Cases

Feiner v. New York (1951)

"Hostile Audience Case" ∆ was convicted of disorderly conduct after he gave a speech where he derided Pres. Truman and other politicians; a crowd amassed, and police eventually arrived and told ∆ to stop his speech. But, SCOTUS held there was no 1A violation: police were concerned w/ preserving order, and he was convicted for the reaction which his speech caused.

Kennedy v. Bremerton School District (2022)

"praying public school football coach" case where SCOTUS ruled that coach was not speaking as a gov't employee; games were over, and coach was not on gov't time after the game, and therefore, the case did not follow Garcetti's rule (a.k.a coach's speech was not made pursuant to his gov't job.

People v. Callahan (1985)

"the Callahan epithet" ∆ was convicted of uttering "offensive words in public that were likely to provoke an immediate violent reaction" at the scene of a car crash — essentially, interfered with the police at the scene. But, no violent reaction actually ensued. Here, an issue arises: legislature/SCOTUS determining what exactly is "derogatory."

Morse v. Frederick (2007)

'BONG HITS FOR JESUS sign displayed during a school event a.k.a not a case about political speech; distinguished Tinker (there was no substantial disruption here; no interfering w/ students' rights either); but, school has interest in restricting student speech re: drug use. Thus, school ≠ violate student's 1A rights.

Brown v. Entertainment Merchants Association (2011)

CA law prohibited the sale of violent video games to minors. CA claims they are concerned over their children becoming aggressive from the video games Here, SCOTUS engages in a Stevens-like analysis (examining historical basis of a speech category's protected status). Here, there is no historical pedigree for this type of restriction. Therefore, this content-based restriction must be assessed via strict scrutiny (needs to identify the 'actual problem' in need of solving, and the curtailment of free speech must be actually necessary to the solution). "Despite the state's legitimate power to protect children from harm, that does not include a free-floating power to restrict the ideas to which children may be exposed." There is no longstanding tradition in this country of specially restricting children's access to depictions of violence (ex. cites Cinderella, Lord of the Flies, Hansel and Gretel as examples). HOLDING: CA cannot meet the standard of S.S. — acknowledges that there is no direct causal link b/w violent video games and harm to minors. (most of their evidence is correlational, not causative). Additionally, the law is not narrowly tailored enough. Therefore, it is not constitutional. Alito's Concurrence: joined by Roberts; Alito does not think Stevens controls; concurs only on vagueness grounds (here, the statute is aimed at preventing children from receiving certain materials, whereas Stevens banned anyone from disseminating the videos — thus, the CA statue is more limited). Thomas's Dissent: historically, "freedom of speech" excluded children Breyer's Dissent: sometimes, a categorical approach is inappropriate; instead, the court should engage in balancing (balancing the law's impositions and the state's justifications). Additionally, thinks the court should've embraced the correlational evidence presented.

Whitney v. California (1927)

CA outlawed any advocating via violence for any change in industrial ownership or effecting political change. Π was convicted under this statute for organizing meetings for the Communist Labor Party of America. Π contends that statute violates DP, and that there was no showing of specific intent on her part to join in the "forbidden purpose of the association." Here, SCOTUS applies a Gitlow-style analysis (a.k.a. examining whether law is arbitrary and unreasonable). In its essence, the statute seeks to forbid associations from achieving their goals via criminal methods, which by nature is engaging in a criminal conspiracy. CA believes such gatherings are an even greater danger to the public peace than isolated utterances. Therefore, the statute ≠ unconstitutional, and is not arbitrary or unreasonable. Brandeis' Concurrence: concurs on a very different ground (does find there's a "clear + present danger" — rather, an "imminent" one). Also deferential to the CA legislature, but not as much as the majority (just because CA determined this speech to be dangerous, ≠ mean that the inquiry is over). Believes there was a conspiracy amongst the International Workers of the World to commit serious crimes, and that conspiracy would be furthered by the activity of π's group.

COVID-19 Cases: Tandon v. Newsom (2021)

CA prohibited multi-group gatherings @ the height of COVID due to the potential for disease-spreading; religious services were included in this prohibition. Religious groups filed suit, and claimed a FEC violation. State claimed the laws were neutral and generally applicable, as they were based on significant public-health concerns. SCOTUS sided w/ the churches, as the laws discriminate against religion (notes how other public gathering spaces, such as grocery stores, are treated better than churches --- a.k.a. "most favored nation") Therefore, the law is not generally applicable, and is discriminatory in its application. Majority notes how laws here are not analogous to the law in Smith (no exemptions are being granted here; rather, religion is being targeted here. Therefore, majority applies S.S. since the law is not generally applicable. An example of how SCOTUS is favoring FEC claims more in recent years

National Institute of Family and Life Advocates v. Becerra (2018)

CA statute which required pregnancy crisis centers to post certain notices on their facilities (e.g. that CA offered free/low-cost abortions, and that these weren't licensed facilities). SCOTUS struck down the notice requirements: describing it as a content-based regulation of speech, compelling individuals to speak a particular message. But, the case also represents the problem strict scrutiny causes in compelled speech situations. Breyer's Dissent: innocuous content-based speech compulsions will now be subject to strict scrutiny (i.e. pre-flight FAA-required briefing flight attendants must give).

Police Department of Chicago v. Mosley (1972)

Chicago had an ordinance that prohibited picketing outside of schools during school hours, but made an exception for labor-picketing (claimed that labor-picketing was less disruptive than other kinds of picketing). ∆ would picket outside a school and allege that said school engaged in anti-black discrimination, and was always peaceful while doing son. Challenges statute on 1/14A grounds. SCOTUS: the central problem w/ Chicago's ordinance is that it describes permissible picketing in terms of its subject matter. The content-neutrality rule is significant b/c content-based laws can be based on viewpoints (esp.. unpopular ones); may result in chilling speech; hindering the marketplace of ideas. Re: 14th Amdmt EPC: Chicago may not maintain that other picketing disrupts the school day unless the picketing is clearly more disruptive than the picketing Chicao already permits. "Peaceful" non-labor picketing is obviously no more disruptive than "peaceful" labor picketing. Thus, Chicago needs to prove that harm will in fact occur / that labor picketing is uniquely peaceful. HOLDING: ordinance is unconstitutional b/c it makes an impermissible distinction b/w labor picketing and other peaceful picketing.

Masterpiece Cake Shop Ltd. v. Colorado Civil Rights Commission (2018)

Christian baker refused to bake a wedding cake for a same-sex couple, as he claimed that it was a violation of his religious beliefs. The CO CV Rights Commisison took up the case on behalf of the couple, and claimed that π engaged in discrimination. Π challenged, stating that compelling him to bake the cake against his religious beliefs would violate his FEC rights. SCOTUS ruled in favor of the baker: citing Romer v. Evans and City of Cleburne, the court notes how animus appears here re: comments made by the commissioners' denigration of the baker's religious beliefs. Writing for the majority, Kennedy again notes the Arlington Heights factors. Thus, proceedings of this nature require neutral/respectful consideration of a person's sincere religious beliefs. Just like Lakumi, religion was treated differently via an allegedly neutral public policy.

Harte-Hanks Communications, Inc. v. Connaughton (1989)

Connaughton was a candidate for a judicial position; newspaper alleged that π had paid a witness to testify against the office's incumbent. Connaughton sued for libel and won a jury verdict, and SCOTUS affirmed libel ruling: paper failed to do their due diligence (basically, failed to examine what was right in front of them, as the paper chose not to interview a witness who would've set the record straight).

Boos v. Barry (1988)

D.C. had an ordinance which forbid displaying any sign within 500 ft of an embassy that would bring a foreign gov't into "disrepute", and also forbid the gathering of 3+ people in front of said embassies. SCOTUS believes the ordinance is content-based (e.g. official has to read the sign to determine if it would bring a foreign gov't into disrepute). If the display clause was actually content-neutral/was concerned with secondary effects, the city could've cited littering, visual clutter, etc; rather, the reactions of diplomats in this case are primary effects, and not secondary. Ultimately, the ordinance prevents petitioners from engaging in an entire category of speech (e.g. displaying signs outside embassies which may be critical of foreign gov'ts) — similar to City of Ladue, which banned a category/medium of speech via lawn signs outside residences. Thus, the ordinance is unconstitutional (it is content-based, but cannot survive S.S. since the display clause is not narrowly tailored). The interest is not compelling as well. (QUIMBEE: The District of Columbia law was passed for the purpose of preserving the dignity of foreign diplomatic personnel. In matters affecting the dignity of American citizens, prior rulings have frequently held that such citizens must tolerate insulting, even outrageous, speech in order to adequately protect First Amendment freedoms. This same standard applies to foreign diplomatic personnel. Thus, the District of Columbia law does not pass strict scrutiny as it unconstitutionally restricts First Amendment freedoms.) Concurrence (J. Brennan): worried that secondary effects are "creeping beyond" sex, which was the basis in Renton.

Forsyth County v. Nationalist Movement (1992)

GA town had ordinance which assessed permit fees for gatherings. ∆, racist KKK group, were assessed a $100 fee for wanting to host an anti-MLK Jr. demonstration. Thus, SCOTUS had to decided whether the ordinance violated 1/14th Amdmts, or if gov't has the power to vary the fee to reflect the estimated cost of maintaining public order. But, SCOTUS notes there are no articulated standards in the ordinance, and therefore, nothing prevents town officials from engaging in an arbitrary application of the law (i.e. discouraging some viewpoints while encouraging others). The gov'ts only justification for this ordinance is raising revenue for police services —- but, while this is an important gov't responsibility, it does not justify a content-based permit law. Π points to SCOTUS' ruling in Cox, since a similar ordinance was upheld. But, in Cox, no fee was actually assessed. Here, SCOTUS ≠ overturn Cox. Thus, SCOTUS deems the ordinance unconstitutional: it often requires that the fee be based on the content of the speech, which the administrator must examine in order to accurately assess the cost of security. Speech cannot be financially burdened simply b/c it might offend a hostile mob. Furthermore, SCOTUS rejects π's secondary effects rationale (claimed that the ordinance is content neutral b/c it is aimed only at a secondary effect a.k.a. the cost of maintaining order).

Cantwell v. Connecticut (1940)

JW played a record disparaging religion/Catholicism to two Catholics on a public street. Two Catholics told him to stop, and he did; but, he was convicted of breaching the peace — but, it was not a specific statute; rather, was a common law offense (therefore, was vague/overbroad, since statutes can be more well-defined, and can provide notice to citizens). SCOTUS reminds that one can use the streets for speech, even if its "attacking speech", as long as there's no risk of actually breaching the peace. HOLDING: In absence of a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, Cantwell's communication raised no such clear and present menace to public peace that would have rendered such a common law conviction. Therefore, his conviction is overturned.

City of Los Angeles v. Alameda Books, Inc. (2002)

LA had an ordinance which forbade more than one adult business from being located in the same building (due to a study that showed a higher rate of crime in areas with greater concentrations of adult businesses). ∆ owned an adult book store and adult arcade. But, SCOTUS rejected the 1A challenge: by embracing the secondary effects doctrine, the court found that the mentioned study was enough evidentiary support to justify the regulation. QUIMBEE: In Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986), this Court used a three-step process to evaluate a challenged zoning ordinance affecting the placement of adult theaters. First, the Court examined whether the ordinance was a complete ban on adult theaters or a time, place, and manner restriction on their operation. After concluding that the ordinance was a time-place-and-manner restriction, the Court analyzed whether the ordinance was content-neutral or content-based. If the ordinance had been content-based, the ordinance would have been subject to strict scrutiny. However, the Court found that the restriction was not based on the content of the films shown at the theaters and was instead based on the theaters' secondary effect on crime and neighborhood property values. Accordingly, the ordinance would be upheld as long as the municipality showed that the ordinance was designed to serve a substantial government interest and that there remained reasonable alternative avenues of communication. In justifying an ordinance that addresses the secondary effects of protected speech, the municipality may rely on any evidence believed to be relevant to demonstrate a connection between the speech and the government's interest. This is not an exacting standard and will be met as long as the municipality's evidence fairly supports the municipality's justification for the ordinance. Here, the appellate court held that the 1977 study was insufficient evidence to support the ordinance under the third step of the Renton analysis. However, the City has provided evidence that it reasonably believed to be relevant to the reasoning for the zoning ordinance in question. Concurrence (J. Kennedy): questions whether secondary effect regs are actually content-neutral; but, as long as the law targets effects rather than the content, he would provide a deferential review.

McCullen v. Coakley (2014)

MA ordinance prohibited standing on a sidewalk w/in 35 ft of entrances of abortion providing facilities. The act exempts certain classes of individuals (e.g. construction workers, first responders, and clinic employees). Petitioners are "sidewalk counselors" who approach women outside such facilities, attempting to dissuade them from having abortions. SCOTUS: the MA ordinance regulates access to public sidewalks, and such areas occupy a special position in terms of 1A protection bc of their historic roles as sites for discussion and debates. The Act does not draw content-based distinctions on its face. It would be content-based if the gov't was worried about the effect of the content of the speech on listeners (see Boos v. Barry), but that is not the case here. Furthermore, the act is justified without reference to the content of the regulated speech (its purpose is to increase public safety at these facilities - e.g. obstructed sidewalk access). Therefore the law is content-neutral, and the court applies TPM analysis. But, the majority applies a much stricter narrow tailoring than in Ward v. Rock Against Racism. Petitioners seek to engage in calm, quiet conversations w/ women approaching the clinic. They do not want to shout at them. So, the buffer zone frustrates their objectives. Thus, the buffer zone substantially burdens more speech than necessary to achieve MA's asserted interest (e.g. appeared to only be a problem at Boston PP on Saturday mornings, and not all clinics across the state at all times). So, SCOTUS must determine if MA has any other options other than their current regulation (cites NYC regulation which prohibits obstructing access to clinics within 15 ft of facility). Thus, the MA ordinance is not a narrowly tailored solution and is overbroad, and is therefore unconstitutional.

Lorillard Tobacco Co. v. Reilly (2001)

MA passed regulations aimed at curbing youth tobacco use — here, two of the regulations were at concern (no tobacco advertisements within 1,000 ft of schools/playgrounds) and no advertising below 5ft eye-level in stores. SCOTUS says that the #3/#4 steps in the CHG test apply here, and are asking: "do the regulations substantially advance gov't interest? And are such regulations a reasonable fit?" Re: 1000ft radius regulation: this covers too much geography, especially in cities (such as Boston, Worcester, etc.) In these zones, adults who can legally purchase tobacco can't access info re: the products. Thus, it fails the "reasonable fit" prong (#4) of the test. Re: 5ft height limit for tobacco ads: not all children are under 5 ft tall, or those who are can simply look up & around at their surroundings. MA did not prove how this regulation would advance their gov't interests. Thus, this regulation fails prong #3. Thus, fourth prong can be very tough to pass. However, the "put the tobacco behind the counter" regulation survives.

Abood v. Detroit Board of Education (1977)

MI law permitted unions to require non-union members to pay dues, esp. for efforts that benefited all workers (e.g. collective bargaining). SCOTUS upheld the compelled subsidization of the union's collective bargaining activities, as unions have to take care of their interests. But, SCOTUS struck down compelled subsidization of any political speech in which the union engaged, as this would violate the employees' 1A rights.

Minnesota Voters Alliance v. Mansky (2018)

MN ordinance restricted speech w/in polling places (banned the wearing of political badges/insignia). SCOTUS classified polling places as NPF, since its primary function is voting, not public communication. The apparel ban was VPN. But, the ban was not reasonable, as it was vague and expansive w/ its definition of "political", and was incapable of clear/consistent enforcement. Thus, the ordinance lacked an "objective, workable standard" and could therefore be susceptible to politically biased enforcement.

Espinoza v. Montana Dep't of Revenue (2020)

MT had tuition assistance program for parents who wanted to send their children to private schools; also provided tax credits to anyone who donates to certain orgs that award $$$ to students. But, MT Supreme Court struck down the entire program due to the state's "mini-Blaine amdmt" (a no-aid provision; wanted to strengthen the EC; would prohibit more gov't actions that inherently/outwardly support religion). Petitioners were mothers whose children attended a Christian school. Precedent #1: Trinity Lutheran (2017) - MO program that provided grants to refurbish playgrounds. However, disqualified recipients from this public benefit "solely based on their religious status." SCOTUS struck down this program, as it failed to withstand S.S. Here. FEC compels equal funding for church playgrounds. Precedent #2: Locke v. Davey (2004) — WA scholarship program; but, did not permit funds to be used for theology degree (allowed funds to be used to pursue more general religious education). SCOTUS upheld the program, and ruled that WA did not violate the FEC; the court noted how there was a historic/traditional basis for states not paying for ministers/religious workers' salaries (e.g. idea that EC prevents state support of religion). Therefore, did not discrim. based on religious status, but rather, CONDUCT. Just b/c a state has such a program (as permitted by the EC), it does not require the state to do more (as the FEC may require WA to allow funds to pay for theology degree). But, SCOTUS is wary of these anti-EC concerns b/c of the Blaine Amdmt's anti-Catholic basis. So, which precedent applies? SCOTUS must ask if MT's court ruling singles out individuals/institutions for their conduct (e.g. engage in religious studies like Davey), or if the MT's court ruling singles out religious schools for what they are/their status as religious entities (as seen in Trinity Lutheran) . Trinity Lutheran! Here, there is discrimination based on religious status just like the MO law did in TL, and excludes orgs owned/controlled by a church. Davey is different, b/c WA chose not to fund a distinct category of instruction. The MT Supreme Court's ruling was different, because the no-aid provision bars all aid to religious schools "simply because of what they are." Court also cites to Yoder re: parents' DP right to direct the religious upbringing of their children, and notes how this no-aid provision penalizes families for deciding to choose religious private schools rather than secular ones. Therefore, the MT Supreme Court's ruling is overruled, and the FEC precludes their court from applying the mini-Blaine Amdmt to bar religious schools from the scholarship program since it engaged in religious discrimination. So, if MT wants to subsidize private schools, they must subsidize both secular and religious private schools. J. Gorsuch's Concurrence — believes the conduct vs. status distinction doesn't makes sense. Dissents: since MT State Supreme Ct. struck down the program entirely, the previously-offered benefits no longer go to anyone (including religious individuals); therefore, there is no FEC claim at issue here. Also, believes ruling excludes based on conduct (and that Davey is controlling), so MT SSC had a constitutional ruling. Breyer specifically notes how the majority's ruling could contribute to political divisiveness (as noted in Everson and Agostini, was not desired by the Founding Fathers)

Carson v. Makin (2022)

Maine had program tuition assistance program that allowed parents to designate school of choice for their children; state imposed a requirement that schools had to be non-religious. Petitioners were families who sought, but were refused, tuition assistance to send their children to religious schools. But, SCOTUS held this requirement to be unconstitutional, as it violated the FEC — the state's exclusion of religious schools is status-based; so, the case is controlled by Trinity Lutheran and Espinoza, not Davey. Therefore, Maine cannot offer citizens a benefit, but discriminate/not provide it to certain citizens based on their religious beliefs. If a state subsidizes secular education, it must also do so for religious schools. J. Gorsuch's Concurrence: notes again how the conduct vs. status distinction makes no sense (but, would still protect free exercise values here). J. Breyer's Dissent: majority's ruling would force stats to subsidize religion "all the way up to the line allowed by the EC"; today, EC allows for a lot of state-sponsored assistance; echoes his Espinoza dissent and the possibility for increased political divisiveness.

Masses Publishing Co. v. Patten (1917)

NY postmaster refused to mail π's revolutionary magazines because he thought the content violated the Espionage Act due to the anti-conscription messages in the cartoons and articles. The state argues that the magazines willfully counsel law-breaking and willfully obstruct recruitment by making false statements. Here, SDNY engages in a matter of statutory interpretation in deciding the reach of the Act. Judge Learned Hand believes these were not false statement, but rather, opinions: "to suppress all criticisms would suppress opinions, as any argument/conversation will cause discontent, and this would curtail free speech. Thus, all democratic discourse would be in danger especially if its too powerful/persuasive & riles people up." Thus, π was granted a preliminary injunction, because under 1A, the gov't can't prohibit speech that is critical of the gov't, but does not directly incite persons to violate the law. There is a difference b/w speech that merely stirs up political agitation vs. speech that directly encourages people to resist or disobey the law.

Arcara v. Cloud Books, Inc. (1986)

NY state law permitted a one-year closure of locations used for prostitution or lewdness. Here, a bookstore was shut down when it was discovered they had prostitutes in the back room. The bookstore challenged under O'Brien (here, prostitution was the conduct in question, and that conduct got the bookstore shutdown, which limits their expression/exchange of ideas throughout the bookstore; the ordinance itself is not targeting expressive conduct; in this case, it just so happens to be connected a.k.a. is incidentally effected). SCOTUS held that NY's gov't action here was not targeting expressive conduct ("unlike the symbolic draft card burning in O'Brien, the sexual activity carried on in this case has no element of protected expression"), and that O'Brien has no relevance to a statute directed at imposing sanctions on nonexpressive activity. Recall Class Example: reporter gets pulled over for speeding while trying to cover a breaking news story, and as a result, cannot. Reporter can't challenge the traffic law, because he was incidentally effected by gov't reg (in this case, the speed limit).

Ward v. Rock Against Racism (1989)

NYC had ordinance that required a city-approved/provided sound technician to be present when any acts performed in Central Park's bandshell. SCOTUS upholds the ordinance: even in a public forum, gov't can impose reasonable restrictions on the TPM of protected speech, provided that restrictions are "justified without reference to the content of the regulated speech" (a.k.a. they are content neutral, and are narrowly tailored to serve a significant gov't interest, while leaving open ample alternative channels for communication." In this case, the ordinance is content neural (the city's principal justification for the sound-amplification guideline is the desire to control noise levels and to avoid 'undue intrusion' into residential areas) Additionally, the majority provides more "wiggle room" re: satisfying level of scrutiny: "TPM restrictions are not invalid simply because there is some imaginable alternative that might be less burdensome on speech — thus, the requirement of narrow tailoring is satisfied 'so long as the regulation promotes a substantial gov't interest that would be achieved less effectively absent the regulation." But, a TPM regulation cannot burden substantially more speech than is necessary to further the gov't interest. Ultimately, SCOTUS shows a lot of deference to gov't (NYC essentially gets a "free pass").

Martin v. City of Struthers (1943)

OH town forbid canvassers from knocking on household doors to disperse their materials (in this case, a religious canvasser). Town implemented this ordinance because the majority of the townspeople worked in the iron and steel factories, and "needed undisturbed rest." Justice Black flips from initially upholding the ordinance, but then authors the majority opinion decrying the ordinance and holding it unconstitutional. In the draft opinion, the majority weighs the community as a whole vs. the doorknocker. However in the final opinion, the majority weighs the doorknocker vs. the individual homeowners' right to receive information (a.k.a would-be listeners) vs. the community. Thus, the final opinion shows a shift from the draft, which supported the city's paternalism. Ultimately, there needs to be a robust exchange of ideas: while door-to-door knockers may be a nuisance, they may also be useful members of society engaged in dissemination of ideas.

City of Ladue v. Gilleo (1994)

Ordinance prevented homes from displaying signs on their property except for "residence identification signs." In this case, ∆ placed an "anti-Persian Gulf War" sign on her front lawn. City claimed that ordinance was content-neutral, and that residents can convey their desired messages by other means (re: flyers, bumper stickers, handbills). Furthermore, city claims that ban is justified without reference to content. But, SCOTUS is not convinced: they were not persuaded that adequate substitutes exists for the important medium of speech that Ladue has closed off. Why? Front lawn signs are used to display in a community where people/neighbors know who you are. The importance of Gilleo's speech is thereby being associated w/ her identity, and thus, the identity of the speaker matters. And, it's important on how you define means of communication (here, it's different to tack signs onto telephone polls vs. in your front yard.) Recall the "poorly financed causes of little people" e.g. it's cheaper to use front yard signs than other mediums. Here, the gov't regulation represents an attempt to control the substance of public debate. HOLDING: Gov't can appropriately restrict speech under some circumstances, but if the restriction/its exceptions results in the gov't effectively restricting the subject of speech (i.e. "underinclusiveness") it is unconstitutional & cannot be enforced. The ordinance flatly bans ∆ and other private homeowners from engaging in a particular form of speech. Note also: the problem w/ remedy (content-based under-inclusive laws invite a remedy that just restricts more speech. If the city rewrote the law to ban all signs, a.k.a. was content-neutral, they would ban too much speech, since no signs would be allowed to be displayed. Thus, it would likely violate content-neutral standards re: TPM, and Gilleo would still be out of luck.

Central Hudson Gas & Electric Corp. v. Public Service Commission (1980)

PSC ordered electric utilities in NY to cease all advertising due fuel shortage/energy crisis. Thus, PSC is regulating based on content here. After the shortage ended, PSC divided advertising expenses into two categories: promotional (intending to stimulate the purchase of utility services) and informational. SCOTUS says: the 1A's concern for commercial speech is based on the informational function of advertising. If the communication is neither misleading nor related to unlawful activity, the gov't power is more circumscribed (i.e. truthful info re: legal transactions is protected. In such cases there's relatively limited room for gov't regulation). ***See CONCEPTS Flashcards for Four-Part Test Thus, the state must assert a substantial interest to be achieved by restrictions in commercial speech a.k.a. intermediate scrutiny, not strict scrutiny. There are two state interests here: energy conservation and concern for fair energy rates. Thus, SCOTUS must assess these interests and if the restrictions on advertising are reasonable: Energy Conservation: a legitimate interest due to the energy crisis, and is directly advanced by the advertising ban. However, the ban is more extensive than necessary. Equitable Rate Structure: legitimate interest as well, but is not furthered by the advertising ban HOLDING: The state cannot justify suppressing information about electric devices/services that would cause no net increase in total energy use (ex. ad ban would also prohibit ads for energy-efficient dishwashers). There was no showing that a more limited restriction on the content of said ads would not adequately serve the state's interests. Blackmun's Concurrence: believes advertising ban was too paternalistic (a.k.a. can't use speech restriction to mold consumer conduct when the conduct is legal; thus, gov't can't hide truthful, legal information); does not believe that four-part test is consistent w/ prior SCOTUS decisions, and does not provide adequate protection for truthful and non-misleading commercial speech. However, believes intermediate scrutiny is appropriate.

Paris Adult Theatre I v. Slaton (1973)

Petitioners own two adult movie theaters in GA; they were cited for showing two obscene films which depict sexual conduct, and were characterized by the GA Supreme CT as "hardcore pornography." Here, GA tried to argue that there was an "arguable correlation" between obscene material and crime" and that allowing obscene porn films to be shown in public theaters would "grant a man his right to affect everyone else." But, SCOTUS rejects this argument: there is no conclusive proof that a connection b/w obscene materials and antisocial behavior exists. However, SCOTUS still thinks that "nothing suggests that there is any 'fundamental' privacy right implicit in the concept of ordered liberty to watch obscene movies in places of public accommodation." SCOTUS upholds Roth: obscene material has no protection under 1A; also reaffirms Reidel that commerce in obscene material is unprotected by any constitutional doctrine of privacy: "states have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accommodation, including adult theaters." This is consistent with Stanley's heavy focus on the importance of the home / a person's right to enjoy materials within it. Here, SCOTUS shows a growing deference to the states compared to Stanley (opinion notes 'the tone of commerce', 'protecting children' and being anti-crime). Brennan's Dissent: SCOTUS does not need to figure out how to identify obscenity (should embrace a different path than Roth).

San Diego v. Roe (2004)

Roe was a police officer who made stripping videos while in uniform. Generally, in cases where speech was not related to work necessarily, SCOTUS extends greater speech protections to employees. However, this is a rare case where SCOTUS did not extend greater speech protections to Roe, and upheld his firing.

Pope v. Illinois (1987)

SCOTUS addressed the third prong of the Miller test (that the trier of fact determines "whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value"); a.k.a. trying to determine the 'value' at a national standard. SCOTUS held that, unlike the 1st/2nd prong, the third prong is not tested by community standards: "the proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material taken as a whole."

St. Amant v. Thompson (1968)

SCOTUS applied the malice standard; π was a candidate for public office, and made comments accusing ∆, a deputy sheriff of criminal conduct. SCOTUS reversed lower court's ruling that π had libeled ∆: "broadcasting false information about ∆ falls short of proving if π had a reckless disregard for the accuracy of his statements re: ∆." a.k.a. "there must be sufficient evidence to permit the conclusion that ∆ entertained serious doubts as to the truth of his publication. The finder of fact must determine whether the publication was indeed made in good faith."

Taxpayers for Vincent (1984)

SCOTUS assessed an LA ordinance which forbade posting signs on public property. Here, supporters wanted to post campaign signs on public poles. Different than Gilleo because SCOTUS finds the ordinance to be constitutional. The city's purpose was to maintain aesthetics in public areas, and that is a legitimate gov't interest. Thus, they are trying to avoid clutter, and the ordinance directly furthers their interest, and was not overbroad. Additionally, the public property covered by the ordinance is not a "public forum" because utility poles have never been recognized as possessing a traditional right of access for public communication.

Fulton v. City of Philadelphia (2021)

SCOTUS considers whether Smith should be revisited by this case. Here, city contracted w/ private foster agencies to secure foster homes for children. Catholic Social Services would not certify same-sex couples as foster parents due to religious beliefs about marriage, so the city stopped referring children to CSS as a result. SCOTUS sided w/ CSS: if a law allows discretionary exemptions to be granted, it is not considered a law of general applicability (harkens back to Sherbert). Therefore, the compelling interest/S.S. analysis applies (so, case falls outside of the Smith realm). The contractual non-discrimination requirement imposes a burden on CSS's religious exercise, and does not qualify as generally applicable. But, the majority does not overrule Smith entirely — despite Alito's vocal concurrence.

Yates v. United States (1957)

SCOTUS decides case on a matter of statutory interpretation ("asking whether the Smith Act prohibits advocacy of forcible overthrow as an abstract principle, divorced from any effort to instigate action to that end, so long as such advocacy or teaching is engaged in with evil intent"). SCOTUS held that it did not: The Smith Act covers violent overthrow/revolution, but does not cover people saying "I like socialism."

United States v. Reidel (1971)

SCOTUS examined Stanley's "right to receive" — rejects the 'rich Stanley/poor Stanley argument" (states can still limit theatres, even if they 're discrete re: advertising porn): "the focus of the language in Stanley was on freedom of mind, thought and privacy of one's home. It does not require that we fashion or recognize a constitutional right in people like Reidel to distribute obscene materials."

De Jonge v. Oregon (1937)

SCOTUS found for π, who had been convicted under state's criminal syndicalism statute for assisting a Communist Party meeting: "peaceable assembly for lawful discussion cannot be made a crime" — here, attendees discussed how the world would look like if socialism were implemented; did not engage in discussions of a revolutionary overthrow of violence; additionally, not all attendees of CP meetings agreed 100% with communist methodology (thus, need a show of specific intent of the member in question).

Curtis Publishing Co. v. Butts (1967)

SCOTUS introduces public figures as separate to public officials: "many individuals who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions ... public figures, like public officials, often play an influential role in ordering society." Thus, this case established that public figures must meet the same standards as a public official; but, they may have more tools to fight against mistruths/protect their reputation (ex. holding press conferences, having publicists, etc.)

Fiske v. Kansas (1927)

SCOTUS is essentially asking, "can individuals be prosecuted b/c of their POVs or organization membership?" The court's answer was no, and that Kansas had arbitrarily and unreasonably exercised their police power when charging π with belonging to the IWW during WWII.

Edwards v. South Carolina (1963)

SCOTUS overturned the convictions of civil rights demonstrators who were convicted of breach of peace: "the petitioners were exercising their basic constitutional rights by peaceably assembling, and there was no threat of violence." Also important to note how the protestors were at the State Capitol, which is traditionally open to the public (therefore, their speech/demonstration aligns with the forum's purpose). Different from Feiner, since there was ample police present in Edwards, and would've been readily available to curb disorder. Gov't does have some obligation to protect speaker; so, at a certain point, police have to shut down the event.

Rosenblatt v. Baer (1966)

SCOTUS provided some guidance re: what constitutes a public official: they must have a substantial responsibility in gov't affairs ... when a position in gov't has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it" a.k.a. they have "some hands on the decision-making wheels of gov't."

Seales v. United States (1961)

SCOTUS reviewed the Smith Act's 'membership clause'; believes there must be "clear proof that a ∆ intends to accomplish the aims of the organization by resorting to violence" (a.k.a. explicit planning of a violent overthrow). The clause does not make all activity associated with an organization (such as the Communist Party) automatically criminal - for ex. disseminating party literature does not constitute an offense.

Minersville Sch. Dist. v. Gobitis (1940)

SCOTUS ruled that a school could expel students who refused to salute the American flag; ruled that the compulsory flag salute did not violate the children's (who were JWs) federal constitutional rights. Here, the Frankfurter majority shows major deference to the legislature (opinion came down the same day that France capitulated to the Nazis in WWII — Frankfurter was definitely thinking of fascism, Stalinism, etc.).

Giboney v. Empire Storage & Ice Co. (1949)

SCOTUS stated that "1A does not protect speech or writing used as an integral part in committing a crime." This is why you can be prosecuted for soliciting a murder, which is largely done w/ words (similar to the incitement rationale).

First National Bank of Boston v. Bellotti (1978)

SCOTUS struck down a law that severely limited corporations' ability to make contributions/expenditures in referendum votes — i.e., SCOTUS ≠ believe that corporations' donations would have an undue influence on the outcome of a referendum vote. Additionally, there is no risk of corruption in such votes because there's no candidate up for election. Furthermore, there is no evidence of the political marketplace being distorted (e.g. would occur if only 2% of people favor an issue, but a billionaire corporation controls 99% of the message on the issue).

City of Houston v. Hill (1987)

SCOTUS struck down an ordinance that made it a crime for anyone to assault a policeman in the execution of his duty; decision rested on how "1A protects a significant amount of verbal criticism and challenge directed at the police," and that the fighting words exception might require a narrower application in cases involving words addressed to the police, and that police should exercise more restraint in the face of provocation .

United States v. United Foods (2001)

SCOTUS struck down the compelled assessments in this case, which fund an advertising campaign for mushrooms. Different from Glickman, where the compelled payments were "ancillary" to a more comprehensive program restricting marketing autonomy; here, the advertising itself was the principal object of the regulatory scheme.

Glickman v. Wileman Brothers & Elliott (1997)

SCOTUS upheld a USDA advertising program promoting CA crops, which was funded by compelled payments. Here, requiring farmers to pay the assessment cannot be said to "engender any crisis of conscience."

Kovacs v. Cooper (1949)

SCOTUS upheld an ordinance which forbid the use of soundtrucks in a city. The π tried to rely on Martin as precedent, but the majority rejected such rationale: in Martin, homeowners could place "NO TRESPASSING/SOLICITING" signs on their doors to avoid knockers, whereas the citizens in Kovacs cannot avoid the sound of a blaring truck. The majority determines that such distractions of sounds can be dangerous to traffic. Black's Dissent: concerned with how the ban will inhibit the dissemination of information; instead of completely banning such usage, the city could reasonably restrict the volume, sound, permissible hours for use, etc. Particularly concerned with people who do not have $$$/other resources to spread their cause another way a.k.a. "the poorly financed causes of little people"

R.A.V. v. City of St. Paul (1992)

St. Paul ordinance prohibited the display of symbols/objects that "one knows, or has reasonable grounds to know, arouses anger or resentment in others on the basis of race, color, creed, religion, or gender" (essentially, an anti-hate crimes ordinance). Here, π lit a burning cross on a Black family's yard. But, SCOTUS struck down the ordinance: even when a law regulates unprotected speech, such as fighting words, if it draws content-based distinctions within that category, the law is subject to S.S.; thus, unprotected speech constitutes expression, even if it can be proscribed for a specific reason (such as the tendency of fighting words to instigate violence). Thus, unprotected speech can even enjoy the protection of CNR. But, there are some categories of unprotected speech that do not get protection (e.g. obscenity). Therefore, SCOTUS ultimately determined that the ordinance discriminated based on content and viewpoint because it targeted those fighting words that communicated a message of "bias-motivated hatred" and did not pass S.S. When the content category is based on secondary effects (e.g. fighting words that constitute employment discrimination; sexual harassmsent speech being outlawed); when the content category does not suggest that "official suppression of ideas is afoot"

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976)

VA statute prohibited pharmacists from advertising "I will sell x drug at y price" to consumers. State believed that advertisements of prescription drug prices are outside the protection of the 1A b/c it constituted "commercial speech." Also, believed that price advertising would jeopardize the pharmacist's expertise and with it, customers' health. The resulting aggressive price competition will degrade professional standards, and could lead to pharmacies cutting price corners. Unlike in NYT v. Sullivan, the ad in question does not speak to any important social issue, and thus the subject matter is not a constitutional right. Majority: just because the advertiser's interest may be a purely economic one does not mean that disqualifies them from 1A protections. When drug prices vary as strongly as they do, information as to who is charging what becomes more important. Thus, society may have a strong interest in the free flow of commercial information. Listeners may be self-interested for economic reasons, but listeners may also want to hear discussion on economic matters (which would be assisted by the ads in question). SCOTUS is also concerned with the difficulty of line-drawing with publicly interesting or important commercial advertising. Here, SCOTUS takes an anti-paternalistic approach: the court thinks consumers should be trusted to make their own decisions and should receive the information to base said decisions off of. Thus, SCOTUS rules that the advertisement constitutes protected speech. Stewart's Concurrence: empirical claims can be tested (again, truthful speech should not be chilled). Rehnquist's Dissent: basically foreshadows modern medication/alcohol/tobacco ads. Believes that gov't should have the power to regulate speech in order to regulate conduct. Takes issue with how the majority elevates the interests involved to the interest of a free marketplace of ideas, which are traditionally protected by 1A).

Sorrell v. IMS Health Inc. (2011)

VT wanted to ban "detailing" (practice by which pharmaceutical manufacturers would promote their drugs to doctors, and trying to persuade them to prescribe their particular drug through analyzing doctors' prescription practices and patient information). SCOTUS: law violates 1A, as it enacts content and speaker-based restrictions. The statute was not narrowly drawn to serve the interest of physicians to keep these prescription decisions confidential. Additionally, the states' asserted interest in physician confidentiality does not justify the burden that the statute places on protected expression. Thus, the law fails Central Hudson scrutiny: the privacy protection rationale doesn't work, and neither does the market regulation rationale (b/c it seeks to promote it by withholding truthful speech on the fear that it will be too persuasive). NOTE: Is this a return to the Lochner Era? (Criticizing gov't trying to regulate businesses via 1A).

PruneYard Shopping Center v. Robins (1980):

a shopping center owner argued that his 1A rights were violated when a lower court compelled him to use his property as a forum of the speech for others (in this case, a group of high school students who set up a table on his property to discuss their disagreement w/ a UN Resolution). But, SCOTUS did not agree w/ π's argument, and distinguished Wooley — the very nature of the shopping center makes it an establishment open to the public, and the views expressed by members of the public will likely not be identified w/ those of the owner. The owner could have disavowed the students by posting signs in the area where they stood, and thereby disclaim any sponsorship of their message. Here, the case is different than Wooley because there is no specific message that is dictated by the state to be displayed on the center's property. But, does this really distinguish Wooley? Wooley could've easily put a bumper sticker next to the license plate stating that he did not agree w/ the motto.

Cox v. New Hampshire (1941)

again, a group of JWs who were convicted of violating NH's statute, which prohibited parades upon public streets without obtaining a license first. Here, marchers did not obtain such a license. SCOTUS conducts a balancing test (speech on the streets vs. regulation of the use of streets for the public good —- gov't has a legitimate interest in making sure that there's reasonable access to streets, since unpermitted marches can cause problems with assessing sidewalks/streets). SCOTUS finds that there's limited authority conferred upon the licensing provisions, and there is no evidence that the statute has been administered in an unfair/arbitrary way. Thus, gov't retains the right to regulate TPM of speech for the public good (e.g. ppl trying to sleep at night, rush hr traffic, etc) in order to prevent rioting/disorder. Majority writes about "the power of the state to prevent or punish" (which speaks to the problem of a hostile audience). HOLDING: statute is constitutional, and the licensing fees are upheld, even when they vary. (But, remember "poorly financed causes of little people!")

Stanley v. Georgia (1969)

agents served a search warrant on π's home, and found reels of porn movies; π was then convicted of violating GA obscenity statute. Π argued that he should have the right to read/observe what he pleases, and the right to satisfy his intellectual and emotional needs in the privacy of his own home. GA counters stating they have the right to protect the individual's mind from the effects of obscenity, and the state has the right to control the moral content of a person's thoughts. SCOTUS acknowledges that may be a noble pursuit for some, but it is "wholly inconsistent" with the philosophy of 1A. However, it is well established that the Constitution protects the right to receive information and ideas. The line b/w the transmission of ideas and mere entertainment is much too elusive for SCOTUS to draw. Additionally, GA tries to make obscenity be about ideas, and the right to receive ideas in the home (but, not anywhere else such as an adult theatre); enter the "rich Stanley, poor Stanley" dilemma. HOLDING: Whatever may be the justifications for obscenity statutes, we do not think they reach into the privacy of one's own home. But, the states retain broad power to regulate obscenity, and that power simply does not extend to mere possession by the individual in the privacy of his own home.

NAACP v. Claiborne Hardward Company (1982)

an "after-the-fact" lawsuit, NAACP leader (Evers) urged Black citizens to boycott racist, white-owned businesses; said "if we catch any of you going in any racist stores, we're gonna break your damn neck." Important to note that no violence or arrests broke out during the boycott. Businesses owners filed suit to recover losses and to enjoin future boycotting. SCOTUS examined whether Evers' speech was likely to incite lawless actions and could therefore justify holding him liable for the unlawful conduct of others. But, the "emotionally charged rhetoric of Evers' speeches did not transcend the bounds of protected speech set forward in Brandenburg; rather, they contained an impassioned plea for Black citizens to unify and support each other. Additionally, no acts of violence occurred immediately after Evers' speeches. An advocate should be allowed to stimulate his audience with emotional appeals. When such appeals do not incite lawless action, they must be regarded as protected speech under the 1A.

New York TImes Co. v. Sullivan (1964)

an ad in the NYT ("heed their voices") ran, and described a "wave of terror" directed at Black students at southern schools. ∆, a commissioner in AL, alleged that he was libeled by the ad. Although not mentioned by name in the ad, ∆ contends that the word "police" referred to him as a city commissioner. AL jury awarded him $500k in damages (in AL, ∆ did not need to show how "much" he was damaged). But, this was a state action, and was therefore subject to the 14th Amdmt. SCOTUS traces history of libel back to the Sedition Act of 1798, which punished any person who wrote false/malicious actions against the U.S. gov't; but, lots of Founders opposed this, as it was inconsistent with 1A. Thus, USA has a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open" [which may lead to unpleasant or sharp attacks on gov't officials as a result.) False statements are inevitable in free debate, and therefore, so is injury to reputation. SCOTUS is concerned with the chilling effect (ex. citizens will be too scared to speak out against their gov't officials due to fear of being penalized) . SCOTUS identifies Sullivan as a public official: "criticism of their official conduct does not lose its constitutional protection because it is effective criticism" a.k.a. its what public officials signed up for; this speech (criticizing public officials) has high value. Brennan's Majority in a Nutshell: public officials wield power, but there also is the need to be criticized by the public, otherwise there'd be no public discussion. Thus, AL law is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press. Reverses lower court's ruling. So, SCOTUS presents a solution: there should be a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to their official conduct unless they prove that the statement was made with actual malice (that is, with the knowledge that it was false, or made with reckless disregard of whether it was false or not).

Wooley v. Maynard (1977)

another case involving JWs; here, challenging requirement to display NH license plate that has the state's motto of 'Live Free or Die.' Here, SCOTUS is concerned with the state hijacking citizens' minds + spirit to say something ideological that they do not agree with. But, SCOTUS is not really applying narrow tailoring here b/c there are very weak state interests here (and therefore, makes it an easy case to decide in favor of the JWs). The court distinguishes b/w license plates and USD currency displaying "in God we trust" — here, Wooley was compelled to display the license plate w/ the state motto outwardly so people could see it at all times; currency is placed in your wallet/not displayed in the same way. Key Quote: "Where the state's interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual's 1A right to avoid becoming the courier for such a message" (similar to Jackson in Barnette - "having the right to unorthodox opinions"). Key Quote: "Here, a state measure forces an individual, as part of his daily life, to be an instrument for fostering public adherence to an ideological POV he finds unacceptable. In doing so, the state 'invades the sphere of intellect and spirit which it is the purpose of the 1A to reserve from all official control'" (quoting Barnette). Therefore, SCOTUS held: the state may not require an individual to participate in the dissemination of an ideological message by displaying it on their private property in a manner that it be observed/read by the public. However, must ask: was this really an ideological message? Justice Rehnquist in his dissent does not believe so — "the display of a state motto on a license plate is not a form of nonverbal conduct that constitutes speech"

West Virginia State Board of Education v. Barnette (1943)

another compulsory flag salute case; SCOTUS overruled their Gobitis opinion. Here, Justice Jackson discusses how local institutions (such as school boards) may be prone to invading minority rights because local majorities can be more homogeneous, and do not give voice to minorities (in this case, JWs); also, local institutions may feel less of a responsibility to the Constitution. Additionally, Jackson frames the issue as schools compelling students to declare a belief, rather than a state trying to teach civics. Jackson speaks of the importance of not stamping out dissenting voices. Furthermore, Jackson writes how the BoR is important for protections b/c not everyone can rely on the political process to positively change in order to reflect their ideas/beliefs (note: recall how Frankfurter in Gobitis believed that JWs could just vote for other school board officials, and hope that the salute policy would be changed) — reminiscent of the "poorly financed causes of little people". Key Quote: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."

City of Austin, Texas v. Reagan National Advertising of Austin, LLC (2022)

another sign-code case; Austin did not allow billboards advertising for things not at their present location to digitize, whereas billboards that did advertise for things on their property were allowed to digitize their content — a.k.a. on vs. off-premises distinctions (e.g. billboard outside Barclay's can't say/digitize "Come Visit BLS!" but a billboard outside Barclays can say/digitize "come see the Nets play!"). The SCOTUS majority finds that the on vs. off-premises distinction is not content-based, but the dissent says it is. The majority believes the on vs. off-premises distinction draws neutral, location-based lines and is "agnostic" as to content. Specifically, the majority finds the distinction is not singling out any topic or subject matter for differential treatment. There are no content-discriminatory classifications for political, ideological or directional messages. A given sign is treated differently based solely on whether it is located on the same premises as the thing being advertised or not. Therefore, the issue does not warrant the application of S.S.

Agostini v. Felton (1997)

at issue is an NYC program that has public school teachers provide remedial education to struggling kids in private/religious schools. Here, O'Connor writes for the majority and SCOTUS reevaluates the Lemon test. The majority notes the issue b/w Prong #2 and Prong #3 of the test, and therefore, folds the "entanglement" prong into the "effects" prong. Thus, the "new law" of Prong #2 (Effects) considers the following: (1) Rethink the indoctrination concern (it is not an issue w/ public school teachers on private school grounds; no problem w/ aid that directly assists school's educational mission). (2) Does it create excessive entanglement? (essentially, SCOTUS is saying that they are not worried about the perceived effect of the gov't favoring religion, and waters down the "effects" prong). Cites Zobrest v. Catalina Foothills School Dist. (1993) as precedent: public employee (ASL interpreter) was permitted to be on Catholic school grounds to interpret for a deaf student, and didn't constitute a 1A violation. Basic Takeaway: gov't-paid instruction on secular/basic topics on the premises of religious schools is constitutional. Thus, the majority is more accepting of the equal-aid principle. Justice Souter's Dissent: wants to keep the wall b/w church and state

Citizens United v. Federal Election Commission (2010)

at issue was the Bipartisan Campaign Reform Act ("BCRA"), which prohibited the use of corporation or union general treasury funds for electioneering communications. Here, a challenge to BCRA's electioneering provision and Austin — and, SCOTUS ultimately overrules both. Why? Its content and speaker-based restrictions (e.g. law banned funding political speech 30 days prior to an election), and therefore, triggers strict scrutiny. The PAC exemption created by the law does not allow corporations to speak for themselves, since PACs are completely separate entities apart from the corporation (therefore, the corp. cannot actually express their beliefs). This rationale speaks to the "corporations are people too" belief. Case ≠ centered on just express advocacy, but also electronic or print communications that refer to a federal candidate and run close to a primary/general election (e.g. 30 days prior). But, SCOTUS rules that segregated fund (e.g. PACs) is okay. Justice Kennedy, writing for the majority, rejects the "distortion rationale" mentioned in Austin (thus, believe that independent expenditures will not give rise to corruption or the appearance thereof). Kennedy believes that the Austin rationale does not work, as many of the restricted corporations are small & would be incapable of exercising immense power over an election's outcome. re: disclosure requirements — applies "exacting" scrutiny (not strict scrutiny); SCOTUS votes to uphold these requirements on the basis of interest in providing citizens w/ info. re: the sources of electoral spending.

Church of the Lukumi Babalu Aye, Inc v. City of Hialeah (1993)

at issue were Santeria's religious practices; city implemented ordinances aimed at quelling Santeria's religious sacrifices of animals. Santeria challenged the ordinances, and SCOTUS rules in their favor. The court examines the object of the laws at issue, and determines the city's objective was to target the Santeria religion: facially, the terms "sacrifice" and "ritual" are a red flag. Additionally, SCOTUS considers the object of the law in its operation ("religious gerrymander") — the city provides exemptions for Halal/Kosher slaughters, but not for the Santerians — e.g. you can terminate insects/spray for mice, but cannot engage in Santerian animal sacrifices. Compare Smith — if there are exemptions to the rule/law, then religious claimants should be included in exemptions as well. Here, the FL ordinances were not neutral and were not generally applicable (unlike OR's law in Smith). When individualized exemptions are made, that's when Sherbert comes into play re: neutrality: from examining the legislative history (à la Arlington Heights factors), its clear that suppression of a central element of Santerian worship [animal sacrifices] was the city's object here. re: general applicability: The ordinances are not a good fit/not narrowly tailored because they fail to prohibit nonreligious conduct that also endangers animals in a similar degree than Santeria animal sacrifices does. Therefore, the ordinance do not withstand S.S. [When a law is not generally applicable, there's discrimination, and hence, the need to apply S.S.].

Buckley v. Valeo (1976)

case regarding limits on financial contributions and expenditures to political candidates (e.g. couldn't give more than $1,000 to an individual candidate via contributions, and couldn't give more than $25,000 in a single year as one contributor). The gov't justifies the law as an attempt to stamp out corruption or the appearance of corruption (e.g. if a donor gives $500,000 to a candidate, that candidate may appear beholden to the donor). Here, SCOTUS recognizes that these limits are not TPM regulations, because they impose direct quantity restrictions on political communications and association (e.g. restricting the $$$ amount, not how it is donated). Furthermore, the majority writes how when contributors donate $$$$ to a campaign, they are just symbolically showing their support. And, donors can still exercise the freedom to discuss candidates and political issues. Thus, SCOTUS upholds the $1k contribution limit, but strikes down the expenditure limits, because they impose significantly more severe restrictions on protected freedoms of political expression and association. The expenditure limits made it a crime for you to pay for an ad to support your candidate of choice (e.g. there's no quid pro quo potential here, b/c the candidate's campaign is not controlling what you're saying about the candidate). Thus, there is no anti-corruption interest to justify expenditure limits. Any anti-corruption concern is taken care of by the contribution limits. Therefore, SCOTUS recognizes that spending money to influence elections is a form of constitutionally-protected speech.

International Society for Krishna Consciousness, Inc. v. Less (1992) ("ISOK")

challenged Port Authority's policy of banning direct/immediate solicitation inside terminals at JFK/LGA/Newark Airports. PAT also banned leafleting practices. SCOTUS reminds that solicitation is indeed protected speech, then determined that airport terminals were not public forums, because they were not traditionally places whose principal purpose was promoting the free exchange of ideas. Additionally, SCOTUS finds that the Port Authority's ordinance was reasonable, because solicitation can disrupt busy travelers rushing to catch a flight. Also important to note that PAT ≠ entirely ban solicitation — can still do so on sidewalks outside the terminals, just not inside. C.J. Rehnquist bunches limited/non-limited forums, which blurs the lines. Essentially makes PFs, DPFs, and LPFs all the same. O'Connor's Concurrence: assumes forum is more than just for air travel, but still agrees that it is not a public forum. However, does not agree w/ the court upholding the leafletting ban. Kennedy's Concurrence: believes airport terminals should be considered public forums because people have extensive contact w/ each other. Views ban on face-to-face solicitation as a "manner restriction", and is a valid TPM restriction (asking for $$$ as an "immediate donation" is a manner, whereas π could just give passerby leaflet/ask for them to give donations at a later time). Therefore, should consider the compatibility of the speech here (solicitation) with the forum and the gov'ts intentions/policies. Also, takes a more "evolutionary" approach when considering if airport terminals constitute a public forum, and considers the objective facts of an airport terminal (Grayned).

Goldman v. United States (1918)

cited by Schenck; in this case, ∆ argued that unless the conspiracy accomplished its unlawful purpose by causing illegal acts to be committed, that no crime results from an unlawful conspiracy to bring about such an act. But, SCOTUS disagreed: conspiracy in itself is a crime, and is separate of the conspired-to act.

Hague v. Committee for Industrial Organization (1939)

city ordinance prevented π from distributing leaflets/holding meetings in public places. The Director of Safety can refuse a permit on his mere opinion that such refusal will prevent "riots, disturbances or disorder." SCOTUS does something rare, and references the PIC in their rationale: "the privilege of a U.S. citizen to use the streets and parks for communication of views on national questions cannot be abridge or denied. The denial of permits re: preventing riots can be used as an instrument of arbitrary suppression of free expression of views. Uncontrolled official suppression of the privilege cannot substitute for the duty to maintain order." Thus, the ordinance was unconstitutional.

Lovell v. City of Griffin (1938)

city ordinance stated that citizens needed to obtain written permission from the city manager in order to distribute leaflets/literature of any kind (a.k.a. "prior restraint" — requirement to ask gov't permission prior to even speaking); π was a Jehovah's Witness who distributed magazines w/out a license. SCOTUS strikes down the ordinance on its face: prior restraints were the foundational problem founders were concerned w/; emphasizes how the struggle for the freedom of the press was primarily directed against the power of the licensor.

City of Cincinatti v. Discovery Network, Inc. (1993)

city wanted to remove all the newspaper racks for the "pennysaver" gazettes, but wanted to keep the Inquirer - claimed that city had an interest in safety and the "attractive appearance of its sidewalks." The pennysaver gazettes challenged the action on the grounds of commercial speech. SCOTUS: the city is over-reading jurisprudence re: commercial speech. The city presented no evidence that commercial newsracks were a greater "eyesore" than noncommercial newsracks. This ruling may also represent SCOTUS shifting to believing comm. speech deserves more protections.

City of Renton v. Playtime Theatres, Inc. (1986)

city zoning ordinance prohibited adult movie theatres from locating within 1000ft of residential zones, parks, churches or schools. City borrowed data from study conducted in nearby Seattle, which indicated that adult theatres lowered property values and contributed to public drunkenness, prostitution, or other crimes.Thus, the city does not care about the content of the movies themselves, but justified the ordinance on non-content grounds (e.g. their secondary effects). ∆ argues that ordinance is underinclusive, as city should apply same restrictions to other adult-businesses likely to produce similar secondary effects. SCOTUS deems the ordinance to be content-neutral, and applies the following analysis to the ordinance: Is law justified without reference to its conduct? Is it designed... to serve a substantial gov't interest and allows for reasonable avenues of communication? ***Note how this differs from TPM: reasonable v. ample (here, this is a more lenient standard/deferential to the gov't) SCOTUS: "a city's interest in attempting to preserve the quality of urban life" is definitely a substantial interest. The ordinance allows for reasonable alternatives b/c there's still 500+ acres of town land open for adult theatres.Thus, the ordinance is constitutional.

Schneider v. New Jersey (1939)

concerned four cases at issue, all of which prohibited passing out leaflets to people in public (also a case of prior-restraint). Lower courts upheld the ordinances based upon police power reasoning (e.g. concerned about littering, aesthetics, etc.). But, SCOTUS disagrees, and begins to move away from police-power jurisprudence. Thus, the majority speaks to the language of fundamental rights ("a municipality may not abridge the individual liberties secured by the Constitution to those who wish to speak, write, print or circulate informations or opinions). Additionally, the court finds that the legislative purpose (ex. to keep city streets clean) is insufficient to justify such an ordinance, and there are alternative means to keep the streets clean. Thus, the 1A does not permit municipalities from restricting such behavior in public places (harkens back to how sidewalks are traditionally viewed as public forums — speech restrictions in such places are highly problematic), and the ordinances are unconstitutional.

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985)

credit report agency sent out a report re: ∆, but it contained inaccuracies [claimed that ∆ filed for bankruptcy, but they did not]. SCOTUS held that the issue did not involve a matter of "public concern." Here, the speech was only delivered to five subscribers, and did not involve any strong interest in the "free flow of commercial information." QUIMBEE: A court may permit recovery of presumed and punitive damages in a defamation case absent a showing of actual malice when the defamatory statements do not involve matters of public concern.

Keller v. State Bar of California (1990)

essentially the same as Abood; compulsion for spending/paying dues needs to be related to the company/profession. Here, SCOTUS ruled that requiring attys to pay bar fees was permissible, as the state had an interest in regulating the legal profession. However, SCOTUS held that the state bar could not fund activities of an "ideological nature." (e.g. CA Bar now allows attys to opt out of paying $5 that would go toward lobbying).

Austin v. Michigan Chamber of Commerce (1990)

flips Bellotti — SCOTUS upholds a law targeting corruption in corporations providing political donations. Here, the law was narrowly tailored to achieve this anti-corruption interest, b/c it allowed corps to make political expenditures through segregated funds.

Perry Education Association v. Perry Local Educators' Association (1983)

here, SCOOTUS divided public property into three categories: TPF, DPF (i.e. libraries, theatres, etc.), and NPFs. States that DPFs/Limited Public Forum — e.g. a school board meeting ≠ allow discussions re: economy, Iraq War, etc., and content/speaker discrimination is allowed. On gov't property, content-based restrictions can occur, as long as they're viewpoint neutral and reasonable. Regarding school's refusal to allow another union access to the teacher's mailbox system, SCOTUS said "there was nothing to indicate that the school district had opened their mail system for indiscriminate use by the general public. Here, permission to use the system had to be granted by each school's principal.

Abrams v. United States (1919)

in 1918, the Espionage Act was expanded via the Sedition Act, which criminalized any language intended to incite resistance to the USA in wartime. Recall the 'Red Scare' era and the Palmer raids during this time. Π distributed flyers in the Garment district, and specifically targeted Russian immigrants, particularly workers in an ammunition factory and called for a worker strike. Majority: even if π's primary purpose was to aid the cause of the Russian Revolution, the plan of action which he adopted necessarily involved the defeat of the USA's war program (by trying to persuade workers to leave ammunition factories). Holmes' Dissent: was the main move of free speech law in its critical first decade (criticized the vague test est. by Schenck; has a more protective attitude in Balzer). Believed the flyers were intended to impact the USA invasion of Russia, and the Espionage Act ≠ reach that far. Thus, "specific intent" is much more specific. Holmes believes that "clear + imminent" > "clear + clear and present." But, how "imminent" is imminent? Danger/evil must be here + now before gov't can act to restrict (danger can't just be "lurking"). If its an imminent danger, there's no time for counter speech in the marketplace of ideas (and thus, there is no time for the counterspeech to drown out this inciting speech). But, with "clear + present danger", you're allowed to provide your POV b/c it could be correct (and is why the gov't shouldn't quash all free speech).

Mitchell v. Helms (2000)

issue of federal law providing federal funds to private schools (generally used for material and equipment). State educational authorities then distribute this aid to schools (and is done so based on enrollment). However, materials themselves must be secular. Both parties agree that there's no issue of re: secular purpose (since both parties want to ensure students have access to a good education). Thus, SCOTUS must only consider the "effects" in their analysis. In doing so, the court analyzes the following: (A) Does the aid result in gov't indoctrination? (B) Does the gov't aid define its recipients by religion? (C) Does gov't aid create excessive entanglement as a result? Here, just A and B are at issue. re: A (does the gov't aid result in indoctrination?) — NO; both public and private schools can pick from the same aid "catalog", which is secular in nature re: B (does the gov't aid define its recipients by religion?) — NO; the aid is equally available to both public and private/religious students; hence, neutrality/equality plays a big role here. The court also examines how aid can be diverted and still used in a religious manner (e.g federal aid pays for school lunch program, but the cafeteria workers require all students to say 'grace' before eating). However, the possibility of divertibility does not make the entire program "impermissibly religious in nature." Therefore, the court holds that the law in question is constitutional. Thus, in sum — the FEC and EC require difficult balancing. The "no aid" rule may be historically accurate, but hard to apply given the myriad benefits modern gov't doles out (e.g. firefighters, police, sidewalks, etc.). But, a pure "equal aid" principle opens the door for significant gov't assistance of religion Justice O'Connor's Concurrence: neutrality alone should not be enough to uphold the aid to religion; believes that actual diversion of gov't aid is a real problem, b/c that sends a message of gov't endorsement of religion Justice Souter's Dissent: wonders how court would delineate permitted aid vs. prohibited aid (i.e. thinks the majority has created a line-drawing problem); the problem with neutrality is that it would allow massive money payments to religious schools, as long as they were given out on neutral criteria.

Rumsfeld v. Forum for Academic and Institutional Rights (2006)

law school did not want to advertise that military recruiters were on campus due to the DADT policy in place at the time. Students argued that being forced to advertise their presence would infringe on their 1A rights via compelled speech. SCOTUS disagreed w/ the law students, as the law at issue did not dictate the content of the speech at all ("compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance to the flag").

Grayned v. City of Rockford (1972)

ordinance prohibited demonstrations from occurring outside schools during the schoolday. SCOTUS upheld their convictions for violating the ordinance: the statute was not overbroad because it permits peaceful picketing that does not disrupt the schoolday, and the state has a compelling interest in maintaining a non-disrupted schoolday.

Janus v. American Federation (2018)

overrules Abood — therefore, does not permit any compelled union spending. in the majority, Alito writes how the IL law which required non-union members to pay dues does not pass "exacting scrutiny." Why? The IL law is not necessary for unions to function without the financial contributions of nonmembers. Additionally, the IL gov't ≠ have a compelling enough interest to justify the law (here, IL claimed that ensuring that public employees aren't "freeloaders" was their interest).

Wisconsin v. Yoder (1972)

petitioners were Amish, and challenged WI's compulsory education laws (families allowed students to attend school up until 8th Grade, but did not want to comply w/ requirement of two more years of education). Challenged on FEC grounds, because they believed that public school education would infringe on the Amish religion and way of life. WI's interests are in universal education (mainly, to ensure that students are prepared to enter the real world and participate in society/be self-reliant). Thus, WI's "compelling" interest has to be balanced w/ the free exercise of the Amish parents. SCOTUS notes how religious conduct as well as beliefs are protected (citing Sherbert), and rules in favor of the Amish. SCOTUS notes how the Amish do not foster ignorance, and prep their children to be engaged, self-sufficient citizens: prepare their children well enough that they can leave the Amish community and be successful. But, is this a fair analysis? The court demonstrates a favorable preference toward the Amish religion...what if the group was a cult? Muslims? Hindi? Thus, SCOTUS can "pick and choose" who to grant accommodations for.

Dennis v. United States (1951)

post-WWII, Congress enacted the Smith Act re: making it unlawful for any person to advocate the overthrowing of the American gov;t, while also outlawing any attempts or conspiracy to commit said crimes. Π was charged under the act for conspiring to organize within the Communist Party; here, SCOTUS acknowledges that attempts are more serious and likely to succeed than actual gov't overthrows, and borrow Judge Hand's formula [gravity/cost of the accident a.k.a. the harm x probability of its occurrence > the impact of free speech]. Thus, SCOTUS finds that, although it was unsuccessful, π did engage with the CP, which could have been ready to make an attempt to overthrow the gov't. Frankfurter's Concurrence: believes in deference to the legislature, as it is the best branch of gov't to resolve competing interests at stake (here, Dennis believes that he and other leaders have a right to advocate a political theory as long as their advocacy does not create an immediate danger to govt; whereas the gov't argues that it has the right to safeguard national security by restricting free speech under the Smith Act). The court should not be responsible, alone, for balancing these interests. Jackson's Concurrence: C+PDT was developed for the "hot head on the street corner" and should therefore not be applied here; does not believe that the 'Communist plotting' constitutes a world-wide, foreign-led tightly organized conspiracy. Douglas' Dissent: it's obvious that Communism was already "spent" in the USA by the 1950's; believes Dennis did not take affirmative steps to advocate for the overthrow of the gov't. Rather, he merely organized to teach certain ideological theories embraced by Communism. Additionally, Dennis and the CP's ideas did not have "enough force and strength", meaning that speech should raise the likelihood of evil occurring if the Smith Act were to be properly applied.

Adderly v. Florida (1966)

protestors were arrested while protesting at a jail; SCOTUS upheld their convictions. Case differed from Edwards because those protestors were outside the state capitol, which are grounds typically open to the public, whereas jails are not typically open to the public. The constitution does not forbid a state to control the use of its own property for its own lawful non-discriminatory purpose. Establishes a categorization approach: In Adderly, the court suggested a categorical approach to 1A claims of a right to use public property for expressive purposes: "if [the land] is traditionally opened to the public." But, in Grayned, the court proposes a slightly different approach: "the crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." Additionally, the court asks whether the manner of expression is basically incompatible w/ the normal activity of a particular place at a particular time. Thus, a jail is a NPF, and not designed for speech, and the gov't has a right to use their lands for its designated purposes.

Mahanoy Sch. Dist. v. B.L. (2021)

represents the on/off-campus issue (in the age of Tinker, it was much easier to determine when speech occurred on/off campus; now, with social media and remote learning, it is far more difficult); would've been a very hard case for the school district to win, as there was little-if-any disruption, and speech occurred off-campus via Snapchat. But, even here, SCOTUS ≠ adopt a "hard-and-fast" rule that says no regulation is allowed for off-campus speech. Instead, three factors matter in the court's off-campus analysis: (1) the in loco parentis idea; (2) 24/7 problem (school can't be allowed to control students' off-campus speech 100% of the time); (3) the need to inculcate students' in democratic participation/speech (here, B.L. was criticizing how gov't officials, i.e. public schools, did their jobs — and, that's the kind of discourse schools should be interested in bolstering.) Thus, the school violated B.L.'s 1A rights. re: in loco parentis — since the speech occurred off campus, the speech would fall into the zone of parental rather than school responsibility for discipline. Furthermore, there was little to no evidence that any disruption occurred because of ∆'s speech

Bethel School District No. 403 v. Fraser (1986)

student was disciplined for delivering a "sexually explicit" speech @ a student council assembly. SCOTUS held that his suspension did not violate his 1A rights: here, student's speech was not related to any political viewpoint, and his speech undermined the school's basic educational mission. Also, cites how there was an audience of "unsuspecting students."

Tinker v. Des Moines (1969)

students wore black armbands to their school in silent protest of the Vietnam War, and were suspended for doing so. SCOTUS overturned their suspensions: recognizes the inherent difficulty in predicting which speech would cause disruptions, and the problem if courts defer to administrator's predictions (role of schools re: teaching civics/appropriate demeanor to their students — when can schools insist on that, @ the cost of infringing on students' free speech?). Additionally, SCOTUS considers how a lack of evidence re: an actual disruption occurring could lead to content/viewpoint discrimination, which cannot be permitted. Here, there is no evidence that ∆'s armbands actually disrupted the school. But, if speech would materially/substantially interfere w/ the requirements of appropriate discipline, or interfere w/ other students rights to "be secure & let alone", schools can discipline student speech. re: Predictive Judgments —- how much fear/how specific does it have to be? How much deference do school administrators deserve? Does the response to student speech matter? Key Quote: "students do not shed their 1A rights at the schoolhouse gate"

United States v. Stevens (2010)

the "animal crush video" case; here, ∆ was charged with violating a federal statute that prohibited distributing certain depictions of animal cruelty (his videos captured dogfighting). Gov't argues that videos of animal cruelty have no expressive value, and should be regulated as unprotected speech. Gov't also proposes a balancing test: "whether a given category of speech enjoys 1A protection depends upon a categorical balancing of the value of the speech against its societal costs." But, SCOTUS disagrees: such a balancing test would be dangerous; 1A wasn't passed to only protect "popular" speech. Cites Chaplinsky: "the categories of unprotected speech should just be viewed as descriptions, because the Court gave no methodology re: why/how those categories should be unprotected." Cites Ferber: the holding in that case did not rest on balancing alone; also took into account how speech was incident to illegal conduct (which also cites to Giboney). Further, states how the gov't has no power to restrict expression b/c of its subject matter, and this statute explicitly regulates expression based on content. HOLDING: Statute was constitutionally overbroad (but, signals to Congress that they could ban crush videos w/ a narrower statute). Although the law seeks to ban "crush" videos, it also applies to depictions of hunting. SCOTUS also turns to history to see if gov't has a history of banning such speech — and says there is none. C.J. Roberts is doing "backflips" here.

McCutcheon v. Federal Election Commission (2014)

the anti-circumvention idea; strikes down aggregate contribution limits. The Fear? Contributing financially to a large number of candidates will lead to favoritism + $$$ could be shuffled around to different candidates. But, SCOTUS rejects this idea — Congress has determined that contributions under the limit do not risk causing corruption. Thus, even contribution limits themselves are a prophylactic. Holding: A law restricting how much money a donor can contribute in total to all political candidates or committees is unconstitutional under the First Amendment. In this case, the law setting an aggregate cap on donations to individual candidates and committees is not sufficiently related to avoiding corruption. Any concerns that a donation to a committee or another candidate will end up flowing to a specific candidate in circumvention of the individual limit are overly speculative. The aggregate limit is not narrowly tailored to the government's interest in fighting corruption.

Reed v. Gilbert (2015)

town had a "sign code" which prohibited the display of certain signs, while others required permits or were exempt from needing permits. Each category of sign (e.g. ideological signs, political signs, and temporary directional signs relating to a qualifying event) is treated differently re: how long they can stay up for, and how large they can be. Here, petitioners are a community church who wish to advertise the time and location of their Sunday services. The town cited the church multiple times for violating the sign code. The lower court (9th Cir.) found the code was content-neutral because the town "lacked censorial motive" (a.k.a. court believed a law is only content-based when it is justified by reference to content); therefore, they applied a lower level of scrutiny and found no 1A violations. But, SCOTUS disagreed: content-based laws (those that target speech based on communicative content) are presumptively unconstitutional and may be justified only if the gov't proves that they are narrowly tailored to serve a gov't interest (thus, is subject to S.S.), regardless of a benign gov't motive. Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future gov't officials may one day wield such statutes to suppress disfavored speech, and this is why content-based laws demand S.S. Here, the town cannot offer a compelling gov't interest to justify its content-based restrictions. It only offers preserving the town's aesthetic appeal and traffic safety. Additionally, the town has ample content-neutral options available to resolve problems with safety and aesthetics. Specifically, the town has offered no reason to believe that directional signs pose a greater threat to safety than do ideological or political signs. re: 9th Cir — this court reasoned the sign code was content neutral because it does not mention any idea or viewpoint, let alone single one out for differential treatment. But, the 1A is in place to protect against restrictions on particular viewpoints, and the prohibition of public discussion of an entire topic (a.k.a. distinguishing content from viewpoint discrimination — e.g. banning any speech on the Iraq war vs. banning only anti-Iraq war speech. Banning just the anti-Iraq war speech is worse and more egregious (it skews public debate). Breyer's Concurrence: here, the real issue for him is viewpoint discrimination; he and Justice Kagan both take issue w/ the court's application of S.S. (which may lead to manipulating S.S. to not strike down said reasonable laws a.k.a. this rationale will water down S.S.). Kagan's Concurrence: believe there's many reasonable content-based laws available; asking, 'is there a law seeking to suppress ideas?" Believes the majority's rationale will not further the 1A's goals of preserving the marketplace of ideas and prohibiting gov't bias for/against certain messages.

Frisby v. Schultz (1988)

town ordinance completely bans picketing in front of residences. Π are pro-life wackos who camp outside an abortion provider's house. The ordinance seeks to protect the home owner's privacy, and is also concerned w/ public safety. SCOTUS applies the following "test": the state may enforce regulations of the time, place and manner of expression which are (1) content neutral, (2) are narrowly tailored to serve a (3) significant gov't interest and leave open (4) ample alternative channels of communication. Here, the ordinance leaves open ample alternative channels of communications (protestors can march throughout a neighborhood, as long as they don't stop in front of a singular house); this echoes the court's rationale in Martin (the importance of door-to-door work re: the "poorly finances causes of little people"). The law is narrowly tailored — the picketing is narrowly directed at the household, not public areas; the type of picketers banned by the ordinance generally do not seek to disseminate a message to the general public, but to intrude upon the targeted residence in an 'especially offensive way'; ;and the tailoring echoes Schneider (the ordinance targets + eliminates the intended evil, and does not inhibit any more speech than necessary). Thus, the ordinance is constitutional.

Lemon v. Kurtzman (1971)

two statutes were challenged — (1) RI statute which provided salary bonuses up to 15% for teachers of secular subjects in private elementary schools): and (2) PA statute which authorized the state to reimburse private schools for expenditures relating to teachers' salaries, textbooks, and instructional materials [but, strictly prohibited reimbursement for any course that contained subject matter with religious teaching]. Thus, SCOTUS proposes the "Lemon Test" in three parts: (1) statute must have a secular legislative purpose; (2) its primary effect must be one that neither advances/inhibits religion; and (3) must not foster an "excessive" gov't entanglement w/ religion. Failure to satisfy any of these three prongs results in a violation of the Establishment Clause. But, Prong 2 often collides w/ Prong 3 (when state take action to ensure that effects are secular, they often cause the entanglement they want to avoid). Therefore, the Lemon test is "at war with itself." re: evaluating gov't "entanglement" —- SCOTUS must examine the (1) character and purposes of the institutions that are benefitted, (2) the nature of the aid that the state provides, and (3) the resulting relationship b/w the gov't and religious authority. re: RI Statute — the content of textbooks is more easily ascertainable than how a teacher instructs their classroom. Since a teacher's instruction is variable, the state would have to review how they teach, and hence, entanglement would occur. re: PA Statute — provided funds directly to schools; however, this requires gov't monitoring and controls, which then leads to entanglement. The majority is also concerned with the political divisiveness that could result from such gov't programs assisting religious orgs. (e.g. non-religious groups/religions that don't benefit from these expenditures will turn against the groups who do benefit, and this kind of political division along religious lines was one of the "principal evils" that the 1A was designed to prevent). Therefore, SCOTUS holds that both the RI/PA statutes were unconstitutional. J. Brennan's Concurrence: Stresses the risk to religion if government has to ensure that aid is only used for secular purposes ("state inspectors prowling the halls of parochial schools and auditing . instruction"). J. Douglas' Opinion: even a history/literature class can be taught in a sectarian way.

Williams-Yulee v. Florida Bar (2015)

π challenged FL code of judicial conduct, which prohibited judges from personally soliciting constituents for financial contributions in their election campaigns; π was a candidate for judge and sent out a letter to voters, which she signed, that asked for financial contributions to her campaign. SCOTUS applies S.S. to the case. Π's Underinclusivity Argument: the code of judicial conduct allows candidates to send "thank you cards" to contributors, but they cannot send correspondence to the like of π's letter. But, she believes the code fails to restrict other speech equally damaging to judicial integrity (e.g. judge's campaign can have a committee to solicit donations, but the judge herself cannot). SCOTUS: underinclusivity can raise doubts about whether the gov't is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint. But, FL has reasonably concluded that solicitation by candidates themselves creates a categorically different, and more severe risk, of undermining public confidence than a campaign committee (a.k.a. the identity of the solicitor matters). Π's Overinclusivity Argument: believes the code is not narrowly tailored to advance the state's interest in least-restrictive means. SCOTUS: the 1A requires said code to be "narrowly tailored, not perfectly tailored." Here, the majority gives deference to the state legislature, because "their judgments reflect sensitive choices by states in an area central to their own governance" SCOTUS Ruling: the code advances the state's compelling interest in preserving public confidence in the judiciary (the public may lose faith in the impartiality of a judge that has received campaign donations from an advocate on one side of an issue or case). The code raises no legitimate underinclusivity concerns, as it aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary (personal requests for $$$ by candidates). Therefore, the majority is applying "strict scrutiny lite" (which dissent criticizes as "watering down S.S.), and finds the ordinance constitutional because the restriction on the candidates' speech is narrowly tailored to serve a compelling gov't interest.

Everson v. Board of Education (1947)

π challenged NJ statute, which authorized reimbursement for parents who paid for their children's transportation to school (including, religious/Catholic schools). Not as easy of a case as one might think, b/c striking down reimbursement for Catholic bus fare could inhibit their free exercise of religion. Also important to note that the reimbursement aid was not limited to any particular faith. Ultimately, SCOTUS upholds the NJ statute, while noting how the state does not contribute any $$$ to the schools themselves. Justice Black, writing for the majority mentions how the "1A has erected a wall b/w church and state, and that wall must be kept high and impregnable." (which is somewhat ironic, since the majority upheld the statute). QUIMBEE: While a state may not use public funds to support the establishment of religion, it also may not refuse to include religious institutions in general subsidy programs as this could interfere with the free exercise of religion for state citizens.

Miller v. California (1973)

π mailed five unsolicited brochures, which contained graphic depictions of sex acts; was later convicted of distributing obscene materials. Here, SCOTUS had to examine the scope of a state's obscenity regulations: "state offenses must be limited to works which appeal to the prurient interest in sex and portray sexual conduct in a patently offensive way, which taken as a whole, have no serious literary, artistic, political, or scientific value." But, SCOTUS also says "we do not adopt as a constitutional standard the 'utterly without redeeming social value' test" because obscenity should be determined by applying "contemporary community standards" and not "national standards." THREE PRONG TEST 1. Whether the average person, applying "contemporary community standards" would find that the work appeals to the prurient interest 2. Whether the work depicts in a patently offensive way, sexual conduct specifically defined by the applicable state law (also community standards) 3. Whether the work lacks seriousliterary, artistics, political, or scientific value (recall this is NOT evaluated by a local community standard; but rather a NATIONAL standard) Dissent: sounding the alarm of repression; however, majority says that "to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the 1A'

Bradenburg v. Ohio (1969)

π was a KKK leader and convicted under OH's Criminal Syndicalism Statute (similar to the statutes in Whitney and Gitlow); in particular, π gave a speech at a rally where members burned a cross and racial epithets were spewed. Here, SCOTUS finds that OH's statute was constitutionally overbroad; speaker has to actually intend for violence to occur (see Judge Hand in the Masses case); thus, a state may only forbid speech that advocates violence or the use of force if that speech is directed and likely to incite imminent illegal activity. Thus, court takes a strong pro-free speech attitude,

Schenck v. United States (1919)

π was a secretary of the Socialist Party and distributed leaflets which criticized the gov't for its draft in WWI. He was arrested and convicted for violating the Espionage Act of 1917, which punishes both conspiracies to obstruct as well as actual obstruction. π challenged the act in violation of 1A. Gov't said that π would not have sent out the flyers unless he intended it to have some effect; π ≠ agree, and said that he wasn't violently advocating for people to dodge the draft. SCOTUS: Holmes writes that, in such cases, need to examine if the words used could create a clear and present danger so that they will bring about the substantive evils that Congress has a right to prevent. When a nation is at war, many things that might be said in a time of peace are such a hindrance to the gov'ts efforts that their utterance cannot be endured. If speech is indeed effective, it will reach its intended impact. Holmes analogizes it to "falsely shouting 'fire' in a crowded theatre."

Gertz v. Robert Welch, Inc. (1974)

π was an atty for a family, whos son was shot and killed by a Chicago police officer; ∆ was a newspaper, which published an article about π, and claimed that he was a member of Communist organizations, and that the criminal trial was a "frame-up job." Here, SCOTUS recognizes the balance that needs to be struck (on the one hand, truth is inadequate as a defense b/c of the potential to chill free speech; on the other hand if the value in protecting a person's reputation) — "neither the intentional lie nor the careless error materially advances society's interest in uninhibited, robust and wide-open debate on public issues." Discusses NYT as precedent: the "actual malice" standard plays two roles: (1) protects the press and (2) recognizes ability of public officials/public figures to protect themselves by means other than a tort suit. Thus, court determines that Gertz is neither a public official or figure. But, the NYT standard is a high bar for libel πs to cross. Thus, SCOTUS recognizes that private individuals are more vulnerable to injury, and the state interest in protecting them is correspondingly greater. Private individuals are generally unable to publicly rebut false statements because they lack access to the channels of mass communication, and are therefore, more vulnerable to published falsehoods than public figures with the resources to publicly refute them. Public officials understand and accept the risk of public scrutiny when they take office. Thus, private π does not need to meet the 'actual malice' standard; just need to establish liability under a less demanding standard than NYT.

Frohwerk v. United States (1919)

π was charged with twelve counts of violating the Espionage Act due to newspaper articles he published in a small German-language newspaper. Here, Schenck controls ("a person may be convicted of a conspiracy to obstruct recruiting by words of persuasion."). SCOTUS chose not to second-guess the jury, and was deferential. Just because the court ≠ find that the paper was widely distributed doesn't mean that it was impossible to spread its message. Thus, SCOTUS upheld π's conviction, and held that speech that would ordinarily be protected by 1A may nevertheless be prohibited when it can create a "clear and present danger" of substantive evils that Congress has a right to prevent. However, there was no special effort to reach soldiers; was a small paper and π was only an employee, thus he was not making an explicit attempt to indoctrinate soldiers.

Reynolds v. United States (1878)

π was convicted of violating Utah's law outlawing polygamy, but claimed that he should be exempt from following the law due to his Mormon faith. SCOTUS did not agree, as the law was within the legislative powers of the state. Permitting the π's defense would allow every citizen to "become a law unto himself", and gov't would largely be ineffective as a result. Laws are made for the gov't of actions, and while they cannot interfere w/ religious belief, they may interfere with practice (e.g. where some religions may call for self-immolation or self-sacrifice, gov't can make laws forbidding both).

Roth v. United States (1957)

π was convicted of violating the federal obscenity statute for selling erotic books/magazines. Alberts was convicted of violating CA penal code for a similar act. Here, SCOTUS is asking: "is obscenity in the protected class of speech re: 1A?" In answering this question, SCOTUS cites to Chaplinsky — "there are certain well-defined and narrowly limited classes of speech; including, the lewd and obscene, which are no part of any exposition of ideas, and are of such slight social value that any benefit derived from them is clearly outweighed by the social interest in order and morality." In particular, obscenity is "speech that appeals to the prurient interest and is utterly without redeeming social importance." HOLDING: Obscenity is not within the area of constitutionally protected speech or press. Harlan's Opinion: Majority shouldn't just say that "obscenity is unprotected"/apply the C+PDT; instead, court should individually examine the content since every communication has an individuality and value of its own. Believes the constitutional judgment is in the application, not just the standard itself (if it was just in the standard, it would lead to "I know it when I see it" methodology). CB pp. 134: "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest." Discusses how CA has a legitimate interest in protecting the privacy of the home fro unsolicited obscenity, but not so sure about the federal gov't. Douglas' Dissent: Believes the statutes at issue ban speech because of the thoughts they generate (a.k.a. "the morality police"). This could lead to a slippery slope. Remember, Douglas is a First Amendment Absolutist (willing to go to bat for highly unpopular speech).

Watts v. United States (1969)

π was convicted under statute which outlawed threatening harm against POTUS; stated that if he was drafted to serve in the Vietnam War, he'd put LBJ in the sights of his rifle. Here, SCOTUS reversed π's conviction: "π engaged in 'political hyperbole' rather than a 'true threat'" (recall later that "true threats" are NOT protected speech.)

Hess v. Indiana (1973)

π was heard saying "we'll take this ****ing street again" at an anti-war protest, and was arrested for disorderly conduct. But, π was not directing his language at anyone in particular; however, state argued that π's statement was intended to incite lawless action. SCOTUS finds that "π's statements were nothing more than advocacy of illegal action at some indefinite future time." Reverses conviction, because it cannot be shown that π was "advocating" any action, as his statements were not directed at any person or group, and there is no evidence that π's words were likely to produce imminent disorder.

Debs v. United States (1919)

π was indicted under the Espionage Act for giving a speech in Canton, Ohio. The speech ≠ explicitly counsel Americans to evade the draft, but praised resisters, which implies that he'd like to say more, but is aware of the prospect of getting arrested. However, an hour before the speech, he stated that he agreed w/ an anti-war St. Louis manifesto. Thus, this evidence shows that π intended to give a speech with such a message/effect. SCOTUS: "specific intent" is seen in Debs' coy use of words, his praise of draft resisters and his previous acceptance of an anti-conscription statement. In sum, Schenck produced a vague test based on circumstances; from Debs, intent can be inferred; requiring that speech only be reasonably probable in effect to obstruct the recruiting service. Think of speeches given in a tense moment, or when a speech-giver is known to favor certain POVs.

Gitlow v. New York (1925)

π was involved w/ the Socialist Party, and was charged w/ violating NY's Criminal Anarchy Act due to publishing a 'Left Wing Manifesto," and was accused of advocating for the overthrowing organized gov't by force. Π challenged this statute as unconstitutional re: the 14th Amdmt's DPC. Recall that this statue is different from the Espionage Act, which also criminalizes conduct which obstructs gov't administration, whereas NY's statute more explicitly condemns speech. Recall the tests used by the court in 1925: for conduct, it was "clear and present danger;" for speech, it was "arbitrary or unreasonable." SCOTUS: the statute only penalizes language advocating the overthrowing of gov't by unlawful means. These words imply urging to action. Π's manifesto is not abstract: it advocates and urges in "fervent language" mass action to disrupt industry via massive strikes. NY enacted this statute because the legislature believed such utterances advocating a violent overthrow were 'so harmful to the general welfare' that they needed to exercise their police power — "a single revolutionary spark may kindle a fire that may burst into a sweeping destruction." Thus, the statute is not an arbitrary or unreasonable exercise of NY's police power and therefore does not unwarrantably infringe upon the freedom of speech or press. Thus, SCOTUS ≠ apply the "clear and present danger test", as this case is not like the other cases tried under the Espionage Act (where gov't banned conduct in danger of obstructing the gov't); NY had already determined that this speech constituted a clear +present danger by outlawing such speech. Holmes' Dissent: continuing his inching forward to believe that free speech was "special." Believes that case should be decided under C+PD Test, and should be evaluated on case-by-case basis rather than by using a reasonableness test. Believes words used by π created no present danger of an attempt to overthrow the gov't by force.

Chaplinsky v. New Hampshire (1942)

π was on a public street, and said that city gov't was filled with "********ed fascists" and was convicted for violating NH law ("no person shall address any offensive words to another person in a public place"). SCOTUS: free speech is not absolute at all times and circumstances. There are certain well-defined and narrowly limited classes of speech — such as, obscenity, profanity, libel, and insulting "fighting words" whose very utterance inflict injury or tend to incite an immediate breach of peace. Re: "fighting words" - have no idea content; protecting social interests outweigh allowing the speech to be said (i.e. NH's legislative intent was to preserve the public peace). Essentially, SCOTUS says "you can contribute to the marketplace of ideas w/out saying it in such a manner." Here, SCOTUS says that π's word choice risked causing a fight, and would've thereby disrupted public peace. Speech should lead to more speech within the marketplace of ideas, not punches. Understanding the context of Chaplinsky: A move away from speech as just another liberty in the police power era; Moving toward speech as particularly important—hence, the question of exceptions

Hazelwood School District v. Kuhlmeier (1988)

π were student writers for school newspaper, but principal told them they had to cut two articles (one on teen pregnancy, and the other on having divorced parents). Π challenged on 1A grounds, but SCOTUS determined that schools can control for bad grammar, bad writing, etc. but not students' own expression, and therefore, that the newspaper constituted a "supervised learning experience for journalism students." HOLDING: educators do not offend 1A rights by exercising editorial control over the style/content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns (here, principal had audience/student's maturity in mind). Thus, the principal acted reasonably in requiring the deletion of the two contested articles.

Lehman v. City of Shaker Heights (1974)

π, a political candidate, wanted to place ads in rail car system, but the city refused due to its policy forbidding political ads on rail cars, while allowing ads for other entities. Here, SCOTUS sets a low standard re: arbitrariness, and basically applies rational basis review. SCOTUS rules that "there is no 1A forum here; the railcars are part of the city's commercial venture, and the city does not need to accept every advertising offer. The city transit system has discretion to develop and make reasonable choices concerning the type of advertising that may be displayed in its vehicles. Additionally, the car riders are a captive audience (they're there because they have to be). Brennan's Dissent: cites Cohen — if you're in public and don't like speech, too bad, just ignore it. Looks more stringently at "compatibility analysis" Believes a communication forum was established when the city created administrative rules for accessing the ad space. Also cites Mosley — once a public forum has been established, city ≠ discriminate solely upon subject matter of content.

Cornelius v. NAACP Legal Defense and Education Fund, Inc. (1985)

∆ and other advocacy orgs (Sierra Club, etc) wanted to be included in gov'ts Collective Fundraising Campaign, but were excluded based on policy — did not want any orgs who lobbied or conducted litigation re: trying to determine public policy; rather, only wanted orgs which sought to advance "health and welfare needs." SCOTUS decides that CFC is the proper forum for the case. CFC is not a physical place, but even a conceptual place can be a forum. Additionally, the court agrees that the CFC constitutes a nontraditional public forum — there is extensive admission criteria to limit access to the campaign (gov't was trying to limit potential disruptions in the workplace by excluding 'controversial' groups from CFC). Thus, gov't as a proprietor can use their property in any way they choose, as long as its viewpoint neutral and reasonable: as O'Connor writes, "the gov't decision to restrict access to a NPF need only be reasonable, not the "most reasonable" or the "only reasonable" limitation." Therefore, ∆'s speech would be incompatible with the gov'ts policy/practice. The gov'ts reasons for excluding ∆ from their NPF (CFC) appear to satisfy the reasonableness standard, and the lower court's ruling is overturned. Blackmun's Dissent criticizes majority for not explaining why orgs such as Planned Parenthood/Right to Life are permitted in the CFC, but respondents are not. Believes CFC should only be considered limited public forum. Additionally, believes 1A requires more than a "reasonable intention" in excluding protected speech. Lastly, views gov'ts restriction as viewpoint discrimination, b/c an org's decision to pursue its goals by direct services/public advocacy is a viewpoint.

Texas v. Johnson (1989)

∆ burned an American flag in protest outside the RNC. He was arrested for violating TX law, which forbade desecrating the flag. SCOTUS had to determine whether ∆'s flag burning constituted expressive conduct, permitting him to invoke 1A protections. Thus, the court applied the Spence test: Did the speaker intend to communicate? Was the communication/act likely to be understood? Is there an intent to convey a particular message? Were those who witnessed the communication/act likely to have understood it? SCOTUS believed that ∆'s conduct was "sufficiently imbued w/ elements of communication." Then, the court analyzes TX's justifications for their law: preventing breaches of peace, and preserving the flag as a symbol of nationhood and unity. The court cites Brandenburg, and states that "gov't can't assume that every expression of a provocative idea will incite a riot"). Furthermore, ∆'s conduct does not fall into the "fighting words" category re: Chaplinsky, because he did not direct his conduct at any specific individual. re: preserving nationhood/unity — "this reasoning is related to the suppression of expression, and we are outside of the O'Brien test altogether." The court seems to believe that TX is engaging in viewpoint discrimination (e.g. one can use the flag to reinforce national unity, but not to question it). Thus, the restriction on ∆'s expression is content-based. The emotive impact of speech on its audience is not a "secondary effect" unrelated to the content of the expression itself. ∆'s political expression was restricted b/c of the content of the message he conveyed. HOLDING: a state statute that criminalizes the burning of an American flag as a means of political protest violates the 1A. Nothing in our precedents suggest that a state may foster its own view of the flag by prohibiting expressive conduct relating to it. DISSENT (CJ Rehnquist): cites Chaplinsky in rationale; believes that burning the flag is akin to an "inarticulate grunt" since it is not an essential part of any exposition of ideas, and has a tendency to incite a breach of peace.

United States v. O'Brien (1968)

∆ burned his draftcard, and was later convicted of defacing his card (he claimed he was trying to persuade other people to adopt his anti-selective service/anti-war beliefs). The Universal Military Training and Service Act was amended to criminalize those who knowingly destroy their draftcard. Lower court ruled that the amended statute was unconstitutional, as it abridged free speech. Thus, the regulation is within the gov'ts power because of the federal gov'ts power to raise armies (having the draftcard system is important for an efficient administration of the system (i.e. to have them continually available). The gov'ts interest is to ensure that every man has their draftcard on them @ all times SCOTUS sees no other means that would further this interest than a law which prohibits the destruction of draftcards. The gov'ts interest is limited to preserving the functionality of the draft system, by preventing the willful destruction or mutilation of registration certificates to ensure that the certificates remain available. The government's interest and the law therefore implicate only the noncommunicative aspect of O'Brien's conduct, and it was for the noncommunicative impact of his conduct that O'Brien was convicted. Ultimately, SCOTUS "cooks the analysis" to create a victory for the gov't (e.g. SCOTUS finds a very narrow gov't interest here). Therefore, SCOTUS produces a strong test for expressive 1A conduct.

Garcetti v. Ceballos (2006)

∆ was an ADA concerned with a search warrant affidavit — believed it didn't amount to PC. Informed his bosses, who decided to prosecute the case anyways. ∆ wrote a memo expressing his concerns, and was fired. ∆ also challenged his firing on 1/14A grounds. Issue Before SCOTUS: whether 1A protects gov't employee from discipline based on speech made pursuant to the employee's official duties? HOLDING: ∆'s speech did not qualify for 1A protections because ∆'s speech was made pursuant to his duties as an ADA. When a public employee makes statements pursuant to their official duties, the employees are not speaking as citizens for 1A purposes. DISSENT (J. Souter): any concern w/ office uproars can be taken care of w/ Pickering balancing weighed in favor of the gov't when speech is pursuant to official duties. DISSENT (J. Breyer): gov'ts interest here is lower b/c its concerning professional speech, and its governed by professional standards.

Connick v. Myers (1983)

∆ was an ADA who was being transferred to another division within the DA's Office. ∆, unhappy with the transfer, distributed a questionnaire to other ADAs in the office regarding transfer policies and other issues (including if ADAs felt uncomfortable re: campaigning for their boss, an elected official). ∆ was fired by the office for her questionnaire (her boss equated it to causing a "mini-insurrection" in the office), and she challenged on Pickering grounds (see Concept flashcards for steps). With Pickering, SCOTUS is concerned w/ gov't losing too many cases if analysis gets past Step 1 (thus, court employs broad balancing). Here, SCOTUS assesses the context of how ∆ delivered her message in order to determine if the matter was of public concern: whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement. This speaks to the marketplace of ideas, free + uninhibited discussion, and self-actualization. In this realm, most claims would satisfy Step 1 of balancing, but Steps 2&3 are narrowed. Ultimately, SCOTUS deems ∆'s questionnaire a private concern. But, doesn't the public have a concern over publicly administered offices, such as the DA? HOLDING: When a public employee speaks upon private matters, they can be fired without offending their 1A rights. Here, SCOTUS gives a high degree of deference to the gov't to fire employees/run their workplaces. The court is taking the gov't at its word b/c its very important to have good working relationships. DISSENT (J. Brennan): context shouldn't matter if this first, threshold inquiry. Either speech is on a matter of public concern, or its not.

New York v. Ferber (1982)

∆ was arrested for selling child porn under NY law; alleged that NY law was unconstitutional because it outlawed child porn without requiring it to pass the Miller test a.k.a. be classified as obscene. Here, the NY gov't is interested in protecting children, not just its morals; the connection b/w distribution and creation of child porn is deeply intertwined (the distribution of child porn is an integral part of the production of that material). Additionally, ∆ claims that NY law is constitutionally overbroad. SCOTUS: the Miller test does not reflect NY's particular and compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the normal question under the Miller test (if the material appeals to the prurient interest of the average person) does not apply here, since it bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Thus, child porn laws do not have to follow the Miller test — the reasons for prohibiting child porn is different than adult sex and obscenity, since children may be abused throughout the process. Additionally, CP is low-value speech ("de minimis"). What is the overbreadth doctrine? Π can challenge a law as overbroad regulation of speech, even if the law is valid; SCOTUS is concerned about "chill" here. Thus, in a 1A context, ∆ can levy a claim that might be otherwise unsuccessful in a non-1A scenario. ∆ tried to claim that law would also apply to National Geographic-style photos of tribes and their naked children. SCOTUS: child porn is such dangerous and problematic speech that the court does not have to do a case-by-case determination (unlike obscenity, or incitement due to the C+PDT). Thus, the NY law is not overbroad. The state's interest in prohibiting CP (and preventing harm to the children who may engaged in its production) outweighs the potential for criminalizing protected expression.

Terminiello v. Chicago (1949)

∆ was convicted of disorderly conduct after he gave a very racist/controversial speech in Chicago. Trial court informed jury that "breach of peace" consists of any misbehavior which violates the public peace and decorum, and if it stirs the public to anger, invites dispute, or brings about unrest. But, the SCOTUS majority thinks these jury instructions are far too broad: "a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose if it stirs people to anger, since speech is often provocative and challenging. That is why freedom of speech, though not absolute, is protected against punishment, un less shown likely to produce a clear and present danger of a serious substantive evil arising. Thus, ∆'s conviction is unconstitutional. DISSENT (Jackson): ∆ provoked a riot with his speech, and his speech added fuel to the situation already so inflamed as to threaten to get beyond police control. Rioting is a substantive evil, and IL has the right and duty to "prevent and punish." Recall from class that Justice Jackson was the Chief American Prosecutor in Nuremberg, and saw how racist and anti-Semitic speech played out in Germany.

United States v. Alvarez (2013)

∆ was convicted under The Stolen Valor Act due to lying about being awarded the Congressional Medal of Honor. ∆ challenged his conviction by arguing that the conviction was content-based suppression of free speech, a.k.a. speech not falling within any of the few categories of expression where content-based regulation is permissible. Gov't alleged that law was necessary to preserve the integrity of the Medal; also argue that false statements have "no 1A value." SCOTUS Reasoning: when content-based restrictions are implemented, they need to meet high scrutiny and to be narrowly tailored. Such content-based restrictions are incitement, obscenity, and fighting words. These categories have a historical foundation in the Court's free speech tradition, and it's important to adhere to these categories. Also, some false statements are inevitable if there is an open marketplace of ideas. The gov't tries to point to precedents re: perjury, and support their argument that false statements have no 1A value. SCOTUS has never endorsed such a categorical rule (that false statements receive no 1A protections). Thus, the gov't has not demonstrated that false statements generally should constitute a new category of unprotected speech, and the govt's compelling interests are not enough: "1A requires that the gov'ts chosen restriction on the speech at issue be 'actually necessary' to achieve its interest. There must be a direct causal link b/w the restriction imposed and the injury to be prevented." Additionally, when the gov't seeks to regulate protected speech, the restriction must be the "least restrictive means among available, effective alternatives." Here, the gov't could have created a database to track all CMH recipients rather than passing a speech-restrictive law. Breyer/Kagan's Concurrence: applies intermediate scrutiny to determine whether the statute works speech-related harm that is "out of proportion of its justifications: a.k.a. a "proportionality review" balancing test w/ quantities. Alito/Scalia/Thomas Dissent: the statute is narrow and presents no threat to free speech; reaches only knowingly false statements.

Cohen v. California (1971)

∆ wore a jacket to an LA courthouse with the words "**** THE DRAFT" on the back, and was arrested for "engaging in offensive conduct which disturbed the peace." But, nobody present at the courthouse broke out into a fight over ∆'s jacket. Lower courts construed the case via Chaplinsky, and viewed ∆'s jacket as "fighting words." CA argues that it has a legitimate interest to protect sensitive people out and about. However, SCOTUS does not agree: "we are often captives outside the sanctuary of the home and therefore, subject to objectionable speech. The ability of the gov't to shut off discourse solely to protect others from hearing it would effectively empower a majority to silence dissidents." Majority: This case does not fall within the few categories which have been established as unprotected speech (a.k.a., this is not incitement or obscenity — there is no hostile or captive audience here). Additionally, not fighting words either, because it was not directed toward a personal/individual hearer. Strong words are allowed to communicate emotional content ("**** THE DRAFT" captures more of ∆'s message than "I strongly disagree with the government's military policies"). Recall that the price of robust debate is sometimes harsh speech. Re: CA's Arguments for "decorum" — SCOTUS does not agree with this justification (court says that 1A protections outweigh shielding citizens from harmful messages). re: "time, place, and manner" (CB pp. 362) - not caring about what he said, but how he said it. ∆'s speech had an expressive impact.

Sherbert v. Verner (1963)

∆, a Seventh-Day Adventist, was denied unemployment benefits because she refused to work on her Sabbath (Saturday), since her religion required it. SC law protected workers from having to be required to work on Sundays, however. SC claims they are concerned that workers will fraudulently claim religious reasons for not working on certain days as justification for not expanding their policy. However, this state interest does not pass constitutional muster. Any incidental burden on a person's free exercise of their religion must be justified by a compelling gov't interest and the law must be narrowly tailored as a result. Important to note how the SC law was engaging in (1) religious discrimination, while also providing (2) certain exemptions that favored Christians. Citing Everson, the Court notes how a state cannot exclude individual religions because of their faith from receiving public benefits. Therefore, SC cannot apply the unemployment eligibility provisions in a way which constrains an employee's religious freedom. Thus, the law was neutral, but it was not generally applicable.

Employment Division v. Smith (1990)

∆, members of a Native American church, were fired from their jobs for ingesting peyote; filed for unemployment benefits, but were denied since Oregon law did not provide benefits to those fired for committing crimes/misconduct. ∆ claims their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice. ∆ contend that prohibiting the free exercise of their religion includes requiring any individual to observe a generally applicable law that requires/forbids an act that goes against/involves their religion. Citing Reynolds, SCOTUS does not agree w/ ∆: "we have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law that the state is free to regulate." Some conduct is protected if its religious angle is singled out; here, it is a generally applicable law at stake. The only time such laws have led to a FEC strikedown is when the petitioner has raised a "hybrid clam" (e.g. in Yoder, the right for parents to have a say in their children's education [DP parental rights claim] intersected w/ their FEC claim). Therefore, it is generally not enough to just make a FEC argument. Here, case is different from Sherbert: this OR law is a blanket prohibition on drug use (e.g. it is a criminal law that applies to everyone, unlike the unemployment benefits @ issue in Sherbert, which also provided exemptions). Also, SCOTUS is worried about giving "free passes" out re: generally applicable law; citing Reynolds, court notes how allowing such exceptions argued by ∆ would essentially cause anarchy, as more people would break laws and claim religious exemptions. However, the court does not apply S.S., because they do not want to cause a situation where judges are always evaluating the authenticity of a claimant's religious beliefs, and want to keep gov't and courts out of religion. "This case established that a law that is neutral and generally applicable need not be justified by a compelling gov't interest, even if the law has the incidental effect of burdening a particular religious practice." Thus, SCOTUS does not apply the Sherbert test here: "the gov'ts ability to enforce generally applicable laws prohibiting socially harmful conduct cannot depend on measuring the effects of a gov't action on a religious objector's spiritual development. Thus, under the FEC, a state may constitutionally refuse to carve out an exception from its generally applicable criminal laws for religious practices." But, consider if it was a different petitioner — would SCOTUS be more sympathetic to the case of a Christian? J. O'Connor's Concurrence: would apply S.S. here; worried about how the majority "interprets the FEC to allow the gov't to prohibit, without justification, conduct mandated by an individual's religious beliefs, so long as that prohibition is 'generally applicable.'" This categorical rule will inhibit free exercise of religion.

United States v. Ballard (1944)

∆, members of the "I Am" religious cult, were arrested for fraud (told their followers they could cure any sickness/ailment). Lower court told jurors to consider the truth behind the ∆'s beliefs, but SCOTUS overturns this ruling. If juries were allowed to evaluate whether or not a ∆'s religious beliefs were "true" or not, it would be similar to the heresy trials of the Middle Ages. Notes how the Founding Fathers built a nation to consist of the widest possible toleration of conflicting views, and how permitting such jury instructions would eviscerate religious freedom. Justice Stone's Dissent: would allow some questioning of religious beliefs in court; (but...isn't there an inherent implausibility of most religious statements/beliefs? And in return, wouldn't this open the door for a litany of religious persecutions?) Justice Jackson's Dissent: goes the opposite way of Stone; its impossible to try the sinister for fraud w/out suggesting that the ideas themselves are false (recall that one year earlier, in 1943, J. Jackson authored Barnette — when gov't tries to stamp out its dissent, they will kill off dissenters).