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First Amendment Outline Olson Questions Why was the regulation of commercial speach in Bolger in violation of the First

t Amendment, but the violation in Florida Bar v. Went for it not?

23 August 1-23 I -A United States v. O'Brien Facts of the Case: David O'Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under a federal law that made the destruction or mutilation of drafts card a crime. Question: Was the law an unconstitutional infringement of O'Brien's freedom of speech? Conclusion: No. The 7-to-1 majority, speaking through Chief Justice Earl Warren, established a test to determine whether governmental regulation involving symbolic speech was justified. The formula examines whether the regulation is unrelated to content and narrowly tailored to achieve the government's interest. "[W]e think it clear," wrote Warren," that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidential restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest." Texas v. Johnson Facts of the Case: In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court. Question: Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment? Conclusion: In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes

offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

25 August 23-53 I-B-1, -2 Chaplinsky v. New Hampshire Facts of the Case: Chaplinsky, a Jehovah's Witness, called a city marshal a "God-damned racketeer" and "a damned fascist" in a public place. He was arrested and convicted under a state law for violating a breach of the peace. Question: Does the application of the statute violate Chaplinsky's freedom of speech protected by the First Amendment? Conclusion: No. Some forms of expression--among them obscenity and fighting words--do not convey ideas and thus are not subject to First Amendment protection. In this case, Chaplinsky uttered fighting words, i.e., words that "inflict injury or tend to incite an immediate breach of the peace." Fighting Words Doctrine : face-to-face words or epithets likely to provoke the average
person to retaliation and thereby cause a breach of the peace.

Terminiello v. City of Chicago Facts of the Case: Father Arthur Terminiello, in an auditorium in Chicago, delivered a vitriolic speech in which he criticized various political and racial groups and viciously condemned the protesting crowd that had gathered outside the auditorium. Policemen assigned to the event were unable to prevent several disturbances by the "angry and turbulent" crowd. The police arrested Terminiello for "breach of the peace." He was then tried and convicted for his central role in inciting a riot. Question: Did the Chicago ordinance violate Terminiello's right of free expression guaranteed by the First Amendment? Conclusion: In a 5-to-4 decision, the Court held that the "breach of the peace" ordinance unconstitutionally infringed upon the freedom of speech. Noting that "the vitality of civil and political institutions in our society depends on free discussion," the Court held that speech could be restricted only in the event that it was "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." Justice Douglas wrote that "a function of free speech under our system is to invite dispute. It may indeed best serve its high

purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Note This case limited the Fighting words doctrine to evil that rises far above public inconvenience, annoyance, or unrest. - I have no idea what that means exactly though. Brandenburg v. Ohio Facts of the Case: Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." Question: Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments? Conclusion: The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate speech acts: Brandenburg Test 1. speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and 2. it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution. New York Times Company v. Sullivan Facts of the Case: Decided together with Abernathy v. Sullivan, this case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgment. Question: Did Alabama's libel law, by not requiring Sullivan to prove that an advertisement personally harmed him and dismissing the same as untruthful due to factual errors, unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections?

Conclusion: The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed. 30 August 53-70 I-B-3 Bolger v. Youngs Drug Product Corp. Facts There was a law against unsolicited advertisements of contraceptives Question Did the law violate the First Amendment Conclusion It's pretty clear here that the law was aimed specifically at a message. Brief Fact Summary Federal postal laws prohibit mailing any unsolicited advertisements for contraceptives. A contraceptives manufacturer challenged the law as violative of the First Amendment. Were the companies printed materials (including informational pamphlets) constitutionally protected forms of "commercial speech"? Rule of Law and Holding "The mailings constitute commercial speech notwithstanding the fact that they contain discussions of important public issues such as venereal disease and family planning. Advertising which 'links a product to a current public debate' is not thereby entitled to the constitutional protection afforded noncommercial speech. . . . We conclude, therefore, that all of the mailings in this case are entitled to the qualified but nonetheless substantial protection accorded to commercial speech." Gas & Electric v. Public Service Commission
1. 2.

Must concern lawful activity and not be misleading Whether the Governments interest is significant

Florida Bar v. Went for It inc Facts of the Case: Went For It, Inc., (a lawyer referral service) and John T. Blakely (a Florida attorney) were sending targeted direct-mail solicitations to victims and their relatives who had been injured in an accident. According to Florida Bar rules, such direct and targeted mailings are prohibited for thirty days following an accident or disaster. Question: Do the Florida Bar rules prohibiting direct mail solicitation of accident victims violate the free speech of personal injury attorneys? Conclusion: No. Lawyer advertising is commercial speech and as such, is accorded only a limited measure of First Amendment protection. Under this "intermediate scrutiny," restriction on commercial

speech is permissible if the government (1) asserts a substantial interest in support of its regulation; (2) establishes that the restriction directly and materially advances that interest; and (3) demonstrates that the regulation is narrowly drawn.

1 September 71-93 II-A Wooley v. Maynard Facts : George Maynard and his wife, followers of the Jehovah's Witnesses faith, viewed the motto as repugnant to their moral, religious, and political beliefs, and for this reason they covered up the motto on the license plates of their jointly owned family automobiles. On November 27, 1974, Mr. Maynard was issued a citation for violating the state statutes regarding obscuring of the state motto. Question : Can the state force people to say things which go against their principles? Conclusion : No, New Hampshire could not constitutionally require citizens to display a state motto that went against an individual's morality upon their vehicle license plates. Note : Motto was - "Live Free or Die." Johanns v. Livestock Marketing Association Facts of the Case: The Beef Promotion and Research Act (1985) required cattle producers to pay a fee for generic beef advertisements done on behalf of the cattle industry. Some cattle producers disagreed with the advertisements. The Livestock Marketing Association sued the Department of Agriculture (DEA) in federal district court and alleged a government-required fee for advertising with which some cattle producers disagreed violated their First Amendment right to free speech. The DEA argued the advertising was government speech immune from First Amendment challenge. Another group of cattle producers, the Nebraska Cattlemen, sided with the DEA and sued the Livestock Marketing Association. The two cases were consolidated. The district court and the Eighth Circuit Court of Appeals ruled the program violated the First Amendment and that the advertising was compelled and not government speech. Question: Does the Beef Promotion and Research Act of 1985 (Beef Act) violate the First Amendment by requiring cattle producers to pay to fund advertising with which they disagree? Conclusion: No. In a 6-3 opinion delivered by Justice Antonin Scalia, the Court held that the fund was for government speech and that therefore the government could not be sued under the First Amendment. The Court pointed to the rule that while compelled funding of private speech raises First Amendment concerns, compelled funding of government speech generally does not. Rumsfeld v. Forum for Academic and Institutional Rights Facts of the Case : Many law schools had policies denying campus access to recruiters

from employers who did not comply with their antidiscrimination policies. Objecting to the military's "Don't ask, don't tell" policy as discriminatory, the schools refused to permit military recruiters on-campus. Congress responded by passing the Solomon Amendment, which required colleges and universities receiving Federal money to allow military recruiters onto their campuses in the same manner as recruiters for other companies. The law schools went to Federal court claiming the Solomon Amendment violated their rights to free speech and freedom of association. In Fall 2003, Forum for the Academic & Institution Rights, Inc. (FAIR), an association of law schools and law faculty asked the United States District Court for the District of New Jersey to enjoin enforcement of the Solomon Amendment on the grounds it violated their First Amendment rights to free speech and association. The District Court ruled against FAIR. FAIR then appealed to the United States Circuit Court of Appeals for the Third Circuit, which found that FAIR had "demonstrated a likelihood of success on the merits of its First Amendment claims and that it is entitled to preliminary injunctive relief." Secretary Rumsfeld's position was represented before the Supreme Court by the Solicitor General, Paul Clement. FAIR's oral argument was presented by FAIR lawyer E. Joshua Rosenkranz. Ruling : the Court ruled that the federal government, under the Solomon Amendment, could constitutionally withhold funding from universities if they refuse to give military recruiters access to school resources. Law schools were unwilling to allow recruiters onto campus because they viewed the military's so-called "Don't ask, don't tell" policy as being discriminatory. The Supreme Court held oral arguments on December 6, 2005, and issued a unanimous 8-0 decision March 6, 2006, finding the Solomon Amendment constitutional. 8 September 93-121 II-B-1, -2 Near v. Minnesota Ex Rel. Olson Facts of the Case: Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials, charging that they were implicated with gangsters. Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law that allowed such action against periodicals. The law provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined (stopped) from further committing or maintaining the nuisance. Question: Does the Minnesota "gag law" violate the free press provision of the First Amendment? Conclusion: The Supreme Court held that the statute authorizing the injunction was unconstitutional as applied. History had shown that the protection against previous restraints was at the heart of the First Amendment. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment. Thus the Court established as a constitutional

principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding. Freedman v. Maryland Facts of the Case: Maryland required that all films be submitted to a board of censors before being exhibited. The board could disapprove films that were obscene, debased or corrupted morals, or tended to incite crime. There was no time limit on the decision-making process. Ronald Freedman challenged the law as unconstitutional due to the procedures to obtain approval. He did not suggest that prior approval itself was unconstitutional. Question: Did the the Maryland law violate the freedom of expression protected by the First Amendment? Conclusion: The Court found the Maryland law to be invalid. The Court decision reflected a concern that the statute provides the danger of "unduly suppressing protected expression." The board was allowed overly broad licensing discretion with a lack of statutory provisions for judicial participation in the the procedure to prohibit a film. The Court established three guidelines as adequate safeguards to protect against the "undue inhibition of protected expression." These guidelines are to: (1) place the burden of proving the film is unprotected expression on the censors, (2) require judicial determination to impose a valid determination, and (3) require prompt determination "within a specified time period." City of Lakewood v. Plain Dealer Publishing Facts of the Case: Plain Dealer Publishing challenged the constitutionality of a Lakewood city ordinance that authorized its mayor to grant or deny applications, made by publishers, seeking permission to place newsracks on public property. The ordinance merely required Lakewood's mayor to provide an explanation, in the event of a permit denial, while empowering him to subject all permit approvals to whatever "terms and conditions" which he "deemed necessary and reasonable." On appeal from a district court ruling that found the ordinance constitutional, the Court of Appeals reversed. The Supreme Court granted Lakewood's request for certiorari. Question: Did Lakewood's city ordinance violate freedom of speech rights as protected by the First Amendment? Conclusion: Yes. The Court held that the licensing ordinance was facially invalid since it gave Lakewood's mayor unbridled discretion to discriminate against permit seekers, based on the content of their publications and viewpoints. This, in turn, promoted self-censorship by publishers and other speakers who sought to curry favor with the mayor's officer in order to secure the approval of their licensing requests. The Court added that while cities may require the periodic licensing of newsracks on public property, even subjecting such procedures to reasonable restrictions, they may not use language which is so open-ended as to give city officials unlimited subjective

discretion over permit approvals. 13 September 121-141 II-B-3 City of Houston v. Hill Brief Fact Summary. Appellee Raymond Hill observed a friend blocking traffic to allow a vehicle to enter traffic. Appellee also observed the police confronting his friend about his actions, and at that time Appellee yelled to the police to pick on someone their own size. Appellee was then indicted, but never convicted under a Houston ordinance prohibiting verbal challenges to police officers. Appellee now seeks to have that ordinance declared unconstitutional. Synopsis of Rule of Law. A law is unconstitutional if it criminalizes a substantial amount of free speech and gives the police unconstitutional discretion in enforcement. Facts. Appellee, observed a friend intentionally stopping traffic on a busy street in Houston, to allow a vehicle to enter traffic. Two Houston police officers then confronted the friend of the Appellee, and when one named Officer Kelley began talking to him, Appellee began shouting at the officers in an admitted attempt to divert Officer Kelleys attention from his friend. Appellee shouted at Officer Kelley to pick on someone his own size, to which Officer Kelley asked Appellee if he was interrupting his duties as a police officer. Appellee then stated that yes he was, and shouted to Officer Kelley to once again pick on someone his own size. Appellee was then arrested under a Houston ordinance that prohibited willfully or intentionally interrupting a city policeman by verbal challenge during an investigation. Appellee was acquitted after a nonjury trial in municipal court. Following his acquittal, Appellee brought a suit in District Court seeking judgment that the ordinance was un constitutional on its face and as applied to him. The District Court held that Appellees evidence did not demonstrate that the ordinance had been unconstitutionally applied. The Court of Appeals reversed, causing the City of Houston, Texas to appeal to the United States Supreme Court. Issue. Whether the Houston ordinance inhibits the free expression of ideas protected by the First Amendment? Held. Yes. Houstons ordinance criminalizes a substantial amount of constitutionally protected speech, and accords the police unconstitutional discretion in enforcement. The ordinances plain language is undoubtedly violated everyday, yet only some individuals, chosen by the police at their discretion, are arrest. Therefore the ordinance is substantially overbroad. Dissent. Believes that the Court should not have reached the merits of the constitutional claims, just certified the decision of the Texas Appeals Court. But, nonetheless this dissent in part agrees with the decision of the Court, but like the concurrence disagrees with the Courts use of the case Lewis v. New Orleans. Does not believe that the Houston ordinance, in the absence of an authoritative construction by the Texas courts, is unconstitutional. Concurrence. Does not agree with the reasoning of the Court, which used Gooding v. Wilson and Lewis v. City of New Orleans as support for the decision.

Discussion. This case stands for the idea that an ordinance, statute, or other regulation must be sufficiently specific as to prohibit only lawless conduct, and not protected speech. This case also stands for the idea that a regulation will be held constitutional if the regulation affords too much discretion for the agency charged with regulating it, here the city police department of Houston. In fact this decision states that police officers must show some restraint in their actions because the preservation of individual liberties, in the face of some expressive disorder is of paramount importance. The remaining question following this case is when does the level of expressive disorder become so great that it allows the police to restrict individual liberties. Board of Airport Commissioners v. Jews for Jesus Facts of the Case: The Board of Airport Commissioners of Los Angeles adopted an ordinance which prohibited all "First Amendment activities" in the Los Angeles International Airport (LAX). Alan Snyder, a minister with Jews for Jesus, was instructed by an airport officer to refrain from distributing free religious literature on a walkway in the central terminal of LAX. Question: Did the Los Angeles ordinance violate the First and Fourteenth Amendments of the Constitution? Conclusion: Yes. Using the "First Amendment overbreadth doctrine," which allows an individual to challenge a statute on its face which is potentially threatening to others, the Court found that the ordinance violated the Constitution. Justice O'Connor argued that the rule was vague, overly broad, and would have effectively prohibited activities such as reading, talking, or wearing expressive shirts or political buttons in the LAX terminal. Allowing such an ordinance, which touched "the universe of expressive activity" in its totality, would have caused LAX to become a "First Amendment Free Zone," according to O'Connor. . A statute doing so is overly broad (hence, overbreadth) if, in proscribing unprotected speech, it also proscribes protected speech. Overbreadth is closely related to vagueness; if a prohibition is expressed in a way that is too unclear for a person to reasonably know whether or not their conduct falls within the law, then to avoid the risk of legal consequences they often stay far away from anything that could possibly fit the uncertain wording of the law. The law's effects are thereby far broader than intended or than the Constitution permits, and hence the law is overbroad. 15 September 141-154 II-B-3, -4 Virginia v. Hicks Facts of the Case: The Richmond Redevelopment and Housing Authority (RRHA), a political subdivision of Virginia, owns and operates Whitcomb Court, a low-income housing development. In 1997, the Richmond City Council conveyed Whitcomb Court's streets to the RRHA. Subsequently, the RRHA enacted a policy authorizing the Richmond police to serve notice on any person lacking "a legitimate business or social purpose" for being on the premises and to arrest for trespassing any person who remains or returns after having been notified. After the RRHA

gave Kevin Hicks, a nonresident, written notice barring him from Whitcomb Court, he trespassed there and was arrested and convicted. At trial, Hicks claimed that RRHA's policy was unconstitutionally overbroad and void for vagueness. The Virginia en banc Court of Appeals vacated his conviction. In affirming, the Virginia Supreme Court found the policy unconstitutionally overbroad in violation of the First Amendment. Question: Is the Richmond Redevelopment and Housing Authority's trespass policy, which provides for arrest after being served notice for being on the premises without "a legitimate business or social purpose," facially invalid under the First Amendment's overbreadth doctrine? Conclusion: No. In a unanimous opinion delivered by Justice Antonin Scalia, the Court held that the RRHA's trespass policy is not facially invalid under the First Amendment's overbreadth doctrine. Noting that he was not in Whitcomb Court to engage in constitutionally protected speech, the Court reasoned that Hicks had not shown that the RRHA policy prohibited a substantial amount of protected speech in relation to its many legitimate applications. Justice Scalia wrote, "both the notice-barment rule and the 'legitimate business or social purpose' rule apply to all persons who enter the streets of Whitcomb Court, not just to those who seek to engage in expression." Ward v. Rock Against Racism Facts of the Case: New York City, responding to complaints of high-decibel concerts adjoining residential neighborhoods, mandated the use of city-provided sound systems and technicians for concerts in Central Park. Members of rock group claimed that the inability to use their own sound equipment and technicians in a concert in a public forum interfered with their First Amendment rights of expression. Question: Does the New York ordinance substituting a city-employed technician and mixing board for a performer's mixer and equipment violate the First Amendment? Conclusion: No. The Court upheld the ordinance, giving broad deference to the government's interest in maintaining order. As long as "the means chosen are not substantially broader than necessary to achieve the government's interest," a regulation will not be invalidated because a court concludes that the government's interest "could be adequately served by some less-speechrestrictive alternative." 20 September 155-179 III-A, -B Marsh v. Alabama Facts of the Case: Grace Marsh, a Jehovah's Witness, attempted to distribute religious literature on the sidewalk near a post office in Chickasaw, Alabama. The town of Chickasaw is owned and run by the

Gulf Shipbuilding Corporation and is not a public municipality. Despite this, the town exhibits most of the same characteristics as any other town. After being informed that she was on private property and told to stop distribution of her religious material, Marsh refused. She was arrested, tried, and convicted of trepass. Question: Did Alabama violate Marsh's rights under the First and Fourteenth amendments by refusing to allow her to distribute religious material in the privately owned town of Chickasaw? Conclusion: Yes. In an opinion by Justice Hugo L. Black, the Court found, 5 to 3, that there was no significant difference between the relationship between Chickasaw and private citizens and the relationship between any other town and its citizens. As such, it employed a balancing test, weighing private property rights against an individual's right to free speech. Favoring the latter, the Court ruled in Marsh's favor Tucker v. Texas Facts Tucker was an ordained minister of the group known as Jehovah's Witnesses. In accordance with the practices of this group he called on people from door to door, presenting his religious views to those willing to listen, and distributes religious literature to those willing to receive it. In the course of his work, he went to the Hondo Navigation Village located on the Hondo Army Airfield in Medina County, Texas. The village was owned by the United States under a Congressional program which was designed to provide housing for persons engaged in National Defense activities. According to all indications the village was freely accessible and open to the public and had the characteristics of a typical American town. The Federal Public Housing Authority had placed the buildings in charge of a manager whose duty it was to rent the houses, collect the rents, and generally to supervise operations, subject to over-all control by the Authority. He ordered Tucker to discontinue all religious activities in the village. Tucker refused. Later the manager ordered Tucker to leave the village. Insisting that the manager had no right to suppress religious activities, appellant declined to leave, and his arrest followed. At the trial the manager testified that the controlling Federal agency had given him full authority to regulate the conduct of those living in the village, and that he did not allow preaching by ministers of any denomination without a permit issued by him in his discretion. He thought this broad authority was entrusted to him, at least in part, by a regulation, which the Authority's Washington office had allegedly promulgated. He testified that this regulation provided that no peddlers or hawkers could come into or remain in the village without getting permission from the manager. Holding Held that a statute used to punish an individual for refusing to refrain from religious activity is an improper restriction on freedom of the press and religion. Hudgens v. National Labour Relations Board Brief Fact Summary. Striking union members picketed in front of a retail store that was located within a shopping mall. The general manager of the mall threatened the picketers with arrest for trespassing if they would not leave.

Synopsis of Rule of Law. A private shopping mall is not the functional equivalent of a town and, therefore, not a state actor subject to the requirements of the First Amendment of the United States Constitution (Constitution). Facts. Butler Shoe Co. warehouse workers went on strike and decided to picket the nine retail locations in Atlanta. One of those stores was located within the North DeKalb Shopping Center, owned by the Petitioner, Hudgens (Petitioner). After the picketers had been marching for about half an hour, the general manager of the shopping center threatened to have the strikers arrested if they did not leave. Issue. Can a private shopping mall prohibit picketing of its tenants by members of the public?

Watchtower Bib and Tract Society v. Village of Stratton Facts of the Case: The Village of Stratton promulgated an ordinance that prohibits canvassers from entering private residential property to promote any cause without first obtaining a permit from the mayor's office. The Watchtower Bible and Tract Society of New York, Inc., a congregation of Jehovah's Witnesses that publish and distribute religious materials, brought an action for injunctive relief, alleging that the ordinance violates their First Amendment rights to the free exercise of religion, free speech, and freedom of the press. The District Court upheld most provisions of the ordinance as valid, content-neutral regulations. The Court of Appeals affirmed, concluding that the Village's interests in protecting its residents from fraud and its desire to prevent criminals from posing as canvassers in order to defraud its residents were sufficient bases on which to justify the regulation. Question: Does a municipal ordinance that requires a permit prior to engaging in the door-to-door advocacy of a political cause and to display upon demand the permit, which contains one's name, violate the First Amendment protection accorded to anonymous pamphleteering or discourse? Conclusion: Yes. In an 8-1 opinion delivered by Justice John Paul Stevens, the Court held that the ordinance's provisions making it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit violate the First Amendment as it applies to religious proselytizing, anonymous political speech, and the distribution of handbills. The Court reasoned that the village's interest in preventing fraud could not support the ordinance's application to the religious organizations, to political campaigns, or to enlisting support for unpopular causes. Dissenting, Chief Justice William H. Rehnquist argued that the Court decision deprived Stratton residents of the degree of accountability and safety that the permit requirement provides. 22 September 179-204 III-C-1, -2 Shuttlesworth v. Birmingham Facts

Shuttlesworth v. Birmingham, 394 U.S. 147 (1969), was a United States Supreme Court case. The Petitioner was an African American minister who helped lead 52 African Americans in an orderly civil rights march in Birmingham, Alabama, in 1963. He was arrested and convicted for violating 1159 of the city's General Code, an ordinance which proscribes participating in any parade or procession on city streets or public ways without first obtaining a permit from the City Commission. Section 1159 permits the Commission to refuse a parade permit if its members believe "the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused." Petitioner had previously been given to understand by a member of the Commission that under no circumstances would petitioner and his group be allowed to demonstrate in Birmingham. The Alabama Court of Appeals reversed the conviction on the grounds, inter alia, that 1159, as written, unconstitutionally imposed an "invidious prior restraint" without ascertainable standards for the granting of permits, and that the ordinance had been discriminatorily enforced. However, the Alabama Supreme Court in 1967 narrowly construed 1159 as an objective, even-handed traffic regulation which did not allow the Commission unlimited discretion in granting or withholding permits, and upheld petitioner's conviction. The case was taken to the U.S. Supreme Court, where Shuttleworth was represented by the prominent civil rights attorney James Nabrit. Writing for the court, Justice Potter Stewart held that (1) even though the actual construction of 1142 of the Birmingham General City Code was unconstitutional, the judicial construction of the ordinance prohibited only standing or loitering on public property that obstructed free passage, but it was unclear from the record, whether the literal or judicial construction was applied; and (2) the literal construction of 1132 of the Birmingham General City Code was unconstitutional, and the statutory application revealed that it applied to the enforcement of an officer's order in directing vehicular traffic. Even though justice Stewart's opinion for the Court mentioned that "the Supreme Court of Alabama performed a remarkable job of plastic surgery upon the face of the ordinance", the Court reversed Shuttlesworth's conviction because the circumstances indicated that the parade permit was denied not to control traffic, but to censor ideas. Holding The Court held that (1) even though the actual construction of 1142 of the Birmingham General City Code was unconstitutional, the judicial construction of the ordinance prohibited only standing or loitering on public property that obstructed free passage, but it was unclear from the record, whether the literal or judicial construction was applied; and (2) the literal construction of 1132 of the Birmingham General City Code was unconstitutional, and the statutory application revealed that it applied to the enforcement of an officer's order in directing vehicular traffic. Brown v. Louisiana Facts of the Case: The Audubon Regional library operated three branches and two bookmobiles. Blacks were not allowed to enter any of the branch libraries. The bookmobiles were segregated: a red one served only whites and a blue one served blacks. Brown was a black man who entered a library branch with four other blacks and requested a book, The Story of the Negro. The librarian informed Brown that the book was not available, but that she would request it through the state library, and he could pick it up or have it mailed to him. After the conversation, the men sat down (making no noise or disturbance) and refused to leave. They were arrested "for not leaving a

public building when asked to do so by an officer." Question: Did the actions of the arresting officer infringe upon Brown's (and his companions') freedom of speech, assembly, and freedom to petition the Government for redress of grievances as protected by the First and Fourteenth Amendments? Conclusion: The divided Court found that the actions of the police violated the Constitution. Justice Fortas argued that states may only regulate the use of public facilities in a "reasonably nondiscriminatory manner, equally applicable to all." Maintaining separate library facilities clearly violated this principle. Fortas also reasoned that the demonstration did not disturb the peace of other library patrons or disrupt the library's activities; the time and method of the sitin were carefully chosen and executed. Justice Black dissented, joined by three other justices. He argued that the First Amendment "does not guarantee to any person the right to use someone else's property, even that owned by government and dedicated to other purposes, as a stage to express dissident ideas." lehman v. city of shaker heights Facts of the Case: Harry Lehman was running for the Ohio House of Representatives in the 56th District, which included the city of Shaker Heights. Lehman wanted to have his campaign advertisements placed on the side of Shaker Heights' streetcars. Metromedia, Inc. was designated by the city to manage that advertising space. Metromedia's contract with the city prohibited it from placing political advertisements on the streetcars. It was allowed, however, to place advertisements from businesses and public service groups. Lehman's request was denied, and he sued in the Ohio Court of Appeals for Cuyahoga County alleging that Shaker Heights' policy violated his free speech rights. The Ohio Court of Appeals ruled for the city. The Supreme Court of Ohio affirmed the decision. Question: Did Shaker Heights' policy against political advertising on its streetcars violate the free speech clause of the First Amendment? Conclusion: No. In a 5-4 decision, the Court affirmed the Supreme Court of Ohio and found no violation of the First or Fourteenth Amendments. Writing for a plurality of four justices, Justice Harry A. Blackmun asserted that "no First Amendment forum is here to be found," as the streetcars did not qualify as a "public thoroughfare." Accordingly, the city "need not accept every proffer of advertising." The city could reject certain types of advertising as long as the policies were not "arbitrary, capricious, or invidious." Given the "reasonable legislative objectives" of minimizing "chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience," Shaker Heights' policy was not unconstitutional. 27 September 204-232 III-C-3 Southeastern Promotion v. Conrad Facts of the Case:

Southeastern Promotions was a theatrical production company that requested to use the Tivoli Theater in Chattanooga, Tennessee to present the musical "Hair." "Hair" was a controversial musical that contained obscenities and nudity. The Tivoli was privately owned, but was leased to the city of Chattanooga. The city rejected Southeastern's request based on the controversial content in the production. Southeastern challenged the decision in the United States District Court for the Eastern District of Tennessee, alleging that Chattanooga's denial of its request violated the free speech clause of the First Amendment. The District Court ruled for Chattanooga and found that the musical contained obscene content that was not constitutionally protected. The United States Circuit Court of Appeals for the Sixth Circuit affirmed that decision. Question: Was Chattanooga's denial of Southeastern's request in violation of the free speech clause of the First Amendment? Conclusion: Yes. In a 6-3 opinion, the Court reversed the Sixth Circuit and held that Chattanooga's denial of the Southeastern's request was a "prior restraint," an attempt to censor speech and prevent it from reaching the public. Justice Harry A. Blackmun, writing for the majority, stated that though prior restraints were not necessarily unconstitutional, "the risks of freewheeling censorship are formidable." Chattanooga's "procedural safeguards were lacking" in dealing with those risks and placed the burden on Southeastern to ensure that the musical could be produced. This was inconsistent with Freedman v. Maryland, and therefore unconstitutional. Justice William O. Douglas dissented in part and concurred in the result in part. Greer v. Spock Brief Fact Summary. Respondent, Spock was a presidential candidate that wanted to enter a military base and distribute campaign literature. Synopsis of Rule of Law. Military bases may constitutionally regulate speech because they are not non-public forums. Facts. Fort Dix is a military post located in New Jersey. Generally, it is open to civilian visitors. However, there is a local regulation that precludes speeches and demonstrations of a partisan political nature. Respondent and some of his running mates sent a letter to the General in charge of the base announcing their intent to distribute campaign literature to the recruits living there. The General denied the request for access citing the regulation. Issue. Is the regulation of speech on a military base constitutional? Held. Yes. The base is governmental property devoted to the training of soldiers; it is not a public forum. Dissent. The main purpose of the base does not preclude it from adhering to the mandate of the 1st Amendment. Discussion. The majority relies on the specific purpose and use of the military facility. It is not open to the public for all purposes and serves primarily as a training base for soldiers.

Perry Education Association v. Perry Local Educators Association Facts of the Case: The Perry Education Association (PEA) won an election against the Perry Local Educators' Association (PLEA) to serve as the sole union representing teachers in Perry Township, Indiana. As part of the collective-bargaining agreement reached between PEA and the Board of Education of Perry Township, PEA obtained exclusive rights to use the internal school mail system and PLEA was denied access. PLEA contended that denying their members use of the mail system violated the First Amendment and the Equal Protection Clauses of the Fourteenth Amendment. A Federal District Court ruled against PLEA but the United States Court of Appeals for the Seventh Circuit reversed. Question: Does a local school board violate the First Amendment by disallowing a nonofficial teachers union from using its internal school mail system? Conclusion: No. Justice Byron White delivered the opinion of a 5-4 court. The school board chose to grant exclusive access to the official teachers union in order to facilitate a collective-bargaining agreement. It did not act to suppress the speech of rival teachers unions. The school board entrusted PEA with obligations as the sole representative of teachers that would require the use of the mail system. PLEA did not have these obligations and could communicate effectively though many other channels. Since the mail system was not a "public forum," PLEA had no unassailable right to access it. In his dissent, Justice William J. Brennan Jr. contended that the mail system constituted government property and PLEA lost access privileges because its viewpoints differed from those of the official union. 29 September 233-251 IV-A
Tinker v. Des Moines Ind. Comm. School Dist. Facts of the Case: John Tinker, 15 years old, his sister Mary Beth Tinker, 13 years old, and Christopher Echardt, 16 years old, decided along with their parents to protest the Vietnam War by wearing black armbands to their Des Moines schools during the Christmas holiday season. Upon learning of their intentions, and fearing that the armbands would provoke disturbances, the principals of the Des Moines school district resolved that all students wearing armbands be asked to remove them or face suspension. When the Tinker siblings and Christopher wore their armbands to school, they were asked to remove them. When they refused, they were suspended until after New Year's Day. Question: Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the First Amendment's freedom of speech protections? Conclusion: The wearing of armbands was "closely akin to 'pure speech'" and protected by the First Amendment. School environments imply limitations on free expression, but here the principals lacked justification for imposing any such limits.The principals had failed to show that the forbidden conduct would substantially interfere with appropriate school discipline. Bethel School Dist. No. 403 v. Fraser

Facts of the Case: At a school assembly of approximately 600 high school students, Matthew Fraser made a speech nominating a fellow student for elective office. In his speech, Fraser used what some observers believed was a graphic sexual metaphor to promote the candidacy of his friend. As part of its disciplinary code, Bethel High School enforced a rule prohibiting conduct which "substantially interferes with the educational process . . . including the use of obscene, profane language or gestures." Fraser was suspended from school for two days. Question: Does the First Amendment prevent a school district from disciplining a high school student for giving a lewd speech at a high school assembly? Conclusion: No. The Court found that it was appropriate for the school to prohibit the use of vulgar and offensive language. Chief Justice Burger distinguished between political speech which the Court previously had protected in Tinker v. Des Moines Independent Community School District (1969) and the supposed sexual content of Fraser's message at the assembly. Burger concluded that the First Amendment did not prohibit schools from prohibiting vulgar and lewd speech since such discourse was inconsistent with the "fundamental values of public school education."

Hazelwood school district v. kuhlmeier Facts of the Case: The Spectrum, the school-sponsored newspaper of Hazelwood East High School, was written and edited by students. In May 1983, Robert E. Reynolds, the school principal, received the pages proofs for the May 13 issue. Reynolds found two of the articles in the issue to be inappropriate, and ordered that the pages on which the articles appeared be withheld from publication. Cathy Kuhlmeier and two other former Hazelwood East students brought the case to court. Question: Did the principal's deletion of the articles violate the students' rights under the First Amendment? Conclusion: No. In a 5-to-3 decision, the Court held that the First Amendment did not require schools to affirmatively promote particular types of student speech. The Court held that schools must be able to set high standards for student speech disseminated under their auspices, and that schools retained the right to refuse to sponsor speech that was "inconsistent with 'the shared values of a civilized social order.'" Educators did not offend the First Amendment by exercising editorial control over the content of student speech so long as their actions were "reasonably related to legitimate pedagogical concerns." The actions of principal Reynolds, the Court held, met this test.

Morse v. Frederick First, Roberts recapitulated that student expression may be suppressed only if school officials reasonably conclude that it will "materially and substantially disrupt the work and discipline of the school" -- observing however that this doctrine came from a case (Tinker v. Des Moines Independent Community School Dist.) in which the students were engaging in "political speech" in "a silent, passive expression of opinion, unaccompanied by any disorder or disturbance" (wearing armbands, to express disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. Id., at 514), and in which "[t]he only interest the Court discerned underlying the

1.

2.

schools actions was the mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint, or an urgent wish to avoid the controversy which might result from the expression." Roberts commented on this opinion with a quote from Virginia v. Black -- that political speech is at the core of what the First Amendment is designed to protect. 538 U. S. 343, 365 (2003). Second, Roberts cited Bethel School Dist. No. 403 v. Fraser. The jurisprudence of Fraser is controversial, but Roberts declining to apply or resolve the disputed holding of that case ("We need not resolve this debate to decide this case"); instead, he explained that "[f]or present purposes, it is enough to distill from Fraser two basic principles": that the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings (in light of the special characteristics of the school environment).[27] that the substantial disruption analysis prescribed by Tinker "is not absolute" (i.e. it is flexible/ optional).[28] Third, Roberts cited the most recent student speech case, Hazelwood School Dist. v. Kuhlmeier. In that case, the Court permitted a school to "exercise editorial content over the style and content of student speech in school-sponsored expressive activities" (declining to publish articles in the school paper that "the public might reasonably perceive to bear the imprimatur of the school) "so long as their actions are reasonably related to legitimate pedagogical concerns". Robert found that this case, though factually distinct, was "nevertheless instructive because it confirms both principles cited above".

4 October 251-278 IV-A, -B Pickering v. board of education Facts: In February 1961 the Township Board of Education asked the voters of Township High School District 205 to approve a bond issue to raise $4,875,000 to erect two new schools, which was defeated. In December 1961, the Board again submitted a bond proposal to the voters for $5,500,000 to build two new schools, which passed and the two schools were built with the money. In May 1964, the Board proposed and submitted to the voters an increase in the tax rate for educational purposes, which was defeated. On September 19, 1964, a second proposal to increase the tax rate was submitted by the Board, and was similarly defeated. Prior to the vote on the September 1964 tax increase proposal, various newspaper articles appeared in the local paper which were attributed to the District 205 Teachers' Organization. Those articles urged passage of the proposal and stated that failure to pass the increase would result in a decline in the quality of education afforded children in the district's schools. Also, a letter making the same point from the superintendent of schools was published in the paper two days before the election, and copies of the letter were given to the voters the following day. After the proposal failed, Marvin L. Pickering, appellant and a teacher in the District, wrote a letter to the editor in response to the material from the Teachers' Organization and the superintendent. The letter was an attack on the Board's handling of the 1961 bond proposals and its subsequent allocation of financial resources between the schools' educational and athletic programs. It also charged the superintendent of schools with trying to prevent teachers from speaking out against the proposed bond issue. Pickering was dismissed by the Board for writing and publishing the letter. Under Illinois law, the Board was then required to hold a hearing on the dismissal where it stated that numerous statements in the letter were false and that the publication of the statements:

"unjustifiably impugned the 'motives, honesty, integrity, truthfulness, responsibility and competence' of both the Board and the school administration. The Board also charged that the false statements damaged the professional reputations of its members and of the school administrators, would be disruptive of faculty discipline, and would tend to foment 'controversy, conflict and dissension' among teachers, administrators, the Board of Education, and the residents of the district."[1] A variety of witnesses on the truth or falsity of the particular statements in the letter with which the Board took issue. The Board found the statements to be false as charged. However, the Board made no further findings or introduced evidence that went beyond the falsity of Pickering's statements. Holding - The dismissal of a public school teacher for public statements regarding issues of public importance, without a showing that his statements were knowingly or recklessly false, violated his First Amendment right to free speech. Supreme Court of Illinois reversed and remanded.

6 October 278-304 IV-B Connick v. Myers


Facts: Shelia Myers worked for 5 1/2 years as an admittedly competent assistant district attorney. She, upon being informed that she would be transferred to another area of responsibility within the office, protested to her boss (D.A. Connick) and other employees. After conversations with some of her coworkers, she drew up and circulated a questionnaire addressing office operations and policies. When this was brought to Connicks attention, he fired her. Myers then sued under 42 U.S.C. 1983, claiming that her termination violated her First Amendment expression rights. A federal district court and court of appeals held for Myers. Issues: 1) Does termination of a public employee, based in part on speech addressing matters of public concern, raise issues amenable to judicial review under the First Amendment? 2) Did Myers termination infringe on her First Amendment rights? Held: Yes. No. (5-4) Reasoning: White (joined by Burger, Powell, Rehnquist, and OConnor) If a public employees speech does not touch on matters of public concern, a termination deci sion, based in part on that speech, is not reviewable by federal courts. Whether speech is of public concern is determined by the content, form, and context of a given statement, as revealed by the whole record (at 316). For the most part, Myers expression was on matters internal to office management. However, question 11 on her questionnaire touches on a matter of public concern-- did employees fell pressure to work on political campaigns as a condition of employ ment? Court employed a balancing approach to resolve this issue, weighing Myers First Amendment interest in speech against the states interest in efficient and successful office operation. In an office context, a great deal of deference is due to an employers judgment on personnel matters. Although Connick did not show that the questionnaire had the effect of impeding the states inter ests, we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking ac tion (at 317). The limited nature of the public concern tapped by the questionnaire, especially in light of the context of expression-- at the

office about matters of personnel transfer-- supports the contention that the functioning of the office was threatened by Myers expression. The latter outweighs the protection afforded to Myers speech. Decision: Reversed. Dissenting Opinion: Brennan (joined by Marshall, Blackmun, and Stevens) The fact that Myers expression concerned the manner in which government is operated or should be operate (at 318)-- it addressed the operation of the office of an elected public official-- requires a showing that the speech actually had the effect of disrupting the office environment (cites to Mills v. Alabama, 1966; Pickering v. Board, 1968; Tinker v. Des Moines, 1969). Here, there was no such showing; disruptive potential is an insufficient ground on which to chill the exercise of First Amendment rights. Significance: The Court affords public employers broad latitude in terminating public employ ees for potentially disruptive speech in their offices even though said speech has not had a clear impact on effective office operation. In so doing, it discounts the effect test employed in other areas of First Amendment law

Garcetti v. Ceballos Facts of the Case: Richard Ceballos, an employee of the Los Angeles District Attorney's office, found that a sheriff misrepresented facts in a search warrant affidavit. Ceballos notified the attorneys prosecuting the case stemming from that arrest and all agreed that the affidavit was questionable, but the D.A.'s office refused to dismiss the case. Ceballos then told the defense he believed the affidavit contained false statements, and defense counsel subpoenaed him to testify. Seeking damages in federal district court, Ceballos alleged that D.A.s in the office retaliated against him for his cooperation with the defense, which he argued was protected by the First Amendment. The district court ruled that the district attorneys were protected by qualified immunity, but the Ninth Circuit reversed and ruled for Ceballos, holding that qualified immunity was not available to the defendants because Ceballos had been engaged in speech that addressed matters of public concern and was thus protected by the First Amendment. Question: Should a public employee's purely job-related speech, expressed strictly pursuant to the duties of employment, be protected by the First Amendment simply because it touched on a matter of public concern, or must the speech also be engaged in "as a citizen?" Conclusion: In a 5-to-4 decision authored by Justice Anthony Kennedy, the Supreme Court held that speech by a public official is only protected if it is engaged in as a private citizen, not if it is expressed as part of the official's public duties. Ceballos's employers were justified in taking action against him based on his testimony and cooperation with the defense, therefore, because it happened as part of his official duties. "The fact that his duties sometimes required him to speak or write," Justice Kennedy wrote, "does not mean his supervisors were prohibited from evaluating his performance." Justices Stevens, Souter, Ginsburg and Breyer dissented. 11 October 305-326 V-A-1, -2

Miller v. California Facts of the Case: Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material. Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings. Question: Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee? Conclusion: In a 5-to-4 decision, the Court held that obscene materials did not enjoy First Amendment protection. The Court modified the test for obscenity established in Roth v. United States and Memoirs v. Massachusetts, holding that "[t]he basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." The Court rejected the "utterly without redeeming social value" test of the Memoirs decision. 13 October 326-354 V-A-2, -3 Barnes v. Glen Theatres Facts of the Case: Glen Theatre and the Kitty Kat Lounge in South Bend, Indiana, operated entertainment establishments with totally nude dancers. An Indiana law regulating public nudity required dancers to wear "pasties" and a "G-string" when they perform. The Theatre and Lounge sued to stop enforcement of the statute. Question: Does a state prohibition against complete nudity in public places violate the First Amendment's freedom of expression guarantee? Conclusion: No. The Court was fractured and there was no majority opinion. Chief Justice Rehnquist, in a plurality opinion, conceded that nude dancing was a form of expressive activity. But he maintained that the public indecency statute is justified despite the incidental limitations on such expressive activity. The statute "furthers a substantial government interest in protecting order and morality." The proscription on public nudity is unrelated to the erotic message the dancers seek to convey Ginsbergy v. New York Facts- Under New York Law it was illegal to willfully sell to a minor under 17 any picture which depicts nudity, is harmful to minors and any magazine which taken as a whole is

harmful to minors. Ginsberg and his wife operated Sam's Stationery and Luncheonette in Bellmore, Long Island. In it they sold magazines including those deemed to be "girlie". He was prosecuted from two informants in which he personally sold two 16 year old boys the "girlie" magazines. He was tried in Nassau County District Court and found guilty. The court had found that the pictures were harmful to minors under the law. The Conviction was upheld by the Appellate Term of the Supreme Court of New York and was denied an appeal to the New York Court of Appeals. Ginsberg argued before the court that the State of New York did not have the power to classify two different sets of the population in regards to obscene material and that it was an unconstitutional deprivation of liberty. He cited Meyer v. Nebraska, Pierce v. Society of Sisters and Prince v. Massachusetts. All where the court sided with the minors. Holding Material not obscene to adults can be obscene towards minors New York v. Ferber Facts of the Case: A New York child pornography law prohibited persons from knowingly promoting sexual performances by children under the age of sixteen by distributing material which depicts such performances. Question: Did the law violate the First and Fourteenth Amendments? Conclusion: No. In the Court's first examination of a statute specifically targeted against child pornography, it found that the state's interest in preventing sexual exploitation of minors was a compelling "government objective of surpassing importance." The law was carefully drawn to protect children from the mental, physical, and sexual abuse associated with pornography while not violating the First Amendment.

18 October 354-388 V-A-4, -B United States v. Williams Facts of the Case: Michael Williams was convicted in federal district court of "pandering" (promoting) child pornography. The PROTECT Act proscribes the pandering of "any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe" that the material is illegal child pornography. The Act represents Congress's attempt to outlaw sexually explicit images of children - including both images of real children and computergenerated images of realistic virtual children. The Supreme Court struck down Congress's previous effort as overbroad in Ashcroft v. Free Speech Council, because the law as written could have outlawed artwork that was neither obscene nor child pornography. Williams argued that the PROTECT Act was similarly overbroad, but the district court held that the government can legitimately outlaw the pandering of material as child pornography, even if the material is not in fact child pornography.

The U.S. Court of Appeals for the Eleventh Circuit reversed the lower court and struck down the PROTECT Act as unconstitutionally overbroad. The Eleventh Circuit was unmoved by the government's argument that prosecuting the promotion of virtual child pornography as real is necessary to combat the child porn market. The Circuit Court held that the Act's prohibition was broad enough to include any "braggart, exaggerator, or outright liar" who claims in a noncommercial context to have child pornography but actually does not. Thus, the Act's pandering provision prohibited protected speech as well as actual child pornography. Question: Does the PROTECT Act abridge First Amendment freedom of speech by outlawing the pandering of material that is believed to be, or claimed to be, illegal child pornography? Conclusion: No. Justice Antonin Scalia, writing for a seven-Justice majority, held that the statute was not overly broad as written. Justice Scalia noted specifically that offers to engage in illegal transactions are categorically excluded from First Amendment protection, and he characterized the speech of an individual claiming to be in possession of child pornography in this category of unprotected speech. He also stated that the law did not violate Due Process because its requirements were clear and could be understood by courts, juries and potential violators. Justice David Souter filed the only dissenting opinion, in which Justice Ruth Bader Ginsburg joined. R.A.V. v. City of St. Paul Facts of the Case: Several teenagers allegedly burned a crudely fashioned cross on a black family's lawn. The police charged one of the teens under a local bias-motivated criminal ordinance which prohibits the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The trial court dismissed this charge. The state supreme court reversed. R.A.V. appealed to the U.S. Supreme Court. Question: Is the ordinance overly broad and impermissibly content-based in violation of the First Amendment free speech clause? Conclusion: Yes. In a 9-to-0 vote, the justices held the ordinance invalid on its face because "it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses." The First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed. Under the ordinance, for example, one could hold up a sign declaring all anti-semites are motherfuckers but not that all Jews are motherfuckers. Government has no authority "to license one side of a debate to fight freestyle, while requiring the other to follow the Marquis of Queensbury Rules." 20 October 388-410 V-B Wisconsin v. Mitchell Facts of the Case: On October 7, 1989, Todd Mitchell, a young black man, instigated an attack against a young white boy. He was subsequently convicted of aggravated battery in the Circuit Court

for Kenosha County. According to Wisconsin statute, Mitchell's sentence was increased, because the court found that he had selected his victim based on race. Mitchell challenged the constitutionality of the increase in his penalty, but the Wisconsin Court of Appeals rejected his claims. However, the Wisconsin Supreme Court reversed. Question: Did the increase in Mitchell's sentence based on his bigoted motives violate his First Amendment rights? Conclusion: No. In a unanimous opinion authored by Justice William H. Rehnquist, the Court found that the Wisconsin statute paralleled antidiscrimination laws which had been found to comply with the First Amendment. It also determined that the consequences for the victim and the community tended to be more severe, when the victim of a crime was chosen on account of his or her race. Thus, when the Wisconsin statute increased the sentence for such crimes, it was not punishing the defendant for his or her bigoted beliefs or statements, but rather the predicted ramifications of his or her crime. Finally, the Court concluded that the Wisconsin statute did not violate the right to free speech because the occasion in which an average person's racist comments would be used against him or her in a court of law would arise so rarely that he or she would not feel forced to suppress them. Virginia v. Black Facts of the Case: Barry Black, Richard Elliott, and Jonathan O'Mara were convicted separately of violating a Virginia statute that makes it a felony "for any person..., with the intent of intimidating any person or group..., to burn...a cross on the property of another, a highway or other public place," and specifies that "any such burning...shall be prima facie evidence of an intent to intimidate a person or group." At trial, Black objected on First Amendment grounds to a jury instruction that cross burning by itself is sufficient evidence from which the required "intent to intimidate" could be inferred. He was found guilty. O'Mara pleaded guilty to charges of violating the statute, but reserved the right to challenge its constitutionality. In Elliott's trial, the judge did not give an instruction on the statute's prima facie evidence provision. Ultimately, the Virginia Supreme Court held, among other things, that the cross-burning statute is unconstitutional on its face and that the prima facie evidence provision renders the statute overbroad because the probability of prosecution under the statute chills the expression of protected speech. Question: Does the Commonwealth of Virginia's cross-burning statute, which prohibits the burning of a cross with the intent of intimidating any person or group of persons, violate the First Amendment? Conclusion: Yes, but in a plurality opinion delivered by Justice Sandra Day O'Connor, the Court held that while a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate, in which four other justices joined, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form, in which three other justices joined. Justice Antonin Scalia

left the latter portion of the Court's conclusion to argue that the Court should vacate and remand the judgment of the Virginia Supreme Court with respect to Elliott and O'Mara, so that that court could have an opportunity to construe the cross-burning statute's prima-facie-evidence provision. Justice David H. Souter, joined by Justices Anthony M. Kennedy and Ruth Bader Ginsburg, concluded that the Virginia statute is unconstitutional and therefore concurred in the Court's judgment insofar as it affirmed the invalidation of Black's conviction. Justice Clarence Thomas dissented.

25 October Handout V-C 27 October 439-466 VI-A Brazburg v. Hayes Facts - Paul Branzburg of The (Louisville) Courier-Journal, in the course of his reporting duties, had witnessed people manufacturing and using hashish. He wrote two articles concerning drug use in Kentucky. The first featured unidentified hands holding hashish, while the second included marijuana users as sources. These sources requested not to be identified. Both of the articles were brought to attention of law-enforcement. Branzburg was subpoenaed before a grand jury for both of the articles. He was ordered to name his sources. Earl Caldwell, a reporter for The New York Times, had conducted extensive interviews with the leaders of The Black Panthers. Paul Pappas, a Massachusetts television reporter, had also reported on The Black Panthers, spending several hours in their headquarters. All three reporters were called to testify before separate grand juries about illegal actions they might have witnessed. They refused, citing privilege under the Press Clause, and were held in contempt. Holding The First Amendment's protection of press freedom does not give a reportorial privilege in court. Cohen v. Cowles Media Brief Fact Summary. The Defendant, Cowles Media Co. (Defendant), promised the Plaintiff, Cohen (Plaintiff), confidentiality in order to receive certain information to be published. Defendant failed to adhere to the agreement and as a result the Plaintiff lost his employment and received a damage award by the trial court. Synopsis of Rule of Law. Compensatory damages are a proper remedy to avoid the injustice under a promissory estoppel claim. Facts. A newspaper owned by Defendant published a story reporting that a nominee for Lieutenant Governor had been charged with three counts of unlawful assembly and previously convicted of shoplifting. The newspapers revealed Plaintiff as the source and named the firm he worked for. It is undisputed that Plaintiff gave this information in return for the reporters promises to keep his identity secret. As a result Plaintiff was fired. The case was submitted to the jury on the theory of breach of contract and misrepresentation.

The jury found liability on both counts and awarded $200,000 in compensatory damages and $250,000 in punitive damages against each newspaper for misrepresentation. The Court of Appeals set aside the misrepresentation damages, but affirmed the compensatory damages. The State Supreme Court affirmed the setting aside of punitive damages. Also, decided that the compensatory damages were not enforceable under standard breach of contracts theory. (Parties had not intended to assume legal obligation.) The award could be enforced under the theory of reliance, but that such a decision would intrude into the newspapers first Amendment rights. The United States Supreme Court (Supreme Court) held that the doctrine of promissory estoppel does not implicate the First Amendment. Held. Yes. Under the restatement, the reporters promise was expected to induce and did induce the disclosure necessary for the story. A breach of that promise should result in damages to avoid injustice. Restatement Second Section:90 states: A promise which is expected to induce definite action by the promisee, and does induce the action is binding if injustice can be avoided only by enforcing the promise. The promise must be (1) clear and definite and (2) the promisor must have intended to induce reliance on the part of the promisee and such reliance must have occurred to the promisees detriment. Plaintiff receives the verdict of $200,000 for compensatory damages. Discussion. The Second Restatement Section:90 eliminates the requirement that reliance be definite and substantial and provides that the remedy granted for breach may be limited as justice requires. Damages then might be limited to restitution or measured to the extent of plaintiffs reliance.

1 November 466-481 VI-B, VII Minesota star v. Minesota Cmmish Facts of the Case: From 1967 to 1971, the Minneapolis Star and Tribune Company, a publisher of a morning and evening newspaper in Minneapolis, was exempt from a state sales and use tax provided periodic publications. In 1971, the Minnesota legislature imposed a "use tax" on the cost of paper and ink products consumed in publishing. In 1974, the legislature exempted the first $100,000 worth of ink and paper consumed a year. After the enactment of this exemption, the Star Tribune found itself paying roughly two-thirds of the total revenue raised by the tax. Question: Did the taxing scheme enacted by the Minnesota legislature violate the freedom of press guaranteed by the First Amendment? Conclusion: The Court held that while the First Amendment did not prohibit all regulation of the press, Minnesota had "created a special tax that applie[d] only to certain publications protected by the First Amendment." Noting that there was "substantial evidence that differential taxation of the press would have troubled the Framers of the First Amendment," the Court held that when

states single out the press "the threat of burdensome taxes becomes acute." The Court concluded that "recognizing a power in the State not only to single out the press but also to tailor the tax so that it singles out a few members of the press presents such a potential for abuse that no interest suggested by Minnesota can justify the scheme." NAACP v. Alabama Facts of the Case: As part of its strategy to enjoin the NAACP from operating, Alabama required it to reveal to the State's Attorney General the names and addresses of all the NAACP's members and agents in the state. Question: Did Alabama's requirement violate the Due Process Clause of the Fourteenth Amendment? Conclusion: Yes. The unanimous Court held that a compelled disclosure of the NAACP's membership lists would have the effect of suppressing legal association among the group's members. Nothing short of an "overriding valid interest of the State," something not present in this case, was needed to justify Alabama's actions.

3 November 481-502 VII Boy Scouts of America v. Dale Facts of the Case: The Boy Scouts of America revoked former Eagle Scout and assistant scoutmaster James Dale's adult membership when the organization discovered that Dale was a homosexual and a gay rights activist. In 1992, Dale filed suit against the Boy Scouts, alleging that the Boy Scouts had violated the New Jersey statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation. The Boy Scouts, a private, not-for-profit organization, asserted that homosexual conduct was inconsistent with the values it was attempting to instill in young people. The New Jersey Superior Court held that New Jersey's public accommodations law was inapplicable because the Boy Scouts was not a place of public accommodation. The court also concluded that the Boy Scouts' First Amendment freedom of expressive association prevented the government from forcing the Boy Scouts to accept Dale as an adult leader. The court's Appellate Division held that New Jersey's public accommodations law applied to the Boy Scouts because of its broad-based membership solicitation and its connections with various public entities, and that the Boy Scouts violated it by revoking Dale's membership based on his homosexuality. The court rejected the Boy Scouts' federal constitutional claims. The New Jersey Supreme Court affirmed. The court held that application of New Jersey's public accommodations law did not violate the Boy Scouts' First Amendment right of expressive association because Dale's inclusion would not significantly affect members' abilities to carry out their purpose. Furthermore, the court concluded that reinstating Dale did not compel the Boy Scouts to express any message. Question: Does the application of New Jersey's public accommodations law violate the Boy Scouts' First Amendment right of expressive association to bar homosexuals from serving as troop leaders?

Conclusion: Yes. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that "applying New Jersey's public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts' First Amendment right of expressive association." In effect, the ruling gives the Boy Scouts of America a constitutional right to bar homosexuals from serving as troop leaders. Chief Justice Rehnquist wrote for the Court that, "[t]he Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill," and that a gay troop leader's presence "would, at the very least, force the organization to send a message, both to the young members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior."

8 November 503-524 VIII-A Reynolds v. United States Facts of the Case: George Reynolds, secretary to Mormon Church leader Brigham Young, challenged the federal anti-bigamy statute. Reynolds was convicted in a Utah territorial district court. His conviction was affirmed by the Utah territorial supreme court. Question: Does the federal anti-bigamy statute violate the First Amendment's free exercise clause because plural marriage is part of religious practice? Conclusion: No. Chief Justice Morrison R. Waite, writing for a unanimous court, held that the statute can punish criminal activity without regard to religious belief. The First Amendment protected religious belief, but it did not protect religious practices that were judged to be criminal such as bigamy. Those who practice polygamy could no more be exempt from the law than those who may wish to practice human sacrifice as part of their religious belief. West Virginia State Board of Education v. Barnette Facts of the Case: The West Virginia Board of Education required that the flag salute be part of the program of activities in all public schools. All teachers and pupils were required to honor the Flag; refusal to salute was treated as "insubordination" and was punishable by expulsion and charges of delinquency. Question: Did the compulsory flag-salute for public schoolchildren violate the First Amendment? Conclusion: In a 6-to-3 decision, the Court overruled its decision in Minersville School District v. Gobitis and held that compelling public schoolchildren to salute the flag was unconstitutional. The Court found that such a salute was a form of utterance and was a means of communicating ideas. "Compulsory unification of opinion," the Court held, was doomed to failure and was antithetical to First Amendment values. Writing for the majority, Justice Jackson argued that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or

petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." 10 November 524-546 VIII-B Sherbert v. Verner Facts of the Case: Adeil Sherbert, a member of the Seventh-day Adventist Church, was fired from her job after she refused to work on Saturday, the Sabbath Day of her faith. The South Carolina Employment Security Commission denied her benefits, finding unacceptable her religious justification for refusing Saturday work. Question: Did the denial of unemployment compensation violate the First and Fourteenth Amendments? Conclusion: Yes. The Court held that the state's eligibility restrictions for unemployment compensation imposed a significant burden on Sherbert's ability to freely exercise her faith. Furthermore, there was no compelling state interest which justified such a substantial burden on this basic First Amendment right. Wisconsin v. Yoder Facts of the Case: Jonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Yutzy, a member of the Conservative Amish Mennonite Church, were prosecuted under a Wisconsin law that required all children to attend public schools until age 16. The three parents refused to send their children to such schools after the eighth grade, arguing that high school attendance was contrary to their religious beliefs. Question: Did Wisconsin's requirement that all parents send their children to school at least until age 16 violate the First Amendment by criminalizing the conduct of parents who refused to send their children to school for religious reasons? Conclusion: In a unamimous decision, the Court held that individual's interests in the free exercise of religion under the First Amendment outweighed the State's interests in compelling school attendance beyond the eighth grade. In the majority opinion by Chief Justice Warren E. Burger, the Court found that the values and programs of secondary school were "in sharp conflict with the fundamental mode of life mandated by the Amish religion," and that an additional one or two years of high school would not produce the benefits of public education cited by Wisconsin to justify the law.Justice William O. Douglas filed a partial dissent but joined with the majority regarding Yoder.

15 November 546-571 VIII-B, -C

Goldman v. Weinberger Facts of the Case: Goldman was a commissioned officer in the United States Air Force, an Orthodox Jew, and an ordained rabbi. He was not allowed to wear his yarmulke while on duty and in Air Force uniform. An Air Force regulation mandated that indoors, headgear could not be worn "except by armed security police in the performance of their duties." Question: Did the Air Force Regulation violate the Free Exercise Clause of the First Amendment? Conclusion: The Court held that the Air Force regulation did not violate the Constitution. Justice Rehnquist argued that, generally, First Amendment challenges to military regulations are examined with less scrutiny than similar challenges from civilian society, given the need for the military to "foster instinctive obedience, unity, commitment, and esprit de corps." Since allowing overt religious apparel "would detract from the uniformity sought by dress regulations," the Air Force regulation was necessary and legitimate. In 1987, Congress passed legislation which reversed this decision and allowed members of the armed forces to wear religious apparel in a "neat and conservative" manner. Employment Division v. Smith Facts of the Case: Two Native Americans who worked as counselors for a private drug rehabilitation organization, ingested peyote -- a powerful hallucinogen -- as part of their religious ceremonies as members of the Native American Church. As a result of this conduct, the rehabilitation organization fired the counselors. The counselors filed a claim for unemployment compensation. The government denied them benefits because the reason for their dismissal was considered work-related "misconduct." The counselors lost their battle in state court. But the U.S. Supreme Court vacated the Oregon Supreme Court's judgment against the disgruntled employees, and returned the case to the Oregon courts to determine whether or not sacramental use of illegal drugs violated Oregon's state drug laws (485 U.S. 660 (1988)). On remand, the Oregon Supreme Court concluded that while Oregon drug law prohibited the consumption of illegal drugs for sacramental religious uses, this prohibition violated the free exercise clause. The case returned to the U.S. Supreme Court in this new posture. Question: Can a state deny unemployment benefits to a worker fired for using illegal drugs for religious purposes? Conclusion: Yes. Justice Antonin Scalia, writing for the majority, observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws.

17 November 571-593 VIIIChurch of Lukumi Babalu v. City of Healeah acts of the Case: The Church of Lukumi Babalu Aye practiced the Afro-Caribbean-based religion of Santeria. Santeria used animal sacrifice as a form of worship in which an animal's carotid arteries would be cut and, except during healing and death rights, the animal would be eaten. Shortly after the announcement of the establishment of a Santeria church in Hialeah, Florida, the city council adopted several ordinances addressing religious sacrifice. The ordinances prohibited possession of animals for sacrifice or slaughter, with specific exemptions for state-licensed activities. Question: Did the city of Hialeah's ordinance, prohibiting ritual animal sacrifices, violate the First Amendment's Free Exercise Clause? Conclusion: Yes. The Court held that the ordinances were neither neutral nor generally applicable. The ordinances had to be justified by a compelling governmental interest and they had to be narrowly tailored to that interest. The core failure of the ordinances were that they applied exclusively to the church. The ordinances singled out the activities of the Santeria faith and suppressed more religious conduct than was necessary to achieve their stated ends. Only conduct tied to religious belief was burdened. The ordinances targeted religious behavior, therefore they failed to survive the rigors of strict strutiny. Locke v. Davey Facts of the Case: The Washington State Promise Scholarship, created by the state legislature in 1999, gives college scholarship money to talented students. However, this money cannot be used to obtain a degree in theology if the program is taught to cause belief. Washington's constitution prohibits funding religious instruction. The 1969 state code applied this ban to college financial aid. Joshua Davey forfeited his Promise Scholarship money in order to major in pastoral ministries at a private Christian college. Davey filed suit in U.S. district court, claiming the state constitution's ban on funding religious instruction violated his First Amendment right to free exercise of religion (in the U.S. Constitution). The district court rejected Davey's claim. The Ninth Circuit Court of Appeals reversed, concluding Davey's free exercise rights were violated. Question: If a state provides college scholarships for secular instruction, does the First Amendment's free exercise clause require a state to fund religious instruction? Conclusion: No. In a 7-2 opinion delivered by Chief Justice William Rehnquist, the Court ruled that a state does not violate the First Amendment's free exercise clause when it funds secular college majors but excludes devotional theology majors. The Court rejected Davey's argument that the state scholarship program is unconstitutional because it is not neutral toward religion. "The State has merely chosen not to fund a distinct category of instruction," the Court wrote. Similarly the Washington Constitution - which explicitly prohibits state money from going to religious instruction - does not violate the free exercise clause. Unlike laws and programs the Court has struck down under the free exercise clause, nothing in either the scholarship program or the state constitution "suggests animus towards religion." States have a "historic and substantial interest" in excluding religious activity from public funding. 22 November 595-617 IX-A Wallace v. Jaffrey

Facts of the Case: An Alabama law authorized teachers to conduct regular religious prayer services and activities in school classrooms during the school day. Three of Jaffree's children attended public schools in Mobile. Question: Did Alabama law violate the First Amendment's Establishment Clause? Conclusion: Yes. The Court determined the constitutionality of Alabama's prayer and meditation statute by applying the secular purpose test, which asked if the state's actual purpose was to endorse or disapprove of religion. The Court held that Alabama's passage of the prayer and meditation statute was not only a deviation from the state's duty to maintain absolute neutrality toward religion, but was an affirmative endorsement of religion. As such, the statute clearly lacked any secular purpose as it sought to establish religion in public schools, thereby violating the First Amendment's Establishment Clause. County of Allegheny v. ACLU Facts of the Case: Two public-sponsored holiday displays in Pittsburgh, Pennsylvania, were challenged by the American Civil Liberties Union. The first display involved a Christian nativity scene inside the Allegheny County Courthouse. The second display was a large Chanukah menorah, erected each year by the Chabad Jewish organization, outside the City-County building. The ACLU claimed the displays constituted state endorsement of religion. This case was decided together with Chabad v. ACLU and City of Pittsburgh v. ACLU of Greater Pittsburgh. Question: Did the public displays violate the Establishment Clause of the First Amendment? Conclusion: In a 5-to-4 decision, the Court held that the crche inside the courthouse unmistakably endorsed Christianity in violation of the Establishment Clause. By prominently displaying the words "Glory to God for the birth of Jesus Christ," the county sent a clear message that it supported and promoted Christian orthodoxy. The Court also held, however, that not all religious celebrations on government property violated the Establishment Clause. Six of the justices concluded that the display involving the menorah was constitutionally legitimate given its "particular physical setting." 24 November 617-647 IX-A Presiding Bishop v. Amos
acts of the Case: Two affiliate organizations of The Church of Jesus Christ of Latter-day Saints operated Deseret Gymnasium, a non-profit facility in Salt Lake City, Utah. These affiliates were the Corporation of the Presiding Bishop of The Church of Jesus Christ of Latter-day Saints (CPB) and the Corporation of the President of The Church of Jesus Christ of Latter-day Saints (COP). Arthur Frank Mayson worked for the Gymnasium for sixteen years as an engineer, but CPB and COP fired him when he failed to obtain a certificate authorizing him to attend the Church's religious temples. He filed a class-action lawsuit in District Court alleging that CPB and COP violated Section 703 of the Civil Rights Act of 1964 by dismissing him from nonreligious employment because he did not satisfy certain religious conditions. In response, CPB and COP claimed that Section 702 of the Act, as amended in 1972, exempts religious organizations from the Act's ban in Section 703 on religious discrimination. Mayson then claimed that Section 702 violated the First Amendment's Establishment Clause by allowing religious organizations to practice discriminatory hiring for nonreligious jobs. The District Court agreed that Mayson's job was nonreligious. It also held that Section 702 violated the Establishment Clause because it allowed religious adherents exclusive participation in nonreligious activities. Question:

Does Section 702 of the Civil Rights Act of 1964 violate the Establishment Clause by allowing religious employers to choose employees for nonreligious jobs based on their religion? Conclusion: No. Justice Byron R. White delivered the opinion for a unanimous court. The Establishment Clause forbids the government from using state mechanisms to advance a religion. Section 702 passed a three-part test the Court established in Lemon v. Kurtzman for determining whether a state action violates the Establishment Clause. To be valid, the state action must first promote a "secular legislative purpose." The Court found that Section 702 satisfied this criterion, since it ensured that the government would not determine for religious organizations what they could count as religious activities. Second, the state action can neither "advance nor inhibit religion." The Court held that for a violation of this standard to occur, the "Government itself must have advanced religion through its own activities and influence." In this case, the government allowed for a church to advance its religion but did not directly intervene. Third, the state action must not "entangle" church and state. By allowing religious organizations to employ whom they pleased, they state became less entangled in religion.

29 November 647-675 IX-B board of education of kiryas joel v grumet Facts of the Case: In 1989, the New York legislature passed a school districting law that intentionally drew its boundaries in accordance with the boundaries of the Village of Kiryas Joel, a religious enclave of Satmar Hasidim who practice a strict form of Judaism. Shortly before the new district commenced operations, the taxpayers and the association of state school boards embarked on a lawsuit claiming that the statute created a school district that limited access only to residents of Kiryas Joel. Question: Did the 1989 statute violate the First Amendment's Establishment? Conclusion: Yes. In a 6-to-3 decision, the Court held that the statute's purpose was to exclude all but those who lived in and practiced the village enclave's extreme form of Judaism. This exclusionary intent failed to respect the Establishment Clause's requirement that states maintain a neutral position with respect to religion, because it clearly created a school zone which excluded those who were non-religious and/or did not practice Samtar Hasidism. Indeed, the very essence of the Establishment Clause is that government should not demonstrate a preference for one religion over another, or religion over nonreligion in general.

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