First Amendment

Baggett v. Bullit (1964)

unconstitutional to require state loyalty oath that prevents "subversive person" from being employed by state. Vague b/c no guidance about what is proscribed.

Hess v. Indiana (1973)

" we will take the ****ing street later" at Vietnam War protest NOT immediate/imminent enough to regulated under incitement "at best ... could be taken as counsel for present moderation; at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time."

Street v. N.Y.

Fighting words must be directed at a specific person and likely to produce a violent response i. No reasonable onlooker would have regarded the generalized expression of dissatisfaction with govt as direct personal insult or invitation to exchange fisticuffs.

Compelled Speech

First Amendment protects not only the freedom of speech, but also the freedom not to sepak. (1) Is the person being forced to profess a belief? Or give information? (2) Is the speech about a controversial topic? (3) Will the statements be associated with the speaker? (4) if compelled funding, is it funding government speech or private speech?

Walker v. Birmingham (1967)

Plaintiff challenged arrest during the Good Friday march in Birmingham because of injunction. Court upheld convictions, turning on the NAACP, because the marchers should've challenged the injunction rather than acting on whatever they personally believed to be Constitutional.

McCreary County v. ACLU (2005)

Posting of 10 Commandments in Court building had no historical significance therefore violated the establishment clause. Struck down under first prong of Lemon -- secular purpose

IIED

Speech that is intended to cause another to suffer severe emotional distress (IIED) is less protected as states can impose liability for such speech - subject to actual malice and falsity requirements articulated in New York Times v. Sullivan.

Locke v. Davey (2004)

The court upheld a policy in Washington State excluding those who wish to study Theology from a publicly funded scholarship. The state simply could distribute the scholarship fund to whoever it wanted. § Court held that there was a historical and substantial state interest in NOT funding devotional degrees (not using tax $$ to support religion) and burden on religion is minor -- therefore cannot conclude denying funding for vocational religious instruction is inherently suspect. · Inclusive program - not hostile towards religion · Can attend pervasively religious schools, and take courses, just cannot major.

Can laws be challenged as overbroad on behalf of others?

To prevent "chilling effect" of these statutes, overbroad statutes may be challenged as "facially invalid" on behalf of others who are not validly regulated. § Court held overbreadth doctrine is "strong medicine" it involved a facial invalidation of a law and permits individuals standing to raise claims of others not before the court.

Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995)

anti-discrimination laws cannot intervene and force a speaker to choose different content of its message (unanimously held that freedom of association allowed a group to exclude PRIDE group from parade; parade is inherently expressive; 1A protects right not to speak).

Who is a public figure?

Someone who has either -- (1) General fame or notoriety -- ALL PURPOSE (2) Limited purpose public figure -- voluntarily inject themselves into the a public controversy.

Is violent speech protected by the First Amendment?

YES See United States v. Stevens and Brown v. Entertainment Merchants Association

Connick v. Myers (1983)

Myers fired after circulating office questionnaire questioning the office culture. Court held not public concern - only internal/personal office issues; just bc public employer does not mean matter of public concern.

Is commercial speech protected by the First Amendment?

Yes, but some commercial speech can be regulated

Hostile Audience Speech

Speech that elicits an immediate violent response against the speaker by an audience; Police must make reasonable efforts to protect the speaker and guard against a heckler's veto of unpopular speech

NAACP v. Claiborne Hardware (1982)

"We'll break your necks if you don't boycott white businesses.", Emotionally charged speech promising harm to anyone who went against a boycott did not amount to incitement. "in a passionate atmosphere in which the speeches were delivered, they might have been understood as inviting unlawful for of [action], or at least, intending to create a fear of violence whether or not improper [action] was intended"

Mahoney v. B.L. Levy (2020),

"i. **** cheer" on snapchat; suspended from team. Court held violated student's 1A rights ii. School did not stand in "loco parentis" - off campus speech 1. If extended to off-campus, student speech could be regulated 24 hours a day iii. Schools interest in teaching good manners/punishing vulgar language diminished because off campus - also schools are "nursery of democracy" must protect unpopular ideas. iv. While school has some interest in regulating off-campus speech (bully, harassment, threats, breaches of security, plagiarism, etc.), none implicated here. v. No record of substantial interference in school's interests in maintaining cohesive squad

Historical Interpretations of Religion Clauses

(1) Evangelical view (Roger Williams) a. Concerned that government involvement in religion will corrupt and undermine religion (2) Jeffersonian View (Thomas Jefferson) a. Church and state should be separate to protect secular interests (3) Madisonian View (James Madison) a. Secular and religious interest advanced by diffusing and decentralizing power to ensure competition between sects/factions b. Checks and balances - But there is difficulty applying framers views because situations today founders never considered: religious diversity and public schools - create new sets of problems.

Exceptions to Smith

(1) Interference with internal religious instruction or affairs -- relieve indiidual of obligation to comply with valid and neutral laws of general applicability. (2) Non-neutral or non-general applicability.

New York Times v. Sullivan - 4 requirements to recover for defamation

(1) P must be a public official or public figure (2) plaintiff must prove the defendant made a false statement (3) plaintiff must prove actual malice (4) All elements by clear and convincing evidence

Arguments in Favor of Robust Speech

(1) Self-Governance (2) Civic Virtue Theory (3) Truth Seeking - Marketplace of Ideas (4) Safety Valve Theory (5) Autonomy (6) Protecting the Powerless

Competing Theories of Establishment Clause

(1) Strict Separation (2) Neutrality (no endorsement) (3) Accommodation - interpret clause to recognize importance of religion in society

Right of Access FOR the Media

(a) Right of access to court proceedings (but not special, same as publics) (b) Prisons - no right of access

Vagueness

- A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted. indefiniteness, uncertainty, imprecision; not clear or specific "annoying conduct" "subversive person"

Limited Public Forum

- Government entities may establish limited public forums by opening property limited to use by certain groups or dedicate solely to the discussion of certain topics. o May impose restrictions on speech that are reasonable and viewpoint neutral. o Distinguishable from designated public forums: § Designated - subject matter restrictions not allowed § Limited - subject matter restrictions allowed.

Nonpublic Forum

- Government properties that the government can close to all speech activities so long as restrictions/regulations are (1) viewpoint neutral and (2) reasonably related to legitimate govt interest. o Viewpoint neutral: can close of all speech, but cannot allow only one side of an issue § E.g., prohibiting all speech in airports about firearms permissible, but restricting only Pro-NRA speech would not be permissible. o Reasonable: only rationally related to legitimate government interest § Lehman v. City of Shaker Heights: city may sell commercial advertising on buses, but refuse to sell political advertising to avoid appearance of favoritism and imposition on the captive audience. - [Note: limited v. nonpublic forums - might be a distinction without a difference]

Public Forum

- Government property that the government must constitutionally make available for speech, but may regulate speech in a public forum only if the regulation is: § A content neutral and a reasonable time, place, and manner restriction. can impose reasonable TPM if: (0) Content neutral § Justified without reference to content § Subject matter and viewpoint neutral (not necessary to hear what is said to apply the regulation) (1) Narrowly tailored (but not least restrictive means) (2) To serve a significant government interest (3) Leaving open ample alternative channels of communications.

Speech Regulations of Government Employees

- Govt may not punish the speech of public employees if employee is speaking as a citizen on a matter of public concern unless govt can prove needs of govt outweigh the speech rights of employee. - First Amendment protection for employee speech does not exist unless expression about public concern o Even then, employee could still be disciplined if government can show that, on balance, the efficient operations of the office justified the action (Pickering v. Board of Education)

If conduct is expressive/speech, when is there an infringement of freedom of speech?

- If the statute is overbroad - If the statute is vague - If regulation is a prior restraint - If the regulation is compelling speech - If the regulation provides unfettered discretion to gov't official restricting the speech - If it imposes unconstitutional conditions - If it a content-based (or viewpoint based) restriction that does not meet strict scrutiny - If it a content-neutral regulation, but fails intermediate scrutiny

Board of Airport Commissioners of Los Angeles v. Jews for Jesus, Inc.

- LAX regulation that banned "all first amendment activity." Court struck down as vague and overbroad. Vague because every individual who enters LAX could be found to violate; and substantially overbroad.

Randall v. Sorrell (2006)

- The Supreme Court found unconstitutional a Vermont campaign-finance statute limiting both the amounts that candidates for state office could spend on their campaigns and the amounts that individuals, organizations and political parties could contribute - These expenditure limits, the court said, are "inconsistent with the First Amendment" because they were "too restrictive" and "disproportionately severe" to advancing the goals of corruption-free elections

Summarizing Forum Analysis

- Traditional Public Forum o No content-based exclusions unless government meets strict scrutiny o Reasonable content-neutral TPM restrictions permissible - Designated Public Forums o Voluntarily opened by government for expressive activity o As long as govt keeps forum open, same standard as traditional public forum - Limited or Nonpublic Forum o Can limit to certain groups and topics (can content discriminate) o Regulations of speech must be (1) reasonable and (2) not viewpoint discriminatory.

Prior Restraints: Definition

- administrative and judicial orders that occur in advance of expression (publication or utterance) forbidding certain communications.

Right of Publicity

The appropriation tort protecting a celebrity's right to have his or her name, picture, likeness, voice and identity used for commercial or trade purposes only with permission.

Cohen v. California (1971)

-Cohen wore a jacket in L.A. courthouse that said "f*ck the draft" -Arrested for disturbing the peace -Supreme court overturned the conviction ruling that political expression is protected by 1st amendment. Court rejects captive audience argument

Houchins v. KQED (1978)

-Facts: A television station was denied access to a portion of the Santa Rita jail where an inmate was reported to have committed suicide. Court upheld ability of prisons to restrict access to penal facilities to press. Alternatives available - right to receive letters from inmates, speak to former inmates, visitors, public officials, institutional personnel, etc.

Obscenity: Prohibited Activities

1. Sale, distribution, and exhibition of obscene material may be prohibited. 2. Possession of obscenity - Contrast Stanley and Osborne a. Stanley v. Georgia (1969): cannot criminalize of possession of obscenity in home - right to privacy i. if 1A means anything, it means a State has no business telling a man, sitting alone in his own, what books he may read or what films he may watch. [probable minority view] ii. Announces a rule, never overruled, but never used again. b. But, Osborne v. Ohio (1990): court held that government may prohibit and punish the private possession of child porn. 3. Stanley does not protect the right to receive obscene materials. a. United States v. Reidel (court upheld law prohibit shipping obscenity)

Zacchini v. Scripps-Howard Broadcasting Co. (1977)

1. State may allow liability for invasion of publicity when a TV station broadcast a tape of an entire performance without performer's authorization. a. BUT performer would have to prove DAMAGES --- here, his image and likeness might have been helped by the playing of the tape. 2. State's interest is closely analogous to the goals of patent and copyright laws, focusing on the right of the individual to reap the reward of his endeavors.

Keyishian v. Board of Regents (1967)

1. Teachers forced to swear oath stating they were not communists 2. Affirmative oaths are okay but negative oaths are not okay State law denying employment to teachers part of org advocating the overthrow of the government is unconstitutional if the law merely punishes membership without any requirement of proof individual knew of illegal objectives or intended to further them.

Policy Arguments for Not Protecting Hate Speech

1. Tolerance of the hate speech is not tolerance borne by the community at large. Rather, it is a psychic tax imposed on those least able to pay. 2. Speech is "properly treated as outside the realm of protected discourse" if: a. (1) the message is of racial inferiority; and b. (2) the message is directed against a historically oppressed group; and c. (3) the message is persecutorial, hateful, and degrading.... 3. When govt protects hate speech, it tacitly endorses it. 4. Does not further search for truth

Miller Test (Obscenity)

1. a reasonable person applying contemporary community standards would find the work or the content as a whole (not just one page) appeals to prurient (compulsion towards sick, morbid views of sex) 2. the work (as a whole) must depict patently offensive, sexual, or scatological functions, as defined by state laws 3. works as a whole must lack serious literacy, artistic, political, or scientific value.

Morse v. Frederick:

1. no violation of students' right by confiscating "Bong Hits 4 Jesus" banner at school event. a. Court departs from substantial interference test and holds that "special characteristics of school environment" + compelling interest in deterring drug use allow school to restrict student expression that is reasonably regarded as promoting illegal drug use. i. Not taking down banner = endorsement of message. b. Dissent: viewpoint discrimination - content only punished b/c "pro" drugs

FCC v. Fox Television (2012)

1. punishing fleeting expletives violated due process because TV stations did not have fair notice - did not address First A a. OPEN Q: whether it violates 1A for govt to punish fleeting expletive?

Hazelwood School District v. Kuhlmeier (1988):

1. school may exercise greater control over school-sponsored publications that public might reasonably perceive to "bear the imprimatur of the school" a. Court held no violation of students' rights by exercising editorial discretion and removing articles related to pregnancy and divorce b. Line drawing: students speaking for themself v. as part of school activity c. Dissent argues wrong test - no substantial interference, suppression only bc articles inappropriate; "brutal manner" paper shredder instead of edit

Bellotti v. Baird (1979)

1. struck down law prohibiting banks/bus from making contributions/expenditures in connection w/ ballot initiative. a. Inherent worth of speech—to inform public—does not depend on identity of its source more speech is better. b. Ballot initiative significant - fn 26 suggests that IEs by corps to candidate elections would be different - congress might be able to demonstrate existence of a danger of real/apparent corruption here.

Bethel School District v. Fraser (1986):

1. upheld suspension of student who gave vulgar/sexual speech nominating classmate for student government. a. Distinguishable from Tinker i. Tinker (political); Bethel (sexual content) Bethel not viewpoint ii. Tinker (passive); Bethel (a speech) disruption in Bethel

Citizens United v. Federal Election Commission

A 2010 landmark Supreme Court case that ruled that individuals, corporations, and unions could donate unlimited amounts of money to groups that make independent political expenditures. No speech restrictions based on corporate identity a. Just because states give corps benefits as means of accruing wealth (limited liability, perpetual life), cannot force them to give up 1A rights as payment because they availed themselves of these benefits.

Dun & Bradstreet v. Greenmoss Builders

A Supreme Court case which held that a credit reporting agency could be liable in defamation if it carelessly relayed (i.e. publish) false information that a business had declared bankruptcy when in fact it had not.**established that public and private companies are treated like private people in defamation cases, meaning it makes it easier for them to win defamation cases.***

Zurcher v. Stanford Daily (1978)

A Supreme Court decision holding that a proper search warrant could be applied to a newspaper as well as to anyone else without necessarily violating the First Amendment rights to freedom of the press. o but after Zurcher, Congress passed "Privacy Protections Act of 1980" to protect press from searches of newsrooms unless there is probable cause to believe that person committed a crim or that giving notice by subpoena would result in loss of evidence.

Van Orden v. Perry (2005)

A Ten Commandments monument on the grounds of a state capitol building does not violate the First Amendment's establishment clause because "simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the establishment clause." Factors significant: - Passage of time without objection/controversy - surrounding area of monument - source

True Threats

A category of speech that is not protected by the First Amendment. Statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to particular person or group of people.

Holder v. Humanitarian Law Project (2010)

A federal law criminalizing giving support to help terrorist organizations become nonviolent was constitutional. Government can punish speech that materially supports terrorist organization 1. court did not even mention Brandenburg; gives Congress deference in money and foreign affairs. a. BUT probably wouldn't survive strict scrutiny outside of context because court said not incitement, (therefore content-based).

United States v. O'Brien (1968)

A federal law prohibiting the willful mutilation of a draft card was constitutional because it was content neutral.

Confidentiality of Sources

A journalist has no First Amendment right to refuse to testify before a grand jury regarding the content and source or information relevant to criminal inquiry (Branzburg v. Hayes) § Interest in criminal investigation is compelling, and requiring grand jury testimony is narrowly tailored-only asking whether crimes occurred/ who committed, in private. § Branzburg interpreted as plurality because, despite being 5-4, Powell's concurrence suggests very narrow holding - if journalist called upon to give info on remote/tenuous relationship to subject of investigation - would be different case.

Miami Herald v. Tornillo (1974)

A newspaper cannot be required to give someone a right to reply to one of its stories

overbreadth doctrine

A principle used by courts to invalidate legislation that is broader in scope than is necessary to regulate an activity. This doctrine may be utilized to protect constitutional rights, such as freedom of speech, against a wide sweep of some governmental action.

Collateral Bar Rule

A rule that bars someone who violates a court order from trying to defend this action by arguing that the court order was unconstitutional. Cannot challenge conviction for violating an unconstitutional prior restraint unless it was transparently invalid or frivolous pretense to validity If a court imposes a prior restraint (like an injunction) and tells you not to do something, and you do it anyway --> cannot challenge, must respect court order

Lemon v. Kurtzman (1971)

Allowed states to provide textbooks and busing to students attending private religious schools. Established 3-part test to determine if establishment clause is violated

Freedom of the Press

Although the First Amendment specifically mention freedom of the press, the media has no greater First Amendment rights than the general public. - General: press has a right to publish information about matters of public concern and viewers have a right to receive it. This right may only be restricted by a regulation that is narrowly tailored to further a compelling governmental interest (strict scrutiny applies)

Nude Dancing

Another category of speech that does not meet the test for obscenity, and therefore should be protected by 1A, but is deemed speech of law value - govt can regulate

Zauderer v. Office of Disciplinary Counsel (1985)

Attorneys can be compelled to disclose information because of ethical obligations of profession Compelled speech

Speech Regulations in Prison

Authoritarian Environment General test: government may restrict and punish the speech of prisoners if the action is reasonably related to a legitimate penological interest. [rational basis review] Cannot restrict types of letters prisons can write (about greivances) (procunier v. martinez) Can deny access to articles about asthma/inhalers (Thornburgh) Can restrict correspondence between inmates(Turner v. Shafley) Can choose to not deliver letters with legal advice to an inmate (Shaw v. Murphy) Can prevent inmates from receiving hardcover books (Bell v. Wolfish) Can deny access to newspapers, mags, and photos based on need to motivate better behavior (Beard v. Banks) Can prohibit prisoners from forming a union or assembling to discuss forming a union (Jones v. N.C.) Can prohibit inmates from visiting with family (nieces, nephews, children) and with former inmates

Bar Membership

Bar admission cannot be denied based on political association unless candidate knowingly belongs to subversive organization with specific intent to further illegal ends. Government can 1. inquire into the character of the candidate 2. require individuals to answer specific questions only if narrowly focused on whether actively affiliated with a group, knowing of illegality, and specific intent. 3. deny bar membership for refusal to answer the questions

Relationship between Establishment and Free Exercise Clauses

Both Clauses protect against government infringement; but there is tension between the Clauses o Free Exercise: safeguarding individual liberty - preventing gov't from prohibiting you from practicing your religion. o Establishment: seen as directed at government; but also protects liberty. o Both violated if government creates a state religion (establish) and forces everyone to practice (free exercise) Tensions: o Gov't actions facilitating free exercise might be challenged as an establishment o Gov't efforts to refrain from establishing religion challenged as denying the free exercise o Lemon Test - makes tensions inevitable: "Gov't violates establishment clause if gov'ts primary purpose is to advance religion, or the principle effect is to aid or inhibit religion, or if there is excessive government entanglement with religion"

F.C.C. v. Pacifica (1978):

Broadcast Media and Profanity i. upheld the prohibition of indecent speech over TV & radio. 1. Radio station play 12 min monologue of George Carlin saying filthy words in a segment - about society's attitudes towards language. 2. Distinguished from Cohen - a. (1) Broadcast media uniquely pervasive presence in lives of all Americans i. "captive audience" - no control over what comes through airwaves ii. Privacy right to be left alone in your home. b. (2) Protection of children 3. Narrowed to factual circumstances - if at 11:30 pm, would be different outcome

Right of access TO the media

Broadcast v. Print Right-to-reply laws and the fairness doctrine (present both sides) allowed in broadcast media (Red Lion), but not in print (Miami) § Broadcast spectrum is a limited resource, with greater responsibility to the public, and therefore can be regulated more closely than print. FCC v. Pacifica Found. (1978) § Scarcity · Unclear why technological scarcity (of broadcast) deserves more 1A weight than economically induced scarcity (in print) § Government role in allocation § High barriers to access

Americans for Prosperity v. Bonta (2021):

CA demanded all charities operating in state disclose their largest donors to state; petitioner feared data leaks, and strong record of violent threats against top donors, CA claimed needed to records to police fraud—not enough.

Denver Area Educational Telecommunications Consortium v. FCC (1996):

CABLE and Profanity i. upheld provision that allowed cable systems to refuse to carry sexually explicit broadcasting b/c of need to protect children and right of cos to curator own content 1. Cable has more rights than broadcast media

Boos v. Barry (1988)

CONTENT BASED Court struck down restrictions on signs critical of the government within 500 feet of embassies. Court said content-based because regulating the sign itself; but strong argument viewpoint b/c only regulating signs critical of government. No reference to secondary effects.

United States v. Alvarez (2012)

CONTENT BASED Court struck down stolen valor act that made it a crime to falsely claim received military honors. Content-based restriction (falsity); gov't failed to prove sufficient harms from people lying about military honors; also, narrower means of achieving its goal.

City of Cincinnati v. Discovery (1993)

CONTENT BASED Court struck down an ordinance banning commercial news racks on public property because content-based restriction. Whether a newsrack falls within the ban depends on its content. Court says no secondary effects; but city says congestion, safety, aesthetics.

Iancu v. Brunnetti (2019)

CONTENT BASED AND VIEW POINT BASED Court struck down the "immoral or scandalous" bar to trademarks as substantially overbroad and discriminated based on viewpoint.

City of Erie v. Pap's AM (2000)

CONTENT NEUTRAL Court upheld city's public nudity law because the law was intended to prevent secondary effects of nude dancing.

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

Cannot compel crisis pregnancy centers to provide information on abortions; and cannot comple unlicensed facilities to disclose not licensed. § Court struck down because content-based law that altered content of message by compelling information on how they could obtain abortions. · Underinclusive - goal of providing low-income women about info on state services, but only applied to clinics whose primary purpose was providing family planning services; other less-intrusive alternatives available · Not professional speech - sometimes factual, non-controversial speech is okay to regulate; but this is not "un-controversial"

Reed v. Town of Gilbert (2015)

Case in which Court struck down statute restricting sizes of most signs but political ads in a town. Being an example of a content-based restriction, Court ruled it as unconstitutional and said there were other ways of dealing with visa clutter resulting from the sign. o Town distinguished treatment of signs based on content (ideological treated most favorably, temporary directional signs treated least favorably). § Town cannot prove differentiation between signs serves a compelling government interest and is narrowly tailored to that end. aesthetics (temporary signs no less appealing than others-underinclusive) and safety (safety not contingent on message of sign-overinclusive

Test for Regulations of Commercial Speech

Central Hudson 1. Speech must concern lawful activity and be neither false nor misleading 2. The government's interest/justification must be substantial 3. The regulation or law must directly advance the asserted interest; and 4. The regulation must be narrowly tailored (no more extensive than necessary) to achieve the government's interest. NOT mean least restrictive means available; must be a "reasonable fit"

Wooley v. Maynard (1977)

Citizen of New Hampshire blocked out the "Live Free or Die" slogan on his license plate. He was prosecuted for doing this. HELD: Unconstitutional. REASONING: The message on the license plate was speech. By restricting the citizens ability to cover the motto, the State was compelling speech.

Globe Newspaper Co. v. Superior Court

Closing the court violates freedom of press of the first amendment Overriding interest in protecting witness/victims of sex crimes if under 18, but law unconstitutional because ont sufficiently narrowly tailored

Janus v. AFSCME (2018)

Compelled Association (overrules Abood): court holds cannot compel public employees to pay union fees; employees have right to refrain from speech; preventing free riders not compelling interest - cannot have a compelling interest in forcing people to espouse views they not share

Expressive Conduct

Conduct that communicates Spence v. Washington -- conduct analyzed as speech if: (1) there is an intent to convey a specific or particularized message; and (2) in the surrounding circumstances the likelihood was great that the message would be understood by those receiving it Protected by the 1A, but to a lesser degree

Different treatment of political contributions and expenditures

Contributions: "rigorous standards of review" (intermediate +) 1. Restrictions on contributions are upheld if the govt demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms. (Buckley v. Valeo) (upheld individual contribution limits to $1,000 per candidate and annual limitation of $25K). 2. Contributions are protected less because they represent lower, symbolic speech interests. "At most, the size of the contributions provides a rough index of the intensity of the contributor's support for the candidate." 3. Can limit because excessive contributions creates a danger of corruption, quid pro quo, and appearance of corruption. Expenditures: strict scrutiny 1. Expenditures are seen as more comparable to political speech/expression—spending money is necessary to facilitate speech and virtually every means of communicating ideas today requires expending money. 2. "exacting scrutiny applicable to limitations on core 1A rights of political expression" Buckley v. Valeo (1976): struck down limits on campaign expenditures because restricted ability of citizens to engage in political expression; "the concept that the govt may restrict the speech of some in order to enhance the relative voices of others is wholly foreign"

Our Lady of Gaudalupe School v. Morrissey-Berru (2020)

Court expands Hosanna-Tabor and holds it violates free exercise clause to hold religious institutions liable under antidiscrimination laws for choices in teachers involved with teaching religion.

Boy Scouts of American v. Dale (2000):

Court found that BSoA has a Constitutional right to bar homosexuals from serving as troop leaders. i. "The forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints." ii. Court extends analysis - says in Roberts, after determining there was a compelling state interest, the Court examined whether application of the state law would impose any "serious burden" on the org's freedom of expressive association. i. To determine whether a group is protected, first determine whether the group engages in "expressive association" i. If expressive association, will the forced inclusion of the member affect their views?

Laws Requiring Disclosure of Membership

Court has held that government may require disclosure of membership, where disclosure will chill association, only if it meets "exacting scrutiny". Exacting Scrutiny: Americans for Prosperity v. Bonta (2021): [1] a substantial relation between the disclosure requirement and a sufficiently important governmental interest that is [2] narrowly tailored to the interest it promotes, even if not least restrictive means of achieving that end. 1. Does the government actually need this information?

Snyder v. Phelps (2011)

Court held that speech on a public sidewalk, about a public issue, cannot be liable for a tort of emotional distress, even if the speech is found to be "outrageous" i. funeral protests by Westboro Baptist Church protesting military funerals to about USA's military actions and tolerance of homosexuality. Picketing took place on public land, 1,000 feet from church. Snyder's father sued church for IIED. Court held the picketing was protected by First Amendment because about matters of public concern (USA foreign policy, homosexuality, moral conduct, etc.) 1. Context of speech - connection w/ funeral—did not make speech a private matter. 2. Picketing not unruly, no shouting, no profanity, no violence. Distress of the picketing turned on the content and viewpoint, not from interference with funeral

Gooding v. Wilson (1972)

Court ruled that fighting words laws must be restricted to words that have a direct tendency to cause acts of violence by the person to whom the remarks are made. Case struck down a Georgia state law, which provided that, "Any person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor." MUST NOT BE VAGUE

Ashcroft v. Free Speech Coalition (2002)

Court said that the part of the Child Pornography Prevention Act that banned computer-generated images that only "appear" to depict a minor engaged in a sex act is unconstitutional Can only ban child porn if actual underage children are used -- if simulated child porn (young looking adults or computer-generated images )-- may not ban.

Shuttlesworth v. City of Birmingham

Court struck down a Birmingham parade ordinance that gave officials the right to deny parades that were harmful to "public welfare, morals, or good order." Court condemned the local officials "virtually unbridled power" and said that a municipality may not empower its licensing officials to roam at will dispensing the permission to speak, assemble, picket or parade based on their own opinions of the effect on the community. Refused to apply the collateral bar rule to prevent challenge of laws constitutionality

Simon & Schuster v. New York State Crime Board (1991)

Court struck down state law that prevented those accused of a crim from profiting from book deals; instead used to compensate victims. Court held that state's interest in compensating victims is compelling but the law is not narrowly tailored to serve that objective. Alternative ways to ensure victims compensated.

New York v. Ferber (1982)

Court upheld a law that permitted criminal prosecutions for those who produce or sell material in which minors perform sex acts, without any proof of obscenity.

City of Renton v. Playtime Theatres, Inc.

Court upheld zoning ordinance prohibiting adult motion picture theatre within 1,000 feet of residential, school, park, church. Content-neutral because it is motivated by a permissible content-neutral purpose of regulating the "secondary effects" of these theatres. Survives intermediate scrutiny because substantial interest in the secondary effects on the community (crime, retail trade, property values). In other words, reasonable time, place and manner restriction. Dissent argues content-based because other motion theatres allowed, and underinclusive because if worried about secondary effects, would ban ALL in these areas. Also, there are no other reasonable alternatives because there is nowhere else to put theatres.

Milkovich v. Lorain Journal Co. (1990)

Defamation - falsity i. Implying a knowledge of facts which lead to the conclusion? ii. Is there a statement that is provable as false? iii. Can the statement be decided on a core of objective evidence? iv. Can statement reasonably be interpreted as stating actual facts or is this imaginative expression or rhetorical hyperbole?

Berisha v. Lawson (2021)

Discussing POLICY whether NYT v. Sullivan should be reconsidered Wi. ar Dogs film; Shkelzon Berisha portrayed as Albanian mafia/international arms dealer. Court said he was a public figure, majority found that he did not meet the high standards required to prevail for a public figure. ii. Gorsuch and Thomas in dissenting opinions suggest that NYT should be reconsidered

Rust v. Sullivan (1991)

Doctors working in government-sponsored clinics were prevented from providing women with information about abortion, even if the life of the mother were in danger o upheld law restricting recipient of federal funds from engaging in abortion-related activities. Law does not force recipient to give up speech but requires recipient to keep abortion related advocacy activities separate. § But not enough to "keep separate" by keeping separate books. § Decision not to subsidize a fundamental right is not an infringement of that right § Dissent strongly argues viewpoint discrimination -- while suppressing speech favorable to abortion on one hand, compels antiabortion speech on the other (adoption) · Maj holds viewpoint based funding decision permissible if the govt is the speaker.

Miller v. California (1973)

Established that community standards be used in determining whether material is obscene in terms of appealing to prurient interest, being patently offensive, and lacking in value. mass mailing campaign advertising the sale of illustrated adult material - concerned about sexually explicit material being thrust upon unwilling recipients.

Roth v. United States (1957)

Established that obscenity is not within the area of constitutionally protected speech or press. "Prurient Interests" defined obscenity as appealing to prurient interests; shameful, morbid interests in nudity, sex, or excretion)

Sherbert Test

For the individual, court must determine: 1) Whether person has a claim involving a sincere religious belief. 2) Whether contested action is a substantial burden on the person's ability to act on the that belief. If "yes", then government must prove: 1) It is acting in furtherance of "compelling state interest". 2) It has pursued that interest in manner least restrictive, or least burdensome, to religion.

Constitutionality of Prior Restraints

Generally presumed to be unconstitutional with limited exceptions: (i) Particular harm to be avoided; (ii) certain procedural safeguards are provided to the speaker o A prior restraint must be the only way of accomplishing the goal of preventing harm.

Is hate speech protected?

Generally yes, but fighting words are not. i. Expression of hate is protected speech and the government may not outlaw symbols of hate; nor can the government suppress the message of a speaker because of reaction of the audience. i. But government can single out for enhanced punished bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm. (Wisconsin v. Mitchell)

Johannes v. Livestock Marketing Assn (2005)

Government can compel farmer's to pay $1 assessment for advertising § -- beef advertising; court upheld $1/head assessment on livestock to fund generic ad encouraging beef consumption. Livestock producers themselves not forced to engage in speech government speech.

Rumsfield v. FAIR

Government can compel law schools to host military for recruiting purposes § aw school argued hosting military recruiters compels them to share a message/host speech. Court disagrees and says this will not "dilute" the university's message (like a parade) b/c no one will think law school is adopting ideology of the army. · Does not restrict law school ability to speak about views on military policies · Decision to allow recruiters onto campus is not inherently expressive · No violation of freedom of association either.

Brandenberg v. Ohio (1969)

Government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action conviction under Ohio's criminal syndicalism law—making it a crime to advocate crime, sabotage or other unlawful method of terrorism as means of political reform—for comments made at KKK rally

Heffernan v. City of Paterson

Government employee can challenge adverse employment action even if it is based on a mistake § employer thought conduct was 1A activity, demoted him, but turns out he did not engage in 1A activity to bring a claim · Court assumes the activities employer mistakenly thought he engaged in are kind that they cannot constitutionally prohibit or punish.

Common issues in free exercise jurisprudence

Government prohibits behavior one's religion requires § Reynolds v. United States (1878) -- Court upheld the constitutionality of law forbidding polygamy even though the Mormons said it was required by their religion. Government requires conduct a person's religion prohibits § Bowden v. Roy (1986) court rejecting challenge by Amish who claim requiring them to obtain SSN violated beliefs.

Purely Private Speech

Governmental regulation of speech on a person's own private property will rarely be upheld, particularly content-based regulations. But if private property has public purpose Marsh v. Alabama (1946): company town excluded Jehovah's witnesses from distributing lit; court struck down b/c not private town square. Government has some power to regulate speech on private property, outright bans on certain types of speech are impermissible.

Unconstitutional Conditions

Govt cannot condition a benefit on the requirement a person forgo a constitutional right. (1) Is the required activity manifesting a core political belief? (2) Does the condition require giving up a fundamental right all together? (3) Is govt advancing its own views or encouraging diverse views? (4) Is govt creating system relying on private speakers and preventing the system from functioning? (5) Is the government entrenching itself?

Wisconsin v. Mitchell (1993)

Hate crimes or assault based on hate crimes are NOT protected by the First Amendment. This is extended to cover race, religion and sexual orientation. While expression of hate speech is generally protected, conduct is not -- the first amendment protect speech, but not motives In RAV, the ordinance was directed at expression - harm was caused by the communicative element itself; in Mitchell the harm was caused by the act of beating up the white teen by several teenagers. a. BUT Zuckerman not sold on this distinction.

Gregory v. Chicago (1969)

Hostile Audience i overturned conviction for disturbing peace. Law must limit convictions to instances where --- 1. Threat of imminent lawless action, 2. Police made all reasonable efforts to protect demonstrators, and 3. Police first request demonstration be stopped and explain why.

Regulation of expressive conduct RELATED to expression

If conduct is expressive, and the regulation is related to expression --> apply strict scrutiny. Government regulation likely to be struck down Texas v. Johnson

Regulation of expressive conduct UNRELATED to expression

If conduct is expressive, and the regulation is un related to expression --> apply O'Brien Test

Debs v. United States (1919)

If purpose of the speech was to encourage those present to oppose not only war, but also to obstruct recruiting services, and encouragement directly given such that natural and intended effect would be obstruct recruiting, speech not protected. 2. Congress made it illegal to obstruct recruiting - purpose of the speech was to do thing the Congress prohibited. [bad tendency]

Janus v. ASFCME (2018)

Illinois law that compelled public employees to subsidize a union, even if they chose not to join or strongly objected to the positions, violated the employee's free speech rights

Richmond Newspapers v. Virginia (1980)

Individuals have a First Amendment right to attend criminal trials. But not absolute -- court can order closed only when there is an overriding interest that cannot be overcome by less restrictive means

Aschcroft v. ACLU

Internet and Profanity i. child on-line protection act regulated sexually oriented commercial websites; court held content-based restriction b/c only applies to sexual speech (not obscenity). 1. Strict scrutiny not narrowly tailored, less restrictive alternatives (filtering devices)

Christian Legal Society v. Martinez (2000):

Limited public forum -- student org recognition and funding o student org recognition/funding conditional on orgs allowing any student to participate. CLS refused—made all members sign statement of faith to join. School did not recognize CLS. No violation of CLS's 1A rights, limited public forum. § Policy was reasonable: · Justifications reasonable: ensuring edu/social opportunities available to all · Substantive alternative channels for communication remain open o Organization continued to operate independently o Internet made barriers to communication methods less relevant o Still using school spaces, but not funded. § Policy was viewpoint neutral: · Hard to imagine a more viewpoint-neutral policy than one requiring all student groups to accept all comers. · Can still be viewpoint neutral even if differential impact § Tension between associational freedom and restrictions in limited public forums - · Forcing to accept all students hinders program functioning (see LSC v. Velasquez). Court says only hypothetical; policy reasons override.

Town of Greece v. Galloway (2014)

Local legislative session may begin with a prayer applied Marsh

Santa Fe Independent School v. Doe (2000)

No school prayer in schools by students or at football games Court doesn't think it matters that here the student is speaking not the government Court does not think pregame invocations are private speech -- on govt property, govt tech, govt sponsored event

Feiner v. New York (1951)

ONLY CASE WHERE SPEAKER NOT PROTECTED IN HOSTILE AUDIENCE CASES i. conviction upheld because when members of the crowd grew angered, police asked speaker to leave, when he refused, he was arrested. Passed the bounds of argument/persuasion and is inciting a riot 1. BUT - allows audience reaction, if hostile enough, to dictate suppressing speech

Overbreadth v. Overinclusive

Overbreadth is a type of claim -- intentionally prohibiting a wide range of conduct Overinclusive: not a type of claim, methodology -- not always intentionally overinclusive (usually result of mismatch with goals of the statute) Both involve regulations going further than it should

Second prong of lemon test

Primary effect of a law must be one that neither advances nor inhibits religion. The government's action must not symbolically endorse religion or particular religion. Thornton v. Caldor (1985): no work on Sabbath struck down bedcause primary efect is to create unqualified advantage for individuals chosing not to work for religious reasons But, Church of Jesus Christ of Latter-Day Saints v. Amos (1987) court upheld exemption to Title VII which allows churches to advance religion, but its an incidental effect.

Reno v. ACLU (1997)

Profanity and the Internet i. unconstitutional to regulate indecent speech over the internet 1. Statute enacted to protect minor from indecent/patently offensive communications on the internet [Communications Decency Act] 2. Distinguished from Pacifica - a. CDA = categorical prohibition on speech of all internet b. CDA = criminal law; Pacifica just administrative sanction - chilling effect c. Internet = no captive audience; not invading the home

Defamation: Public Figure or Official

Public figure or official must show that D acted with actual malice. Actual Malice: 1. Acted with KNOWLEDGE that statement was FALSE; or 2. RECKLESSLY DISREGARD for the truth or falsity of statement Falsity: Public official/figure must also show FALSITY of statement

Police Department of Chicago v. Mosley (1972)

Public forum --> but content based restriction; subject to strict scrutiny o ordinance prohibits picketing, but exempts peaceful picketing of any school involved in a labor dispute content based. § Permissible picketing based on subject matter - peaceful picketing about labor = allowed; but peaceful picketing on any other topic = not allowed. § Court is not saying that all picketing must always be allowed, but is requiring a reasonably time, place and manner restriction that is content-neutral and furthering a significant government interest.

Lee v. Weisman (1992)

Public schools may not have clergy lead prayers at graduation ceremonies Even though not compelled in the same way as school prayer in class --> graduation is still important and there is "subtle coercive pressure" § School highly involved [entangled]: Principal not only made decision to include prayer, selected the clergyperson to deliver, but also controlled content of the prayers. · Counterargument: school trying hard to make inclusive; not establishing a particular religion; avoiding writing the prayer like in Engel v. Vitale

Ward v. Rock Against Racisms (1989):

RTPM in public forum o city's restriction on amplification is reasonable TPM. § Content-neutral and substantial interest in protecting citizens from unwelcome noise. § Government regulation of public forum does not have to be the least restrictive alternative, just must be narrowly tailored to serve the legitimate purpose. § Regulation left open ample alternative channels - no change to quantity or content beyond regulating level of amplification.

Hill v. Colorado (2000)

RTPM in public forum o upheld law limiting protests around reproductive healthcare facility. § Content neutral: regulates place, not content. Justified without reference to content (public safety) and captive audience problems. · Dissent believes, based on legislative history, that the law is adopted because of a disagreement with the message - if speech were different, law would be different. § Legitimate and important interest in protecting the health and welfare of citizens which includes the unimpeded access to healthcare facilities. § Narrowly tailored because does not require speaker to move away from others - just restricts activity within 100 feet of facility or 8 feet of another

Garcetti v. Ceballos (2006)

Richard Ceballos, an employee of the Los Angeles District Attorney's office, found that a sheriff misrepresented facts in a search warrant affidavit. Ceballos notified the attorneys prosecuting the case stemming from that arrest and all agreed that the affidavit was questionable, but the D.A.'s office refused to dismiss the case. Ceballos then told the defense he believed the affidavit contained false statements, and defense counsel subpoenaed him to testify. Seeking damages in federal district court, Ceballos alleged that D.A.s in the office retaliated against him for his cooperation with the defense, which he argued was protected by the First Amendment. The district court ruled that the district attorneys were protected by qualified immunity, but the Ninth Circuit reversed and ruled for Ceballos, holding that qualified immunity was not available to the defendants because Ceballos had been engaged in speech that addressed matters of public concern and was thus protected by the First Amendment. Decision: The Supreme Court held that speech by a public official is only protected if it is engaged in as a private citizen, not if it is expressed as part of the official's public duties. Ceballos's employers were justified in taking action against him based on his testimony and cooperation with the defense, therefore, because it happened as part of his official duties.

Is pornography obscenity, or is it protected by the 1A?

Sexually Oriented Speech NOT EQUAL to obscenity

False and misleading speech

Some advertising is inherently riskign deception and not protected. Friedman v. Rogers (1979): upheld state law that prohibited optometrists from advertising and practice under trade names. Lawyer Cases 1. Govt may prohibit attorney in-person solicitation of prospective clients for profit. 2. Ohralik v. Ohio (1978): solicitation of accident victim in hospital bed on contingency fee basis not allowed; face to face solicitation inherently risks deception and pressure b/c no one there to monitor 3. In re Primus (1978): solicitations protected if offer to represent without charge. 4. Zauderer v. Office of Disciplinary (1985): deceptive omissions not protected. 5. Shapero v. Kentucky Bar Association (1988): unconstitutional state law prohibiting targeted direct-mail solicitation by lawyers for profit. Letters do not have same inherent risk of deception. 6. Florida Bar v. Went for It (1995): upheld law prohibiting solicitation for 30 days after an accident - prevent erosion of confidence in the profession.

First prong of lemon test

Statute must have a secular legislative purpose § Struck Down: · Stone v. Graham (1980): 10 commands in every school no secular purposes · Wallace v. Jaffree (1985): 1min period of silent reflection no secular purpose · Edwards v. Aguillard (1987): creationist act requiring teaching of creation science has the primary purpose of endorsing a particular religious doctrine (no secular purpose) § But see McGowan v. Maryland (1961): court upheld law requiring businesses closed on Sunday; uniform day of rest for all citizens; secular goals that also serve religion

Davis v. FEC (2008)

Struck down BCRA's "millionaire's amendment" Expenditures by a candidate on his/her own campaign cannot be limited.

44 Liquormart v. Rhode Island (1996)

Struck down a Rhode Island law that banned the advertising of liquor prices Targeting truthful, not misleading info and no evidence will reduce market wide consumption of alcohol (no reasonable fit or narrow tailoring)

Speech Regulations in Schools

Substantial disruption test: Suppression of speech is permissible in schools if expression would: i. Substantially interfere with the work of the school; or ii. Impinge upon the rights of other students. iii. Applied to colleges/university through Papish (1973)

Pickering v. Board of Education (1968)

Supreme Court decision ruled in favor of Marvin Pickering, a teacher who wrote a letter to the newspaper criticizing the BOE and was fired. The school board violated his First Amendment right to freedom of speech. Articulated the balancing test between government managerial needs and employees 1A rights

Rubin v. Coors Brewing Co. (1995):

Supreme Court struck down a rule that forbid labeling the alcohol content on drinks because the government thought it would discourage youth from purchasing liquor with the highest content. The court ruled that there was no evidence this would work. i. federal law prohibited stating alcohol content in beer labels, govt goal to prevent strengths wars. 1. Court struck down b/c could achieve substantial interest in less intrusive manner - e.g., directly limit alcohol content,

Austin v. Michigan Chamber of Commerce

Supreme Court upheld Michigan law limiting corporate political speech state has power to limit distortions to marketplace of ideas caused by corporate wealth

McCullen v. Coakley (2014)

TPM in Public Forum o struck down laws limiting protects around abortion facilities. § Even though content-neutral (no protesting within 35 feet), not narrowly tailored to serve a significant government interest - burdens more speech than necessary.

Burson v. Freeman (1992)

Tennessee banned campaigning within 100 feet of polling places Supreme court ruled it was a content-based restriction, supreme court upheld this law. Compelling government interest was the secret ballot SURVIVED STRICT SCRUTINY

Matal v. Tam (2017)

The "disparagement clause" of the Lanham Act, which prohibited trademarks that disparaged individuals or groups of people, is unconstitutional. CONTENT BASED AND VIEWPOINT BASED Simon Tam chose moniker The Slants to reclaim denigrating force of term. Federal law prohibits registration of trademarks that disparage. Court held the Lanam Act violated the First Amendment because this was a content-based restriction; viewpoint restriction. Does not matter that prohibits disparaging anyone. But disparagement = viewpoint. "Happy talk clause"

McIntyre v. Ohio Elections Commission (1995)

The Court held that an Ohio statute that prohibits anonymous political or campaign literature is unconstitutional Compelling speech -- to give name § Core political speech at issue here, important to protect the marketplace of ideas -"essence of 1A protection" · Court held the law was overinclusive to prevent fraud and libelous statements. Agreed the interest is important, but reg encompasses docs that are not false or misleading, does not prevent people from using fake names/addressed

Wallace v. Jaffree (1985)

The Court overturned a state law setting aside time for "voluntary prayer" in public schools. § Court focused on PURPOSE - legislative history made clear purpose was to reintroduce prayer into public schools [struck down on 1st prong of Lemon]

United States v. Stevens (2010)

The Supreme Court invalidated a U.S. law that prohibited "knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain." Stevens' conviction stemmed from an investigation into the selling of videos related to illegal dog fighting. With Chief Justice John G. Roberts writing for the majority, the Court reasoned that depictions of animal cruelty are not categorically unprotected by the First Amendment. i. Court held facially unconstitutional as a content-based regulation of protected speech. ii. Substantially overbroad - did not specify mutilating also included wounding which would sweep in constitutional conduct like depictions of hunting. 1. Court unpersuaded by governments arguments that it is expressly tailored to cruelty and will not prosecute hunting, etc.

Gannett v. DePasquale (1979)

Two men were charged with murdering a cop Upheld a New York judge's order barring a reporter from a pre-trial hearing The defendant wanted the court room closed and the Supreme Court said that the 6th amendment right to a public trial belongs to the defendant and not the public This case is no longer good law. A "substantial probability" of an unfair trial is now required before a court may close the courtroom

Rosenberg v. University of Virginia

UVA denied funding to religious magazine for printing = unconstitutional. When school spends its money to disseminate its own message, it may control content, but viewpoint based restrictions are not proper when the school does not itself speak, but instead spends money to encourage a diversity of viewpoints from private speakers.

Abrams v. United States (1919)

United States Supreme Court decision which upheld the Espionage Act, which made it illegal to curtail war production or the progress of war. 1. Made leaflets not attacking USA's form of govt but criticizing US's intervention in support of czar during Bolshevik revolution. majority upholds conviction 2. DISSENT -- * VERY IMPORTANT FOR LANGUAGE* a. "But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas...The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out"

Mt. Healthy District v. Doyle

Upheld a nontenured teacher's freedom of expression. District has "burden of proof" to show he would have been fired regardless of action protected under First Amendment (calling radio station). (Teacher was still fired in this case.) If the speech/conduct protected (private, on matter of public concern), and the speech was a substantial or motivating factor in the adverse employment action, then the burden shifts to the government to show by preponderance of the evidence that it would have reached the same decision regardless.

What is government speech?

When the government itself speaks, or when it adopts private speech as its own -- not regulated by 1A because amendment only regulates government regulations of private speech (a) Public monuments = government speech (b) License plates (speciality) = government speech (c) Government subsidies = government speech (d) Speech by government employees (in some circumstances)

Obscenity

a category of speech not protected by the first amendment Miller test to define

What is actual malice?

a. (i) Knowledge that the statement was false; or b. (ii) Reckless disregard as to its truth or falsity. c. In other words, must show D was subjectively aware of falsity, or entertained serious doubts as to truthfulness. (St. Amant v. Thompson)

Williams-Yulee v. Florida Bar (2015)

a. ): survives "exacting" scrutiny i. Court declared constitutional the provision of state code of judicial ethics that prohibited judicial candidates from soliciting campaign contributions. ii. Government interests: public may lack confidence in judge's ability to administer justice without fear or favor if he comes to office by asking favors. 1. Unlike politician, judge is not supposed to be responsive to supporters iii. Narrowly tailored/least restrictive means: leaves other ways for judges to engage in speech - can give speeches, put up billboards contact supporters in person, just can't ask for money. A law requiring judge to recuse themselves from cases with campaign contributions would be much more restrictive.

Profanity/Indecent Speech

a. Although not obscene, government frequently tries to regulate profane/indecent speech b. Court has held that such language is generally protected, but there are notable exceptions. i. Court has expressly adopted a medium-by-medium approach (Cohen v. California)

Bollea v. Gawker (2012):

a. Hulk Hogan suing Gawker media for secretly videotaping a sex tape i. Claiming invasion of privacy, publication of private facts, IIED, harm to image/likeness ii. Court denied his motion for preliminary injunction prior restraint. 1. Only impose "most extraordinary remedy" where evil that would result from reporting is great and certain and cannot be mitigated by less intrusive measures. 2. P failed to show irreparable harm - "cat out of the bag" - injunction ineffective iii. P is a public persona/figure- subject of general interest and community concern iv. Although loses injunction, wins huge jury award that puts Gawker out of business.

Categories of speech "less protected"

a. Incitement of Illegal Activity i. Speech inciting immediate lawless action is less protected under the First Amendment if it is directed at producing imminent lawless action and is likely to occur. b. Fighting Words i. Fighting words are a category of lesser protected speech, however laws prohibiting fighting words are unlikely to survive post-Chaplinsky as the Court indicated a greater willingness to protect this speech. c. Sexually Oriented Speech i. Neither obscenity nor child pornography is protected by the First Amendment. ii. Sexually oriented speech like nude dancing and adult movie theaters are subject to less protection under the 1A and the government can regulate where this conduct occurs. d. Profanity and Indecent Speech i. Profane and indecent speech is generally protected, but there are notable exceptions pertaining to the medium where the profane or indecent speech takes place. e. Commercial Speech i. While commercial speech is protected by the First Amendment, commercial speech can be regulated under the equivalent of intermediate scrutiny. ii. False and/or deceptive advertising is NOT protected at all. f. Defamation i. Speech that is false and made with actual malice to injure someone's reputation is less protected by the First Amendment. g. IIED i. Speech that is intended to cause another to suffer severe emotional distress (IIED) is less protected as states can impose liability for such speech - subject to actual malice and falsity requirements articulated in New York Times v. Sullivan. h. Publicity i. Publication of private info that is not of legitimate concern to the public and a reasonable person would find offensive to be published is subject to less protection by the 1A. i. Campaign Contributions j. Other speech where govt can demonstrate a "compelling interest" in limiting 1A activity.

Anti-Discrimination Laws & Freedom of Association

a. Many states adopted laws prohibiting discrimination often challenged by claiming the freedom of association protects their right to exclude whomever they want from their group. b. Freedom of association protects discrimination only where discrimination is integral to the express activity; or if it is intimate association (small, private group) a. The Supreme Court has held that infringements on the right to associate may be justified by regulations adopted: i. To serve a compelling state interest 1. States have compelling interest in eradicating/stopping discrimination. ii. Unrelated to the suppression of ideas; that iii. Cannot be achieved through means significantly less restrictive of associational freedoms. 1. *Not quite strict scrutiny - does not have to be "least restrictive means"

Tinker v. Des Moines (1969)

a. articulated the substantial disruption test i. Court protected the students speech (wearing black armbands) - relevant that the speech was passive, silent, unaccompanied by any disorder or disruption to classrooms. ii. "It can hardly be argued that either students or teacher shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." iii. School singled out Vietnam war protest for prohibition - did not prohibit wearing all symbols of political significance.

RAV v. Minnesota (1992)

a. fighting words protected speech i. burned cross in black family's yard, charged under ordinance prohibiting symbol which one knows or has reason to know arouses anger... in others on the basis of... race. ii. Court struck down as unconstitutionally viewpoint/content-based regulation because it only applies to fighting words about race. iii. Sweeps in otherwise permissible first amendment conduct. iv. Concerned about govt putting thumb on scale of debate 1. "Authority to license one side of the debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules." (Scalia)

NAACP v. State of Alabama ex rel. Patterson (1958)

a. struck down Alabama law demanding that NAACP disclose the names/addresses of all its Alabama rank and file members. i. Alabama did not demonstrate an interest in obtaining disclosures that is sufficient to justify the deterrent effect these disclosures will have on the right of association. ii. Interest in determining whether NAACP conducting business in state in violation of foreign registration statute is not narrowly tailored to knowing all members names.

Brown v. Entertainment Merchants Association (2011):

a. violent video games i. State law prohibited sale of violent video games to minors without parental consent; court held violent speech is not unprotected and law must survive strict scrutiny. ii. Government's interests: 1. Help parents who wish to keep these out of their kids hands a. Court says law is overinclusive - some parents might not care 2. Preventing violence (caused by violent video games) a. California failed to show evidence of causal link b/w games and violence b. "wildly underinclusive" - if actually trying to restrict violence, Scalia argues fairytales/books violent - singling out video games for disfavor iii. Thomas, J., dissenting - freedom of speech does not include a right to speak to minors without going through minors' parents. iv. Breyer, J., dissenting—focusing on power to protect children (like in sexual) 1. statute in California copies word-for-word the Miller test for obscenity 2. Govt interests are compelling 3. Anomaly: sale of violence to minors and sale of nudity a. Ginsberg: can prohibit sale to minors depictions of nudity b. Brown: cannot prohibit sale to minors of violent video games c. Can show torture, gagging, violently raping woman, but only if she is topless can prohibit.

Gertz v. Robert Welch (1974)

atty representing family of kid killed by police, defamed by D as a being a communist and ringleader in prosecution of PO. Court found atty played no role in crim trial, not commy, article made serious inaccuracies and no effort to verify/substantiate; not public figure did not thrust himself into a public issue by represent.

Agency for Int. Development v. Alliance for Open Society (2013):

cannot mandate as a condition for funding recipients explicitly agree with gov'ts policy opposing prostitution/sex trafficking.

child pornography

category of speech that is not protected by the 1A. Government has greater power when protecting children rather than regulating consenting adults Even though content-based restriction, the state has a compelling interest in protecting minor children from exploitation

Legal Services Corp v. Velazquez (2001)

court struck down condition on LSC funds that prohibited legal representation by recipients if representation included efforts to change the welfare laws. LSC designed to facilitate private speech - not promote gov't message; lawyer not the gov't is speaker and speaking on behalf of client

as-applied challenge to content-based law

contends that even if the statute can be constitutionally applied in some cases, it was not constitutional to apply it to the complaining party in this particular instance o regulations that are not content-based on their face may still be content based in application or intent - and will also be subject to strict scrutiny. o "Facially neutral": content based if cannot be justified without reference to the content of the speech; or if the regulation is adopted because of a disagreement with the message.

Chaplinsky v. New Hampshire (1942)

convicted under NH law for using offensive language towards another in public; significant that statute was narrowly drawn (face-to-face).

Los Angeles v. Alameda Books (2002):

court allows LA to prohibit putting more than on adult entertainment business in one building, relying on one study that adult entertainment leads to more crime (secondary effects)

Robert v. Jaycees (1964)

court held requiring Jaycees to admit women did not violate freedom of association because human rights act served compelling interest in eradicating discrimination, not aimed at suppression and Jaycees failed to demonstrate how admitting women would impose a burden (some women already admitted as non-voting members)

Virginia v. Black (2003)

court held state may ban cross burning carried out with intent to intimidate under 1A, but provision of VA statute that banned ANY cross burning is unconstitutional (overbroad). Cross burning is a symbol inextricably linked with KKK and hate. a. Directed at a particular person intended to intimidate b. History of violence and death associated threat not merely hypothetical Government can restriction content of speech including true threats. a. True Threats: "statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" b. Some cross-burning fits in this definition but not all. Distinguishable from RAV v. Minnesota But, flag burning alone as prima facie evidence of intent to intimidate = overbroad a. Permissible flag burning (political speech) would be punished.

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012):

court held violation of free exercise to hold a religious institution liable under antidiscrimination law (ADA) for the choices it makes as to who will be its ministers.

Carey v. Brown (1980):

court struck down statute prohibiting picketing around person's residence unless dwelling is used as place of business involved in a labor dispute. If picketing about labor dispute in residential allowed; but otherwise not (content-based) applied SS

NEA v. Finley (1998)

denied NEA grants and took issue with "general standards of decency" requirement of NEA. Court held standards were facially valid and that any content-based considerations were the unavoidable consequence of the nature of arts funding. NEA was not discriminating based on viewpoint.

Fighting Words Doctrine

established in Chaplinsky v New Hampshire (1942), the decision incorporated into state law the concept that the government can limit free speech if it can be proved that the result of speech will cause physical violence. TEST: words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. (Chaplinsky) 1. Must be directed at a specific person and likely to produce a violent response 1. Must not be unconstitutionally vague or overbroad 1. Must not draw content-based distinctions among types of speech

unfettered discretion (unprotected speech)

gov't official cannot choose/ allow one form of speech over another - A law or regulation that permits a governmental official to restrict speech must provide definite standards as to how to apply the law in order to prevent government officials from having unfettered discretion over its application. o Must be related to an important governmental interest and contain procedural safeguards - Can be void on their face see vagueness - E.g., licensing see prior restraints

Cornelius v. NAACP Legal Defense Fund (1985):

government fundraising campaign is nonpublic/limited public forum. Decision to exclude some charities (but not others) cannot be made because the govt disagrees with particular orgs views - must be ideologically neutral.

O'Brien Test

government regulation of expressive conduct is upheld if (1) it is within the constitutional power of the government (2) if it furthers an important or substantial governmental interest (3) if the governmental interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to furtherance of that interest (no less intrusive alternatives)

Frohwerk v. United States (1919),

i. "kindling the flame test" 1. "Impossible not to say that newspaper might have been somewhere where a little breath would be enough to kindle a flame"- conviction for incitement upheld. 2. No clear and present danger test mentioned. 3. Newspaper encouraging draft evasion.

IIED: Non Public Figures

i. Damage actions by private individuals for IIED are subject to the First Amendment rights of defendants if the speech relates to a matter of public concern, despite its "outrageous" and "particularly hurtful" quality. [Snyder v. Phelps (2011)] ii. Speech deals with matters of public concern: 1. [a] when it can be fairly considered as relating to any matter of political, social, or other concern to the community, OR 2. [b] when it is a subject of legitimate news interest; that is, subject of general interest and of value and concern to the public. 3. Requires us to examine the content, form, and context of that speech, as revealed by the whole record... no factor is dispositive, and is necessary to evaluate all the circumstances of the speech, including what, where, how it was said.

Defamation: private figures

i. If P is a private figure but the defamatory statement involves a matter of public concern, then the standards is lower, but P must still establish statements were false and made negligently [Gertz v. Welch] 1. Recovery is limited to compensatory (no punitive) damages, unless actual malice (then punitive damages available). 2. Justification: more need to protect private individuals from injury b/c not same opportunities to rebut false accusation.

Lorrilard Tobacco Co. v. Reilly (2001)

i. MA reg of tobacco found unconstitutional (no advertising w/n 1000 ft of school; must place ads 5 ft to avoid being at eye level w/ kids) 1. Court reinforces Central Hudson 4-part test for commercial speech 2. (1) - (3) are satisfied; fails (4) - regulations are justified as restricting youth use of tobacco, but law is not a reasonable means to achieve the end sought. a. Would prevent advertising in 87-91% of Boston area b. Too broad - does not try to address practices most attractive to youth; instead sweeps too broadly and constitutes complete ban on "truthful" information to ADULTS as well. 3. Thomas, J., dissenting - there is no "vice" exception to 1A, strict scrutiny

Hustler v. Falwell (1988):

i. Parody ad discussing tasting liquor for "first time." 1. Depicted Falwell's first time as a drunken, incestuous encounter with his mother in an outhouse. Court held Falwell failed to demonstrate IIED. 2. To find for Falwell would affect all political satire (including political cartoons) a. cartoonist is often not reasoned or evenhanded but slashing and one sided. b. Need breathing space - we tolerate speech we do not like, so that speech is not chilled. Crucial to be able to criticize public people. 3. Outrageousness standard runs afoul of our longstanding refusal to allow damages because the speech may have an adverse emotional impact on the audience. a. Outrageousness has an inherent subjectiveness about it which would allow a jury to impose liability based on jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression.

Zoning Ordinances of Sexually Oriented Speech

i. The Supreme Court has indicated there is a category of speech that does not meet the test for obscenity, and thus is protected by the 1A but is deemed to be speech of law value, and thus the government has latitude to regulate such expression. ii. Court has upheld the ability of local governments to use zoning ordinances to regulate the location of adult bookstores and movie theaters.

Public Disclosure of Private Facts

i. Tort exists if: publication of nonpublic information that is not "of legitimate concern to the public" and that the reasonable person would find offensive to have published. 1. Different from defamation- because disclosing true, but private information, harm occurs when publication takes place. ii. First Amendment prevents liability for this tort if the information was lawfully obtained from public records and is truthfully reported.

Schneck v. U.S. (1919)

i. Whether the words are used in such circumstances and are of such a nature to create (1) a clear and (2) present danger that they will bring about (3) substantive evils Congress has a right to prevent. 1. Printed a doc that court found intended to influence people to obstruct the draft. 2. "The most stringent protections of free speech would not protect a man in falsely shouting fire in a theatre and causing panic."

Defamation: Public Concern

i. [Dun & Bradstreet v. Greenmoss Builders (1985)] 1. Whether speech relates to a matter of public concern "must be determined by [expression's] content, form, and context ... as revealed by the whole record; e.g. a. Was speech purely in individual interest of speaker/audience? b. How widely was speech made available? c. Could speech be disseminated further? d. Is speech motivated by profit? How hardy is it?

Barens v. Glen Theatre, Inc (1991):

i. court held govt can completely ban nude dancing. Indiana statute banning public nudity could be used to require female dancers wear a G-string and pastie when dancing. 1. No majority opinion; plurality thought nude dancing was conduct that communicates and applied the test used for regulating symbolic speech. a. Furthers important/substantial govt interest; unrelated to suppression; and incidental restrictions on 1A freedoms no greater than necessary. 2. Concurrence: regulates conduct only; no expression; no 1A scrutiny

Young v. American Mini Theatres, Inc (1976):

i. court upheld ordinance limiting # of adult theaters that could be on any block and prevented them from being in residential areas. 1. Content-based without a secondary effects justification 2. "few of us would march our sons and daughters off to war to preserve a citizen's right to see specified sexual activities exhibited in the theatres of our choice."

Board of Trustees v. Fox (1989):

i. government regulation of commercial speech need not use the least restrictive means, but must use means narrowly tailored to achieve the desired objective.

Bartnicki v. Vopper (2001):

i. illegally recorded phone call as part of teachers' union negotiations aired on radio. 1. Court narrowly held that allowing liability would violate 1A, press protected here because did not participate in illegal interception AND because tape concerned matter of public importance (potential physical harm to others) 2. Note: information came from nongovernment source; illegally obtained

Florida Star v. BJF (1989)

i. publication of rape victim's name from police report 1. Court held no liability when truthful reporting of information lawfully obtained from public records unless there is a compelling state interest of the highest order justifying the liability. Protecting name of victim not "high" enough order.

Cox Broadcasting Corp. v. Cohn (1975):

i. publication of rape victims name; family of victim sued under law that made it a crime to publish the name of rape victim. 1. Court held state cannot impose liability for the publication of true information obtained from public judicial records (indictment) 2. Importance of freedom of the press to keep people informed & hold judiciary acct

Arizona Free Enterprise Club's Freedom Club PAC v. Bennett (2011):

i. struck down public funding system that increased contr/spending limits for those taking public money by the amount spent by opponents. 1. Once privately financed candidate exceeds limit, publicly financed receives $1 for every dollar spent by opposing candidate. 2. To avoid exceeding limits, must change message or refrain from speaking—impermissible restriction on political speech. 3. State/dissent argue this increases speech - but maj says only for publicly financed 4. Kagan, J. dissenting: "we have never understood viewpoint-neutral subsidy given to one speaker to constitute a 1A violation on another"

Posadas de Puerto Rico Associates v. Tourism Co. (1986):

i. upheld prohibition on advertising of casino GAMBLING 1. Gambling at casinos is legal activity 2. Government has an important interest in discouraging gambling though 3. Sufficiently narrowly tailored achieve goal. a. Only targeted casino gambling, other forms of gambling unregulated. 4. Least restrict alternative because could have banned gambling in casinos outright.

Laws Punishing Membership in a group

law must meet strict scrutiny. to punish membership in a group, must prove that the person: (1) actively affiliated with the group (2) knew of group's illegal activities (3) had specific intent of furthering those illegal activities note that laws requiring disclosure of group membership must also meet strict scrutiny if disclosure would chill association. "Scales Test" for public employment

Content Based

laws enacted because of the message, the subject matter or the ideas (viewpoint) expressed in the regulated speech Presumptively invalid and subject to strict scrutiny But if facially content-based and motivated by a permissible purpose (regulating secondary effects0 --> considered content-neutral

content-neutral laws

laws that apply to all expression without regard to the substance or message of the expression § May be justified if the government proves the regulation is substantially related to an important government interest. (City of Renton v. Playtime Theatres (1986)) o Lower level of scrutiny because in most case less substantial risk of existing certain ideas or viewpoints from public dialogue.

County of Allegheny v. ACLU of Pittsburg (1989)

o 2 holiday displays: creche, and menorah + Xmas tree. Court holds creche display unconstitutional; and menorah+tree constitutional. § Establishment clause precludes the government from conveying or attempting to convey a message that a religion/religious belief is favored. · Whether the challenged action is sufficiently likely to be perceived by adherent of the controlling denominations as an endorsement, and by nonadherent as a disapproval of their individual religious choices. · Creche favored because standing alone - nothing detracts/contextually situates · Menorah+Tree not exclusively religious; overall holiday setting § Majority: neutrality approach § Dissent: accommodation approach; no coercion at EITHER display; could look away and no tax $$ given to fund.

Substantial Overbreadth

o Broadrick v. Oklahoma (1973): law prohibiting political activities of government employees was constitutional because while some overbreadth, not substantial. o City Council v. taxpayers for Vincent (1984): court upheld municipal ordinance that prohibited all signs on public property. Just because can conceive of some impermissible application; not substantial overbreadth. Must be a realistic danger that the statute itself will significantly compromise recognized 1A protections. o New York v. Ferber (1982): court upheld law prohibiting child porn; not overbroad only few situations where constitutional speech would be affected.

Larson v. Valente (1982)

o Court struck down law imposing registration and reporting requiring on charitable orgs, but exempted religious institutions that receive more than 50% of financial support from members. § 50% requirement grants a denominational preference § Could also trigger free exercise problems

Establishment Clause and School Curricula Cases

o Epperson v. Arkansas (1968): law prohibiting a state-teacher from teaching evolution unconstitutional because motivated by religious purpose. Edwards v. Aguillard (1987): unconstitutional law prohibiting teaching evolution unless accompanied with creationism; primary purpose to change science curriculum to provide

Frisby v. Schultz (1988):

o upheld ordinance prohibiting picketing at person's home. Content-neutral and narrowly tailored to protect people's tranquility and repose in their home. § Captive audience problem - especially in homes = compelling interest.

Facial Challenge to Content-Based Regulation

o Regulation of speech that is content-based on its face will only be upheld if the regulation is necessary to achieve a compelling governmental interest and is narrowly tailored to meet that interest (i.e., strict scrutiny). [Reed v. Town of Gilbert].

Marsh v. Chambers (1983)

o upheld state employment of legislative chaplain opening legislative sessions with prayer (deeply embedded in history & tradition of our country) § Example of Lemon Test applied selectively

Government Subsidies

o There are some instances when the government must inescapably make content choices, like when the government is choosing to subsidize speech - no way for the government to avoid content considerations in deciding what speech to finance. o In such circumstances the government can consider content, must be viewpoint-neutral. See NEA v. Finley

Speiser v. Randall (1958)

o cannot be forced to swear a loyalty oath in exchange for a tax benefit § Veteran's property tax exemption required oath not to overthrow gov't, appellants refused to sign and refused the exemption. Court held unconstitutional condition because denial of the exemption would have the effect of coercing people to refrain from speech. · Deterrent effect is the SAME as if the state fined them for the speech

Walker v. Texas Division, Sons of Confederate Veterans (2015)

o government speech because government exercises control in approving license places. § License plates communicate message from state (ID info); closely identified in public mind with gov't, Texas maintains direct control over licenses and messages conveyed. § Is a license plate a limited public forum? If so, no viewpoint discrimination allowed · Walker (Scalia, J., dissenting): gov't rejection of specialty license plate unconstitutional. private speech in a limited public forum (state converted license plates into mobile billboards where motorists can display their own message). Discriminating on viewpoint (confederate flag offensive). Underinclusive if concerned about safety.

Pleasant Grove City, Utah v. Summum (2009):

o placement of monuments is gov't speech, not subject to scrutiny under free speech clause. Government does not have to display religious monuments privately donated because would force gov't to adopt speech as its own. Reasons monument is government speech (not public forum) - § (1) Monuments often used by government to speech; always controlled selection § (2) Public views parks as government land/space § (3) Practicality - monuments cannot be entirely open to public; how exclude? § (4) Parks are only opened on certain terms (reasonable time, place, manner) § But if gov't opened up and then says certain people/messages can't be displayed viewpoint discrimination.

Abington School District v. Schempp

o struck down law required the reading of the Bible at beginning of each day at school. § NOT state composed prayer (distinguishable from Engel), but court stressed activities part of curricular activities, in school buildings, supervised by teachers)

Trinity Lutheran of Columbia, Inc. v. Comer (2017):

o tate recycled tire program; Trinity applied for grant and denied because state constitution precluded money from aiding religious organizations. Court held Missouri violated the free exercise clause by deciding that the church was ineligible for the program solely because of its religious STATUS. § Court distinguished Locke v. Davey - denied because of what he proposed to do—USE the funds to prepare for ministry; Trinity denied because of STATUS as religious organization. § Public financing of clergy is not equal to financing resurfacing of playground (not integral with religious mission) - Sotomayor's dissent takes issue with this. § States interest in preventing tax $$ from going to religious institutions is already protected by Establishment Clause.

Espinoza v. Montana Department of Revenue (2020)

o tuition assistance program to parents sending their children to private schools; because nothing in the program prohibited money from going to religious schools; Montana struck down program under their constitution. Supreme Court held that prohibit. § Including religious schools in the program is NOT an establishment § Excluding religious schools from the program IS a violation - burdening free exercise by excluding from a benefit solely because of religious character/STATUS. · Analogous to Trinity (STATUS) - not Locke (USE) Distinguishing Locke - concerned about state-supported ministers (most state constitution in the founding era prohibited tax $$ to support clergy); no comparable historic and substantial tradition supports Montana's decision to disqualify religious schools from aid.

Red Lion Broadcasting Company v. Federal Communications Commission

o upheld constitutionally of fairness doctrine requiring broadcast stations present balanced discussion of public issues; when character attacked, give notice+ opp for response.

Regan v. Taxation with Representation of Washington (1983):

o upheld federal tax law conditioning tax-exempt status on requirement that org not engage in lobbying/partisan politics § Court found congress simply chosen not to subsidize a 1A activity, not infringing § No indication that statute intended to suppress ideas or demonstrations

Schad v. Borough of Mount Ephraim (1981)

ordinance prohibiting ALL live entertainment is overbroad because prohibits a wide range of expression that is protected (plays, comedies, dance recitals) (trying to regulate nude dancing).

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council

prohibited publishing/advertising of prescrip drug prices by a pharmacist. Court held commercial speech is protected speech, but some commercial speech may be regulated. Commercial speech protected because of (1) consumer interest in free flow of info; and (2) society's interest in free flow of info, free enterprise economy. Some kinds of commercial speech are not protected a. Untruthful speech never protected by 1A b. Deceptive, false, misleading communication can be regulated c. Illegal speech can be regulated d. Time, place, and manner regulations are permissible. Otherwise, commercial speech can be regulated if: a. Justified without reference to content b. Regulation serves a significant government interest and c. Leaves open ample alternative channels for communication of the info. d. Allows govt to ensure commercial info "flows cleanly" and "freely"

What is commercial speech?

speech that proposes a commercial transaction Speech that (1) is an advertisement; (2) reference specific products; and (3) speaker has an economic motive for making the speech. (Bolgers v. Young Drug Products Corp)

Coates v. City of Cincinnati (1971)

struck down ordinance making it a crime of "annoying conduct" -- vague because it is an unascertainable standard which could result in selective enforcement

West Virginia State Board of Education v. Barnette

students can not be forced to salute the flag or say the Pledge of Allegiance COMPELLED SPEECH

Sherbert v. Verner (1963)

the Supreme Court ruled that disqualifying Sherbert, a Seventh-Day Adventist, from receiving unemployment benefits violated the free-exercise clause

test for incitement of illegal activity:

the government may punish speech if (1) there is express advocacy of a law violation (2) directed immediate/imminent law violation (3) immediate law violation is likely to occur

FCC v. League of Women Voters (1984)

the U.S. Supreme Court struck down a statute that forbade public broadcasting stations from telecasting editorial opinions. o public broadcasting act of 1967 forbids any noncommercial educational station that receives a grant to "engage in editorializing." § No way to segregate editorializing - forced to give up right all together. § Content-based restriction, must survive strict scrutiny but court held that the editorializing did not protect public broadcasting enough to justify broad suppression § Also, overbroad - prohibited topics not involving fed, state, or local gov't

Defamation

the action of damaging the good reputation of someone; slander or libel. Category of speech that is less protected, despite being content-based, since less protected government can impose liability for defmation, however 1A places restrictions on government's ability to impose liability. Rules of defamation depend on identity of plaintiff and nature of subject matter

United States v. Williams

the court ruled that offers to provide or receive child pornography are categorically excluded from the first amendment -- can be criminalized/subject to liability.

The Lemon Test

§ (1) the statute must have a secular legislative purpose § (2) the principal/primary effect must be one that neither advances nor inhibits religion § (3) the statute must not foster an excessive government entanglement with religion · Look to: o Character and purpose of institutions benefitted o Nature of the aid that State provided o Resulting relationship between government and the religious authority · But see Agostini v. Felton (1997) (folding prong 3 into prong 2)

Fulton v. City of Philadelphia (2021):

§ CCS refused to work with same-sex couples as foster parents; HHS ceased referring foster children to CCS; 3rd Cir says neutral; but Court reverses in favor of CCS. · Court holds case falls outside of Smith bc burden religious exercise through policies that do not meet the requirement of being generally applicable. o Focuses on the individualized exemptions § Cites Smith; Sherbert v. Verner -- "good cause" standard no generally applicable bc allowed govt to grant exemptions based on circumstances underlying each application. § City provides exemption "unless exception granted by Commis in sole discretion" but refuses to apply to religions.

American Legion v. American Humanist Association (2019)

§ Court held the cross monument did not violate the Establishment Clause. · Court rejects Lemon test for longstanding monuments, holds that passage of time gives rise to a strong presumption of constitutionality. o Court inconsistently applies Lemon test. o (1) Monuments established long ago - hard 2 identify original purpose o (2) Purposes can change overtime § Cross - healthcare related logos (BlueCross BlueShield; American Red Cross) o (3) Message can change over time - familiarity can become a reason for preservation § Statute of Liberty once thought to be symbol of relationship with France; now symbol of inclusiveness o (4) When time imbues religious and historic significance, removing it may not appear neutral to a local community - creates divisiveness. § See Breyer's concurrence in Van Orden v. Perry (2005) · Although a prominent Christian symbol, its use in the memorial had a special significance commemorating the War - cross became a symbol of sacrifice.

Church of the Lukumi Babalu Aye v. Hialeah (1993):

§ Court struck down law that prohibited ritual sacrifice of animals bc not a neutral law of general applicability. On its face, neutral, but law's obvious objective was to keep the religious group out of the city, by prohibiting religious sacrifice. · If true goal to prohibit religious sacrifice - could have regulated all situations involving animal remains (hunter disposal of remains), (underinclusive) o Court looked at leg history to assess govt's neutrality when passing o Free Exercise Clause bars even "subtle departures from neutrality"

Third prong of Lemon Test

§ Rule: law must not foster an excessive government entanglement with religion. · Entanglement occurs if law requires comprehensive state surveillance we folded entanglement inquiry into the primary effect inquiry." o Character and purpose of institutions benefitted o Nature of the aid that State provided o Resulting relationship between government and the religious authority

Board of Education of Kiryas Joel Village School District v. Grumet (1994)

§ State of New York creates a special school district for Hasidic Jews to provide special education without its children having to attend school with those outside the faith. § Not neutral - impermissible preference for one religion over others [endorsement] § No free exercise problem; establishment problem because establishing religious school district.

Lane v. Franks (2014)

§ court held Garcetti does not apply to a situation where a government employee testifies truthfully pursuant to a subpoena. · Lane conducted audit and found State Rep not reporting for work, testified before grand jury; grand jury testimony "quintessential example of citizen speech"

§ Masterpiece Cakeshop v Colorado Civil Rights Commission (2018)

· Court concludes treatment of Phillips (baker of cake) was not neutral; and therefore, commission's decision that Phillips violated the public accommodation law was unconstitutional narrow holding. · Commission discussed how people must "leave religious beliefs aside if they want to do business in the state" and accuses religion of being used to hurt others shows that even in the adjudicatory/administrative setting, for Smith to apply, must be neutral, if not strict scrutiny. · Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature. · Court suggests that cake making is expressive activity