First Amendment Law

O'brien Test for Incident Regulation of Speech

For the regulation to be upheld a. the law must further an important governmental interest b. the important interest must be unrelated to the suppression of a message c. the law must be narrowly drawn to not restrict more speech than necessary to serve the government interest d. the speaker must be left with ample alternative means to effectively communicate the message

The Lemon Test

Government Action violates the Establishment Clause unless it: 1. Has a significant secular purpose 2. Does not have the primary effect of advancing or inhibiting religion, AND 3. Does not foster excessive entanglement between government and religion

Clear and Present Danger Test

Government may restrict free speech only when the speech creates a clear and present danger to the public order. Expression may be restricted if the evidence exists that such expression would cause a dangerous condition, actual or imminent, that Congress has the power to prevent.

Strict Scrutiny

Government must prove that the law serves a compelling purpose and that the law is narrowly tailored or the least restrictive way to achieve that purpose.

The Balancing Approach to first amendment analysis

rejects the absolutionist approach as impracticable and the categorical approach as artificial. They believe that in every case courts should weigh the individuals interest in free expression against the governments interest in restricting the speech in question. They hold that the presumption should be in favor of free expression and it can only be overcome with a showing of an especially strong governmental interest.

Rust v. Sullivan

involved abortion-related speech restrictions attached to federal funding for providers of family-planning services. In 1988, Health and Human Services announced a new, tough interpretation of federal funding legislation that would deny funding to any recipient who in the funded program counseled clients about abortions, referred clients to an abortion services provider, or even answered any client questions about abortion (except to say: "Abortion is not an appropriate method of family planning.") Splitting 5 to 4, the Court upheld the abortion-related restrictions, suggesting that the government is free to use its own dollars to encourage only certain views it approves of, so long as it doesn't prevent the disfavored views from being expressed. The dissenters argued that the HHS rule was an unconstitutional viewpoint-based condition.

Rational Basis

person objecting to the law must prove that the law does not have a rational relationship to a legitimate government purpose

Rankin v. McPherson

5 to 4 majority concluded that the statement "If they go for him again, I hope they get him," made immediately following news of Hinckley's attempt to assassinate President Reagan, was speech on a matter of public concern. The Court ordered the deputy constable's reinstatement, noting that the remark--made only to a fellow employee--was not likely to affect either her ability to perform her largely clerical duties in the constable's office or public confidence in the office.

What are the three possible approaches to First Amendment analysis?

Absolutionist, Categorical, Balancing

Christian Legal Society v. Martinez

Associational rights are viewed differently by the Court when an organization is not being denied outright the right to determine its own membership, but is only being denied public benefits because of its exclusionary policy. In Christian Legal Society v Martinez (2010), the Court, on a 5 to 4 vote, upheld the decision of a public law school to deny funding and use of certain law school facilities to an organization that refused to accept as members students who "engaged in unrepentant homosexual conduct."

Indecent Speech

Cohen, "One mans vulgarity is another man's lyric First Amendment protects not just the intellectual content of speech, but the emotive content as well The FCC and free speech. Although indecent speech is protected by the First Amendment, speech in broadcast media has been restricted because of its omnipresence and its accessibility to children.

Free Exercise Clause

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise therof.

Lorillard Tobacco V. Reilly

Court invalidated a series of Massachusetts regulations restricting the advertising of tobacco products. Writing for the Court, Justice O' Connor noted that several members of the Court had previously argued for applying strict scrutiny to laws restricting commercial speech, but said that since the state could not meet even the intermediate standard of scrutiny, there was "no need to break new ground."

Edwards v. Aguillard

Court used the same rationale from Epperson in 1987 in Edwards vs Aguillard to strike down a Louisiana law that required biology teachers who taught the theory of evolution to also discuss evidence supporting the theory called "creation science."

What are the values served by Protecting Free Speech?

Discovery of truth, facilitating participation by citizens in political decision making, creating a more adaptable and stable community, assuring individual self fulfillment, checking abuse of governmental power, promoting tolerance, creating a more robust and interesting community

Ward v. Rock Against Racism

Established a test for content neutral Time, Place, and Manner restrictions, e.g., as might pertain to a parade permit. i. Many content-neutral justifications for restricting speech. For example, the ban on soundtrucks at night can be upheld because it helps people sleep

Civil Law Liability and First Amendment

First amendment law can apply to tort law, particularly false statements. But for the court to find defamation they must show that the false statement has been published with either knowledge of its falsity, or with reckless disregard as to its truth or falsity. Actual Malice standard.

Centrality and Sincerity of the Burdened Religious Belief

For a free exercise claim to have any chance of success, two things must first be established. First, it must be shown that the religious belief allegedly burdened by the government is central to one's religious beliefs. (This issue was debated by justices in Frank v Alaska, above, where the majority concluded that having fresh moose meat for a funeral potlatch was central to Athabascan religious practice, while a dissenting justice disagreed.) If the conduct in question relates to a belief that is not central to one's religion, a governmental restriction on that conduct would not place a substantial burden on religious exercise. Second, it must be shown that the religious belief that is allegedly burdened is sincerely held. Once a good faith belief is established, the court's inquiry should end: there should be no attempt to determine whether the belief is true. (Ballard v United States). Note that in Ballard, Justice Jackson in dissent would not even have allowed judicial inquiry into whether the belief was sincerely held: "I would be done with this business of judicially examining other people's faiths."

Intermediate Scrutiny

Government must prove that the law serves an important purpose and there is a substantial relationship between the law and the purpose

Lynch v. Donnelly

Lemon test concluded that a creche did not violate the Establishment clause because it also had santa claus, reindeer, and elephants. The display was more of a celebration than an endorsement of religion.

NY v. Ferber

New York v Ferber underscores the strength of the state's interest in protecting minors from the harmful effects of pornography. Ferber holds that state's may proscribe sexual material involving minors, even if that material may not meet all of the prongs of the Miller test.

Fighting Words and Hate Speech

Not protected The Court's opinion in the case stated that there was a category of face-to-face epithets, or "fighting words," that was wholly outside of the protection of the First Amendment: those words "which by their very utterance inflict injury" and which "are no essential part of any exposition of ideas."

The Central Hudson Test for Restrictions on Commercial Speech

Regulations affecting commercial speech do not violate the first amendment if: 1. The regulated speech proposes an economic transaction involving an illegal activity 2. The regulated speech is misleading 3. The regulation substantially advances an important government interest, and the regulation is narrowly tailored to serve the government's interest.

Indecent Words

Sh**, f***, p*ss, C**T, C***S*****, M****F*cker, tiiiiiits

Smith v. CA

Smith v California concerns what must be shown to convict a bookseller in an obscenity case. The Court concludes that the First Amendment requires the government to prove more than that the bookstore contains constitutionally proscribable obscenity. The government must also prove that the bookseller knew that he was selling obscene materials so as not to have a chilling effect on speech that might be protected.

Lee v. Weisman

considered school prayer in the special context of a graduation ceremony for a middle school. The principal of the school had invited a clergyman to offer an invocation and benediction at the ceremony, and that decision was challenged by Weisman, who contended that the practice violated Establishment Clause precedents. Again voting 5 to 4, with Justice Kennedy providing the key vote, the Court found the invocation and benediction to violate the First Amendment. Kennedy found an unacceptable degree of coercion, given the fact that the ceremony was an important milestone that students would be extremely reluctant to avoid because of religious scruples. The options of remaining seated during prayers or leaving right before the benediction did not seem realistic under the circumstances. Justice Scalia, in a passionate dissent, ridiculed Kennedy's opinion as a "psycho journey" and wrote that he would not find a problem with prayer at graduation ceremonies unless the state attached a penalty to non-participation.

Keyishian v. Board of Regents

i. Communist laws. Instructor refused to sign an oath saying he wasn't a communist. ii. Supreme Court declared unconstitutional a New York State law intended to prevent the employment of "subversives" in teaching and other public employee jobs. The ruling was one of the last of the "Communist cases" that occupied the Court in the 1950s and 1960s.

RAV v. City of St. Paul

i. Considered a challenge to a St. Paul ordinance punishing the placement of certain symbols that were "likely to arouse anger, alarm, or resentment on the basis of race, religion, or gender." Robert Victoria, a teenager, had been convicted of violating the ordinance after having been found to have burned a cross on the yard of a black family. The Court, in an an opinion by Justice Scalia, reversed R. A. V.'s conviction on the ground that the ordinance unconstitutionally criminalized some hurtful expression (specifically that aimed at racial and religious minorites) and not other hurtful expression (that aimed at other unprotected groups) based on the political preferences of legislators. Scalia makes clear that "fighting words" is not, as Chaplinsky had suggested, a category of speech that is wholly outside of First Amendment protection.

Gertz v. Welch

i. Considers three important questions: (1) whether the full protection of the "actual malice" standard should extend to comments about private persons, (2) if not, whether the Constitution might at least limit the sorts of damages a private individual might collect for statements on matters of public concern made without actual malice, and (3) if the actual malice standard is not extended to private individuals, how the line should be drawn between "public figures" and "private figures." The Supreme Court concluded that Elmer Gertz, the plaintiff in the defamation action and a leading Chicago civil rights attorney, was not a public figure for constitutional purposes. Moreover, the Court said, as a private person, Gertz need only show that a defamatory falsehood was made negligently, not that it was made with actual malice. Finally--in what turned out to be a major victory for the media--the Court ruled that in the absence of a showing of actual malice, private plaintiffs are limited by the First Amendment--at least with respect to comments about a matter of public concern-- to recovery only for actual damages, and not for punitive or presumed damages.

Sheppard v. Maxwell

i. Convicted twelve years earlier of killing his young wife Marilyn, Dr. Sam Sheppard wins a new trial after his attorney, F. Lee Bailey, succeeds in convincing the Supreme Court that the massive publicity surrounding his original trial constituted a violation of his right to a fair trial. (In his retrial, Sheppard was acquitted.) The record in Sheppard shows an out-of-control press first demanding Sheppard's arrest, then calling Sheppard "a liar," printing stories about his refusal to take a lie-detector test, and doctoring crime scene photos to suggest that the murder weapon was a surgical instrument. The Supreme Court concluded that the trial was conducted in a "Roman Holiday" atmosphere and suggested that trial courts should take "strong measures" to protect fair trial rights. The Court said that there was no need to decide "what sanctions might be available against the press"--leading some judges, perhaps, to think sanctions might be appropriate in certain cases.

Christian Legal Society v. Martinez

i. Court considered a decision of the Hastings Law School (a public law school in California) to deny the benefits that come from being a registered student organization (including funding, use of student bulletin boards, etc) to the school's chapter of the Christian Legal Society because it denied membership to students who "engage in unrepentant homosexual conduct" or do not share the religious convictions described in the organization's Statement of Faith. By a 5 to 4 vote, the Court held that Hastings could, consistent with the First Amendment, enforce a policy that registered student organizations admit "all comers." Such a policy, the Court decided, violates neither principles of limited-forum analysis or the associational rights of the CLS.

City of Laude v. Gilleo

i. Court unanimously strikes down the ban on private yard signs, concluding that the ordinance fails to provide ample alternative means of conveying messages.

Bethel School District v. Fraser

i. Court upheld the right of a school district to punish a high school student for delivering a sexually suggestive nominating speech in a school assembly. The Court noted that the speech might reasonably be seen as interfering with the school's attempt to teach civility, and that the speech might have been caused discomfort to many of the 14 and 15-year-old students who constituted a "captive audience." ii. Student implied he had a strong firm ******

Debs v. US

i. Debs gave a speech promoting socialism and his conviction was upheld because the speech had a bad tendency to create a clear and present danger.

Zacchinni v. Scripps-Howard

i. Hugo Zacchini ("The Human Cannonball") was the plaintiff in Zacchini v Scripps-Howard. Zacchini sued Scripps-Howard, the owner of an Ohio television station, when--over Zacchini's objections--it filmed, and then broadcast on the evening news, Zacchini's act of being shot out of a cannon at a county fair. The Supreme Court sided with Hugo, ruling 5 to 4 that the First Amendment is not offended when liability (using a "right-of-publicity" theory) is imposed for broadcasting an entertainer's "entire act."

Feiner v. NY

i. In Feiner (1951), the Court upheld the conviction of a speaker who refused three requests from a police officer to stop speaking after members of a street corner audience threatened to attack the speaker. Dissenting justices saw the decision as an outrage, suggesting that the police had an obligation to protect the speaker and arrest those who might try to assault him

Watchtower Bible v. Stratton

i. In Watchtower, the Court struck down on an 8 to 1 vote the ordinance of an Ohio town that required all door-to-door advocates of causes, as well as commercial solicitors, to obtain a permit from the mayor's office. The town had attempted to justifiy its ordinance as a fraud-prevention and privacy-protection measure, but Justice Stevens wrote for the Court that the ordinance was "offensive not only to the values protected by the First Amendment, but to the very notion of a free society." The Court found the alleged interests in protecting residential privacy and preventing fraud insufficient to justify such a sweeping restriction. The Court noted that the ordinance reached religious proselyting and anonymous political speech (where fraud is not an issue) and that residential privacy could be adequately protected by another Stratton law that allowed homeowners to place themselves on a "Do Not Solicit" law and then post "no solicitation" signs on their property. The Stratton case strongly suggests that the Court would find a carefully drafted "Do Not Call" law applying to telemarketers to be constitutional

Campaign Finance Regulation

"Money talks:" Does that mean cash contributions are "speech" within the meaning of the First Amendment? In Buckley v Valeo (1976), the Supreme Court answered, "Yes"--at least for cash contributions to political campaigns. The Court concluded that money is an essential ingredient of a modern political campaign, being required to rent halls, pay for candidate travel, and--most importantly--buy advertising time and space. As such, cash contributions are too closely tied to expressive activities to be considered merely "conduct."

Miller v. CA

"modern" test for obscenity. After years in which no Supreme Court opinion could command majority support, five members of the Court in Miller set out a several-part test for judging obscenity statutes: (1) the proscribed material must depict or describe sexual conduct in a patently offensive way, (2) the conduct must be specifically described in the law, and (3) the work must, taken as a whole, lack serious value, and must appeal to a prurient interest in sex. What is patently offensive is to be determined by applying community values, but any jury decision in these cases is subject to independent constitutional review, as the Court's decision in Jenkins v Georgia makes clear

Pleasant Grove v. Summum

According to the Court in Pleasant Grove v Summum (2009), a case which challenged a Utah town's decision to reject a monument promoting the Seven Aphorisms of the Summum religion after accepting various other privately donated monuments for its park, once speech is identified as government speech there is no First Amendment analysis required. The First Amendment only applies to the regulation of private speech. Questions become much more complicated, however, when the government is using its own dollars to promote or disfavor private speech.

Wallace v. Jaffree

Alabama had for some time authorized schools to dedicate part of the school day for "a period of silence for meditation." The period-of-silence law almost certainly did not offend the First Amendment because it did not endorse religious reflection over other types of reflection, be they philosophical or personal. Not satisfied, it seems, with how students might be using their period of silence, Alabama legislators amended the statute to provide for a "period of silence for meditation or silent prayer." The sponsor of the legislation frankly stated that the purpose of his amendment was to get more kids to use their time to recite prayers. In Wallace, the Court, voting 5 to 4, held that the amendment to the Alabama moment-of-silence law lacked a secular purpose and struck it down.

Frank v. Alaska

Alaska Supreme Court held that the state could not enforce its hunting laws against Athabascans who were religiously-motivated to hunt moose out of season--moose being a key ingredient in a religiously proper funeral potlatch.

Time, Place, and Manner

Although content-based restrictions on speech in the public forum are subject to strict judicial scrutiny (usually a requirement that the restriction serve a compelling state interest and that there is no way of serving the interest that is less speech-restrictive), content-neutral restrictions on speech are subject to only intermediate scrutiny. In general, the government must show that the law serves an important objective (not involving the suppression of speech), that the law is narrowly tailored, and that there remain ample alternative means of communication.

US v. Williams

Court considered Congress's latest effort to attack the problem of child pornography on the Web. The PROTECT Act of 2003 made it a crime to knowingly advertise or promote visual depictions of minors engaging in sexually explicit activity. Writing for the Court, Justice Scalia found the law to be a constitutionally permissible effort to criminalize the proposing of an illegal transaction. Scalia reasoned that because child pornography is not protected speech, speech that proposes to sell or provide such material is no more protected by the First Amendment than would be speech that proposed to sell or provide illegal drugs. Justices Souter and Ginsburg dissenting, finding the law substantially overbroad.

Limited Public Forum

A forum set aside by government for expressive activities. Like a traditional public forum, content-based speech restrictions in a designated public forum are subject to strict scrutiny. The government may, of course, impose time, place, or manner regulations consistent with the test laid out in cases such as Ward v Rock Against Racism. Main difference between traditional v. limited public is that the government, in dedicating the forum for expressive purposes, may adopt reasonable limitations on who may use the forum.

Ashcroft v. Free Speech Coalition

Court considered a challenge to the Child Pornography Prevention Act of 1996 which made it illegal, under certain circumstances, to distribute or possess sexually explicit computer- generated images of children, or of persons over eighteen who looked under eighteen. The Court, noting the law in question did not serve the goal of preventing direct sexual exploitation of children, found it to be unconstitutionally overbroad. Writing for the Court, Justice Kennedy suggested that the law might have been enforced against such movies as Oscar-winning American Beauty or Romeo and Juliet.

Burwell v. Hobby Lobby

Court considered a claim by Hobby Lobby, a closely-held corporation, that a provision of the 2010 Affordable Care Act requiring companies with over 50 employees to provide certain forms of contraceptive coverage violated the First Amendment Free Exercise Clause and Religious Freedom Restoration Act. Owners of the company argued that requiring them to provide employees with a contraceptive that acted after the point of conception constituted a substantial burden on their free exercise of religion. Writing for a 5 to 4 majority in Burwell v Hobby Lobby, Justice Alito found the requirement to be a violation of RFRA, but did not find it necessary to address the First Amendment issue.

Mt. Healthy District v. Doyle

Doyle lost his job after calling a radio station disc jockey to complain about a memo sent to school teachers concerning a new teacher dress code. Because Doyle had given the district other reasons for terminating him (such as giving "the finger" to two students), the Court remanded the case for a determination as to whether Doyle would have been fired even if he hadn't engaged in the protected expressive activity of calling the radio station. If he would have been fired anyway, the termination could stand, the Court said.

Engel v. Vitale

Court ruled that New York's practice of beginning school days with a prayer drafted by school officials violated the Establishment Clause. This is the case, the Court said, whether or not students are given the option of not participating in the prayer. Following Engel, the Court has faced a whole series of prayer-related cases in the public school context raising issues such a prayer in special circumstances (e.g., graduation ceremonies), periods for silent meditation or silent prayer, and student-initiated prayer. In general, the Court has demonstrated a willingness to strike down any practices that might be likely to be perceived either as coercive or as a state endorsement of religion.

Connick v. Myers

Court says in Connick, if speech does not relate to a matter of public concern, "absent the most unusual circumstances" the discharge will not present a First Amendment question for court review. In Connick, a 5 to 4 majority of the court concluded that speech about the internal operation of a district attorney's office is generally not of "public concern." Moreover, the Court held, distribution of a questionaire by the discharged employee raising questions about management of the office could be reasonably seen as sufficiently damaging to close working relationships to justify discharge

Virginia State Bd. of Pharmacy v. Virginia Citizens consumer Council

Court struck down a law prohibiting the advertising of prices for prescription drugs. The Court noted that price information was very important to consumers, and suggested that the First Amendment protects the "right to receive information" as well as the right to speak. Given the free speech interests at stake, the Court said, the state regulation must support a substantial interest.

Epperson v. ARK

Bans on evolution were struck down because the court found that such bans contravene the establishment clause because the primary purpose was religious.

Branti v. Finkel

Branti (1980) is one of a series of cases in which the Court has prevented discharges based on the political beliefs of employees. Branti was one of six assistant public defenders fired from a county defender's office simply because they were Republicans and the newly appointed County Defender was a Democrat. The Court noted that sometimes may be permissible to use political affiliation as a basis for hiring and discharge decisions (for example, no one would doubt the right of the President to hire only Cabinet officers or speechwriters that share his or her political affiliation), but said that assistant county defenders did not hold the type of decision making power that made political affiliation an appropriate consideration.

Texas v. Johnson

Brennan i. Johnson was arrested for burning a flag as a political protest. ii. Texas v. Johnson, 491 U.S. 397 (1989), was a decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. iii. Burning the flag was a form of expressive conduct

Buckley v. Valeo

Buckley considered the constitutionality of a federal campaign financing law that imposed numerous restrictions on both candidate's own spending and the contributions of individuals to campaigns. The challenge to the act was brought by unlikely political bedfellows, including conservative Senator James Buckley and liberal anti-war candidate Eugene McCarthy. The Court in Buckley upheld some of the provisions of the act, while striking down others. In particular, the Court invalidated limits placed on the personal expenditures of candidates for federal office, thus paving the way for runs by wealthy candidates such as Ross Perot in 1992. The Court also struck down a $1000 limit on individual spending on behalf of a campaign, concluding that the restriction was not closely tailored to serving the government's asserted interest in preventing corruption. On the other hand, the Court upheld limits on individual contributions to campaigns and the use of federal matching funds for candidates who agree to abide by federal spending limits. The Court also upheld donor disclosure requirements, except as they apply to controversial third parties where disclosure might prove embarrassing to donors.

City of Erie v. Pap's AM

Court concluded that Erie, Pennsylvania's ban on public nudity could be enforced against erotic dancers at a place known as "Kandyland." The law was not, the Court said, aimed a suppressing the erotic message of dancers but rather was an attempt, as the city declared, to prevent the sort of "atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases and other deleterious effects." As such, it was subject to the O'Brien test, and not the CSI test used in cases of content-regulation. Concurring, Justices Scalia and Thomas scoffed at the notion that adding G-strings and pasties would substantially reduce the secondary effects, and would prefer instead that the Court have rested its decision on the right of a community to foster good morals.

Presbyterian Church v. Hull church

Can also be seen as a case of excessive entanglement, although at the time of the decision the Court was more inclined to see the state action as constituting a violation of the free exercise of religion. In Presbyterian Church, a unanimous Court concluded that it violated the First Amendment for Georgia to apply a "departure-from-doctrine" test to determine whether a national church or local church was entitled to ownership of church property after the local church severed ties to the national church because of a theological dispute. It was not appropriate, the Court said, for a jury or a reviewing court to try to determine which side in the dispute (involving such issues as ordination of women as ministers) strayed further from true Presbyterian teachings. The dispute had to instead be decided using neutral principles of property law.

Traditional Public Forum

Certain public places, like street and parks, have immemoriably been held in trust for the use of the public, and time out of mind, have been used for assembly, communicating thoughts between citizens and discussing public issues. Content-based speech restrictions are subject to strict scrutiny.

Citizens United v. FEC

Citizens United v Federal Election Commission involved a challenge to a corporately-funded documentary attacking the candidacy of Hillary Clinton. Voting 5 to 4, the Court ruled that the First Amendment prohibited the government from banning political spending by corporations (and, presumably, labor unions) in candidate elections. Writing for the Court, Justice Kennedy wrote "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." The decision overruled earlier Court decisions (Austin, and portions of McConnell) that suggested limitations on corporate speech in campaigns serve the compelling interest of in eliminating the distorting effects on a campaign of immense aggregations of wealth. The Court also rejected the argument that the law served the compelling goal of reducing political corruption. Justice Stevens, in dissent, called the majority decision "a rejection of the common sense of the American people." The Court affirmed F.E.C. rules requiring disclosure of the name of the sponsor of the political message.

Stanley v. Georgia

Court concludes that Georgia cannot, consistent with the First Amendment, criminalize the private possession of pornography--even if the sale and distribution of that same material would not be constitutionally protected. The Court found that an individual has "a right to satisfy emotional needs in the privacy of his own house." (In 1990, however, the Court--in a 6 to 3 decision--found that constitutional protection for private possession of pornography does not extend to pornography involving children.)

Free Speech Clause

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. If regulated activity is not speech, then it is not protected by the first amendment and there is no need to extend constitutional analysis.

Capitol Square Review Board v. Pinette

Considered whether a free standing cross, placed by the KKK in a public square across from the Ohio State Capitol building, would violate the Establishment Clause. Concluding that the space in question was a public forum (a space traditionally used for, or set aside for, expressive activity), the Court ruled that private placement of the cross would not constitute an endorsement of religion. Writing for four members of the Court, Justice Scalia insisted that the test was not whether a reasonable person might perceive the cross to be an endorsement of Christianity by Ohio. Scalia said the real issue is whether Ohio promoted religion, and promotion is not--he concluded-- to be found when a private organization is allowed to use a public forum for religious expression on the equal terms with other organizations.

McGowan v. Maryland

Considers the constitutionality of a state Sunday closing law, is such a case. Clearly, the decision to require closing of certain commercial establishments on Sunday (rather than, say, Tuesday) had something to do with the Biblical admonition to "Remember the Sabbath and keep it holy." But the Court found that the secular benefits of having a uniform day of rest, allowing the scheduling of community activities free from many work conflicts, predominated over any present day religious purposes or effects, and thus the Sunday closing law was constitutional.

Trinity Lutheran Church v. Comer

Court blew more life into the Free Exercise Clause by demonstrating how it can be a potent weapon for religious groups who are denied access to government programs and benefits that are generally open to secular applicants, but which exclude applicants based on religious affiliation. In Trinity Lutheran Church of Columbia v Comer (2017), the Court considered the case of a Lutheran Church that applied to the Missouri DNR for funding to resurface its gravel playground with a softer surface made from recycled tires. The funding would have been provided but for the fact that the applicant was a religious institution and Missouri's conclusion that providing such funding would violate its own strict constitutional provision separating church and state. Writing for a 7 to 2 majority, Chief Justice Roberts found that the rejection of the grant application was a violation of the Free Exercise Clause. Roberts wrote, "Our cases make clear that a condition that imposes a penalty on the free exercise of religion must be subjected to the most rigorous scrutiny." Locke v Davey, the Court concluded, was distinguishable.

AR Christian School Tuition Organization v. Winn

Court considered an Arizona law that extended tax credits of up to $1000 per couple for contributions to private school tuition organizations. The organizations used the contributions to provide scholarships to attend private schools, the vast majority of which were religious schools. Writing for a 5 to 4 majority, Justice Kennedy found that the plaintiffs, suing as taxpayers, lacked standing. Accepting that Flast v Cohen allowed taxpayers to challenge governmental appropriations that allegedly contravened the Establishment Clause (creating an exception to the general rule of "no taxpayer standing"), the Court distinguished tax credits from appropriations. Kennedy noted that a "dissenter whose tax dollars are 'extracted and spent' knows that he has in some small measure been made to contribute to an establishment in violation of conscience," whereas in the case of tax credits, a taxpayer's connection with the establishment depends on "economic speculation" and "political conjecture." Writing for four dissenters, Justice Kagan argued that appropriations and tax subsidies "are interchangeable" and that the Court's decision provided "a roadmap" for any government that wants to "insulate its government funding of religious activity from legal challenge."

Garcetti v. Ceballos

Court considered the First Amendment claim brought by a deputy district attorney in the Los Angeles DA's office who had been transferred and denied a promotion because of his statements to supervisors criticizing the credibility of statements made in an affidavit prepared by a deputy sheriff. The Court, 5 to 4, rejected the employee's claim, holding that the First Amendment does not protect public employees for "statements made pursuant to their official duties." According to Justice Kennedy, the critical fact in the case was that "his expressions were made pursuant to his duties as a calendar deputy. That consideration--the fact that Ceballos spoke as a prosecutor fulfilling his responsibility to advise his supervisor about how to proceed with a pending case--distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline.".

Branzburg v. Hayes

Court considered the case of a reporter who, in two newspaper stories about drug use, had reported his observations of persons smoking marijuana at a party and of two men turning marijuana into hashish. Called before a grand jury to testify concerning the identities of drug users and drug synthesizers, Branzburg refused, claiming that the First Amendment provided reporters with a privilege against testifying in such circumstances. The Court disagreed, rejecting the notion that the First Amendment offered any absolute privilege. Four members of the Court went so far as to write that the First Amendment offered the press no protection against testifying that would not be available to any member of the general public. In a critical concurring opinion, however, Justice Powell indicated that the First Amendment requires that government at least demonstrate that its demands have a real bearing to a subject under investigation and that there exists "a legitimate law enforcement need" for the information sought from a reporter

US v. American Library Association

Court considered the constitutionality of a federal law that conditioned the receipt of federal dollars designated for enhancing the Internet services of public libraries on those libraries installing filtering programs that blocks the access of all patrons to obscene "visual depictions." The American Library Ass'n challenged the regulation, arguing that the restriction would "overblock" and deny access to thousands of constitutionally protected Web pages. Voting 6 to 3, the Court upheld the federal law. The Court concluded that the law neither required public libraries to violate the Constitution nor imposed an unconstitutional condition on the receipt of federal assistance: it "did not distort the usual functioning of public libraries" (unlike Velazquez, where the usual functioning of private attorneys was found to be distorted by the funding condition). In concurring opinions, two justices (Kennedy and Breyer) indicated that in a case where a library lacked the ability to "unblock" a constitutionally protected site, the law might be vulnerable to an "as applied" First Amendment challenge.

Boys Scouts of America v. Dale

Court decided a closely-watched case involving New Jersey's decision that the Boy Scouts of America are a public accommodation that can be compelled to admit homosexuals. A 5-4 majority of the Court found unconstitutional New Jersey's decision prohibiting the Boy Scouts from terminating the membership of a gay scoutmaster. The Court held that the First Amendment protected the Boy Scouts, as an expressive organization promoting the view that homosexuality is an unacceptable lifestyle, from excluding scouts on that basis. The four dissenters questioned whether views with respect to homosexuality were at all central to the Scouts' expressive purposes.

Richmond Newspapers v. Virginia

Court found the First Amendment gave the press a right of access to courtrooms, absent a compelling government need (such as to protect a minor's privacy or national security). In a concurring opinion, Justice Stevens stressed the significance of the holding: "This is a watershed case. Until today the Court has accorded virtually absolute protection to the dissemination of information or ideas, but never before has it squarely held that the acquisition of newsworthy matter is entitled to any constitutional protection whatsoever."

County of Allegheny v. ACLU

Court found the creche did violate the clause using the lemon test because there were no secular symbols and it was only surrounded by poinsettas.

Sherbert v. Verner

Court had adopted a much more expansive view of the Free Exercise Clause, reading it to compel governmental accomodation of religiously-motivated conduct in the absence of a compelling state interest and the use of means that least burdened religious practices. Applying this strict scutiny to laws that significantly burdened religious exercise, the Court found unconstitutional South Carolina's law denying unemployment benefits to a Seventh Day Adventist who turned down a job opportunity that included Saturday work (Sherbert).

Saxbe v. Washington

Court upheld a federal prison policy that restricted press interviews with inmates in medium and maximum security prisons. The press argued that only by allowing face-to-face interviews with specified inmates could the press adequately fulfill its newsgathering role under the First Amendment. The Court, however, suggested that the press had no constitutional right of access greater than that afforded the general public. At the same, the Court noted that the policy allowed interviews with randomly selected inmates, as well as brief interviews with inmates met on tours, thus leaving some doubt as to whether a more restrictive policy would have been upheld. Four dissenters found the government's reasons for restricting interviews insufficient to meet the "narrow tailoring" and "important state interest" tests that they would have employed.

Santa Fe Independent School District v. Doe

Court has demonstrated a willingness to strike down any practices that might be likely to be perceived either as coercive or as a state endorsement of religion. That trend continued with the Court's Santa Fe v Doe decision in 2000, which considered the policy of a Texas school district that allowed students to elect students to speak briefly over the PA system before high school football games. Traditionally, the speeches were religious in character--the policy stated that the speeches should solemnize the event and be nonsectarian in nature. The Court found the Santa Fe school policy to be a violation of the Establishment Clause. The Court reasoned that the speeches were at a school-sponsored event, using school facilities, and would be taken by most observers as a school endorsement of the student prayers that were likely to be delivered. The election process ensured, the Court thought, that the religious messages would reflect the religious views of the majority of Students, who in the case were generally Fundamentalist Christians. The three dissenters argued that the school policy was neutral on its face and not a constitutional violation. Nothing in the school policy, the dissenters said, even required that the message be religious in nature.

Agency for International Development v. Alliance for Open Society

Court invalidated a provision in a federal law that required that all nongovernmental organizations receiving federal aid to assist in the worldwide fight against HIV/AIDS adopt a policy explicitly opposing prostitution and sex trafficking. Alliance for Open Society International and other US groups engaged in fighting HIV/AIDS wanted to maintain their policies of neutrality on the issue of prostitution because they feared an anti-prostitution policy would alienate certain host governments and diminish the effectiveness of their efforts in fighting AIDS. Voting 6 to 2, the Court concluded that mandating an anti-prostitution policy as a condition of receiving funds violated the First Amendment because other provisions in the federal law already prohibit any funds from being used to promote or advocate prostitution or sex trafficking, ensuring that the funds will not be used in a way that undermines the federal program. In dissent, Justices Scalia and Thomas argue that the challenged provision serves a legitimate government interest in that ensures that the funds provided to organizations will not free up other resources of the organizations that could then be used to promote prostitution and undermine the program's goals.

Masterpiece Cakeshop v. Colorado

Court opted for a narrow 7 to 2 decision in which the Court's conservatives were joined by Justice Kagan and Justice Breyer. The case involved the refusal of a cakeshop's owner to create a cake for a celebration of the wedding of two gay men. The men had been lawfully wed in Massachusetts at a time Colorado did not allow same-sex marriages. The owner of the cakeshop said he would sell the couple brownies or cookies, but would not create a cake for them because of his sincere religious belief that God intended marriages to be only between a man and a woman. Rather than answering the larger question of whether a business owner can be compelled by the state to use his or her artistry to create a product or service for an event he or she finds religiously objectionable, the Court focused on the fact that a couple of members of the Colorado Civil Rights Commission, which found the baker's refusal to violate Colorado's anti-discrimination law, to have made statements demonstrating a hostility to the baker's Fundamentalist beliefs. Thus, the Court concluded, they had "targeted" religion in this particular case--in violation of the Free Exercise Clause.

Janus v. American Federation of State, County, and Municipal Employees

Court overrule a precedent case from 1977 that held that public employee unions could require employees who chose not to join the union to make a financial contribution (less than the normal union dues) to cover the cost of the union representing the employee in collective bargaining. The fee was said to be justified as a measure designed to keep union peace and avoid the "free-rider" problem of employees getting the benefit of union negotiations without paying for any of the cost. Writing for the Court in Janus, Justice Alito said that forcing employees to subsidize speech (union positions regarding negotiation and what state fiscal policy with respect to employees should be) is a form of compelled speech. The Court held that neither of the main justifications for the fees were sufficiently compelling to support the policy. Unions worried that the effects of Janus will be very harmful to the union movement.

Roberts v. US Jaycees

Court recognized that the power to determine its own membership is central to the free speech rights of expressive organizations. (Imagine how the speech of the Jewish Anti-Defamation League might be affected if it could be forced to admit as members anti-Semites.) Nonetheless, the Court in Roberts upheld a Minnesota public accommodations law requiring the Jaycees to admit women as members, in contravention of that organization's rules. Justice Brennan, for the Court, found that Minnesota had a compelling interest in providing the women of Minnesota the economic benefits that came with membership in the Jaycees. Justice O'Connor, in a concurring opinion, found that the Jaycees were a commercial organization and therefore subject to state regulation of its membership. On the other hand, according to O'Connor, a predominately expressive association has an absolute right to determine its own membership.

Hazelwood School District v. Kuhlmeier

Court relied heavily on Bethel to uphold the right of school administrators to censor materials in a student-edited school paper that concerned sensitive subjects such as student pregnancy, or that could be considered an invasion of privacy

WV Bd of Education v. Barnette

Court reversed itself and ruled 6-3 that West Virginia's decision to expel students who refused to salute the flag violated the First Amendment. (The startlingly quick overruling of Gobitis came as the result of three justices--Douglas, Black, and Murphy-- switching their votes and two new justices, Robert Jackson and Wiley Rutledge, joining the Court.) Justice Jackson's opinion for the Court saw inconsistency in an interpretation of the First Amendment that "guards the individual's right to speak his own mind, but left it open to public authorities to compel him to utter what is not on his mind.

McCollum v. Board of Education

Court ruled 8 -1 in McCollum v Board of Education that the practice of inviting religious instructors into public schools to give optional religious instruction violates the Establishment Clause. Justice Black, writing for the Court, said that the practice was "unquestionably" a violation of the Establishment Clause, which created "a high and impregnable wall" between church and state. The McCollum decision was the first victory ever for a plaintiff challenging state religious practices under the Establishment Clause.

City of LA v. Alameda Books

Court upheld a law that prohibited the establishment of more than one adult business in the same building, again using a "secondary effects" rationale. Justice Kennedy, who provided the fifth vote to uphold the law, wrote a concurring opinion in which he conceded that the law was NOT content-neutral, but could be judged by a less exacting standard than normally applied to content regulations because it "was more in the nature of a typical land-use restriction and less in the nature of a law suppressing speech." Four dissenters proposed calling the law "content correlated" and found that the city lacked sufficient evidence to show that a concentration of two or more adult businesses in the same building would have the adverse effects suggested.

Everson v. Board of Education

Court upheld a state law that reimbursed parents for the cost of busing their children to parochial schools. (It was clear from the various opinions in Everson that if the state had reimbursed the parochial schools for the cost of providing the transportation, that it would have been found to violate the Establishment Clause.) Although in his majority opinion Justice Black wrote of the "wall of separation" that the Constitution maintains between church and state, Black viewed the aid in question of serving the state's secular interest in getting kids "safely and expeditiously" to schools. The case is noteworthy for its extensive discussion of the purposes of the Establishment Clause, and for the fact that all nine justices agree that the clause was intended to do far more than merely prohibit the establishment of a state religion.

Zurcher v. Stanford Daily

Court upheld the government's right to search a newsroom for evidence of the identities of persons engaged in criminal conduct. The case involved an effort by local police to find photographs that might reveal the identities of persons engaged in a violent demonstration that left nine police officers injured. The Court rejected the paper's argument that the First Amendment required authorities to seek to obtain information by a subpoena rather than a search with a warrant. The Court cautioned, however, Where the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with "scrupulous exactitude."

44 Liquormart v. Rhode Island

Decision invalidating a state law prohibiting price advertising of alcohol, is significant in several respects. First, the Court emphatically rejects the suggestion made in a case a decade earlier that states have greater freedom to restrict advertising related to "vices" than other types of economic activities. The Court also makes clear that the power to ban a product completely (in this case under the 21st Amendment) does not carry with it the "lesser power" to restrict advertising concerning that product. Finally, several justices in 44 Liquormart question whether the test for restrictions on non-misleading commercial speech should be the form of intermediate scrutiny suggested in Central Hudson-- indicating that they might favor something closer to the strict scrutiny applied to other content regulations of speech.

Defamation

Defamation is not protected by the First Amendment. When defamation occurs in speech it is referred to as slander and when in print it is called libel. While defamation does not count as free speech, defining what defamation is can get tricky. Defamation is essentially a lie that can harm a person's reputation. However, not all statements that can harm a person's reputation count as defamation. Basically, the statement has to be a deliberate misrepresentation of the facts to be defamatory. Spreading a lie that an individual is on a sex offender registry, for example, when you know that that individual is not on any such registry would count as defamation. Merely expressing a negative opinion about that same individual's character and temperament, however, would not count as defamation since such opinions are not being presented as facts.

Schneck v. US

Holmes: i. Socialist party convicted for distributing leaflets critical of the war effort. Court had to determine whether the "words create a clear and present danger that will bring about substantive evils congress has a right to prevent?" ii. Conviction was upheld. The holmes test appeared to only need to show that the leaflet had the bad tendency but no proof was demanded that the words actually persuaded anyone to evade the draft or even that the words would highly likely to have that effect.

Bethel School District v. Fraser

In Bethel, the Court upheld the right of Washington state high school administrators to discipline a student for delivering a campaign speech at a school assembly that was loaded with sexual innuendo. The Court expressed the view that administrators ought to have the discretion to punish student speech that violates school rules and has the tendency to interfere with legitimate educational and disciplinary objectives.

Morse v. Frederick

Joseph Frederick, a senior at Juneau, Alaska's Douglas High School, held up a 14-foot long banner at an Olympic torch relay in 2002 that read, "Bong Hits 4 Jesus." Even though Frederick was standing on a public sidewalk off the school grounds, high school principal Deborah Morse ordered the student suspended for 10 days for violating the school's policy against promoting illegal substances at an event sanctioned by the school. Frederick sued. After the Ninth Circuit Court of Appeals sided with Frederick on First Amendment grounds, former special prosecutor in the Clinton-Lewinsky case, Kenneth Starr, filed a petition for cert in the U. S. Supreme Court. In June 2007, the Court announced its decision in Frederick v Morse. Justice Roberts, writing for a five to four majority, found that schools have the right to discipline students who present messages that conflict with stated anti-drug policies, even where the evidence of disruption of school activities (a fact that seemed critical in Tinker) might be absent.

What is the Absolutionist Approach?

Most often associated with Justice Black, who held that the first amendment meant exactly what it says: that Congress shall make NO law abridging the freedom of speech. Under this approach, the only question is whether the action in conduct is truly "speech" (and therefore protected) or "conduct" (and therefore subject to reasonable governmental regulation). They recognized that words might be so closely connected with producing a specific action (such as entering into a contract with a hitman or yelling "Fire!" in a crowded theater) as to be unprotected.

Marsh v. Chambers

Nebraska's practice of beginning each day in its state legislature with a non-denominational prayer. In an opinion relying to an unusual degree on framer's intent, the Court upheld the practice, reasoning that the same First Congress that proposed the Bill of Rights also voted to hire a congressional chaplain and begin its legislative days with a prayer, and therefore could not have intended in the Establishment Clause to have prohibited legislative prayers. Given what the majority saw as clear framer's intent, the Court refused to apply the Lemon test usually used in Establishment Clause cases.

Papish v. Board of Curators

Papish considered the decision of the University of Missouri to expel a journalism student who distributed a controversial leaflet (including four-letter words and a cartoon showing the Statue of Liberty being raped) on campus. The Court held the expulsion violated Papish's First Amendment rights.

City of Renton v. Playtime Theaters

Renton, Washington, enacted a zoning ordinance that prohibited "adult motion picture theaters" from locating near residential areas, churches, parks, or any school. The Court found that the city law's "predominate" intent was not to suppress adult films, but to deal with "secondary effects." These undesirable "secondary effects" often associated with a concentration of adult-oriented businesses included prostitution, crime, lowered property values, etc. Since the law was "content-neutral" in the sense that it was not justified with reference to the content of the speech, the Court upheld the ordinance using something less than strict scrutiny. The test employed by the Court was that generally appicable to content-neutral time, place, and manner regulations. In dissent, Justice Brennan argued that the law's limitations are "based exclusively on the content of the films shown there" and thus the law should have had to meet the exacting standards applied to content-based regulations of speech.

Rumsfield v. Forum for Academic Rights

Supreme Court considered the claim of various law schools that the Solomon Amendment, which withheld federal funds for schools discriminating against military recruiters, violated their First Amendment rights. The schools argued, among other things, that the law compelled them to support speech (i.e., military recruiting on their premises that was inconsistent with their belief that employers should not discriminate against homosexuals) with which they disagreed. In a unanimous (8 to 0) decision, the Court rejected the schools' arguments. Justice Roberts noted that the law doesn't make the schools say anything (and in fact allows them to disassociate themselves from the military recruiters' message by organizing protests or boycotts) and regulates conduct more than it does speech.

City of Boerne v. Flores

Supreme Court ruled that Congress did not have unlimited power to enact legislation to expand First Amendment free exercise rights through its enforcement powers in section 5 of the Fourteenth Amendment, the amendment through which the First Amendment is applied to the states.

US v. Ballard

Supreme Court ruled that courts cannot examine the truth or falsity of religious beliefs. Guy Ballard, who believed that he was a divine messenger with the power to heal people afflicted with incurable illnesses. Ballard and other codefendants were charged under a mail fraud statute that required proving a knowing intent to defraud. Justice William O. Douglas asserted that the First Amendment does not allow courts to inquire into the truth or falsity of religious beliefs. Douglas also stressed how the constitution's framers—well aware of the "extreme views of religious groups" and the "violence of disagreement among them"— "envisaged the widest possible toleration of conflicting views."

Goldman v. Weinberger

Supreme Court ruled that the U.S. armed forces did not violate military personnel's First Amendment rights by prohibiting soldiers from wearing religious apparel.

Reynolds v. US

Supreme Court ruled unanimously that a federal law prohibiting polygamy did not violate the free exercise clause of the First Amendment. The Court's decision was among the first to hold that the free exercise of religion is not absolute. Although the Court agreed with Reynolds that the free exercise of religion underlay the founding of the United States, it also held that government officials have a right to regulate behavior as part of religious practices that are considered odious and violate basic notions of morality. If the federal government could not regulate certain religious actions, the Court concluded, religious doctrines would become the superior law of the land. Indeed, in oft-cited language, Chief Justice Morrison Waite wrote: "To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances."

Church of Lukumi Babalu Aye v. City of Hialeah

Supreme Court took a case which it concluded showed an attempt by government to specifically target an unpopular religious practice, and struck down the laws in question--all designed to deal with animal sacrifice practiced by a large but largely clantestine religion of mostly ex-Cubans. The Court unanimously concluded that the ordinances of Hialeah violated the Free Exercise Clause.

Holt v. Hobbs

Supreme Court unanimously ruled that Arkansas prison officials violated the religious liberty rights of a Muslim inmate under the Religious Land Use and Institutionalized Persons Act (RLUIPA) by refusing to allow him to grow a short beard.

Jensen v. Quaring

Supreme Court, while still using heightened scutiny, began to take a more skeptical view of Free Exercise claims. The close division of the Court on these claims was revealed in its 1985 affirmance (by an equally divided Court, Justice Powell not participating) of an Eighth Circuit decision enjoining Nebraska from enforcing a state law requiring photo identification on driver's licenses against a Nebraska motorist who believed that such pictures violated the Second Commandment's warning against worshipping graven images (Jensen v Quaring).

Presumption of unconstitutionality

Supreme court has said that injunctions preventing the exercise of speech should be viewed very skeptically—they carry "a presumption of unconstitutionality"

Walker v. Texas Division, Sons of Confederate Veterans

The Court extended the government speech doctrine to include the specialty license plate program adopted by Texas and other states. The Texas program allowed private groups to propose designs for specialty license plates and, if a state board found the proposed plate unobjectionable, printed and distributed the plates for a charge to the sponsoring organization. The application of the Sons of Confederate Veterans for a specialty plate was turned down on the grounds that the plate, depicting a Confederate flag, was likely to be viewed by many motorists as racially offensive. For a 5 to 4 majority, Justice Breyer concluded that the plates constituted government speech and that Texas was free to reject messages it choose not to communicate. Justice Breyer argued that holding otherwise would force the state to allow a "Support Al Qaeda" license plate if it approved a "Fight Terrorism" license plate.

US v. United Foods

The Court in United Foods struck down a law that required mushroom growers to financially support generic mushroom advertising. The Court concluded that the regulation was an unconstitutional form of compelled speech--enough if commercial speech is entitled to less than full First Amendment protection.

Van Orden v. Perry

The Court, on a 5 to 4 vote, held that the placement in front of the Texas State Capitol of a large stone monument engraved with the Ten Commandments did not constitute an "establishment of religion." The Court noted that the monument, placed among a number of other monuments that did not have religious messages, had a primarily secular purpose of reminding people of the role religion played in shaping our national history. The Court distinguished the Texas monument from a framed listing of the Ten Commandments in a county courthouse which the Court, on the same day and also by a 5 to 4 vote, said did constitute an establishment clause violation. Justice Breyer was the swing vote in the two cases.

Matal v. Tam

The Slants band. Justice Alito wrote that the Court need not decide the question of whether the standard of review should be strict scrutiny or the less demanding intermediate scrutiny applied to commercial speech, because the government failed to establish that it used "narrowly tailored means" to serve even a "substantial interest," much less a compelling one. The goverment argued that the government approval of a trademark turned the speech into "government speech," but the Court found little merit in that argument. The Court said Walker "likely marks the outer bounds of the government-speech doctrine" and could be distinguished on three grounds. First, the trademarks here (unlike the license plates) convey no state message. Second, unlike license plates, trademarks are not closely identified in the public mind with the State. And third, unlike license plates, trademarks are not manufactured or owned by the state and serve no function as "a government ID."

City of Cincinnati v. Discovery Network

The case involved a challenge to a local ordinance that--for aesthetic reasons-- banned newsracks for primarily commercial publications such as shoppers and real estate guides. The Court, 6 to 3, invalidated the law, noting that newsracks containing commercial publications are no uglier than newsracks containing traditional newspapers. The Court viewed the ordinance as content-based, and applied something close to strict scrutiny.

NEA v. Finley

The case involved legislation enacted by Congress in response to NEA funding of controversial artworks by artists such as Mapplethorpe and Serrano. The legislation required the NEA to "ensure that (1) artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public." The Court avoided having to face the issue of whether the Act was unconstitutional viewpoint-based discrimination by reading it to only require "consideration" of the decency issue, but not to prevent it from funding any art that it chose, regardless of how indecent it was or how little respect it showed for America's "diverse beliefs and values." So interpreted, the Court found the Act not to offend the First Amendment.

Government Speech

The government is entitled to speak and express a point of view, at least when its speech doesn't violate specific constitutional provisions, such as the establishment clause. Government can restrict speech when it can be interpreted that the government supports or oppresses another form of speech. Government is not able to restrict the speech of an employee because the government cannot be able to do indirectly what it cant do directly. Courts must balance the governments interest in maintaining an efficient public workplace against the individual employee's interest in free expression.

Board of Education v. Pico

The issue presented in Pico was whether the government, when using its dollars to purchase library books--or remove books previously purchased--is free to make whatever content-based decisions it pleases. In Pico, several parents of students in a New York public school challenge the School Board's decision to remove nine controversial books from the school library. Voting 5 to 4, the Supreme Court supports the parents' contention that the case should be sent back for a trial to determine whether the removal decision was an impermissible attempt to favor a particular political or social viewpoint, or whether the removal was a permissible decision based on valid educational concerns such an age inappropriateness, pervasive vulgarity, etc.

Non-Public forum

The least stringent First Amendment test is reserved for the non-public forum, places that are neither traditionally used for expressive activities nor set aside or opened up in a substantial way for expressive activities--places such as jailhouses, public hospitals, military bases

Locke v. Davey

The program allowed students receiving a state scholarship to pursue any major, with one exception: a degree in devotional theology. When Joshua Davey, a scholarship recipient, was denied funding to pursue a theology program at Northwest, a private religious college, he sued, alleging that Washington had violated his Free Exercise right. Chief Justice Rehnquist, writing for a 7 to 2 majority, found that the Free Exercise Clause and Establishment Clause, read together, offered enough "play in the joints" to allow Washington to exclude a major in devotional theology, "a religious calling" as much as "an academic pursuit," from the list of endeavors it will support with taxpayer funds.

Secondary Effects Test

The secondary effects doctrine is an important principle in current First Amendment jurisprudence. A court applies the doctrine if it finds that the regulation of speech is aimed at the ''secondary effects'' of the speech and not at the content of the speech itself.

Doctrine of Vagueness

The vagueness doctrine, an aspect of the due process requirement of notice, holds that a law is facially invalid if persons of "common intelligence must necessarily guess as at its meaning and differ as to its application." The Court has indicated that a higher decree of clarity is demanded when the law in question threatens fundamental First Amendment Rights. As an overbreadth concern might be cured by a narrowing interpretation by a state court, so too a vagueness problem that appears on the face of the statute might be cured by means of a clarifying judicial interpretation (a "saving construction") by a state court.

What is the Categorical approach?

This approach would protect or not protect speech based on the label that is attached to the speech in question. Certain categories of speech are seen as falling entirely outside of First Amendment protection, whereas most other categories of speech are either highly protected or protected absolutely.

Doctrine of Substantial Overbreadth

To invalidate a law on its face the court must find the "overbreadth of the statute must not only be real but substantial as well, judged in relation to the statute's plainly legitimate sweep."

Jenkins v. GA

U. S. Supreme Court unanimously reversed a Georgia Supreme Court decision upholding an obscenity conviction for showing the film Carnal Knowledge, starring Jack Nicholson, Ann Margret, Art Garfunkel, and Candice Bergen.

Yoder v. Wisconsin

We don't want our children involved in worldly things. In the public schools they have physical education, science, television, things like that--temptations for a different world. I don't want to condemn anybody, but we want to hold to what we've got. We want to hold our religion. That's what we're working for."-- Jonas Yoder Court found unconstitutional (as applied to Amish families) Wisconsin's law mandating attendance in schools until age 17 (Yoder). The Court found strong evidence for "the claim that enforcement of the State's requirement of compulsory formal education after the eighth grade would gravely endanger if not destroy the free exercise of respondents' religious beliefs."

What is speech?

Written, oral, expressive conduct

Freedom (NOT) to Associate

a. Does the group engage in significant "expressive activities?" b. Does the law "affect in a significant way on the groups ability to express its viewpoints?" c. If the answer to (a) and (b) are yes, then the law must be narrowly tailored to serve a compelling state interest

Time, Place, and Manner Test (Public Forum)

a. Does the regulation serve a significant (come cases say important) governmental interest? b. Is the government interest served by the regulation unrelated to the suppression of a particular message? c. Is the regulation narrowly tailored to serve the government's interest? d. Does the regulation leave open ample alternative means for communicating messages?

Three Standards for Constitutionality

a. Strict Scrutiny b. Intermediate Scrutiny c. Rational Basis

Imminent Lawless Action and Incitement Test (Brandenburg v. Ohio)

a. The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action b. Speech was not directed to any person or group of persons" therefore "it cannot be said that [the speaker] was advocating, in the normal sense, any action." The Court also said that "since there was no evidence, or rational inference from the import of the language, that [the speaker's] words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a 'tendency to lead to violence. (Hess v. Indiana) c. it must be directed at a specific person or group and it must be a direct call to commit immediate lawless action. The time element is critical. The Court wrote that "advocacy of illegal action at some indefinite future time ... is not sufficient to permit the State to punish Hess' speech." In addition, there must be an expectation that the speech will in fact lead to lawless action.

Larkin v. Grendels Den

challenged delegation of state legislative authority to churches. Massachusetts law allowed churches (as well as schools) to veto liquor licenses for establishments within 500 feet of their building. Voting 8 to 1, the Court struck down the Massachusetts law. Suggesting that a flat ban on locating taverns within 500 feet of churches and schools might be constiutionally permissible, the Court saw danger in the possibility that churches might use their veto power to favor licenses for members of their own congregations. The delegation of legislative power to churches was found to violate two prongs of the Lemon test, including the third (least often cited) prong: it excessively entwined religious groups in the processes of government.

Pickering v. Board of Education

considered the case of a public school teacher fired for writing a letter to a newspaper critical of the local school board. In ordering the teacher reinstated, the Court found that a public employee's statements on a matter of public concern could not be the basis for discharge unless the statement contained knowing or reckless falsehoods, or the statements were of the sort to cause a substantial interference with the ability of the employee to continue to do his job.

Barnes v. Glen Theater

considers public nudity in an expressive context. Specifically, the Court considers whether Indiana can prosecute establishments that offer nude dancers as entertainment. Although a majority of the Court finds the case requires a First Amendment balancing, five members of the Court (applying the O'Brien test) conclude that the state's interest either in protecting morality (four members) or preventing the harmful secondary effects of nude entertainment establishments (Souter, concurring) permit Indiana to enforce its ban on public nudity against places such as the Glen Theater and the Kitty Kat Lounge. Souter's concurrence suggests, however, that enforcement of a public nudity statute against a public performance of a show such as Hair or Equus (that includes nudity) might violate the First Amendment.

Employment Division of Oregon v. Smith

five members of the Supreme Court concluded that a generally applicable criminal law raises no Free Exercise issues at all, ending what had long been the obligation of states to demonstrate at least an important state interest and narrow tailoring when they enforced laws that significantly burdened religious practice. The Court reinterpreted some Free Exercise cases such as Yoder as "hybrid" cases, raising both Free Exercise and substantive due process issues. Other cases such as Sherbert, Thomas, and Hobbie were placed in the special category of "unemployment compensation rules" --and left undisturbed. From now on, the five-member majority proclaimed, states will have to satisfy heightened scrutiny (except for hybrid cases and unemployment cases) only when a law specifically targets religious practice

Int'l Society for Krishna Consciousness v. Lee

i. At issue, was how to categorize the concourse area of airports, a place long used by members of the Krisna religion to distribute literature and solicit funds. Chief Justice Rehnquist and four other members of the Court took the limited view that only places that "have time out of mind" been used for expressive activities should be within the definition of the forum. His focus on traditional use, as well as the principal purpose of the public space (here, to facilitate transportation, not to be a spot for expressive activities) led him to conclude that the airport concourse was not part of the traditional public forum. Justice Kennedy and three other justices took issue with Rehnquist's forum analysis. They suggested instead a more objective "functional test." Noting that airports today look a lot like Main Streets of old, that airports are open to the public, and that the operation of airports is compatible with many kinds of expression, Kennedy argued that the airport concourses should be considered part of the most speech-protected public forum.

Cohen v. Cowles Media

i. Considered whether the First Amendment protects a media defendant who first promises a source confidentiality, then discloses the name of the source in a newsworthy story. The Court, 5 to 4, ruled that when liability is based on a generally applicable law (here, the common law as it relates to promissory estoppel) the First Amendment is not violated--even when the disclosure of the source was accurate and newsworthy.

Frisby v. Schultz

i. Frisby involved an ordinance banning picketing "before or about" any residence. The ordinance was challenged by pro-life demonstrators who had picketed in front of an abortion doctor's suburban home. Although Justice Stevens argued that streets in residential areas should be considered outside of the traditional public forum, the Court majority disagreed, saying it didn't want to get into "a particularized inquiry about the nature of the street." (Nonetheless, the Court upheld the ban on residential picketing, concluding that it served the important interest of protecting residential privacy.)

Hague v. CIO

i. Considers an ordinance which gave a city official the discretion to decide whether an organization seeking to hold a meeting in public spaces in the city would be allowed to do so. Whenever the official concluded that the meeting posed a risk of disturbances, he could reject the request. The Court ruled the law void on its face. The Court said, "Streets and parks...have immemoriably been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public issues. Such use has, from ancient times, been part of the privileges, immunities, and liberties of citizens." Some justices concluded that the law violated the Fourteenth Amendment's privileges and immunities clause, while Justice Stone argued that law violated the First Amendment, as incorporated.

Nebraska Press Association v. Stuart

i. Considers the constitutionality of a restrictive ("gag") order entered against the press preventing them from publishing information concerning the defendant's confession or "other facts strongly implicative of the accused." The Supreme Court, ruling unanimously, found the gag order to violate the First Amendment. The plurality opinion suggested that restrictive orders were only constitutional when justified by a compelling interest and when no less speech-restrictive alternatives were available to protect fair trials. Concurring, three justices would have held restrictive orders to be a form of prior restraints that were always unconstitutional, while two other justices expressed "grave doubts" that a restrictive order would ever pass constitutional muster.

Minnesota Voters Alliance v. Mansky

i. Court considered a Minnesota ban on the wearing of certain types of campaign-related apparel in the immediate vicinity of polling places. The ban reached everything from buttons and T-shirts promoting specific candidates to clothing items that were closely identified with campaign issues (e.g, an NRA T-shirt or one that included the text of the 2nd Amendment, Tea Party T-shirts, etc). In his opinion for the Court, Justice Roberts noted that a polling station is a government place established for a specific purpose (voting) and thus is a non-public forum. Therefore, the Minnesota law should be upheld if it is reasonably designed to further a significant state interest such as keeping peace among voters, providing a dignified atmosphere for voting, avoiding undue pressure on voters, etc. While the Court found these interests to be significant, it nonetheless struck down the Minnesota law, finding its application to be too arbitrary and giving too much discretion to election officials to decide what clothing was too political to be permitted.

Doe v. Reed

i. Court considered whether the signing a state referendum petition was speech under the first amendment and if it is, whether the state's disclosure of the name of petition signers violates the first amendment. ii. Court ruled signing was an expressive act implicating the first amendment but keeping it private was not, but that there were unique circumstances where a referendum might create a right to anonymity.

Cornelius v. NAACP Legal defense and Education Fund

i. Court divided over whether the forum in question should be considered non-public. In Cornelius, the forum was not a place, but a federal fund drive. Each of over 200 charities accepted for inclusion in the federal employee fund drive was invited to prepare a 30-word description of their charitable activities to encourage payroll donations that would be directed their way. Several excluded charities sued, arguing that the critieria used to exclude them from the fund drive violated the First Amendment. They also attempted to argue that the fund drive was a designated public forum. The Court, however rejected their argument, finding the drive to be a non-public forum. So long as the criteria used for determining eligibility for participation in the fund drive were reasonable and viewpoint neutral, the Court said, the First Amendment was not offended.

Erznoznik v. Jacksonville

i. Court struck down an ordinance as substantially overbroad that made it illegal for drive in theaters to show movies with any form of nudity if the film could be seen from any public road or place. The Court concluded that potential application of the ordinance to protected speech was large, even given the city's legitimate concern for protecting minors from sexual images.

Rosenberger v. Univ of Virginia

i. Demonstrates that a limited public forum need not be a physical place. In Rosenberger, the Court found that Virginia had created a limited public forum when it established a fund that would cover the cost of publications by eligible student groups. Once having created such a forum (which, of course, it was under no obligation to do), Virginia could not refuse funding to a student organization because of the overtly religious nature of its publication.

Hess v. Indiana

i. Demonstrator convicted for inciting violence after saying "we'll take the F----- street later" ii. Court concluded, taken in context, that the statement was not aimed at producing imminent lawless conduct but rather, at most, lawless conduct at some indefinite future time.

Free Exercise Clause Test

i. Does the government regulation condition the availability of state benefits upon an applicant's willingness to work under conditions forbidden by his religion? (if so, as Sherbert v. Verner and cases hold, the regulation must be narrowly tailed to support a compelling state interest) ii. Does the law apply to religiously motivated conduct which is also subject to a degree of protection under her provisions of the Constitution (such as the directing of the education of children by their parents might be protected by substantive due process)? (If so, in these hybrid cases such as Yoder v. Wisconsin, the law must be narrowly tailored to support a compelling state interest). iii. Does the law punish one because of his or her religious status (a law prohibiting members of the clergy from running for state electoral office)? (If so, the law violates the Free Exercise clause unless the state can show it is supported by a compelling state interest and is narrowly tailored) iv. Doe the law target religious conduct (a law prohibiting bowing down in front of golden calves) or as applied, has the government demonstrated hostility towards religion (have officials treated religious claims less favorably than non religious claims)? (If so, the law violates the Free Exercise clause unless the state can show the law is supported by a compelling state interest and is narrowly tailored). Master Cakeshop v. Colorado Civil Rights Commission v. For all other generally applicable, and neutrally applied, criminal laws that apply to religiously-motivated conduct, the law need only have a rational basis (Employment division v. smith)

The Lenny Bruce Trial

i. Lenny was a comedian known for his obscenity. ii. In a landmark decision on artistic freedom, the Illinois Supreme Court in People v. Bruce (Ill. 1964) ruled that Bruce's comedy routine was social commentary and not obscenity.

Greer v. Spock

i. Greer v Spock considers restrictions on handbill distribution and speechmaking at Fort Dix Army Base in New Jersey. Dr. Benjamin Spock and others challenged restrictions on speech, arguing that since the base welcomed civilian speakers and had entertained musical concerts and other expressive activities in the past, it should be considered a public forum. The Court, however, disagreed. Fort Dix was a non-public forum, so restrictions on speech need only be reasonable and viewpoint neutral in order to pass First Amendment muster. In Greer, the Court (over dissents) concluded that the challenged restrictions on speech served the army's goal of keeping its troops focused on military preparedness.

NYT v. Sullivan

i. Had the case been decided against the Times, it almost certainly would have produced a more timid press and led to decisions to restrict the circulation of previously national magazines and newspapers to states unlikely to spawn financially-threatening defamation suits. In New York Times v Sullivan a unanimous Supreme Court overturns an Alabama jury award of $500,000 entered against the Times for publication of a political advertisement that allegedly defamed Montgomery County Commissioner L. B. Sullivan. At least with respect to criticism of the official conduct of public officials it is necessary, the Court said, for a defamation plaintiff to establish that a false statement has been published with either knowledge of its falsity, or with reckless disregard as to its truth or falsity. This is the so-called "actual malice" standard. In subsequent decisions, the Court extended the actual malice standard to cases involving public figures as well as public officials, reasoning that public figures assume a greater risk that they will be the subject of public scrutiny and have the means available to respond effectively to what they consider false statements about them.

Rice v. Paladin Press

i. How to Hitmen Guide. A panel of the Fourth Circuit Court of Appeals ruled unanimously in Rice that Brandenburg did not bar a jury from imposing civil liability on Paladin for aiding and abetting murder. The Fourth Circuit read Brandenburg not to require imminence for the type of speech involved in Rice. In 1998, the Supreme Court denied cert in Rice.

Hustler v. Falwell

i. Hustler Magazine v Falwell considered the constitutionality of a Virginia decision upholding an award against Hustler for publishing a parody advertisement featuring Moral Majority leader, the Rev. Jerry Falwell. The ad in question, a parody of Campari Liquor's ads running at the time, suggested that Falwell's first sexual encounter was with his mother in an outhouse. Because no reasonable reader would believe the ad was factual, the award was based on an "intentional infliction of emotional distress" rather than defamation theory. The Supreme Court ruled unanimously that the jury award violated the First Amendment. The Court saw no principled standard for separating the Hustler ad from, for example, hard-hitting political cartoons.

Hustler v. Falwell

i. In 1988, the Supreme Court considered a jury award of damages against Hustler Magazine for publishing a malicious and untrue story about Rev. Jerry Falwell. The piece, labeled in small print "a parody," stated that Falwell's first sexual encounter was with his mother while drunk in an outhouse. A Virginia jury concluded that the Hustler piece constituted "intentional infliction of emotional distress" and awarded $150,000 to Falwell. The Supreme Court unanimously reversed the award, saying that it saw no principled basis for distinguishing the Hustler article from hard-hitting political cartoons and other speech clearly worthy of First Amendment protection. The Court distinguished the sort of character assassination practiced by Hustler from the face-to-face insult threatening an immediate breach of the peace that was in issue in Chaplinsky.

Types of Association that are Constitutionally Protected

i. Intimate association (protected as an aspect of the right of privacy) ii. Expressive association (protected as an aspect of the fist amendments protection of free speech)

US v. Kokinda

i. Involved a challenge to Post Office rules that prohibited solicitation on a sidewalk leading only from a parking lot to the post office. Four members of the Court argued that a sidewalk used only by people on their way to conduct post office business falls outside the traditional public forum. Five members of the Court--warning again of the dangers of "particularized inquiries"--thought that the sidewalk was within the traditional public forum. (The Court, however, left the solicitation ban in place when one of the five justices (Kennedy) accepting the broader view of what constitutes the public forum joined four colleagues with the narrower view in voting to uphold the ban.)

First Amendment Rights of Employees

i. Is the employee on the government payroll? (If not, the first amendment generally will not apply and the employee will be left to contractual or statutory remedies if any) ii. Has the employee been punished for his or her speech in a non-trivial way, such as being discharged, demoted, or transferred? (If not, the courts are unlikely to consider the First Amendment claim) iii. Did the expression for which the employee was punished relate to a matter of public concern? (If not, absent the most unusual circumstances, the courts will not consider the claim. Courts look at the whole record to determine whether the expression concerns a matter of interest to the general public. Whether expression relates to the matter of public concern does not depend upon how it is communicated—whether privately or publicly) iv. If the government says that it had additional reasons for punishing the employee that do not relate to the employee's expression on matters of public concern, would those additional reasons have resulted in the same punishment that the employee suffered? (unless the expression on a matter of public concern was a but for cause of the punishment—but for that expression the employee would not have been punished as he or she was—the employee loses on the first amendment claim. The government, however, has the burden of proof of showing that the other reasons would have produced the same punishment) v. If the employee's speech did relate to a matter of public concern, is the government's ability to efficiently provide services nonetheless adversely affected in a substantial way, or does the speech negatively reflect on the employees job performance (If so, the employee is out of luck) vi. Was the employee punished for speech that was pursuant to his or her duties as an employee? If so, the first amendment will generally afford no protection to the employee. vii. With respect to political affiliation of public employees, the Court asks whether party affiliation is an appropriate requirement for the position, taking into account such factors as whether the employee makes important policy decisions or is in a position to thwart the policy directives of superiors. If not, the First amendment prohibits consideration of political affiliation in either hiring, promotion, or discharge decisions.

City Council v. Taxpayers for vincent

i. Justified on aesthetic and other grounds, prohibiting placement of signs--one on public utility poles. By a 6 to 3 vote in Taxpayers for Vincent, the Court upholds ban on placing signs on public utility poles.

Brandenburg v. Ohio

i. KKK member's conviction is overturned for a speech he gave warning "that there might have to be some revengeance taken for continued suppression of the white, Caucasian race." ii. Court held, First Amendment allows punishment only of subversive advocacy calculated to produce "imminent lawless action" and which is likely to produce such action. Thus, Brandenburg brings together the incitement test urged by Hand and the "clear and present danger" test urged by Justices Holmes and Brandeis in their famous dissents in the 20s.

Abrams v. US

i. Movement toward more speech protective test. Abrams and others distribute leaflets attacking US decision to send troops to Europe. Conviction was upheld but: ii. Brandeis and Holmes dissented: Holmes argued that the "silly leaflet" of "poor and puny anonymities" posed no real danger to U. S. efforts, and thus failed to present a "clear and present danger" that the government might be justified in trying to suppress. Writing that "the best test of truth is competition in the market" of ideas, Holmes urged his brethren to take their responsibities to enforce the First Amendment more seriously.

Expression Hair v. Schneiderman

i. NY law prohibits a surcharge to consumers who use credit cards. As applied to merchants like hairstylists, the law restricts speech not just conduct

New York Times v. US

i. Nixon Administration went to court to stop publication of "the Pentagon Papers," a series of accounts based on a stolen, classified document entitled, "The History of U. S. Decision-Making on Viet Nam Policy." The Administration argued (among other things) that publication would threaten national security because other nations would be reluctant to deal with the U. S. if their dealings couldn't be kept secret. Acting with unusual haste (the three dissenting justices called the Court's action "irresponsibly feverish"), the Court in New York Times v United States concluded that a prior restraint on publication of excerpts from the Pentagon Papers violated the First Amendment. Two concurring justices indicated that they might have upheld the injunction if it were supported (as it was not) by a narrowly drawn congressional authorization.

O'brien v. US

i. O'brien burned his draft card, expressing his opposition to the war. ii. We think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Cohen v. CA

i. Paul Cohen was convicted and sentenced to 30 days in jail for wearing in a courthouse corridor a jacket which, on its back, said "F - - - THE DRAFT" The Court reversed Cohen's conviction, finding his speech protected by the First Amendment. Writing for the Court, Justice Harlan noted that "one man's vulgarity is another man's lyric" and suggested that the First Amendment protects not just the intellectual content of speech, but the emotive content as well.

Gitlow v. People of NY

i. Publication of left wing manifesto, urging general strikes. Gitlow's conviction was upheld but the court agreed that states are bound to comply with the first amendment because the protections have been incorporated through 14th amendment. ii. Holmes and Brandeis argue that abstract advocacy of the form appearing in the "Manifesto" is protected by the First Amendment, and that the government must show that speech presents a real and immediate danger in order to be punishable.

Tinker v. Des Moines School District

i. Students do not, the Court tells us in Tinker vs. Des Moines, "shed their constitutional rights when they enter the schoolhouse door." But it is also the case that school administrators have a far greater ability to restrict the speech of their students than the government has to restrict the speech of the general public. Student speech cases require a balancing of the legitimate educational objectives and need for school discipline of administrators against the First Amendment values served by extending speech rights of students. ii. In Tinker, perhaps the best known of the Court's student speech cases, the Court found that the First Amendment protected the right of high school students to wear black armbands in a public high school, as a form of protest against the Viet Nam War. The Court ruled that this symbolic speech--"closely akin to pure speech"--could only be prohibited by school administrators if they could show that it would cause a substantial disruption of the school's educational mission.

Near v. Minnesota

i. Supreme Court considered an injunction issued by Minnesota courts against a scandal sheet called The Saturday Press. Determining several published pieces in the Saturday Press to have been "malicious, scandalous, or defamatory," the state courts enjoined publication of future issues. The Court, in a 5 to 4 opinion by Chief Justice Hughes, reversed, finding "the chief purpose" of the First Amendment being to prevent prior restraints. The Court said that after-publication punishment was much to be preferred: the state is less likely to suppress protected speech, the defendant can enjoy the safeguards of the criminal process, and courts will be in a better position to judge the allegedly unlawful speech. The Court did not rule out, however, upholding a prior restraint in some future case, suggesting that "the publication of sailing dates" or "location of troops in wartime" might be appropriate cases for an injunction.

Buckley v. Valeo

i. Supreme Court found that statutory limits on campaign contributions were not violations of the First Amendment freedom of expression but that statutory limits on campaign spending were unconstitutional. The decision also upheld disclosure requirements for contributions and expenditures.

Wisconsin v. Mitchell

i. Supreme Court unanimously upheld, in Wisconsin v. Mitchell, a statute that imposed stiffer sentences for racially-motivated assaults than for other types of assaults. The Court reasoned that the statute did not violate the First Amendment because it was aimed primarily at regulating conduct, not speech.

US v. Stevens

i. The Court considered a federal statute that criminalized the sale or possession of "depictions of animal cruelty." After rejected the argument that depictions of animal cruelty might constitute a new category of unprotected speech, the Court considered whether the statute was overbroad in that it might reach videos depicting hunting, arguably inhumane treatment of livestock, or activities legal in some jurisdictions but not others, such as cockfighting. Chief Justice Roberts, for an 8-1 majority, wrote the opinion striking down the law as substantially overbroad. Justice Alito dissented.

FCC v. Pacifica Foundation

i. The Court considered whether the Federal Communications Commission could, consistent with the First Amendment, punish a broadcaster who chose to play over the air at 2 o'clock on a weekday afternoon a twelve-minute "Filthy Words" monologue by George Carlin. In a narrow 5 to 4 decision, the Court upheld the FCC's authority to channel broadcasts containing indecent words to late-night broadcast hours when children are unlikely to comprise much of the audience. The Court based its holding on the lower level of First Amendment protection extended to broadcasting, the ability of broadcasts to zap listeners without warning in the privacy of their own living rooms, and the need to protect children from harmful speech.

Gentile v. State Bar of Nevada

i. The Court considers whether a criminal defense attorney could be reprimanded by the State Bar for talking about the facts of a criminal case before trial. Five justices agreed that it is constitutionally permissible to impose restrictions on the speech of attorneys that wouldn't be permissible against the press. Four justices would have insisted that any punishment of an attorney's speech be justified by a very strong state interest and employ closely tailored means. Gentile wins his appeal, however, with the four votes of the more speech-protective justices plus the vote of Justice O'Connor, who found the rule under which Gentile was punished failed to provide adequate notice.

Board of Airport Commissioners v. Jews for Jesus

i. The Court found facially invalid a regulation adopted by the Board of Airport Commissioners for Los Angeles Airport that stated the airport was "not open for First Amendment activities by any individual." The Court chose not to decide whether the specific activity in which the challenger engaged (distributing religious literature in a terminal walkway) might have been banned under a more narrowly drafted regulation.

Southeaster Promotions v. Conrad

i. The Court's first explicit statement of the ldesignated public forum doctrine came in Southeastern Promotions v Conrad. Southeastern Promotions sought permission to use Chattanooga, Tennessee's municipal auditorium for performances of the musical "Hair." Although the auditorium had been rented for a wide variety of expressive activities prior to Southeastern's application, Chattanooga city officials refused Southeastern's request, citing Hair's nudity, tacit approval for drug use, sexual themes, and bad language. The Court found the municipal auditorium to be a designated public forum, and the city's refusal to permit use of its auditorium to be an unconstitutional prior restraint.

Coates v. Cincinnati

i. The Supreme Court ruled that a Cincinnati ordinance that made it a crime for three or more persons to gather on a public street and engage in annoying conduct was unconstitutionally vague and overbroad, and invalidated it in Coates v. City of Cincinnati.

Widmar v. Vincent

i. The UMKC student center meeting rooms found to be a limited public forum in Widmar v Vincent could be restricted in their use to students, but the university could not--the Court said--allow students to meet for academic, social, or political purposes, but not for religious purposes.

US v. Progressive

i. The United States went to court to enjoin publication of an article scheduled to appear in the left-wing magazine, The Progressive. The article, "The H-Bomb Secret: How We Got It and Why We're Telling It," was essentially a how-to-do-it account for anyone wanting to build an atomic bomb. Reasoning that the article presented a clear and present danger of speeding the efforts of foreign nations or terrorist groups interested in developing atomic weapons, a Wisconsin federal district judge issued an injunction against publication.

The Miller Test for Obscenity

i. The work in question must depict or describe sexual conduct ii. The prohibited conduct must be specifically described in the law iii. The work, taken as a whole, must lack serious literary, artistic, political, or scientific value (SLAPS) iv. The work, taken as a whole and applying contemporary community standards, must appeal to prurient interest in sex. v. The work must portray sexual conduct in a patently offensive way, applying contemporary community standards.

Walker v. Birmingham

i. Walker considered whether civil rights demonstrators in Birmingham in 1963 had a constitutional right to march in defiance of a state court's injunction. By a bare majority, the Court upheld contempt convictions against the civil rights demonstrators, concluding that they had an obligation to appeal the court's order before marching--even if the permit ordinance they were ordered to comply with violated the First Amendment (the Court later, in Shuttlesworth v Birmingham (1969), struck down the Birmingham ordinance) and they had no realistic chance of obtaining a permit. The Court said only when an ordinance is "transparently invalid" (not merely invalid) can one raise the invalidity of the ordinance as a defense in a contempt case. The four dissenters complained that the Court's decision "magically transforms the command of an unconstitutional statute into an unpregnable barrier."

McCullen v. Coakley

i. considers the constitutionality of a 35-foot buffer zone around the entrances of reproductive health centers adopted by the Massachusetts legislature. In a unanimous holding, the Supreme Court struck down the Massachusetts law finding that it was not sufficiently narrowly tailored, given the considerable obstacles it presented for anti-abortion protesters in a public forum hoping to engage patients in discussions or to present them with handbills urging that they reconsider their decisions. Writing for a majority of the Court, Chief Justice Roberts did, however, find that the legislation, despite being focused only on speech near reproductive health centers, was content neutral. Justice Scalia objected to the Court's consideration of that issue.

Snyder v. Phelps

i. the Court divided on the question of whether a state could prohibit cross burning carried out with the intent to intimidate. A majority of the Court concluded that, because cross-burning has a history as a "particularly virulent form of intimidation," Virginia could prohibit that form of expression while not prohibiting other types of intimidating expression. Thus, the majority found the cross-burning statute to fall within one of R. A. V.'s exceptions to the general rule that content-based prohibitions on speech violate the First Amendment. Nonetheless, the Court reversed the Virginia cross-burner's conviction because of a jury instruction that might produce convictions of cross-burners whose motivation was ideological--and not an attempt to arouse fear. Justice Thomas dissented, arguing that cross-burning is conduct, not expression, and therefore its suppression does not raise serious First Amendment issues.

Virginia v. Black

i. the Court divided on the question of whether a state could prohibit cross burning carried out with the intent to intimidate. A majority of the Court concluded that, because cross-burning has a history as a "particularly virulent form of intimidation," Virginia could prohibit that form of expression while not prohibiting other types of intimidating expression. Thus, the majority found the cross-burning statute to fall within one of R. A. V.'s exceptions to the general rule that content-based prohibitions on speech violate the First Amendment. Nonetheless, the Court reversed the Virginia cross-burner's conviction because of a jury instruction that might produce convictions of cross-burners whose motivation was ideological--and not an attempt to arouse fear. Justice Thomas dissented, arguing that cross-burning is conduct, not expression, and therefore its suppression does not raise serious First Amendment issues.

Virginia v. Hicks

i. the Court rejected an overbreadth challenge to a municipal housing authority trespass law. The law allowed arrest of any nonresident of a housing project who could not demonstrate "a legitimate business or social policy for being on the premises." The Court, in an opinion by Justice Scalia, indicated that if would rarely, if ever, uphold an overbreadth challenge against regulations that were not primarily directed to speech or speech-related conduct.

South Florida v. Miami

ii. The court considered whether Miami's ordinance prohibiting public nudity violated the first amendment. The court suggested that nudity had to be attached to some other expressive acidity, such as dance or theater, to raise serious first amendment issues.

Wooley v. Maynard

the Court considered another compelled speech claim, this one brought by a New Hampshire couple who had three times been prosecuted for covering up the motto "Live Free or Die" on their New Hampshire license plate. The Maynards, also Jehovah's Witnesses, objected on religious grounds to the ideological message conveyed on the state license plates. Writing for the Court, Chief Justice Burger enjoined enforcement against the Maynards of New Hampshire's law prohibiting the obscuring or defacing of license plates. The law, the Court said, compelled individuals to be "couriers for ideological messages" and "mobile billboards

Zelman v. Simmons-Harris

the Court weighed in on the controversial issue of vouchers. Under consideration was an Ohio program that provided financial assistance (in the form of tuition aid) to parents of private school children in the Cleveland City School District. The aid was based on parents' financial need. Even though over 90% of the financial aid went to parents with students in religious--as opposed to non-sectarian private--schools, the Court, by a 5 to 4 vote, found the program did not violate the Establishment Clause. Writing for the Court, Chief Justice Rehnquist emphasized that the program was neutral with respect to religion, thus making it "not readily subject to challenge under the Establishment Clause." Whatever "incidental advancement of a religious mission" that might come from the voucher program was "attributable to the individual recipient, not the government." Dissenters stressed that the voucher provisions were "skewed toward benefitting religious schools" and "risked creating a form of religiously based conflict harmful to the Nation's social fabric."

Legal Services Corp v. Velaquez

the Supreme Court faced an issue similar to that presented in Rust, but came out 5 to 4 the other way. The case involved restrictions contained in a federal funding program for the Legal Services Corporation, which distributes funds to grantees who provide legal assistance to indigent clients in non-criminal cases. The challenged restriction prevented grantees from, during the course of their representation of indigent clients, arguing that a state statute violated a federal law, or that a state or federal statute violated the Constitution. The Court found the restriction to be viewpoint-based suppression of speech, and therefore to violate the First Amendment. The Court (per Justice Kennedy) distinguished Rust, viewing Rust as involving a decision to not fund speech outside of the scope of the federal program, rather than an attempt to favor a particular viewpoint with respect to abortion. In dissent, Justice Scalia said the LSC case was "on all fours" with Rust.

Clayton v. Place

upholding the Purdy, Missouri school district's ban on dancing, finding a secular purpose even when there was ample evidence that the no-dancing policy was maintained in response to pressure from conservative local church groups.

Pruneyard Shopping Center v. Robins

the Supreme Court rejected the argument of the owner of a California Shopping Center that a California Supreme Court decision finding a state constitutional right of third persons (in this case, high school students) to pass out political leaflets on the shopping center grounds violated the federal Constitution's First Amendment. The owner argued, relying on Wooley and Barnette, that his property was being used in such a way as to suggest his endorsement of a political message that he may not have agreed with. The Court disagreed, concluding under the circumstances of the case that no one was likely to conclude that the shopping center was a sponsor or an endorser of the political message being presented in the shopping center parking lot.