nebraska press- halted court information to protect defendant’s
 rights of not skewing the jury.
i. Lesser alternatives are available – use them
ii. Brennan – ultimate ban on prior restraint.
4. RIGHTS ANCILLARY TO FREEDOM OF SPEECH
A. COMPELLED SPEECH: THE RIGHT NOT TO SPEAK
i. Compelled Individual Speech
1. Barnette Case (Jackson)
a. Kids not wanting to salute the flag
i. Cannot proscribe an orthodox or belief
ii. Reasonable person of looking to message.
2. Wooley:
a. State law required automobiles to bear license plates carrying the
state’s motto, live free or die.
i. RULE - The right of freedom of thought, protected by the 1st
amendment, includes both the right to speak freely and the
right to not speak.
1. Consistent with subsidized speech cases – cannot
make them speak the government message if they do
not want to.
3. McFnrey Officer Election Commission v. Talley
a. Compelled identification – Talley ordinance of distributing
handbills must be labeled.
i. Void on it’s face. Identification requirement would tend to
restrict freedom of expression
4. McIntyre
a. Viewed as core political speech – History of anonymous
publication in federalist papers
i. Government interest in preventing fraud denied.
ii. If you have to attach your name à compelled speech
1. The right to speak anonymously is an aspect of the
freedom of speech protected by the 1st amendment.
b. Applies to leaflets and political messages.
i. When the law burdens core political speech, the court will
apply SS
5. Supplement Case
a. Anti fraud argument is better in petition cases because need to
be counted.
i. Narrow holding to distribution of literature, does not apply to
contributions over $500.
6. Red Lion v. F.C.C.
a. Fairness doctrine that was repealed, possible coming back. FCC
does not control newspaper.
ii. Compelled Access for the Speech of Others
1. Tornillo
a. No law that gives access to newspaper/leaflet. To present the
other side. Cannot compel speech.
2. Prunyard
a. California constitution allow access to shopping center
i. Owner legal issue: No state identity therefore government
discrimination did not occur.
3. Pacific Gas & Electric
a. Compelled access to envelope where pacific gas would present
documents with bill contrary to their own interest
i. Message is not content neutral and engages in viewpoint
 discrimination.
b. Rhenquist Dissent – 1ST Amendment should not be extended to
corporations.
4. Turner 1
a. Cable companies are compelled to carry local channels.
i. Intermediate scrutiny because content neutral.
ii. Exception to rule because FCC involvement
iii. Radio/Television have special rules.
5. Hurley Case
a. Did not allow gay group to walk together and carry their flag
i. State Court – Public Accommodation
ii. Supreme Court – Private organization that could not be
compelled to promote message of group
1. Parade has a message as a whole entity. Parade as a
whole was not public forum but instead private entity.
6. Rumsfeld v Forum
a. Law schools did not allow military recruiters because
discrimination
b. Law school cut off spending if they did not allow recruit
i. Spending Power
ii. Conduct was not speech and certainly not compelled
speech.
B. FREEDOM OF EXPRESSIVE ASSOCIATION
i. Overview
1. Flows from 1st Amendment – Private of Association (liberty) from 14th
Amendment
2. Difference is the basis of association via expression (political)
ii. Compelled Disclosure of Membership
1. NAACP V. ALABAMA
a. State investigating NAACP by attaching NAACP to communist
party
b. Wanted names/addresses of members in group
i. Rule (Harlan) – Stems from liberty in due process (14th)
ii. Group advocacy now protected different from equal
protection where protection was one person’s rights. 2 step
process
1. Associate with group
2. Compelled to disclose association
iii. Court made inference of intimidation and lower participation
iv. Strict Scrutiny: Different from speech where only
intermediate scrutiny.
2. Shelton v. Tucker
a. Teacher must list what organization he/she is a member of.
i. Held overbroad and now element of confidentially
ii. Compelled disclosure injures association.
3. Gibson v. Florida Legislative Investigation Comm
a. Ordered custodian to brim member list, offered to testify from
memory but not bring list
i. Added substantial connection (nexus) to the requirement
1. Show connection (substantial)
2. Compelling interest
a. Showed compelling interest but failed connection
component.
iii. Compelled Disclosure of Political Campaign Contributions
1. Buckley v. Valeo
 a. Disclose name of political contributions; different state interest
i. (SS) of Alabama case; interest of fraud/corruption which
outweighs association intererst.
ii. Applied SS and held that it was satisfied. Claimed no least
restrictive means then notifying the general public.
2. Brown v. Socialist (Minor Party)
a. Party was excused from reporting requirement
b. More minor/hated = more protections.
3. Citizens United Case
a. Disclosure requirement upheld because citizens right to know
extended also to corporate speech.
iv. Restrictions on Organizational Activity
1. NAACP V. Button
a. Lawyers solicitation business to individuals in NAACP; before
commercial speech so strictly forbidden.
i. Solicitation of services was type of political expression. ->
litigation was to vindicate constiutional right.
b. Not allowing would curtail peoples rights because they may not
know their rights are violated
i. Civil Rights Case; Different from normal case.
2. Brotherhood of RR trainmen v. Virginia:
a. Ct extended Button outside litigation involving constitutional
rights
b. Union steering people to certain attorneys
i. A state can no more keep these workers from using their
cooperative plan to advice one another that it could use
more direct means to bar them from resorting to the courts
to vindicate their legal rights
v. Meaning and Implications of Button
1. Extended with unions. Dissent points out that this is not part of
political expression.
2. NAACP v. Clayborne
a. Blacks boycott of white merchants which involved both violent
and nonviolent elements.
i. Nonviolent peaceful protected by 1st Amendment because
political conduct
ii. Violent aspect are prosecutable, however must have name
of actual violent offenders, not merely those who are
associated.
3. Longshoresman
a. Economic Secondary Boycott is not protected.
vi. Denial of Government Benefits Because of Association
1. Konisberg v. California
a. Denied from bar because refused to answer question – upheld
2. Elfbrandt v. Russel
a. Required specific intent to be prosecuted, cannot be prosecuted
merely because membership in organization
i. Must show individual has intent to advance the association’s
impermissible goal.
3. Stolar
a. Can ask whether member of group and then whether they have
specific intent.
vii. Compelled Association: The Right Not to Associate
1. Abood Case
 a. Public school teacher association fee for teacher who would not
joing the union - pay for someone else’s message.
i. Held: Right not to associate is apparent, must pay for
money toward collective bargaining.
ii. Does not need to pay for advancement of ideological
message.
b. Burden is on the dissenting employee to come forward and
identify his disagreement in order to obtain a rebate from the
union.
2. Davenport
a. Change burden to union, depends on state
b. No constitutional rule of burden.
3. Student Fees
a. Cannot hold paying for certain groups
b. Holds that Abood doesn’t work to opt out of mandatory student
fees.
4. Compulsory Fees for Advertising
a. Glickman Case
i. Association rights have no application because no message
of particular group and not prevented from individual
marketing
ii. Distinguish from Abood because no political message
implicated.
iii. Dissent (Souter) – Government can’t compel contributions to
non-political speech. Wants to apply Abood.
b. United States v. United Foods
i. Invalid federal law of compelling payment from mushroom
assessment.
1. Distinguish Gluckman – Not part of comprehensive
program; solely from advertising.
ii. Rule – Can touch upon areas if part of comprehensive
program.
c. Johannas Case
i. Disclaimed reliance of Gluckman case, no comprehensive
program in place, ergo move on to new rule
1. Compelled funding of government speech is
constitutional.
ii. Dissent (Souter) – No on recognized speech as government
speech
1. Fails reasonable observer test
2. No Accountability of government
d. None of three cases overruled; distinction made only on
government speech.
i. Absence of comprehensive scheme is not government
speech.
viii. Freedom of Association and Political Party Procedures
1. Steps of Violation
a. Engage in expression
b. Interfere with Association
2. Roberts v. Jaycees
a. All male business club where held public meetings in hotels.
Membership was very open except for gender.
b. Club ran afoul to anti discrimination laws.
i. Club has nothing to do with intimate rights (Lawrence v.
Texas), but does have non-absolute freedom of association
 1. Discrimination law was content neutral with compelling
interest
2. Woman guest at meeting hurt Jaycees case.
3. New York Case
a. Businessmen fell within 400 person anti discrimination law
i. Larger the organization, more susceptible to discrimination
challenges
ii. Look to see whether adding member to group would mutate
the message of the group.
4. Boy Scouts of America v. Pale
a. Gay pack leader wants to join and lead pack. Boy scouts say no
i. Court says scouts have own message of values, which
satisfies “engaging in expressive activity” prong.
1. Question was whether adding member significantly
interferes with this message.
a. Court deferred to boy scouts and ruled yes
C. FREEDOM OF THE PRESS
I. OVERVIEW
1. Modern day problem is deciding what qualifies as press.
2. Most cases are decided by the speech clause.
ii. Press Access to Government Information
1. Press Access to Prisons
a. Press wanted more access than public to interview inmates
i. Press access failed because no access right to prison.
b. KQED case
i. Press wanted access to prison to show shocking condition.
The sheriff held tours but no special access.
1. 3-1-3 court held no special access right to prisons.
2. Pretrial Hearings
a. Gannett Co v. DePasquate
i. Motion to suppress where public was not allowed to be
present for the trial; all parties indicated that they wanted
the press out.
1. Decided on 6th Amendment right to fair trial.
2. Powell (wrong) to say press has access to trial but not
the public.
a. Dissent – Right in saying all have access.
3. Criminal Trials
a. Richmand Newspapers
i. Trial in private does not guarentee rights of anyone
1. Holds public has right because judicial branch is 3rd
branch of government; goes to the function of
government
2. Implicit right of access; similar to SS
3. Closure rules, by trial judge, must show findings of
reasonable limitations.
b. Globe Case
i. Minor sexual assault victim, wanted to leave press out of
trial to protect the victim
1. (Brennan) – There is compelling state interest,
however they did not use least restrictive means. SS
c. Press Enterprise Case
i. Vordoir cases are subject to access; SS like trials.
d. Landmark Case
i. Commission investigating judges; tried prosecuting
 newspapers for printing information
1. Reversed conviction.
2. Where newspaper on the outside printing legally
obtained information, use clear and present danger
test.
iii. Governmental Demands for Information From the Press
1. Branzburg v. Hayes
a. Government wants press sources of information
b. Press argues that reveal sources will affectively dry up other
sources.
i. Grand jury entitled to any means of information; Press does
not have immunity where general public does not.
ii. Compelling Interest.
iv. Journalistic Privilege After Branzburg
1. Zurcher Case
a. Stanford Newspaper have picture of fight, government got search
warrant for press.
b. Court said 4th amendment question, not 1st
i. Case was never overruled, but states have shield laws
required at both federal and state level that require
subpoena.
5. THE RELIGION CLAUSES: FREE EXERCISE AND ESTABLISHMENT
A. OVERVIEW
i. Free Exercise clause + Establishment Clause
1. Sherbert – Substantial burden on exercise = Strict Scrutiny
a. Limited to unemployment cases
2. Targeting one religion is Strict Scrutiny
a. Haiyah Case
B. THE FREE EXERCISE OF RELIGION
i. Laws Discriminating Against Religion
1. When law targets specific religion, use SS
2. Torcaso Case - City made mayor take oath before office
a. Court said government couldn’t compel belief in God.
ii. Church of the Lukumi Babulu Aye v. City of Hialeah
1. Animal sacrifice case; Santeria religion preformed sacrifices which
were banned, however law was subject to exceptions.
a. Motive Review – Went behind the actual text of the law and see
reason.
i. Analogous to Alamo height equal protection claims.
ii. If establish via improper motive animus, the SS and
improper.
b. Strict Scrutiny applied
iii. Locke v. Davey
1. Washington constitution gave scholarships but excluded if person
went for theology major.
a. Court used rationale of permissible accommodation.
iv. Neutral Laws Adversely Affecting Religion
1. Broaunfield v. Brown
a. Mandatory clause of closure on Sunday, Jews said that Saturday
was their holy day and wanted to stay open on Sunday.
v. Sherbert v. Verner
1. Woman does not qualify for unemployment because religion
a. 1st – Compelling state Interest (SS)
b. (Stewart) – State must accommodate her
 c. Dissent (Harlan) – Still room for public accommodation
i. Sherbet is still law in unemployment cases.
vi. Wisconsin v. Yoder
1. Amish don’t want to send children to high school
2. Compulsory education = Generally applicable law.
a. Possibly modified by Smith
b. Amish win because sincerity of belief, burdens religion, therefore
strict scrutiny.
vii. Free Exercise Exemptions From Sherbet to Smith
1. Lee Case
a. Amish won’t pay social security because notion of self-providing
in community.
i. Burger – Applied strict scrutiny (Satisfied) – Compelling state
interest and no Alternative
ii. Stevens – Amish should win on Strict scrutiny, this is another
test.
2. Goldman Case
a. Military case where Jewish man wants to wear Yakama.
i. Rhenquist – Military deference because mission of military.
ii. Steven - Don’t just test against one religion, test against all
religion.
3. O’Lone Case
a. Prison case which Islam mad about working on holy time.
i. Reasonableness standard – Deference towards prisons.
4. Bowen v. Roy
a. Parents wouldn’t release social security number for food stamps
because they believed that would rob the soul of their daughter.
i. Under the free exercise clause, the government is not
required to behave in ways that the individual believes will
further his or her spiritual development.
5. Lying Case
a. Government builds road on Indian holy ground
i. Throws in idea of coercion (establishment clause)
ii. Holds that people’s rights are not mandated to be violated
by road.
viii. Employment Division, Dept. Of Human Resources v. Smith
1. Smoking Peyote and fired. Could not draw unemployment because of
bad behavior.
a. Distinguish Sherbert, Thomas, and Hobbie, because these cases
did not involve conduct general prohibited by law.
b. Holds that this is not a criminal law that targets a particular
religion - different in Hainley case where they had history +
exemptions
i. If targets, use strict scrutiny
2. Incidental Effects
a. Government action ok when burden on religion is not objects of
law but just incidental effects.
ix. Hybrid case
1. Other cases which win over other cases because involves other
aspects like freedom of speech or due process claims
a. Rejects using high scrutiny with generally applicable law because
gives too much power for individuals to write law
2. Correct outcome - Oregon should resolve via political process, not
 judicial system.
a. O’Conner – Carlone products footnote 4 – Politically weak party
x. Smith and Religious Exemptions
C. THE ESTABLISHMENT CLAUSE
i. Public Use of Religious Rituals or Symbols
1. Lemon Test – Style Case
a. 3 Prong Test
i. Law must have secular purpose
ii. Principle/Primary effect is not advancing or inhibiting
religion
iii. Not excessive entanglement of government aid for religious
purposes.
ii. Zorach v. Clauson
1. Students could attend religious classes of school grounds via release
by parents
2. Plaintiff argued “but for” state held (school) kids could not attend
school.
a. Prayer does not occur in school and no one is coerced to
participate in prayer.
iii. Prayer in Public Schools
1. Lee v. Weisman
a. Prayer at beginning of graduation ceremony; school took
precautions of allowing students to sit silently during
nondenominational
i. Limited to elementary/Secondary kids, not adults
1. Establishment clause Is limitation on government,
establishment if committed to private sphere.
ii. Coercion pressure; indirect because not penalized
1. Reasonable dissenter feels forced to participate
iii. Concurrence (Dissenter) – Coercion renders free exercise
null/void
1. Jefferson/Madison against prayer during Thanksgiving.
iv. School Prayere After Lee
1. Sante Fe v. Doe
a. Prayer at football games, student vote on service presence
b. Football games after school hours
i. Student initiated speech can still be official speech
ii. Objective student would see as endorsement of religion.
2. Good News Case
a. After school programs allowing groups to pray
i. Allowed because to disallow would be viewpoint
discrimination
ii. Not endorsement because private actor engaging in
religious speech.
v. Religion in Public School Curriculum
1. Public Schools -> No secular purpose and endorsing religious speech
a. Elk Grove Case
i. Pledge announcement of “one nation under god”
ii. Saying line isn’t endorsement of religion; instead it is a civic
message of loyalty.
vi. Edwards v. Aguillard
1. Bill saying that if taught evolution, must teach creationism in
classroom
a. Fails 1st Lemon prong because law does not have secular purpose
(Academic Freedom Fails logically)
 b. Not balanced treatment in application of law
i. Legislative history showed examples of religious beliefs.
ii. If fails one prong of lemon, flunks whole test
c. Powell/O’Conner Concurrence – Religious purpose must
predominate – extension of Arlington heights rule.
vii. Sunday Closing Laws
1. McGowan v. Maryland
a. Laws that force business to close on Sundays for day of public
rest
i. Admits origin in motivation for religious history, however
now have secular present day purpose of rest
viii. Legislative Prayer
1. Marsh v. Chambers
a. Chaplin opened each legislative session with prayer
i. No application of Lemon Test, history and tradition
grandfathers the procedure in (like money)
ix. Public Displays of Religious Symbols Outside the Schools
1. Lynch v. Donnelly
a. Nativity scene in private park of city, city owns the land
b. Traditional and in existence for a long time; official
acknowledgment of religion
i. Rejects strict application of separation between church and
state.
ii. Ok in context of holiday season – does not advance or inhibit
religion; only remote endorsement
c. Dissent (Brennen) – No secular purpose; Holiday aspect can be
reasonable accommodation, however cannot be religious
endorsement.
x. Public Religious Symbols After Lynch
1. Alesheny Case
a. Nativity schene standing alone was unconstitutional
b. Jewish symbol with secular sign = constitutional
i. 5 vote adoption of endorsement test
ii. Endorsement test: - Whether a neutral observer would
believe endorsement of religion.
2. Capitol Squar Review Board v. Pinette
a. Ku Klux Klan erects cross in park close to statehouse
i. Plurality endorsement test – Would a reasonable observer
believe; tough test
b. Allowed on free speech clause because content discrimination
i. Scalia – rejection of endorsement test – no attention to
reasonable observer
c. Possibly could do RTMP regulation
xi. McCreary County v. ACLU of Kentucky
1. 10 commandments put up one at a time, then with secular other
historical items
2. Added government purpose of history of legal code
a. Failed on 1st lemon prong of purpose
b. Different from stone b/c no captive audience of children
c. 3 Situations
i. Standing alone = purely religious
ii. With Purpose = fails because religious purpose
iii. History of tablets showing religious government purpose.
xii. Van Orden v. Perry
1. Texas state capitol when commandments have been up for 40 years
 with other secular items.
a. Rejected application of lemon test and instead focused on the
history
i. Breyer – Look to context of 20 other historical items, + 40
years of no opposition
ii. O’Conner – Violation of neutrality
iii. Souter – Monuments in capitol stand alone and reasonable
observer would see establishment.
xiii. Public Financial Aid to Religious Institutions
1. Everson v. Board of Education
a. School board passed law to give parents money to transport kids
to school, some money was given to catholic school
i. Black – cannot exclude parent transportation aid because of
religious preference.
1. Recipient of money should be parent not school
2. Wall of separation has been curtailed throughout time
3. Don’t look of actual recipients, but those who are
entitled to the benefit.
ii. *Broader Class = More constitutional
2. Mueller v. Allen
a. Tax deductions for school supplies, 95% of private schools
recipients were religious.
b. Use of lemon test
i. Secular + purpose because education interest
ii. Primary effect of advancing religion
1. Deduction to all parents, not just religious ones.
iii. No excessive entanglement
xiv. Aid to Parochial Education Since Everson
1. Mueller v. Allen
a. Minnesota allows taxpayers, in computing their state income tax,
to deduct certain expenses incurred in providing for the
education of their children.
i. Ct held that a state may reimburse parents for expenses
incurred in transporting their children to school.
1. The tax deduction must be made available to everyone
and it makes no difference who chooses to take
advantage of it.
b. Ct rejects the statistics that 90% of the deductions come from
religious private school tuition.
c. Ct is reluctant to find an unconstitutional purpose when a
plausible secular purpose for the state’s program may be
discerned from the face of the statute.
i. Private schools relieve public schools and taxpayers of a
great burden of educating children
ii. Where aid to parochial schools is available only as a result
of decisions of individual parents, no imprimatur of State
approval can be deemed to have been conferred on any
particular religion, or on religion generally.
xv. Religious Inclusion in Public Subsidies: Everson v. Mueller
1. Agostini v. Felton:
a. NY scheme à special education classes to students across the
board – teachers were paid by the state
b. KEY – make the aid available to everyone
c. Ct abandoned the presumption that the placement of the public
 employees on parochial school grounds inevitably results in the
impermissible effect of state-sponsored indoctrination or
constitutes symbolic union between government and religion.
i. There is no presumption of entanglement merely because
the public teacher is on private school property.
d. Establishment clause does not bar a state from issuing a
vocational tuition grant to a blind person who wished to use the
grant to attend a Christian college.
e. Where aid is allocated on the basis of neutral, secular criteria that
neither favor nor disfavor religion, and is made available to both
religious and secular beneficiaries on a nondiscriminatory basis,
the aid is less likely to have the effect of advancing religion.
f. a federally funded program providing supplemental, remedial
instruction to disadvantaged children on a neutral basis is not
invalid under the establishment clause when such instruction is
given on the premise of sectarian schools.
2. Mitchell v. Helms:
a. Ct upheld against an establishment clause challenge a program
that provided publicly funded computers and other teaching aids
to public and private elementary and secondary schools,
including parochial schools.
b. These aids are going directly to the school
i. Ensuring neutrality – whether any governmental aid that
goes to a religious institution does so only as a result of the
genuinely independent and private choice of individuals.
xvi. Zelman v. Simmons-Harris
1. Ohio tuition scholarships case
a. Aid:
i. Available to all schools
ii. Made available to parents, not school à private choice
iii. Better education when education is in a crisis
b. Purpose
i. Secular
ii. Broad
iii. Private choice
c. Rules:
i. Witters – rejected an Establishment clause challenge to a
vocational scholarship program that provided tuition aid to a
student studying at a religious institution
ii. Zobrest – rejected an Est. challenge to a federal program
that permitted sign-language interpreters to assist deaf
children enrolled in religious schools
1. The Ct is not interested in tracing the funds once the
money goes to the parents
2. KEY – neutral program offered to a broad array of
people
a. Neutrality and private choice – NOT interested in
the number of program beneficiaries attending
religious schools
2. Summary of Financial support:
a. Tax deductions
b. Computers on Campus
c. Special Education Teachers
d. Scholarships indirectly to schools
xvii. The Meaning and Implications of Zelman
 1. Locke v. Davey – Where a state declines to include religious schools
in a voucher scheme, the free exercise clause has not been violated.
a. Permissible area where establishment clause does not forbid or
compel.
2. Larkin v. Grendel’s
a. Rejected the idea that court could veto liquor license within 500
feet of church, rejection of license was state power, not church.
xviii. Accommodation of Religion

FCC. V. WISCONSIN RIGHT TO LIFE

Facts of the Case:
Wisconsin Right to Life (WRTL), a nonprofit political advocacy corporation, ran three advertisements
encouraging viewers to contact two U.S. Senators and tell them to oppose filibusters of judicial nominees.
WRTL intended to keep running the ads through the 2004 election, but the Bipartisan Campaign Reform
Act of 2002 (BCRA) prohibits corporate funds from being used for certain political advertisements in the
60-day period prior to an election. WRTL sued the Federal Election Commission (FEC), claiming that the
BCRA was unconstitutional as applied to the advertisements. In 2006, the Supreme Court let the "as
applied" challenge proceed (see Wisconsin Right to Life v. Federal Election Commission, 04-1581). In
McConnell v. Federal Election Commission, the Court had upheld Congress's power to regulate "express
advocacy" ads that support or oppose political candidates, but WRTL claimed that its ads were "issue ads"
rather than express advocacy. WRTL also argued that the government lacked a compelling interest
sufficient to override the corporation's First Amendment free speech interest. The FEC countered that
WRTL's ads were "sham issue ads," which refrain from explicitly endorsing or opposing a candidate but
are intended to affect an election.
A three-judge District Court agreed with WRTL's arguments and ruled the BCRA unconstitutional as
applied to the ads. The court refused the FEC's request that it inquire into the intent and likely effect of the
ads, because those determinations would be impractical and would have a chilling effect on protected
speech. Analyzing only the explicit content of the ads, the court found them to be legitimate issue ads and
not express advocacy or sham issue ads. The court also held that the government's justification for banning
express advocacy ads by corporations - the need to reduce political corruption and public cynicism - did not
apply to ads that do not endorse or oppose a candidate. Therefore, the court ruled that the government
lacked a compelling interest to justify the burden on WRTL's First Amendment rights.
Question:
Is the Bipartisan Campaign Reform Act's ban on the use of corporate treasury funds for political
advertisements in the 60 days before an election unconstitutional as applied to advertisements that do not
explicitly endorse or oppose a candidate?
Conclusion:
Yes. By a 5-4 vote the Court ruled that BCRA's limitations on political advertising were unconstitutional as
they applied to issue ads like WRTL's. Chief Justice John Roberts's majority opinion held that the ads were
genuine issue ads, not express political advocacy or its functional equivalent (which Congress can
concededly regulate). The Court held that McConnell v. FEC did not establish the test that any ad intended
to influence an election and having that effect is express advocacy. Such a test would be open-ended and
burdensome, would lead to bizarre results, and would "unquestionably chill a substantial amount of
political speech." Instead, the Court adopted the test that "an ad is the functional equivalent of express
advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or
against a specific candidate." The Court further held that the compelling state interests invoked by the
government to regulate advocacy did not apply with equal force to genuine issue ads. Neither the interest in
preventing corruption nor the goal of limiting the distorting effects of corporate wealth was sufficient to
override the right of a corporation to speak through ads on public issues. This conclusion, the Court held,
was necessary in order to "give the benefit of the doubt to speech, not censorship." The dissent by Justice
Souter called WRTL's ads indistinguishable from political advocacy ads and accused the majority of
implicitly overruling McConnell v. FEC.