Con Law II

1) Bolger v. Youngs Drug Products Corp. a) Fed law prohibited mailing of unsolicited ads for contraceptives. Ct said that this statute violated the 1A. b) Most of the appellee's mailings fell within the core notion of commercial speech, aka "speech which does 'no more than propose a commercial transaction.'" c) However some pamphlets were not "core commercial speech." The reference to a specific product didn't render the pamphlets commercial speech, nor the fact that they were conceded to be ads. And the fact that the sender had an economic motive for mailing them was insufficient by itself d) The test: ALL of those factors, taken together, provides support for something being or not being commercial speech. e) In-class notes A) Young Drug Corp wanted to send unsolicited ads through the mail for contraceptives, but it also included stuff about STDs, family planning. B) The cts ruled it was an unconstitutional breach of 1A - was overbroad. There was individual interests to receive that info. C) Ads' content 2) ads for a specific product 3) economic motivation of the sender. Marshall looks at these three things, say there's a conclusion that the pamphlets are properly considered commercial speech. D) Ct here noted that people who don't want to receive this might get it. Don't want to have everybody exposed to it. E) Link to VA case: commercial speech can't be banned just bc some people might think it's inappropriate. Idea: this categorization, new category of commercial speech that falls in between normal speech and unprotected speech. F) Issue becomes: whether you can get around it by combining the two, normal speech and commercial speech. G) When can businesses be sued for making allegedly false, misleading claims? Most mistakes you make when talking publicly, you can't be sued for normal speech. Commercial speech is different. if the same statement appeared in an ad, the advertiser can be held legally liable.

1) Central Hudson Gas and Electrical Corp. v. Public Service Commission of New York a) Is commercial speech protected? A) Must not be misleading or involve unlawful activity B) Substantial gov interest? Regulation directly advances interest? C) No more extensive than necessary? b) Commission had ordered utility cos in the state to stop all ads that promotes the use of electricity. Order was based on the finding that "the interconnected utility system in New York state doesn't have sufficient fuel stocks or sources of supply to continue furnishing all customer demands" for winter. Three years later, when the fuel shortage had eased, the commission extended the prohibition. c) The order permitted "informational" advertising designed to encourage shifts in consumption. d) From this case, we get the test articulated by SCOUS to evaluate restrictions on commercial speech: A) The commercial speech must concern lawful activity and not be misleading for it to be protected by 1A B) Is the asserted government interest substantial. If yes, then you must ask whether: C) The regulation directly advances the governmental interest asserted, and D) Whether it is not more extensive than is necessary to serve that interest. e) Commission offers two government interests: A) Energy conservation - yes, this was substantial B) Promotional advertising will aggravate inequities caused y the failure to base the utilities' rates on marginal cost. Yes, was substantial. f) However, ct said that the link between the prohibition on ads and the rate structure was tenuous and speculative. However, the energy conservation was directly advanced by the order. So there was a direct link between the state interest and the order g) Was the order no more restrictive than necessary? No. they didn't show that a less restrictive order could also help with energy conservation. h) In-class notes A) There was an energy crisis. B) Ct overturned the ban and allowed the advertising to take place. gave us a four part test: 1) not misleading or unlawful (if it is misleading or unlawful, it's not protected by 1A). 2) state has to have a substantial/legit reason for the law. 3) whatever the substantial interest, what they're doing promotes that interest - aka, will the law help the state achieve its goal. 4) can the gov interest be served by a more limited restriction on commercial speech. C) Here, state failed part 4. D) Black in his dissent says that this was a step backwards. Gives the option that states may ban even truthful speech.

a. Profanity/indecent speech 1) Profanity and indecent speech are forms of offensive speech that include swear words and sexually explicit words. For many years, profanity and indecent speech were legally regulated and punished. This was changed by Cohen v. California, which ruled that profane and indecent speech are protected by 1A, though not in all contexts 2) Cohen v. California a) Cohen was convicted of "maliciously and willfully disturbing the peace by offensive conduct" when he wore a shirt that said F the draft in the courthouse. b) CA statute prohibited "maliciously and willfully disturbing the peace and quiet of any neighborhood or person by offensive conduct. c) State interest? Court rejects state's interest for two reasons: A) People can avert their eyes B) Ability to use language to convey a powerful message d) Class notes A) Dude wore a jacket that said f the draft. Charged under state law that prohibited disturbing the peace by offensive conduct. Were his 1A rights violated? Yes. This was not obscene language - this language wasn't sexual in nature. It's not fighting words, wasn't directed at an individual, wasn't intended to provoke a hostile reaction. So it doesn't fall into a category of unprotected speech B) Argument was that profanity should be unprotected. Argument seems to be that these words cause offense to unwilling listeners and degrade public discourse. Another argument: profanity lacks meaningful content. This isn't a good argument, bc it does add meaning in a lot of convos. C) Part of this decision was based on the fact that people were not a captive audience. They can just look away. D) But: there is no clear line between high level and low level speech. E) Holding: vulgarity and profanity is protected. It isn't necessarily without value. F) Cites a case Finer v. NY, in which the D criticized Truman, the American Legion, mayor of Syracuse. He stirred up excitement, police asked him to stop 3x. main issue was whether his speech should be prosecuted before it created a danger of violence. Police were motivated by dislike of what he said, but speech might have created a clear and present danger. Yes, it was ok he was prosecuted. Got to the point of inciting a riot. Today we say popo have to make reasonable efforts to not allow heckler's veto. What that does, though: it grants a gov subsidy to unpopular speakers. People might fight against you, you're going to get an escort to make sure you get your voice out.

1) Following Cohen, SCOTUS has carved out situations where the gov can regulate profane and indecent speech. There are three general situations when the gov may regulate such speech: a) To protect captive audiences, esp in the home A) Erznoznik v. City of Jacksonville - ruling that a prohibition of nude movies at drive-ins couldn't be justified based on protective captive audiences bc an offended passer-by could just avert their eyes b) To protect minors, esp (though not only) in the school context A) Morse v. Frederick - school could expel students who displayed a large banner that said bong hits for Jesus. I) This is the bong hits for Jesus case. II) This was speech off of school campus, but it was for a school activity. Ct said school had an interest in not advocating students to use drugs, could take steps to prevent speech that would promote drug use. c) On some forms of media A) Gov can restrict such speech over broadcast media such as tv and radio. It enters into private spaces, such as homes, and reaches unwilling listeners, including kids. B) However, gov can't regulate indecent and profane speech over phones, cable tv, and the internet. Not the same issues with captive audiences and kids

A. Key effect of the distinction between content-based and content-neutral regulations: strict scrutiny and intermediate scrutiny 1. Introduction a. The determination that a gov regulation of speech is content based or neutral carries implications. Content based restrictions on speech generally receive strict scrutiny review, while content neutral restrictison receive intermediate scrutiny review. 2. Strict scrutiny a. Strict scrutiny usually results in a holding that the challenged gov regulation of speech is unconstitutional. When a gov regulation infringes on speech based on eh speech's content, the gov must show that the speech restriction is supported by a compelling state interest and that the restriction is narrowly tailored to achieve that interest. b. Brown v. Entertainment Merchants Association 1) This is a recent application of strict scrutiny; it involved the sale of violent video games. 2) CA act prohibited the sale or "violent video games" to minors and required their packaging to be labeled "18." This act covered games "in which the ragne of options available include killing, maiming, dismembering, or assaulting a human" in a manner that "a reasonable person would find appeals to a deviant or morbid interest of minors." 3) Ct says that these games deserve 1A protection - they communicate ideas. That doesn't change just bc they're a newer medium. 4) State said that strict scrutiny shouldn't apply bc its restriction was just an extension of the obscenity exception. The ct said no to this 5) Bc the act imposes a restriction on the content of protected speech, it had to pass strict scrutiny by showing it was justified by a compelling gov interest and was narrowly drawn to serve that interest. State had to specifically id an "actual problem" in need of solving, and the curtailment of the speech had to be actually necessary to the solution. This is obviously a demanding standard. a) CA couldn't meet this standard. It relied on psychological studies that said there was a connection between exposure to violent video games and harmful effects on kids. This studies were rejected by the court bc they could show that the games CAUSED minors to act aggressively. Ct also said that forgetting these studies, the effects of these games are indistinguishable from effects of other media. Ie, ct said that the regulation was wildly underinclusive when viewed against this justification, bc they weren't regulating other types of media. b) Furthermore, there was already a voluntary rating system in place for the games. The state was trying to fill a gap in parental control that the court thought was unnecessary. c) Dissenters, though, noted that the full effect of super-detailed video games isn't fully known yet, and they may present a vitally different experience than, say, just reading a book.

1) In-class notes a) CA had a statute that prohibited a lot of stores from renting or selling violent video games. As THEY defined "violent." SCOTUS said this was unconstitutional. There wasn't any actual justification that CA could give that the games were having bad effects. They were also just doing what they thought parents wanted. Also, was ONLy applying to kids - parents could still rent those games for their kids if they wanted to. b) Ct says: like books and movies, games have content. c) Exercise 19, note 2 A) Speech to minors involving sex can be limited. Why can't we limit speech that is super violent? How is this different? B) Maj says that the CA law was under-inclusive in at least two ways. C) City of Jackson passed a legislation that prohibited drive in movies from showing movies that had nudity if the screen would be visible from a nearby road. Could we qualify restriction in that instance bc there might be wrecks?

A. Secondary effects doctrine 1. This doctrine seems to be at odds with the statement from Turner Broadcasting that says "nor will a content neutral purpose be enough to save a law which, on its face, discriminates based on content." a. City of Renton v. Playtime Theatres, Inc. 1) City ordinance prohibited any adult motion picture theater from locating within 1k feet of a residential zone, family dwelling, church, park, or school. 2) This regulation didn't seem to be either content based or content neutral. The ordinance did treat theaters specializing in adult films differently from other theaters, but the ordinance wasn't aimed at the films' content but rather the secondary effects of such theaters on the surrounding community. 3) The court found that the city's predominant concerns were with these secondary effects, and not with the content of adult films. This finding is adequate to est that the city's zoning interests were unrelated to the suppression of free expression. Namely, it was meant to prevent crime, protect retail trade, maintain property values. 4) The court said it was content neutral bc content neutral regulations are those that are JUSTIFIED without reference to the content of regulated speech. Ct said that the ordinance was designed to meet a substantial gov interest and allowed for reasonable alternative avenues of communication.

1) In-class notes a) City of Renton decided they didn't want adult theaters within 1k feet of any residential homes, schools, churches, parks. Two people tried to buy a theater, and they wanted to turn them into adult theaters, which was against the city ordinance. b) Does this violate 1A? No. we weren't worried about the movie, they were worried about the "Secondary effects." City said we don't care about the porn, but we want these effects to stay away from our communities. The ct says that this is ok. How is it ok? They said the ordinance was narrowly tailored to only affect the category of theaters shown to have negative secondary effects. c) Ct said that there was an avenue for alternative of communication - aka, you can watch porn in all of these other places, just not within 1k feet of these places. d) They also said that this wasn't based on the content of what was being played. So it wasn't subject to strict scrutiny. e) Once we focus on the people you're attracting to the spot, that's not longer content based. A) DO NOT confuse with the heckler's veto. Other types of situations other than adult theaters won't be as clear-cut on secondary effects f) Nude dancing: Barnes v. Glenn Theater. Could cities make it a crime for dancers to take off all of their clothes. Ct said that striptease turned on the kind of audience you had. No strip bar, but you COULD make a theater show that had nudity. This also dealt with secondary effects. Ct said that the rule could prevent nudity at places where people could be prompted into prostitution, sexual assault. Similar problems wouldn't be nearly as likely to occur in the secondary setting. g) What if this was deemed content based? You can argue that this wasn't the least restrictive means - you could hire more police. Problem with this doctrine is that the gov can nearly always a purpose that is content neutral.

1. New categories of unprotected and lesser-protected speech? a. Ct's categorical approach to speech protection has the possibility that they may announce additional categories of unprotected or less protected speech. But so far they've refused to create new, or expand, categorical exceptions to freedom of speech 1) Brown v. Entertainment Merchs. Ass'n - no new category for violent speech aimed at kids 2) Snyder v. Phelps - 1A prevented dad of dead soldier from recovering for IIED from funeral protestors b. It's unlikely the ct will id new or expand existing categories of unprotected or less protected speech. 2. R.A.V. v. St. Paul, and content-based restrictions within categories of unprotected and less protected speech a. RAV v. St. Paul 1) Defendant burnt cross on black family's lawn. 2) Municipal ordinance prohibited display of burning cross, swastika, or other symbol which one knows or has reason to know "arouses anger, alarm or resentment in others" on the basis of race, color, creed, religion or gender. 3) State court had limited ordinance to Chaplinsky-like fighting words. 4) Some question of whether Court would abolish fighting words doctrine. 5) Key: Even with respect to unprotected speech, content- and viewpoint-based restrictions are not always permissible. 6) This ordinance was especially problematic because it was not only content-based, it was viewpoint based (which is almost never permissible). 7) The RAV exceptions: a) Obscenity is a big bubble; "most patently offensive in prurience" is inside of that bubble, as are threats against the president b) But NOT: A) obscene representations of republicans B) threats against people who advocate environmental reform

1) In-class notes a) Teenagers burned a cross on a black family's lawn. Prosecuted under a local crim ordinance that prohibited display of a symbol that...etc. b) SCOTUS looked at whether this ordinance was overly broad, impermissibly content based. Said it was invalid on its face bc it prohibited otherwise allowable speech based solely upon the ideas it espoused. c) Under the ordinance, you could hold up a sign that said antisemites stink, but not a sign that said Jews stink. Gov can't do that. d) Content based restrictions speech are presumptively unconst. Here's the thing: the ordinance here was interpreted by other cts so that it only reached fighting words. And fighting words aren't protected by 1A. So we're talking about fighting words, but SCOTUS says this law is viewpoint discrimination. So ct comes down and says even in this category of fighting words speech, viewpoint discrimination isn't tolerated. e) We're supposedly in the world of unprotected speech, but if you discriminate based on viewpoint, it won't be tolerated. We'll protect unprotected speech when there is viewpoint discrimination.

1. Lemon test represented the high point of the strict separationst tide beginning in the mid 1970s, some justices began considering alternative EC tests. a. Test was also recharacterized - issue of entanglement became a facet of the second prong. Also, ct began employing an endorsement analysis for the first and third prongs. 2. In 2019, ct addressed these questions by deciding whether a memorial to soldiers in WWI, in the shape of a Lain cross, violated the EC. a. American Legion v. American Humanist Association 1) Cross had stood since 1925. Respondents said they were offended by seeing it on public land. Wanted it removed or destroyed. 2) Ct said that cross here had significance as more than just a xn symbol. After WW1, the picture of rows of plain white crosses created emotions in Americans. It was used to express their grief. 3) Said that at this point, removal of the cross would not be seen as a neutral act but as a manifestation of a hostility towards religion. 4) No sign of discriminatory intent. 5) Talks about how there are contexts now where a cross's meaning is almost totally secular, like the red cross. Many orgs have a cross trademarked. 6) Ct also took this as an opportunity to criticize the Lemon test; it did not apply that test here. 7) "with sufficient time, religiously expressive symbols and monuments can become embedded features of a community's landscape and identity. The community may come to value them without necessarily embracing their religious roots." 8) Dissent dislikes the ct's decision to adopt a "history and tradition test" that would permit any newly constructed religious memorial on public land. Said that while the cross was fine and should stand, "a newer memorial, erected under different circumstances, would not necessarily be permissible under this approach."

1) In-class notes a) This cross was on public land - that was the reason it was an issue. b) Point made in class: problem with looking to "historical precedent" is that 99% of the time any religion implicated will be xnity. c) Ct says this was not a violation of the 1a. said cross, while it has initial religious significance, can take on other significance over time. d) People in class think they're reaching here to say that the cross doesn't have a religious purpose. Counter argument: St. Andrews cross - no longer really has any religious meaning. e) Under our new test, it's fair to say its const acceptable. f) J. Orsich is saying here what he later says in Kennedy: just bc you're offended by something does NOT give you standing to challenge something. g) Ginsburg, Sotomayor dissented: using cross as a war memorial does not make the cross a non-religious symbol. h) Another controversy that didn't create a SCOTUS case: A) A cross that's been on state property since 1913. The current 29 foot cross had been erected more recently. Litigation begain in 1989. A private associate ultimately decided to buy the land under the cross. B) Another ex: our lady of the rockies. Continental divide overlooking Butte, Montana. Fourth largest statue in Montana. Big sculpture of Virgin Mary. It's on private property, but overlooks the whole city. If you're an offended observer, what can you do? Now, the short truth is that if you're offended, that's not enough.

1. Intermediate Scrutiny a. In free speech law, the government bears the burden, under intermediate scrutiny, of showing that the challenged content-neutral regulation: 1) Serves a significant or important governmental interest 2) Utilizes means that are narrowly tailored, and 3) Leaves open ample alternative channels for communication. b. Ward v. Rock Against Racism 1) In central park there is a bandshell. Close to the bandshell was a meadow designated as a quiet area. The city was attempting to regulate the volume of amplified music at the bandshell so the performances didn't intrude to those who used the meadow or lived in the apartments just beyond the park. This regulation required performers to use sound amplification equipment and a sound technician provided by the city. 2) RAR had sponsored speeches at the bandshell. Over the years, city had gotten complaints about their concerts' volume. The city under took a comprehensive NY parks department use guidelines for the bandshell to figure out how to control the volume at the bandshell's events. The city considered various solutions to the problem. The idea of a fixed decibel limit was rejected bc the impact on listeners of a single decibel level varies in response to temperature, foliage, audience size, other factors. City concluded that the most effective way to achieve adequate but not excessive sound amplification would be for the city to furnish high quality sound equipment and retain an independent, experienced sound technician for all performances. 3) SCOTUS upheld the city's regulation. They said this was a time, place, and manner regulation. 4) The city's purpose was to regulate and control noise at a public forum. However, even in a public forum, the gov can impose reasonable restriction for time, manner, place, provided that they are "justified without reference to the content of the regulated speech, that they're narrowly tailored to serve a significant gov interest, and they leave open ample alternative channels for communication of info." 5) The principal inquity indetermining content neutrality, in speech cases generally and in time, place, or matter, is whether the gov has adopted a regulation bc of disagreement with the message conveyed. The gov's purpose is a controlling consideration. Here, the gov just wanted to control noise. Therefore, it was not based on content.

1) They said the regulation was also narrowly tailored to serve a significant gov interest. a) The city's interest in ensuring control of sound regulation "was a substantial one." The record indicated that the sound had had an adverse affect on audiences and neighborhoods alike. b) The ct said that restrictions on time, place or manner aren't invalid "simply bc there is some imaginable alternative that might be less burdensome on speech." A) A regulation of time, place or manner must be narrowly tailored to serve the gov's legit, content neutral interests but it doesn't have to be the least restrictive or least intrusive means of doing so. the requirement of narrow tailoring is met "so long as the...regulation promotes a substantial gov interest that would be achieved less effectively absent the regulation." 2) The requirement that there be ample alternative channels of communication as also met. It didn't regulate any expression at a given place or time. it had no effect on the quantity or content of expression, just its amplification. "That the city's limits on volume may reduce to some degree the potential audience for respondent's speech is of no consequence, for there has been no showing that the remaining avenues of communication are inadequate." 3) In-class notes a) Ct said this was a time, place, manner restriction. City was saying that in this location, it was going to impose a volume level. Is there a less restrictive way to do it than make you use the city equipment? Maybe just be telling them you can't go above this decibel level. This is NOT a content regulation. b) Once something is declared to bea time, place, manner regulation, it's almost always going to be found to be constitutional. c) Marshall dissented. Said gov has a responsibility to adopt the elast restrictive solution possible, and there was already a noise restriction in place. and that should really be all we need. d) Exercise 20: should free speech doctrine defer to the gov judgments about narrow tailoring? Should cts say "we're going to look to NY, NY gets to figure out how to do this." Argue that what NY did was a prior restraint: before the people even try out their own equipment, they're being prevented from trying it out.

a. Speech integral to criminal conduct 1) The scope of this exception remains somewhat unclear. The exception traces its roots to Giboney v. Empire Storage and Ice Co. (1949). a) A local union tried to get all nonunion retail ice peddlers to join the union. As part of this plan, union sought agreements from all wholesale ice distributors tht they wouldn't sell to non-union ice sellers. Empire refused, and the union began picketing them to force them to agree to stop selling to nonunion people. Empire got an injunction under state law that criminalized any restraint of trade or competition. Union said this violated free speech. Ct disagreed: "It has never been deemed an abridgement of freedom of speech to make a course of conduct illegal just bc the conduct was carried out by means of language." b) Were picketing bc they were selling to non-union peddlers. Co said that's against the law - that's a law that prevents me from refusing to sell to non-union people. c) Ct said the message you were trying to convey to the co was that you wanted them to break the law. Advocacy of a crime isn't free speech; it's appropriate to prevent advocacy of someone breaking the law. 2) Ct has invoked Giboney more recently in Rumsfeld v. FAIR and US v. Williams a) Williams: "offers to engage in illegal transactions are categorically excluded from first amendment protection." A) Williams however also says there is an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality - the former isn't protected, the latter is. B) Thus, a cp statute may be constitutional if it doesn't prohibit advocacy of cp, but only offers to provide or requests to obtain it.

1) US v. Stevens a) Majority suggests that the cp exception is a particular instance of the speech integral to criminal/unlawful conduct exception. Under this exception, the gov may be able to restrict speech that seeks to cause or perhaps tends to cause certain unlawful conduct (other than the restricted speech itself) such as the restrain of trade in Gibony or the sexual abuse of kids in Ferber. b) At the same time, majority indicates a reluctance to expand the categories of unprotected speech beyond the types of exceptions discussed, suggesting that any speech restrictions must be narrowly defined so as not to preclude speech that might inform or persuade individuals who will not engage in unlawful conduct c) Thus, while the ct recently has reinvigorated the speech integral to unlawful conduct exception, the justices haven't interpreted it broadly to encompass wide swaths of speech. Consequently, if a case involves restrictions on speech that falls outside the established categories of unprotected speech, the gov might advance at least two related arguments: A) That a certain type of speech is integral to unlawful conduct and therefore falls within that historical and traditional category B) The specific prohibited speech is just like one of the long-recognized categories and should be treated the same way d) The statute here prohibited the commercial creation, sale, possession of certain types of animal cruelty. Statute didn't address underlying acts, only portrayals of that conduct. e) Gov argued that depictions of animal cruelty should be added to the list of nonprotected types of speech. Ct disagreed. There is no trade of excluding depictions of animal cruelty from freedom of speech protection. Ct ultimately said that the law was constitutionally overbroad. f) In-class notes A) Law that banned videos of animal cruelty, here, dog fighting. B) Was this statute unconstitutional? Yes. Unconstitutional on its face, bc it regulates the content of the message. Said that animal cruelty doesn't get the same level of non-deference as cp. C) Under this law, if we have video of here's how to dress down your deer after you shoot it, or slaughter a hog, the concern about this law is that it's overly broad. D) So: on it's face, this law is unconstitutional, is substantially overbroad. E) Ct declined to make cruelty to animals a categorical 1A exemption. F) Defamatory statements: not protected by 1A G) Fighting words - question about how viable Chaplinski remains, but it still remains on the books. H) True threats, an actual threat, is not protected. I) Cp is not protected by 1A. J) All of these things, and others we've discussed, we've been looking at tests to determine whether something is obscene - at what point can incitement to a crime become punishable? Bc once you cross that line, the speech isn't protected by 1A. there are 8 things that don't get this protection.

1. Exercise 4, question 4: was this a viewpoint related restriction? Probably yes. But then again, that wasn't the purpose of the law. Question 5: yes, had an important gov interest. a. Note 9: time place and manner restrictions: not based on content of the speech 2. Spence v Washington: a. Displayed US flag with a peace symbol made with tape outside his house. Offered to take the flag down, but he was convicted under WA statute that forbade the presentation of a US flag with superimposed symbols. State SCOTUS said statute didn't violate first A, but real SCOTUS said yes it does. Each state should get to decide how to protect the flag. 3. Texas v. Johnson a. SCOTUS said you can even burn a flag. Right after the SCOTUS makes this decision, saying that you can burn a flag (if it's your own flag where it's appropriate to burn something), congress makes it a FED crime to burn a flag. Fed law was also therefore invalidated afterwards.

1. Buckley v. Valeo a. Statute limited how much you could give to any single candidate per election and how much could be spent. Was intended to regulate fed election campaigns. b. Ct said that limiting how much a person can spend on political communication during a campaign reduces their quantity of expression. There wasn't a similar issue with putting a cap on how much people could contribute, however. 1) The contribution limit served an important government purpose in helping limit corruption and keeping down the cost of running a political campaign. c. Fed statutes gave limits to how much money could be spent on campaigns, how much could be taken in d. There's this idea that giving money speech, bc it's supporting pol ideas, pol discourse. You're giving money to support your ideas. e. The concern is that it's paying somebody off. BUT: there's recognition that you give money to support your ideas. f. We're worried about corruption, that at some point this is just bribery. g. So the regulations said I could only give you 1k. That is upheld. SCOTUS says that the concern about bribery/corruption, balanced against freedom of expression, leads us to conclude that the legislature did ok h. There was also a limit about what you can spend on your own campaign. SCOTUS says that this was diff. the interest is diff bc the contribution to another person is tied up with bribery. But the purpose behind the limit on what you can spend limits wealthy candidates. We aren't worried about you bribing yourself. i. Candidates can opt whether or not to accept fed money (?). j. The limit on what you yourself can spend was found unconstitutional. But the limit on how much you can donate to a candidate was found constitutional. k. Fed election commission got changed here by the ct. l. Ct first looked at the O'Brien test. This gave four part test: was in in the gov's power; important state interest; related to speech (?); narrowly tailored. m. Ct said was this a time place and manner restriction: not really. n. Another reason for this law: to equalize voices, level the playing field between sides. Ct characterizes this interest as incompatible with the 1A. the concept that ct should reduce the speech of some to amplify the speech of others is not in alignment with it. o. Should donations be public? Well, we protect the privacy of the ballot box, shouldn't we not expose who you give money to?

a. Under the French const, we can ban hate speech bc it's harmful to society. In US, it's more complex. Ex, Bridget Bardeux was jailed for saying the French were losing culture in favor of Islam b. In Europe, they ban online hate speech. In US, you can put it up, say it, do it. That's why Europeans want us to ban it - it's getting to them from us. c. Until the 1960s, the restrictions in the BOR were only upon the fed gov - states were restricted by the 14th a, which says that states cannot deprive you of due process or equal protection. 1) But: you had an "implicit in ordered liberty" right to free press, religion. 2) In 1960s, the Warren court comes up with a new test. Goes throughout the 60s, gradually incorporating rights from BOR and making them binding on the states. Asked "is this fundamental to the American scheme of justice," NOT "can we imagine a society without this." 3) Hugo Black said first A should be absolutely and enforceable against the states. d. But what should you be protected to do? Satire is allowed, even if it's offensive. What about putting huge speakers on your truck - can we restrict people from announcing concerts at 2AM in the suburbs? Or is that free speech? 1) There are things called time, place, manner restrictions, but we aren't dealing with what people are actually saying.

1. Common const arguments: a. Original intent argument 1) Says: we'll interpret const by what was intended by those who wrote it. Two approaches: a) Textualistic A) Just look at their words, enforce what their words say. b) Living breathing const - look at their meaning in the light of today. 2) Textualists have a much more strict reading. a) Under it, have to think about: what does "the" mean in "the freedom of speech." 2. Political discourse usually gets the highest level of protection. Commercial speech/advertising gets a lot less protection. a. If you're advertising, we're going to hold you to what you say - if you're misleading, you'll be held accountable). 3. First question with any speech case: Is the action in fact speech. IMPORTANT: There has to be both communication and an intent to communicate.

a. Note on the Religious Freedom Restoration Act, State "Mini-RFRAs," the Religious Land Use and Institutionalized Persons Act, and State Con Law 1) Huge popular reaction against Smith. One key result of this reaction was the passage of RFRA. a) After Boerne v. Flores, RFRA applied to fed gov, but not states. b) Burwell v. Hobby Lobby Stores, Inc.: RFRA protected for-profit, closely held corps and that application of the HHS contraceptive mandate to Hobby Lobby violated RFRA. 2) Many states have passed their own versions of RFRA, labeled mini-RFRAs. 3) Following Boerne, congress passed RLUIPA, which required the application of strict scrutiny in only two contexts: a) Land use regulations applied to religious persons and institutions b) Prison regulations of prisoners' religious beliefs and practices 4) Also note that many state supreme courts interpreted their state constitutional protections for religious liberty more capaciously than Smith. A key point then under RFRA, mini-RFRAs, and state constitutions is whether a gov action significantly burdens religious exercise. Collectively, these developments have blunted some of Smith's impact on rel liberty

1. Continued strict scrutiny in limited circumstances a. When the preconditions for Smith aren't met 1) Smith altered the free exercise landscape by curtailing the scope of strict scrutiny analysis. A small window of opportunity remained opened for claimants though if they could show that the Smith rule was inapplicable bc the challenged law wasn't neutral or generally applicable. 2) Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah a) The secular ends asserted in defense of the at-issue laws were pursued only with respect to conduct motivated by religious beliefs. b) The church practiced Santeria and animal sacrifice as part of Santeria. c) City passed ordinance that noted residents' concern "that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety...the city reiterates its commitment to a prohibition against any acts of all religious groups which are inconsistent with public morals, peace, or safety." The incorporated state law made animal cruelty a criminal offense, and city council's policy to "oppose the ritual sacrifices of animals." d) "Although a law targeting rel beliefs as such is never permissible, if the object of the law is to infringe upon or restrict practices bc of their religious motivation, the law is not neutral." e) A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context. f) "Official action that targets rel conduct for distinctive treatment cannot be shielded just bc the wording of the law itself appears facially neutral." Here, the record compels the conclusion that the purpose of the ordinance was to suppress the Santeria. g) The incorporated law, moreover, said that killing for religious reasons was unnecessary, but other killings, like for food, weren't. deemed hunting and euthanasia as "necessary" killings. h) Takeaway: Smith rule doesn't apply if law is not neutral or generally applicable. A) Depends on ct's resolution of the question of whether a law is not neutral on its face or has been applied against religion in a discriminatory fashion. a) In-class notes A) There's an argument about whether this is a law of general applicability. Issue was that they had a convo about "certain religions" before passing this law. Bc of this convo ct said wasn't neutral, this law was designed with this rel group in mind B) What's our compelling gov interest: stopping animal cruelty. Problem: we do kill animals to eat them. C) Couldn't survive strict scrutiny. D) What result if we were talking about animal sacrifice in a speech situation? Would 1a protect that as a form of speech? E) Bottom line: we have a law that particularly burdens rel, rel practices, and bc of that, the law does interfere with rel, can't be upheld

I. Intro A. Civil rights often do boil down to free expression. B. Money is speech - that's why it's hard to put restrictions on how you can donate to candidates C. first A means gov isn't supposed to unreasonably interfere with freedom of speech. But private parties, like employers, can. Doesn't restrict non-gov actors. Vandy can restrict speech in ways Ole Miss can't, bc UM is government school. D. History 1. Bill of rights is a list of restrictions on the gov. 2. Free speech has a few diff aspects. In the UK, they had licensing - if you wanted to publish something, you had to get a license to do it. Historical reason: til the 1500s, no printing press. a. If you wanted a copy of something, had to hire a scribe. Some scribes got bored, inserted diff things. Didn't want things, aka bibles, with a lot of errors in them circulating. Licenses were meant to make sure things were accurate. b. Licensing system continued under the Stewarts, went away and was replaced by common law. Didn't mean immediately we had free speech - just that license was required to public. 1) But there was still private and seditious libel. a) Private: if you say something super offensive against somebody. b) Seditious libel: statement against the government. that type of statement breaches the peace, undermines authority of the gov. even a true statement can do this! Truth was not a defense. 3. First A recognized the natural, inalienable right of Americans to think and speak freely. Previous precedent: jury ignored the law, said that what a guy said about the governor was true.

1. Development today: a. Trad approach - more speech is better speech; instead of limiting speech, should counter bad idea with speech. b. Alt approach: there are certain things upon which we all agree. It's not ok to suppress those kinds of ideas. Aka, we should suppress speech bc we have a sort of constitutional "basis" of ideas. Aka, look at the values that were shared by the people who wrote the const, based on that, it's ok to limit debate. 2. Argument in constitutional convention: we don't want to make a bill of rights, bc we don't want people to think that those are the only rights. when they sent out the const, the colonies hated the central gov. needed promises that the central gov would be limited, no new king George. So we got bill of rights. 3. In 1798, after first a was adopted, congress passed the alien and sedition act. a. Remained law for 171 years until the 1960s - we had seditious libel, was used to prosecute newspaper editors. Was also used in southern states to prosecute anti-slavery protestors. b. Question: Should free speech be protected absolutely? A. Some limits: sexual harassment, perjury, threatening speech (all of these trump free speech).

1. Everson v. Bd. of Educ. of Ewing Township (1947) a. Outcome: the church won the battle but lost the war. b. Up until Everson, while the feds couldn't create any law promoting the est of religion. But states could and did do it all the time. c. In-class notes 1) In this case, J. Black cites the note the T. Jefferson wrote about the "wall of separation" between church and state. 2) Ct says you can pay the bus fare, but not really much else. We're really going to separate church and state. This is a fairly big change - previously public school began with a prayer, etc. 3) Why was bussing ok: the money went to the parents, not to the schools. There was a secular purpose in promoting education. The incidental benefit to rel schools didn't benefit them over public schools. Letting parents get the bus fare for their kid wasn't an unfair burden, didn't violate wall of separation between church and state. 4) Diff was bc money was going to the parents. 5) J. Rutlidge wrote a dissent: absolutist stance; said any public money to payment of any religious cost is bad, impermissibly mixes church and state. d. A NJ statute authorized its school districts to make rules and ks for the transportation of kids to and from schools. The town bd of education acted pursuant to this statute and authorized reimbursement to parents of money expended by them for the bus transport of their kids on regular buses operated by the public transport system. Part of this money was for the payment of some kids to Catholic parochial schools. These church schools gave both secular education and religious instruction. e. Ct said that NJ couldn't contribute tax-raised funds to the support of an institution that teaches the tenants and faith of any church. 1) On the other hands, said that it could not exclude Muslims, Baptists, Jews, non-believers, or the members of any other faith from receiving the benefits of public welfare legislation. 2) Therefore, it said that 1a didn't prohibit NJ from spending tax raised funds to pay the bus fares of parochial school pupils as part of a general program under which it paid the fares of pupils attending public and other schools. It was "undoubtedly true" that kids are helped to get church schools. 3) Ct noted that the state could cut off parochial schools from other public services, like public policing, but cutting off church schools from such public services so separate would not meet the purpose of the 1a. a) The amendment requires the state to be neutral in its relations with groups of religious believers and non-believers; it doesn't require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them.

1. Everson's rhetoric and analysis is strictly separationist. This placed the ct's interpretation of the EC in tension with many widely entrenched American practices. a. This became apparent in McCollum v. Bd of Educ. of School Dist. No. 71, Champaign County, Ill. (1948) 1) In-class notes a) Ct says rel teachers can't come in and teach religion at the school. b) Ct said that it's decision was NOT based on a hostility to religion. A) Think: sex ed is another subject that sometimes isn't allowed to be taught in school. Counter argument: sex ed is more like time place and manner restriction bc don't want to talk about it in front of little kids. Religion is more like just a complete ban, which seems more like flat out hostility. 2) Everson dissenters joined with J. Black to strike down a public school released time religion program a) These programs for public schools were a popular response to two goals: A) Ensure that public education is non-sectarian; B) Provide the religious education desired by most parents. 3) McCollum cemented the Eversonian strict-separationist interpretation into the ct's case law. This relatively strict separationist interpretation dominated SCOTUS until the mid-1970s, when cracks started to show. 4) Appellant brought suit bc, by law, he was compelled to send his child to school, but religious teachers employed by private religious groups were permitted to come weekly into the schools and for thirty minutes substitute their religious teaching for the secular education provided for under the compulsory education law. 5) Students who didn't choose to take the religious instruction weren't released from school; they had to leave their classrooms and go to some other place for the secular studies. But students who were released from their secular study were required to be present at the religion classes. 6) Ct said that this showed the use of ax supported property for religious instruction - furthermore, there was close cooperation between school authorities and religious council a) "this is beyond all question the utilization of tax supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the 1a as interpreted in Everson." 7) Didn't matter that rabbis, priests, and protestant preachers were brought in. a) "to hold that a state cannot utilize its public school system to aid any or all religious faiths in the dissemination of their doctrines does not manifest a governmental hostility to religion." b. Four years after McCollum, SCOTUS decided Zorach v. Clauson (1952). Appearing to reverse course from McCollum, SCOTUS upheld a released time religion program in NY that was identical to the one struck down in McCollum except that the public schools released the students from class to attend religious instruction off school grounds. 1) Zorach turned out to be a limited exception to the general trend in ct's Everson case law.

A. When is the Free Exercise of Religion infringed? 1. In-class notes a. Ling case 1) Developer was going through NA burial ground. Issue: were the rel rights of NAs overcome the gov's desire to put a road there. The gov said no. We can't let every religious concern dictate gov action. At some point, we're going to step on someone's toes along the way. 2) But according to the Ps, this was a fundamental piece of their belief system. Should the ct evaluate this? 3) Can the gov just do this no matter what? Ct here said although there would have negative effects, those effects were only incidental and not fundamental and were not trying to coerce NAs to not practice their beliefs. 4) This rubs me the wrong way. the gov made a political decision. 5) Ct ultimately seems to put a burden on the NAs to show the importance and centrality of this space. 6) Does the NUMBER of people who believe a thing make a difference? Politically, yeah.

1. If gov actions don't infringe free exercise, then a gov regulation isn't subject to FE scrutiny, and gov doesn't have to justify its actions. In many cases, it's easy to see if gov infringed. a. A flat gov prohibition on religious worship infringes on religious exercise. b. SCOTUS has stated that gov infringes 1A when it imposes a significant burden on 1A activity. What constitutes a significant burden is a judgment laden concept that may vary depending on the circumstances. c. Prior to Smith, this preliminary infringement analysis was v important bc if a challenged gov action infringed on rel exercise, it was subject to strict scrutiny. After Smith, gov infringement is typically subject to rational basis review. 1) For this reason, many critics of SCOTUS's pre-Smith approach argued that SCOTUS was reluctant to find, prior to smith, that a challenged action infringed rel exercise. Ex case: Lyng v. Northwest Indian Cemetery Protective Association a) Wanted to build a road through land that was sacred to NA, used for religious purposes. b) Said that gov couldn't operate if it were to satisfy every citizen's religious needs and desires.

a. County wanted ct to look to the purpose they put forth for the most recent display. "they argue that purpose in a case like this should be inferred only from the latest news about the last in a series of governmental actions." "the counties are simply asking us to ignore perfectly probative evidence." b. Said that displaying the text was even different from just displaying a tablet with ten roman numerals, which COULD be a general reference to law. "where ethe text is set out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a message going beyond an excuse to promote the religious pov." 1) What is more at the ceremony for posting the commandments, the county executive was accompanied by his pastor. The reasonable observer "could only think that the counties meant to emphasize and celebrate the commandments' religious message." 2) "This isn't to deny the commandments have had influence on civil or secular law; the point is simply that the og text viewed in its entirety is an unmistakably religious statement." c. Scalia wrote a dissent basically saying that our gov is special, founders wanted religion to be part of our society. d. In-class notes 1) County later tried to broaden it so that it wasn't just displaying the ten commandments. This didn't make it const under the Lemon test. County said our purpose is to recognize the original of American jurisprudence. Ct wasn't buying this. 2) Trial ct found there was no secular purpose behind the inherently religious display. And they got to decide facts in this case. 3) Ct didn't abandon Lemon here. 4) Scalia opinion: talks about being in Europe, how the Europeans said they wished their leader could say "God bless America."

1. Kennedy v. Burlington School District case from 2022 a. In-class notes 1) Factors as to why the prayer wasn't unconst: a) Prayer was private, brief, and quiet b) Performed while he was off duty - was not conducting class or practice at the time c) Not directed toward a captive audience. d) Students were not encouraged or required to participate. 2) Has implications for both EC and free speech. Ct talks about how EC and free speech work together, provide overlapping protection for religious speech. Const doubly protects religious speech. 3) School district's approach: EC was the trump card, it would squash the free speech. But ct says those two clauses work together, not against each other. 4) This case follows in a line we were already beginning to see prior to Kennedy. Prior to Kennedy there was the Am. Legion case. here, upheld memorial that commemorated WW1 veterans. Ct said it had taken on a new meaning, and that meaning overcame the religious meaning. 5) After Kennedy, many circuits have cited it to say Lemon is dead, instead look toward historical analysis. 6) In fifth circuit: was justice of the peace practice to open ct with prayer. Ct looked to historical precedent, instead of Lemon.

1. One consequence of altering the Lemon test was that the test prohibited a small universe of church-state interactions. a. Mitchell v. Helms (2000) 1) Federal school aid money was received by all schools in the form of secular education materials and equipmen. A plurality upheld the aid program, reasoning that the money itself was neutral and went to schools based on the independent choices of parents, who decided where to send their child b. Zelman v. Simmons-Harris 92002) 1) The state enacted a pilot program to provide financial assistance to families in any school district that has been "under fed ct order requiring supervision and operational management of the district by the state superintendent." Cleveland was the only district to fall in this category. 2) The program provided tutorial aid for students who chose to remain enrolled in public school. The program also provided tuition aid for students to attend a participating public or private school. Any private school, including rel schools, could participate. 3) A ton of religious schools participated. Law was attacked for having the primary effect of advancing religion. 4) "Our decisions have drawn a consistent distinction between gov programs that provide aid directly to religious schools and programs of true private choice, in which gov aid reaches rel schools only as a result of genuine and independent choices of private individuals." 5) "We believe that the program challenged here is a program of true private choice." 6) In-class notes

1. McCreary County, Kentucky v. American Civil Liberties Union of Kentucky (2005) a. Decided same day as Van Orden v. Perry. Goes totally different directions. b. Counties put up in front of courthouse a large gold framed copy of the ten commandments. Order of county legislature required the display to be in a high traffic area. Hung by the county judge-executive, who called them good rules to live by and recounted the story of an astronaut who got saved. ACLU said this was a violation of EC. c. Counties said that the commandments were the foundation of the state's own legal code. d. Third display: Foundations of American law - included commandments, magna carta, declaration of independence, bill of rights. e. Counties asked ct to truncate Lemon test, or at least look into the displays' purpose. f. Ct says: scrutinizing purpose does make sense in an EC analysis, where an understanding of official objective emerges from readily discoverable fact. Plus, this was part of the Lemon test - gov action had to have a secular purpose. 1) "the court often does accept gov statements of purpose...but in those cases where the claim was an apparent sham, or the secular purpose secondary, the unsurprising results have been findings of no adequate secular object."

A. Other forms of government pressure to speak or not to speak 1. There are a wide variety of other forms that government pressure to speak or not speak can take. The case law in this area is mixed. 2. Requiring movies to carry the label "propaganda" doesn't infringe the free speech clause. 3. A state commission sending a letter to a bookseller asking the bookseller to cease selling an "objectionable book," and stating that it had a duty to recommend obscenity prosecutions to the attorney general, infringed on the freedom of speech. B. Government conditions discretionary benefits on speech 1. The gov will often condition benefits in exchange for the recipients doing or not doing something. For ex, the feds have conditioned money to states for highway building and maintenance on the states adopting a drinking age of 21. 2. For a long time, SCOTUS didn't police such conditions; the court just relied on a distinction between rights and privileges. Gov could condition a benefit on the relinquishment of a privilege, but not a right. a. But as a result, gov could effectively condition the grant of discretionary benefits for almost any reason. 1) McAuliffe v. City of New Bedford - officer was fired bc he violated a prohibition on political participation. Said that he had a right to talk politics, but no constitutional right to be a policeman 3. In its place, SCOTUS adopted the unconstitutional conditions doctrine. This states that the gov may not condition the grant of a discretionary benefit on the relinquishment of a constitutional right a. Tension here: ct is reluctant to permit any and all condiions bc they could undermine const rights through pervasive conditioning of grants. On the other hand, ct is reluctant to forbid all conditions bc they're effective tools of public policy. 4. Key for us: at some point, a condition becomes so coercive that it constitutes an "infringement." This occurs when a condition is a penalty and not a subsidy. Aka, the gov can condition subsidies, but not impose a penalty on speech.

1. Speiser v. Randall a. Appellants were WW2 veterans who claimed the veterans' property tax exemption in the California constitution. They had to fill out a form to do this. On this form, there was an oath that said "I don't advocate the overthrow of the US gov or the state of California by force or violence, or other unlawful means, nor advocate the support of a foreign gov against the US in the event of hostilities." They refused to subscribe to this oath. They said that the exaction fo the oath as a condition of obtaining a tax exemption was forbidden by the constitution. b. Ct said that yes, this was a limitation of free speech. c. You can only deny someone a benefit - you CANNOT penalize them for free speech, though. Here, we're denying you a benefit, but ct here views it as more of a penalty bc there are more taxes if you don't sign the form d. Question: is this a benefit or a penalty? It's a tax break, so it's a denial of a benefit (Says Rychlak - so he actually disagrees with SCOTUS here). 1) Rychlak says he believes it actually makes sense that in order to get a tax break, you ask people to not overthrow the gov. 2) But: the way it got to SCOTUS was that it was construed that the people had bop to show they weren't involved in a coup. Gov cannot make receipt of a gov benefit in the way that interferes with a const right - doctrine of unconstitutional conditions.

a. Following Sherbert, the conventional wisdom was that the right to free exercise was treated identically to other fundamental rights that received strict scrutiny review. However, the major case during this period was opaque in its reasoning - this case was Wisconsin v. Yoder; wasn't clear here whether ct employed Sherbert's strict scrutiny analysis 1) Respondents were Amish. State's law made them send their kids to school until 16, but they hadn't done so. 2) State said it had an important interest in providing for kids' education. Ct said "one or two years of formal high school, additionally, for amish kids in place of their long-established program of informal vocational education would do little to serve those interests." 3) "it seems clear that if the state is empowered to 'save' a child from himself or his Amish parents by requiring an additional two years of compulsory formal high school education, the state will in large measure influence, if not determine, the religious future of the child." 4) In-class notes a) Why didn't want kids to have high school edu: in conflict with religious way of life for the Amish. b) Why does state want them going to school: said it was vital for their life. Amish said but we don't have an interest being in your society. WI, though, has an interest in making sure it's people were sufficiently educated. c) Ct said WI is asking too much; the extent of edu they were making them have was too much. d) Legit argument state could make: state has an interest in protecting minors. b. Following Yoder, SCOTUS continued to face free exercise challenges. Some of these the ct accepted, and others it rejected, though the ct appeared to hew closely to Sherbert by approving only those claims in the unemployment compensation context and rejecting claims outside of that context.

1. The Smith Rule a. Employment Division v. Smith was a bombshell to free exercise law 1) Ct had to decide whether the FEC permits OR to include religiously inspired peyote use within the reach of its general criminal prohibition the use of that drug, and thereby allows state to deny unemployment benefits to persons dismissed from their jobs bc of religiously inspired use. 2) "The only decisions in which we have held that 1A bars application of a neutral, generally applicable law to a religiously motivated action have involved not the FEC alone, but the FEC in conjunction with other constitutional protections, such as freedom fo speech and of the press, as well as the rights of parents over their kids...the present case doesn't present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right. Respondents urge us to hold that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now. There being no contention that the drug law represents an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one's kids in those beliefs, the rule to which we have adhered ever since Reynolds controls." 3) "Our decisions in the unemployment cases stand for the proposition that where the state has in place a system of individual exemptions, it may not refuse to extend that system to cases of 'religious hardship' without compelling reason." 4) Bc respondents' ingestion of peyote was prohibited under OR law, and bc that prohibition is constitutional, OR may deny respondents unemployment compensation when their dismissal results from use of the drug. 5) In-class notes a) Law doesn't violate 1a; the state can prohibit sacramental use of peyote. An individual's religious belief doesn't allow for exemption for an otherwise valid law. b) Anarchy in society if we allow everybody in society an exemption. c) Smith rule: A) Is there an infringement on free exercise of religion B) Rational basis review (contrast this to the formal law - the state didn't really have a compelling reason to prohibit peyote, but it DOES pass rational basis review) C) Alternatives d) In 2019, four justices indicated they might be interested in overturning Smith. A) 2021, a case involved Catholic social services in philly not wanting to work for same sex couples for foster parenting. Law said they had to, Caths said it was infringement. Everybody thought it would get cert to challenge Smith, but only three justices voted to overturn Smith.

1. Pentagon papers case: a. A doc talked about US's involvement in Vietnam, painted the gov in a bad light. One guy worked on this study, and in 1971 he goes to the NY times, WA post. Gov wanted to keep it secret. US had secretly enlarged the scope of actions in Vietnam, none of which had been reported in mainstream media. The papers get these documents, and it becomes known that they have them. Immediate gov action to not let them publish it. The case was all about prior restraint. The newspapers won, though they could've technically been prosecuted after the fact for revealing this confidential stuff (though they never were). There was just a battle to keep it coming out - gov didn't pursue it after the fact. b. When is prior restraint ok: must inevitably, directly immediately stop something like keeping a ship from being shot down at sea. If we meet this test, there can be a prior restraint. It takes a lot to justify them, though. c. There's a really strong protection against prior restraints - this is really all that the judges could agree on in pentagon papers case. 2. Near v. State of Minnesotta ex rel. Olson a. MN statute suppressed the publication of malicious, scandalous, defamatory articles. An article was published that suggested a Jewish gagnster was in control of criminal activity in Minneapolis and that the chief of police was being neglectful. The city took offense to what was said. b. Statute called for the suppression, as a public nuisance, of a newspaper, NOT punishment. c. Yes, it did violate the first amendment. It was facially unconstitutional. This scheme is a prior restraint. Violated the free press provision of the first amendment. d. Near v. state of Minnesota: ct said this violated the first amendment. This was a key precedent in the pentagon papers case. dissent said this wasn't actually prior restraint - said that

1. Today, judicial prior restraints are used most frequently in contexts of national security, publicity of trial proceedings - but SCOTUS is still v skeptical of them. 2. Today, prior restraints most prominently come in the form of licensing systems for usage of public property. Test governing these permitting regimes: a. The licensing scheme must serve an important interest b. The scheme must contain clear licensing criteria that leave little discretion for the licensing authority c. The permitting scheme must contain adequate, expeditious, procedural protections A. Government punishment because of speech. 1. Ex: criminal prosecution premised on a Defendant's speech. Ex: in WW1, feds passed two statutes (espionage acts) that targeted speech undermining the war effort. a. The Espionage Act made it a crime, among other things, to "obstruct the recruiting or enlistment service of the United States" or to make "false statements" that might "impede military success." b. The Sedition Act prohibited "disloyal, profane, scurrilous, or abusive language intended to cause contempt or scorn for the form of government of the United States, the Constitution, or the flag" or to say anything "opposing the cause of the United States." 2. Gov punishment bc of speech a. Criminal prosecution ex: defendant says something we don't want said. b. In WW1, feds passed two statutes against speech that undermined the war effort. These acts punished people that willfully caused mutiny, incited insubordination, refusal of duty, mutiny, etc.

1. Hague v. Committee for Industrial Organization a. Petitioners said that they, as unincorporated labor orgs, were denied the right to hold lawful meeting in Jersey City. Further alleged that the were discriminated against by being prohibited from distributing leaflets and pamphlets. b. Ct said the ordinance was void. c. "The privilege of citizens to use parks and streets for communication may be regulated in the interest of all; but it isn't absolute, but relative, and must be exercised in consonance with peace and good order; but it must not be abridged or denied." d. In-class notes 1) City denied union a permit so they couldn't go around telling people about what they could do/not do. Mayor says that they were communists. Union seeks an injunction, ct says citizens have always been able to organize in the streets - if you require a permit for that, that would be ridiculous. 2) Actions violated 1a - expression of public ideas can be restricted in a non-discriminatory manner, but they cannot be prohibited. We can require a permit to shut down the street. But: you can't flat out stop the speech. We'll allow control so town can keep operating, but we can't stop people from gathering, sharing ideas. 3) 1a easement for streets - you've been there so long, you have a right to be there. 4) The same year, Snyder v. State: ct took what we had in Hague as dicta, that streets can be used as meetings, and gave that substantive meaning. First time the ct used 1A to protect labor orgs as well. overturned the idea that the city owned the streets and could kick people out if they wanted to.

1. Types of public fora a. Perry Education Association v. Perry Local Educators' Association 1) In-class notes FOR PERRY 2) Teachers union was the only union that had the right to use the school mailing system. One union is the official union of the teachers, and it's allowed to use the mail system. The other union, not the official union, isn't allowed to use that system. Ct said that it didn't violate 1a, bc that union was the duly elected rep. Also: this was not a public forum. Bc the official union presumably has business to do for our teachers, bc they represent our teachers, who are part of the school system. 3) The system in place was governmental property. It's a huge advantage to the elected union to be able to communicate to the workers that way, disadvantage to competing unions. 4) How would you argue this is an outrage: diff unions have diff ideas and priorities, it's in appropriate that they should not have an opportunity to share their ideas. 5) Important thing from this case: there are three types of forums - 1) traditional 2) limited 3) nonpublic. Here, the system wasn't open to the public. This was a nonpublic forum. Only allowed for gov use. School system, teachers, official union can use it. therefore they don't have to let other unions, the public take part in it. if they let everybody use it, it would lose its effectiveness. 6) Cited in this case: Snyder v. State A) Case where there was an ordinance prohibiting distribution of leaflets on the street. Justification: city didn't want to clean up the mess. Ct said that may be an issue, but your justification isn't strong enough to uphold the ban on this type of speech. B) Contrast: in a diff case, ct upheld a ban on loud music trucks

A. What counts as a "religion?" 1. There is no generally agreed upon definition of "religion" for 1A purposes. For most of US history, though, the definition of religion was definitely theistic. Then, in two cases in 1965 and 1970, SCOUS suggested that a theistic definition would itself violate the FEC. The ct then utilized a nontheistic definition of religion in the context of statutory interpretation. a. Welsh v US - ruling that a conscientious objector's non-theistic beliefs constituted a religion for purposes of the selective service act b. US v. Seeger - same ruling as Welsh c. SCOTUS has not definitively weighed in on the const definition of religion since. And the reasoning in Welsh and Seeger has been undermined by case law trends. Therefore at this point there is no definition of "religion" clearly est in SCOTUS's case law

1. US v. Ballard a. Respondents were charged with mail fraud - had a scheme to defraud by promoting the I AM movement through the use of mail. Said he could heal people. b. Ct said to look at whether they believed what they said they did. If they didn't, they defrauded people. SCOTUS said this was wrong - the truth of the respondents' religious doctrines should not have been submitted to the jury. c. In-class notes 1) Should we think of rel belief of like mens rea? 2) Bob Baker was developing a xn Disneyland with his wife. He was selling time shares for this place, and was a huge ripoff, he went to prison. How do judges develop the law to say whether a rel leader is liable for fraud, or maybe determine if that person really believes what they are saying? 3) The thing is you have to actually practice what you preach to be considered legit. 4) In this case, jury was supposed to convict if they found that the people really believed the religion. SCOTUS said no, that wasn't appropriate. 5) Dissent: entire case should be dismissed; it's too much to be investigating a rel doctrine - we shouldn't really even go into people's faiths. But this is weird - this could be a great cover for criminals. 6) Xn scientists don't believe in seeing doctors. Don't send kids to docs for a fixable condition, kid dies, do you convict the parent for that? Do we have to prove that what they knew what they were doing was wrong? 7) What about conscientious objectors? a) If you proved yourself to be one, wasn't drafted. But to be one, had to prove that you didn't believe in ANY war, not just Vietnam. Wouldn't jury have to decide whether you really believed that? b) If you're a Quaker, probably would accept on face value that you were a conscientious objector.

A. Government Compels Speech 1. SCOTUS has ruled that gov compulsion to speak constitutes an infringement of he free speech clause, and it has generally taken such compulsions to be unconstitutional. This is bc the freedom of speech includes the freedom not to speak. a. The right to refrain from speaking is a complementary component of the broader concept of "individual freedom of mind." 2. Forms of compelled speech: a. License plates can require vehicle owners to carry a government created and mandated message 3. Not all speech compulsions are unconstitutional a. Campaign finance laws require disclosure of campaign monies b. With respect to the forced contribution of money to an organization or group, ct has recognized three exceptions to the general rule that such compulsions are unconstitutional: 1) Compelled contributions to public sector unions 2) Required fees that lawyers have to pay to state bars 3) Mandatory student fees to public universities

1. West Virginia State Bd. of Edu. v. Barnette a. Background: 1) Nebraska state corral judge had a restraint against media from publishing statements of the D. question: did that violate 1a, ct said yes. The practical problems associated with putting a prior restraint on the press wouldn't have served the D's rights, even if it deprives him of a fair trial, newspapers don't have the same obligation that lawyers do. However, he didn't consider whether other measures other than prior restraint could be used to protect the D's rights. what else could he have done - sequestered the jury; change of venue. 2) Previous case had decided schools could require students to learn about US history. Made the pledge of allegiance to WVA students. b. WVA required all its schools to conduct courses in history, civics, and the US/state constitutions. Required that students salute the flag. Jehovah's Witnesses asked for an exception. SCOTUS said it was unconstitutional to require students to salute and pledge allegiance to the flag. c. How is this violating the 1A? they're compelling you to say something. And 1A protects expression, and not speaking is a form of expression. d. Ct says the forced pledge actually undermines loyalty. e. But is it more meaningful if you just have the option to sit out of the pledge? f. Thoughts 1) In a time of war, is it wrong to say we stand united? If we're willing to conscript people, send them overseas to fight for an ideal, is it wrong to say they also have to support this ideal? 2) Exercise 9, question 14: The Baker case. Baker refuses to do a cake for a gay wedding. He says you're forcing me to use my ability to do something I disagree with. Can we force somebody to use their art to do that? Baker won this case, ultimately. A lot of legislatures, though, said that you shouldn't be allowed to discriminate against a minority. a) There's a new case now - they wanted the same guy to make a cake for a trans party. So now he's back in court. b) Well, think: For Catholics, by going to a wedding, you're participating in a sacrament. That means you might have trouble finding a photographer or organist! They're saying "I don't want to speak/be part of this."

1) In-class notes a) History: traditionally, gov punished advocacy of illegal activity. Over time, there are four tests for incitement to illegal activity. A) Test 1: bad tendency test I) 1798-1800, French were considered terrorists. 1798 passed alien and sedition acts - people had to be in US for 14 years, rather than 5, to become citizens. Gave pres right to expel anyone considered dangerous, punish false, scandalous writings against the gov. most arrestees were rep editors of newspapers. II) The test that developed was clear and present danger. The elements: how substantial was the harm; what's the likelihood of the harm; how imminent is the harm. III) Jefferson opposed the alien and sedition act. And when he becme pres, he let the act expire. That expiration didn't end the challenges, though, under 1A. IV) In times of war, the first amendment kept coming under attack. There were all sorts of different laws that got passed. V) Bad tendency: if speech has a tendency to encourage activities that the gov do not want, then it can be restricted. B) Test 2: reasonableness test

A) Test 3: clear and present danger I) 1919, we get Schneck v. US. A socialist had a flier sent to recently drafted men, telling them that they were in involuntary servitude. He urged peaceful resistance against the draft. Could the gov criminalize speech that presented a clear and present danger to gov? Ct here said yes. Formulated the clear and present danger test. Things that aren't dangers in peacetime can be dangers in times of war. II) Another random case: Abrams v US: Russian immigrants who distributed leaflets that were pro-Russian revolution. Charged with violating espionage act. Holmes here said congress can't forbid all efforts to change the mind of the country. This is where he presented his "marketplace of ideas" concept. B) Test 4: Brandenburg I) What is this test: A state may not proscribe advocacy of violence for political reform unless that speech is advocating imminent lawlessness, and is likely to produce such violence. The mere abstract teaching of violent uprising is not punishable on speech grounds (Yates). II) What issues to look for: Probability Immanence Gravity of harm Intent to harm Express? III) Brandenburg: at the rally, KKK said a bunch of racist, antisemitic things. Chief issue was whether he was advocating for an overthrow of the gov. Ct said the statute he was convicted under was unconstitutional - it forbade advocating violent means for political, eco change. To limit this speech, there has to be a call for imminent, lawless action and is likely to produce such action. IV) Here, this guy was advocating to march on DC and in MS on July 4th. How likely were these things to happen? Not very likely. V) So: were not imminent, and were not likely. VI) Brandenburg says: has to be expressly advocating imminent danger. NOT: future danger via express advocacy, or discussion of ideals for either imminent danger or future danger. VII) So: it's kinda hard to have something meet this standard. Have to show that this isn't a hypothetical discussion. We're also talking about the receptiveness of the audience. Have to show a likelihood that people will agree with you. Think of Brandenburg in the contex of speaking to a large group. VIII) Drawback: speech can have actual negative consequences on society. IX) Ex the book on how to be a hit man: it is just a discussion of ideas. X) Hypo: law says that it is illegal for a person to explain how to make a bomb if they know the bomb will be used to commit a fed crime. Does this ocunt as advocating, since you know that some people will use it to commit a crime? Even though you're not expressly advocating for it? Presumably advocating is something different? Knowledge is probably less than intent.

I. What counts as protected speech A. "Pure speech" 1. What is pure speech? a. Pure speech: I'm just talking to you. 2. Cantwell v. Connecticut a. C was a Jehovah's witness, he bothered people on a public street. JW used to have records and would play them - they were against other religion, and here they were against Catholics. C was charged for a breach of the peace. He was in a Catholic neighborhood, approaching people on the street. Peds overheard it, were upset. Conn. Statute required solicitors to get a license before soliciting in public. b. Did the conviction violate first A rights? yes. It was protected speech - it didn't incite danger. The statue allowed local officials to determine which things were religious, which were offensive, which were not, and which violated the const. and we don't' want to give that authority to local officials. What they said might have been offensive to a lot of people, but it wasn't a clear and present danger. c. So if words create a clear and present danger, they aren't protected by First A. 1) Here, there was no threat of bodily harm, was protected religious speech. d. States, cities aren't allowed to deny based permits based upon what you are advocating for. Offending someone else isn't really a substantive evil, even though it's not necessarily a good thing. These records were offensive to Catholics generally - wasn't specifically targeted towards the peds who took offensive. To be limited, has to be targeted towards a specific person. e. Takeaway: Clear and present danger test. Here, ct is playing the role of the state, to determine if the state is trying to silence speech with which it disagrees, and ct says that is impermissible too. To make that determination, lookit viewpoint, viewpoint matter, conduct, conduct of speaker, time, place, manner.

A. "Expressive Conduct" 1. What is expressive conduct? a. Expressive conduct: I'm doing something to express an opinion/idea/thought. b. Timothy McVay blew up a fed building bc he was mad at feds. There was a message in there, but we won't say he's protected by First A. c. There are expressive forms of dance that are protected. In the format of conveying a message though, you're interfering with something that's actually pretty important. d. The hecklers veto: speaker comes to school, people shout him down. e. You can't charge people for turning people against you. f. Idea: we're protecting offensive ideas. Do offensive ideas contribute anything to the public discourse? Some people say no, they don't deserve protection. Speech regulation, though, could lead to over-censorship. You'll censor yourself if you know there is a line, bc you don't want to get anywhere close to it. But what if a terrorist group makes public how to make road bombs? Should we have that in public newspapers? g. Colin Kapernick taking a knee is expressive conduct, even though he's not using words, like Manning flipping off the other tea. Saluting flag is expressive conduct. All of those are communications and therefore first A issues. 2. U.S. v. O'Brien a. US v. Obrien: burning of draft cards. Ct in this case gives us a four part test to assess expressive conduct: whether gov regulation is justified, and: 1) Is it within the const power of the gov 2) 2) Does it further an important or substantial governmental interest. 3) Is that interest unrelated to the expression of speech/an idea. 4) The incidental restriction on expression is no more than is necessary to further that important interest. a) Here, they said it was in gov's power to hand out these cards, it's important to pull up men for the draft quickly. we don't care they're protesting, we care that they don't have the card. A) All we're really saying is that they've gotta have the card. They can burn whatever else they want to protest the war.

1. act has an "inevitable effect" of restricting abortion-related speech more than speech on other subjects. But a facially neutral law doesn't become content based simply bc it may disproportionately affect speech on certain topics. a. "a regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." 2. Ct said that the act focused on public safety; people can clog up entrances to clinics even if they aren't protesting. 3. Petitioners said that by only making the law apply to abortion clinics, and not every type of building, the state was trying to single out abortion speech. Ct said that the law was created bc there was a history of violence outside of these clinics. There weren't problems outside of similar clinics, so it made sense to make it tailored. And when selecting among options for combating a particular problem, legislatures should be encouraged to choose the one that restricts less speech, not more. 4. Ct says that the buffer zones substantially more than necessary to achieve the state's stated interests. State couldn't show that it had tried other, less intrusive methods. 5. In-class notes a. Ct said that the statute was content neutral, so no strict scrutiny, but it wasn't narrowly tailored, so it was unconstitutional. b. On its face, it was content neutral. But that only means you don't receive strict scrutiny. But you still have to pass intermediate, which means have to be narrowly tailored to serve a substantial gov interest. And this law didn't do that. They said there was already a law saying you couldn't aggressively approach people. what the gov was supposedly wanting to protect was public safety. How often do fights break out in front of clinics? c. Scalia said this was actually content based and should've received strict scrutiny. We probably wouldn't agree with him, but it was biased in how it was applied. d. Exercise 15: does this case override Hill, where the ct upheld the barrier and made it unlawful for one person to knowingly approach another? What's the difference? McCullen seems to be more viewpoint based bc it's allowing these clinic workers to announce what the protestors were saying by entering this zone. Anytime we have something that's content based, there's concern. If it's viewpoint based, it's even worse.

A. Further distinguishing between subject matter and viewpoint discrimination 1. The distinction between content-based regulations of speech and those that are content neutral has one further wrinkle: a regulation is content based if it is either: a. Subject matter based - happens when a regulation restricts subjects of speech b. Viewpoint based - happens when there is speech restricted bc of the speaker's viewpoint 2. Ex: say there's a licensing system for public use of a public park. If the licensing system authorized public rally permits for all subjects except abortion, it would be content based. If, however, it issued permits for all subjects including abortion but denied permits for pro life protectors, then it would be viewpoint-based. 3. Normally, this distinction doesn't really matter, bc in both instances it will mean a regulation is content based. However, the distinction does play a role in the government subsidy context. There, SCOTUS has developed the rule that the gov may make subject-matter distinctions between what it will and won't fund, but it may not make viewpoint distinctions. a. For ex, in National Endowment for the Arts v. Finely, the ct upheld a funding requirements "taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public" bc it wasn't viewpoint based. It didn't expressly threaten censorship of ideas. B. How to determine if a regulation is content based or content neutral 1. Facially content based and facially content neutral a. If a gov regulation of speech is facially content based, it's generally treated as content based. A regulation is facially content based if its terms id speech for positive or negative treatment based on the speech's content. b. If a gov regulation is facially content neutral, it'll typically be treated as content neutral. However, there are two possible exceptions to this rule, as shown in Reed v. Town of Gilbert 1) A regulation is facially content neutral when the regulation's terms don't id regulated speech based on the speech's content.

A. Four rationales that support free speech, why we need it: 1. Self-governance a. Here, the idea is that we don't have a king, we all get to vote on what we want to do, have representatives. How do we know what representatives are doing if we're restricted in what we can say. b. So: free speech is v important in politics. It's necessary to be an informed voter. We need to be allowed to criticize our officials. This is super super important. Receives highest level of protection. c. The fairness doctrine restricted tv, radio and said there has to be a balance between liberal, conservative, bc you're using public air waves. This doctrine kept networks from getting really political. As soon as the doctrine went away, we saw the rise of talk shows 2. Discovery of truth a. Marketplace of ideas: US got away from "master race" talk when, in WW2, we saw where it led b. There is some stuff that the US needs to keep secret, out of the news, like military secrets. But who gets to decide what we see and don't see? c. If you believe in absolute free speech, that might mean you let abhorrent ideas be said 3. Human flourishing in autonomy a. Defense of first amendment: human flourishing - it's intrinsically invaluable for you to become a full person to express yourself. Can you be a full human if you don't have those abilities? b. Admittedly some of the stuff you say may be hate speech. Also, in advancing your own autonomy, you could be infringing on the autonomy of others. 4. Promoting tolerance a. Tolerance is integral to our society. You have to put up with hard words, without resorting to fists. b. In 1980s, we saw a lot of universities going to speech codes. The criticism was that any restriction of speech wasn't used rightly. Most of those codes were found unconstitutional. Unis hen passed regulations saying that harassment wasn't unacceptable. Hecklers veto - don't let speakers speak. c. Threats aren't protected by the 1st A. that's why the guy who put a rope around the Meredith statue was prosecuted.

A. General notes 1. History details a. The 9th and 10th As are worded diff - the first 8th are restrictions on the fed gov. b. 1787, there was the debate on the floor that would restrict, make sure the new fed gov wasn't too strong. Worried that if they listed only some rights, people would say that there were only those rights. c. When const went up to be ratified, states required enumeration of things that the fed gov won't interfere with. One of the first conflicts: what are we going to call our leader. Some people thought that "president" wasn't enough. Some people wanted to call "his high mightiness." There was discussion of a three membr panel instead of a presidency. People weren't really sure, just didn't want another king. d. Each amendment in the BOR is in response to something that the English actually did. At least, this is true for the first eight. e. Religious freedom: Congress shall make no law respecting the establishment of religion. 1) Meaning: states had religions, congress wasn't going to screw around with them, and congress can't est its own religion. But more importantly, congress can't knock down the religions that we have. 2) By 1702, all states had at least some form of state-approved religion. This is important bc if today a state wanted to est a religion, we'd say no way in hell. 3) Most instances of state sponsored religion were removed before 1815. Most others were removed with the passage of the 14th amendment. 4) Rychlak says that religious motivation can underline a decision - aka, you can have a xn reason to ban abortion.

A. In terms of overbreadth: 1. The states have some latitude to regulate unprotected speech. The state, doing so, can be overly broad if it prohibits protected speech. 2. Is this so vague that someone with reasonable intelligence couldn't understand it. If so, then it's too vague. If it's vague, that raises issues of due process. 3. If 1A violation is alleged, a vague law is subject to facial analysis rather than an as-applied analisis. 4. The issue is that sometimes on its face a law won't be overly broad or treat two categories different, but as a pplied it does. 5. Ex: can't protest against he war. People who like war don't protest. So it's actually discriminatory as applied. 6. Background on vagueness: 7. City of rockford case: this was an anti-noise law that kept somebody close to a school from disturbing the peace. Ct says this isn't unconstitutional - it's not vague or overly broad. You can't make noise next to a school while school is in session. It's more of a time, place, manner ordinance. We're not stopping you bc of what you're saying.

A. Gooding v. Wilson 1. "Fighting words" are limited to language that has "a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." 2. Because the state of Georgia had not interpreted the statute narrowly in all past cases, the law, as construed by the state of Georgia, was unconstitutional. 3. Cursing and vulgar language that might be offensive to most of society is constitutionally protected. 4. Picketing around the draft. Guy pickets at the draft place, popo try to chase him away, guy threatens them. Said SOB three times to popo, was prosecuted for that. Issue: whether that speech could be punished. GA law said "Anybody who shall use without provocation abusive language...shall be guilty of a misdemeanor." Guy says 1A, free speech. Prosecution says these are "fighting words," which is an area of unprotected speech. Fighting words = prompt any normal American into a fistfight. 5. GA hadn't interpreted the statute narrowly, had construed it in such a way it was applied much more broadly than that. As construed, the statute was therefore unconst. Therefore, they couldn't prosecute Wilson for what he said to popo. This case has never been overturned, but a lot of people doesn't think it has lasting validity - GA couldn't construed it broadly and been ok. A lot of people think if a true fighting words case had reached SCOTUS, the ct might overturn fighting words doctrine. 6. Fighting words are limited to direct language that has a tendency to cause violence in the person to whom they are directly addressed Significance of Gooding case, along with Cohen case (guy goes into courtroom with a shirt saying **** the draft, was prosecuted for wearing disruptive clothing in ct. here, ct upheld his 1A rights): cursing and vulgar language might be offensive to a lot of people, but it IS const protected.

1. SCOTUS has extended its holding in Barnette to the right to associate. This occurs two main ways: a. SCOTUS has ruled that the gov may not force an expressive association to accept members that will alter the association's message. b. Second, SCOTUS has ruled that the right to association limits the gov's ability to force an association to identify its members 2. Janus v. American Federation of State, Cnty., and Municipal Employees, Council 31 a. SCOTUS overturned a four year old precedent and held that requiring public employees to pay "agency fees" to unions is unconstitutional even if those fees are used only for speech that is "germane" to the organization's activities. b. Shows the ct's willingness to reconsider whether forced contributions to certain groups like unions, state bars, student governments, which then can use the money to engage in speech with which a public employee, attorney, or student disagrees, is unconstitutional c. IL public employees were required to pay union fees. Employee said he didn't want to have to pay money to this group who is saying things that I disagree with. Issue: State was saying that you HAD to contribute. State ultimately said that 1A prevails over the state's prerogatives. d. Issue: if you overturned previous cases, then you would overturn stare decisis, and a bunch of state ks. Stare decisis, but the ct concluded this shouldn't be a factor, even though it would cause a lot of issues in a lot of states. e. The reason that the state had made people do this in the first place was that they wanted to avoid "free riders" - the unions would advocate and get better conditions for everyone, but not everyone would pay dues. f. Thoughts 1) This brings up the issue of state bars. You have to pay dues as a lawyer. But what if you disagree with something that you're lobbying about. Should you be required to have your money support advocacy going the other way?

A. Government makes speaking (more) costly 1. Gov can infringe on freedom of speech by increasing the cost of speaking. This occurs in two main ways: a. Gov can remove the monetary benefits one would otherwise receive from speech b. Gov can impose monetary liability for one's speech 2. The court has repeatedly ruled that denial of compensation for speech infringes the freedom of speech 3. Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd. a. Ct considered a state law that required an accused or convicted criminal's income from works describing his crime be deposited in an escrow. These funds are then available to the victims of his crime, and his other creditors. b. Facts: Hill wrote a book about his life in organized crime. c. Crazy guy was a mass murderer. Son of Sam was a serial shooter in NY for about a year. Subsequently indicted, he confessed to all shootings, said he was obeying the orders of a demon named Sam. He was found guilty, sentenced to six life sentences. He said later devil story was a hoax. He gained a sort of celebrity status. There was speculation publishers would offer him a lot of money for his story, so NY passed a law saying no criminal could profit off of a book/movie/etc based on his crime. d. It was determined it was an unconstitutional tax on freedom of speech. e. Why did the state enact this law? f. S&S challenged this law bc they had already paid money to a gangster who was writing a book. g. (???) NY changed the law, said now you can't profit in ANY way, not just via speech. h. Think also: if you're a victim, you can sue the guy and get your money. You can't just not allow them to get money. Counterargument: don't want to encourage criminal behavior in society. If they have money, though, then people can at least sue and get something 4. Unconstitutional conditions doctrine: govs may not condition the grant of a discretionary benefit on the relinquishment of a const right.

a. In-class notes 1) Gov can have an opinion, can decide whether or not to promote something. In pleasant grove case, they had a monument of the ten commandments. A diff religious org said they wanted to put a monument in one of the parks. City said no. the org filed suit, saying their speech was infringed on. 2) Question: did the city's refusal violate 1A free speech rights. SCOTUS said no. the monuments represented an expression of the city's viewpoints and therefore was a form of city speech. Permanent monuments are a form of gov speech, are therefore immune from 1A review. 3) Did they get this case right? R has problems with it. The issue is the tie-in with the religious aspects of 1A as well. if a city takes a position on a health thing, that's one thing. It's another when it says here's our religious belief. We're going to deal with that a lot more skeptically.

A. Matal v. Tam 1. A rock band wanted to trademark their name, but the name was a derogatory for Asians. The band was made up of Asian Americans. The PTO denied the application bc there was a federal law prohibiting the registration of trademarks that may "disparage or bring into contempt or disrepute any persons, living or dead." 2. SCOTUS here said that this law violated the free speech clause - free speech cannot be banned just bc it is offensive. 3. The free speech clause doesn't require the gov to maintain viewpoint neutrality when its officers and employees speak about a particular venture. But if private speech could be passed off as gov speech by affixing a gov seal of approval, gov could silence or muffle the expression of disfavored viewpoints. The federal gov isn't permitted to reject a trademark just bc of a viewpoint that it appears to express. Therefore, it's far fetched to say that the content of a registered mark is government speech. Registration does not constitute a mark of approval. And gov doesn't come up with the trademarks, it doesn't make them, and trademarks haven't been historically used to communicate with the public. 4. In short: trademarks are private speech, not government speech. 5. In-class notes a. Ct said the act was unconstitutional. The law was unconstitutional bc there was viewpoint discrimination. It applied to racial and ethnic groups, therefore facially discriminated on viewpoint. If you have something that gives offense, you have viewpoint, and if you have viewpoint that's restricted, then constitutionally right off the bat we have a problem. b. Was this a matter of gov speech? No. the gov wasn't really taking a position in this case. this is the gov just approving/disapproving of a diff application, and that doesn't constitute gov speech. This also wasn't a gov-provided subsidy. c. Said that commercial speech can only be regulated if it if narrowly tailored to serve a substantial gov interest. Ct said none of these were met in this case. d. Is it possible to ban speech bc it offends others based on racial component? 1) Are we going to let the law say that only some races can trademark x? needs to be that we either do or don't allow it. 2) You're allowed to have diff viewpoints. e. We protect the freedom to express the thought that we hate. f. Kennedy concurs. Thomas wrote a separate opinion, says that any regulation of commercial speech should receive strict scrutiny. It currently doesn't receive that level of scrutiny. g. Should the gov be able to ban offensive speech regardless of the circumstances? 1) There is a diff from saying something antisemitic in front of a synagogue than just doing it in the town hall.

1. Smith rule - cts have used this to decide if a law has violated the 1A a. Neutral, generally applicable laws, that incidentally burden religious exercise, are subject to rational basis review under the Free Exercise Clause. Aka, generally ok, even if they might affect religion. b. Gives us an approach that has three factors we'll look at 1) Is there a secular purpose for the gov action. (as opposed to religious purpose, like everybody has to go to church on Sunday) 2) Does the gov action advance or inhibit religion. a) Dry counties are an ex of this, as are laws that say can't buy liquor on Sundays. 3) Is there an excessive entanglement with religion.

A. Og meaning of the Free Exercise Clause 1. Free exercise clause reflects the initial and expanding religious diversity of US people. 2. Major axis of contention regarding the og meaning of the FEC has been whether, and if so under what conditions, does FEC entitle one to an exemption from a law that burdens one's religious exercise? 3. Members of congress didn't think that free exercise entitled one to exemption from general laws - struck down a const religious exemption from the duty to bear arms

1) Petitioner made a crude cross and burned it in a black family's yard. Ordinance prohibited burning of crosses or swastikas, or other symbols that cause one to have reasonable grounds to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, commits disorderly conduct. 2) Petitioner said ordinance was substantially overbroad and impermissibly content based. 3) Ct said that the ordinance reaches only those expressions that constituted fighting words. Ordinance was facially unconstitutional in that it prohibited otherwise permitted speech based only on the subjects addressed by the speech. 4) Ct said that 1A imposes a content discrimination limit upon a state's prohibition of proscribable speech. But this discrimination isn't absolute. It applies differently in the context of proscribable speech than in the area of fully protected speech. 5) "Applying these principles to the ordinance, we conclude that the ordinance is facially unconstitutional. Although the phrase "arouses anger, alarm, or resentment in others" has been limited by the MN Supreme Court's construction to reach only those symbols that amount to fighting words, the remaining unmodified terms make clear that the ordinance applies only to fighting words that insult or provoke violence "on the basis of race, color, creed, religion or gender." Displays containing abusive invective, no matter how vicious or severe, are permissible unless they're addressed to one of the specified disfavored topics. Those who wish to use fighting words in connection with other ideas - to express hostility on the basis of political affiliation, for ex, aren't covered. 6) What we have here isn't a prohibition of fighting words that are directed at certain persons or groups, which would be facially valid if it met the requirements of the Equal Protection Clause, but rather a prohibition of fighting words that contain messages of bis-motivated hatred. 1. Review a. Levels of scrutiny 1) Rational basis test - "reasonably related" to a "legitimate" government interest 2) Intermediate scrutiny 3) Strict scrutiny - "narrowly tailored" to serve a "compelling" government interest, and the government uses the least restrictive means available to accomplish that compelling interest

A. Public Forum Doctrine 1. Breakdown a. Quintessential public forums (streets and parks): no content-based exclusion unless compelling interest and narrowly drawn. b. Voluntary public forums created by state: same test c. Public property which is not by tradition or designation a forum for public communication: state may reserve for its intended purposes, including communicative purposes, so long as reasonable and not merely viewpoint discrimination. 2. Introduction a. PFD is the analysis SCOTUS utilizes when evaluating speech on gov-owned property; it's the ct's mechanism to navigate the tension between two competing goals. First, the gov typically utilizes its property for a public purpose, so the ct wishes to preserve the gov's ability to do so. Second, free speech needs space, so the ct wishes to ensure adequate room for speech b. PFD originated in the 1930s, when SCOTUS began apply 1A to the states via incorporation. c. In-class notes 1) Davis v. Massachusetts: a city/county/state owns property the same way people do - they have the ability to/to not permit stuff on their property the same way anybody else would. Absolute discretion to control the use of public property. SCOTUS said yeah, we agree with that. That's the background of the Hague case 2) Hague case: logic behind gov's lack of ability to restrict comes from: ct doesn't really tell us - just get conversation about history and tradition. This is how it's always been, it's how it probably should cont to be. 3) In the modern era, we can ask whether it still makes sense to think along these terms. 4) City of Rockford case not in book: city limited the ability to hold meetings in shopping malls. Mall had taken over the idea of a city street. People wanted to use the idea of the city street, now being in the mall. Tha ideas has gone away bc malls have

I. Vagueness and overbreadth A. General notes 1. States have some latitude to regulate unprotected speech. A statute doing so is overly broad if, in proscribing unprotected speech, it also proscribes protected speech. 2. If a prohibition is too unclear for people to reasonably know whether their conduct falls within the law, they may avoid anything that could possibly fit the wording of the law. The law's effects are thereby broader than the Constitution permits, and hence the law is overbroad. B. Vagueness and overbreadth are related doctrines that one can use to challenge infringements of the freedom of speech. 1. A law is vague if a reasonable person wouldn't know what speech a law permits or forbids 2. A law is overbroad if it regulates substantially more protected speech than is necessary to effectively regulate the protected speech C. Vagueness 1. Vagueness is the legal doctrine that requires reasonable clarity of free speech restrictions. 2. "A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its interpretation" is impermissibly vague 3. Cincinnati v. Coates a. This statutes was impermissible vague: "It shall be unlawful for persons to assemble on sidewalks and conduct themselves in a manner annoying to persons passing by." D. Overbreadth 1. The overbreadth doctrine states that a speech regulation may not regulate substantially more protected speech than necessary to effectively regulate unprotected speech. 2. A key facet of this doctrine is that it permits one whose own speech isn't limited by a speech restriction to challenge it.

A. Strict scrutiny (content not neutral): Compelling gov interest, narrowly tailored. 1. Intermediate scrutiny (content neutral) B. Overbreadth doctrine: if it's not clear what the law is prohibiting, that's not good. Esp in 1A cases - people won't want to cross a line, so they'll restrict themselves even more than they would if it was clear. 1. Stolen valor: if you claim to be a veteran and you're not, that's not cool. SCOTUS overturned this law, said that you couldn't criminalize it. Bc it was unclear what they meant by saying "you say you served your country." 2. Moving beyond vagueness to content based stuff: P96. C. Legal Services. V. Vasquez, p96. What happens when feds fund a legal services program and says we don't want you challenging the laws/raising constitutional issues against us. Aka, we're funding you to help out people, but we aren't funding you to sue the gov. 1. Ct says in this case: this violated 1A bc it regulated private speech and insulated the fed law from fed judicial challenge. 2. Ct distinguishes - they're not trying to advance a gov message here. We're just here to help people get legal services. This is how they make it align with other cases. Scalia disagrees. 3. What if our innocent project engages in lobbying efforts? Should the state be funding people lobbying the state to change what it's doing? Should the state be able to pull its funding? Well, SOMEBODY has to do those kinds of jobs. Somebody has to be a public defender, for ex. And public defenders have to be able to argue against the laws, sometimes. So ct here says that that would be a violation of 1A. despite this, though, there are times that this almost happens.

1) Two key issues: a) To what extent must the gov treat religious speech the same as nonreligious speech in a public forum A) In a series of cases, SCOTUS has ruled that the gov must treat religious speech identically to non-religious speech and that limits on religious speech may violate the free speech clause B) Rosenberger v. Rector and Visitors of the University of Virginia I) UV authorized the payment of outside contractors for printing student publications. Withheld authorization for payments for the present case bc the student paper "primarily promoted a particular believe about a deity or an ultimate reality." II) Ct said that UV had created a limited public forum and couldn't exclude speech where its distinction wasn't reasonable in light of the purpose served by the forum. And here, the supposed purpose was to encourage discussion of different ideas. III) In-class notes i. Rosenburger case ii. R published a Christian magazine at the university. University said wasn't going to give them money, was prohibited by uni guidelines. Ct said uni couldn't turn down money to the magazine solely bc it was religiously-oriented magazine. iii. How is this diff from other xn org case we looked at: one was about membership and keeping people out based upon signing a pledge - but anybody can read this magazine. It has a viewpoint, but people aren't prohibited from working on it or reading it. iv. Uni was imposing a viewpoint burden on R by not giving him money. Student activity fund is a metaphysical forum to which the ct's public forum doctrine rules apply. Refused to treat student newspaper funding and student forums as the same. Has to promote all forms of speech equally. Exclusion of certain views is offensive to the concept of free speech. b) To what extent does the establishment clause require the gov to exclude religious speech from a public forum

I. Con law review exam A. If you have a question that builds on a question, provide an answer to the second question using both options from the first part. B. Question 1: when speech and conduct are combined, speech can be limited to serve an important gov interest. Bc there was a true gov interest in having these cards, speech restriction was ok. Can also in a rush say "O'Brien test applies." C. 2: expressive speech is conduct. This was expressive speech. 1A protects expressive speech. D. 3: idea that money is speech is important. Therefore, limiting you spending money on behalf of yourself wasn't const bc we're limiting your ability to speak for yourself. The reason we limit donations is bc donation carries the risk of bribery/buying of a candidate. When you spend money on yourself, no risk of bribery. That's why they're treated different. E. 4: worrisome bc the idea might not be expressed. We might have restrictions that come in after someone has spoken. Can be justifiable. But it's a rare thing. It's more acceptable to evaluate a statement that's already been made than to ban it in advance F. 5: might overly restrict your speech, so becomes a big burden on free expression - you're not sure bc it's vague. G. 6: const to restrict this type of speech. Outside of 1A protection. This comes from Chaplinsky, there's a question whether this is still valid law. H. 7: "How" of speech - ex, how a flag could be displayed. Rock against Racism case - not stopping you from playing, but will regulate level of noise. These are usually permissible.

1. In-class notes a. Content based restrictions get strict scrutiny. If didn't impact 1A, it would be rational basis. Content neutral get intermediate. Strict scrutiny requires that a law that affects a fundamental right have a compelling state purpose in order for it to be const. and then you have to require the law be narrowly tailored to achieve that purpose. And there "cannot be another method fo achieving this purpose without infringing upon the affected person's rights." b. One early case to impose strict scrutiny: 1942 Skinner v. Oklahoma. Allowed for sterilization of Defendant - wasn't a 1A case. ct said strict scrutiny had to be implemented when infringing on someone's rights like that. Standard was raised again in the Japanese internment case - involved internment of US citizens during WW2. The ct thought the need was sufficient for the internment. Strict scrutiny when there's a fundamental right, which for us means content based speech. c. IS: impacts free speech but isn't based on content, just speech more generally. To pass IS, it has to further an important gov interest to achieve a gov purpose. And it has to do so by means that are substantially related to that interest. So this is a less rigorous standard. d. Some cts refers to IS as "heightened scrutiny." e. For our purposes, IS is just for restriction of speech that's not related to the content of speech.

I. Government Speech A. Intro 1. In the early 1990s, SCOTUS began articulating the government speech doctrine. This doctrine states that the free speech clause doesn't apply to the gov's own speech. This means that, when the gov is speaking, the rules regarding content neutral and content based regulations don't apply. a. One problem with the doctrine is determining when the gov is actually speaking. This is esp hard when the gov claims the speech of nongovernmental actors 2. Pleasant Grove City, Utah v. Summum a. Issues: whether the free speech clause entitled a private group to insist that a municipality permit it to place a permanent monument in a city park in which other donated monuments were previously erected. 1) Ct ultimately concluded that although a park is a traditional public forum, the display of a permanent monument isn't a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of gov speech and is therefore not subject to scrutiny under the free speech clause. b. The city park contained 15 permanent displays at least 11 of which were donated by private groups. The respondent was a weird religious group that wanted to put up a monument. The city denied the request and said its policy was to limit monuments to this that 1) related to the city's history of 2) were donated by groups with longstanding ties to the community. The respondent didn't describe the monument, its historical significance, or the group's connection to the community. c. Key issue was whether when the city permitted privately donated monuments to be erected in the park if it was engaging in their own conduct, or providing a forum for private speech. 1) If the city was engaging in its own expressive conduct, the free speech clause had no application - the clause doesn't not regulate government speech, as a gov entity has the right to speak for itself. 2) Ct said that permanent monuments displayed on public property typically represent gov speech. Ie, the city was speaking, and not providing a forum for private speech. Ct noted that monuments have long been used as a way for govs to speak. And "just as gov-commissioned and gov-financed monuments speak for the gov, so do privately financed and donated monuments that the gov accepts and displays to the public on gov land."

A) In-class notes I) Church fired teacher with a disability bc she wanted accommodations for her disability. EEOC said they unlawfully fired her. II) THIS is the narcolepsy case. III) Amos case: woman worked in school system affiliated with Mormon church. She claimed it was rel discrimination bc she wasn't Mormon. Issue: was she a teacher or a minister. There was enough evidence to show she was a minister. So this fell under ministerial exception. Said that ministerial discretion gives complete discretion to the church - doesn't matter that she was technically fired for her narcolepsy, not something related to her ministry. Can fire her, as a minister, even for a bad reason. IV) They were allowed to fire her bc of the ministerial exception. V) Said she was a minister bc she taught rel subjects, effectively functioned as a minister. VI) Said they were firing her bc of her faith, but really did it bc of her disability. Ct said it didn't matter - couldn't get involved. VII) Distinguish from peyote case: maybe just bc they weren't ministers. Also, they didn't work for the church. VIII) Ministerial exception says gov has no role in deciding who rules in a church. Church also gets to decide why and when to fire somebody. 1. Limits to free exercise of religion a. You cannot violate criminal laws 1) Polygamy is against law (Reynolds v. US, 1879) 2) Child labor (Prince v. Mass, 1994) 3) Drugs (Oregon v. Smith, 1990) b. You can't endanger the community 1) Vaccination - although your church may be opposed to vaccines, gov won't allow it in schools - Jacobson v. Mass, 1905 (this might be updated) 2) Poisonous snakes - although your church practices snake handling, gov won't allow it (Bunn v. NC, 1949) c. You can't avoid the draft Welsh v. US, 1970 - although Quaker church forbids military service, gov can draft you in an alternative service, like hospital work.

I. The Establishment Clause A. Intro 1. SCOTUS's EC doctrine is muddled 2. Original meaning of the EC a. Means, at least, no state or the feds can set up a church, pass laws which aid a religion or prefer one religion over another. b. Since Everson, scholars have advanced three basic interpretations of EC's og meaning: 1) Strict-separationist interpretation; follows Everson 2) Non-preferentialism, which states that the fed gov may not preferentially aid or prefer religion over nonreligion, so long as it does so on an equal basis 3) Federalism interpretation. Holds that EC affirmed that the feds didn't have the authority over the subject of religion, and esp, EC precluded fed interference with state religious establishments. B. The seminal case: Eversion v. Bd. of Educ. and the Birth of Strict Separation 1. Introduction a. Only a few SCOTUS cases involved the establishment clause in 19th and 20th cs. 1) One reason why: new deal. SCOTUS retreated from vigorous judicial review during the new deal. 2) Second reason: relaxing of standing requirements. Means that few people had standing to challenge allegedly unconst church-state relationships. However, beginning with Flast v. Cohen in 1968, SCOTUS carved out an exception to the rule against taxpayer standing for EC challenges. This dramatically expanded the universe of potential Ps to include people who were, for ex, emotionally offended by religious displays 3) Third reason: widespread and deeply entrenched set of governmental religious practices. Made few aggrieved people and put social pressure on those who were aggrieved to "go along" with the practices. Made it politically difficult for cts to work against such practices. But with the rise of religious pluralism, not just protestants running around; more Americans didn't view these traditional religious practices in the same light, and there was less social pressure to remain quiet if you were offended by them.

A. 8: content neutrality refers to a reg that prohibits speech but isn't targeted at what's being conveyed. Don't care what you're talking about, we just have a restriction that we don't want noise outside this place at this time. lot like time place manner. Not about anything or a particular viewpoint. Usually upheld B. 9: rests upon idea of incitement. Speech is protected, but have to look is it purposefully made to incite illegal action and is likely to cause that action imminently. C. 10: commercial speech - usually it's an offer to enter into negotiations. Usually like an advertisement. It's not protected to the same extent as say political speech would be. Lower threshold of protection. Cts must determine if speech is misleading or illegal, whether the law is effective in achieving that advancement, is law narrowly tailored. Write the whole test. D. 11: NY Times case. Curtis Publishing case extends this to famous people/public people. third line: 1974 Gertz v. Robert Welch - G was an attorney, and he represented Robert Welch, who founded John Birch society (ultra conservative group). The society runs an article criticizing a lawyer, Gertz, saying he was a communist. He sued for libel. Lower cts said actual malice standard. SCOTUS said G wasn't a public official - just bc you make the news every now and then doesn't mean you're a public figure. So not subject to that standard. Has been some effort to overturn Sullivan case.

I. The Free Exercise Clause A. Intro 1. History a. Beginning in the 1940s, SCOTUS moved toward significant protection for free exercise claims up through the early 70s. b. SCOTUS moved toward and adopted the relatively unprotective Smith Rule in Employment Division v. Smith. Since Smith, there has been significant fed and state legislative activity that more robustly protects religious liberty c. There has, however, been little movement from SCOTUS to limit Smith until recently d. In 2019, four justices indicated a willingness to revisit Smith. Ct has been receiving more petitions asking ct to reconsider Smith e. In-class notes 1) 1A guarantees free exercise of religion. 2) Three concerns: 1) compulsion - worried you might be compelled to adhere to a particular state religion. 2) threats to the civil state - what effect on the gov if religion is superimposed over that. 3) what does it do to rel if the gov puts its foot in it too heavily. 3) Is religion important to gov? Washington's inaugural address - thought that our system can only survive if people are religious, that there was a need for religion to have good citizenship. 4) Truman referred to the "valiant pioneers who left Europe." Xn religious groups played a big role in the est of colonies. Most of them req people attend church, pay taxes that funded ministers. 5) 8 of 13 colonies had official or est churches. People who wanted to proselytize something else were sometimes persecuted. Most colonists considered themselves xn, but didn't mean that had religious unity. 6) 1680-1760, Anglicanism and Unitarianism were est as main organized rel in most colonies. 7) Colonists understood freedom of rel diff than we do. But by the time of cost, general recognition of freedom of rel that was important. 8) PA was the first const to state that all who believed in god, lived peaceably, would not be persecuted for rel practice. Many states followed this precedent. 9) Does the EC mean equal treatment of rel, or equal treatment of rel and non-rel? That's always been an issue.

A. Citizens united case 1. Federal elections committee regs said you couldn't come out with a political movie shortly before an election. Here, they were going to put out a movie about Hillary right before her election. 2. Citizens united bring lawsuit against the FEC. 3. Scotus says corps are people too, they have right of free speech. They have a right to petition the gov, a right to speak. 4. Majority held that corp funding of indep political broadcast cannot be limited. Pol speech cannot be banned based on corporate identity. 5. This is a v controversial case. Today, what do people think? 1A people think this is a great case. 6. This case led to "super pacs." B. Unprotected activity 1. If regulated activity isn't pure speech and isn't expressive activity, then it's noncommunicative activity that isn't protected by the Free Speech Clause. For ex, if a person is pulled over for speeding, and driver didn't intend his activity to communicate his message and "the audience/other drivers" wouldn't understand the message, then the activity wouldn't be protected under free speech. 2. Another ex: nudity by itself, not as part of a larger work or art, or couples with some other expressive speech, is noncommunicative and therefore unprotected activity.

I. When is freedom of speech infringed A. What constitutes interfering with freedom of speech? 1. First of all, speech does have to be communicative. There's a case out of Miami challenging restrictions against nudity on the beech. Point argued was free expression, said that mere nudity by itself isn't expression, therefore not protected. B. Prior restraints 1. Prior restraint = a governmental order directing a person to not speak or publish. In the UK, these took the form of a licensing system. But they have been rare in the US. 2. Classic form of infringement: prior restraint - where you need to have advance permission given. Two ways today that prior restraints occur: a. when there's a judicial order, or b. there's administrative licenses that have to be issued before you're entitled to do something. 3. Prior restraints distinguish from after the fact restraints. 4. Historic ex: tort suit after a case for libel. There's punishment for your expression, but you weren't stopped in advance for saying it. Prior restraint is where you're stopped in advance. 5. Prior restraint is subject to strict scrutiny if it is content based. 6. If there's a licensing system, that can also be a prior restraint 7. Exercise page 65 a. Why are prior restraints worse than after the fact punishments: with other restrictions, you're at least allowed to say your ideas. Prior restraint prohibits this. Punishment after the fact at least allows you to say what you want to, have others hear you. b. What are the true costs and benefits of this type of statute, and who is best suited to determine this? c. When are prior restraints permissible? A gag order - when it can affect a trial. The normal way for a gag order to apply is to tell the LAWYER they can't talk about it. The judge CAN'T tell the newspaper, tv to not talk about it. That's not the press's prerogative, while the lawyer is an officer of the ct.

1. Less-protected speech a. Introduction 1) For each category discussed, SCOTUS has given us a category-specific approach, even though they are protected b. Commercial speech 1) History a) For most of US history, commercial speech was heavily regulated and didn't receive first amendment protection b) In 1975, scotus reversed courts and ruled that it did receive free speech protection. This was followed by a definitive ruling in Virginia State Bd. Of Pharmacy case. c) In-class notes A) Chaplinski case didn't specifically mention commercial speech, but shortly after that, the ct added commercial speech in Valentine v. Chesterton, as unprotected speech. This got overturned later. But in this case, Dr. Chesterton was trying to hand out hand bills describing his business. 2) Virginia State Bd. Of Pharmacy v. Virginia Citizens Consumer Council Inc. a) VA statute said that a pharmacist licensed in the state was guilty of unprofessional conduct if he "publishes, advertises or promotes, directly or indirectly, in any manner whatsoever, any amount, price, fee, premium, discount, rebate or credit terms...for any drugs which may be dispensed only be prescription." b) Ct said that commercial speech was protected by 1A, but that doesn't mean it can never be regulated. Gives some exs of how it can be regulated: A) Ads cannot be untruthful. States can take initiative to make sure ads are not misleading, either. c) After this case, it was clear that commercial speech received protection, though something less than full free speech protection. But it wasn't clear what standard distinguished commercial from noncommercial speech. What about speech that mixes core commercial speech with noncommercial aspects? Ct gave the test for this in Bolger case.

a) In-class notes A) Va law banned the advertisement of drug prices. B) They wanted to keep things professional. Ct says that banning the ads doesn't do anything to maintain professionalism. So we went and overturned Valentine case. C) Let's define commercial speech, bc it's not only profit motivated speech. Commercial speech is "speech which does no more than propose a commercial transaction." D) Why does commercial speech get less protection than other kinds of speech? There may be legit issues for consumers. E) Why does it get protection when other types don't get protection: the consumers interest in full info about drugs, medicine, their health - they might be more compelling than political matters. Matters relating to your health may be even more important to you than who's going to be mayor. Ct also said that these kind of discussions might enlighten our political discussions. F) Ct rejected all of the stat's justifications for this ban as paternalistic. Should let people make their own decisions. G) Ct did suggest some situations where ads might get less protection - ex, illegal transactions. If it's illegal to have heroin in MS, you can ban ads for heroin. Second ex: factually false ads. Another thing: Deceptive ads - subject to greater regulating that deceptive political expression. Aka, politician can make claims that we would not permit similar exaggeration with commercial speech. H) Commercial speech isn't speech paid for by money. Not speech motivated by economic concern. Not speech about commercial matters. Commercial speech is just speech that proposes a commercial transaction. I) Can be regulated via time, place, manner. J) Restrictions on false or misleading ads. K) You can have restrictions on commercial speech that relates to an illegal transaction.

a. Obscenity 1) Notes on developments in the law of obscenity between 1967-1973 a) Memoirs v. Massachusetts test (1966) A) 1) the dominant theme of the material taken as a whole appeals to the prurient interest in sex; B) 2) the material is patently offensive to contemporary community standards; and C) 3) the material is utterly without redeeming social value b) Stanley v. Georgia (1969) c) US v. Reidel (1971) 2) Roth v. US said that obscene materials don't merit first amendment protection. The ct here defined obscenity as "material which deals with sex in a manner appealing to prurient interest." Prurient interest was defined as "material having a tendency to excite lustful thoughts." 3) After Roth, SCOTUS was inundated with challenges to obscenity laws. The ct fractured on what standard to apply. Today, the ct uses the test from Miller v. California. 4) Miller v. California a) Parts to this: A) Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to a 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 b) Appellant conducted a mass mailing campaign to advertise the sale of illustrated adult books. c) "State statutes designed to regulate obscene materials must be carefully limited. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law."

a) The 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 C) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. b) Exs of what a state statute could define for regulation: A) Patently offensive representations or descriptions of sexual acts B) Potentially offensive representation or descriptions of masturbation, bodily functions c) In-class notes A) Appellant convicted under CA statute after mailing out adult books. Prohibited knowingly distributing obscene matter. B) Ct says obscene matter is not protected by 1A. ct gives us a three-part test: 1) whether the average person applying contemporary community standards would find that the material as a whole finds that it appeals to a prurient interest (this is weird - community standards will differ. Does this make sense though today with the internet? Can we really make a law based on community standards when we're all across America. Another issue: how do you define what is, isn't offensive to a community) 2) whether the work depicts or describes, in a patently offensive way, sexual conduct, specifically defined by the applicable state law. 3) whether the work taken as a whole lacks serious literary, political, scientific, or artistic value. C) What kind of materials does this cover? Books, brochures that are sexual. Covres offensive sexual materials. Doesn't cover things that aren't sexual, like just violence or blasphemy. D) Definition also doesn't cover inoffensive sexual material. What is not protected: 1) offensive, and 2) sexual. E) Some people say that today, this community standard portion is obsolete, thanks to the internet. If we went to a national standard, there might be places where more obscene material is permitted, but there'd also be areas where less is permitted. F) What if you were hired to argue against people like to go publicly nude, what would you say: can argue that it wasn't a consensual action. Want to protect citizens - also, takes away from tourism dollars.

I. Content-based and Content-neutral Regulations A. First, we know that the const's protection for free speech is triggered when the gov regulates communicative activity in a way that infringes speech. Next, we must distinguish between content based and content neutral regulations of speech. B. Seminal case: Police Dep't of the City of Chicago v. Mosley 1. Chicago ordinance said that a person committed disorderly conduct when knowingly "Pickets or demonstrates on a public way within 150 feet of any primary or secondary school building while the school is in session..., provided, that this subsection doesn't prohibit the peaceful picketing of any school involved in a labor dispute." 2. Mosely was a fed postal employee who had picketed in front of a high school saying that the school practiced black discrimination for having a black quota. 3. SCOTUS said that the ordinance was unconstitutional bc it made an impermissible distinction between labor picketing and other peaceful picketing. 4. In-class notes a. Chicago ordinance said that people can't pick outside of a school unless they're picketing about labor. Guy was picketing outside of a school about discrimination. He said it violated his 1A rights. b. Why would we have this type of law? Chicago is a union city. Who'd be picketing labor outside of the school: teachers. If teachers can't picket ou of school, where will they picket? They'd be limited. Lawmakers were making a concession that actually seems kind of reasonable. c. BUT ct said it was unconst bc it discriminates facially - discriminates based on the content of the message. d. Content based restrictions are inherently suspect, have to be narrowly tailored to a substantial gov interest. Justice Marshall said that no such interest was served here (but we can argue against him - we don't want to disturb the school day, and if teachers are on strike, school is probably not in session anyway). But you can't have this law that allows some type of speech but not others. There are content, general, and viewpoint restrictions. Viewpoint is v bad: says you can speak on one side of an issue, but not another.

a. A. McCullen v. Coakley 1. Public forums a. There are places where trad, free speech is trad allowed. One of these is streets and sidewalks. Cities can put in requirements that you have to get a permit if you're going to block traffic, bc of safety concerns with cars. b. Courthouses are typically deemed public forum, including parks. c. BUT: residential neighborhoods can have some restrictions on them, esp time, place, and manner - can't go there in the middle of the night. But even these restrictions need to be content neutral. d. Page 102: Hill v. Colorado. Upheld a law that said it wasn't ok for a person to knowingly approach a person within 100 feet of any health care facility to knowingly approach within eight feet of another pson, without that person's consent, for the purpose of passing a leaflet or handbill to, or engaging in oral protest. Ct said the statute was NOT regulating speech, was a regulation of a place where some speech might occur. Nor did it place a restriction on any type of content that the person could say. This is a background to the other abortion case we looked at. Aka, there was a backgrounds aying that the law was neutral, was more of a time, place, manner restriction and therefore not unconstitutional. Background to Coakley case. 2. A Mass. Statute made it a crime to stand on a public way or sidewalk within 35 feet of a place, other than a hospital, where abortions are performed. The law exempted people going into or out of the facility; employees; municipal agents like firefighters and police; and people just using the sidewalk to get somewhere else. 3. Petitioners claim that there weren't being aggressive, and that the buffer zones hampered their counseling efforts. They were also upset bc the law allowed the clinic to hire escorts to help the women into the clinic. 4. The law was subject to 1A scrutiny bc it restricted access to what is traditionally a public forum. 5. Petitioners said that the act wasn't content neutral for two reasons: a. It discriminates bc only creates buffer zones at abortion clinic b. It favors one pov by exempting clinic employees and agents.

1) The ct's fullest justification for not protecting obscene speech is found in Paris Adult Theatre I v. Slaton a) Ct said that there were legit state interest in stemming commercialized obscenity - community environment, public safety. b) Adult theater, only let in people 21 and over. Ct said that if states have a legit interest in restricting that content, they can. You don't get protection just bc you limited your self to 21 and over. c) What state interest could a state have in regulating adult films: said it could lead to antisocial behavior. 2) In-class notes a) SCOTUS long said that obscenity, like fighting words, didn't get 1A protection. This changed around the 1950s. the questions that rise around obscenity: 1) why is it not protected; 2) what is obscenity. b) Roth v. US A) Union of two cases. One challenged a fed law, one challenged a CA law. Question was whether these restrictions violated the 1A rights of the providers. Ct said no it did not, prohibitions were upheld. Obscenity wasn't within the constitutionally protected area of speech. B) Test for obscenity at this time: whether the average person applying contemporary community standards determine that the material as a whole appeals to a prurient interest. Ct said at the time that this definition met the demands of due process. c) Primary reason it was deemed unprotected was bc it was thought to be of social unimportance. d) The thought, at the time of Roth, was that obscenity made no contribution to democratic self governance, no other 1A purpose. On the other hand, does ballet or modern dance, other types of art. Well, these types of art can contain political content!

a. Child pornography 1) New York v. Ferber a) NY statute targeted cp b) Five reasons why states have leeway in regulating cp: A) Physiological, emotional, and mental health of the child B) Miller test not a satisfactory solution to the problems of cp C) The advertising and selling of cp provides an economic motive for an illegal activity D) Value of cp is de minimis; E) Categorical ban is compatible with precedent c) Differentiate the categorical ban from Miller - limited balancing, focus on the creation of material d) State had a compelling interest in guarding minor's well beings, preventing exploitation and abuse. e) In-class notes A) NY statute against cp was violated. B) What is the rule we come away with: with cp, ct says that this is a categorical exception, no balancing test. By category, it doesn't even get balanced against some other interest. C) Why do we get to this point? Why do we balance other types of porn, but not cp? We want kids to become productive members of society. ALSO: kids can't consent to the production of cp. D) Cp just totally falls outside of the realm of 1a. E) Do you have a right to break the law to produce art? No. F) Ashcroft case: what about if we can make cp virtually? You're not using any kids. But is THAT then protected by the 1a? ct would probably then say that's protected. The reason cp now isn't protected is bc of the production aspect of it. BUT: it would still have to face a Miller test, and in some js, it wouldn't get protected. 2) Later, in Osborne v. Ohio, SCOTUS said that ban on the possession of child porn is constitutional. 3) "It is surely reasonable for the state to conclude that it'll decrease the production of child porn if it penalizes those who possess and view the product, hereby decreasing demand." a) As in Ferber, therefore, reducing the possession of child porn would reduce its production and attendant harms. 4) Today, CP is still firmly considered unprotected by the const. however, its scope remains uncertain. a) Ex: in 1996, child porn prevention act was passed. This act proscribed images that appeared to depict cp but which were made without actual kids. The ct struck down the act bc the speech it prohibited wasn't the result of, or would not result in harm to, children - the act was therefore overbroad. I) Congress then drafted the PROTECT act of 2003. This act prohibits the knowing pandering and solicitation of material that reflects the belief, or that is intended to cause other to believe the material is cp.

1) Kennedy, unlike Lemon, doesn't give us a clean and easy test to follow. Does give us six factors though that framers sought to FORBID: a) Gov control over doctrine and personnel of established churches b) Gov mandated attendance of established church c) Punishment of dissenting churches and individuals d) Restriction on dissenters' political participation. e) Gov financial support for established churches. f) Gov use of est churches to carry out civil functions. 2) Today where this really comes to issue is in public schools. How do admins deal with this new test. They can't just say "no religion" now. 3) Kennedy emphasizes coercion, looked to see if anybody else felt coerced to join him. a) There are other cases where coercion was just seen to be "if you're in the room and somebody prays, you're being coerced to see that." Ct says that's not really coercion, though. Coercion means you are forcing or wanting somebody else to participate. 4) Now look at coercion from a more trad definition. Are you coerced to join into this. It may be a harder call for some judges. Cts seem primarily concerned with whether school was trying to cajole students to join in a particular belief system, not whether they were just exposed to that belief system. 5) Hypos a) What if students get together before a game and want to say a prayer? If it's purely student led, then probably not a violation of EC. b) What if student wants to go up to microphone and pray before everybody before a school game? Might be ok if they have a history of starting games that way. Maybe not otherwise - much harder to decide a. Football coach said a prayer after a game. He was ordered to quit doing it. never asks students to join him. He was fired. Ct ruled in favor of the coach.

a. Ct said it was abandoning the Lemon test. b. Private religious speech can be made, and it's not a problem just bc it's not censored by the school. His prayers were private speech, rather than speaking for the school. Wasn't ordered to do this by the school. c. Nobody would confuse what the coach did with school sanctioned activities d. Instead of Lemon test and endorsement test, said EC had to be interpreted according to historical understandings. Wtf does that mean. e. Rule: a public school can not prohibit an employee from engaging in personal and private religious expression at the workplace, even when the expression is also overt and public. Means an Islamic teacher can wear her head covering. Xn teacher can wear a cross. 1) Here, prayer was private and personal bc students weren't required to participate. It was quiet. Even though students joined him, it wasn't upon coach's directly. Even though he was in school uniform, on football field. 2) Issue: was it really private since he was doing it in front of everybody? f. Does this mean that teachers can also start wearing campaign buttons in the classroom? Is there more space for sharing private opinions in general at school? Not sure yet whether this extends beyond religious expression and the EC. g. Does that mean you can express yourself religiously anywhere, anytime, as long as its not immediately in your classroom?

a. Nonpublic forum a) Default category for gov property. b) Gov speech restrictions for nonpublic forums must be reasonable in light of its purpose and be viewpoint neutral. c) Ex: gov can prohibit picketing in post office lobby bc that restriction is reasonable - it would preserve the lobby's use for patrons. It's also viewpoint neutral, as all picketing is prohibited. b. Gov property that's not a forum 1) Gov's property isn't a forum of any type when gov uses it to communicate its own message. For these uses of gov property, 1A doesn't apply. This is a manifestation of the government speech doctrine. 2) Walker v. Texas Division, Sons of Confederate Veterans, Inc. a) People could propose if they wanted to state to issue special license plates. The D here proposed a design featuring the confederate flag. b) Ct said that this did not violate free speech by denying to make the tag. Said that specialty license plates issued pursuant to TX's statutory scheme convey gov speech. A) Noted that tags have long been used to convey messages by the states, and they're often closely identified with the states. They're essentially gov ids. Also, TX has direct control over messages conveyed by its specialty tags. B) TX didn't intent to create any kind of public forum: "the state exercises final authority over each specialty plate design. This authority militates against a determination that TX has created a public forum. Second, TX takes ownership of each specialty plate design, making it untenable that the state intended plates to serve as a forum for public discourse. Finally, state plates have trad been used for gov speech, are primarily used as a form of gov id, and bear the state's name. these features of TX license plates indicate that TX explicitly associates itself with the speech on its plates." C) The fact that private parties take part in the design and propagation of a message doesn't extinguish the gov nature of the message. c) In-class notes A) District ct said that plates were private speech. Circuit ct reversed. SCOTUS says special license plate does constitute a form of gov speech that doesn't have to be viewpoint neutral. Preventing that flag from preventing on a tag doesn't prevent viewpoint discrimination.

a. Erosion of distinctiveness of public forum doctrine 1) Since 1970s, the public forum doctrine has lost much of its distinctiveness bc the architectonic distinction between content based and content neutral regulations has colonized many aspects of free speech law. Today, the ct's general free speech doctrine is relatively speech protective. As a result, public forum doctrine generally makes a diff in analysis and outcome in two situations: A) First, to the analysis in the context of a challenge to the scope of the limited public forum. Normally, gov may not utilize content based speech regulations, including both subject matter and viewpoint regulations. However, when constructing the scope of a limited public forum, gov may make subject matter distinctions. What this means is that if the gov would otherwise lose a case bc its speech regulation was content based and therefore subject to strict scrutiny, bc the gov's subject matter discrimination occurred regarding the scope of a LPF, it would win the case B) Second: PFD may change the result in the context of a nonpublic forum. There, the gov can make otherwise prohibited subject matter based distinctions excluding speech from the forum. b. The relationship between public forum doctrine and religious speech

1) Breaking down the tests - chart a) Advocacy of crime A) Imminent danger - 1 B) Future danger - 3 b) Discussion of ideas A) Imminent danger - 2 B) Future danger - 4 c) The bad tendency test permits punishment in situations 1, 2, 3, and 4. d) The Holmes-Brandeis version of clear and present danger permits punishment in situations 1 and 2. e) Dennis and Yates combined permitted punishment in situations 1 and 3. f) Brandenburg seems to permit punishment only in situation 1, and adds that it must be probable that the danger will materialize (disclaiming the results in Schenck and Abrams) 2) Bridges v. California a) Prior restraint of journalists, specifically pretrial coverage, is unconstitutional, unless there's a "clear and present danger to the administration of justice." b) This clear and present danger standard is "a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished."

a. Fighting words 1) Fighting words are words that "by the very utterance inflict injury or tend to incite an immediate breach of the peace." 2) The category of fighting words is subject to significant uncertainty, both regarding whether it remains a category of unprotected speech and, if it does, what the scope of the exception is. a) Chaplinsky is the seminal case discussing fighting words. Later cases have unsettled this area of the law, though. This later case law pushes the fighting words category in multiple conflicting directions. A) First, the case law requires that punishable fighting words must be directed at a particular person or persons B) Second, proscriptions on fighting words cannot be vague. C) Third, fighting words proscriptions cannot make content-based judgments among fighting words. 3) Chaplinsky v. New Hampshire a) The respondent, a Jehovah's Witness, on a public place told the complainant that he was a ********ed racketeer, and a damned Fascist. There was a NH law that said "no person shall address any offensive, derisive, or annoying word to any other person who's lawfully in any street or other public place." b) "The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight." c) The ct upheld the law. d) In-class notes A) How would you there's value in these types of words? He was just issuing an opinion. And it was an opinion about a public official - that should receive protection. Could also argue that these words don't incite a fight - he was just calling someone a fascist. B) What attitude is reflected in this law? There are words that would cause any red-blooded American to fight. These are basically an incitement to violence. C) "Lewd, obscene, profane, and libelous words are not protected" according to the ct. But this has basically been overruled by later cases. But you CAN prohibit fighting words "that incite the immediate breach of the peace." D) Think: we protect hate speech now, but we do NOT protect fighting words. Can we justify drawing the line between these things? Fighting words, maybe, are diff bc they're directly at someone specifically. On the other hand, the justification is v hard. E) Later cases have limited this really to swear words directed at a specific person, likely to incite violence immediately. F) SCOTUS has not ruled on a fighting words case since. G) Think also about the Skokie case, where neo-nazis were marching in a Jewish neighborhood. Should we consider what the nns were doing as fighting words? They were definitely doing it for the purpose of provocation, which makes it more like fighting words. H) In class: students say that it makes more sense to evaluate fighting words based on the intent of the speaker, not the reaction it causes in the listener. Aka, focus on whether speaker was trying to cause a violent reaction.

A. When is the free exercise of religion violated? 1. Intro a. Ct protects rel beliefs from both gov actions. However, case law isn't clear on the extent to which the FEC protections religiously motivated ACTION. 1) At diff times, SCOTUS has afforded religiously motivated actions more or less protection. b. There are three diff approaches that the ct has taken regarding religiously motivated action. 1) First, ct provided relatively little protection 2) Second, ct adopted the strict scrutiny analysis you learned in volume 5 to provide relatively robust protection for religiously motivated activity 3) Third, and most recently, ct reverted back to its og position: relatively little protection for religiously-motivated activity

a. First major SCOTUS case to apply the FEC: Reynolds v. US 1) In-class notes a) Mormon practiced polygamy. He wanted jury instructions to say they had to acquit him bc he broke the law bc of his belief. SCOTUS said we can't allow you to break the law just bc of your religion. b) Congress can't tell you what rel you can have, but it can tell you what the law is. c) Ct said a rel duty/belief is not a defense to a criminal charge. d) Ct quotes a letter that T. Jefferson wrote to Baptist ministers, where he talked about the wall of separation between church and state. e) Ct here has a distinction between belief and action. The distinction speaks to the concern of allowing believers to disobey a law that binds everybody. If we allow that, everybody becomes his own law, law falls apart. f) Was this a neutral law? Yes. Nobody could have multiple spouses, and it probably wasn't even drafted with Mormons specifically in mind. 2) A Mormon took a second wife bc he felt it was his religious duty. 3) Ct looked at og meaning of FEC. Said that it is not possible to believe it was intended to prohibit regulation against polygamy. Marriage is typically regulated by law. 4) To permit a man to excuse his practices that are contrary to law just bc of his religious belief would be to make that belief superior to the law of the land, and allow every citizen to become a law unto himself.

1. Reed v. Town of Gilbert a. The town's sign code ids various categories of signs based on the sorts of info they share and then subjects each category to different restrictions. The code imposes more stringent restrictions on signs that are "temporary directional signs relating to a qualifying event" than it does on signs conveying other info. b. Ct said that these provisions were content-based regulations of speech that did not survive strict scrutiny. c. Laws that though are facially content neutral will be considered content based regulation of speech if they cannot be "justified without reference to the content of the regulated speech" or that were adopted by the government "bc of disagreement with the message the speech conveys." d. Here, they said the town's sign code was content based on its face, bc it defined "temporary directional signs" on the basis of whether it conveys the message of directing the public to church or some other "qualifying event." It defined "political signs" on the basis of whether a sign's message is "designed to influence the outcome of an election." The restrictions therefore thus depends entirely on the communicative content of the sign. e. An innocuous justification can't transform a facially content-based law into one that's content neutral.

a. In-class notes 1) Part of this was just how long you kept these signs up, and that makes sense. What's the problem: town said it had to do with aesthetic appeal and traffic management. Traffic argument: people will be looking at the signs and not the road. Signs are a distraction, to a certain extent. Ct said ordinance wasn't narrowly tailored to serve these interests, so the ordinance was unconstitutional. What should the town have done, then? The traffic argument fails bc town didn't provide any evidence to show that directional signs were somehow more detrimental to traffic than other kinds of signs. Logically, do they seem any more distractive than regular? Probably not. what about aesthetics, though? To show a violation, you'd have to show any underlying purpose. An innocuous reason for the law cannot transform a facially discriminatory law into a neutral one. 2) This law really didn't seem to have any ulterior motive. But here, that didn't matter. Just bc there's no ulterior motive, if it discriminates based on content, it's still content based. The restrictions are therefore subject to strict scrutiny. And here, signs were treated differently based upon their content. So here, the ct didn't even look at WHY they received different treatments. 3) So it doesn't matter that there were compelling gov interests and that they were furthered. It was under-inclusive bc ALL signs can create clutter and create traffic problems. 4) Page 125, note 5 a) Two offered two reasons to justify their law. Suppose that both were compelling interests; was the law narrowly tailored? What's the strongest argument that this fails strict scrutiny? Can argue that event signs are for an EVENT. Can assume that other signs have a long shelf life. Can use this to justify the aesthetics argument. Harder on traffic safety argument. Could say that it could be confusing.

a. Limited forum 1) Created by gov, is "limited to use by certain groups or dedicated solely to the discussion of certain subjects." 2) Here, gov is entitled to restrict speech to maintain the forum's purpose, so long as the restrictions are reasonable in light of the forum and viewpoint neutral. a) This means gov can exclude subjects of speech and categories of speakers, subject to reasonableness and viewpoint neutrality 3) Two distinct facets to limited public forum doctrine: a) Scope of the forum b) Restrictions internal to the forum. 4) Treat this as a two step analysis. a) First, determine whether the forum's scope is reasonable and viewpoint neutral A) Looks at scop of LPF, external factors. B) Ex: school opens its classrooms to after school activities (subject of speech). This limited public forum is limited in time (after hours), location (classrooms), and subject matter (school activities). School could exclude someone from outside the community. However, cannot exclude speech on the basis of viewpoint. Ex: if excluded student Bible club, that exclusion would violate 1A. also cannot unreasonably restrict speech - ex, it could not exclude math, bc that's unreasonable. b) Second, if a speaker falls within a limited public forum's scope, then you should evaluate the speaker's exclusion using strict scrutiny. A) Evaluates exclusion of speakers who are within an otherwise included category of speech or speakers. B) Ex: school opened its classrooms after hours to school kids but refused to allow fencing club to meet bc it encouraged violence. This exclusion would be subject to strict scrutiny bc the students were within the parameters of the limited public forum. School would have to argue its exclusion was narrowly tailored to serve a compelling state interest.

a. In-class notes on the diff types of public forums 1) Diff types of public forums 2) Trad public forum: devoted to assembly and debate. Hallmarks: it's trad open to public for expressive activity. Cts will uphold content based regulations only if the gov can show its regulation is necessary to preserve a compelling state interest and is narrowly tailored. 3) Designated public forum: while it's open, gov is subject to the same limitations that apply to the trad forum. Exs: university meeting facilities, a municipal auditorium. We don't have to have those. But if we do, has to be open to all. Can really only restrict via time place and manner. 4) Limited public forum: exists where gov has intentionally reserved the forum for certain groups or discussion of certain topics. Exs: public school facilities to school's after school activities. Restrictions on expressive activity so long as viewpoint neutral and reasonable in light of the purpose of the forum. If we're going to make those school rooms available, could we say that we're going to allow it for any appropriate childhood activity but not for political meetings? That would be a content restriction, but would be ok. Viewpoint restriction probably would not be ok - could not just say that couldn't have democratic speakers. It's worse to be viewpoint discriminatory. You can have content discrimination, but no viewpoint discrimination. 5) Nonpublic forum: gov space that is not by tradition or designation a cite for speech. Nonpublic where evidence shows property's purpose is for or to facilitate gov work, not public expression. 6) Diff tween designated and limited public forums: subject to diff levels of judicial scrutiny. Distinction turns on gov's intent on opening the space for public expression. Did gov intend to open it up to a wide range of public speech - if so, likely is designated. Alt, did gov just mean to open it up for certain expression/subjects: then it's likely a limited public forum.

a. Tortious speech 1) Speech that subjects the speaker to lawsuits for libel, etc. 2) Speech that may harm a person's reputation, or tortious speech, was in the past unprotected by 1A. But in New York Times v. Sullivan, SCOTUS held that 1A limited tort liability based on speech. However, unlike profanity and indecent speech, since them SCOTUS has articulated a complex body of doctrine to determine when and under what circumstances tort liability may be premised on speech. Therefore, tortious speech is protected, but there isn't one test or standard to ascertain that protection. 3) New York Times v. Sullivan a) A city commission from Montgomery brought suit against petitioners, who ran an ad in the NY Times talking about the torments black people in the south had had to face. He said that the word "police" in the article referred to him, as he supervised the police department. b) Rule: "the constitution requires a fed rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' - that is with knowledge that it was false or with reckless disregard of whether it was false or not." c) In-class notes A) MLK had come down. Argument was that a Montgomery city commissioner had allowed him to be harassed. B) Here, no evidence they had actual malice. C) Ct said this was protected speech. Criticism of elected officials is like the national pastime. The fact that it was wrong, factually, doesn't mean it isn't protected UNLESS you had actual malice/knew it was wrong/were just going out to hurt the person. 4) After New York Times v. Sullivan, SCOTUS created nuanced rules on when its test applies, depending on variables such as whether the P is a public official or private party, whether the speech is a matter of public concern, and with diff state of mind requirements. This is very complex.

a. Sexually-explicit speech 1) Sexually explicit speech is sexual expression that doesn't constitute obscenity or cp. 2) generally, SCOTUS has held that sexually explicit speech is constitutionally protected, but it is less protected. 3) Young v. American Mini Theatres a) Involved restrictive zoning of adult entertainment. b) J. Stevens said that sexually explicit speech is less valuable, and therefore worthy of less protection. 4) SCOTUS created the Secondary Effects Doctrine for the zoning of adult entertainment businesses in Renton case. this allowed relatively vigorous regulation - though not prohibition - of sexually explicit speech. 5) Though the ct has expressly provided less protection to sexually explicit speech, there isn't one rule or test applicable to all contexts. Instead, just know that the ct's approach is context specific. For instance, in the zoning context, you should apply the Secondary Effects doctrine. 6) In-class notes a) Cts use something less than strict scrutiny. Usually cts have regulated it using zoning power. Just so long as you don't prohibit a legal business from all sections of town, zoning is very hard to overturn.

1. Rust v. Sullivan a. DHS regulations limited the ability of Title X fund recipients to engage in abortion-related activities. b. SCOTUS said that gov wasn't denying a beneif tto anyone but was just insisting that the funds be spent for the purposes for which they were authorized. The regulations don't force the title X grantee to give up abortion related speech; they just required that the grantee keep such activities separate and distinct from title X activities. c. Dissent: ideological viewpoint is a repugnant ground upon which to base funding decisions. 1) "by refusing to fund those family planning projects that advocate abortion because they advocate abortion, the gov plainly has targeted a particular viewpoint." d. Doctors said this was a gag rule - can't talk about abortion to our patients even if we think it's the right choice by conditioning this money on us not talking about that. e. Ct said this wasn't a direct benefit, they're just taking part of a program; they chose to be part of the program, they have to follow its rules. Money is only for this particular thing, it's not for matters outside of this project. And they say abortion counseling is outside of this project. Ct says that prior cases make it clear we can treat abortion differently than other things, too. f. In saying that we can treat abortion differently, the ct is kinda saying the gov has the right to take a position on some things, speak on matters (like: We should support Ukraine). g. Government Speech Doctrine: Gov has its own rights as speaker which can overcome, sometimes, 1A challenges. It can assert its own ideas, without being subject to arguments of 1A discrimination. 1) For ex, gov could take positions on things, it has its own rights as an entity. 2) If gov subsidizes one protected right (Family planning), it doesn't have to follow that they have to subsidize analogous counter rights. Gov recognizes that it's controversial and don't want to get involved. 3) Gov can say they don't want to venture into that batter, even though it kinda is a gag rule

a. This case turns on the diff tween gov as speaker and gov as regulator. Here, gov is just speaking, saying that they want to tell you about family planning but not about abortion. b. What if: IRS denied funding to a clinic that engaged in abortion counseling. 1) Aka, if you do this, you'll lose your tax benefits. Here, it'd be easier to say there's a 1A violation. 1. Legal Services Corp. Velazquez a. Feds provided money to the LSC which provided grants to local orgs to give legal services to indigent clients. Congress imposed the condition that the money wouldn't be used to challenge welfare laws. The court distinguished this case from Rus and ruled that the condition violated the free speech clause. b. The issue was that this restriction was designed to insulate congress's interpretation of the constitution from judicial challenge. The constitution doesn't permit the government to confine litigants and their attorneys in such a way. 1) "We must be vigilant when congress imposes rules and conditions which in effect insulate its own laws from legitimate judicial challenge."

a. Ct recently introduced some changes to the Perry's discussion of different types of fora in Christian Legal Society v. Martinez 1) In-class notes for CLS v. Martinez a) School said all clubs had to be open to anybody. CLS was making people sign a statement saying they believe in Jesus. Ct found the college's policy to be reasonable. Viewpoint neutral condition for access to student org. can't discriminate and have it still be a public forum 2) Ct said that there were three types of for a: a) Traditional public forums b) Designated public forums c) Limited public forums 3) This is different from Perry in two ways: a) First, in Perry, the limited public forum was considered a subtype of designated public forum, while in CLS it's an entirely separate forum b) Second, in Perry, the third type of forum was a nonpublic forum, while in CLS it is the limited public forum

a. Traditional public forum 1) In-class notes: a) Basically, only time place and manner restrictions are ok 2) SCOTUS said that traditional public forum is "gov property that has immemorially been held in trust for the use of the public and, time out of mine, have been used for purposes of assembly, communicating thoughts between citizens, discussing public questions." 3) Exs: streets, sidewalks, parks. Places traditionally open to debate. The scope of traditional public forum isn't likely to expand beyond this locations. 4) Gov regulation of speech in a traditional public forum is subject to these rules: a) Content based regulations are subject to strict scrutiny, and content neutral regulations are subject to intermediate scrutiny. Content neutral regulations are also known in the public forum doctrine as time, place, and manner restrictions. A) Such regulations don't target a speaker's subject matter or viewpoint; instead, they focus on the nonspeech characteristics of speech such as when did it occur, where, and how loud was the speech. b. Designated public forum 1) Gov can create/designate a public forum out of its property that wasn't otherwise open to speech/traditionally used for speech. 2) "a public forum may be created by gov designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects." 3) When there's a designated public forum, same rules that apply to traditional for a apply here as well. 4) Key diff tween a trad and designated public forum: gov need not open or continue a designated public forum

1) Note that outside the context of fighting words, the ct has been wary to permit the gov to restrain speakers based on the actual or anticipated reaction of listeners. a) For ex, in Terminiello v. City of Chicago, the ct overturned the conviction of a speaker who had made inflammatory comments to listeners and to others, and which led to a riot. The ct explained that one of the functions of the first amendment is to invite dispute. Thus, there is an important if unclear line between fighting words, which aren't protected, and other forms of speech that offend others, which generally are protected. A) as long as the speech doesn't "produce a clear and present danger of a seirous substantive evil that rises far above public inconvenience, annoyance, or unrest," it may not be censored. B) Terminiello stands for the proposition that speech may not be suppressed merely bc the ideas expressed are offensive to others. 2) More recent developments a) Although no case has repudiated the fighting words exception, three developments in the case law have significantly narrowed the category's scope. A) First, SCOTUS ruled in Cohen v. California that fighting words must be directed to the person of the hearer. Here, Cohen's action of walking around with a four letter word on his jacket protesting the draft wasn't directed at any particular person and therefore was not unprotected speech. B) Secondly, SCOTUS held that fighting words prohibitions may not be constitutionally vague. In Gooding v. Wilson, SCOTUS ruled that GA's fighting words statute was unconstitutionally vague. "The statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression" C) Thirdly, in RAV v. St. Paul, the ct prohibited content-based distinctions within the category of otherwise-unprotected fighting words. The challenged city ordinance banned fighting words that caused harm "on the basis of race, color, creed, religion, or gender." SCOTUS ruled that this selective banning of fighting words was content based without sufficient justification. Today, to ban fighting words, the gov must achieve sufficient specificity to avoid unconstitutional vagueness, which, at the same time, avoiding such specificity that the gov runs afoul of RAV.

a. True threats 1) True threats are "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." 2) Virginia v. Black a) The Virginia statute that made 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 specified that "any such burning...shall be prima facie evidence of an intent to intimidate a person or group." b) The Court for the first time formally made clear that "true threats" are unprotected speech. c) Those true threats are "statements where the speaker intends to communicate a serious expression of an intent to commit an act of unlawful violence against a specific individual or individuals." d) VA's statute banned cross burning with "an intent to intimidate a person or group of persons." SCOTUS said that the law was constitutional in that the state could ban cross burning that was done with the intent to intimidate. e) Ct said that the speaker need not actually intend to carry out the threat. Rather, a prohibition on true hreats "protects individuals from the fear of violence" and "from the disruption that fear engenders." 3) In-class notes a) VA v. Black: VA had a law saying that if you burned a cross, that was a prima facie case of intent to intimidate. Here, people burned a cross in a black family's years. Ct said: can burn cross burning with the intent to intimidate, but they couldn't say that burning automatically meant they HAD the intent. A) cross burning can be prohibited. BUT: here, the statute was worded such that the action automatically you had intent. Ct said that wasn't cool. B) Problem: cross burning presumably has a viewpoint tied to it. Have to separate out the legitimacy of punishing the threat without punishing a viewpoint. But in this case, it's hard to separate the two. If we try to apply a normal analysis, we end up with not a very understandable position - since there's only one group that engages in this type of speech, you're kinda de facto restricting a viewpoint. b) Watts v. US: guy was attending an anti-war rally. He says he's already got his draft card, and if he gets a gun, first person he's going to target is the president. He gets prosecuted, ct says this was hyperbole. People are going to say things like this, and it's not the case that every single time they really wanna do what they say they're going to do. Aka: this wasn't a true threat. c) In 2008, a case outta Ontario, a protest song said that suggestion of a death threat against a city counsel member. Ct here said this was also probably hyperbole.

1) Trinity Lutheran Church of Colombia, Inc. v. Comer a) Considered these questions: A) If the gov makes a public benefit generally available, can it preclude rel groups from receiving that benefit B) Does withholding such a benefit bc of the rel character of the recipient automatically discriminate against religion b) The MO state dept of natural resources offers state grants to help public and private schools, nonprofit daycare centers, other nonprofit entities purchase playground surfaces. Church applied for such a grant for its preschool and daycare center and would have received one, except that it was a church. Department had a policy of categorically disqualifying churche,s other rel orgs from receiving grants. c) Question: did this policy violate the church's rights d) State's reasoning: couldn't provide direct funding to a church. e) "it's true that the department hasn't criminalized the way the church worships or said it can't subscribe to a certain rel view. But the FEC protects against indirect coercion or penalties on the free exercise of religion, not just outright prohibitions." f) Church wasn't claiming that it was entitled to a grant - it's issue was that it wasn't allowed to compete with secular institutions to try to receive that grant. g) Ct said this violated the FEC. "The exclusion of the church from a public benefi for which it is otherwise qualified, solely bc it's a church, is odious to our const all the same, and it cannot stand." a) In-class notes I) Doesn't matter it was a discretionary type of thing II) There were grants to repave playgrounds. Church applied for grants, would have qualified if they weren't a church. III) Ct says: footnote 3. We're just talking about paving a playground. Not talking about aiding a church. IV) Said state's main interest is to draw a line that says we won't step anywhere near rel. ct says that's not sufficient. V) Under strict scrutiny need a state interest of the highest order to justify a discriminatory policy like this. VI) Contrast TN case that said a minister couldn't serve as state representative. Ct said this was unconst - penalized the free exercise of person's const liberties. VII) Contrast to a case where state gave scholarship but not for people going into theological program: ct said this did not violate 1a. State can choose whether or not to fund a distinct program of study. Excluded it from public funding. How do we distinguish this from playground case? in one, we're just talking about a playground. In the other, we're talking about training people in ministry. VIII) Another issue: is this an establishment question or a free exercise question? IX) Cake shop case: this is the baker who doesn't want to make a cake for a gay wedding. CO commission said you're discriminating against them. SCOTUS says commission violated the free exercise clause. Rel, philo objections are protected views. For the baker, baking was an artistic expression and expression of his rel beliefs. And state cannot use hostility against rel as the basis for state laws. Can't force people to act against their rel.

1) Another limitation on Smith - the ministerial exception a) Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC A) Certain employment discrimination laws authorize employees who have ben wrongfully terminated to sue their employers. Question: whether FEC bans such an action when an employee is a minister, and employer is a religious group B) Issue: a teacher at a religious school had been fired after having a long illness. School said that teacher was a minister, that the ministerial exception applied. C) Establishment clause prevents gov from appointing ministers, FEC prevents it from interfering with rel group's choosing their own ministers. D) Requiring a church to accept or retain an unwanted minister intrudes upon religious group, interfering in church affairs. E) Ct didn't want to adopt a rigid formula on which somebody is a minister vs an employee. Said that it was enough to conclude that, given the circumstances of her employment, here the person was a minister. F) Her title was "minister of religion." Taught religion, led students in prayer. Ct said then they couldn't interfere with who the church did or didn't fire.

I. Categories of protected, unprotected, and less-protected speech A. Introduction 1. The first major component of the free speech doctrine is whether it is content based or content neutral. The second major component is SCOTUS's categorical approach to speech. 2. SCOTUS has identified categories of speech that is held unprotected or less protected. a. In Fox v. Washington, SCOTUS held that incitement of others to engage in illegal activity isn't protected speech b. Schenck v. US: speech that constituted a clear and present danger of illegal obstruction of the draft wasn't protected by the first amendment. 1) Involved the conviction of a prominent socialist who attempted to distribute flyers to US servicemen recently drafted to fight in WW1 3. There are a number of ways to justify the categorical approach: a. For each category of speech, the harm caused by it outweighs the value it brings b. The category of speech doesn't advance free speech clause's purposes c. Free speech clause doesn't protect a category of speech bc it was never protected in the history and tradition of the clause. 4. Today, there are five main categories of unprotected speech and four primary categories of less-protected speech. 5. Protected speech a. Political speech is a strong example of protected speech. 1) Ex: Republican Party of Minn. V. White a) MN's law said that a candidate for judicial justice couldn't announce their views on a disputed legal or political issue. The Ct said that this violated freedom of speech.

1. Unprotected speech a. Incitement to illegal activity 1) Incitement illegal activity occurs when one incites others to engage in illegal activity. For ex, after the rise of communism, many cases involved members of communist orgs that advocated the overthrow of the US government. 2) SCOTUS during WW1 articulated the Clear and Present Danger test. This test said that if speech constituted incitement of illegal activity, it was not protected if: a) There was a high likelihood b) Of imminent c) And substantial harm 3) In the 1920s, SCOTUS broadened the category of unprotected incitement of illegal activity by articulating the Reasonableness Test. Under this test, gov could punish speech that incited unlawful activity so long as the speech prohibition was rationally related to a legitimate state interest. 4) As the cold war came on, SCOTUs adopted another version of the Clear and Present Danger Test. This test looked at two factors: the likelihood of harm and the severity of harm caused by the prohibited speech. a) Under this test, if the severity of potential harm was great, then the gov could proscribe the speech even if the likelihood of the harm coming o pass was low. 5) The current test for incitement to illegal activity exception comes from Brandenburg v. Ohio. 6) Brandenburg v. Ohio a) A member of the KKK telephoned into a local tv station and invited the announcer to a rally. The reporter went and filmed everything, including the member's speech. During the meeting, the member said that they would be marching into DC, FL, and MS. b) SCOTUS said that "the constitutional guarantees of free speech and free press don't permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." "The mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence isn't the same as preparing a group for violent action and steeling it to such action." c) The court said that under this test, the Ohio law couldn't be sustained, as it punished "mere advocacy" and forbade "assembly with others merely to advocate the described type of action."

1. The role of purpose a. SCOTUS's cases on what role, if any, purpose plays in its determination of content neutrality are hard to synthesize. In some cases, SCOTUS has said that purpose is irrelevant. in others, however, it's relied on purpose to determine whether a regulation was content based. b. SCOTUS has varied its treatment of a speech regulation bc of legislative purpose. For ex, in City of Renton v. Playtime Theatres, the "secondary effects" doctrine permits the court to label a facially content based regulation content neutral. Similarly, a content based purpose has caused the ct to treat a facially content neutral regulation as content based. c. Turner Broadcastin System, Inc. v. Federal Communications Commission 1) SCOTUS discussed the rel tween a regulation's text and its purpose in this case. 2) The Cable tv consumer protection and competition act required cable tv systems to devote a portion of their channels to ransmitting local broadcast tv stations. 3) On their face, the law imposed burdens and benefits without reference to content of speech. 4) Purpose of the law was to not favor programming of a particular viewpoint or subject, but to preserve access to free tv programming for those americans without cable. They are meant to proect tv broadcasting from what congress determined to be unfair competition by cable systems. 5) The appropriate standard by which to evaluate the constitutionality of must-carry si the intermediate level of scrutiny applicable to content-neutral restrictions that impose an incidental burden of speech. a) Content neutral regulation will be sustained if it furthers an important or substantial government interest; if the gov interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged 1A freedoms is no greater than is essential to the furtherance of that interest.

6) In-class notes a) Turner Broadcasting case b) TB challenged a law requiring a certain no of local stations to be aired by cable channels. Aka, this was a "must carry" provision. c) Is it fair to tell the cable channels something they don't want to carry? If you didn't make them? Should Twitter be able to ban you? Well, Twitter is more of a public forum than cable is. d) Difference here: Congress has passed a law saying that cable has to carry local channels. e) Ct here did uphold the must carry provisions. But they raise a lot of issues. What was the right at issue here? Ct said the rules were content neutral, unlike the right of reply statutes we've seen in other cases. f) Turner also raised the issue of deference. When we come to regulatory matters, cts are often asked to evaluate a rule either adopted or being enforced by a regulatory agency. and the judges know less about these than the regulators do. So the normal situation there is that if something is deemed to be in the perview of the agency, cts will defer to the agency. in Turner, ct held that applying the rules, ct owes congress's congressional findings deference, bc they're better equipped to go through large amounts of data. congress looked at data, concluded the cos should be required to carry. Now we asking cts what they think, cts say they haven't done any studies on this. They're not experts. So they applied a deferential standard to congress in this case - they did a decent study.

1) Four-part test a) 1. Is the advertisement protected by the 1st Am? (Concerns lawful activity and is not misleading.) b) 2. Is the asserted governmental interest substantial? c) 3. If the answer to both questions is "yes," does the regulation directly advance the asserted interest? d) 4. If the answer to the third part is yes, can the interest be served by a more limited restriction? 2) Commercial speech checklist a) Is commercial speech involved? A) What is commercial speech: speech that does no more than propose a commercial transaction. VA Bd. Of Pharmacy. b) If the speech is false or misleading or proposes an illegal activity, the commercial speech is unprotected A) Otherwise, the Central Hudson test c) Gov regulation of commercial speech must: A) Be on the basis of a substantial gov interest B) Exs of substantial gov interests: I) Aesthetics (Cincinnati v. Discovery Network) II) Traffic safety (billboards-newsracks) III) Discouraging gambling (Posadas) IV) Preventing alcohol strength wars and alcoholism (Rubin v. Coors) C) Must directly advance the gov interest I) Outright ban on billboards directly advances interest in aesthetics and traffic safety (Metromedia) II) Banning 62 commercial newsracks out of 1500-2000 total did not. City of Cincinnati v. Discovery Network. III) Government can ban speech even while permitting the underlying transaction that it could ban. Posadas (gambling)

A) Can't ban speech to hide information in hopes of achieving some substantial government interest besides a fair bargain. Linmark (overturning ban on "for sale" and "sold" signs designed to prevent white flight and secure racial stability); B) 44 Liquormart (can't ban liquor price ads to promote temperance). C) Substantial underinclusiveness (Rubin v. Coors: makes no sense to ban alcohol strength labels but not alcohol strength advertising, or to ban strength labels for beer but not for wine). D) Exceptions also fatal in Greater New Orleans Broadcasting Assoc. v. U.S. (1999). As to federal regulation limiting advertising of casino gambling, regulation is unconstitutional as applied to Louisiana broadcasters who advertise in a state where gambling is illegal. E) Where government's asserted interest was alleviating casino gambling's social costs by limiting demand, numerous exceptions to the law failed the last two prongs of Central Hudson. F) Must not be served as well by a more limited restriction on the speech. G) But the means do not have to be the best or least restrictive, just narrowly tailored. H) But see Rubin v. Coors: government's failure to use other alternatives to combat strength wars (e.g., directly regulate strength, regular all forms of strength marketing) fatal; 44 Liqourmart (instead of banning price ads, government could regulate price directly or tax liquor to increase its price and therefore decrease consumption).

1. Everson's teachings received their ultimate form in the Lemon Test a. The Lemon test - from Lemon v. Kurtzman (1971) - this was the definite rule up until just a year or so ago. 1) Three part test that describes when EC is not violated a) The statute must have a secular legislative purpose b) The statute's principal or primary effect must be one that neither advances nor inhibits religion c) The statute must not foster "an excessive government entanglement with religion." 2) PA and RI statutes provided aid to church related elementary and secondary schools. Ct said that both schools were unconstitutional. 3) Ct here said that there was an excessive entanglement with the gov and religion. a) Contrast: legislative purposes was not to advance religion - were meant to enhance quality of the secular education in all schools covered by compulsory attendance laws. b) Church schools involved in the program were located close to churches themselves. Permitted convenient access for religious exercises. c) Religious symbols were in and outside of the buildings d) Many teachers in the schools were nuns. e) "the dangers and corresponding entanglements are enhanced by the particular form of aid that the RI act provides. Our decision have permitted the state to provide church related schools with secular, neutral, or nonideological services, facilities, or materials. Bus transportation, school lunches, public health services, and secular textbooks supplied in common to all students weren't thought to offend the EC. We cannot however refuse to recognize that teachers have a substantially different ideological character from books. A teacher's handling of a subject is not readily ascertainable. We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of precollege education."

a) "the potential for impermissible fostering of religion is present. The RI legislature has not and could not provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The state must be certain that subsidized teachers don't inculcate religion. A comprehensive and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the 1a is otherwise respected. These contacts will involve excessive and enduring entanglement between church and state." b) The very restrictions and surveillance necessary to ensure that teachers play a strictly non-ideological role give rise to entanglements between church and state. c) Also noted that if parochial schools got aid, different schools in an area would have to compete, which would cause political jostling along religious lines. We don't want political division along political lines. d) In-class notes A) Lemon test for how we determine the constitutionality of a law like this. B) Element 1: was there a secular reason or purpose for the law (intent) C) Element 2: principle effect couldn't be one that promoted, or inhibited, religion. Look to see if gov is endorsing a particular religion. D) Element 3: must not foster excessive entanglement between gov and religion.

1. Rise of strict scrutiny for infringement of free exercise a. SCOTUS's treatment of FEC in the 20th c is the rise and decline of strict scrutiny of religious freedom claims. 1) During the Lochner era, SCOTUS decided two cases: a) Meyer v. Nebraska: involved a state prosecution of a parochial school teacher who taught German to students in violation of state statute. Ct struck down this statute. b) Pierce v. Society of Sisters: Ct struck down a state statute that outlawed nonpublic primary education. c) Later cases relied on Meyer and Pierce to articulate heightened scrutiny of restrictions on religious liberty 2) The New Deal Ct decided: a) Cantwell v. Connecticut: Ct struck down the prosecution of Jehovah's Witnesses for public proselytization b) West Va. St. Bd. Of Educ. v. Barnette: ct reversed the prosecution of Jehovah's Witnesses for refusal to salute the flag in school. 3) Ct's protection for religious exercise reached a high point in the 1960s-early 70s. during this period, ct ruled that, like other individual rights, it would subject restrictions on religious exercise to strict scrutiny.

b. Sherbert v. Verner 1) Appellant was a seventh day Adventist and was fired bc she refused to work on Saturday. She couldn't find other work bc of this same reason. She applied for unemployment, but state unemployment found that her refusal to work disqualified her for benefits. SCOTUS said that the disqualifying provisions of the state statute abridged her right to free exercise of religion. 2) "If the state's decision is to withstand appellant's challenge, it must be either bc her disqualification presents no infringement of her constitutional right of free exercise, or bc any incidental burden on the free exercise of her religion may be justified by a compelling state interest." 3) Ct said yes, the disqualification did impose a burden on the free exercise of her religion. As to whether there was a compelling state interest justified the substantial infringement - state couldn't show that interest. Argued that it prevented false claims. But SCOTUS noted that state also didn't show that, if that was the case, a less restrictive law wouldn't have covered the issue. 4) In-class notes a) Only purpose that state asserted was that people could possibly make fraudulent claims under the system, and the unemployment funds would be diminished. Ct said this wasn't a good excuse - didn't show proof they couldn't address fraud in other ways. b) Ct gives us a way to look at this: A) Step one: is there an infringement on a const right to practice religion B) Step two: is there a compelling gov interest? (Here, state didn't have a compelling interest - what they were really talking about was just saving some money. "Compelling" means of the highest magnitude). If answer is yes, go to third step C) Step three: are there alternative ways by which the gov can achieve its goal without burdening religion. c) Ct said the chance of fraudulent filing wasn't so great that the state had a compelling reason for their infringement. d) Ct says it doesn't make any diff if we're talking about a right vs a privilege. e) Significance: states had to recognize that making allowances for rel differences didn't const an endorsement of a particular rel. f) An argument against cases like this: now we're requiring people willing to work on Sats to subsidize those people who won't.