Constitutional Law: First Amendment A2 Fall 2008 Prof.

Minow Grade: ANote: the following consists largely of a transcription of Minows lectures, combined with my own notes on many (though not all) of the assigned cases. I. The six categories of argument in Con Law (listed in Sept. 8: Bobbitt, The Modalities of Constitutional Argument, S.5+) A. History: intent of the framers B. Text: often confused w/ #1, b/c text is good evidence of intent, but can be distinguished: not what was meant by writer, but how words wd be interpd by average person today, or by average person then (ordinary meaning, plain meaning), or in terms of the text itself how one phrase relates to another C. Doctrine: judge-made law: both the kinds of phrases mentioned in Toolkit (terms of art like viewpoint neutral, two prongs of three part test), drawing analogies between old cases and new situations (e.g. defamation and cyberbullying). Note: Three ways of arguing on the basis of doctrine: 1. Comparing the specific facts of cases, doing the work of analogy e.g., the difference between burning a cross on someones lawn, 20 ft from their house, v. at a rally far away a) note: prudential analysis is often very fact-sensitive, related to this kind of doctrinal analysis in an unclear way b) Some controversial cases to know facts: (1) NUREMBERG FILES CASE (Planned Parenthood v. ACLA): Wanted posters of abortion doctors then murdered on web site, their personal information, names crossed off never got to Supr Ct, divided lower ct.s (is it a threat? incitement?); (2) SKOKIE (Nazi parade); (3) TINKER (students want to wear black armbands, may seem very tepid now, but at the time was hugely controversial); (4) NUXOLL (Posners opinion re: kid wearing a Be Happy, Not Gay t-shirt to protest gay-tolerance awareness day cases like this are happening all over the place, will go to Supr Ct will they duck it?) 2. Arguing on the basis of recognized tests to be incitement, it must be x, y, z 3. Stirring prose 1st Amend decisions have produced some of the most stirring rhetoric in all US judicial decisions. These get quoted all the time. falsely shouting fire in a crowded theater etc. (But do they do any work?). Can this be viewed as judges appealing to abstract principles (almost like natural law, moral philosophy?) D. Structure: the structure of the constitution e.g. federalism, separation of powers, etc. reach a decision based on preserving and supporting these structures 1. e.g. what are the prerogatives of the governor of a state with regard to free speech? what does the state constitution say with regard to free speech? can states be more protective than the 1st Amend? E. Ethics (Philosophy?): what is a good life? what are the conceptions of good and wrong and morality and justice that this document is supposed to enable us to achieve? F. Prudence (cost-benefit, consequences): judges use this in esp. two ways: a) what is the effect of, e.g., this law on cyberbullying? a chilling of speech that shd be protected? b) also the consequences for the court, or for governor if hes trying to decide to sign law will this create a social movement that will be a problem for the next 50 years? PRINCIPLES OF FREE SPEECH What value cd advocating violent overthrow of govt. have for that govt.? One key: free speech isnt about the current government: its about the people America was founded by violent revolutionaries, freedom-fighters This is one form of self-government These seem to be the five main purposes of 1st Amend: 1) To promote self-government check of govt. abuses giving people access to enough data to govern themselves 2) Safety valve feature 3) Marketplace of ideas to promote the search for truth Mills idea BUT: free-for-all doesnt always support truth, b/c it might drown out certain voices will come up when we discuss Internet 4) Individual self-realization, self-fulfillment, autonomy

5) Tolerance for example, when I walk down the street, I ignore the people in Harvard Square free speech cultivates the value of tolerance, which allows more freedom for more people and promoting self-restraint a precondition for tolerance (or maybe: self-restraint is the practical expression of tolerance) [note: relates to debates re: difference between multi-culturalism and tolerance Minow: but in Amer. English, tolerance does seem to have developed a more positive, active connotation beyond mere self-restraint, making room for others, celebrating the diversity of it, etc. But: still: if the view didnt offend you, then your reaction wouldnt be called tolerance] associated theoretically with Bollinger now President of Columbia U. great irony: his experiences as Pres. of Columbia U. have tested this idea seriously e.g. Achmadinajads visit o See CB89: Bollinger on Skokie: the danger of intolerance toward ideas is so pervasive an issue in our social lives, the process of mastering a capacity for tolerance so difficult, that it makes sense somewhere in the system to attempt to confront that problem and exercise more self-restraint than may be otherwise required. [See p. 8+: outline: the various justifications for free speech] [Be able to deploy these purposes as in Singer to say, as we did in class discussion: what are the purposes of allowing x speech? Al-Timis speech?] [Sidenote: Bork said: only political speech shd be protected, not e.g. artistic speech 1. how do you separate these two? the line-drawing prob. par excellence indeed, artistic is often the vanguard of political 2. shapes our culture 3. etc.] Is the 1st Amend an optimistic principle that thinks were all truth-seeking, self-restrained, tolerant, etc.? (me: Brandeis in WHITNEY, v. more tragic views) MINOWS THE FREEDOM OF SPEECH FLOW CHART: (to determine whether a restriction is permissible) THIS LISTS ALL THE DOCTRINAL WE STUDIED RE: FREE SPEECH 1. Is the restriction due to state action?: the constitution limits only state actors from impermissible restrictions on speech 2. Does the restriction fall within The freedom of speech? A. No 1. it is incitement of immediate illegal action: advocacy of lawless action IS protected unless advocacy is likely to produce imminent danger, by 1) expressly advocating violation of the law 2) calling for immediate violation and 3) the immediate violation is likely to occur (Brandenburg) 2. it is fighting words which are directed specifically at another person and by their very utterance inflict injury or tend to incite an immediate breach of the peace (Chaplinsky) and the expression is "likely to produce a clear and present danger of a serious intolerable evil that rises above mere inconvenience or annoyance" (Terminiello), and thus the proscribed fighting words must present an actual threat of immediate violence, not merely offensive 3. it is obscenity: see local values element somewhere below (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 (Miller v. California) 4. It is defamation. A false statement that injures someone's reputation and exposes him to public contempt, hatred, ridicule, or condemnation, in print or through broadcast (libel) or spoken (slander); but defenses include: it is opinion or fair comment on topic of public interest; or affects a public figure (who can sue successfully only by showing actual malicewith knowledge that it was false or reckless disregard for whether it was true or falseand harm by a clear and convincing evidence standard) 5. It is speech by government employee pursuant to performance of the job (Garcetti v. Ceballos) 6. It is a genuine true threat (Virginia v. Black) see test in the algorithm below 7. other candidates potentially beyond the freedom of speech: fraudulent misrepresentation (tho. see commercial speech below under intmdt. scrut.), child pornography depicting actual children engaged in sexual conduct and using actual children in the production B. Yesit is within the freedom of speech: go to next step: 3. Does the restriction warrant strictest scrutiny or intermediate scrutiny? Related to underlying purposes: self-government, discovering truth/marketplace of ideas, advancing autonomy, promoting tolerance A. receives intermediate scrutiny if: 1. commercial speech: in which case the party seeking to uphold the restriction carries the burden of justifying 2. content neutralgenerally acceptable, BUT there are still bases for rejecting it:

TESTS

3.

4. OR

a) overbreadth b) core purposes analysis c) potentially: non-neutral effects d) impermissible motive it only creates time, place and manner restrictions, or it regulates a nontraditional public forum (e.g. limited public forum) a. for the intermediate scrutiny three-part test of time/place/manner restrictions here, see PERRY below: signif. govt interest, etc. (me: could also imagine low-value speech of unanticipated kinds getting intmdt scrutiny as well)

B. receives strict scrutiny (meaning its upheld only if 1) compelling government interest and 2) the means is necessary to achieve it, such that there is no less restrictive alternative; government has the burden of proof) triggered if restriction is: 1. content-based: presumptively unconstitutional (R.A.V. v. City of St. Paul: analysis short-circuited on this basis) 2. viewpoint-based: protected: Widmar v. Vincent, state univ. facilities, cannot exclude religious speech/prayer; Rosenberger v. Rectors/U Va.: public univ. cannot exclude religious publication from subsidies for student publications. Exceptions: a. not really viewpoint discrimination: the government may control access to a non-public forum based "on subject matter and speaker identity" if the government's action is reasonable given the forum's purpose and if the action is viewpoint neutral; (me: e.g. injunction on actions of specific individual abortionprotestors given their past histories and in interest of security, not b/c of their viewpoints; or limiting Krishnas to stand at state fairgrounds cases below) b. the government may suppress speech in a non-public forum if the speaker wants to discuss "a topic not encompassed within the purpose of the forum," or the speaker is outside of the special class for whom the forum was created, (me: e.g. kindergarten, as in BUSCH? school cases generally) c. and if the government is charged with viewpoint discrimination, it can clear itself of that charge by showing that to permit the speech in question will violate the Establishment Clause. 3. a restriction on a public forum: the streets, door-to-door solicitation (except: sound, timing restrictions can be used as reasonable time, place, manner restrictions) a. Exceptions: near schools, prisons, targeting single private residence, On top of all prior steps, ask: Form of the restriction: potentially fatal regardless of any prior step: A. is it vague? B. is it overbroad? C. is it a prior restraint? 1) esp. disfavored as injunctions 2) permit system might be okay if it has adequate procedural safeguards: (3-part test, see below)

4.

MINOW PROTECTED SPEECH ALGORITHM: NOTE: FLOWCHART ABOVE IS MUCH BETTER covers almost everything below, except re: true threats (note: like the flipside of flowchart above, covering much of the same territory, but not going into the tests as much: 1. there, the idea is: there is a lot of speech, and within that large field is a protected carve-out, The freedom of speech any regulation is okay, so long as it doesnt fall in that circle traditional view; 2. here, the idea seems to be: start with all speech being free, then carve out areas that are not free only regulations within these area are permissible; Any specific outcome could be explained by either approach, but they do make a difference: #1, which happens to be the more traditional view, might suggest any new area of speech, new puzzle, would be presumptively not protected; #2 would assume the opposite) First question: What falls outside The freedom of speech, protected by the First Amendment? A. Express advocacy of immediate unlawful action that is likely then to happen: Brandenburg v. Ohio (1969) So falling WITHIN protected speech is: 1. implicit advocacy of immediate unlawful action? 2. Explicit advocacy of abstract doctrines in favor of illegal action? 3. Explicit advocacy of immediate unlawful action that is not likely to happen?

B. Fighting Words: Chaplinsky 1942 1) Unprotected if the speech is directed at another person, specifically 2) Even so, some of the laws prohibiting fighting words rejected as vague or overbroad 3) Some rules/convictions treated as impermissible content-based restrictions 4) increasingly: courts favor less restrictive responsepursue police protection for the speaker instead C. Threats? Unprotected if it is a genuine true threat, not hyperbole (Virginia v. Black) *Division among federal courts of appeal and ambiguity in the Supreme Court (me: source here = Majeed, S.103) 1.Objective Test: whether a reasonable person would construe the defendant's speech or statement as a threat, given the context in which it was made; a) the circuit courts debate over using reasonable speaker, reasonable target, reasonable nontarget as the test 2. Subjective and Objective test: whether the particular listener, even a sensitive listener, would construe the speech as a genuine threat 3. Objective test plus intimidation: Reasonable person would a) take the statement as a serious expression of an intention to inflict bodily harm, and b) perceive such expression as being communicated to effect some change or achieve some goal through intimidation, 5. Watts v. U.S. (1969) (anti-war kid threatening life of Pres. if he gets drafted), requiring evidence of intent to carry out the threat 6. Virginia v. Black (2003) Supreme Court majority bans burning of a cross with intent to intimidate (but strikes down the actual VA statute in question b/c its overbroad, wd also ban protected symbolic speech) D. Other candidates for nonprotection: obscenity, libel and defamation, child pornography, fraudulent misrepresentation outside the protection, subject to regulation; not hate speech (see group libel a little below) Second question: even if protected, sufficient justifications for government restrictions on speech ? A. if content-based restriction of protected speech, then strict scrutiny: compelling interest, least restrictive means B. if noncontent based restriction of protected speech, then lesser scrutiny: (E&E) narrowly tailored ( not least restrictive possible) to promote significant or important governmental interest (not compelling governmental interest) unrelated to the suppression of the expression: justified for public order but not merely judicial rubber stamp, a kind of intermediate scrutiny Further possibility: increasingly, the courts identify low-value speech: protected but more easily regulated: commercial speech, profanity, indecency Me: Free Exercise v. Establishment: Could be viewed as two boxes whose sizes represent how much is protected (i.e., the quantity of things a court will strike down) For much of U.S. history, govt not very expansive, court not very active didnt even strike down any statutes between MARBURY and DRED SCOTT the two boxes pretty small and far away from one another especially given how much ceremonial deism was allowed w/o question, and that states had established churches, and that 14th Amend wasnt read to incorp. 1st to the states until much later BUT as govt expanded, especially during and after New Deal, and as court became more active in striking down govt actions as violations of the Const., the two boxes grew in particular, through much of 20th Century, esp. Warren Court era, the Establishment box grew during the Separationist era, striking down resembling govt involvement with religion, breach of the wall btw church and state THEN: with conservative movement of Court, the Free Exercise box grew, e.g., requiring govt accomodations of 7th Day Adventist, requiring that govt not burden religious exercise unnecessarily TODAY: with the government so massively expansive, with so many issues having become constitutionalized, with the courts so active, the two boxes have both grown very large AND what we are seeing is 1) that they can overlap creating a tragic situation where one can either protect free exercise, or establishment, but not both BUT there are alternatives: 2) shrink the boxes so that they dont overlap you could shrink them just enough that the courts response in every case could be: the state must do this, or the state may not do this; or 3) shrink the boxes far enough that there is room between them the play at the joints model saying: within this area, court will be silent: states may make accomodation permissible accomodation. ignore: MINOW FREE SPEECH REVIEW: [Spectrum from most protected to least protected?] Content-neutral

[low value OR

viewpt neutral govt. speech symbolic speech association me: No idea how the above table is organized (like a joke) public forum

outside the freedom of speech] > commercial > obscene etc.

Different doctrines: Incitement: evolution of ct becoming tighter and tighter, narrowing this category, allowing more and more protection now must have imminent lawless action: likely & very shortly after speech Fighting words: has also evolved: must now (missed) True threats: (difficult to summarize in short ways but you have to show its an actual not a distant threat) Obscenity: ct has come up w/ its own interesting test, giving jury in local community a lot of ability to base on local comm. standard but theres an outer check: the material must appeal to prurient interest as defined by local comm: but it also must have no redeeming social, lit, sci value Child pornography: covers film, photos using actual children shown in sexual activity ct has struggled w/ depictions involving virtual children Libel: if public figure, you have more room to speak pub fig can be govt official, movie star or special purpose someone well-known in relation to one issue. And must actually be false to recover. So pretty high threshold. Group libel: once upheld in BEAUHARNAIS (1952) but hasnt been reaffd since. And hate speech re: groups has been much restricted. R.A.V. = govt cant prohibit some kinds of hate speech but not others . WISC. v. MITCHELL: govt can have increased sanction against crime motivated by hatred b/c this is aimed at conduct, not speech. Misleading speech connected to sale of good: While commercial speech is gaining more 1st Am protection over time, there is still a space that permits regulation: the speech must be lawful and must not be misleading the govt can regulate where it has a substantial interest the regulation must serve the govts interest Min: Why cant we make just one test?! Some kind of balancing test and well adjust w/ sliding scale the kind of govt interest thats nec, and the kind of precision nec in the statute. But thats not what weve done. Reason seems to be historical, path-dependent. BUT perhaps the reason is some kinds of speech are so valuable that we need some kind of special (magic word) categorical protection. Content-based restrictions rarely upheld: were not going to discuss campaign finance in this course but its one area where some restrictions have been upheld. But is a financial contribution to a campaign speech? Supr Ct has said: yes, it is speech. (keep in mind re: license plates, symbolic speech) Content-neutral reg. of time/place/mann is okay if w/o reference to viewpoint dsnt trigger strict scrutiny, but does get scrutiny: is it really content-neutral? 1) is the govt int signif? 2) is the regul narrowly tailored? 3) does the regulation leave open adequate alt channels for communication? (e.g. Clark, E & E p. 388) implicit in this doctrine is the idea that regulating time/place/mann is not suppressing speech, forbidding it just directing where and when it can happen then messy cases: PICO: (something re: libraries) ct said no: that is closing off speech Public forum: 1st Am protects traditional areas that have been used for speech from time immemorial: streets, parks, etc. these are given as extensive 1st Am protection as anything subject only to content-neutral time/pl/mann restrictions What about other possible settings opened up by govt.? What about placard on bus? No, thats not a pub forum you can ban political speech What about space outside jail? Army base? Military base? Airports? Public TV station? None of these are public fora they can all be regulated quite substantially. Tho Supr Ct has gone back and forth on whether airport is pub forum Government speaking: it can have its own viewpoint, its own content.

Procedural norms: in order to give greater protection for speech, you can file a suit even if the restriction wdnt apply to you, if the law is e.g. vague b/c courts want to make it easier to challenge, to avoid chilling effect on speech. Same idea re: overbreadth. Also, prior restraints are esp. disliked formal restraint of speech before it occurs, v. penalty after fact: e.g. injunction, ban on showing particular film receives strictest scrutiny. Also, impact of particular facts: children in audience, speech likely to occur near or in govt setting and wd/cd interfere w/ functioning of that setting school, prison, courthouse. Though: not the sidewalks outside the Supr Ct. II. The First Amendment Toolkit (S.21): A. The content distinction: 1. Content-based (i.e. subject-matter) regulation (reg. that makes distinction between diff. content) receives severe scrutiny a) Mosley: basic principles, e.g.: There is an equality of status in the field of ideas, and government must afford all points of view an equal opp to be heard. S.75-76. b) Ex.: Texas v. Johnson (1989): overturning conviction for flag-burning, b/c this is content discrimination (S.76). c) BUT: Some content can be regulated: (1) direct incitement to immediate violence (2) libel (3) obscenity (4) fighting words (5) false advertising (6) implicitly belongs here (S.32): compelling government interest (7) also implicit: having some nexus w/ govt operations, like a public school curriculum (8) also implicit, though more dubious: regulations with a sufficiently long historical pedigree 2. Content-neutral regulation receives lower level of scrutiny (me: i.e., intermediate scrutiny) a) Ex: US v. OBrien (1968): okay to convict someone for wilfully burning draft card, b/c the regulation was justified w/o reference to content of regulated speech, and regulation was of signif. govt interest b) Refined test in Ward (1989): (me: the time/place/manner test) (1) Regulation must be justified w/o ref to the content of the regulated speech (2) Must be narrowly tailored to serve a signif. govt interest (3) Must leave open ample alt channels for communication of the info c) BUT: step (0): must be content-neutral, and no perfect test of content-neutrality exists (tough strip club regulations cases, refined flag-burning statute cases, etc.). A rough working test is whether the govts interest would be present even if the speech was in a lang. unintelligible to listeners. (BUT this dsnt always work) S.79 3. Viewpoint discrimination a) Even more intensely disapproved than content-based discrim. b) R.A.V.s complicated rule for when viewpoint discrimination is permissible: (1) when the basis of discrim consists entirely of the very reason the entire class of speech at issue is proscribable. E.g., one element of being obscene is being patently offensive. A state could single out only the most extreme forms of disparagement in its libel laws, or only the most offensive forms of speech in its obscenity laws. B. Algorithm for determining a free speech violation (S.84) 1. Was the regulation a state action? a) If not, no violation possible. Private actors cant violate your 1st Amendment rights. b) But lets assume its some government regulation: 2. Has there been an abridgement of speech? a) If it wasnt speech, or it wasnt abridgement, no violation. (1) Since 1960s, when symbolic speech was contested, now seems that a lot of things are sufficiently communicative; whether something is speech is no longer the central issue usually b) Beware: if government only mandates additional expressive content, may not be a violation. (1) me: tho: various cases throughout outline: right not to speak, right against compelled speech (e.g. LEE v. WEISMAN: coercion test; or many commercial speech cases, compelling warnings on boxes, etc.) see (d) below c) Beware: if government only offered inducements for speech, rather than regulations, may not be a violation. (1) Inducements cross the line when they become coercion. S.86. (But lately: even some types of inducements are unconst, Speiser, in trend of courts rejecting old rights/privelege distinction, where government couldnt abrogate your rights, but could provide or withdraw a privelege on any grounds whatsoever. The doctrine of unconstitutional conditions.) (a) note: Great Sunstein article on unconstitutional conditions doctrine being obsolete: basically says its premised on the idea that common law system is natural state of affairs and modern regulatory state consists of interventions into that natural state of affaris. Says: do away with this assumption, and just ask whether, under the provision at issue, the government has constitutionally sufficient justifications for affecting constitutionally protected interests.

d) BUT: There is a right to remain silent: West Virginia State Bd. v. Barnette, S.85, CB 441 (invalidating statute requiring students to salute flag, recite Pledge of Allegiance), with the best words ever written in 1st Amendment jurisprudence by Justice Jackson, unsurprisingly: [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. 3. What kind of abridgement? a) Prior restraint: the rule against prior restraints makes these heavily disfavored. (1) Ex.: Near v. Minnesota (1931): J. Hughes lifts a lower courts injunction on a newspaper planning to publish story on public officials protecting gangsters. (2) Ex.: The court also rejected an injunction in the Pentagon Papers case (New York Times v. U.S. (1971)). b) Overbreadth: heavily disfavored because of chilling effect. c) Vagueness: also heavily disfavored because of chilling effect. (1) Rationale in case of overbreadth: S.90 (a) minimize discretion in enforcement of statutes that might restrain speech (b) expand the range of people who can bring constitutional challenges beyond those most directly affected (c) generally reducing chilling effect, encouraging people to speak up (2) Minor pt: S.91: situations in which it is and isnt possible to retroactively cure an overbroad law dont want to make it too easy, b/c would provide incentive for legislatures to pass overbroad laws 4. The question of deference: usual issues: will have to accept trier of facts interp. of facts, etc. (S.91+) a) Also: the court will sometimes defer where a question is highly technical, beyond its expertise Also: the court will sometimes defer re: authoritarian institutions like military, schools, prisons. ROBERT POST (S.140): RECONCILING THEORY AND DOCTRINE IN FIRST AMENDMENT JURISPRUDENCE o Thesis: Theory an incoherent mess, yet doctrine is relatively clear: people are able to predict how cases will turn out reasonably well. Any way to clean things up? Two main theories underly decisions: Holmes the marketplace of ideas ct.s have rejected large parts of this idea Democratic self-governance Theory 1: trash: Meiklejohn: democracy is a town-hall meeting, government is the moderator, the important thing isnt that everyone gets to speak but that all the good ideas be heard me: more paternalistic, almost Marxist: like saying govt knows how to regulate discussion to produce best truth-outcomes (144) M.: or democracy like a classroom, lots of groundrules for debate o ct.s have rejected large parts of this idea, but it wins sometimes: e.g. commercial speech (963) o also: Sunsteins 1993 Democracy and the Prob. of Free Sp.? (524, advocating greater regulation of the media to promote free expression) Theory 2: participatory theory of democracy: democracy is all about seeing a government as your own would emphasize autonomy (145) o when various justifications collide, this seems to be the most important, the winner o But courts dont always seem to rest their decisions on the foremost theory, as Post sees it o Also: S.143: universities as models of marketplace of ideas MINOW on POST and related matters, including AMERICAN EXCEPTIONALISM in the 1st Amendment: Theres a gap between the theoretical rationales/justifications for 1st Amendment and the flow chart above the doctrine of 1st Amend as its developed: seems totally unrelated! as in Robert Post article Post: There are two primary theories of freedom of speech: search for truth and = Holmes (marketplace of ideas), Well-manifested in commercial speech doctrine regulations allowed against misleading/false advertizing though there is some protection all aiming toward the creation of a real market in info about products participation in govt.: Two versions: 1. Mieklejohn processes of communication must be protected, or truth-seeking wont happen so this view imagines the ideal speech situation (Habermas) what is the

best context for truth-seeking? M: the college classroom! cognitive content at its highest (Mieklejohn talked about town hall meeting) (me: positive libertarian: government helps to set the rules of the game so that everyone can play equally, is not only free but able to contribute) free speech as means to end of creating ideal town hall 2. self-expression, maximal participation by maximum number of participants rather than speech being means to end of self-govt., speech is self-government freedom given to people the equivalent of the college classroom here is the Internet: maximal participation and on this view, the biggest danger to speech is the govt (v. on former view, the biggest threat is badly behaved other people) (me: negative libertarian: get government off my back) free speech as end in itself: freedom The dispositive factor in everything but commercial speech hence protecting speech far removed from politics Compare to other countries: US is outlier (though freedom of speech protected in Universal Declaration of Human Rights and in many Const.s) Const.s of Germany, Canada, S. Africa, explicitly call for balance btw freedom of speech and other values Germany, the dignity of the person me: CB251: great note about how these countries that dont protect racist speech havent emerged unscathed: Germany has banned all kinds of speech (e.g. the publication of a fictional interview w/ wife of Shah of Iran) Canada, the democratic, multi-cultural char of the country; etc. See outline of KEEGSTRA below.. me: note: Japan the other most protective country, w/ USA (S.234, from article comparing free speech laws worldwide) but there, the marketplace of ideas metaphor receives less play and consequently, erotica, comm. speech, and speech involving strong personal insult do not receive protection Note: the carve-outs from protected speech for obscenity, etc. seem much less concerned about creating ideal speech situation than with some kind of Puritanical ideal, trying to create a certain kind of society and general note in case have missed: all these carve-outs are getting smaller and smaller that development does seem to match a shift from model 1 to model 2: a greater protection just for individual freedom, period, no further end in sight M: but theres a risk that we will do what the Supr Ct has done well get so enamored of our rules, tests, etc., that well forget what the purposes of speech are Do we better achieve our goals by talking about our goals (i.e., standards)? Or by creating an apparatus that we think will achieve our goals (i.e., clear, categorical rules; tying ourselves to the mast)? 2nd theory allows us to be neutral as to what is the purpose of all this: freedom of imagination, freedom to read whatever you want in your home, protection from government, etc. etc. etc. o me: Sunstein: minimally theorized agreement M: One way to disting two theories wd be to ask: who do you fear? In 1st model, its other people who might interfere w/ search for truth, self-government, being civilized; in 2nd model, its the government as Orwell saw it its Big Brother.

DAILY NOTES, organized by themes: III. Tolerance or intolerance toward intolerance? A. Readings: 1. Sept. 8: Anti-gay t-shirt case (below: Posner): Facts: high schooler wears anti-gay t-shirt to day of silence, suspended, claimed 1st Amend violation. 9th Cir. upheld suspension, saying school must have power to protect gay students selfesteem. Criticized as viewpoint-based discrimination censorship in the name of political correctness. Supr Ct vacated decision. 2. See also Eule immediately below, arguing against imposed orthodoxy (i.e., intolerance twd intolerance). a) (me: Jacksons dicta in Barnette, striking down requiring students to salute/Pledge) B. If intolerant: 1. Youre a hypocrite intolerant of intolerance.

2. Make a martyr out of the intolerant person. And creates more attention for that kind of speech: you amplify speech by banning it. 3. You limit discussion. 4. You set a precedent of censorship that can be abused by someone who is less progressive, who wants to restrict other speech. a) This is one reason why free speech and free press have promoted absolutism, more than any other area of Con Law. Because of worries of slippery slope. (Me: Need to tie oneself to the mast in order not to be swayed when speech we dont like comes along.) b) But the doctrine that has emerged is far more of a balancing kind of analysis. (Sidenote: Stevens is voice in favor of case-by-case analysis, opponents of absolutes like the content distinction. S.83). IV. Shd 1st Amendment values be imported into the private sphere? A. Readings: 1. Sept. 8: Eule, Transporting, S.17+: this has been attempted in three ways: a) through fed. courts, by expanding def. of state action in 60s: (1) Example of court imposing 1st Amend in private sphere: Marsh v. Alabama (1946), where Black declares that Marsh, Jehovahs Witness, had power to hand out literature in front post office, even though sidewalk was technically private b/c it was a company town. (S.28). b) or through courts by using state Const.s; (1) Example: PruneYard: high school students set up Zionist card table in mall, owner of mall eject them. CA Supr Ct says CA version of 1st Amend is broader than US, and that they cdnt be kicked out mall is essential forum for them. Supr Ct affirms, considering that CAs interest in promoting public discourse outweighed owners property interest in exclusion, given that owner had opened mall to public. (a) But note: hasnt led to a flood of state courts transporting 1st Amend values to private actors: S.45, though NJ did it to a private university, State v. Schmid (by opening itself to public, Princeton renounced right to exclude someone handing out political pamphlets, who got charged with trespass NJ court overturned conviction), S.41 (2) Sidenote: Wooley is the NH Live free or die case: affirming right to be silent, not to be forced to express this message (S.35). (v. mall-owner here forced to be associated more than he wanted with kids message) c) or, most commonly, through legislation. (1) Ex.: Massachusetts Civil Rights Act, S.47: establishing civil action against someone who interferes w/ yr Const rts through threat/intimidation/coercion. Aimed to tamp down racial violence, but has 1st Amend implications. (2) Ex.: Leonard Law: CA, guarantees free speech to students at CAs secular high schools and colleges, even if private. Wd make any Univ. speech code illegal. Stanfords was first target: Corry (1995) invalidated their speech code. (a) me: interesting: if the Q had been: can Stanford have a speech code? Supr Ct wouldve said: sure, the 1st Amendment doesnt prevent that, b/c Stanfords a private actor But if the Q was: can CA ban Stanford from having a private speech code? the answer is yes Leonard Law has never been struck down. (Im thinking BOY SCOUTS: if Stanford said its goal as an institution was to promote tolerance, why wdnt a ban on its hate speech code be a violation of its 1st Amendment right to freedom of association?) 2. Eule argues against transporting 1st Am values to private sphere by any means: a) Uniformity imposed in the name of free speech is in tension with the core of the very right itselfthe proscription against government-imposed orthodoxy. b) Also: there are always free speech issues on both sides: the speech of the one trying to speak, and the speech of the private actor trying to control or exclude their speech. (e.g., CA court showed no awareness that it was refereeing conflict btw students speech and Stanfords speech both private.) c) Also: interferes w/ communitarian self-determination. (1) Min.: conflict btw communitarian freedom and individual freedom . B. It is starting pt of Con analysis in US that free speech, free press, etc. guarantees only apply to state action: state action requirement; v. e.g. S. Africa applies its Const across the board to private actors (clear historical reasons: apartheid cdve continued as purely private employment restrictions, private property restrictions, etc.). We dont have that tradition, but todays reading shows how some people want to move in that direction. (me: Related to growing corporatization? as everything becomes more and more privatized gated communities, Blackwater, private shopping centers, etc. merely restricting government action to suppress free speech might no longer be enough?) 1. Private shopping malls have largely replaced public streets with shops along them and if community is now doing its business in these enclosed environments, where can the streetcorner speech be given? Where can candidates campaign? a) One by one, all the areas where people campaign cd be turned private b) BUT conflicts with another Con value: property rights, ability to exclude others (one of the key sticks in your bundle of rights) as reflected in takings clause. So theres a speech-property conflict. And this has some heft: Repub.s or even Dems. might not visit shopping mall if there are Dem. activists there

c) ALSO theres a speech-speech conflict: the shopping mall owner is speaking by forbidding someone from distributing campaign literature but wheres the speech? (1) one answer: shopping mall owner looks like hes endorsing speech if it occurs in his premises. (2) another answer: right of silence. He doesnt want to take a position on this issue, endorse either side. (But is that as weighty as the rights of the Ron Paul supporters? And cant we just make clear that anyone can campaign here, so itd be widely known that it didnt constitute an endorsement) (3) another answer: as Eule says in todays big article reading: theres a deeper principle being threatening by this transport of 1st Amend to private sphere: preventing government from imposing orthodoxy this may be one reason why we have the 1st Amendment maybe even the primary reason, supporting all the other intermediate ones it makes no sense to undermine this principle in the name of the 1st Amendment 2. University context: why shd private and public u.s have any different legal treatment re: free speech? they all obviously get federal dollars, by the way. All receive the same protection re: criminal laws trespass laws a) one way to cabin the slippery slope toward 1st Amend being transported everywhere: universities really are the government acting anything performing a state function should have to abide by 1st Amend b) or: universities get federal funds, anything getting fed funds shd have to abide by 1st Amend c) key: you can present this as a speech-speech conflict: this is government coercion, trying to use federal funds or whatever else as leverage to perform government takeover of all the places of speech (me: unconstitutional conditions question) d) on one model of free speech, protecting a universitys ability to impose a mode of communication thats different from what applies outside is a form of free speech e) you might call this model a communitarian model of free speech v. individual model protecting a communitys ability to speak as it wants to. And, e.g., maybe at a girls college maybe they think that restricting one kind of speech is the only way to create freedom for another kind of speech (only if we restrict people from criticizing others based on appearance, e.g., can we give all girls the courage to speak, etc.). 3. States should be able to regulate private?: Another argument and as article says, this is where the action is right now you might say: fed govt shdnt be able to restrict speech in private institutions, but states shd be able to do so if its compatible w/ their Const. As in Leonard Law in CA, movement aiming to prevent private univ.s in CA from passing speech codes. (A similar judicial challenge to speech code in Michigan was successful me: i.e., MI court must have decided that its equivalent of 1st Amendment extended further than federal version, extended to private actors) a) a tool: sector analysis: argument that free speech rules are/shd be different according to what part of society were talking about universities, shopping center, elementary school, etc. b) Another way of putting what is at stake in a lot of these problems: is it possible to be neutral? STATE ACTION o In the text, there is quite clearly a state-action feature (Congress shall), and grew historically out of worries about the King o What is a state action? exclusively and traditionally a government function Managing a town, running the sidewalks, keeping the streets safe but private school, private university, wouldnt count schooling hasnt been exclusively a government function o What about state v. federal? Pruneyard says state law can make restrictions re: shopping centers that wouldnt be allowed as federal law o What about different branches? If the courts enforce something, is that necessarily a state action? sometimes o Note: State action requirement has been treated differently where the issue was race, as opposed to speech so its not a perfectly unified standard across all law

THE TEXT Congress shall make no law abridging the freedom of speech. make = laws already on books arent covered Congress = must be a federal law passed by Congress to fall under 1st Amend. restriction isnt on the states but courts now use 14th Amendment to apply restrictions on federal and state governments speech = excludes conduct just speech law = excludes actions by Congress that arent laws shall = at time this was written, a radical move to place absolutist restriction like this on govt. abridging = suggests that the freedom already exists the = again, the idea that The freedom of speech is one unitary, pre-existing thing Congress may be able to abridge freedom of speech, just not THE freedom of speech: if conduct doesnt fall within this sphere, then its not protected. See her flowchart above.

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no = again, like shall, the announcement of the absolutism of this amendment making this look like its an airtight amendment though other notes above suggest ways to wiggle out of this

The language above can also go twd two academic schools: absolutist school of thought = Hugo Black: what part of no do you not understand? o Over time, the absolutists have won much more ground than they had when this language was drafted o Brandenburg = the victory of this absolutist view (though it is, in form, a balancing test) reasonable regulation school of thought = it cdnt possibly mean that! We already have libel law, etc. makes a lot out of the and speech Sept. 9: UNPROTECTED SPEECH: Types: (me: see flowchart, algorithm above) o unprotected incitement: express advocacy of immediate illegal act likely to take place (BRANDENBURG) o threat objective test re: intent? objective test re: perception? o obscenity o libel o blackmail Theme: When shd someone be allowed to be punished for an act of expression? o Do we look at the speaker? Is intention relevant? Or shd the test be objective? o Is the justification for restraining speech depending on the reception? the perception and if so, is this a subjective or objective standard? o Shd the default be that everything is allowed and then there are certain things that we allow to be regulated? Or shd the default be regulation, and then we carve out certain types of speech that are protected? o And shd the approach be categorical or balancing test? HISTORY of INCITEMENT TO COMMIT UNLAWFUL ACTS and of THE FREEDOM OF SPEECH generally: For first 100 years or so of Amer. hist., 1st Amend. didnt really mean too much wasnt enforced o even tho framers cared enough to make this the 1st Amend. o Many of the framers were also people who drafted and enforced Alien & Sedition Acts suggesting they saw no inconsistency? A&S Acts: Adams administration used against opposing party Republicans trying to throw them all in jail for critiquing, punishing o In the olden days, Supr Ct was primarily concerned w/ prior restraint Note: some kinds of restrictions are still permissible: if someone straps a loudspeaker to top of car and plays enormously loud racist rants, can this be regulated? Sure! Can it be regulated ahead of time, w/ prior restraint? Sure. But it will be regulated b/c of its loudness, not b/c of the content Throughout 19th C, no question that fed govt and of course state govts cd restrict people from critiquing public officials When WWI came, great opposition from pacifist, socialist, etc. groups, many draft resisters and Russian Rev had created a lot of fear of crowds etc. o Congr enacts Esp Act 1917, Sed Act 1918 to punish the conveying of false reports or statements of any disloyalty. CB20: SHAFFER (1919) = trad. view: affirming conviction under Espionage Act of 1917 based on natural effect test: okay to regulate speech if its natural and probable tendency and effect are calculated to produce an unlawful act o Versus: One sterling exception: Masses (Hand) (Masses Publg Co. v. Patten) 1917 CB21 = Hand formula: Even potentially harmful speech cant be punished unless the speaker explicitly incites unlawful conduct. Key is explicit, versus natural effect. Quickly overruled on appeal, blocked Hands future career. Ct then says: natural effect is enough to justify the punishment. Also, even if Hands approach had been permitted, line-drawing problems: was Al-Timi (see Atlantic article in syllabus) using abstract or concrete language? Well, it was very vague and wed almost certainly feel differently if there had been diff conseq.s: if, e.g., no one had gone to Pakistan at all or if theyd gone and actually stayed and fought US forces and engaged in terrorist acts

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(intent and conseq. both seem to play a role in our evaluation of these problems) Circa WWI, Debs arrested won a million votes in prison so this was a hugely visible event probably the first time that many people became aware of a 1st Amend. (Also: around this time: Red Scare: 1919-20, two-thirds states pass red flag laws, banning display of red flag with seditious intent.)

Holmes o Holmes in SCHENCK (1919): origin of clear and present danger test: became the prevailing test for a long time, though nobody was really sure what it meant. Carved out a great exception to the freedom of speech, and judges run wild with this exception. (As Holmes does in this case itself: concluding that giving info. re: draft resistance creates clear and present danger: what is it?) Holmes switches, after receiving such criticism from people he admired for Schenck case Holmes changed his mind because of speech! under influence of discussion with friends, persuasion of letters from Harv. law prof.s, and also from seeing his previous speeches interpreted by courts they took his opinions and ran with them Note: Origin of falsely shouting fire in a theater, and causing a panic as example of unprotected speech. Min: (shouting fire in a theater: key: non-lawyers always forget this: you cant shout fire falsely in a crowded theater if its true, you should shout it!) o other convictions endorsed by Holmes: FROHWERK, DEBS (29) o Holmes dissent in ABRAMS: clear and present danger II (31): clear and imminent danger has to be: really imminent & really dangerous as opposed to earlier standard where speech with even a tendency to produce something dangerous could be regulated (and frankly, the silly anti-govt leaflet in this case isnt) Abrams also introduces notion of marketplace of ideas Note: Holmes approach even more civil libertarian than Hands, b/c latter wouldnt protect express incitement even if it presented no imminent danger o other dissents by Holmes: GITLOW (1925) (38): again, the Left Wing Manifesto in question didnt really present an imminent danger. (Every idea is an incitement.) WHITNEY (1927) (41): o last hurrah of the old bad tendency test. Upholding conviction of high-class Wellesley graduate, because meeting she attended threatened foundations of society. o Minow: sidenote: this is really more about freedom of association (freedom to associate w/ people who are arguing for overthrow of govt.) o Minow: prompts oddly named concurring opinion by Brandeis really a dissent and though people associate Holmes and Brandeis as team, this is very different than Holmes: very optimistic, revisiting framers as freedomfighters and suggesting that were robust enough, strong enough to be able to hear challenging ideas its the function of speech to free men from the bondage of irrational fears. 42: just as Holmes said in ABRAMS and GITLOW that the speech didnt really present a substantial enough danger to regulate it, b/c silly, so Brandeis says the danger to be avoided must be sufficiently substantial to justify abridgement of speech. Also note: Brandeis opinion contains original intent, marketplace of ideas/truth, civic republicanism/tolerance, safety valve justifications (Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. courageous, self-reliant men) KEY: If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is MORE SPEECH, not enforced silence . Brandeis view begins to prevail though not immediately, b/c of new Red Scare in 1950s (which leads to a lot of laws out of fear of communists) o This history is really a history of oppression of speech, and stirring statements about why it shouldnt be done During McCarthy era, court starts putting breaks on govt suppression of speech but they do so through an analysis of risk: whats the actual risk of violence emerging from the advocacy at issue? o DENNIS (1951) (47): Cold War: actually led to the arrest of communist party officials: but now through a balancing testfrom Hand! In each case [cts] must ask whether the gravity of the evil, discounted by the improbability, justifies such invasion of free speech as is necessary to avoid the danger. (49) Note: Frankfurter concurs based on deference: Cong. made this analysis already v. Courts present view on deference: LANDMARK (1978) (54): Deference to a legislative finding cannot limit judicial inquiry when First Am rts are at stake.

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Note: Frankfurters conc. also introduces idea that some speech is more worthy of protection than others: Not every type of speech occupies the same position on the scale of values. Black dissent: dawn of absolutism: categorical, v. balancing test: though not fully articulated yet Douglas dissent: there was no clear and present danger here: it must really be present Good point by Posner, after his symbolic notation of Hand-like cost-benefit formula (again: offering pseudo-certainty, pseudo-scientific, when the valuation of each variable will still be at whim of judge?): [A] shortcoming of the pragmatic approach is that the costs of freedom of expression are often more salient than the benefits. (54) o Mins hist. interp.: DENNIS is really the turning pt.: even speech advocating the overthrow of govt falls within protected speech. However, ftnt, the ct in Dennis affirmed the conviction of those teaching the people Marx, Engels. So: a victory in the abstract, rather than in practice. [me: politically crafty? like Marbury?] Also: relies on clear and present danger test but in cts hands, becomes a balancing test and also very contextual. SO: this is not much of a mast to tie yourself to in stormy seas. (Then we have YATES and BRANDENBURG: better masts in stormy seas.) Tide begins to turn further 1957 in the YATES case (56) (as in Dennis, alleged Communists prosecuted for violation of Smith Act). o Harlan Stone: no specific act was advocated. (What these people were offering was just a doctrinal justification of overthrow, too remote: they were only being urged to believe something, not to do something) Minow: Harlan in Yates: focuses on intent of speaker, v. reception by audience; to determine intent, we shd focus on the language-use no need to get into head of person, just focus on words o (May be crucial Q in Al-Timi case: a specific act was advocated: go to Pakistan, etc.) o Following in wake of YATES: BOND v. FLOYD (1966), GA House of Rep.s cdnt refuse to seat Julian Bond for anti-war views (57).

Finally: BRANDENBURG v. OHIO (1969) : Minow: BRANDENBURG: still the prevailing test the most speech-protective test of all the ones we read. Fundamentally has 3 elements: In order to regulate, justify govt restrictions on the ground that its inciting violence, illegality, overthrow of govt, there must be: o the illegality will produce imminent harm note: harm principle has very good pedigree JS Mill sd even the fullest extent of professing and discussing needs some limit through the harm principle o likelihood that speech will produce illegality (here reception starts to become important but its likelihood, not certainty what is this standard? is it objective? subjective? how do we measure it?) o the intent of the speaker to cause illegality (me: Min. must be incorporating the express element into this prong maybe thats how the case law has come to treat that part of the test) [Me/the book: the test, based on language of decision v. its reception sinc then: expression that induces unlawful conduct falls outside protection of The freedom of speech only if an express advocacy of immediate law violation that is likely to occur] So: Adds requirement of proof of likelihood of imminent unlawful conduct. o the key new word is likely: the immediate law violation must be likely to occur: the first time probability test is really embraced o court overrules WHITNEY, makes up history of steady march toward rule that is actually articulated for the first time in BRANDENBURG o And this is still the framework. M: The central accomplishment of Brandenburg is to identify as protected the discussion of violence and illegality o Minow: downsides to this approach? o A case like the Hitman case (p.62): book telling how to murder someone o theres some pretty disgusting stuff out there that sometimes produces some pretty horrible violence o M consults w/ principals, they say: we know what movie is out this week b/c we can see the kids acting it out on the playground o so, a serious cost facts: Arose not w/ Communists but w/ KKK: the speech that gets protected is racist and anti-Semitic, not Comm. Minow: less threatening to members of the court? EXAMPLE 1: How wd we apply Brand. test to, e.g., Al-Timis case? o express advocacy of law violation [overturns the old bad tendency rule: must be express]

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the advocacy must be for immediate law violation new, arose from clear & pres dang test o the immediate law violation must be likely to occur Rem: so difficult to defend Al-Timi b/c something actually did occur so its so hard to argue that it wasnt likely for anything to occur, but: was it going to occur imminently? wasnt there still time for further argument between Al-Timis advocacy of violence and their violent acts? wasnt Al-Timi just advocating the use of violence? BUT: this is what the teachers of Marx/Engels were said to be doing in DENNIS, and DENNIS was never overturned: so it may be a crime in the U.S. even to advocate joining a jihad engaged in killing American citizens EXAMPLE 2: NAACP v. Claiborne Hardware (1982) (61): NAACP speaker saying well ring your necks if you shop at any of these racist stores: his conviction overturned, b/c this wasnt even an incitement to lawless action actually closer to threat, later section. Anyway, reaffirming BRANDENBURG: mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment o ends up being central to threat cases o facts: Medger Evers brother and others threatened Af Amer shoppers that if they breached boycott of white shopkeepers, theyd face violence o holding: this speech is protected theres not an imminent danger. Based on principle of promoting tolerance of challenging and disturbing speech o Notes: Evers threatened people for doing something legal (shopping) whats remarkable is that if the govt had been in the shoes of the speakers, that wdve been illegal M: also: its a fair Q whether either BRANDENBURG or CLAIBORNE tells us what the standard is that we can rely on in a period where theres a lot of social turmoil, fear of threatening speech, like now (again: see Al-Timi case) A per curiam opinion only b/c author, Fortas, was ousted in scandal Greatly expanded protection of speech compared to anything suggested before o The broadest scope that we can sustain w/o jeopardizing security o the worry that it still allows us to protect against, even by restricting speech: someone using speech to create pandemonium right away o Seems to reflect various purposes: self-government seems key; Minow: dubious that this much leeway is necessary for self-expression purpose; maybe tolerance purpose plays a role here as well me: safety valve? me: marketplace of ideas, in the sense that banning all jihadist speech from U.S. could make us less skilled at arguing against it also: could chill legitimate speech outside of it, such as radical fundamentalist non-violent Islamist religious/political views Black and Douglas concurrences boldly plant flag in the absolutist camp first bold statement of this position o in terms of presenting majority opinion, it helps having a per curiam opinion surrounded by even more extreme opinions Note: this kind of analysis has extended into the area of immorality beyond advocacy for the illegal, into advocacy for the immoral (but this is b/c these kind of sexual immorality, etc. used to be illegal): o e.g. KINGSLEY INTL PICTURES CORP. (56) (1959): invaliding NY statute used to deny license to film of Lady Chatterleys Lover b/c its theme was that adultery was proper behavior One word missing from todays discussion: chill o restrictions on speech carry with them more restrictions than their explicit scope o maybe this is why Brandbenburg reaches so far: recognizes that any limit casts a shadow on speech far beyond it so we shd push to have broader scope than we think we need, to avoid people censoring themselves, speech being chilled Also: huge difficulty to making something fit Brandenburg test if its applied before something happens o but its almost always applied post hoc. o We have doubts about our ability to be as protective of speech before an event occurs. o prior restraint: one of the things framers hoped to avoid b/c British did this o

15 Sept.

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THREATS What is a threat? o Greenawalt (Columbia) says: a threat is a creation of a prospective harmful consequence in order to achieve ones objective proceeding by coercion rather persuasion o Websters: the intention to inflict harm by illegal means and esp by coercion or duress of the person threatened But: what if theres an intention to inflict harm thats not illegal? Notes: o Neither of these def.s address the subjective/objective question: is it a threat if I dont intend it to be, but a reasonable person would perceive it as one? etc. o And note the distinction between these two def.s reflected throughout the caselaw: If intention is crucial for the expression to be regulable, is it suffic to intend to produce the sense of apprehension even if you dont intend to do the threatened act? Sidenote: isnt that what terrorism is: focused on creating the sense of terror? [me: but isnt that what Bushs campaign in 2004 in Ohio was about also? isnt that what financial columnists often try to provoke?] o A huge challenge for people thinking about 1st Amend: Do we say categorically threats are outside freedom of speech? or no?

Cases: First, see CLAIBORNE HARDWARE above Note possible issue: as CLAIBORNE and BRIDGES illustrate, threats can often be categorized as incitement as well, the two arent always clearly distinguished BRIDGES v. CALIFORNIA (1941) (41): o Facts: Union people lose case, union leader sends letters threatening that theyre going to disobey court and strike if the decision stands send this telegram to newspaper, which prints it then judge finds union leader guilty of contempt so: punishment of speech. o The Q: ds that infringe The freedom of speech? or does the lower court have the power to punish union leader for making these threats? Clearly, the ct is moving beyond threatening illegal action (i.e., were no longer discussing regulation of incitement) because the strike wd be legal or is it? Maybe the illegality is disrespect of a court? (But in the form of the strike, or in the form of saying he would strike?) o Holding: The ct rejects lower ct opinion cant punish union leader for threatening to disobey court for a reason that parents struggle with all the time: you cant force people to respect you by suppressing their disrespect or at least the kind of respect that a democratic govt is supposed to have Note: we seem to be in cost-benefit, prudential calculation (re: various forms of Const. argument) We know that the timing was very much the concern of the court the contempt citation occurs while the lower court is reconsidering the case Supr court here says: if were worried about the judge being intimidated, we shouldnt be the judge shd already have anticipated that this was a potential response of the union and judge deciding any of these cases shdve recognized that a strike was a risk again, prudential considerations

Interlude: Do threats fall outside protected speech? Or do they fall within protected speech, and then we make exceptions? (Me: What depends upon the answer to this question? All cases are decided the same either way, arent they? Think this through) WATTS v. UNITED STATES (1969) (66) facts: threatening the life of the President: draft-resister saying if he gets drafted, the first person hell shoot is LBJ o the statute against making threat to bodily harm the President was written in 1917 remember 1917, great fear of anarchy, etc. not much 1st Amendment protection before 1st Amendment was even applied to case versus here, this case is 1969 o two additional factual details: he was given suspended sentence; and hes Af-Amer Ct asks two Qs: o does this statute even apply here? o if it does, is it unconstitutional?

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Holding: Ct simply says: this statute dsnt apply what the guy said isnt a threat its hyperbole a way to state opposition to Presidents policies o key: context: well, he is serious in the sense that hes not joking but at the same time, he wasnt seriously making a death threat on LBJ o though: what if the guy had gone on to shoot the president? Oswold was a normal guy, Marine is it so impossible to imagine this as an actual threat? o and, by the way the ct says, the statute is obviously constitutional on its face (me: i.e., could be applied constitutionally to a wide range of imaginable cases) Note: o this line of cases stretches back to 15th century innkeeper who sd if son behaved himself well, hed make him king convicted simply for imagining death of king Alien & Sedition Act o The tradition is to punish people for use of political hyperbole o But ct dsnt even address this seems ct just doesnt want to deal with this Also: This case is cited routinely for the proposition that threats of physical force are categorically outside the realm of protected speech o M: There may be, analytically, reasons to question this categorical approach o On the other hand, in general: Normally in the speech area we want to say that more speech is the cure (me: Brandeis concurrence in WHITNEY) but is this the case with threats? How can more speech be the way to solve a threat? well, it cd elicit help, elicit condemnation But in the case of a really serious threat, you might have to put yr life at risk, etc. to publicize it also, this cd lead to more threats, an escalation of violence there seems to be something special here b/c of the risk of physical danger me: also, if we dont allow govt to punish individuals for a threat, it may be too late to get more speech in response the person who wdve given more speech may be dead PLANNED PARENTHOOD v. ACLA (9th Cir. 2002) (67): THE NUREMBERG FILES CASE o Facts: Wild West-style Wanted posters for abortion doctors on Nuremberg Files Web site, offering personal information; doctors being killed. They offered license plate numbers, photos, addresses, crossed off names when murdered, etc. o This case agonized the ct.s jury allowed for injunction and damages 9th Circ. appellate panel reversed, said this is protected speech then went to en banc court, split 6-5: this speech is not protected: it was an unprotected threat, because while advocating violence is protected, threatening a person with violence is not If we dont have a debate, were out of sync with the federal courts o One issue: Is this a threat (to the doctors)? Or incitement (to the killers)? me: not a threat wasnt even intended to be read by the doctors shdnt be allowed for some other reason incitement to unlawful action? (like Hitman case) but its not express and the harm isnt imminent Perhaps simply illegal as aiding/abetting murder? But: good argument for it being a threat: theyre trying to coerce the Dr.s into stopping providing abortions even if the Dr.s never read the site me: but this is a pretty indirect kind of threat dsnt aim to change the behavior of anyone by them getting the message only becomes a threat when they actually get murdered and learn of the threat that way me: the threat is actually all these abortion doctors being murdered, and you being an abortion doctor not the website (the fact that website owners didnt know who murderers were is irrelevant) o Another issue: Shd intent of the web site managers determine outcome? subjective/objective problem Min.: Courts have put a lot of emphasis on the intention to threaten Me: language of ct unclear: says whether something is a threat is governed by an objective standard but then says there is a (subjective?) intent requirement for a true threat, though not a very stringent one: the defendant has to communicate the threat intentionally/knowingly with the intent to intimidate Why isnt this just like Claiborne Hardware (NAACP: well wring your necks if you shop)? this is just provocative political speech? me: it wd be like Claiborne if in Claiborne Evers had listed the names of people who had shopped and already been lynched, and others who were known shoppers o M: Note though: the more we take into account context, the more were using a balancing test v. a categorical approach, and the more discretion were giving to judges (KEY POINT: context -> balancing -> discretion for judges) o People hoped Supr Ct wd take on this case, resolve all the divided courts below. They didnt.

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Note: M: update on what has happened w/ Nuremberg Files case: Court put the site out of business, but a lot of other mirror sites with the same contents or parts of them have popped up Note: other than using the courts, routes that cd be taken: Set up site labelling the hosts and founder of the site as murderers, giving their addresses, etc. Or having public boycotts of the host, which wd themselves be protected

VIRGINIA v. BLACK (2003) (263): o me: facts: VA statute bans cross-burning The Q: does this violate the 1st Amend? OConnor: yes too broad, because it treats cross-burning as prima facie evidence of intent to intimidate but also: = true threats can be punished w/o violating 1st Amendment (me: if the statute were clear that only cross-burning as true threat was being targeted, and not cross-burning as symbolic speech, then it wd pass muster) The key to majority opinion is: burning a cross can have (at least) two purposes: 1. Rallying around beliefs in white supremacy (protected) 2. Intimidating others (cd. be unprotected) & the VA statute is unconstitutional b/c its overbroad, dsnt isolate #2 from #1 clearly enough Note: The case contains the only definition of a threat (true threat) ever offered by the court: p. 267: o those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. o M: Must the spkr intend to carry out the threat? (No. Majeed S.103). Or simply intend to threaten? See ALGORITHM near top of outline for split in lower ct.s re: intent (comes from Majeed, S.103) Me: latter seems to be the clear meaning here me: note: also seems to contain a hint of an objective standard: if you intended to communicate something that a reasonable person wdve taken as a serious expression of an intent, thats enough versus, if the court had said: means to communicate an intent, that seems to be entirely subjective: it would only be a threat if you really meant this? o Keep in mind for future: though threat isnt protected speech, Ct will still strike down a law banning threats if the law is viewpt-specific (R.A.V.) o Also note: there are a lot of restrictions on threats in school context (part of todays reading) that certainly wdnt be allowed outside of school context, a lot of these cases havent gone to court yet o Also: what is the relation btw threats and hostile environment? Threats spill over into harrassment Note: a distinction: conduct v. belief: symbolic speech? o 8/9 justices by the time of VIRGINIA believe conduct can sometimes be symbolic speech o Thomas doesnt which is why he thinks cross-burning can be banned Note: M: Some final words on VIRGINIA: its striking that court narrates the history of the burning cross in America , and relates it very specifically to a set of practices associated with the KKK that were intended to create pervasive fear. o Its just a remarkable thing for the court to have done that nothing like this had ever appeared in Supr Ct lang before. o As tho the Ct is paying some kind of atonement for its own failure to deal with the reign of terror that existed in this country. (Finally: we will revisit VIRGINIA when we return to hate speech in R.A.V. (on hate speech, where Supr Ct rejected the effort to regulate terrorizing, threatening hate speech in that case, cross-burning again on the grounds that it was viewptspecific)) o me: not clear how even a revised VIRGINIA statute wouldnt be a case of viewpoint-discrimination: if it were still focused only on cross-burning, and not on all other threats (precisely what Scalia in R.A.V. says isnt allowed)

16 Sept. Interlude: Harlan: One mans vulgarity is anothers lyric. The danger of a hecklers veto: if you put the veto in the hands of listeners, they can shut down any speech by being disruptive FIGHTING WORDS TERMINIELLO v. CHICAGO (1949) (70):

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o o

facts: Terminiello, ranting before big audience, goads them on, calls them slimy scum,etc. Jury receives ridiculous instruction: convict if expression stirs the public to anger, invites dispute, etc. M: ct rejects jury instruction as violation of 1st Amend, even tho there seemed to be some disorderly conduct that brought the police in calling people scum and fascists is actually just what the 1st Amendments for

CANTWELL v. CONNECTICUT (1940) (71): o facts: similarly, Jehovahs Witnesses on whose backs most of 1st Amend doctrine has been written using phonograph on the street, containing obnoxious, offensive put-downs of other religions, theres no threat of bodily harm even tho playing this record might lead to fisticuffs. Convicted of breach of the peace. Supr Ct overturns. o CANTWELL also introduces the possibility of time, place and manner restrictions govt can regulate where, when, how people speak parade ordinances, ordinances re: sound trucks, etc. FEINER v. NEW YORK (1951) (73) o In bad repute o facts: guy on street calling Mayor and President bums, calling for draft resistance, crowd getting riled up o Supr Ct upholds conviction on disorderly conduct, says the police order was content-neutral, and there was clear and present danger of riot tho: some confusion: is this fighting words or inciting (to riot)? o Note: this is an individual who violated a specific directive given by police to stop, v. a statute M: why shd that make govt regulation better? b/c theres less risk of overbreadth the action was targeted only at the speaker, not at some category (tho: me: if we categorically allow this, were granting discretion to regulate speech to police) o M: Still troubling: theres wasnt really clear and present danger of a riot seems to suggest you cant disobey the police even by speaking they cd just walk around telling people to shut up me: sidenote: KUNZ (76) found a statute requiring permits (to hold public worship on the streets) facially invalid b/c offered provided no clear standards to guide discretion of official re: granting permits Permit system as alternative to discretion of police FORSYTHE COUNTY (77) invalidd statute charging up to $1,000 for permits based in part of expected cost to maintain public order (me: hecklers veto) o Note: as w/ everything else, this test over time has become narrower and narrower: FEINER now is used to say: show me the specific danger that was prevented here M: SKOKIE seems as clear a reversal of FEINER as could be imagined: if ever there were a specific danger to be prevented, it was there CHAPLINSKY (1942) (80): The only fighting words case: o facts: again Jehovahs Witnesses Js Witness on public sidewalk called cop a fascist while being guided to police station away from growing mob after ridiculing religion, etc., convicted of violating ridiculous statute prohibiting addressing any offensive, derisive or annoying word to someone in a public place with intent to deride, offend or annoy him Why punish speaker rather than listener? The answer ct seems to give is: sometimes emotional harm is just too great sometimes speech really is like a punch in the jaw M: like Michael J. Fox in Back to the Future: call him chicken, hell fight anyone actual facts of case described in notes in book grotesque police harrassment and negligence suggests the dangers of balancing tests and putting discretion in courts or police o Note: This is the one big exception to the general trend of greater protection to speech even if its offensive its been cut back by EDWARDS (63), COX (65), GREGORY (69) (78+): cases where civil rights protestors, etc., attracted angry mobs, etc., police told protestors to leave, they refused, were arrested, Supr. Ct. overturned as infringement on rights of free speech, free assembly, etc. but like FEINER, its never technically been overturned o Because CHAPLINSKY has never been overturned: it suggests that some speech is not protected if its likely to produce a violent response in an average person Average undefined. Some commentators say that = reasonable. M: I dont think so. I dont think the average person is reasonable ha ha ha and in more detail, heres how CHAPLINSKY has been confined: 1. the fighting words have to be directed at another person specifically

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a. so you cant regulate fighting words w/ a broad regulation b. (many attempted reg.s have been rejected on this ground) 2. and you cant regulate fighting words w/ a viewpoint specificity 3. and you cant regulate fighting words that wouldnt provoke average person a. [so in Back to the Future example, you cdnt pass a regulation forbidding people from calling others chicken M.J. Foxs response isnt average] After CHAPLINSKY: M: know the facts of these cases: STREET v. NEW YORK (1969) (84): Street burned an American flag after learning that James Meredith had been shot. Crowd came. Ct: Even inflammatory words are protected (Was this a pun?) COHEN v. CALIFORNIA (1971) (84): wears jacket in courthouse saying Fuck the Draft, arrested, this is rejected as unconst. partly b/c wasnt fighting words, b/c wasnt directed at a specific person (see the confining of CHAPLINSKY, above) GOODING v. WILSON (1972) (84): holding GA law against use to another of opprobious words overbroad and unconst on its face (facts: Gooding to police officer trying to restore access to army induction center: White son of a bitch, Ill kill you, etc.) (also appears in next section re: overbreadth) ROSENFELD v. N.J. (1972) & related cases (85): guys in schoolboard meeting attended by children calls teachers, etc. mother-fucker four times ct. vacates and reverses, says: see GOODING TEXAS v. JOHNSON (1989) (85): flag-burning protected by Supr Ct (invalidd TX statute prohibiting any person to desecrate the Amer. flag; facts: flag was burned to protest a national policy) even tho act is extremely offensive to a lot of people. Civility or good manners is not a rationale for regulation of speech

The Skokie Controversy: (p. 86+) o facts: American Nazi party wants to hold peaceable public assembly in Chicago suburb w/ 40k out of 70k Jewish residents, and 5k Holocaust survivors (as protest of requirement of $350k bond to hold other assembly in park). Vividly illustrates the problem re: whats an average person: b/c for many people, guys dressed up as Nazis marching in street not a huge deal but for these people, a source of extraordinary trauma o Supr. Ct. says: thats not a good enough reason to regulate speech (tho slightly ambiguous b/c no final decision?) o SKOKIE case seems to be biggest rebuke to FEINER: me: if ever there were a case where stirring up a crowd, causing trauma to them, inviting their violent response, could be regulated, this would seem to be it o Also note: ACLU lost a lot of members over SKOKIE case and in many ways defined that organization as being in the business of defending the speech thats most disturbing TINKER v. DES MOINES SCHOOL DISTRICT (1969) (451) o facts: students wear black armband to protest Vietnam war, wear it to school, suspended. Ct held policy unconst. o 3 diff. versions of a test to be used w/ schools (comes from Posner, NUXOLL, S.110): 1. School must show that the speech will cause disorder or disturbance 2. OR must show that it materially disrupts classwork or involves substantial disorder 3. OR must show that it would materially and substantially disrupt the work and discipline of the school (me: regardless: a pretty high standard for allowing public schools to suppress student speech) o Fortas: It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. Saw this as viewpoint discrimination, singling out a particular symbol. Says desire to avoid the unpleasantness that always accompanies an unpop viewpt isnt enough to justify abridging free speech o After TINKER: School cases: (USEFUL for question on BUSCH) HEALY (1972) (453): local chapter of SDS denied recognition as student organization at state-supported college; Supr. Ct. remands w/o deciding, but says: even if SDS was advocating violence, still not enough to justify denying 1st Amend rts. PAPISH (1973) (453): state univ. cant expel student for distributing newspaper with cartoon of policemen raping Statue of Liberty, article using Mother-fucker BETHEL SCHOOL DISTRICT NO. 403 v. FRASER (1986) (453): Public high school expels student for the stupid speech re: candidate for student govt (I know a man who is firm hes firm in his pants etc.). Supr Ct. upheld disciplining the student largely b/c low-value speech, unrelated to any political viewpoint, and disruptive of schools basic educational mission. M. from indecency section:

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Bethel as opposed to Tinker = a movement toward allowing regulation of speech in school: o As baseline, we read in Tinker case a balancing test: black armband of Vietnam protesting student; children dont lose their rights at the schoolyard gate; though at the same time school officials must be allowed to guard against disruption o Versus Bethel v. Fraser Supr Ct allowed sanctioning of Matthew Fraser, who gave speech nominating classmate for VP of student body, used a lot of stupid sexual puns and innuendos he was suspended, missed graduation, otherwise wdve been graduation speaker sued, won in dist ct won in ct of appeals lost in US Supr Ct. Why didnt he win, even w/ Tinker in BG? Supr Ct, 7-2 vote, simply described speech as wholly inconsistent w/ value of public speech education, including inculcation of civilized Distingd Tinker, b/c speech there wasnt vulgar You can explain this case as shift of people on court. Kind of hard to say this was speech w/o truth value. Hard to say it had nothing to do w/ democracy student body politics! Can explain this either as Puritanism or as 1st model: court trying to create conditions for civilized discussion MORSE v. FREDERICK (2007) (454): Supr Ct. finds that suspension of student w/ banner saying BONG Hits 4 JESUS did not violate his 1st Am. rts.: again, low-value: not a case about political debate over the criminalization of drug use, and disruptive. (Stevens, Souter, Ginsberg dissent.) HAZELWOOD SCHOOL DISTRICT v. KUHLMEIER (1988) (455): upheld high school principles exclusion of stories about pregnancy and divorce from a school newspaper, based on something like endorsement test: people might reasonably have thought the speech bore the imprimatur of the school Says: TINKER sets the standard for when student expression may be punished v. HAZELWOOD sets the standard for when a school may refuse to lend its name and resources to the dissemination of student expression: namely, so long as the refusal is reasonably related to legitimate pedagogical concerns More school/university cases: all the establishment (school prayer, parochial school funding) cases below, and the one Princeton case above, and Leonard Law above

NUXOLL v. INDIAN PRAIRIE SCHOOL DIST. #204 (S.107): o Kid wants to wear the anti-gay t-shirt (Be Happy, Not Gay), goes for preliminary injunction against the schools disciplinary rule against him (it forbids derogatory comments against x y z group to which the individual dsnt belong) o Posner offers all sorts of reasons why the kid shouldnt be allowed to wear the t-shirt (students arent adults, schools arent public meeting halls) then says he probably will win (the Q here is a procedural one re: injunction, irreperable injury, likelihood of success in suit) (partly b/c he dsnt think the t-shirt is actually disruptive) [me: this seems to be a situation where its hard to even make sense of there being an objective view one can imagine the Christian kid having nothing but love and good intentions in his heart, not meaning to degrade anyone or any choice, just wanting everyone to see how happy theyd be if straight v. one can imagine a gay kid feeling enormous pressure not to be gay, shame, etc., and this t-shirt being a source of more shame, trauma, a sign of some generalized hate even] o Haunting this case is the fear of political correctness: Posner is worried that theres kind of a viewpt reference enforcing an orthodox view But its hard to tell what the orthodox view here is: Posner seems to worry that this enforced tolerance is the orthodoxy, whereas concurrence seems to think this is just a minimal protection of safety so: is the social reality one of an orthodoxy of gay rights? or of a continuing practice that degrades people on the basis of sexual orientation? o Sobering thought: are judges in a good position to assess social context? And if not, what wd it take to equip them? Shd there be factual investigations, experts, teenagers testifying, sociologists? Weve analyzed the t-shirts to show its multiple meanings, and social relationships in the school and this might be a defense of Posners opinion: deference to school officials who have a better sense of all this than judges how to create the basic groundrules of decency, and where theyre needed o Sidenote: Posners dismissal of kids contribution to marketplace of ideas (S.109): really? really? Why not limit rights of boring people as well then?

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(Also note: like his hero Holmes, marketplace of ideas playing large role in his decision evaluation of cost-benefit of speech, etc.) Rovners concurrence: all of that was unnecessary: Posner turning TINKER into Mobius strip This is a simple case: under TINKER, which cant be distinguished, school cant regulate the students tshirt just to avoid the unpleasantness associated with the unpopular viewpoint, unless allowing it would substantially interfere w/ education goals, etc. Also: against Posners dismissal of youth speech: Youth are often the vanguard of social change. The classroom is peculiarly the marketplace of ideas.

SUMMARIZING PROGRESS SO FAR principles incitement to unlawful activity threats: There have been and are various carve-outs from 1st Amend. protection: o Incitement to unlawful activity: But: Every idea is an incitement. and the first amendment is meant to protect ideas So incitement becomes a shrinking area of regulation o Fighting words just as you have right to fight back physically after youve been hit (rem. Crim. Law), so you have right to fight back in reaction to fighting words so says court in CHAPLINSKY but only that one time court has vastly retreated b/c of the risk that govt wd regulate whatever speech might provoke a heckler o Threats again, over time, ct has narrowed and narrowed it has to be true threat see VIRGINIA v. BLACK So: in each of these cases, ct originally sd: this isnt even speech, of course it can be regulated! And then retreated, said you cant regulate 22 Sept. OVERBREADTH, VAGUENESS & PRIOR RESTRAINT Overbreadth o as it emerged in cases we read, contains 3 elements: 1. sweeps up on its face (v. as applied) protected speech 2. overbreadth is SUBSTANTIAL (i.e., the amount of protected speech in relation to unprotected speech is substantial) [BROADRICK, 115] not entirely clear what is substantial [as court admits, LA CITY COUNCIL, 116] o Facially invalid statute: sweeps up lots of P compared to little U o Facially valid statute: sweeps up lots of U compared to the amount of P [P = protected speech; U = unprotected speech] NOTE: Is this a ratio? or do you just have to ID a significant number (how many? 2?) under which statute cd be unconstitutional o Dick Fallon (116) argued for a balancing test to determine substantiality, b/c talking in terms of ratio is just made-up: a) states interest in banning the U balanced against b) 1st Amend interest in not chilling speech 3. absent saving construction by authorized court (so the law can be okay if ct.s can find a way to interp. it narrowly to be okay) NOTE: see overbreadth problems below Vague (117) NOTE: see vagueness below o unclear what is prohibited o creates a notice problem Facial challenge v. as applied: An example of a successful facial challenge: A ban against child pornography challenged as violation of 1st Amend ct rejected challenge, saying there cd be speech of value (science, etc.) that included nude pictures of children but surely a lot of the statute covers a lot of unprotected materials o M: but its not like the court did a survey o Note: by contrast: OSBORNE v. OHIO (1990) (114): ct upholding child porn statute that as written was overbroad, b/c state supreme ct. interpd it narrowly before case got to Supr Ct and the properly narrow statute cd still be applied to defendant, b/c he got fair warning: no reason to be surprised his pictures were illegal

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An example of a failed facial challenge on establishment (me: not overbreadth apparently) grounds: challenge under establishment clause to a govt program that funneled money directly to churches to do counseling re: reproduction challenge rejected: o ct. said: laws been passed, but we dont know who the money is going to go to and how theyre going to use it o we reject the facial challenge were going to wait and see how it gets applied

Overbreadth problems: Ex.: when Minow was Supr Ct clerk, Town of Ephraim tried to ban all live entertainment o owner of adult bookstore w/ live nude dancers brought challenge o raises issue of overbreadth wd prohibit all live entertainment Shkspr plays, etc. things that the justices can picture themselves going to o ct. struck the law down o (sidenote: since then, ct. has decided that cities can ban live nude dancing as obscene) Ex. of unclear whether overbreadth applies: A hypothetical: The Patriot Act required librarians not to tell anyone when they receive request for information re: someones library activities book checkouts, etc. so that people wont know theyre under suspicion o Librarians asked lawyers: isnt this illegal? violates 1st Amendment? overbroad? (not vague, really) Prior restraint? o Also has something to do w/ standing: who has the standing to challenge this law? CASES re: overbreadth o GOODING v. WILSON (1972) (109): facts: protest outside army recruitment center, protestor says while being moved away by police: white son of a bitch, Ill kill you, etc., charged with using opprobious words and abusive language in violation of GA statute. Ct. strikes down statute as overbroad (Brennan here: if it sweeps up any speech at all that would be protected, its overbroad) BUT view in Burgers dissent soon wins out: should only be facially invalid if poses a significant likelihood of deterring important 1st Am speech o wins out in BROADRICK v. OKLAHOMA (1973) (115): overbreadth must be substantial o But def. of substantial remains obscure (LOS ANGELES CITY COUNCIL, 116) o see notes above and the danger as always is chilling effect on this protected speech (NOTE: Brennans model seems to be: all speech is by default protected from govt reg., and then some areas are carved out of this for permissible regulation) (Note: irrelevant whether some other, not-overbroad statute couldve regulated this speech constitutionally) ct uses very neat technicality to say that it cant use a narrowing construction (i.e., cant avoid striking down the statute by narrowing its sweep thru interp): says only the state ct cd interp. the state law (v. in e.g. Chaplinsky, which upheld a statute b/c the words it regulated were fighting words, the NH Supr Ct had already long ago interpd the apparently way-overbroad statute in a narrow way) Note: The question is no longer, as it was in CHAPLINSKY (fighting words), whether the speech is unprotected here, it is rather whether the statute, as written, cd reach (substantial amount of) protected speech. Ct. concludes that it can, therefore is invalid o ROBERTS v. JAYCEES (1984, appears somewhere else in outline re: right to associate): conduct isnt subject to an overbreadth doctrine Brennans dissent critical of this exception for its lack of clarity what is the line btw. conduct and speech for this purpose? Note: the overbreadth doctrine also dsnt apply to commercial speech the incentives to engage in advertizing are so huge that we dont have to worry about chilling (and perhaps also implicitly, tho ct never says this: commercial speech isnt that great, wdnt be a big deal if it were chilled and we had more time to think now and then) o BROCKETT v. SPOKANE ARCADES p. 116-7, n.6 KEY ISSUE: party cant raise overbreadth challenge if its conduct is protected by 1st Amend here is the moment we recognize that ct.s are chickens ct.s wd like to use as little political capital, as few braincells, as possible

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THEORY o A criticism of overbreadth doctrine: ct. becomes a kind of hypothetical machine (machine for generating hypotheticals) a criminal can get off if lawyer can imagine some hypothetical protected speech that wd be regulated under the law

you, P, were engaged in protected activity, so we dont have to reach this bigger Q about whether entire statute is unconst. (CB 117 defense of this: ct. wants to invalidate statutes as rarely as possible)

VAGUENESS the notice problem we dont want chilling in the form of people repressing their power of speech out of fear that they might fall under law they arent sure, b/c the law is vague, they dont have notice v. overbreadth: o overbroad is concerned w/: how much is swept in? o vagueness is concerned w/: what has been swept in? (e.g. The law may restrain any speech that can be restrained under 1st A perfectly narrow, by definition not overbroad, but too vague) Ex.: CB: SMITH v. GOGUEN (1974) (118): o statute banned contemptuously treating flag guy convicted for wearing small cloth version of flag sewn to seat of trousers / jeans o ct. struck down as too vague, given that its unclear whether many nonceremonial uses would be considered contempuous Note, tho: White concurred that law was too vague, but thought it was clear that guy here fell within hard core where statute certainly applied, raising Q: can someone, as in overbreadth, challenge a statute for its vagueness if its clear that their conduct is covered? appears the answer is yes: YOUNG v. AMERICAN MINI THEATRES (1976) (119) Ex.: that case we read in Crim Law re: Chicago making it illegal for people on streetcorner to e.g. be annoying people struck down b/c too vague o as this suggests, vagueness doctrine extends beyond 1st Amend (Void-for-Vagueness Doctrine 118) CB: the test of vagueness = if persons of common intelligence must necessarily guess at its meaning and differ as to its application (CONNALLY, 117) PRIOR RESTRAINT in many ways, the core instance that gave rise to the 1st Amendment the reason that the drafters of the Bill of Rights said that Const is incomplete unless we adopt Bill of Rights o b/c British had engaged in prior restrant said permission must be obtained before smthg can be printed and distributed (119) A special presumption under the first amendment against the use of prior restraints (120; Pentagon Papers, Nebraska) Prior restraint: can appear, e.g., in a licensing scheme; or in an injunction issued before speech emerges o BUT: note: some kinds of restrictions in advance of speech are allowed must be content-neutral, clear and precise (not vague), and procedural safeguards (FREEDMAN safeguards, 123-4) must do two things: burden of proof is on censor to show compelling need and must allow for prompt appeal (so, e.g., for a licensing scheme, it has to be done quickly) o so: the phrase: thats a prior restraint! doesnt end the discussion it prompts the above investigation NEAR v. MINNESOTA (1931) (126) Supr Ct develops the outlines of this doctrine o a weird one, b/c its not even clear: wheres the prior restraint here?its an injunction of future publication of types of stories that have already been published CB: facts: newspaper wants to report on Minneapolis police not going after Jewish gangsters, lower ct grants injunction against publishing any malicious, scandalous or defamatory o The case is so important, though, b/c it uses phrases that have nothing to do w/ this case, but have established the outlines of this doctrine, e.g. surely there can be a restriction if the speech thats impending wd obstruct the recruiting service or if the publication of dates of military transports or # of troops (126-7) so far from the facts of this case! newspaper didnt want to publish this info it wanted to continue publishing story about police being in cahoots w/ Jewish gangsters

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but future justices cite military transports, etc. as benchmark of what could be enjoined from publication CB: especially dangerous to suppress speech criticizing public officers me: self-govt rationale of 1st Am CB: and ct (Hughes) says subsequent punishment for libel is the appropriate remedy here (interesting sidenote: CB: in NEAR, Saturday Press was silence for 4 yrs during ct proceedings! 130) CB: LOVELL v. GRIFFIN (1938) (120) o facts: ordinance requiring written permission to distribute lit again, Jehovahs Witness convicted o ct. says statute is invalid on its face: strikes at the very foundation of the freedom of the press by subjecting it to license and censorship o CB: principle: establishes rule against standardless licensing: (as later case summarized it: state cannot vest restraining control over the right to speak [in] an administrative official where there are no appropriate standards to guide his action) (121-22) Kagan: Private Speech, Public Purpose: this rule flushes out bad motive forces the govt to make clear what standard is being used to accept/deny licenses, thus it becomes if the standard is a bad one (122) CB suggests: no clear answer as to extent to which licensing with standards would be okay but Min. suggests you can do this if you present the restrictions as content-neutral t/p/m restrictions see above and below CB: THEORY (123) o Prior restraint particularly bad because: Usually ends up bringing into the govt machinery much more speech than would be the case if govt had to actively seek out everything If permission denied, speech never even gets to the marketplace especially dangerous re: selfgovernment, etc. Makes it easier for govt to rule adversely against a piece of speech than it wd be in court: administrative v. criminal procedure, informality, partial concealment Function of censor is to censor v. this isnt the function of the courts Prior restraint in INJUNCTIONS o A mystique about the phrase prior restraint b/c it arises in the injunctive context: if theres an injunction, its really easy to enforce it w/ criminal sanctions as contempt of court in many ways, thats even more chilling than allowing prosecutor to pursue a case b/c youre already in court, theres no prosecutorial discretion as hurdle o Collateral bar rule: some say its what makes chilling power of injunctions so much a threat: the only way to challenge the injunction is to obey it and then challenge it w/ clean hands if you disobey the injunction, you can no longer challenge it! LIMITATIONS placed on prior restraint doctrine: o MADSEN v. WOMENS HEALTH CENTERS (1994) (132): If you can phrase the restriction not as prior restraint but as a content-neutral time/place/manner restriction, then you might be able to get away with it facts: injunction halting demonstration near abortion clinic holding: ct. said its okay b/c its not really a prior restraint but a time/place/manner restriction gets cited for ct saying this wasnt about content of the speech, just creating a safe space around the clinic So content-neutrality has become another factor in prior restraint analysis o Sidenote: lot of doctrine has emerged re: protests near abortion clinics floating buffer zone etc. what has been rejected is having a zone follows a person it must be a fixed distance around the clinic (SCHENCK, 1997, 305) btw: how cd this be content-neutral? keep in mind that near an abortion clinic, there are often both sides protesting and the regulation is about keeping things safe, etc. Ex. of prior restraint injunction question: Eli Lily case: in-class discussion: o facts: materials released during discovery w/ a protective order, released only to opposing party then expert witness for opposing party releases documents onto Internet (re: drugs, cd publicly shame Eli Lily, etc.) parties not covered by original protective order publicize the documents in the public interest o Q: why shd there be injunctions against non-parties to the litigation? is this a 1st Amend issue? i.e., can illegally obtained information receive 1st Amend protection so long as the party publishing it wasnt involved in (aware of?) the illegality? The lawyers rep.ing the non-parties say: just punish the leakers, not the non-parties the non-parties had no notice, etc.

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But in todays world, w/ todays technology, wouldnt it be a good idea to penalize the parties one-level beyond the actual leaker or, say, punish them if they dont report the leaker if they know hes a leaker, and its illegal to prevent the massive distribution that happens at third degree of leaking? M: Note: this injunction is a prior restraint what makes this special is that theres a public interest in this A much better case for enforcement if the Wiki had named names But at the same time, part of M thinks: its hopeless to enforce this order so the 1st Amend is more important maybe it shd be enforced if it wdve been possible to get all the documents back M: this case for me: its not always the case that more speech is the answer esp. when dealing w/ technical info., disseminating it w/o context, etc., can be very difficult sidenote: right to speak v. right to obtain information ct. has always said 1st Amend = former but isolated opinions here and there have said latter, that correlative right to get info exists, has never gotten majority tho

23 Sept. LOW-VALUE SPEECH (roots in famous Chaplinsky dictum: the lewd and obscene, the profane, the libelous, and the insulting or fighting words such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality 135) BUT: Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. (GERTZ, 136) COMMERCIAL SPEECH o A new category which the cts are themselves not clear about is it really diff than non-comm speech? Ds it get lower/no protection? o building on assumption in CHAPLINSKY that theres some kind of speech that really isnt speech and can be regulated insults, lies, defamation, advertizing what do these have in common? M: not sure maybe not really being about truth-value? In the traditional framework, if any expression falls w/in The freedom of speech, its protected Mill had no problem about state restricting advertising for sale of liquor If you think that the purpose behind free-speech protection is to protect a dialogue that belongs in the public sector, commercial speech might look like its not quite this and maybe you cd even view it as distortion of the marketplace of ideas Philip Morris spent more advertising its products than did all of Pres. candidates in last election On the other hand, if you think self-realization is the core 1st Amend value, thats infringed any time the state restricts info that might be helpful re: your personal behavior (e.g., what soda to buy) o By 1980s, ct recognized Const-ly protected right to commercial speech tho it can be regulated for time/place/manner, etc. and govt has broader power to regulate misleading comm speech than misleading political speech o But: What is the line? And what converts something into comm speech? is it who paid for it? Its not just US that has started to give Const protection to comm speech EU has also under Euro Convention on Human Rights giving it some protection but not as much as other forms of speech so: a spreading recognition of value of comm speech VIRGINIA STATE BOARD OF PHARMACY v. VIRGINIA CITIZENS CONSUMER COUNCIL (1976) (162): Ct has decided [missed case] comm speech can be regulated if: o facts: statute prevented dissemination of prescrip. drug price info o holding: Supr Ct strikes it down o Test: commercial speech can be regulated if: 1. illegal i.e., offering to enter into unlawful transactions, HOFFMAN ESTATES (184) 2. misleading (dsnt need to be factually false 185) also: VIRGINIA PHARMACY offers several reasons for why govt shd have great leeway to regulate factually false commercial advertizing (185)

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or govts interest in regulating is substantial, reg directly advances that interest, and is no more extensive than necessary KEY: solidly established comm speech as protected outside of these circumstances, its protected Then this was loosened up esp. #3 reg just has to be reasonable fit dsnt have to be so strictly no more extensive than necessary BUT: since then, increasing deference to govt jugments about what is legit govt regulation CENTRAL HUDSON GAS (1980) (173): greater leeway (through a four-part analysis balancing test) for regulating commercial speech (test clarified in SUNY, 174) but: CB: 181: still seems very protective of comm. speech: still invalidated RI statute banning liquor ads, 44 LIQUORMART (1996) (175), applying CENTRAL HUDSON test and invalidd FDA condition requiring not advertizing compound drugs, THOMPSON (2002) (179) o tho Breyer wouldve upheld regulation, just as he wd uphold regulation of campaign finance $: me: liberals more willing to regulate commercial speech, as though its closer to an econ. regulation than a civil liberties question BG: At one time, advertisizing re: the price of drugs was forbidden [just as once upon a time, lawyers didnt advertize, it was viewed as a debasement on the profession] but majority decided: the public may be interested more in the price of drugs than in some political campaign and to get in the way of that flow of info is against principles underlying 1st Amend

3.

another issue: Whether theres a danger that regulations requiring disclosure might violate 1st Amend by compelling speech o US v. UNITED FOODS (2001) (186): invalidd law requiring mushroom growers to give contributions to generic mushroom advertizers ct said that was unconst. form of compelled speech even tho the speech was commercial speech distingd from earlier case, GLICKMAN, where similar law was upheld b/c it was just one part of larger commercial regulating scheme o Similarly in LORILLARD TOBACCO CO. v. REILLY (2001) (177): re: forced disclosures re: tobacco products in MA CB: wouldve prohibited tobacco advertizing in almost all of Boston, ct. strikes this down as violation of 1st Amend (actually, only strikes down under 1st Am re: cigars and smokeless tobacco, says its preempted re: cigarettes by fed legislation) M: (If we cant regulate advertizing in this way, then) why can we have compelled warnings re: risk of tobacco? M: Well, probably a cost-benefit analysis risks here so clear, outweighs the other side BLOGS o M: Are blogs commercial speech or not? They are a commercial business, even if not directly advertising. Might be promoting a lawyers business, might be subsidized by a business. NIKE: o One of most interesting comm speech cases recently: o facts: 48 Hours does Nike sweatshop expose Nike responded by publicizing its code of conduct, defending its conduct, news releases, etc., and claimed then that they were exercising pure speech rights, not comm speech rights. BUT: CA has interesting consumer protection law: allows citizens to accuse business of disseminating false info unique among states by allowing basically anyone to have standing to sue someone sued Nike and it responded that the misstatements in its materials were part of protected free speech o Posture: CA Supr Ct decided in favor of citizen challenger Supr Ct dismissed the case on remand, parties ultimately settled, and the CA law was modified o As a result, this area has been left in disarray Larry Tribe: net effect of this ruling is to make it extremely dangerous for any business or other org to utter anything other than the most vapid and innocuous statements about its activities here and abroad Qs: o If its not false or misleading, shd comm speech get equivalent protection as other kinds of speech? so hard to draw line, why not just say its all speech, all gets protection

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o o

on the other hand, if Nike was trying to market its good treatment of labor they have a bottom line isnt that really different? and some principles underlying 1st Amend self-actualizations, autonomy doesnt apply to corp.s? M: but what about labor unions, political organizations dont human beings find self-expression through joining groups like this? (KEY: back to Eule one of key recurring tensions in course) the comm/non-comm distinction dsnt seem to line up precisely w/ individual/group distinction (b/c also: an individual can have comm speech kid w/ lemonade stand sign) [sidenote: were the only democracy that treats campaign money as speech] (M seems to want to draw a distinction between speech that aims just to make money and speech that aims at self-expression, etc., the kinds of things we think about re: 1st Amend) Another recurring distinction in the reading btw comm and non-comm speech is: less risk of chilling re: commercial speech (e.g. VIRGINIA PHARMACY p. 166 n.24) Theres an unstable balance right now btw. consumer protection laws that regulate what a commercial entity can say and expanding protections for commercial speech the two coming into conflict now and some saying: we shd shut down expanding protection for commercial speech its different, low-level, shd only require some reasonableness test others: middle-ground: the test for a legitimate regulation shd be higher than this, but lower than ompelling interest review

LIBEL (and falsehoods, etc.) (another form of low-value speech) NEW YORK TIMES v. SULLIVAN (1964) (136) o facts: CB: NYT runs full-page ad from civil rights movement including descrip of things done by police in Montgomery, AL, Sullivan (a Commissioner in the city) brings civil libel action; all agree that some statements in ad werent true; jury returned judgment of $500k for Sullivan; Supr Ct reverses: AL libel law is constitutionally insufficient evidence in case was constly insufficient. o Holding: There has to be heightened protection of speech thats criticizing public officials esp. re: injury to reputation of public officials o A state regulation is okay only if the moving party can show actual malice (140) M: (dsnt really mean actual malice: means knows its false or indifferent to its truth well publish anything! no fact-checking, etc.) me: the key word in all this: once I show that youre a public figure, you have to show I had actual malice (knew it was false, or, etc.) in order to recover anything in libel or IIED suit and proof can be shown w/ convincing clarity (smthg like clear and convincing evidence, more than reasonable doubt standard) o M: see ftnt 10, p. 140 Brennan says Even a false statement may be deemed to make a valuable contribution to public debate (b/c brings about clearer perception of truth) so maybe false speech is doing something good and shd be within freedom of speech o (me: also good point: [Erroneous] statement is inevitable in free debate, so it must be protected for debate to have breathing space needed to survive. 139, 140: to avoid newspapers self-censoring) o (sidenote: again, as in Brandenburg: Black in conc. helpfully demands an even greater protection absolute immunity for press criticism of the way public officials do their duty, 142 making majority seem moderate by comparison) o (another famous phrase: the central meaning of the First Amendment 139, 142 is that Sedition Act of 1789 isnt constl, even tho it was never invalidated as such = seditious libel cant be made the subject of govt sanction this is the great threat: that govt will silence its critics, lead to tyranny) o This decision celebrated by free-speech-lovers (saw this as returning to core of 1st Amend: preventing govt from suppressing speech criticizing public officials core political speech) also: clever argument 144: subsidizing press investigation of public officials to offset market failure: the value of exposing corruption, etc., is greater to public than public pays press for it others troubled by debasement of public life (related note: The Death of Discourse, 169: On the eve of the twenty-first century, Americas marketplace of ideas has largely become a junkyard of commodity ideology.)

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Since the opinion: this doctrine has been extended beyond even public officials to public figures (CURTIS PUBLG CO. v. BUTTS, 146) o not even Brennan wdve expected this (he distinguishes libel generally and libel re: public officials, 138) o public figure = you must thrust yourself into the public eye (GERTZ, 148) (dsnt include people who didnt intend to become famous e.g. divorced Firestone scion, 150, or accused Olympic Park bomber Richard Jewell, the guy who became target of anthrax investigation, family members of famous people, the guy accused of Olympic park bomber, the bodyguard who saved Reagan didnt choose to become a celebrity turned out he was gay, this was revealed, he thought this harmed his reputation) You can also be a limited-purpose public figure HATFILL v. NEW YORK TIMES (S.119): Dr. Hatfill became a limited-purpose public figure by thrusting himself into the public eye as expert on bioterrorism, making it fair game for Nicholas Kristof to say FBI should be investigating him o (so Hatfill wd have to show actual malice, cant, thus no IIED judgment for Hatfill.) o The test for limited-purpose public figure is five parts, on S.127 but: o getting caught up in court, etc., dsnt make you one, nor does committing a crime (WOLSTON, 150) o Guy who sued Proxmire for libel: getting federal funding for monkey research dsnt make you one, 151 if a plaintiff is truly a private person, that person can sue for libel (GERTZ v. ROBERT WELCH, 147) libel law still exists! you still have to prove its false, hurt your reputation (interesting: CB 148: a principle behind public/private distinction is that public figure will be better able to correct the error) sidenote: M subscribes to People just to know whats going on in Amer society o Note: parody of public figures is particularly protected e.g. HUSTLER MAGAZINE v. FALWELL (1988) (153) Rev. Falwell & mother, fake interview, drunken incest in outhouse o CB: also establish that these protections extend beyond libel to IIED claims Also note: M: rarely noted in these conversations: just b/c you have the right to do something dsnt mean its the right thing to do e.g., the publication of the Danish cartoons re: Mohammed o [unsettled, didnt discuss: CB: DUN & BRADSTREET (1985) (151): lower ct decision said that non-media (incl, here, credit reporting agency) doesnt get GERTZ protections against libel, ct affirmed judgment but refused to address the non-media issue] NOTE: There are other ways to adjust the doctrine on the issue of libel: o maybe lower the level of damages to a point that they wdnt threaten the press: maybe you get only symbolic damages ($1), or eliminate punitive damages (Whites conc. in DUN & BRADSTREET, 143; Smolla, 145) o What you see in a lot of libel actions brought by public figures: they pay out of pocket, know they have no chance of winning, much less winning money damages theyre using the suit as a form of speech, showing their outrage, protesting their innocence

[In-class case: A company selling a fantasy baseball game used players names and stats for a while without license, then signed license b/c seemed right thing to do, later stopped paying, now sued: Q: should they have to pay to use players names and stats? Company says MLB shouldnt have a monopoly over fantasy baseball industry they didnt create it; and if they can require a license, they can make it extortionary and shut out all other fantasy baseball leagues also, interests of players and league arent affected by fantasy baseball if anything, they get more business as people become more excited about baseball We want to provide incentives for people to come up with new, desired businesses like fantasy baseball if they cant profit, people wont bother Theres some balancing test re: commercial speech, applied by 8th Circ., that decided the 1st Amend Q in this case, and Fantasy Baseball Company (CDC) is arguing the decision should be upheld, Supr Ct shdnt grant cert MLB says: Supr Ct must decide whether you can bargain away your 1st Amend right in this case

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MLB also says: this is no different than selling a video game w/ visual representations of players, which wd clearly not be protected speech, [clearly infringes copyright] Why is this any different than selling t-shirts with movie stars face on it? The face really hinges on this being baseball, supposedly Americas past-time, source of endless judicial exceptions (e.g. in the bizarre anti-trust cases) and remember: people can still do fantasy baseball, just not commercially Actual outcome: Supr Ct denied cert] 29 Sept. LOW-VALUE SPEECH CONTINUED (already did commercial speech and libel): OBSCENITY (lewdness, indecency, with a focus on protecting minors) THEORY 2 views re: obscenity generally: o 1) Obscenity as kind of pollution: no redeeming social value of speech that is appealing to sexual feeling the government should be able to regulate b/c its actually harmful, coarsens the social fabric the anti-porn movement (MacKinnon, A. Dworkin, etc. feminists) is modern incarnation of anti-obscenity movement should be regulated to improve the social environment, esp. to protect women against gender violence based on scientific studies asking whether watching of pornography increases proclivity to violence historically, the focus had been on protecting minds of children; today, focus is on protecting women from violence (CB 192: Schauer: no cognitive content, hardcore pornography is sex, not speech, therefore isnt protected) o 2) sexual dimensions of expression shd be treated as part of the pallet of human expression: there is social value it shapes mores, etc. the evidence linking porn to gender violence is disputable the freedom of imagination and at best, there might be some non-cognitive dimensions of obscenity/porn, but its very hard if not impossible to separate that out from the cognitive, protected areas M: And taking a step back: why is it so different to appeal to sexual feeling, when appealing to other forms of feeling is okay? o you might say: sex is different b/c its an uncontrollable urge o well, then, we shd also not protect speech that appeals to hunger HISTORY One interesting thing: not much talk of originalism here: o one reason: obscenity was not historically banned its a very Victorian phenomenon consider Shakespeare, etc. very obscene esp. as performed here in Amer Rep theater o many Amer opinions cited HICKLIN (Brit opinion, 1868) (187) to suggest theres a longstanding trad of banning obscenity in England which included the test of obscenity: whether the tendency of the matter [is] to deprave and corrupt those whose minds are open to such immoral influences but this was a Victorian movement, not something w/ long pedigree (was used to ban Flaubert, Lawrence, Joyce) From ROTH (1957) to MILLER (1973): o Warrens cts frustrated, unsuccessful efforts to define obscenity o period in which Amer courts struggled to come up w/ some sort of standard/test that wd be useful o ROTH v. U.S. (1957) (188): Brennan writes majority opinion upholding convictions of Amer. Aphrodite lit magazine w/ pictures so that he cd shift the standard from the one in HICKLIN to one allowing more room for speech: test = whether average person (not corruptible child) wd find that material appealed to prurient interest yet the test launched x years of dispute in court

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(CB: 197: REDRUP (1967): if at least five members of the court, applying their separate tests, deem it not to be obscene, then per curiam reversal) o 1967-72: Supr Ct turned into movie theater: justices watched many films & overturned convictions in over 30 cases necessary b/c court hadnt come up w/ an operational standard Stewarts 1964 conc. opinion in JACOBELLIS (195-6) falls right in middle of this chaotic period: perhaps I could never succeed in intelligibly defining obscenity. But I know it when I see it, and the motion picture involved in this case is not that. o To make conclusion about obscenity of a film, they had to see it o movie days: in The Brethren, Woodward & Bernstein describe movie days, clerks and justices w/ popcorn Justice Black refused to go, saying it was all protected speech J. Douglas also held absolutist position but went to films anyway [sidenote: Douglas, sex fiend, see Klarman notes] according to Brethren, clerks had crib sheet: e.g., Brennan = penetration okay, but no erect penises! (the limp dick test) o During this period, academics debating: does 1st Amend protect only speech w/ political dimension, or art as well? a cultural struggle so this obscenity debate a part of the larger debate o [Sidenote: another great phrase: BUTLER v. MICHIGAN (1957): Frankfurter: the state may not reduce the adult population of Michigan to reading only what is fit for children.] Near end of this period of dispute, STANLEY v. GEORGIA (1969 not always taught in this context; 9-0 decision) (197): GA cant, consistent w/ 1st Amend, criminalize the private posession of porn even if sale and distribution of that material cd be criminalized the actual poss is Constly protected o home is special place, 4th Amend dimension but its a 1st Amend-based decision privacy dimension o and Court says: individual has a right to satisfy emotional needs in the privacy of his own home me: also: the right to receive information and ideas, regardless of their social worth, [is] fundamental to our free society For if the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. sidenote: in 1990, OSBORNE v. OHIO (218) Supr Ct ruled 6-3 that STANLEY dsnt extend to porn involving children M: a turning pt and only 4 more years til MILLER v. CALI o MILLER v. CALIFORNIA (1973) (198): When in doubt about substance, go to procedure ct concludes: when in doubt about obscenity, let local communities decide. overruling ROTH test, still the test to this day o By this time, Brennan had shifted: having watched the ct struggle over this period, he concludes that reg of obsc is fraught w/ impairment of expression he comes to believe that obscenity is protected form of speech can only be regulated if targeted for minors or unwilling recipients but hes in minority o and Nixon has been (re?)elected partly on platform of reining in justices appoints as Chief Justice Burger, who writes MILLER o 3 part test in MILLER (199): 1. whether the average person applying contemporary community standards would find that the work taken as a whole [v. one shot, one word] appeals to prurient interest [this non-cognitive sexual feeling M: tho this is sometimes caused immoral sexual feeling, M cd never figure out what disting.s moral/immoral sexual feeling] o prurient interest? M: What defines prurient interest? unclear. Something about the diff. between a normal interest in sex fine v. prurient interest, which isnt. But this is a conclusory characterization, dsnt provide much guidance. K. Sullivan: recklessly crazy arousal and disgusting M: I dont know how to test this. Maybe involves a conflict btw id (Im aroused!) and superego (but thats disgusting!), if youre a Freudian 2. patently offensive depicts/describes sexual conduct in a way specifically defined by state law seems to go back to prurient interest 3. and the work lacks literary, artistic, political, or scientific value

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Whether the work taken as a whole lacks literary, artistic, political, scientific etc. value has ended up being mirror of 2: what dsnt have lit, art, etc. value, appeals to prurient interest o Note: when this was decided, Boston was a center of Puritanism, restriction, while Utah was Wild West, anything goes v. today, thinking of it as NYC v. Iowa o Note: this affects national markets if youre distributing nationwide, you have to meet most stringent law? and new distribution networks like Internet causes great challenges (CB 208: ASHCROFT v. ACLU (2002): Child Online Protection Act not invalid on its face applied local community standards in determining obscenity, even tho poster on Internet has no idea where file is going to be viewed see below also, same case) but for a time, MILLER established peace o Also: what do we do about divided communities? Rap groups might divide a community o Risk from discretion of discriminatory application: Actual prosecutions rare but its a tool that can be used against undesirable people, minorities K. Sullivan: The obscenity law is like a loaded gun for the govt. L. Tribe: In practice, whats happened is a class-based distinction in enforcement: a protection of Hustler mag.s that you can delivered to your home but are expensive protection of eroticism, art-house movies, which may be extermely violent & mysoginist v. much more room for regulation of adult bookstore, peepshows a lot of action now in zoning area, time/place/manner restrictions e.g. Boston tried to clean up its area on edge of Chinatown old case: CB: 201: PARIS ADULT THEATRE I v. SLATON (1973): allowing regulation of adult movie theatres stemming the tide of commercialized obscenity and introducing new rationale (diff. than the trad. protecting children one): quality of life in the community Another landmark in the zoning area: JENKINS v. GEORGIA (1974) (207): mere nudity is not per se obscene so even in efforts to regulate peepshows, adult bookstore, mere nudity is not enough o facts: came up over challenge to Mike Nichols Carnal Knowledge Principles after MILLER: o One still cant say material is obscene until 5 members of ct., applying unclear test, says its obscene (Vermeulian decision-rule!) o Okay to ban offensive material that is also sexual, but not offensive material that isnt sexual o Consenting adult receiving the material isnt enough of a defense to an obscenity regulation The issue of outlier communities remains: communities that are really sensitive to smthg: o 3rd prong search for sci, lit value that does allow for appellate review v. having to let juries (community) decide and then helps fix problem of outlier communities to some extent, helps protect against them M running through test as it stands, as it has been refined: missed missed Designed for deviants, e.g., sadists Average person includes missed So: local control w/ some backstop of national review. Along the way, a new category seems to have emerged: o indecent materials = protected speech: dont conform w/ standard morality but [missed] Theres only been one big development since MILLER: N.Y. v. FERBER (1982) (212): o Supr Ct upholds statute that bans child pornography content-based prohibition okay here relied on statutory definition that proscribes sexual material involving children as models or actors o w/ this case, the ct opened up whole new lines of analysis: state has more latitude to protect children from being used in the production of porn than it does to protect the community from having porn in its midst like an expansion of child labor laws theres an exploitation/trafficking dimension to this as well o This theme actually led to revision of STANLEY v. GA see above you might say: a new Victorian era, focused now on child porn

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o o

OR: you might say, a reaction to a new explosion of this kind of material Notice: the definitions not tied to obscenity (pornographic depiction of children, like obscenity 212) its simply tied to a sexual performance may have any number of lit, art, sci values In the FERBER case, the individual who faced prosectuion tried to argue overbreadth: even if Im doing smthg problematic, what if this very statute allowed prosecution of people who performed Hamlet and had them making out argument lost M: the imaginative power of govt protecting the bodies of children Questions: M: How does this norm work when its not a child but somebody who looks like a child thats where the action has moved: the compelling interest of protecting children is at its strongest when theres an actual child involved but state has defended going beyond that b/c even use of fake children sustains the market, makes it more likely that real children will be used So: M: What about virtual children? next case:

ASHCROFT v. FREE SPEECH COALITION (2002) (215): Supr Ct rejects the Child Porn Prevention Act of 1996 which bans depictions of child porn, whether real children or not: o M: says govt cant ban child porn based on concern that children may some day be used here, the Hamlet argument works, tho used w/ Romeo & Juliet cd ban Traffic, Amer Beauty, Zeferellis R &J o OConnor writes dissent: yes, its unconst to ban adults pretending to be children, but she thinks it wd be fine to regulate virtual front computer-generated CB: RENO v. ACLU (1997) (230): invalidd two sections of Communications Decency Act of 1996 prohibiting anyone from making indecent communication w/ someone else over Internet knowing that theyre under 18, or knowingly making anything indecedent available to under 18s. Invalid b/c overbroad. o CB: ASHCROFT v. ACLU (2004) (232): upholding injunction against Child Online Protection Act (punishment for people posting for commercial purposes things harmful to minors), b/c there are less restrictive alternatives: filters US v. WILLIAMS (2007) (S.153): Ct (Scalia) rules that federal statute prohibiting pandering of child pornography doesnt violate 1st Amendment o statute was Congrs PROTECT ACT 2003 (its attempt to correct statute for problems court found in ASHCROFT v. FREE SPEECH COALITION: b/c here, you cant be convicted for pandering virtual child porn) o speech can be regulated b/c the activities described were illegal Offers to engage in illegal transactions are categorically excluded from 1st Am protection (S.154) o sidenote: why is it okay to ban speech offering to sell illegal drugs? M: Contracts can be regulated you cant contract to sell your children or yourself {missed} o Advocates have reasoned by analogy w/ FERBER to argue for regulation of pornography The focus on porn has been a national preoccupation in this country often a mystery to people in other countries o two presidential commissions o coalitions of far right wing w/ feminists o scholarship, political conversation, etc. By contrast: How about regulating speech that appeals to VIOLENCE? o this Q has gotten much less attention and there appears to be no avenue for logical regulation the closest wd be test for incitement, which of course provides a lot of room req.s intent to produce unlawful activitiy immediately, etc. o Think about ratings to movies its really not about violence so much, just about sex. o and there is political interest in this: M gets calls from Govs officers asking about ways to ban violent video games o One distinction: violence is actors v. pornography involves people really doing something so, actually, snuff films wd be the parallel, and these are presumably regulated? e.g. GINSBURG v. NY (1968) (196): statute prohibiting material harmful to minors (accepting idea of variable obscenity something obscene to minor might not be to adult, and govt can ban sale to minors of what wdnt be obscene to adult) but only focuses on sex, v. violence (210: sex v. violence regulation no tradition of regulating violence, and Stone thinks for that reason alone a bad idea: bad to start from scratch) o Posner in AMERICAN AMUSEMENT MACHINE ASSN v. KENDRICK (7th Cir. 2001) (CB210): the diff between sex and violence is: people need to prepare for a world in which violence occurs v. no need to prepare for a world in which unnatural sex occurs

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also: compares video games to checkers, baseball, etc., M: notably doesnt compare it to wrestling, which we do regulate (b/c people cd be killed in it!)

The impact of new technologies: the front line of this doctrine now Inet access, etc. o possibly a technological solution preferred to a legal one: rather than banning materials from library, require libraries to have a filter before child can use the Inet in a library (210, ref.ing U.S. v. AMERICAN LIBRARY ASSOC. (2003)) that case involved conditions on federal funds (well discuss later; me: DOLE) o note: the Ct has been very impressed by filters (see also ASHCROFT v. ACLU above) just like a librarians decision of what to acquire, which books to buy this is something govt is free to regulate

6 Oct. MORE LOW-VALUE SPEECH (having done commercial speech, libel, and obscenity) GROUP LIBEL and HATE SPEECH BEAUHARNAIS v. ILLINOIS (1952) (244): Allowing govt to regulate of hate speech. o Never overturned, but in bad repute. o One of the cases that was always cited, but always w/: Probably not good law. o facts: Leaflet urges whites to resist blacks and their criminality. Statute at issue prohibits publication that talks of criminality, lack of virtue, etc. of a group that exposes them to contempt, would be productive of riots, etc. o holding: Frankfurter (Austrian Jew, no doubt victim in his life of various forms of hateful speech) writes opinion for court allowing restriction of leaflet b/c exposes members of the group to contempt, derision, obloquy, or conducive to breach of the peace/riots. Construes this on analogy to libel: its as tho there was false/demeaning statement about individual, but here its about group. And since libel is historically outside the protection of the First Amend, this is too and can be regulated. o M: Here are the prob.s that lead to claim that this isnt anymore good law: 1. it claims that this stuff is not speech a. But libel has since been viewed by the US Supr Ct as w/in the freedom of speech NY Times v. Sullivan (so its low-value speech, but its speech were not going to pretend its not speech) 2. Not even clear that the quoted law was banning libel. It was banning something but libel? a. E.g., in listing the defenses available, theyre only to show good motives and justifiable ends theres no defense of its true! And we know that libel is falsities. b. So what community is banning is negativity, potentially even if its true? How wd one even measure the truth of a stereotype? i. e.g. the claim here risky to approach this but crime statistics might support the idea that Af-Amer.s convicted at higher rate, tho this might have to do w/ racism of the system, etc. 3. today, we could easily strike down the statute w/o going to the group libel category we could go to overbreadth or vagueness we cd easily strike this down on that basis. o So the holding, the facts of this case, have been overtaken by events on every score. The ct tries to rescue its decision by saying its about fighting words this dsnt quite work, as dissenters indicate, b/c fighting words had to be targeted to individuals, and this is by def. about the group as we saw in SKOKIE case efforts to bar march failed completely o So: Beauharnais might not come out the same way today M: But maybe its a good thing this is still on the books? B/c it at least makes a gesture in the direction of the 1st theory from Post (i.e., Mieklejohn, govt as setting rules for ideal discourse)? that there are some preconditions for free speech classroom model cant call people kind of names that interfere w/ their ability to participate as equals in the community (i.e., the marketplace requires some regulation, cant wholly self-regulate 250) o The crucial sentence in the case is: (M: crucial, yet I completely dont underst what its talking about):

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we are precluded from saying that speech concededly punishable when immediately directed at individuals cannot be outlawed if directed at groups with whose position and esteem in sociey the affiliated individual may be inextricably involved. (246) Double negative! You know youre in trouble when ct is relying on dbl negative key is creating analogy to individual libel, then dbl negative saying its not exactly the same More recently: When public univ officials tried to adopt hate speech doctrines, they pointed to BEAUHARNAIS and ct.s rejected the argument in each case So, in most recent round, courts have rejected every single effort to regulate hate speech . Suggesting weve moved even in the classroom context to the 2nd model in Post: the libertarian get used to it model, the freedom of expression model, etc. And the Stanford code, drafted by Free Speech scholar Tom something, basically cut and paste from BEAUHARNAIS shot down by CA passing Leonard Law (see above) So: how do we put these pieces together? RAV, Virginia v. Black, Beauharnais

R.A.V. v. CITY OF ST. PAUL (1992) = not even bothering to address whether hate speech is protected or not protected, just deciding a case based on viewpoint discrimination: impermissible o facts: teenager burnt a cross on a black familys lawn, charges under statute prohibiting display of burning cross, swastika, or other symbol known to arouse anger on the basis of race, color, creed, religion, or gender. o holding: statute violates 1st Amend: Scalia: Even if speech at issue is outside The freedom of speech, the government cannot regulate it if it is a content-based restriction what is the content-based restriction here? that the speech pertains to race, religion, creed, color, gender thats content Scalia most notably is concerned about political maybe b/c hes experienced this? ah, Scalia St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules (255). also: CB: Stevens dissent, called wordplay by Stevens, argues that this isnt content-based, its based on regulating just a special harm (also recurs in notes, 280) o Justices dont agree on the reasoning (overbreadth, etc.), but they do agree that carving out certain topics (like certain hate speech) is content restriction o sidenote: a lot of discussion in legal lit: some say this is not only content-based, but viewpoint-based Could even be viewpoint restriction because it bans only the intolerant viewpoint rather than both that and the tolerant statements not just based on the topic, but the angle you adopt on the topic -- this ordinance only forbids the intolerant attitude twd these categories, not the pro-tolerant attitude Cass Sunstein has done his gymnastic best (260) to argue this is not a viewpoint restriction: b/c anti-white speech is banned as much as anti-black speech He has tried to make this not viewpoint-specific since both anti-white and anti-black speech are limited, etc. but M thinks the former argument is better: it is viewpoint-based me: Note: CB254: some think R.A.V. stands for the complicated principle: [When] the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea of viewpoint discrimination exists. o Ex.: state can decide to prohibit only the most obscene of the obscene even though this is a content discrimination; but state cant prohibit only those obscene things that include offensive political messages. Rejection of Posts model 1, which says that there are certain predicates to create a world in which people can have free conversation also a hint of the idea that this is not valueless speech o Keep in mind: VIRGINIA v. BLACK (govt permitted to forbid cross-burning: all but Thomas agreed that crossburning is expression but w/ intent to intimidate, is a true threat falling outside protection of freedom of speech) but its cross-burning, just like R.A.V.! The only diff in statute is that latter says burning cross with intent to intimidate M: WISCONSIN v. MITCHELL (1993) offers important bridge between the two o After watching whites beating blacks in Mississippi Burning, blacks go out and beat whites. Receive hate-crime penalty enhancement. Upheld: o Upheld higher penalties in criminal cases where the victim was chosen because of his or her race

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Distinction is that this addresses the greater harms of hate crimes Conduct involved here is conduct, not speech, and the government is allowed to address the conduct and the enhancement is not a punishment for speech M: Why not? Could government pass a law that makes arson more punishable if the thing burning is the flag?

(interlude: as comparison: R. v. KEEGSTRA, S.225, Canadian hate-speech case just as Min. said: 1st thing Canadian Supr Ct does in case we read is look to international sphere very unfamiliar in Amer context o Canada is the democracy whose Supr Cts Const. opinions are prob cited more than any other around the world today then does balance test: is the regulation proportional to the interests at stake? freedom of expression is valuable, but only if its recognizing community (not a US view much more communal some say this is b/c there was never a Wild West in Canada, never a westward expansion where the mounties were there or that Canada never had a democratic revolution we celebrate the law-breaking founders v. Canada just evolved into the state it is today and many argue that Canadian cultural background, while diverse, was committed to the creation and protection of group identity from the start, in a way thats not the case in US) Also: Canadian Charter relatively new, cd be drafted w/ attention to many of the post-WWII Const one reason why Canadians often go around now and help people to draft Const. M: Very crude, but: Canadian approach embraces first model (Mieklejohn) much more than US approach: govt is handmaiden for creation conditions of speech in which ideal communication is possible govt is not the enemy; v. US much more aligned with second view freedom as end in itself the end to be protected is maximal participation Note: Canada aware of poss of govt overreach! E.g., Canadian officials have tried to stop media coming in such as a video of Nelson Mandala, Rushdies Satanic Verses and dissent in Canadian opinion says: there cd be a chilling effect) Can Wisconsin and RAV be reconciled? and Virginia v. Black (2003)? o Prohibition of cross-burning with intent to intimidate is upheld o Cross-burning is expression, but with intent to intimidate it is a true threat, which places it outside the area of protected free speech o As long as there was intention to make the threat (not required to intend to carry out the threat) o But, needs to be demonstration of a threat in this case (cant make cross-burning a per se threat) o Only difference between this and RAV is that Virginias requires intent to intimidate, which is the reason that the punishment is allowed Content and viewpoint discrimination are the most disliked because freedom of speech tries to protect a variety of ideas Or maybe all cases say that more speech that is pure speech will be protected even when it is disgusting, but only until expressive dimension is associated with conduct that the government can regulate (looking more like model 2) o Hate speech regulations fail b/c content-based, and maybe viewpoint-based, discrimination BUT action that itself cd be viewed as proscribable by criminal law trespass, arson, assault can be made more serious crime if theres an expressive dimension to it, and the expression includes a threat dimension o This is a little bit of a contortion though: when it looks like what ct is doing in VIRGINIA is rare moment where ct steps outside of record and says: we understand cultural meaning of cross-burning on the lawn of an Af-Am family is a very specific, American communication that invokes in its very act the history and maybe the ongoing practices of race-based vigilante violence. o And on that view, its RAV thats an outlier. Can any of these cases be squared w/ one or another of our two models? o RAV suggests that we shouldnt just have more speech and get used to it, dsnt seem to be saying model 2 its saying: when you regulate, ban more speech, not less: ban the speech that targets the political group as well, treat all victims the same o On the other hand, maybe you can read all these cases as saying: even disgusting speech will be protected only when its associated w/ conduct can the govt regulate it which looks more like model 2. A leaflet wd be protected. Pornography Regulation (Low Value Speech) (276-283, all just notes, excerpts)

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-McKinnon and Dworkin spearheaded attempt to limit pornography McKinnon: developed sense of harassment on the base of gender (civil harm), and taking a page from that experience, she proposed to do something similar with pornography, to create a civil, private cause of action explicitly modeled on tort law, enabling individuals to sue for money damages in an effort to shut down producers of pornography and deter its production -Whatever pornographys boundary is, it is not protected speech; rather, it is subordination and discrimination and can be regulated Depiction of sexual domination of a woman (often violently) by a man is degrading, discriminatory, and she tries to align the harm of pornography to palpable harms that everyone agrees exist (e.g. harm of the woman used in the making of the pornography-like in child pornography discussion, desensitization to violence caused by watching lots of pornography) -Critics argue that this is just censorship, since pornography is speech And that this will turn into right-wing suppression of everything that has to do with sex, rather than concern for women that just happens to regulate something sexual -Difference between pornography and obscenity: according to McKinnon, pornography is about domination and violence, so according to her there are some obscene things (appealing to the prurient interest) that are not pornography, and that pornography is the harmful one Under McKinnon, there would be nothing like prong 3 of Miller test: no ability to stand back and see if there is literary or artistic value, so in that sense regulation of pornography would be more fiercely regulated that obscenity Overarching themes: 1. 2. 3. Regulating pornography is under-inclusive: we still have all kinds of speech that is protected, though it sanctions violence and violence against women in particular Totalizing worldview: all social interaction revolves around violence and gender, and anyone who disagrees is just mistaken because society brainwashes us about women, violence and sexuality Whether the gender politics of this are fully understood: is there women-friendly porn? Gender politics are difficult to sort out, since McKinnon says anyone who is not with us is brainwashed a. McKinnon and Dworkin hijacked the womens movement because once they put this at the center, it was all anyone wanted to talk a about because it was a strange marrying of the right and the left, had women on both sides of the argument, etc.

-Low Value Speech is generally the label given to categories of speech where we anticipate that the balance is more favorable to the governmental interest One reason to have the balancing analysis but still have some degree of categories is to look at the hierarchy of values that the First is supposed to advance -Inclusion of low value speech within the Freedom of Speech is better because it promotes the discussion of what should be protected, but on the negative side it is not clear who is in a good position to make this hierarchy of what kinds of speech are better than others -But categories may have an undertow of perpetuating that the government decides which kinds of speech are worthy of protection End of low-value speech 13 Oct. (interlude I: is there a unified field theory in 1st Amend? Stevens (alone) says: there are no special, carved out doctrines, just the general 1st Amend)

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(interlude II: how you characterize a particular case will determine outcome; e.g., a case re: nude dancing cd be characterized as content-based/lewd, or as (missed: what? should be able to do this on own)) CONTENT-NEUTRAL RESTRICTIONS (time, place, and manner; public forum regulation; private forums) specialized First Amendment doctrine: unusual frameworks, exceptions, etc. PUBLIC FORUM DOCTRINE (from PERRY (1983) (332), interschool mail system): 1. Traditional Public Forum a. Strict scrutiny except for content/vp-neutral Time, Place, Manner restrictions, and even these must be: i. reasonable restrictions (me: i.e., narrowly tailored, tho not necessarily the least restrictive) ii. serving important govt interest iii. and leaving adequate alternative avenues b. i.e., Where there are streets, parks, where people have traditionally gone w/ their soapboxes, etc. even tho these places are owned by govt, that ownership gives no (or little) extra regulatory power those are spaces where the 1st Amend is operative and the only kind of regulations that the govt can pursue are those that take the form of content-neutral, viewpoint-neutral time place and manner (e.g. decibels) restrictions, and even then the regulations must be reasonable, must serve an important govt interest, and the regulations must leave adequate alternative avenues 2. Nontraditional Public Forum a. Limited or designated i. With the limited public forum, once the govt makes it open, it has to make it open on an equal basis ii. BUT the govt can close it down altogether (which isnt true of streets, parks, the traditional avenues) b. reasonable limits <-> may close altogether 3. Nonpublic forum a. Permit limits on speech that is inconsistent with/interferes with function (And note: Where the govt is not the manager, of course private spaces you do not have the right to picket in my backyard)

Muddying the categories: Courts have created a series of specialized decisions/carve-outs all around I-III: o what about the sidewalk outside the jail? can you picket there? no o what about the park inside a military base? picket there? no (GREER v. SPOCK, 331): politicians dont have rt to speak on base o sidewalk outside school? no (GRAYNED, 1972, 303) o Or the buffer zones around abortion clinics (you could call this time/place/manner but these are widely understood as abortion clinic cases) CB: MADSEN (298, 304) (already outlined above): injunction prohibiting specifically-named antiabortion protestors from demonstrating near clinic is content-neutral its based on the individual speakers (based on what theyve done in the past), not based on the content of their message SCHENCK (1997) (305); already above: invaliding floating buffer zones but upholding fixed ones HILL v. COLORADO (2000) (305): upholding law prohibiting protestors from approaching people coming to clinic without their consent o An ordinance prohibiting picketing on the public street or sidewalk outside my public house? That too is permissible. (FRISBY, 1988, 303) Why? M: maybe b/c justices can picture people protesting outside their houses? o CB: Also, you can use free speech zones (306), raising all sorts of Const. questions they resemble mere t/p/m restrictions but they defeat the whole purpose of protest, reduce protestors to animals in cages, irrelevant, unattractive How to explain these exceptions? o Has to do w/ conflict btw speech and the function of the place the school, the jail, the military o But how does that fit the doctrine? M: I dont think it does. Those are carve-outs. M: Courts invent traditions and then describe them as having always been the case. HISTORY: o Old cases in CB re: content-neutrality: All to conclude: content-neutral restrictions appear to be tested by balancing (294) CB: SCHNEIDER v. STATE (1939) (285): Supt Ct invaliding ordinance convicting protesters for the scattered leaflets left behind after they handed them out on the streets. Recognizing the interest in keeping

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streets clean, but (in balancing) saying that wasnt enough to burden speech, esp. b/c less-restrictive alt.s exist. CB: MARTIN v. CITY OF STRUTHERS (1943) (286): Invaliding anti-Jehovahs Witness ordinance prohibiting the ringining of doorbells to distribute handbills, esp. b/c less-restrictive alt.s exist (e.g., making it an offense to ring doorbell of someone whos indicated they dont want to be contacted). CB: KOVACS v. COOPER (1949) (287): Upheld a city ordinance banning sound trucks: permissible t/p/m restriction. sidenote: dictum hints at right to be heard (288) as well v. Frankfurter conc. saying no: Surely there is not a const. right to force unwilling people to listen. Black and Douglas dissent: all present instruments of communication shd be free from govt interference and better alt. exists: reasonably restricting the volume of sound, etc. (me: sound-trucks: the cars that drive through streets in Guatemala, blaring distorted radio ads) CB: METROMEDIA, INC. v. SAN DIEGO (1981) (289): see below, Min. was clerk then CB: CITY OF LADUE v. GILLEO (1994) (290): Invaliding ordinance prohibiting home-owners from displaying signs on their property to minimize visual clutter. Stevens (v. dissent in Metromedia): forecloses a venerable means of communication that is both unique and important, and doesnt leave open ample alternatives channels for communication. Must have special respect for individual liberty in the home. Less restrictive alt.s exist. (me: versus for-profit billboards again, liberals more willing to regulate speech involved with profit-motive, almost like an econ. regulation; less willing to regulate speech detached from money, like the anti-war call congress lawn sign here) CB: seems largely unrelated? facts more similar to freedom of the press cases? BARTNICKI v. VOPPER (2001) (294): Radio commentator gets illegally phone call recording re: union negotiations, plays it. Ct. finds he cant be held liable, even tho law is content-neutral (why the case is in this section) and protects two legit interests (incl. privacy). Ultimately: privacy concerns give way when balanced against the interest in publishing matters of public importance. Seems similar to facts of The Insider: If a newspaper unlawfully obtains truthful info about a matter of public signif then [govt] officials may not constly punish publication of the information, absent a need of the highest order. Old cases re: public forum: M: There was a view for a long time that govt property was like private property for purposes of restraining speech just as I can keep you out of my backyard, govt can keep you out of park So HAGUE v. CIO (300) (from time immemorial, streets etc. have been open) ct is doing this Result is that the lines here arent clear: how do we understand the purposes/functions/values of streets, sidewalks, parks? Access to speaker: no need to buy money for a tv ad, etc. Access to diverse listeners: you get to encounter a lot of people [sidenote: called the time out of mind requirement, 301] Old cases in CB re: public forum, other than HAGUE CB 299: COMMONWEALTH v. DAVIS (Mass., Holmes, 1895, embraced by Supr Ct 1897): government can regulate what happens in a public park no less than private citizens can regulate what happens in their homes. Theres a real concern that if the govt does regulate these spaces, itll fall into trap of content-based, viewpointbased regulation Why not Internet then? What about those tiny malls that big building developers built in order to get exemptions from height restrictions? What about a shopping mall in general? (PRUNEYARD? that case we read in week one) What kind of rules can a city come up with regarding broadcasts on its public access station? If time/place/manner restrictions are allowed, does that mean that permit systems are allowed? (e.g. you must apply for permit before you can use the park to protest Columbus Day) If officials have discretion, then were in the category of prior restraint! they may grant permits only to what they like (and CB 318: public officials have strong incentives to overregulate) Also, permit system may inherently drive down the total quantity of speech (a key recurring idea in the course) decreasing the amount of ideas Old case: CB: COX v. NH (1941) (307): affirming conviction of Jehovahs Witnesses for not having first obtained permit, b/c it was just a t/p/m restriction But: cant require permits for going door-to-door: WATCHTOWER (2002) (308) CB: Can state charge fees? MURDOCK (1943) (308): No, except nominal fees to defray cost of policing

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BUT: remember FORSYTH above (1992) (309), invaliding requirement to pay up to $1k to defray cost of policing depending on how much expected to be required (like hecklers veto) side Q: how much does my right to free speech = right not to have another person delivering opposite speech one step away? or putting their banner right next to mine? a licensing/permitting scheme may be a way to protect speech say: its your turn (me: Mieklejohn model) v. allowing unlimited interference w/ your message and re: the discretion problem above, there are ways to deal with discretion: first-come, first-served, etc. or some other set of criteria that take the discretion away a lottery/randomization But: permits do create a hurdle that you have to pass could require you to disclose your plans ahead of time, this could create a chilling effect and limits spontaneous speech: again, rivalrous uses b/c often, this is what we want speech to do! create an engagement

GREEN v. CITY OF RALEIGH (4th Cir., 2008) (S.243): o facts: Ordinance requiring picketers on public ways to: provide prior notice to city can be given in person, phone, fax, e-mail then what is given is an acknowledgement of the notice. (M: dsnt use word license, permit, just receipt of notice). (key: gives no discretion to city officials to prohibit picketing that complies with these req.s (S.257)) PLUS: this dsnt even have to be done in advance (so can be done simultaneous w/ the speech? M: can it be given afterwards?) under original ordinance Green had to use, had to submit name of org. demonstrating, name of individual designated to carry receipt of notice revised in 2006: o eliminating notice requirement for groups of fewer than 10 picketers o not requiring name of group any more, though still requiring name of individual and comply w/ certain restrictions (sign-size requirement, requirement to remain on outermost part of sidewalk) 2006 revision: enlarged sign-size req. Note: Facts: What is the speech in GREEN? You cant know b/c its not mentioned! Thats how we know its really a content-neutral regulation! Isnt that neat? o Ct upheld wonderful window onto messy 1st Amend adjudication today just came out me: does in fact run through the analysis outlined above (S.248): o is the (permit) requirement a content-neutral t/p/m restriction? yes. So: is it narrowly tailored to serve signif govt int? Yes does it leave open ample alt.s for communication? Yes does it contain narrow, objective and definite standards to guide licensing authority? Yes. M: Wd there be a 1st Amend prob w/ the original ordinance, which required name of organization, etc. wdnt this be useful to police for their purposes to know whether its KKK or Save the Squirrels? me: but valuable (esp in age of Internet) to be able to support an issue anonymously BUT: isnt it okay to tie a message to an organization? there seem to be interests on both sides o [M: recurring note: Cd the key to a unified field theory of 1st Amend be that there is always a balance, and this is what we shd deal w/ in every case?] [Sidenote: the Const right of privacy is very, very undeveloped we often mean different things by it freedom from discrimination based on yr personal characteristics, freedom from govt interfering in your private bedroom, sexual autonomy, etc.] o The line-drawing problem e.g. exception for small groups (10 or under) to meet w/o advance notice and this was challenged b/c there were 13 people line-drawing problem, which will always happen if you include any concept of size, theres going to be some arbitrariness. (Same with size of signs.) But if you refuse to allow size-based restriction b/c it will create line-dr prob., you prevent the govt from protecting interest in public order, etc. CB: LEHMAN v. CITY OF SHAKER HEIGHTS (1974) (326): o Can city ban political advertizing fom its buses, subways, etc., while accepting other ads? o Ct: Yes

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o o

this isnt a traditional public forum its closer to a private commercial enterprise the only limit is that it cant be arbitrary/capricious/invidious in its restrictions the managerial decision does not rise to the level of a First Amendment violation M: tiny ad space on public transit (excluded ads by political candidates) Supr Ct upholds this even tho it sure looks like content-based restriction and they say its not viewpt-discrim, b/c excludes all pol cand.s (M: but cert seems to be contentbased!) and introduces notion of a captive audience so govt may have a justification for excluding particular topics of speech its the only way of getting home why shd you have to face a political barrage? me: Dougl.s conc.: odd references of the const. rt.s of commuters to be free from forced intrusions on their privacy me: Brennan, Stewart, Marshall, Powell dissent: once you open the public forum, cant discriminate solely on the basis of subject matter or content. Re: Douglas: passengers can avert their eyes. Minor inconvenience to preserve free speech. Commentators think this is a very bad decision, very unstable anyway, sui generis case: none other uses same method of analysis cd compare this to PERRY case: the interoffice mail system: is it more like ad on transit system or more like the HAGUE case, where the streets are protected as a pub forum?

M: Why the state action doctrine is so messed up: e.g. prison is of course governmental subway is governmental but maybe here govt. isnt acting governmental, just as in mailbox case? Interlude: another way of arguing 1st Amend is to argue by analogy dsnt matter what category the case is under just find the facts, analogize, distinguish, etc. On exam, use this form of argument in part SO: e.g.: Internet: shd it be viewed as public forum? o Should it be viewed as govt? Govt created it, but private servers o and in any case PERRY suggests maybe govt can just declare something not a public forum o one argument: If youre going to analogize Inet to trad public forum, what is the sidewalk? thats the challenge. Just as not all of Cambridge is public forum, but streets are. What is the analogy? He argues that as peoples shopping shifts to Inet what cd be created on Inet thats comparable to the sidewalk where you walk into store to shop? Maybe requires some architectural changes? shd there be random public service announcements in right margin of Google search? o What about internet terminals at public libraries? STARTZELL v. CITY OF PHILADELPHIA (3rd Cir., PA, 2008) = the gay pride event, Outfest o facts: 30,000 people are coming to Outfest! why govt might need to know whats going to happen. Counter-protestors, Repent America, also coming, with large signs, microphones, bullhorns, etc. Police asked Repent to move to a less disruptive location, they refused, were arrested o Whats at issue here is the discretion of police to administer the disorderly conduct law: a law that no one is challenging on its face no Q that police can regulate disorderly conduct But M: why can police do this? isnt this an extraordinary amount of discretion? Much more likely to give rise to discriminatory applications! o Holding: convictions upheld, police have discretion to do this Why is it allowed? M: b/c theyre traditional weve always had them This isnt analytically very convincing, but seems to be the real motive And to be fair: disord. conduct giving 100% discretion were sometimes struck down in 1960s as they were used against civ rts protesters. But today you mostly get cases like this one, applied challenges. o What triggers the decision by police re: the REPENT group? Unclear what the factual trigger is. o M: a little defense of disorderly conduct statutes: you have to leave it a little unclear, give police a little discretion on site to allow them to take into account context, not content. (note: a useful distinction)

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The deeper problem in this case is: can this requirement of notice, receipt, etc. can this be treated as exclusive? So that e.g. if someone gets permit to have gay pride festival in Harvard Square, does this mean that no one can make anti-gay speeches in the Square there without also getting a permit? S.268: The really difficult Q: How to regulate the clash between two groups expressly violently opposed views Subholding: Dist Ct. erred in allowing Philly Pride to exclude Repent America there was no risk that people wd confuse latters message for formers (S. 270) Subholding: The issuance of a permit does not transform status of streets and sidewalks as public forum, and as such, Repent America must be allowed to be there as well. BUT: HOLDING: Key ends up being bullhorns police were justified in directing Repent to move, given that they were disturbing everything with their bullhorns o But wasnt it content-discrim to ask Repent to move instead of asking Pink Angels to move? no okay to decide this based on who got the permit (Philly Pride) M: the focus on traditional public fora seems wrong were talking about taking over a place, taking over its traditional uses, and giving it another use occupying the Square related in-class discussion: How best to deal with problems like this? Me: Maybe: re: high decibel (amplified speech, etc.), require content-neutral permit ahead of time simply in order to create maximal speech by requiring the high-decibel speech to go one after another, not at same time and thus not drowning each other out (which wd result in overall decrease in the amount of speech) o so: gay pride festival needs permit to use PA system but anti-gay marchers can show up and yell as loud as they want, but cant use bullhorns if they want to use bullhorns, they have to apply for permit, and the automatic permit-granting system will assign them a spot after or before the gay pride festivals use of the PA system* M: classic KOFAX case: banned use of sound-trucks altogether o or you cd have police walking around measuring decibel levels o M: the decibel level permit is where shes inclined to go Another alt: require all events to set aside some percentage for an opposing point of view o This strategy is whats pursued with the recent Presidential conventions free speech zones 10 miles away from conventions (obviously questionable) o but hinges on the details: how much space? where? how far away? etc. etc. o and doesnt address the bullhorn problem [Sidenote: odd parallels btw this and Velvet Underground: o e.g. the recording of Sister Ray: in final take, each instrument gets to play as loud as it can halfway through, Cale finds a way to turn up the keyboard o or the two people talking simultaneously in that other song] Note: the strategy that the OUTFEST used: angels to surround the people protesting o (this is often used in other protests tho here, actually, the angels tried to do other things: tried to block them from coming in) Two more cases from when she was clerking at Supr Ct (Marshall): o METROMEDIA, INC. v. SAN DIEGO (1981) (289): mixed decision, but invalidates ordinance banning virtually all outdoor ad display signs. Four found it content-based restriction. Blackmun, conc., uses balancing test of govt interest in restriction + whether less intrusive regulation cdve been used. San Diego argued that it shd be able to prohibit billboards altogether b/c theyre traffic distractions, and aesthetic interference w/ beauty of city Supr Ct rejected these as insufficient govt rationales Marshall sd to SD atty: So what, youre going to ban every pretty woman walking down the street? This was not a narrowly tailored regulation Stevens dissents: Compares billboards to graffiti, says just b/c a net reduction in speech will result from banning something doesnt mean a city shouldnt have the power to do it. me: Great perspective to keep in mind. o CB: Also note RENTON (295-6) M: After METROMEDIA, on the aesthetic character, the ct then went in a diff direction, dealing w/ nude dancing, in RENTON case, above: a regulation aimed to reduce the secondary effects of speech can be permitted here, the fear that adult bkstores wd erode property values --- these concerns cd be sufficient to regulate

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RENTON idea: May be okay to have a content-based regulation so long as the reason for it isnt about the content (e.g., zoning ban on nude clubs not b/c opposed to their content but b/c of effects on property values). But since RENTON, ct has backed off from this idea (296-7) CB: flipside of RENTON: a content-neutral regulation could conceivably be impermissible if its motive was actually content-based (like prohibitions on picketing near funerals, actually aimed directly at Fred Phelps) (297)

Unnamed case mentioned in class: o The case that got Minow interested in developing a unified field theory of 1st Amendment: If you have a mailbox, how many of you supply it yourself? i.e., you bought it, v. govt supplying it o The Q was: can girl scouts and others put flyers in these mailboxes (even tho they cant put mail in mailboxes) and case went further and said: receptacle is owned by govt, even though supplied by individual o and Supr Ct said: fine: But if you analogize to trad public forum context, this satisfies requirements for public forum: 1) its lowcost (allows you to reach people if you cant afford to do mass-mailings, broadcast), 2) tradition (isnt that the traditional way you get info out drop it off at someones house) but ct went other way And ct also said in later case that sidewalk in front of Post Office isnt a public forum So: ct then and now doing these one-off cases treating instances differently apart from larger framework PERRY EDUCATORS ASSOC. v. PERRY LOCAL EDUCATORS ASSOC. (1983) (332): mailboxes o Facts: a lot like Startzel in some ways: only union can use the interschool mailboxes of employees competing union wanted to use them said these mailboxes shd be understood as a public forum. o Why? Well, the ct says basically: its not a traditional public forum [Me: cd key to unified theory be A) balancing free speech interests and opposed interests; B) taking account of tradition what has been allowed before, what hasnt.]

M: Note: Startzell versus Perry: o seems similar facts: rivalrous uses o but courts arrive at differen conclusions: me: Govt can exclude the rival union from mailboxes, b/c theyre not a trad public forum M: These mailboxes could even be viewed as private: govt is just acting as proprietor me: Govt cant exclude the rival protestors from streets of Philly, b/c they are a trad pub forum o and consider Pruneyard re: the public/private distinction: private shopping mall, b/c of its current role, cant discriminate on the basis of content

14 Oct. Another special area: FREE SPEECH BY GOVT EMPLOYEES and TREATMENT OF GOVT SPEECH What has allegedly emerged as the test of government employee Q: PICKERING Test: Govt Employee Speech: o Are they speaking on matters of public concern? (CONNICK) No, then: govt has wide latitude for regulation (JOHN ROE) Yes, then: Are they speaking as a citizen or as govt employee? (PICKERING) Employee [i.e., speaking as a part of job, in function as govt employee] o then govt has wide latitude for regulation Citizen o then balance: employees self-expression interest v. interest of state/services/employer (e.g. in efficiency of its services) from PICKERING v. BOARD OF EDUC. (1968) (463)

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facts: teacher fired by Board of Educ for negative letter to paper re: BoE holding: this was violation of teachers 1st Am rights BUT: the state has an interest in regulating speech of its employees must be a balance (see test above) ALSO: as chart above says: If the employee expression is purely personal has no relation to political, social, other concern then government has wide latitude to regulate (CONNICK, 466) But even offhand joke or outburst with political connection seems protected i.e., the bars not very high here (RANKIN, 466) BUT: CITY OF SAN DIEGO v. JOHN ROE (2004) (466): facts: police officer sells videos on eBay of him stripping off police uniform and masturbating, listing him as employed in law enforcement, gets fired holding: upheld Pickering balancing didnt even get triggered, b/c this wasnt a matter of public concern govt is free to discipline if the speech compromises its legit and substantial interests

GARCETTI v. CEBALLOS (2006) (467) (NOTE: M pronounces Ceballos as SEH-bel-us) M: not off-duty speech o Holding: Government employee speech performed pursuant to their official duties dsnt get 1st Amend protection if youre acting as a govt employee, just doing your job, there is no 1st Amend protection but dissenters sd you cant have this distinction: they analogize to prior case in which teacher criticized policies at school and was seen as acting as both teacher and private citizen, and her speech being protected Dissent makes good pt re: DAs speech: wd clearly have been protected if on soapbox but b/c sent as memo, we say not protected perverse incentives Other contexts: (incl.ing government subsidies of speech) o Can fed employees participate in campaigns? Answer: Only in most limited ways. HATCH ACT. Protects employees otherwise might be placed under enormous pressure by political bosses. But it also means if you accept public employment, you are accepting limits on free speech. o CB: a line-drawing issue: govt. licensees e.g. attys, dr.s not employees, but (467) [Note: state bars are public entities] again: line-drawing re: what counts as state action o Can a teacher wear a political button? Absolutely not. But can a teacher have political bumper sticker? Well, if small parking lot, and people can figure out its your car, no; otherwise yes. o Also: related to govt subsidies of speech books in a library. M: Must start w/ recognition: The government is always picking, selecting, what to buy. Should this invoke 1st Amend scrutiny? Gov Palin cdnt ban books in Alaska libraries but cd Gov Palin have had meeting w/ librarian to discuss what principles should be used in buying books?... BOARD OF EDUC. v. PICO (1982) (343) several members of BoE removed eleven books listed by conservative org. from school library so that Board members could read them o Slaughterhouse Five, The Naked Ape, Best Short Stories of Negro Writers (ed. L. Hughes), Soul on Ice, Go Ask Alice (Surprisingly large number of black writers) Supr Ct dsnt decide outcome, but says its triable: depends on motive for removal of books (if it was suppression of ideas, impermissible) o NOTE: Rehnq dissent: recurring idea: It is permissible and appropriate for local school boards to make educational decisions based on their personal, social, political, and moral views o A broadcast station that receives govt funding, can govt then put conditions on the funding? to prevent editorializing? no: CB: FCC v. LEAGUE OF WOMEN VOTERS (1984) (347) invalidating prohibition on editorializing by noncommercial stations receiving govt subsidy

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o o

Ct. has ruled its alright to deny tax credit to org. that lobbies CB: REGAN v. TAXATION WITH REPRESENTATION OF WASH. (1983) (346) facts: upholding fed statute saying contributions to otherwise tax-exempt org.s [except veterans organizations clear content-based carve-out?] are no longer tax deductible if org.s spends a lot on lobbying o basically: ct. sees this as forbidding govt. funds from being used to lobby the govt. o ct. finds no problem with the discrim. btw veterans org.s and all others: Congress can subsidize whatever it wants! (not subject to strict scrutiny!) o me: specious distinction between govt. silencing one side of debate (not permitted) and subsidizing the other (permitted) M: but this is the same as editorializing how is this diff than broadcast station? (me: how so? Why can govt offer tax deduction only on the condition that you dont lobby, while it cant offer subsidize only on the condition that you dont editorialize? Unconstitutional conditions, etc. but there seem to be many ways to distinguish these two) Well, ct says, the NGO can set up a separate org to do lobbying (me: as ACLU has done), broadcast station cant M: Brings to the fore that theres scarcity in ALL of these cases (like in rivalrous use cases from yesterday) RUST v. SULLIVAN (1991) (347) facts: regulation says fed. funds cant go to pro-abortion family planning organizations upheld me: raises unconstitutional conditions questions: here, the govt is clearly discriminating between viewpoints in its use of subsidies but ct. generally seems to think: govt can do this when its subsidizing speech CB: ROSENBERGER v. RECTOR & VISITORS OF UVA (1995) (350): invalidating UVA policy authorizing payment from student activity fund for a variety of student publications, but not any religious ones University cited RUST, said it must have discretion ct. draws slim distinction btw govt creating an org to spread its message (RUST, can discrim. based on viewpt) and funding private actors spreading messages (ROSENBERGER, cant discriminate based on viewpt.) (351) me: but then how is it okay for govt to discriminate in its NEA funding? and wasnt RUST funding independent family planning org.s?... CB: LEGAL SERVICES CORP. v. VELAZQUEZ (2001) (353): facts: prohibition on govt-funded legal aid org.s challenging the legality of existing welfare laws holding: invalidated Me: CB: General rule (353, from VELAZQUEZ, but reflected in lang of many cases): If the speech is government-produced/a governmental message, govt can discrim. based on viewpoint; if the speech is government-compelled private speech/designed to facilitate private speech, govt cant discrim. based on viewpoint but in practice, as this list shows, the difference between these two is unclear: Dept. H&HS funding private family planning org.s is a government message (RUST), while funding private legal aid org.s is facilitating private speech (ROSENBERGER) and there seems to be a sub-rule at work, perhaps to invoke in close cases (NEA v. FINLEY): o if the point of the program is to encourage diverse views, viewpt discrim impermissible o but if thats not the point of the program, maybe more likely that viewpt discrim wd be okay (perversely, in NEA v. FINLEY, this means NEA can do viewpt. discrim, b/c purpose of NEA, ct says, isnt to encourage diverse viewpts) NEA and Helms (343) CB: NEA v. FINLEY (1998) (356): upholding, at least on its face, statute to restrict NEA funding to offensive things o note: where NEA interpd the regulation as simply meaning that it should have diverse review panels distinguishes ROSENBERGER (no viewpt discrim if facilitating private speech) by saying arts funding is special, its not about encouraging a diversity of view from a variety of speakers () and absolute neutrality is simply impossible here

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Souters dissent reasonably points out: this isnt govt-as-speaker or govt-as-buyer, where it can of course viewpt discrim. He also says: scarcity demands choices, of course, but on some acceptable viewpt neutral basis, like artistic excellence M: Govt subsidy of speech probably most controversial re: Natl Endowment for the Arts gives grants for the arts private individuals hired to approve grants, very interested in avant-garde art, some of the things they funded became political footballs in Congress so Congr. adopted restrictions on the kinds of art that could be funded by the govt and you can avoid all these problems by not funding the art! that might be the answer (M) instead, ct said: govt has lot of discretion when its funding art, and its not content-based problem simply b/c theres scarcity govt cant fund everything, so it shd be free to choose what to fund me: related: CB: 342: SOUTHEASTERN PROMOTIONS v. CONRAD (1975) (342): facts: municipal board says: no Hair in community theater holding: this violates 1st Amend an unconstitutional prior restraint (boards action wd only be valid if had procedural safeguards against suppressing protected speech) + theater is a public forum (designed for expressive activities) o dissent: city shdnt be forced to put on shows it dsnt want to will opera house be forced to show rock musicals?... but even they admit cant be run like a private theater Can the govt buy speech and in so doing choose what the content is? NEA case, RUST v. SULLIVAN, several other cases just discussed above, suggest yes OR: does the scarcity point push in the opposite direction: rather than justifying limitations on private speech, govt shd be esp content-neutral to avoid suppressing speech? LEBRON v. NATL RR PASSENGER CORP. (1995) (S.297): Amtrak corp., a private entity, has policy of no political ads. Can Amtrak refuse to host this guys antiCoors billboard? Scalia: Amtrak is a part of the govt for 1st Am purposes (key to decision) b/c speech it allows can be ascribed to the govt (b/c it created Amtrak by special law, appoints most of its directors, etc., S.308) dsnt actually decide the specific question tho o

interlude: in-class argument: re: Guiliana firing cops for being in racist parade when off-duty me: Calabresi clearly right, Guiliana shdnt be able to do this enjoyable case 27 Oct. mysterious transition: LICENSE PLATES: What kind of a 1st Amendment case is this? Govt issues license plate requirements: requires them to be used, charges money for them. Some have only words, others words and images. o May be associational claim. o Shd we view this as a public forum? o Or as govt speech? o Or a mix? o In each case, what follows? o Or is there some other frame to use: e.g., identify a viewpoint restriction and use that to decide case v. applying any other analysis. Circuits are split, have generated a lot of opinions. ACLU of Tennessee v. BREDESEN (6th Cir. 2006) (S.317): o facts: State statute made available a specialty license plate (pay extra, looks different) featuring Choose Life message o holding: upholds plates b/c: the govt. can pick its message when something is govt speech (v. mixed speech) dsnt have to be viewpt neutral rule the court comes up with: when the govt retains the power to approve every word disseminated at its behest, the message is the govts and these plates arent a forum (requiring equal access)

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dissent: no, this is mixed speech, cant discrim on basis of viewpt.: this aimed to facilitate private speech; also, the plate is a forum designed to encourage a diversity of views, so for that reason as well, govt cant discriminate based on viewpt (S.328) FL choose life plates vetoed by Governor. But then Gov. Jeb Bush signed into law approval of these license plates. 6-8 states now have them. In each case, a lawsuit filed. Courts have gone in opposite directions. o SC found it to be unconst b/c viewpt discrim. o One FL ct rejected the plate b/c it was entanglement w/ religion. o SONS OF CONFEDERATE VETERANS v. VA DEPT. OF MOTOR VEHICLES (6th Cir.) (2002) (S.340): o facts: involved a VA statute unique governs only this group me: facts: VA passes statutes approving variety of specialty plates ONLY plaintiff SCVs plates have design/logo restrictions to prevent Confederate flag. so: clearly not viewpt neutral. The only Q is: is this govt message, and not a limited public forum, thus viewpoint discrimination is permissible? Wilkinson: violates 1st Amend., which belongs to a single minority of one Luttig concurs: specialty plates are mixed both private and governmental its unclear how viewpointdiscriminatory such a thing may permissibly be, since the case law doesnt exist yet (predicts a test on S.346: govt. cant viewpoint-discrim. w/o compelling interest) o Background: TN: A statute that reqd minimum of 1000 requests seeking creation of this specialty plate. Once 1000 recd, state will release it for $75 as a co-venture w/ charitable org. (?) Ct appeals said: this is govt speech, not a pub forum govt speech b/c govt controls the message, has first and last word relies on [JOHANNS]. After the SC ct, in contrast to this ct, found the Choose Life plate unconst as viewpoint-discrim., legislator introdd Choose Death license plate to balance out viewpoints. Judge Martin dissent says JOHANNS isnt relevant, says this isnt govt speech accepted plates have included out-of-state sports teams, etc. o Which precedent is most relevant? RUST (what reproductive counselors funded by govt can tell their clients restriction forbade disc of abortion, Supr Ct said thats fine, this is govt speech) or VELAZQUEZ (govt. restriction forbidding legal services attys from suing govt re: illegality of welfare program is unconst b/c thats not govt speech lawyers cdnt do their job if hands were tied) o Note: The license-plate cases as a way to review multiple frames of 1st Am analysis vanity license plate: yours, unique, no one else in world (you choose letters) Note: were not talking so much about vanity license plates specialty license plates: for extra fee, license plate w/ phrase or image money often goes to fundraiser for non-profit, or non-profit and state (you get enough petitions, the state issues it and you can pay to have it) Just last week: Supr. Ct. decided not to review long legal fight to force AZ to issue anti-abortion license plates Whats the right question to be asking? Is this govt speech or not? if its govt speech, it can choose its own viewpoint (e.g., buckle-seatbelt campaign dsnt have to be balanced by anti-buckle-seatbelt campaign) as long as its clearly identified as govt speech o Note on subject matter: WOOLY v. MAYNARD: Individual who took tape and covered up Live Free or Die on NH license plate. He won. Min: I think its irrelevant only shares a license plate with the cases were discussing, tho both opinions cite it. Well read that case later re: flag salute, pledge issues of personal autonomy and compulsion. Here, the license plates are chosen, no one is forced to have them. o What is the best argument that the license plate is govt speech, whats the best case that its not? the relevant factors seem to be: wd an observer think this was the govt speaking? (i.e., see the VA license plate and think: VA is pro-confed-flag not: this individual is) whos selecting this message? (i.e., VA dsnt initiate any of these schemes, they come in from private parties) o Why is this case so difficult?

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o o

o o

The problem here dsnt fit any category: its a mix of public-private speech Min: another stroke under the column of: lets have one test under 1st Am a balancing test Keep in mind a problem or when we deal w/ estab clause later: whether a test re: what an observer wd think is really a useful test (Maybe observers have no clue) Sidenote: at trial, govt officials said: this was all about Confed Flag we wanted to restrict this. But its not viewpt restriction! they said. (snickering) Min: this case in the end relatively easy: I think it is viewpt discrim the panel failed address Q of govt speech, etc., b/c they just cut to the chase and decided based on viewpt discrim so this shd remind you of R.A.V. case (didnt address whether hate speech is protected or not protected, just decided case based on viewpt) however, Min: the one opinion that says this is both public and priv speech seems completely correct but do you agree w/ where he goes next? What he says is: to the degree that it is priv speech, the govt cant restrict it. The mixture is enough to justify a heightened scrutiny. This was a huge case in VA and for judges, it was really a test of whether VA has left confederacy behind Last note: We are not done w/ the license plate problem SC has passed another specialty license plate 1st in country thats a religious one: I Believe w/ image of cross over stained-glass window Op Ed says: maybe we need a national database saying what kinds of message are allowd and what not Of course, absurd: rank viewpt discrim.

SYMBOLIC SPEECH and FREE ASSOCIATION SYMBOLIC SPEECH: U.S. v. OBRIEN (1968) (368) upholding law prohibiting burning of draft card o OBRIEN: Vietnam era: burning draft registration, convicted of violating law against mutilation/destruction of that piece of paper. Not a facial challenge an as applied challenge b/c the govt is allowed to regulate this conduct in order to achieve goals re: draft. o Upholds law against burning of draft card. skips over the step of asking: why shd nonverbal anything be given 1st Amend protection? e.g. Confed Flag in case above If we had analyzed the license plate cases as symbolic speech, wd that have made a diff? Min: short answer: no o But symb speech has created evolving doctrine: its protected, but reg is permitted if (~370) 1) govt wd otherwise be able to regulate this conduct and 2) govt is advancing important/substantial goal and 3) that goal dsnt include suppressing speech and 4) the incidental restriction on speech is no greater than is essential to achieve that interest. o (related: think back again: VIRGINIA v. BLACK: cross-burning: symbolic speech, unprotected if true threat) o Its clear that this burning is expressive an effort to make a statement. o Min: best way to underst OBRIEN: as opposed to WISCONSIN v. MITCHELL (upholding enhanced penalties for hate-crimes here, black kids beating up white), govt cdnt have heightened penalty for someone burning card w/ intention to express x y z But to have a penalty for smthg otherwise regulable is permitted. But what if there were a law against banning fake draft cards? The reasoning in OBRIAN suggests that cdnt be penalized. o So: symb speech has been implicitly recognized: re: black arm bands (TINKER, again 374); and red flags (STROMBERG, 374) and artistic expression (SCHACHT, 374: striking down conviction of someone for wearing military uniform under law prohibiting this); casebook also gives you: American flag STREET v. NY, 378, above: man burning flag after James Merediths death, conviction overturned SMITH v. GOGUEN, 379, above: flag sewn to seat of pants, law overturned for vagueness

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SPENCE v. WASHINGTON, 379: to protest Kent State U. killings, hung flag out window w/ peace sign affixed, court held WAs flag misuse statute unconst. as applied. TEXAS v. JOHNSON (1989) (381): o Supr Ct rejected flag desecration statute; o Congr came back w/ flag protection statute (the Flag Protection Act of 1989 (383)) banning intentional mutilation Supr Ct rejected that (US v. EICHMAN, 1990, 383). o So all the controversy now is around a Constl Amendment. o One of the objections to such an amendment is that it wd spill over, wd affect 1st Am w/o being limited only to Amer flag. (me: cd imagine some distant future ct interping such an amendment very broadly to apply, say, to highly valued national hero or other icon in time of war, based on purpose of amendment) o Rehnquist: insane dissent: Flag burning is no essential part of any expression of ideas (?!) (382) o If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. (382) me: this trope a little overused by now? Compare: Stanley v. Georgia: if the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch Jackson in WV STATE BD.: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. Has been unbelievably contentious. No doubt that expression is involved. BUT: Mitchell: physical assault is not expressive conduct protected by 1st Amendment. o another problem: desecration is vague: what is it? Another instance of symbolic speech: nude dancing

FREEDOM OF ASSOCIATION right to associate for expressive purposes Const. does not say, explicitly, that there is a freedom of assoc. What are forms of association? o You can meet once, or you can form a club, or a Twitter group or having some kind of symbol or badge like a license plate o Maybe the limit case wd be: are you forming an assoc when you subscribe to a mag or newspaper? Min: for me, no. Shd assoc.s be able to exclude people b/c thats part of their message? Shd assoc.s that dont have expressive value be protected? o Take Family Law. That kind of assoc. does get protected, but its not limitless, and its not about expression. Leading cases: o ROBERTS v. U.S. JAYCEES (1984) (431): CB: facts: young mens community org. allows no women in voting membership; discrim on basis of sex violates MN Human Rights Act ct. upholds the statute, saying it dsnt violate 1st Amend rt of assoc: so: MN can force Jaycees to admit women as members CB: accord: ROTARY CLUB (1987) (433), upholding CA statute requiring Rotary Club to admit women BUT: key: political parties can exclude non-members from activities (CA Dem. Party v. JONES (2000) (433)) and: ordinance restricting certain dance-halls to 14-18 yr-olds dsnt even trigger 1st Amen review, b/c this isnt an expressive association (STANGLIN (1989) (434)) o BOY SCOUTS v. DALE (2000) (434): CB: invalidating application of public accomodations law to require Boy Scouts to admit gays

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me: throughout these cases, seems that freedom of association is a subsidiary right to freedoms protected in 1st Amendment: you need to be able to associate in order to do x y z key: Boy Scous are an expressive association, and Dales presence in the Boy Scouts would, at the very least, force the organization to send a message (436-7) Stevens dissent disagrees with precisely this pt: says it has no message me: dubious o Both cases involve groups that are much bigger than you may have imagined when you head association its not just a school club these are national, international orgs. w/ millions of members seemed to matter in ROBERTS, not in BOY SCTS o what we have in both cases is collision btw freedom of assoc on one hand and emerging commitments to equality on the other: excluding women in JC case, violated MN human rights act Supr Ct: enforcement of that act dsnt violate 1st Am freedom of assoc; (ct makes great effort to say: its really not a burden on freedom of assoc, b/c this group dsnt really have a purpose that requires exclusion of women theres an air of: we know what your purpose really is) excluding avowed homosexuals in BOY SCTS case ct takes Boy Scouts at their word about excluding gays being crucial to their purpose JAYCEES: One thing about JCs case: Cts interest in the enormous size of the group this isnt some small group of face-toface people getting together. DALE: but that disappears in DALE case tho Min and others thought that wd be important part of the doctrine a sliding scale that dsnt seem to be the case o Min: Heres why I think DALE was right: if the govt by way of an agency or a ct can decide to make the environmental group include anti-environ people or the Jewish group include Nazis, then having an association loses the ability not just to express a view but to do the other things the non-expressive dimensions that matter a lot figuring out who we are, finding a safe place to explore this w/o having to deal w/ people who disagree with us Min became more affecitonately oriented toward DALE after HLS decided to defend own response re: on-campus military recruitment despite dont-ask-dont-tell based on innate characteristic o Lost by unanimous decision day after argument utter failure b/c Harvard was accepting money from fed govt o if youre excluded from association, does it work to just have more speech? o well, maybe you can make your own association CB: NAACP v. ALABAMA (1958) (430): striking down ALs requirement that foreign corporations qualify to do business in the state, where part of that meant NAACP submitting list of members: o privacy of membership necessary for freedom of assoc. o ALs competing interest not compelling enough HURLEY v. IRISH-AMERICAN GAY GROUP OF BOSTON (1995): o another case in BG: trad St. Patricks Day parade in Boston: gay and lesbian group wanted to march in the parade was run by private group they said no, that wd change our message Supr Ct agreed. Min: a harder case. A parade dsnt seem quite like an association You have to move trad public forum into the category of association

interlude: Free Exercise, Free Speech, and the Right of Expressive Association (3 dense pages of notes in book assigned on 3 occasions: 653-656) also happens to be THE CRUCIAL BACKGROUND CASES in BUSCH What does free exercise clause add to 1st Amend? In other words, should religious speech be seen as a different category of speech than non-religious speech? In all of the following cases the court said no, and demanded that government treat religious speech like the expression of any other viewpoint, without fear of establishment violation: (all 653) o WIDMAR v. VINCENT (1981): requiring a state university to make its facilities available to student prayer group just like any other group and (654) ct upheld Equal Access Act (1984), extending Widmar to public secondary schools see also notes below, near end, under SECULARISM o LAMBS CHAPEL v. CENTER MORICHES UNION FREE SCHOOL DISTRICT (1993): invalidating a school districts restriction on after-hours use of its facilities by religious groups o ROSENBERGER v. RECTOR AND VISITORS OF UVA (1995) (also above): invalidating university policy excluding religious student publications from receiving the student activity board funding that other student publications get Leading to one of Min.s recurring pt.s:

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the risk of blindly treating religious speech like any other kind of speech, including by allowing subsidy for it, allowing it to be acknowledged in various ways by state, etc. we may follow the path of European history, where states involvement -> weakened religion o By wishing not to deny religion its place in a marketplace of ideas, the Court denied the special place held by religion in our constitutional framework The concept of equal treatment sounds alluringly democratic, pluralistic, and fair. [But] in fact it may signal the triumph of the postmodern relativist mind in which every statement is of equal value to any other. Davis, 654 o Also a textual argument for treating religious speech as special: White dissenting in Widmar: if Const. saw no difference btw religious expression and other forms, there wdve been no reason to include Religion Clauses (me: that one canon of interp.: interp. on the assumption that nothing is superfluous) What about religion in politics? o Court has struck down requirement that political officeholders express belief in God: TORCASO (1961) (655) o as well as, on the other hand, limitations on the ability of clergy to participate in politics: McDANIEL (1978) (655) Good Brennan conc.: the Const. wont protect us here, its our job: The antidote which the Const. provides against zealots who would inject sectarianism into the political process is to subject their ideas to refutation in the market-place of ideas and their platforms to rejection at the polls. BUT: ct also struck down statute granting churches a veto over issuance of liquor licenses: LARKIN v. GRENDELS DEN (1982) b/c of establishment threat: symbolic benefit this twd give to church, and creates excessive entanglement o

3 Nov. RIGHTS TO GATHER AND REPORT NEWS v. PROTECTED INFORMATION Note: the press: the only private business mentioned anywhere in Const. o What does the press get beyond what is accorded to every person? Competing values that run up against freedom of expression and push limits on freedom of the press: o confidentiality, o privacy, o private property (incl. copyright), o fair trial (esp. criminal), o natl security, o ordinary common law and statutory law (e.g. trespass) Speech tends to win v. confidentiality, privacy, o More of a balance when conflict w/ fair trial but here as elsewhere massive disapproval of prior restraint o Same re: natl security: some balance, but in practice, if restriction is put in form of prior restraint, it loses Min: in fact, its kind of remarkable how much speech has won v. natl sec though there are questions now, at this moment o So: the big story is: freedom of expression tends to win o but not b/c of any special treatment the press gets its just in the frame of larger freedom of expression o So: one big Q is: shd press get extra treatment? e.g., special exemptions Theres an org. that rates 1st Amend.: o at top, Finland, Iceland, Neth.lands, Norway, sometimes Denmakr, Ireland, Slovakia o bottom: North Korea, Burma, Turkmenistan, China, Vietnma, Nepal, Iran o in 2002, US was #17, just after most Europe countries but now slipping: #40 b/c of govt propaganda (???)

Running through key cases: LANDMARK COMMUNICATIONS v. VIRGINIA (1978) (89): o facts: newspaper accurately reports that VA commission is considering investigating a certain judge. Paper convicted of violating statute against revealing confidential matters before commission. o holding: statute unconst. as applied o M: The clear and present danger test brought up, but why? Ct. considered rejecting but didnt reject the use of the test, but frankly converted it in practice into a kind of balancing test which it originally was not weighing: need for confidentiality

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against value of free speech. But here as in all the contexts well discuss, one Q is: is there a less restrictive alt available to protect the operations of this commission? o The actual rule, to this day: a state may not restrict the publication of truthful confidential information absent a state interest of the highest order NEBRASKA PRESS ASSOC. v. STUART (1976) (91): o judge makes order saying media cant publish re: high-profile case a real state interest here: media so extensive as to violate due process o court strikes down order as unconstitutional (esp. b/c: prior restraint) o M: Members of family murdered, charge of necrophilia Ct issued order prohibiting publication of Ds confession and note written night of crime. Supt ct. rejected gag order again, falling in gen. category of prior restraints. The balance here is different. Note: the ct partly reached its conclu by saying: press freedoms actually protect fair trials, protect against miscarriages of justice. SHEPPARD v. MAXWELL (1966, in reader, S.364): o facts: the ridiculously publicized trial (Ohio man accused of killing pregnant wife, claims chased intruder) o Supr. Ct. reversed the conviction (quite diff. than prior restraint on speech) sd: there cdve been other measures. media and prosecution seemingly teaming up to enflame minds of jurors (Supr. Ct. agrees Sheppard didnt get a fair trial, 14th Amend. violated) Min.: But note: many of other measures wdve restrained speech. E.g.: ct cdve adopted diff rules for media in ctroom (e.g. not putting media table right next to jury box). ct. notes, e.g.: he cdve proscribed extrajudicial statements by lawyers, witnesses, etc. re: prejudicial matters such as Sheppards refusal to submit to interrogation Min.: 1st Amend prob.s w/ doing this too! Even a prior restraint! or couldve postponed proceedings or transferred to different venue o In background of these cases. Another media circus some say basis of The Fugitive. Media really was not helping here. But the concern in all these cases is not only w/ the particular case but w/ protecting the justice system as a whole. o Another issue was: potential invasion of the jurys privacy. What precise measures cd a trial ct come up w/ that wd not interfere w/ freedom of speech? o Min.: Another possible harm: harm to defense attys such an invitation to play out the case in the public eye can really alter the lawyers role as an officer of the ct. RICHMOND NEWSPAPERS v. VA (1980) (507): me: like opposite of SHEPPARD facts: o facts: in interests of fair trial, judge used discretion to exclude press and public o Q: Does public & press have rt to attend criminal trials? o holding: Absent an overriding interest, the trial of a criminal case must be open to the public: the right to attend criminal trials is implicit in the guarantees of the 1st Amendment i.e., necessary to maintaining freedom of the press o M: RICHMOND: media rt to attend crim trial prsumptively open to public? even if theres an argument for closing the trial? A plurality decision: yes theres a right to attend the trial but its a right of the public, not a right of the media goes back to tradition of founding, against closed, secret trials) w/ even broader conc. opin. by Brennan, Marshall (pub access to trials is a correlative of a republican form of govt) to view the ctroom as a public space as traditional as streets, parks, sidewalks At time of decision, wasnt clear it wd reach into pre-trial proceedings, legislative hearings o Min: But what about if pub interest clearly leans in favor of closing the trial? GLOBE NEWSPAPER CO. v. SUPERIOR CT. (1982) (511): refining the test for excluding press/public from a trial, in a case where judge sought to protect minor victims of sex crimes rejecting the exclusion as judge did it b/c not narrowly tailored o M: a balancing test: can exclude press/public, but it has to be compelling interest, and it has to be narrowly tailored o PRESS-ENTERPRISE (512) reaches same conclusion re: voir dire for selecting jury o But: ct.s of appeals have allowed Ashcrofts restrictions on deportation proceedings: NEW JERSEY MEDIA v. ASHCROFT (513)

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M: New issue, last 5-6 years: Can the press demand access to immigration/naturalization hearings or deportation hearings? No, 1st Circ says: they arent ct hearings theyre admin hearings But issue isnt over yet. If there are exposes of abuse, we might see balance struck in a diff way. BUT it will probably be tethered to public access, not special right of media Interesting, like Pierre Menard, author of the Quixote: SEATTLE TIMES CO. (514) prohibits paper from publishing info obtained through discovery process but says it wd be free to publish precisely the same info if it obtained it through another source. (Clearly something more than the marketplace of ideas being factored in here!) o M: Again: another example of no special right for media re: news-gathering: no special right to obtain material pursuant to a civil trial, obtained through a discovery request. Even if the media has it in hand The NY Times can publish it, but theyll face sanctions and if you want to view it as a prior restraint, feel free to do so, b/c it exists prior to the pbulication. key: material obtained for purposes of litigation dsnt make it public even tho trial is public, etc. GENTILE v. STATE BAR OF NV (1991, 467): (assigned twice) o facts: lawyer holds press conference bemoaning clients criminal indictment, client later acquitted, but state bar sanctions lawyer b/c of restrictions on what lawyers can say that might prejudice a jury o Supr Ct was torn 5-4, and even majority opinion was torn right in the middle part written by one justice, part by another (Min.: never seen anything like this anywhere else) (!). Ct. imposed restrictions on lawyers speech in middle of trial. Rehnqs portion of opinion accepted the restriction in theoretical terms and used as its test not clear & present danger, but rather: whether or not theres a substantial likelihood of materially prejudicing the proceeding. (Min.: reminds me of TINKER analysis of restrictions of speech in school context trying to forecast disruptions to school. Here, trying to forecast material prejudicing trial) Lawyers as officers of the court (me: so: like state employees doing speech in pursuance of their govt job govt has wide latitude to regulate). BUT: 2nd part of opinion: Kennedy: lifts the discipline as applied to this lawyer, and also files a dissent (none of this appears in book but glanced at case and confirmed it) So: basically: the decision upholding restriction on lawyers speech in theory but not as applied. Min.: So: we dont have an answer on this Q of prior restriction on lawyers speech so that they can fulfill their duty as officers of the court. (PENTAGON PAPERS) NEW YORK TIMES CO. v. U.S.; U.S. v. WASH. POST CO. (1971) (92): o again court uses clear and present danger test decides publication should not be enjoined more sensible here, b/c in context of war. o facts: Ellsberg leaks govt secrets from post at RAND. o A prior restraint case. Or is it? B/c case was also dealing w/ whether NY Times wd face any punishment for publishing. o Perhaps the most important free speech case of this century definitely most important freedom of press cases o yet the per curiam opinion is so short nothing so: KEY: one of many cases where the outcome is what matters, not the verbiage, not the theory ct. has rejected a govt effort to restrict speech. o key is that list at end of the chapter of all the restrictions on press that Supr Ct hasnt upheld (107) hasnt upheld a restriction on speech that might induce crim activity since DENNIS (1951) and before then, had only restricted express incitement since Espionage Act cases post-WWI hasnt upheld restriction on speech b/c it cd provoke hostile audience response since FEINER (1951) has never upheld restriction on ideas b/c it might have improper influence on judicial process (e.g., might violate 14th Am due process rights) with exception of AGEE (CIA case below), has never upheld a restriction of publication of truthful information b/c govt wd prefer to keep it confidential KEY: keep this mind during exam: this is the deeper story, behind the cases: all the cases that arent there (and how this suggests that certain older cases might no longer even be good law) o Min.: Bottom line: whether its a very vigorous cl and pres danger test or more of balancing test, the result tells us that even while a war is going on, the publication of classified info wasnt enough to justify the restriction.

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BUT: Dont know whether this can be extrapolated to present: by 1971, there was massive skepticism re: veracity of govt statements re: Vietnam press viewed as truth-tellers, and govt had been found to be lying so often. So whether natl security is actually reduced to this subordinated interest Min. cant tell. Some other ambiguities: what if there had been a specific claim by govt that specific prisoners of war wd be killed or jeopardized by release of this info i..e, much more precise/specific natl secur claim. Min.: by her ct, wdve moved it to 5-4 maybe, maybe even flipped case. And if we werent dealing w/ prior restraint here but w/ crim prosec for publication of illegally obtained info see p. 96 ftnt. 8 White cites a possibly relevant crim statute no suggestion that press wd have exemption from the statute b/c of 1st Amend. What wdve happened? NOTE: The US has never criminally prosecuted the press for publishing secret govt info. (102) tho it once again threatened doing so re: NY Times reporting on secret NSA surveillance program violating FISA in 2006 (102): when the media disclosed the existence of the surveillance program, there were lots of calls for prosecuting the media. US v. THE PROGRESSIVE (bomb spec case, 1979, 105): shows that ct will try to dodge this Q. CB: magazine unsure whether to publish nuclear bomb info. based on assemblage of public govt sources, gives copy to Dept of Energy, which obtains temporary restraining order Holding: preliminary injunction granted. Key rationale: specifics of the bomb info didnt really add to the debate, and cd do great harm o a marketplace of ideas decision o accord: HAIG v. AGEE (1981) (106), guy releasing CIA identities, putting agents in danger court upholds revoking his passport, notes that NEAR says free speech dsnt extend to publication of sailing dates of transports, etc. If Ellsberg had been a govt employee (or even if his contract w/ govt had this in its terms), he cdve been crim prosecd? me: also remember: Blackmuns dissent (100) buying govts claim that publication could cause death of soldiers, the destruction of alliances etc. yet another example where deference to executives national security wdve been unjustified v. the publication actually being a good thing for the country and for natl security (101)

BRANZBURG v. HAYES (1972) (495): o M: Whether theres a right to gather news under the press clause. Dissent says yes court dsnt say yes, is unclear o Reporters tried to protect confidential sources ct. held them in contempt. CB: newspaper reporter refused to disclose to grand juries identities of the people he was describing in articles on illegal drug use; another reporter Earl Caldwell seems to have done something similar re: reporting on Black Panthers o (Min.: extraordinary power: ct can summarily charge and send to jail! sep of powers goes out the window. Only check is appellate review.) o Floyd Abrams was lawyer for journalist in case: it was always going to be a hard sell no one had ever found this kind of privelege to exist o Issues: 1) conflict btw common law trad that cts are entitled to evidence from everybody. Pres. can be called, anyone. To create an exemption for the press wd be the only exemption. (But see #2: not really true) 2) Even if press ds need special privelege to get free flow of info from sources perhaps analogized to priest-penitant, atty-client privelege how can law create wall around this privelege? Whats the scope? Anybody claiming to be media person? Ill make my own little press pass right now! A blogger? And even if we know who can invoke it, when can they do so? o Against this BG, not surprising that (holding) Supr Ct didnt recognize automatic privelege/right for journalists not to disclose confidential sources o BUT Powell (his opinion subject to multiple interp.s S.354, a four and a half to four a half decision, CB) says: maybe there cd be a conditional/partial privelege: maybe a balancing test, not an absolute privelege. And this is where the law has been since this time, w/ a lot of journalists saying: the Supr Ct gave us a limited privelege! Journalists add Powells concurrence together w/ the four dissenters and say there were five votes for a limited privelege. Note: a few days after writing opinion, Powell made notes about discussion of case w/ other justices: I will make clear in the opinion that there is a privelege analogous to evidentiary one but there shd be no constitutional privelege. Min.: So: he wants a common law, not const. privelege an evidentiary privelege built into rules of evidence by common law.

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Great line: Stewart/Brennan/Marshall dissent: attempting to annex the journalistic profession as an investigative arm of govt (498) also invoke a right to gather news as a corollary to right to publish

Plame situation p. 500 o Judith Miller sits in jail for 85 days. Highly politicized situation Plame married to previous govt official, Joseph Wilson, etc. etc. o Her lawyer cites BRANZBURG, says: she shd have a conditional privelege to protect her sources. o Trial judge rejects invocation of privelege citing BRANZBURG, says Supr Ct. unequivocally rejected any such privelege. SO: a fight about how to interp. BRANZBURG. And the answer is, at this moment: Judge Tatel recommended picking up where Powell left off: courts should use their power to define priveleges a power affirmed by statute to give a qualified privelege to journalists (S.360): weight the public interest in the leaked material against the damage alleged by the govt o [Note: odd inverted perspective: 500-1: Stone: It must be recalled that the privelege belongs to the source, not to the reporter. Really?~~] see note p. 500: House has passed a bill creating journalist-source privelege now stuck in Senate. o Anthony Lewis: critical of journalists privelege (S.358). (Min.: very surprising, covered Supr Ct, assumed to be hero of journalists.) His problems same as Floyd Abrams: who gets it? when? + a new one: might help unscrupulous journalists who cd make up things, libel govt officials and then hide behind privelege. Journalists get extra breathing room re: libel to add another exception exempting them from having to disclose sources would be a step too far. Lewis suggests following Tatels solution see note immediately above S.360 and great thought: Judges are not always wise. But in our system they are the ones we trust to weigh acutely conflicting interests. o Note: journalist privelege law wd not only affect incentives to publish/not to publish, but wd also affect incentives of whistleblowers: ties into our discussion of govt employee 1st Amend rights.

4 Nov. Interludes: Supr Ct hearing today fleeting expletive case o not technically 1st Am, but worth mentioning: e.g. Bono at Golden Globes: really fucking brilliant as often, done live, not scripted FCC has regulated that in past, against BG of PACIFICA opinion allowing regulation of obscenity/obscene lang. in broadcast FCC has gone back and forth. Current rule has jacked up punishment in this context. o The case, as framed, is about interp of APA. 2nd Circ rejected rule change b/c not based in reasoned basis (dispute: reasonable v. reasoned etc. all admin law Qs) o On the other hand, some point to PACIFICA and say this shd be decided re: 1st Amend Media exposing misconduct of Bush Admin o Free Flow of Info. Act: law protecting journalists from having to reveal their sources, but allows them to be forced to testify as extreme last resort Yesterdays hypothetical case: shd there be special right for news media to have privelege to go onto e.g. private property and get news? o The current state of the law: govt has no affirmative duty to make sources avialble to media beyond whats available to gen public and that includes even places under govt control e.g. prisons. o 1st Circ. decided yests case: no 1st Amend rt of access to private prop beyond what public wd have

BROADCASTING, CABLE, FILM and THE INTERNET BROADCAST presented challenge of scarcity spectrum auctioned off, attached to licensed a scarce commodity. o Why a license is worth so much.

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And its in context of this scarcity thatgovt has justified regulation over tiem RED LINE fairness doctrine requing licenseee to offer time for competing viewpt and personal attack rule, allowing response time, and pol editorial rule if licensee endorses candidate, must make time available for opponent KEY: unimagineable that such regulations wd be applied to print media (b/c theres no scarcity) BUT: Min.: perhaps the pure picture of scarcity in RED LION matches our model of classroom discussion creating rules to create ideal communication situation. RED LION BROADCASTING CO. v. FCC (1969) (521): facts: when broadcast personal attack in a presentation on a controversial issue, licensee had failed in its obligation under FCCs Fairness Doctrine to send transcript to victim of attack and to allow him free time to respond on air. Supr Ct upholds the fairness doctrine, entirely predicated on scarcity rationale. But also construing govts role in allocating spectrum as a public interest commitment. Min.: Fullest statement of govt as guarantor of public interest. This kind of rationale also was used to justify FCC requirements that licensees set aside public service time, or shows for children. me: seems to reflect Mieklejohn view of free speech: govt more actively shaping groundrules decision has been criticized: danger of having govt. surveillance over broadcasting content (527) also, shift away from respect for television: note: FCC repealed fairness doctrine in 1987: TV is a toaster w/ pictures (Reagan FCC) (528) sidenote: Ms father, Newton Minow, FCC chair: television is a vast wasteland (1985) (528) Death of Discourse (1996) (528): the modern obsession w/ self-amusement can trivialize public expression Bollinger: regulating the media to create a more advanced democratic society (529) Min.: A problem: the scarcity rationale: the economics of media over last 50 years have transformed things so there are areas w/ more broadcasters than newspapers. Does that turn scarcity rationale on its head? even before we get to new tech Print media itself is in real trouble Intellectual rationale is just going down the drain Note: The fairness doctrine wd require that broadcast station wd make time available for all the Pres candidates who didnt participate in a debate all 400 or 700 not-major ones So there were no TV debates for a long time (note: unintended conseq: how fairness doctr can lead to chilling of speech). Then Congr in 1960 passed law suspending the fairness doctrine in this context and thats why TV Pres debates started that year.

CABLE was originally for getting broadcast stuff into places that cdnt get broadcast signals. Then for getting best broadcasts into other areas (e.g. Chicago broadcasters) note: Hauser Hall: Hauser got his money from cable o Terrified broadcasters, who lobbied for and got must-carry laws: req.ing cable industry to carry the content from local broadcast stations o Imagine if a newspaper moving into a new market were required to carry the content of a competitor! o TURNER BROADCASTING SYSTEM INC v. FCC (1994) (530) holding: cable different than broadcast re: 1st Amendment: government less free to regulate cable (tho ct divided over whether regulation in question here was permissible must carry requirement in 1992 fed statute, requiring cable to carry local broadcast stations) o TURNER II (534) after going up to Supr Ct already once, finally 5-4 approval of must-carry requirement, rejection of cable industrys arg that law intrudes on 1st Amend autonomy of cable carriers Greenhouse book eventually showed: Turned out this was hugely contested issue that initially went the other way OConn had 4 votes to overturn the req then Thomas changed sides then, somehow, Souter changed his mind so must-carry law continues. So: victory for the idea that Congr can regulate re: new tech. in public interest. DENVER AREA EDUC. TELEC. CONSORT. (535): Breyer saying ct. shd be very contextual, factspecific, narrow, minimalist in judging telecommunications regulations dealing w/ special issue of requiring public access channels on cable me: note: Baker (533): corp.s are different than individuals, deserve less protection re: regulation of what they say o Note: cable overturns scarcity of broadcast. Justificaiton of RED LION is missing. Esp. when you add fiber optics, satellite dishes expanding #s of outlets avaialble exponentially. o Everything flipped on its head: no longer is the decision b/c of scarcity its b/c of abundance. Note: Violates 1st Amend to demand that print media allow reply Min: this is not a stable solution

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Also note: the way cable works often also has a scarcity dimension: Cambridge allows only one cable provider b/c its so expensive to lay cables, no one wd do it without this its not a physical scarcity, but an econ scarcity But wdnt the right solution here be anti-trust law? to prevent monopoly?

THE INTERNET: the opposite of scarcity. o Blogger said: the 1st amendment brought to life. You simply cant contain speech on it. and: filters may drive down necessity for individual regulations (538) o Min.: Or does the Inet introduce new problems? eg. ability of indiv.s to present themselves anonymously does this require more regulation? and the US as we know is on extreme end of most vigorous protection of free speech whereas Inet is global what are prospects of US free speech in a global environment? Can companies be held liable for content of employees blogs? Can govt. regulate govt. employees speech on blogs? answer is: govt can bar employee from writing on the jbo; harder off the job; may depend on whether it causes problem in workplace (e.g. racist comments when off-duty) a few ct.s have allowed reprimands of govt employees for that not a settled issue o Note: Vision of Inet as perfect communication situation may be overblown: will be monitored more the way 19th C local villages were monitored: gossip, peer pressure like employers looking at yr Facebook page so you stop putting bad things there If govt can present speech as part of the job or as creating bad impression of the govt then it appears to be okay for govt employer to regulate the speech also: Sunstein: republic.com: on Internet, less unplanned encounters, and more group polarization (reinforcing existing convictions among likeminded) (539) o Global reach of Inet: will this challenge Amer exceptionalism in 1st Amend context? (eg. our protection of hate speech) Are you subject to sanctions under other countrys hate speech regulations for Inet publication outside of that coutnry? yes: Bardots critique of Islamic ceremony, punished in France Amazon has faced lawsuits re: selling Mein Kampf (against the rules in Germ) o OR: Will Inet push Amer exception outwards e.g. to China? (Indeed, Berkman Center is in concert w/ other org.s developing software to help disable Chinese filters!) o One more issue re: Inet: campaign contributions: we didnt do pol election speech but Inet has clearly changed that Min: one thought: what is the software inside the website that allows you to track who is giving this will be as important as what max. of giving is o suggests (as Lessigs work suggests) that architecture of Inet is as crucial to free speech as ct-made doctrine just like the design of the physical environment (how sidewalks are laid out, etc.) Sullivans brief excerpt: what are building-blocks of environemtn in which speech is allowed? Her image: if you cant bring Mohammed to the mountain, how do you bring the mountain to Mohammed? how do you bring the site of speech to where the people are, if you can no longer bring people to the site for unintended encounters? o CB: RENO v. ACLU (1997) (540): ct invalidated provisions of Communications Decency Act of 1996 prohibiting people from sending indecent things that cd be accessed by minors ct distinguished Internet from broadcasting: Internet isnt a scarce commodity, and less invasive dsnt appear on yr screen unbidden MEESE v. KEENE (1987) (S.379): Does it violate yr 1st Am rt to have yr films IDd as pol propaganda? o facts: Foreign Agents Reg. Act reqd identification of what it called political propaganda guy sued b/c this was damaging reputation of his Canadian films Dist Ct thought merely using the term in the act was unconst Stevens disagrees: the use of the term is neutral o Min.: How does adding more speech (adding a name to yr film) violate 1st Am? he lost, but what was his theory? very roundabout: damages yr reputation, thereby chilling yr willingness to release this film o Min.: maybe this wdve been more successful re: coerced/compelled speech argument: Im being forced to carry this label o Min.: So: does this mean govt can require tags/labelling of info on Inet? (me: why this case is here) even if govt comes up w/ the category? link to last nights film, This Film Not Yet Rated: documentary about the private agency that rates films. MEESE case may even allow a govt agency to require the rating of films. Min.s recommendation last night was: the proliferation of ways of cataloguing material. More speech!

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Post-Wikileaks reading, Thomas Burke: S.396: the Ellsbergs of today wd no longer require NY Times so the legal focus will shift from prior restraints to how to punish those responsible for posting confidential info on sites like Wikileaks Kathleen Sullivan, Discrimination, Distribution and Free Speech (S.398): agreeing with me: at least wary of (Mieklejohn/Sunstein-like, Hegelian approach to regulating free speech to improve the discourse): how can one tell that one has maximized the quantity or diversity of speech? (S.399) And when Prof.s Sunstein and Fiss talk of appropriately deliberative public discourse [they assume] there must be an articulate discussion of worthy issues, not a gong show of candidates and sound bites, etc. Autonomy is a subordinate value here; the discourse people choose to have may be insufficiently deliberative and when it is, government should re-engineer it to be better. A lot depends, then, on what one means by deliberative. o She also opposes proposals to do away with the complicated, muddled 1st Amendment doctrine as it now exists in its variety of bright lines and replace it with an ad hoc balancing test (S.400): ignores the jurisprudential virtue of limiting discretion which our history suggests we should be very concerned about preserving. Plus, it wd be unmanageable, given all the intertwining of positive and negative govt action with speech today. o Again: Justice Jackson, great: there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. o [P]rogressives jettison First Amendment conventions at their peril.

10 Nov. RELIGION M: skepticism twd the idea that there is any neutral stance when it comes to religion Two religion clauses (unlike speech): o free exercise (for individuals) o and prohibition on establishment of religion Tension btw the two has become Supr Cts central preoccupation re: 1st Am & religion in recent years o But each clause independently interesting o Min: a map of interp of each clause and how it spills over: A) you cd have view, on the one hand, that you strongly enforce both clauses this would mean a lot of judicial action: very vigorous efforts in courts to ensure sharp distinct btw govt and religion, and on other hand, very vigorous efforts in courts to accommodate any individual whose relig freedom might be burdened/jeopardized by otherwise mainstream practices. o Ex.: someone who loses job b/c unwilling to work on day of Sabbath wd mean no unemployment benefits? Vig view of free exercise wd say benefits weak conception would say no benefits. B) You cd have solicitude for religion, period: strong free exercise, less prohbition on estab of religion: Ex.: Public aid to religion? C) You cd have generally anti-religion/secular approach: weak enforcement of free exercise, and strong enforcement of wall btw govt and religion. o Dont accommodate people much for practicing religion. D) You cd have a weak enforcement of both basically: a lot of deference: govt stays out of these matters; treat relig groups like any other groups, allow them to lobby, etc. no big efforts by courts to question relig groups who succeed through political process in getting accomodations. o (note: above could be outlined w/ orthagonal)

HISTORY Note: in book: fascinatng hist of relig clauses; and also fascinating hist of histories o (rem from first days of class: if you can have hist on your side, you can win) The framers of US Const were no strangers to debates on relig freedom and estab of religion: o the colonial exper in the US at least in some measure reflects the wars over religion in Europe: divisions btw Prot and Cath = blood, schisms btw/among Prot sects. o So origin of many colonies here included noted settlements by indivd.s fleeing oppression here or people trying to create beachhead of particular relig sect.

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A few colonies made efforts to guarantee greater freedom of religion Penn, RI (even welcome Jews, opened synagogue; also welcomed Catholics but neither were alowed to be citizen or vote this is what pluralism meant then). Also in Connecticut: someone asked to swear on a Bible, sd he cdnt swear on that Bible (he was Protestant and it wasnt his), so was told: okay, you cant testify in ct. So: free exercise wasnt like modern free ex o Also: most colonies had a state religion. So when 1st Amend was enacted what are they talking about? o One thing for sure: the fed govt not establishing a religion. No incorporation of 1st Amend to states until well into 20th C. At time of enacting 1st Amend, several states had churches estabd by law tho last was dissolved decades before 14th Amend (553). Thus the contestation of history sidenote: here, as always, the failure of the Blaine Amendment to 14th (which wdve explicitly prohibited states from estabing relig) used to argue that framers of 14th didnt intend it to apply 1st Amend, etc. to states (554) o EVERSON (1947) (545): Okay for NJ to pay for transport to private schools doesnt violate establishment clause. includes Blacks historical overview, including: Madisons Memorial and Remonstrance (against compelling dissenters to pay for govtsponsored churches, saying a true religion dsnt need support of the law, and govt-sponsored relig. leads to cruel persections; and the best interest of a society required that the minds of men always be wholly free; and Jeffersons Virginia Bill for Religious Liberty (Almighty God hath created the mind free me: thus a defense of freedom of conscience but on deist grounds) Madison & Jefferson played key role in drafting & adopting 1st Amend Again: the trope: Black the meaning of the Establ. Cl.: [It] means at least this: and then listing all the things it forbids. Ends with citation of Jeffersons a wall of separation between Church and State, citing Reynolds v. US. o Rosenberger contains dueling historical readings of estab cl. (548) with Thomas saying its about not favoring one religion over another, v. not favoring religion over irreligion relying on really weak examples of framer-era funding of church (presumably the best examples available); and Souter pointing out that this is untrue, and in any case that the principles motivating Madisons position would apply equally well to prohibition on favoring relig. over irrelig. as on one relig. over another. (Translation: what remains, what changes.) Souter conc. in Lee v. Weisman lays out how the text of 1st Amend got constructed, changed, etc. (549) pointing out: Madison saw Clause in its final form forbidding everything like a natl relig. estab. (and thus, after incorporation, it wd forbid everything like a state establ.) so that Madison himself characterized congressional provisions for legislative and military chaplains as unconstitutional establishments. me: seems as tho the only reason Jefferson and Madison didnt sound like Black, didnt speak in terms of explicit absolutism, is that deism was just a sort of BG noise to them, didnt even occur to them to try to keep it as separate as poss. from state as well Jefferson v. Thanksgiving: President Jefferson [steadfastly] refused to issue Thanksgiving proclamations of any kind, in part because he thought they violated the Religion Clauses Thus he construed Estab. Cl. to forbid not only state coercion (as majority in Weisman suggests) but also state endorsement of relig. belief. Conclu.: Framers simply didnt share underst. of establ. clause. (551) (& Stevens, 557) o ABINGTON SCHOOL DIST. v. SCHEMPP (1963): held prayer in school unconstitutional. (i.e., the practice of devotional Bible-reading) Brennan against originalism: weve become so much more diverse so what Jeff. and Mad. might not have found objectionable, might today be offensive to many persons Note: in one of 10 Command cases, Rehnq says: weve always been a religious nation. Just look at Supr Ct: frieze of 10 Comm. in the ct! o BUT: which religion? o (sidenote: & which 10 Comm.? Supr Ct frieze avoids this, only has #s) o

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CB: consider that an expansive government means that neutral government rules may interfere substantially with religious liberty. (552) This post-New Deal expansive government: affects everything in 1st Am., all the original balances. o Note: Min.s recurring idea: govt aid to and involvement with religion can destroy religion, cf. Europe: Roger Williams: religion must be protected from the state: otherwise worldly corruptions [might] consume the churches (552) ZELMAN v. SIMMONS-HARRIS (2002): Souters dissent: the risk that relig wd be corrupted by govt aid already being realized. (553) and dissenting in AGOSTINI, Souter: The experiences of the countries from which we have come show that religions supported by governments are compromised just as surely as the religious freedom of dissenters is burdened when the govt supports religion (610). NOTE: So: Min.s idea can be associated with Roger Williams and Souter One more thing that really has changed: the exploding diversity (incl relig diversity) of US. Escalating # immigrants coming from Asia/S.Asia many Buddhists, Taoisms, Confucian, Muslim, Hindu, Jain, Sikh, Vietnamese Catholics, Korean Presbyterians o Amer. Hinduism: has grown by leaps and bounds o CB: Balkins great argument (557): Why does Scalia include Jews and Muslims among 1st-class religious citizens in McCREARY, arguing that 10 Comm.s arent a govt endorsement of a specific religion b/c they agree with it too (556, maybe dumbest argument in book)? Not many of them so why not say that govt prayers to Jesus Christ, our Lord and Savior wd be okay? (me: after all, wd still include Mormons, so wdnt be one specific religion) Other cases in CB: o SEEGER, WELSH, GILLETTE (561+): conscientious objector cases; grapples with definition of religion see note far below, under SECULARISM etc. o BALLARD (563): grappling with the issue of whether someones belief is sincere Jackson saying: we shouldnt be in this business o

DOCTRINE LEE v. WEISMANN: recent decision (1992) (565): some sense of how Supr Ct deals w/ Estab Clause Qs. o Holding nondenominational prayer at middle school graduation ceremony to be violation of establishment clause, on the basis of coercion test o Case: middle school graduation clergy offers nondenominational prayer parents objected many commentators thought: well, this will be end of SCHEMPP: instead, turned out broad protection and includes new test. BUT court-watchers were correct re: initial conference vote at that pt, came out other way, as Blackmuns notes show. Kennedy voted one way in conference, then assigned opinion, tried to write, ended up changing mind. o This case has introduced a new test coercion is now one of the options, doctrinally, for interp.ing when the govt has wrongly established religion o A surprising case in many ways b/c it was 1st school prayer case decided by modern conservative court. In many communities, 1960s decision (SCHEMPP) still viewed as horrible decision also: not even enforced in many parts of the country. in many parts of the country, school prayer happens. (survey: vast majority of public school teachers in TX didnt know you cdnt have pub prayer in school) o decision incoherent a lot of debates re: estab clause at the time frozen in amber Narrowest way to come out wdve been: whatever is the line btw govt and relig, you cant have govt tell individuals how to pray in public. And there is lang in decision suggesting this but its not the only thing going on Kenn also suggests: theres a problem of implicit coercion. Min: why do 2 dimensions of voluntariness not save this? (not forced to go to graduation; if go, not forced to pray) Min: confusing: Kenn says, Well, Ive never heard about middle school graduations but I have heard about high school graduations! and from then on, talks about high school! o Alternative doctrinal test: OConns conc. (later gets 5 votes in crche case): M: outside observer test: (others: endorsement test) if outside observer wd see you as endorsing the religion (or, Min.: the govt is endorsing a religion by having this prayer), not okay the Q posed immediately is: Whos the outside observer? The reasonable person?

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[note re: Lee v. Weismann: prayer at middle school grad ceremony: continuing debate about prayer in schools is a moment of silence okay? once again, baseline Q: if there had been a debate about prayer in school preceding the intro of this moment, prob wil be read as smthg like prayer but who cd object to this if looking at it on a fresh slate? right now, the cutting edge: spontaneous prayer orgd by students last case said: school-orgd prayer at a football game, unacceptable but if students on their own org prayer, acceptable? why? the govt isnt mandating anything freedom of expression? etc.] CB: me: Scalias dissent criticizing courts psychological coercion test (573) the expressive dimension of Scalias opinions in establishment cases: seems to me implicit suggestion that true Americans thank God (574), abbhorent, deeply out of touch with Jefferson & Madison, tho perhaps at least compatible with Adams and Washington (572) CB: other cases re: school prayer: SANTE FE INDEP. SCHOOL DIST. (2000) (577): striking down policy allowing students to vote whether to have invocations at school football games, and then to vote who should deliver them. Stevens saying the speech wdnt be private b/c it wd be made possible by a vote created by the school policy. LYNCH v. DONNELLY (1984) (578): early crche case, but not the one Min. cites: upholding city display of a bunch of Christmas and holiday and Santa Claus iconography, saying SEASONS GREETINGS and including a crche. Runs through Lemon test, recognizes that line-drawing will be involved BUT: key: also considers the long unobjected tradition of such things in America: the religious heritage long officially recognized by the three constl branches of govt OConn.s conc. (579) here = known as origin of her endorsement test (see 585: majority of court adopts this test of establishment violations in ALLEGHENY v. ACLU (1989), see below: what Min. calls the crche case) o also: acknowledges govt acknowledgement of relig in e.g. In God We Trust on coins, distinguishes that from endorsement Brennan et al dissent: distinguishes the crche from ceremonial deism (584) which has lost its power to offend Establ. Cl. through rote repetition

The despised LEMON v. KURTZMAN: the stalking-horse (Scalia: ghoul in late-night horror movie) o test stabbed in heart but surfaces over and over again 6 justices on diff occasions have said: this is terrible test, terrible way of interp.ing estab clause o but it keeps being used has never been overturned o so: another issue w/ court through these cases: is the L v. K test (565) being used? 1. Is this intended to advance religion? i.e., statute must have a secular purpose o (note: often tough to determine what legislatures purpose really is, 592) o Scalia: discerning subjective motivation of those enacting the statute is, to be honest, almost always an impossible task (596), then detailing why Sidenote: Kagans Private Speech, Public Purpose: the Court repeatedly, esp. in OBrien, has eschewed attempt to determine legislative motive as a basis for saying something is unconstitutional, but: I argue, notwithstanding the Court's protestations in O'Brien, that First Amendment law, as developed by the Supreme Court over the past several decades, has as its primary, though unstated, object the discovery of improper governmental motives. The doctrine comprises a series of tools to flush out illicit motives and to invalidate actions infected with them. Or, to put the point another way, the application of First Amendment law is best understood and most readily explained as a kind of motive-hunting. E.g. the almost absolute prohibition on viewpoint discrim.: why? B/c this is a good proxy of a bad legislative motive. 2. Is there an effect of advancing or inhibiting religion? i.e., statutes principal or primary effect must neither advance nor inhibit relig. 3. Does the challenged activity excessively entangle govt w/ religion? i.e., statute must not foster excessive govt entangelement with religion o Q: Must all 3 be met, or only 1? Initial answer was: any one. But lower ct.s have conflicted over this.

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If you apply this test to LEE v. WEISMAN: arguably doesnt meet any of prongs (you cd say: its intended to create solemnity its only a minute long, so not advancing BUT: maybe entangles?) o so: one of problems w/ test is: its very manipulable: from whose perspective do you ask about purpose and effect, etc.? o as used by lower cts and US Supr Ct, became technique for detecting any expression of religion in public space and rejecting it became hypoallergenic test: if you can sniff out any hint of religion, you must clean it out antiseptically e.g. Pledge of Allegiance, God We Trust on coins vast majority of judges want to preserve these traditional things and it turns out theres a lot of relig in Amer public life, not so easy to just clean it out (prayer opening Congr.!) answer in a lot of contexts will be: weve always done it that way Decl. of Indep. includes references to deity can this not be said in school? and Framers saw religion as guiding foundation of country, etc. etc. origin of creation of public schools was to enable people to read the Bible o Min: So what are we doing when we invoke the history? none of it is germane to current discussion. We wdnt be having this debate if we were following original intentions. Note: There are 2 purposes behind estab clause at time of framing and present now: to protect religion from the state (thats what many people adamant about passing 1st Amend were most worried about); risk of divisiveness over religion in public life (again, echoes of religious wars in Europe) o So: sep of church and state: a phrase she hasnt used so far why? b/c its no tin Const and has never been used as test by courts o popularized notion o comes perhaps from letter by Jeff private correspondence usd image of wall btw church and state o BUT captures the mood that animated the aggressive use of the LEMON v. KURTZMANN test (sidenote: L v. K: Has trouble of establishing purpose of insitutions acting whose purpose? is one persons purpose enough? etc.) o Summary: Some tests: o Lemon v. Kurtzman o Coercion test (Lee v. Weisman, Rehnquist, sometimes Scalia) Min: its best version = commitment to guard private conscience and belief, thus to protect people from state-sponsored relig exercise at its weakest: as in Scals dissent: state shd be in business of promoting tolerance about religion o Endorsement test (OConnor, at least one opinion w/ 5 votes: ALLEGHENY) the problem of: what is the method for measuring endorsement? Reasonable Christian observer? Reasonable observer? etc. (587) ALLEGHENY v. ACLU: the crche case where majority uses OConns endorsement test of establishment clause violations to uphold a banner w/ Menorah as a salute to liberty endorsement test is vague and still critd by Scalia (me: tho applies it in PINETTE, 587?: upholding private display by KKK of cross on govt property, applying endorsement test and finding none), Kennedy o Ceremonial deism doctrine: test based largely on history says In God We Trust, etc. okay Min: why is this okay? Why does adding ceremonial make this okay? (Epstein, 589, argues that none of this is okay, shd be invalidated) MARSH v. CHAMBERS (1983) (589) upholding use of prayer at start of Congr sessions reappears periodically, but also not well-developed note: Brennan and Marshall wdve struck it down (like Epstein suggests) CB: WALZ v. TAX COMMISSION (589): property tax exemption for churches okay in part b/c its always been done that way, from the start of property taxation me: a sort of cultural stare decisis (related to but distinct from Breyers opinion in 10th COMM. case: no one objected for so long) Court refused to consider merits of challenge to under God in Pledge of Allegiance: ELK GROVE v. NEWDOW (2004) (590), but Rehnquist invoked ceremonial deism rationale: The phrase isnt a prayer but a patriotic exercise (me: created during Cold War to say: in USA, v. USSR, you can have your religion)

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Eisgruber and Sager (557) have come up with Equal Liberty test: govt shd give no more and no less treatment to analogous beliefs and practices whether motivation is secular or religious ex.: if police dept is inclined to allow Sikh to wear turban outside govt uniform, then it must allow others to wear diff kind of hat that dsnt have relig motivation or: in response to Alito (when judge, 3rd Circ) decision re: can police dept accommodate someone who needs to wear beard? yes, Alito says. These people wd then say: so, someone else who wants to wear beard shd also be allowed to do so. All of these tests become very confusing re: finances. o

FINANCES, SCHOOL PRAYER, CHRISTMAS (me: not worth sorting out all these cases into precise categories) A lot of cases arise in context of Christmas o Plurality opinion by Burger (missed name) o Brennans dissents (citing in God we Trust as ceremonial deism) this case a good time capsule about these issues Noah Feldmans view o Ct is now in business of judging: which kind of pub displays are sufficiently ecumenical: if you have crche but add Kwanza menorah, are you okay? o if we still had entanglement test from L. v. K., we might say: this is precisely what we dont want When Min was law clerk and Christmas rolled around, big tree in rotunda: familiar feature of Amer public life then: Christmas caroling session led by Chief Justice. Min and others left when they started to sing anthems of confederacy. Prob here is not just about religion. Its about use of pub spaces to endorse viewpoints Blurred line in these cases btw relig and speech: this is how well wrap up term overlap between the two issues. CB: WALZ v. TAX COMMISSION (1970) (575): upholding exemptions from property taxes for churches. o Burger: neither the advancement nor in the inhibition of religion o (me: but: a huge government subsidy for religious v. nonreligious institutions?) CB: ENGEL v. VITALE (1962) (576): struck down a school policy of state-written prayers at start of classes, even though policy allowed students to remain silent or be excused from attendance CB: STONE v. GRAHAM (1980) (592), striking down KY statute requiring 10 Comm.s in every classroom b/c has no secular legislative purpose o CB: problem w/ Lemon prong 1: always tough to enter thicket of determining legislative purposes CB: WALLACE v. JAFFREE (1985) (593): striking down AL statute authorizing schools to set aside 1 min. at start of schoolday for meditation or silent prayer [note: School prayer: SCHEMPP, ENGEL, STONE, LEE v. WEISMAN, etc.] CB: Creationism cases: o EPPERSON (1968): striking down AL statute banning teaching of evolution (came out of 1920s upswing in fundamentalist religious fervor) o EDWARDS v. AGUILLARD (1987): striking down LA statute requiring teaching of creation science

10 Commandment cases MCCREARY COUNTY v. ACLU of KY (2005) and VAN ORDEN v. PERRY (2005): o 2 cases, went diff ways b/c Breyer switched sides, as explained in separate opinion. o BG: the display of large monuments w/ 10 Comm.s took off in 1950s when CB DeMille made 10 Commandments film and said: what if we put 10 Comm monuments all over country wd be great for film! So teamed with nonprofit org to raise money and put up these monuments. At origin of many of these cases. o VAN ORDEN (594) was in TX: near Statehouse (capital): ct upheld 5-4, but w/ no majority opinion in plurality opinion, Rehnquist said: our cases pt in two directions: importance of religion in nations history, v. L. v. K. (me: Rehnq. roughly means here: antiseptic), questioning govt endorsement of religion. V. Brennan saying L. v. K. dsnt work, analysis shd be driven by nature of monument and nations hist. Breyer sep. opin: borderline case we must look at context. Cites 5 diff features to explain why there cd be secular purpose. Min: most telling sentence: if these factors provide a strong but not inclusive indiciation predominately secular message, further factor is determinative here: 40 years passed in which presence of monument went unchallenged not due to climate of intimidation suggests few people saw it as govt effort to favor relig belief.

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Min: A diff kind of historical test: (me: like a pragmatic cashing out ceremonial deism idea: ask: has anyone objected and has it gone on for a long long time?) KEY (repeatedly useful idea): Finally, Breyer says: and Im worried if we came out other way, wed have divisiveness around relig that these clauses were meant to prevent ACLU wd file challenges to every hint of religion in public life, and that wd be bad. o NOTE: divisiveness as a criterion (596) MCCREARY (593, 594): written by dissenters in VAN ORDEN: Souter writes (CB: applying impermissible purpose test, based on what objective observer () wd think, looking at text, leg hist, etc.), rejecting dislay of 10 Comm in courthouse here: display is not longstanding but recent prompted constant revision of the display in the face of challenges historical dimension completely lacking.

Various supplementary reading: Posners HLR Foreward (A Political Court): applauding Breyers prudential decision-making in VAN ORDEN o [sidenote: Breyer fluent in French, cites foreign decisions ah, Breyer] Danforth, Faith in Politics: seems we read it to get sense of actual, reasonable, sympathetic constraint on public expression of religion felt by many believers 11 Nov. AID TO RELIGION Minow advised Obama campaign on todays issues: o theyll be on agenda for coming administration: Competing tests: Recent hist.: o Rehnq had a mission to alter the judicial treatment of the Bill of Rights the establishment clause to restrict the scope of the B of R, and to leave more room for states. In estab clause context, more successful than in area of freedom of speech: enormous movement from allergy to religion in public life approach in 1960s, to emerging view that as long as govt is neutral as btw religion and nonreligion, there can be depictions of relig in public spaces and money going to relig groups. One reason this is oversimplification, tho: baseline problems (559) (616): o against what background are these violations being analyzed? 1) if baseline is government inactivity, then no-aid theory follows 2) if baseline is how government treats comparable secular institutions, then nondiscrimination theory follows Scalia adopts this baseline in LOCKE v. DAVEY dissent (615) arguing in favor of it: the expansive role of modern govt as noted elsewhere, in this context, govt neutrality that refuses to help or hinder religion by refusing to give it aid or punish it might, in fact, be seen as de facto disfavoring religion o but raises Min.s Nation of Islam problem: allowing govt aid to religions on the grounds that its already being given to secular institutions might disfavor those religious groups, like Nation of Islam, that refuse this aid (617) o M: The baseline cd be of ceremonial deism: ongoing prayer in public place (as in Breyers conc. in Ten Comm. case) v. if theres a new initiative to inject religious presence, be more wary about it Methods of interpretation: o Originalism and the resort to history o What does an evolving, living Const framework look like? o Another frame: concern for the point of view of at least some relig people? and also protecting relig from the state? o Subdivide: relig and fed govt v. relig and state govt.? o Prudential concerns: guarding against divisiveness ensuring theres sufficient commonality in the country making sure that govt doesnt kill off religion through its rules (the model of Europe govt sanctioned religions, and now theyre dying away)

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Congress shall make no law respecting an establishment of religion o Contemporary readers think: no law concerning it whatsoever But some scholars say: no, back then, it meant something more about avoiding the interference w/ existing established religions. At the time of founding, most states had established religions. o Also, many readers see this as concerning only the fed govt. If this is correct, it means that the intervening 50 years since the incorp. of the 1st Amend through 14th is a departure from what the text meant and the framers meant and many experts in this area believe this. All of the applications of the establ clause to constrict what states and localities can do is a misunderstanding o A problem: we now have 50-60 years of precedent. Shd court disregard it? Which is judicial acitivism now: wiping away these precedents, or ignoring what framers meant? o Emphasis: no reference in the Const to a wall btw church and state Jeffersons letter is origin Justice Jackson quoted the letter in 1948 and asked: what kind of wall did Jefferson have in mind? Jackson went to Monticello, saw that Jefferson had built a serpentine wall there very thin, to allow it to curve not your typical wall. If you want to follow out metaphor far enough, serpentine wall allows gardens to grow in light and shade Note: Jefferson was either atheist or skeptic of organized religion. Of founding fathers, he was leaning against relig but other framers had other views. The game is: find your favorite founder. What shd happen if pub school recitation of Pledge of Allegiance makes its way back to Supr Ct? o (already came up once, but dismissed on standing grounds: conflict btw divorced parents over what child stood for, see above) o Note in BG: Van Orden case: Supr Ct upholds existence of monument before TX statehouse thats been there 40 years (on grounds that theres a prevalance of 10 Comm.s in Amer. society and reasonable observer wdnt think govt was endorsing relig per se) o and: Supr Ct decided that indiv student can choose not to say Pledge in that decision, 1943 (Jackson: If there is any fixed star no one can decide what shall be orthodox), reversed the Supr Cts view from 1940 Note: one issue cutting the other way re: right-left here: right-wing parents not wanting state interfering w/ how they raise their children o Minow Qs effectiveness of opt-out (e.g. permission slip/opt-out for parent at start of year, and child can opt out any time) if its a daily incident, peer pressure, etc when she was five, growing up in DC (pre-SHEMP), teacher had everyone saying prayer, she said it wasnt her God, teacher said: okay, then you cant be in friendship circle o The public school req of saying Pledge is relatively modern event: Congr act 1942 made it optional, 1943 Congr made it required amended 1954 to insert under God Clear from context that it was anti-Communist move understood this way, not religious at all: way of saying, in Comm state you cant have religion, here youre free to o Also note: kid saying it really quickly, has no idea what it means (me: this is right: as indoctrination, its not effective at all no more effective than Communist indoctrination pledges for kids in USSR) o Why ceremonial deism looks appealing: public buildings, prayer in Congress, dollar bill, etc. etc. having Sunday off, Good Friday, Christmas On the other hand: kids being expected to actively, verbally speak an oath of allegiance to country and oath of belief in God and even if arent required to speak: note: analogy: Lee v. Weismann: there also students werent required to speak along but part of the problem was that theyd have to stand there and listen o Scalia: the US isnt France hasnt created secular space laicit youre trying to make us not us SKOROS v. CITY OF NEW YORK (2007) (S.404): allowed Santa Claus, menorah, kwanzaa candelabra, etc. in NY City public school, but not crche Christian mother brought suit: everyone gets their religion in here but me o opinion said: Christianity is different b/c its the majority religion, people cd mistake the message for govt endorsement article: the purpose of the display was to celebrate diversity of citys culture, not to denigrate Christianity (and no one wouldve thought this) so its okay (Supr. Ct. refused to review) o Another objection: Christian parents might fear that their children are being indoctrinated in secular humanism o Is that a religion? (people use this as argument when opposed to teaching evolution in schools)

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ct.s have largely rejected the view that scientists are relying on ultimately unprovable views just like religion often by saying: science is at least open for refutation, etc. to which other side responds: refutation is itself a scientific concept! and supporting is nothing but more faith in science Min.: turtles all the way down

GOVT FUNDING A lot of the cases come out in public schools, like a lot of religion cases o b/c of fraught issue of socialization of young people arguments on both sides: parents shd be able to raise children w/o them being inculcated w/ diff. views; on other side: govt has duty to socialize children to Amer way of life, which includes tolerance for other views OK release from public school to go off-campus to have religious classes during the schoolday lending textbooks to religious schools use public resources to test religious school kids at neutral site Not okay not okay to do that if classes are at the public school $ for texts, salaries at religious schools reimburse religious schools for state required tests

(summarizing cases 600-601; another case is MUELLER, 601, below, and more cases in notes after it, e.g. WITTERS, 607: okay for state to give visually handicapped voucher for educ rehab services which he spends on training to be minister at Christian college; ZOBREST, 607: okay for school dist. to pay costs of sign-lang. interpreter for deaf student in Rom. Cath. school, ROSENBERGER, 608: okay to pay for publication of student religious periodicals along w/ all the others; AGOSTINI (overruling AGUILAR), 608: opening the door to direct govt aid to educational function of relig. schools, e.g. remedial reading, guidance services) USE ALL OF THESE AS ANALOGIES IN DISCUSSING BUSCH The point of the above: there has been complete incoherence this list isnt even complete o So: public aid cannot go to a pervavisely religious location a pervasively sectarian setting, where religion is infused in the whole operation o Like a circuit-breaker: there has to be something intervening btw govt and this religious setting that cd be the individual, choosing o classic circuit-breaker: a voucher this was decision in ZELMAN v. SIMMONS-HARRIS (2002) (611) upheld school voucher program in Cleveland on following grounds: 1. vouchers went to parents who cd select from menu of schools 2. the public schools were terrible 3. the choice included non-relig private schools as well as relig schools, and charter schools within the public school system 4. and it was a limited program targeted at low-income children. Which of these factors are totally irrelevant to Constl analysis? #2, #4. Min: but these were prob key factors for the court: affected by political framing of the issue backdrop of failed desegregation in Cleveland, minority parents generally supporting the plan v. wealthy parents being able to move to suburbs. And court seems to have had view: this is kind of an experiment. CB: dissent: Souter rejecting cts refusal to acknowledge empirical fact that virtually all this money is going to religious schools (me: as Marshall dissented in MUELLER) also, Souters ZELMAN dissent, quoted elsewhere, is where he suggests dangers to religion of entanglement with state (me: sidenote: secular humanism and religion: in some senses alike, but in others, very relevant, not the web of faith argument, what would be required to change a belief, relation of beliefs to shared background of beliefs, etc.) Note: case re: public funding for sign-language interpreter for student in private school ( ZOBREST) court said it was okay, over objection that the translator wd be using public money to make religious speech ct said: no, this is just like a hearing aid o Mins view (and rec to Obama camp): any school, etc. receiving public money (whether through voucher or contract) must allow opt-out (e.g. religious school must allow student there on voucher to opt-out of otherwise mandatory theological courses) Hot-button issue: If an employer receives govt money, shd they be required not to discriminate in employment against, say, gays? o And shd it make a difference is coming by voucher (circuit-breaker) or contract?

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CB: MUELLER v. ALLEN (1983) (601): upholding income-tax deductions for public & non-public school expenses, based on Rehnquist declin[ing] to engage in empirical inquiry (604) into who would actually benefit from such exemptions o key: as Marshs dissent makes clear: vast majority of this money is clearly going to parents w/ kids in private schools, which have vast expenses, v. the much lower expenses of kids in public schools Bad decision. Marshall: The statute is little more than a subsidy of tuition masquerading as a subsidy of general education expenses. (605) CB: LOCKE v. DAVEY (2004) (615): comes up below in notes here: WA state offers merit scholarships but not to students pursuing degrees in devotional theology ct. allows it o Rehnquist: Const. demands some play at the joints between free exercise and establishment clauses o Scalias dissent using the baseline of aid govt gives to comparable non-religious instit.s, concludes this is a public benefit generally available, cant refuse to give it to relig. students FREEDOM FROM RELIGION FOUNDATION v. MCCALLUM (7th Cir. 2006) (S.413): Posner case in reading: o me: Can WI prisons fund treatment programs (half-way houses) including Christianity element, or is this an establishment clause violation? Posner: this is okay, no estab. cl. violation facts: a lot of circuit-breakers to prevent it from seeming like going to Christian program is a requirement, similar to a use of a voucher just disposed w/ the formality of recipient handing voucher to service provider (S.414) Posner says: no difference between someone taking money to religious organization, on the one hand, and, on other hand, checking a box saying, Id rather go to relig. org. o Showing repurcussions of all the above outside of school context: the use of programs like FaithWorks for social services and note: theres pretty good evidence that relig prog.s, at least for substance abuse, is better than secular prog. o Note: there are four votes on Supr Ct saying: as long as theres a secular option and individuals can opt out, we dont care about any of these programs o Also: is a choice meaningful under the circumstances of someone doing substance abuse? Esp. if probation officer is saying: I recommend that you go to relig program (Prob. of govt preferring relig over non-relig potential estab clause problem) also potential problem if theres coercion involved What if the individuals free choice is whats in question? Posner says its not a problem: govt employee is making recommendation solely based on secular dimensions me: Posner: Suggestion is not a synonym for coercion, and quality cannot be coercion (S.415) o But what if its a religious employee? then he says hes not sure. Min feels the checked box v. taking voucher isnt the significant difference the deeper problem is this freedom of choice problem (so: min advised re: faith-based initiatives Bushs exec orders, etc.) (CB: aid to pervasively sectarian institutions: BOWEN v. KENDRICK (1988) (618): facially upholding act allowing federal grants to org.s for counseling services and research in the area of premarital adolescent sexual relations and pregnancy, including private org.s w/ institutional ties to religious denominations)

17 Nov. FREE EXERCISE and ACCOMODATION of religion Todays class: one of the biggest areas of change in Const jurisprudence: We saw last wk re: estab clause the shift from relatively modern view of sep of church and state to cacaphony of competing views, bottom line a move away from separation, an increased focus on neutrality and non-coercion, equality of treatment, and in general the establishment clause cases indicate a shift twd more openness twd the presence of relig symbols in public space and funding by govt of religious o Compare this to free exercise area: here a shift (and we know where it has ended up, no cacaphony really) from a conception (only about 60 years old, to be frank) in which fr ex justified exemptions from otherwise previailing rules/practices if it cd be shown that they burened free ex and govt cdnt show interest in doing this instead, Supr Ct has now articulated a neutrality position EMPLOYMENT DIVISION v. SMITH: if the govts viewpoint is neutral, not targeting a religion, there is no strict scrutiny/compelling interest test instead, smthg more modest, like a rat basis test, which gen means relig ex loses

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Net effect is to advocate one position among 4 alt.s ientified on first day of class: the emergence of weak judicial enforcement of estab clause, weak enforcement of free ex clause, leaving inplace majoritarian elected branchs conceptions of ord life even if they impede the ex of relig So: we shd treat relig as any other interest group, not expect the ct to be its protector o this may be Scalias position, and yet: thats not exactly whats happened here the Supr Ct has closed off that avenue as well, at least re: fed legislation o thats why Min optionally included CITY OF BOERNE (from Structural Con Law) another big change: sharp turn-away from (missed): Supr Ct has said: Congr cannot go out beyond the articulatio of a fund right beyond what Supr Ct has said. Congr enacted Relig Freedom REst Act atetmpt to overturn EMP DIV v. SMITH, to restore compelling interest/strict scrutiny test o What this means is: even if relig groups mobilize sucessfully, convince leg branch and Pres, that relig freedom deserves greater protection than ct is giving it Supr Ct has said: Congr dsnt have power to do that o But note: states can be more protective of relig than fed govt One of the net effects of all this: to assist mainsream relig.s: relig accomodation that existed in SHERBERT v. WERNER was nec to help religions that didnt fit mainstream institutions b/c if they did fit, the school wd close for that holiday, the pub offices wd accommodate that relig One of the challenges here is: does anyone have an objective point of view here? A Q: Leg./admin agencies do come up w/ accomd.s, and then Q is: do those accom.s pose threat to estab.ment of relig? Also: well look at comparision w/ Europe (e.g. Kopftuchen in Germany, voiles in France) o PIERCE v. SOCIETY OF SISTERS (1925) (S.418): Striking down statute making public school attendance compulsory adopted as a majority response to new immigrants, who were pursuing Catholic education as much anti-immigrant as it was anti-Catholic o Ways in which cases reasoning is outdated: Before 1st Amend was incorpd to states thru 14th Amend. Suit brought not only by Cath schools but by military school Supr Ct rejected this law using then-dominant (now in disrepute ) theory of substantive due process (same doctrine used in LOCHNER era to strike down health and safety regulations, and early phases of New Deal, etc.) Because this occurred before modern jurisprudence, a kind of jumble of rationales: protection of teachers to enter into contracts to teach (which was, actually, seppcific holding of related case, comging out of Nebraska state statute forbid teaching of German), lang. talking about basic freedoms of parents to prepare their children for additional obligations (phrase pointing to military academy), and acknowledgement that religion and relig ID is kind of fund rt that elected branches shd be careful to intrude upon, etc. Obviously, case dsnt provide doctrinal framework that is currently in use o BUT this cases outcome will not change indeed, this cases holding is foundational for intl human rights parents having right to guide the education of their children, including to ensure that they have relig instruction Principle: The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. o Also note: the opinion proceeds as if it is completely unproblematic assumes states have complete power to regulate schools, teachers, pupils (e.g. forcing teaching of citizenship, not allowing teachers to be unpatriotic or whatever) ct just assumes this. Min: not clear to me how it is okay to regulate teachers, schools, pupils such that they are patriotic, such that certain subjects that promote citizenship be taught and nothing inimical to public welfare be taught at least raises Q: how much relig freedom there is in schools that this decision protects? Dsnt this assumption swallow up religious freedom entirely? Cdnt state regulate what kind of teachers these private schools employ? This case leaves in place, without question, the power of govt agencies to regulate private schools a power underutilized in this country some states very laissez-faire, esp re: homeschooling no content requirements and yet ct assumes that states have much more power than theyre exercising in these cases. Q: if you were addressing this solely as a policy matter, wdnt it be better to go with the statute that was struck down have compulsory schooling and forbid anything else, forbid any private schools? to avoid exacerbating relig/cult/socio-econ diff.s for national security: socialization of immigrants. Amy Guttmans view. France is example of this idea: in 19th C, forced compulsory pub education, forced military service for men, and revolution that was as much against Cath Church as anything else hence

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laicit, idea of secular public space. (The Minister of Education at 11 oclock knows what every student is saying) OR: Min: laughed out of rooms for proposing what shd be eliminated are public schools (in print, tho not sure shes serious about it): if you take the PIERCE framework seriously, the one thing you cant eliminate is private schools to allow par.s to prepare their children for additional obligations so: the way it has emerged in US is that any parent who has the money to do so tends to send kids to private schools so: lets give vouchers to everyone, use our regulatory capacity to ensure that minimum standards are present in private schools A lot of the heat around relig cases in this country involves kids, and a lot involves schools. A lot of the establishment clause cases were, etc. as our discussion of France indicates choices society makes about schools shape polity and shape opportunities in life of kids NOTE: theres an agency problem: parents choosing for kids: usually were talking about rights of individual, but here were talking about rights of parents as well as kids M: In addition: frankly, I believe its imposs to disentangle the parents own relig freedom from the childs relig freedom often passing relig on to child is great expression of relig. Further, even if we cd just turn to the child and ask how best to protect childs relig freedom how do you figure that out? Do you ask them? At what point? At what age? Douglas sep opinion in YODER exerpted today, read whole case next week in partial dissent to Supr Ct deicsion to grant Amish exemption from compulsory schooling law in WI Douglas asks: shdnt you ask the kids? If you allow this, youre foreclosing a lot of options in life. BUT: as many commentators have said: whats going to happen when you ask 13 yr old Amish child: Wd you like to go to public high school? If they say no, cd be very tense situation when they go back home. Also, may not be able to imagine the alternatives having lived w/o much exposure to broader world typically. ALSO: the sheer act of asking the kids cd interfere w/ the parents socialization project to say to kids: you have a choice when parents believe it isnt a choice, but a relig obligation.

HOW TO DECIDE RELIGIOUS ACCOMODATION CASES: Look to history? Has failed to come up w/ any determinative answer: text itself unhelpful, and history of debate shows positions on all sides So: here, you reason by analogy from precedent. There are competing strands of cases: o set of older cases upholding regulations so long as theyre neutral REYNOLDS (1879) (622): upholding conviction of a Mormon under ban on bigamy EMPLOYMENT DIVISION seems to return to REYNOLDS, but if you read REYN.s lang, it wd trouble more modern position: untroubled by govt imposition of a relig POV says bigamy is antithetical to civiliation o Congress is free to regulate practices that violate social duty or subvert good order BRAUNFELD v. BROWN (1961) (622) upholding law requiring that businesses be closed on Sundays, challenged by Orthodox Jews whose beliefs required them to close stores on Saturdays. rationale: theres a neutral secular goal, to provide common day of rest, a business-free day but like REYN., case seems unable to imagine how closing stores on Sunday wd appear to people outside this tradition again, culturally myopic unaware that this looks like favoring Brennan dissents: orthodox Jew is given no choice; CANTWELL v. CT (1940) (71, already summarized above re: provoking hostile rxn): introduces a distinction that Min thinks has bit the dust: freedom to believe v. freedom to act, limited by govts need to regulate. Here, JWs can believe whatever they want, but govt is free to regulate their conduct to keep the peace. from above: facts: similarly, Jehovahs Witnesses using phonograph on the street, containing obnoxious, offensive put-downs of other religions, theres no threat of bodily harm even tho playing this record might lead to fisticuffs. Convicted of breach of the peace. Supr Ct overturns. o 1963-90: then a series of cases: a failure of govt to show compelling reason: SHERBERT v. VERNER (1963) (623): invalidating denial of unemployment compensation to Seventh Day Adventist fired for refusing to work on Saturday, her churchs Sabbath, as violation of free exercise clause M: first case in which court interpd phrase good cause in unemployment statute allowed individual to obtain unemployment benefits if refused work for good cause: Is refusing to work on Sabbath good cause?

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Court saw this case as occasion to introduce strict scrutiny: o govts proferred reasons were not compelling very crucial to decision: ct concluded that exemption for this individual wd not interfere for works of others as wd exemption from Sunday closing law. o me: using balancing test, distinguishes BRAUNFELD b/c there allowing exemption wouldve destroyed the whole system; here, you can allow exeption and everything else still works. me: through all of these: baseline questions: is the court treating her specially, or is it treating her equally to all the others who dont have to work on their Sabbath? Note: compare w/ PIERCE v. SOC OF SISTERS, or any case coming out of substantive due process, there the remedy is to strike down law here remedy is to create exemption for complaining indiviudal. And note: me: (conscientious objector cases above): M: Court not requiring that individual show membership in a recognized religion its about individual conscience, sincerity of belief, not content. and now a new regime defending neutral rules of gen application WISCONSIN v. YODER (1972) (624): (also see notes below, under SECULARISM v. PLURALISM) exemption that old order Amish obtain from compulsory schooling law o couple of facts worth noting: the Amish didnt object to compulsory schooling up to 8th grade, ~age 14 o and again, ct dsnt ask: does this make any sense? just take Amish at their word that its high school thats the problem. o (Min: why? Perhaps: elementary school that students attended was local, v. high school was regional. So elem school almost entirely Amish kids, v. high school heterogeneous. Also, high school curriculum moves well beyond reading, writing math and into science and many more advanced subjects, however line is not as firm as you might imagine. Also, perhaps biggest reason: high school curriculum oriented toward critical thinking.) Burger trying to have his cake and eat it too: praising self for tolerance re: exotic subgroup, but also saying Amish are in recognizable tradition re: yeoman farmers, self-sufficient, we wont have to support them! o if exact same claim had been brought by, say, Rastafarrians, very easy to see it turning out differently o Can Supr Ct ever be neutral? (me: no no such thing as neutrality in these questions because the very idea of neutrality is taking a position against various fundamentalisms, etc.? But is meta-neutrality possible? Being neutral about whether to be neutral or not?) Note: this decision launched the current explosion of home-schooling now fastest-growing sector of Amer education doubling every couple of years, tho still teeny Note: Collision arises between SHERBERT and YODER: re: exemptions Supr Ct ricochets back and forth: what kind of rules require uniformity? when is exemption justified or not? move toward SMITH case radical reversal of SHERB and perhaps WISC as well

Areas where people have challenged for exemptions from govt regulation: (me: NOTE: all of these challenges are on FREE EXERCISE grounds) o Tax policy: no basis for accomodation or exemption you need universal tax policy, cant have everyone declaring their home a church US v. LEE (1982) (625): rejecting claim for a constitutionally required exemption from paying SS tax (Old Order Amish believe its sinful not provide for their own elderly and therefore religiously opposed to national social security system) o Military: uniform cases: GOLDMAN v. WEINBERGER (1986) (626): upholding against free exercise challenge an air force regulation prohibiting the wearing of headgear (re: orthodox Jews yarmulke) Stevens concurrence: an opinion in the tradition of avoiding judicial entanglement: better to stay out of the line-drawing business here v. giving in to an attractive exception

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any claim by individual to wear attire diff than mil uniform has failed as a Constl matter Congr responded saying: yes you can; Supr Cts view: no, not even under unifrom o Prison security: accomodation has largely failed, except re: arguments for diet (v. e.g. a lot of pork) OLONE v. ESTATE OF SHABAZZ (1987) (627): upholding based on security concerns prison policy forbidding prisoners from attending Jumuah, weekly Muslim service mandated by Koran note: CUTTER v. WILKINSON (2005), rejected facial establishment clause objection to Religious Land Use and Institutionalized Persons Act, enacted in 2000, telling govt not to burden relig exercise of people confined to institutions o Use of social security number: failed BOWEN v. ROY (1986) (627): upholding requirement of submitting SS# to get welfare benefits (this violates someones relig beliefs) o Govt regs of land/environ: always fail LYNG v. NORTHWEST INDIAN CEMETARY PROTECTIVE ASSOC. (1988) (628): OConn writes for ct that theres no need even to show govt has compelling interest in project Lays ground for SMITH case: troubling: Native Amer.s said plans to plow road, cut timber wd desecrate sacred site the ct dsnt even really acknowledge how big the burden is. Instead, the opinion is written in form of: whats the big deal, its a road o Sales tax: in fact, perceived to be an establishment clause violation TEXAS MONTHLY v. BULLOCK (1989) (646): through legislation, govt had exempted religious publications form sales tax example of an effort to accomdate religion crossing into impermissible favoring of religion. Scalia dissents, arguing its a permissible accomodation of religion b/c imposing a sales tax on religious publications was at least arguably an unconst burden on religion (???) CB also says TEXAS MONTHLY = permissible accomodations must be sufficiently broad compare this w/ rule banning ritual slaughtering of animals LUKUMI (1993) (639) where ct rejects that rule: why? b/c it was not put in form of general statute instead, betraying a kind of persecutorial motivation These cases show that its difficult to draw line between establishment and free exercise So: 1990: Ct pulls back from accomodation regime EMPLOYMENT DIVISION v. SMITH (1990) (629): o CB: Can state deny unemployment benefits to someone fired for religious peyote use? Yes, not a free exercise violation, no accomodation/exception required. o opinion by Scalia me: if prohibiting the exercise of religion is not the object of the tax but merely the incidetnal effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended (630) (!) M: best rationale for Empl Div v. Smith: if its a generally applicable law, and it burdens yr religion, there still shdnt be an exemption b/c there will be too many claims (Note: IRS has had this problem of defining religion re: tax exemption: used to use heirarchical authority w/ belief in God as template) KEY: only if theres something that singles out a group: you cant kill animals as part of a ceremony, etc. only then will there be strict scrutiny me: BUT: also key: still allows states to accommodate: opens the door to permissive accomodation o leads to weak judicial enforcement of free exercise clause Interestingly, it was Scalia who had dissented in BULLOCK (above), saying: it might be unconst to tax relig group in general very worried about impairments of relig freedom but then comes out w/ this case allowing a rather massive impairment of relig. Min: hard to see this as not treating diff religions differently. o M: Note: Scalia re-reads earlier cases. This is the method here. Look at cases, analogize, disanalogize not about looking at text of amendment, etc. Scalia says: in each of those cases, it was never the free fr ex that did the work alone instead, it was a dual claim, hybrid claim two claims in one YODER: fr ex/Const due process (freedoms of parents to raise childr as they wish to raise them note: citing PIERCE v. SOC SISTERS which only used due pr b/c before incorp of 1st through 14th!); CANTWELL; SHERBERT: individualized assessments built into the governing regime (applications for unempl. benfits) (me: so, you need double Constl support to uphold your free exercise rights in cases like this) BUT: isnt this the same? How can SHERBERT really be distinguished from SMITH? Scalia has to do fancy footwork to get there: this is also about unemployment benefits but Scalia makes it seem to be about general criminal law banning peytoe (629) (me: unclear why this should be relevant)

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What does SMITH leave in place? o Certainly less than str scrut probably rational basis review: if burden passes this, no accomodation necessary o OConn conc says: lets keep compelling interest test its flexible enough to protect govt interest, it wd work here o Blackmun: explaining signifc of Native Amer. tradition: one of many decisions saying: this really is religion, even tho it dsnt look like yours! me: also making good argument against worries about slippery slope: of the handful who have tried, no religion claiming an exemption re: drug use has succeeded It was b/c of this that Congr said: lets put back in place the compelling interest test: Religious Freedom Restoration Act (639), struck down in CITY OF BOERNE v. FLORES (1997) (639, optional reading too) on federalism grounds o Many states have adopted versions of the act, so law may be diff in some states o S.430: BOERNE: about 5 (-> 1) of 14th, and Congresss ability to overturn ct decisions What now emerges as big problem: what accom may government give? When does that spill over into establishment?

PERMISSIBLE (v. required) ACCOMODATION CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS v. AMOS (1987) (642): o CB: Q: Does 1964 Civil Rights Act exemption for religious org.s from the Title VII requirement of no religious discrimination in employment violated Establ. Cl. when applied to a relig. org.s secular non-profit? No law is okay: so government may permit religious org.s to discriminate on the basis of religion in employment even in their secular/nonprofit activities me: good argument: rejecting drawing a line here based on whether the relig. org.s actions in some area are religious (in which case allowing relig. discrim. permissible) or secular (in which case not) b/c relig. org. wd. have to worry about this all the time, constantly trying to predict what a court wd say we dont want to force them to be in the line-drawing business (643, same pt 645) me: tragic tensions here: in some cases, between free exercise and establishment; also in some cases, between two parties free exercise (that of church, that of employee) o M: gym owned by Mormons employee was Mormon, but not going to church fired said: this violates estab clause. Govt backing up churchs ability to discipline him Supr Ct says: you lose: this exception for relig groups from anti-discrim principle is justified as an accomodation of religion. Then justices cdnt agree why. You can see why: case is on collision course w/ other trad.s me: Scylla and Charibdys: the free exercise clause mandates non-interference; beyond this, a legislature may accommodate; but the ultimate limit of this accomodation is the establishment clause. o OConn conc: this is why we shd adopt the endorsement test. Estab clause violation = wd anyone think this is govt endorsing Mormonism? No! so its okay. But if it looks like govt assisting/touching relig, a problem. o Brennan conc: this is why we shd use freedom of association analysis (v. estab clause or fr ex) associational rights of Mormons to create their own community, to assoc w/ each other to make an environ in which a cert way of life is protected. BOARD OF EDUC OF KIRYAS JEOL v. GRUMET (1994) (647): o Hassidic community in NY: has orgd itself to be incorpd as town then org self to apply for approval for school district entirely in town: rejected in this case (even tho theyve done exactly what Brennan says above in AMOS created their own community) b/c its an unconst estab of religion, advantaging one religious group over others o lots of probs with this case: community sought this school system solely for their students w/ disabilities: sent all the other kids to private schools o ct cdnt agree on rationale: Souter said: special treatment isnt neutral; Breyer: they shdnt self-segregate they shd go to public schools, teach tolerance; Kennedy OConn o Scal dissent: this should be allowed b/c religious interest groups should be able to go to the legislature and battle it out they did that they shdnt now lose. PROP 8: o in CA: given active involvement of Mormon relig groups: enforcement of relig viewpoint? estab of relig? or is this a generally neutral rule?

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o o

interesting idea: maybe state shd get out of the marriage business entirely: just have civil unions if you want a marriage, go to a religion but prob dsnt align w/ Const doctrine you cdnt force this as a Const matter: analogous to Sunday work laws which are permissible

END OF INTENSIVE READING 18 Nov. FREE EXERCISE AND EQUALITY Connection between religion clauses and equality: 1. A critical advocacy technique used by litigators influencing the ct: to press for an equality framework sometimes called a neutrality framework but equality dimension is crucial 2. Emergence of theory of equal regard/equal treatment a. Alitos view last night film discussion best clue yet re: his interp of free ex clause: he apparently subscribes to this theory 3. Also, there is an emerging conflict between the recognition of relig freedom rights and the enforcement of antidiscrim norms, statutory in particular, on basis of gender, etc. Finding conjunction between religion and equality has also been the strategy of advocates who wanted to lower wall btw. church and state (the wall that emerged since 1960s) o strategy orchestrated by Michael McConnell had been prof. at U of Chicago law school, then U of Utah, was Minows co-clerk himself very religious, home-schooled his kids thought 1960s jurisprudence was erroneous became the Th Marshall of renovation of religion clauses pursued equality theory with heavy emphasis on viewpt discrim and injections of equality considerations into estab and free ex clause e.g. early lawsuit: pub aid prog making available $ for private schools to buy comp equip and txtbks but excluded relig schools, b/c leg was trying to adhere to then-prevailing estab clause doctrine: no direct aid to relig institution o advocates challenges this: its viewpt discrim they won 2nd case: ROSENBERG: UVA internal rule: no aid to relig publications challenged as v.pt discrim, and again won Both cases crucial landmarks on way to voucher case: ZELMAN ct allowing, despite challenge, use of vouchers to support stu enrollment in parochial schools no longer about viewpt discrim but supported by equality argument from earlier cases o strategy isnt entirely complete, but has pushed very hard: govt can support relig insitutions if it does so along w/ others: away from no-contact idea and twd equality framework o Min.: shows the utter success of BROWN the strategy of advocates developing series of cases to mvoe the court and also the power of the equality claim FRATERNAL ORDER OF POLICE v. CITY OF NEWARK (3rd Cir., Alito, J., 1999) (S. 443): o Alito: striking down Police Dept. anti-beard policy that allows exception for medical reasons, but not for religious reasons: this is a violation of free exercise: if you offer an accomodation at all, then you have to offer one for religious reasons so: as we saw in SMITH, free exercise clause dsnt require accommodation BUT if there is an accommodation allowing anyone excemption from gen law theres an equal protection violation if theres not also an accommodation for religion police dept. bans facial hair except well-trimmed mustaches (Min: equality claim: beard v. moustaches? ha ha ha) and for health reasons (e.g. health conditions where shaving is painful) not for personal appearance reasons. o more facts: some individuals belonging to particular religion (Islam) and therefore believe they shdnt shave their beards challenged the rule, sd they shd have exemption too and won before Alito. Discussed at Alitos confirmation hearings as evidence of strong commitment to civil rts a minority group but its also a clue of what he might do re: free ex clause: a sidestepping of SMITH generally applicable rule dsnt give rise to strict scrutiny

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sidesteps it thru a kind of equality argument: B/c dept was willing to make exception for some people, has to make exception for others, incl religious Min: implicitly: maybe the arg here is: the govts arguments must not be that strong if they allow exceptions for some people v. dept said: we have to have the exception for ADA! At which pt ct says: well, theres also good statutory basis for accomodating people on basis of religion Title VII.

Interesting manifestation of a theory developed by a couple of academics Eisgruber and Sager (they have a book together) o not very much in favor of treating relig preferentially o their paradigmatic case wd be reverse: if there was a police dept that accomodated relig claims for wearing a beard, then wd have to accom non-relig as well: basic idea is that relig shd be treated the same as any other reason, that its bad to treat relig separately (b/c doing this produces rivalries, and wrongly elevates relig belief as opposed to other kinds of beliefs wd produce more civic harmony if we had policy of equal regard) e.g. treat someone w/ avid hobby the same as someone who has relig resaon not to work on weekend (me: really? seems a very real, very problematic slippery slope?) o But dsnt this create risk of favoring one relig group over another? (eg.: is there an inequality problem when some relig groups e.g. Nation of Islam refuses to ever compete for faith-based initiative money? Or is this just an issue of free choice?) o In response to this, ct. says e.g. in Cleveland case (me: ZELMAN?) we believe in markets and if relig is in minority now, it can grow Min: seems to have happened to some extent Relation to enforcing civ rts laws that forbid discrim on basis of gender, race, sex orient., etc. o When does this arise? Relig orgs have a tax-exempt status qualifying as non-profit. Dont have to pay property taxes, etc. huge boon. Also, the donations are deductible to donor which makes money go further. Economists wd say: theyre getting govt $! You might say: no, this is different o Q: Shd private relig U lose private tax-emempt status if bans interracial dating? BOB JONES (discussed below, also reading next week) Supr Ct ruled: for tax exempt status, must not ban interracial dating (was decided as stat interp case, v. Const.) o Q: Shd relig school be able to fire pregnant teacher b/c it dsnt think mothers shd work outside home? OHIO v. DAYTON SCHOOLS (ct. basically saw the case and said Ack! and Stuntz and other clerks helped them get rid of case on abstention theory, allowing school to fire teacher) o Q: Shd e.g. Catholic Relig Charities be exempt from MA ban on discrim in hiring? (didnt go to court, but was big controversy in Boston 2 yrs ago, led ultimately to Cath Charities abandoning that business rather than comply w/ the rule) o Three options: 1 option: no one shd be exempt from anti-discrim laws 2 option: relig orgs shd be exempt from such laws where it wd violate the relig beliefs 3 option: history has given us this: relig groups largely receive no exemption from laws prohibting race discrim, but some re: gender discrim, and full exemption from laws forbidding sexual orientation discrim (Min: not a logical answer reflects the relative degrees of success of different civ rts movements) o Min: the fundamental issue a hard one liberty of conscience v. anti-discrim respect for relig., v., what was the pt of having social movements for civ rts if groups can exempt themselves? etc. Min: perhaps even advocates for civ rts might find it better to back off in order to allow struggles over anti-discrim to proceed internal to the groups in some sense, Min taking long view saying: struggles have largely succeeded inside groups maybe same cd happen re: gender discrim, and maybe re: sexual orient but Min is very torn about this. (note: gay protestors now protesting inside of churches! re: Prop 8) o details: one reason to be worried about offering relig groups exemptions from anti-discrimination laws is that theres almost no limit to this arg (slippery slope) so: to her surprise, Min more sympathetic to SMITH than she originally was: the refusal of heightened scrutiny re: any rule that burdens relig practice. B/c shes seen slipp slope now: exemptions re: property & sales taxes, unempl benfits, collective bargaining, daycare licensing All granted to groups on grounds of religion, and not to secular non-profits. So: day-care center religiously organized can be exempted this is going to affect the market, the allocation of services exemptions from civ rts laws the most challenging: but note that relig discrim is also banned by civ rts laws. Can a relig org fire someone b/c theyre not a co-religionist? AMOS case. Note also: some of these anti-discrim laws only exist in some states, w/ no fed law.

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More cases: o Discrimination against homosexuals: Claim by doctor who didnt want as patients lesb, bisex, etc. challenged KY ordinance that banned sex orient discrim claimed it was unfair b/c it exempted relig orgs but not relig individuals fed ct rejected his claim as too hypothetical at these moments, procedural strategies very appealing to cts and advocates o LONG v. SALV ARMY: SDNY Fed ct faced case in which several private employees of salv army said that Salv Army violated estab clause and state laws forbidding relig discrim when it engaged in vigorous inquiries about employees relig and sexual practices and forbade employees from counseling adolescent clients re: STDs Min: note: Salv Army was providing services under a govt contract does this make them more subject to civ rts reqs? were less able to argue: this is just our private conduct? employees lost o TEEN RANCH v. UDALL: (Mich) faith-based org protested states moratorium on contractual relations w/ this org (teen ranch) b/c its program imposed relig beliefs in treatment of neglected/abused youth Teen Ranch sued, sd this violated its Constl rts to free ex/free speech they lost As noted above, rules diff re: race, gender, sex orient discrim: o BOB JONES UNIVERSITY v. UNITED STATES (1983) (469): facts: Until 1970, IRS grants tax-exempt status to all private schools. 1970: IRS changes its policy, revoking tax exempt status for private universities practicing racial discrimination. So Bob Jones would lose its tax exempt status since it dsnt allow interracial dating. The 1st Amend Q here: Does IRSs 1970 policy violate the universitys free exercise rights under 1st Amendment? Court says no: free exercise clause = absolute protection against regulation of religious beliefs but dsnt offer absolute only substantial protection against regulation of otherwise lawful religious conduct and here, the interest in eradicating racial discrimination is so compelling that it outweighs whatever burden on free exercise is imposed by denial of tax benefits after that case, tho, not entirely clear what happened: not clear that IRS enforced it. Reagan then elected President wanted to grant the tax exemptions, wanted to moot the case one of few moments where there was clash btw Press political appointees in Sol Gens office and long-term career attys there they split on what side they wanted to support. actual implementation of this decision remains unclear through 2000 Pres campaign GW Bush tried to recover from New Hampshire defeat w/ event at Bob Jones U., allying himself w/ evangelical Christian community that founded that school media covered event extensively, investigated what had happened: found that U. still had policy in place for banning interracial dating so media critd George W Bush then U. said it was ending policy U has now begun effort to recruit minority students to improve its image Note also: Trent Lott had signed amicus brief (race discrim ds not always violate pub policy) in Bob Jones case discovered, caused problems also caused problems for John Roberts, who was in Sol Gens office at time of case when pressed by Senators for his view of case, he didnt decline to answer on grounds that this Q might come before ct instead, he said he unequivocally disagreed w/ Reagans attempts Min: so now we know that BOB JONES is good law its not going backwards: a relig group may not claim a relig reason for engaging in relig discrim as a defense against a threatened removal of its tax exempt status (tho: diff Q: cd they give up tax exempt status and continue being racist were not talking about banning the group or making its conduct criminal this is about tax exempt status) But Min wd say: this is not typical Const arg this is a political struggle that went over decades o Turning to GENDER: Gutsy P (Susan Rockwell, pro se) looked at BOB JONES, thought: I want to do that but for gender sued Roman Catholic Church about not allowing women into clergy positions. She lost. Ct dismissed suit, using procedural duck (not clear that shed be ordained even if she won) other cts have developed pretty elaborate doctrines to say: thats the core of relig exercise, and state shdnt get anywhere near it BUT there is no similar clarity re: exclusion of women in non-clergy roles What about teachers? Choir masters? Librarians? Theres a series of cases dealing w/ teachers and counselors Omaha GIrls Club fired unmarried counselor on grounds that she became pregnant and was bad role model she challenged the firing and was

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lost. (Min: makes sense? you hire someone to be a role model and then she ds the precise thing shes not supposed to do? BUT runs into collisison w/ Pregnancy Disability Act protecting employees on basis of pregnancy) Where country is on this issue: circuits are split: does free ex trump Preg Disabil Act or vice versa? Supr Ct very patiently ducking this Q One ct went so far as to say: theres sex discrim here, b/c no investigation as to whether single male teachers fathered a child Turning to SEXUAL ORIENTATION: Cts have generally sided w/ relig org.s when theyve faced claims of discrim in employment on basis of sex orient or PADERA v. KY HOMES FOR CHILDREN: Baptist soc service agnecy in KY, largest provider of services for troubled youth in state, fired lesbian therapist (Alica Padera?) disclosed orientation during hiring intvw told: no policy against that, but be discrete. (Min: widespread practice re: relig groups.) Padera did remain discrete, EXCEPT when an amateur photographer took photos of her w/ tshirt (Isles of Lesbos) and w/ partner, showed photo in exhibit at state fair. She sued agency recd much of revenue from govt contracts therefore govt was illegally funding discrim employment policies. She lost. This issue created firestrom when Bush proposed faith-based intiitiaves prog.s that wd exempt relig groups from local discrim laws Then 9/11 Congr simply created tax-breaks for relig groups to support all kinds of charitable work somehow claiming this as 9/11 response (???) White House meanwhile created exec orders pursuing faith-based initiatives, emphasizing equal opportunities for relig groups allowing relig employers to select employees based on relig beliefs

SO: Shd we pushing in direction of more coherent view? Relig orgs getting exemptions across the board or not at all? Or is there a principled reason to disting race, gender, sex. orient.? o (One approach: me: sounds good: tax churches Min: but the state grew up around churches also: you cd tax churches out of existence or cd control the scope and shape of their beliefs but: allow govt to put all the requirements on them that it wants?) o Easier: shd criminal statutes apply to religions? (e.g. ritual slaughter) SMITH: okay, b/c relig not being targeted? (Sidenote: Amish said theyd leave the country if they didnt win in YODER always a risk ) o o KEY point: The assumption that the best way to deal with this is to go to court may be problematic . e.g. MA controversy: Cath Charities was forced to allow same-sex couples to adopt children Then Vatican said this was gravely immoral Father OHare (?) here at Harvard sd: can we refer these couples to other agencies? State said no. At the time, Cath Char.s was leading agency for special-needs kids. Min: whats partiuclarly sad, Cath Char.s had been placng children w/ singles w/o inquiring whether gay or lesbian. Boston Globe discovered some were gay, this firestorm reached Vatican Father found Catholic justification for going w/ lesser evil Archbishop met w/ Gov Romney seeking exemption Cath Char.s thought about suing, decided against it withdrew from the adoption business altogether Around the same time, in SF: domestic partner policy sd any agency doing business w/ city provide healthcare benefits to same-sex partners on same basis as married couples (long before gay marriage allowed then revoked in CA) Cath Church leader sd: this wd be govt coercion, wd violate 1st Am guarantees refused to do it. Sd: Im in favor of increasing health care benefits for anyone this is a national shame: Amers w/o health coverage. Ill help on that. Mayor Willie Brown responded, met w/ Archbishop: mutually agreeable solution? Addressed concerns of both city and church: the citys rule now allows any contracting party to be in complaince w/ its policy so long as its based on any employee designating one adult living in household as co-beneficiary Avoided costly and bitter litigation inevitably ending w/ one party losing

So: Min: the Const values and broader normative values in conflict btw relig exercise and anti-discrim norms on basis of sex. oreint may be resolvable, but not by courts? negotiated solutions? Note: from Supp. Rdg.: Lupu/Tuttle article on faith-based programs (S.449): o notes the constitutional changes toward allowing more govt money to flow to relig. org.s

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o o

(BUT: the no-indoctrination principle is absolute: Unlike other values protected by the First Amendment, the ban on religious establishment is never balanced against the social benefits that would arise from a violation of the principle. Tendentious claim.) NOTE: 452-453: AN OUTLINE OF THE EVOLUTION OF Const Doctrine re: Government funding used by relig org.s, how it has narrowed over the years: 1970s-late 90s: no $ to pervasively sectarian institutions, then 3 principles narrowed this: funding can go to relig. org.s, just cant be used for indoctrination activities funding is okay if it results from beneficiary choice funding is okay if its just for a forum for speech that happens to be used by relig. org.

24 Nov. PLAY IN THE JOINTS: BETWEEN ESTABLISHMENT AND FREE EXERCISE (Bob Jones; Locke v. Davey) Leaving space btw constitutionally required and constitutionally permitted: a good idea? Problems: Possible conflicts btw free ex and estab clauses: o Govt creates an accomodation based on free ex rationale risks being challenged as estab. problem o Govt excludes relig providers/groups from otherwise existing govt prog in order to avoid estab clause prob, and thereby threatens creating a free ex problem (or even an estab clause problem, through dis-favoring) o Govt seeks to remove a governmentally imposed barrier to free ex that had existed for a long or short time and justifes this as free ex move but this risks an estab violation o Govt makes efforts to remove the signs of relig in public life effort to extirpate? extricate? relig ceremnoies, etc. out of concern that theyre estab clause violations, or for some other reason and in doing so, govt is accused of viol.ing free ex, or estab or perhaps even equal protection or even viewpt discrim problem Predicates [note: in Ms usage = background conditions] of LOCKE v. DAVEY, things to consider before going into case: o BOB JONES UNIV. case (see above) Supr Ct has something to say about interp.ing IRS ruling and the Const.: there is no free exercise prob where the govt pursues a compelling govt interest (in this case, guarding against racial discrim) and that govt policy dsnt violate the free ex clause. Our interest here: the method the ct uses. It says: no special scrutiny required. But it says there is a compelling state interest. So were left uncert about how to evaluate claims of failures of govt accomodation of free exercise. Then: EMPLOYM DIV v. SMITH: me: There can be low-level scrutiny where no one else is receiving an accomodation or theres criminality involved or a hybrid claim ? (But this didnt overrule BOB JONES.) o WITTERS (much cited by dissent in LOCKE v. DAVEY): Permission for state to allow public tuition subsidy to be used at Christian college by individual seeking to become a minister. Similar facts to LOCKE? How to distinguish? Min.: Perhaps the decision to use the $ at Christian college o WHAT STATES HAVE DONE: Many states exclude relig org.s from programs providing tuition or other forms of pub subsidy b/c they think its a good policy or b/c they think theyre compelled to do so by st Const. 37 st.s forbid pub dollars to be used in one or more kinds of relig instits. (some: schools; some: more broadly) leading to cases like CHITTENDEN in Vt. (Note: adds a federalism element.) Were on a collision course btw these state Const cases and cases like ROSENBERGER, which suggests you violate (free ex?) if you dont include relig org.s in public prog.s o BLAINE AMENDMENT: Note: during debate over 14th Amend, Sen. James Blaine tried to amend fed Const. (me: to do what?) (motivated in part by anti-Catholic, anti-immigrant sentiment) failed many states changed state Const.s in response. Tho some stem from revolutionary era: debates btw Madison, Jefferson, etc. And some stem from turn of century.

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Upshot: some people like to challenge these state const provisions b/c theyre discriminatory either under equal protection theory or something else FEDERAL FRAMEWORK FOR ESTABLISHMENT CLAIMS: has been shifting. We dont know what it is. e.g. cases weve studied in prev. classes such as that one case dealing with restrictions on free exercise in prisons Potential collision course between one wing of Supr Cts interp of relig clauses, and the states.

LOCKE v. DAVEY (S.472) (also 615) = play at the joints (quoting WALZ) btw free exercise and establishment clauses, leave it to the states Most recent Supr Ct attempt to figure out path between the two clauses Q: Does govt violate free exercise clause by excluding devotional theology as field eligible for state tuitition scholarship? o (Was this the best way to deal with the problem?) facts: WA scholarship allows you to pay for relig classes with state $ at relig school. But theres one restriction: $ cant be used to major in devotional theology. Can take course in that, but cant major in it. Thats what Davey wanted to do. Barred. Davey challenged law as unconst disfavoring of relig, and therefore estab clause viol. o Min: Arguably there cd also be a free exercise claim. o But then youd have to argue there was an entitlement to the $, or that the baseline is the money o (Scal. dissent does argue this) Holding: Surprising opinion by Rehnq, upholds state restriction does so by picking up phrase: There must be play at the joints and ct proceeds w/o heightened scrutiny. o But what is method of analysis? Its kind of like know it when we see it. o Min: a prudential opinion. Trying to avoid messy collision with states that wdve resulted if theyd continued in the direction they were going. o Min: This case really about school vouchers, and whether states can exclude relig schools from voucher programs. o Scalias dissent: this is just like WITTERS: what happened? There, we found no prob w/ an indivs use of a govt. tuition grant at relig school to study to be minister. Whats different here? Min: Well, maybe: in WITTERS, the governmental policy at issue permitted the use by individuals at relig schools; in this case, governmental policy forbids that use. Does that matter? Arguably yes, if theres play at the joints: if what is permitted under the estab clause is not required by the estab clause. Do the states have any discretion about how much to accommodate relig? Also, in this case, theres a state Const stalking horse in the BG, in WITTERS no. Scal. ends dissent talking about France, worries about becoming France: forced secularism (alien to Amer culture). Also, the good (but ultimately useless, b/c always reversible) baseline argument: if state makes benefit generally available, availability becomes the baseline, and cant refuse to grant benefit on basis of relig. me: one way to read LOCKE: another largely symbolic Rehnquist federalism case: the WA statute only mildly disfavored religion, after all, so fw costs Supp. (S.483): Note, Journal of Law & Public Policy (Fed Soc): focusing on incoherency of all of this doctrine now, and case of San Diego public school with a lot of Muslim Somali refugees that made a lot of accommodations to in the way it was run Supp. (S.505): Minow: Govt cant/may/must fund relig schools puzzle: doctrine wont resolve the incoherency here: but instead through particularized case-by-case judicial attention to the cumulative impact of religious schooling on the character of the nation and the predicates for inclusive democracy Always rem.: One key, basic goal of 1st Amendment: avoiding the 30 years war: avoiding having debates over religion (interminable, bound up with peoples deepest commitments, divisive, etc.) dominate public life o [Sidenote: faith-based initiatives began under Clinton welfare reform] Min.: All a matter of baselines. And she wd set baseline in the following way: o There is no right to have govt funding for your social service group o But there is a right not to have the govt. favor some viewpts over others o So you should provide funding for relig social service groups just as you wd for secular social service groups (which might, after all, have an equal interest in promoting their ideologies, indoctrinating recipients) So: Can Const. give money to social service groups but exclude relig ones? o Min.: LOCKE seems to say: No. But: Does the Const require that faith-based org.s, if included, be allowed to discrim in their employment? o Min.: Much harder Q. SMITH says: generally applicable rules dont req relig exemption/accomodation.

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On the other hand, LEMON v. KURTZMAN if we come up with non-discrim method that would allow accomodation Me: What if you allowed states/fed govt $ to be used by religious social service org.s to give social services w/ explicit religious content b/c this might be part of effectiveness but required these funds to be tied to some kind of measure of efficacy to ensure against govt just subsidizing religion, make sure its giving these funds only b/c this is a way to make social programs more effective o problem: dsnt really sound like a Const. standard just a good policy decision for someone trying to have a good model of role of relig and social services in Amer. govt. Min: Possible procedural fixes, e.g.: o separation of powers o federalism played a role in LOCKE v. DAVEY when cases come up challenging state Const.s: there may be a Supr Ct majority that will say: leave it to the states Will this produce a country with a checkerboard in their attitudes twd these policies? Cd. But when relig issues become very intense, it may be the best thing for Const to back off to pursue purposes of relig clause to avoid making religion a source of violent conflict in political life and perhaps even to allow flourishing of relig

25 Nov. 2008 Compelled speech, association, and avowals: brings together free speech and free exercise of religion (Note in CB, 441-447) Wisconsin v. Yoder: compelled education -If the Amish had challenged elementary school, would likely have come out different, so opposing all compulsory education would have been unwise -What is wrong with compelled speech? E.g. we require candidates to say I approved this message at end of political campaigns; compulsory education, disclosure on food products of ingredients -Fundamental purposes of speech: self-governance and checking value, discovering the truth through marketplace of ideas, advancing self-expression, promoting tolerance or self-restraint What are the counterparts for religion clauses? (me: for free exercise, above all, autonomy; perhaps also protecting a counterweight against govti.e., religion and thus aiding self-govt; could be connected to a kind of marketplace of religious ideas?; for establishment, self-government, autonomy, marketplace of ideas, all) -In any case, ways compelled speech undermines purposes of first amendment: 1. Oath might be a specific violation of religious beliefs, if your beliefs say that an oath is a call to God or Gods call to you (problematic with the pledge of allegiance) Distinguishable from a disclosure law where not requiring someone to say anything antithetical to their beliefs 2. Search for truth and marketplace of ideas: may not be hindered in requirements to disclose and not lie, but otherwise might skew the marketplace because of compelled speech pushed onto the market that would throw off the search for truth 3. Views on compelled speech are colored by archetype you think of for compelled speech (subpoenaing Enron to disclose accounting practicesgood v. torturing someone into giving informationbad) 4. Could forced speech ever fix problems in marketplace of ideas? Sugary cereals surely dont want to disclose how bad their products are, but are forced to disclose not truth about health, but just what is actually in the box Pushes on truthfulness idea: truth has a different status than untrue or misleading coerced speech 5. People have limited attention spans, so forcing speech of lots of information would take away from the attention left for the chosen speech 6. Differences between political or religious speech and commercial speech: much more comfortable compelling disclosure in circumstances of advertising or by businesses in general rather than by the individual 7. On religion side, none of the reasons for the two clauses get at why compelled speech might be problematic Consider condition on faith-based initiative where benefit is conditioned on being in room or even participating in prayer -Humans have capacity to pretend, so would it really be compelled speech? -Might have appearance of establishment if seems to endorse one religion or might force something that interferes with exercise of religion (e.g. Muslim student wearing a revealing costume in school play, even though acting) 8. Speech feels entirely different from religion, since compelling commercial speech does not have the level of same discomfort as forcing religion

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9. Spicer v. Randall: government cannot condition the receipt of a benefit of an individual on them waiving a constitutional right (no giving welfare in return for going and praying) Here, rejected CA law that required individual to sign something declaring that they did not want to overthrow the government in order to receive veterans benefits Even if not compelled, certainly coerced, and cant be coerced into giving up rights me: unconstitutional conditions 10. What about compelled association? Compelled participation in commercial area? -West Virginia v. Barnette was deciding in 1943, 3 years after Gobitis came out the other way (which upheld the requirement of a flag salute challenged by a Jehovas Witness because saluting flag violated Biblical command against worshiping images) Barnette reversed that case and struck down an identical case -What happened in between the two cases? Gobitis was criticized immediately, but the fairly quick overruling has to be understood by result of two new justices, Jackson and Rutledge -But Black and Murphy also had to switch sides, still attributed in part by those two new justices persuading the others to change their mind And perhaps as WWII proceeding, the reason for it became a protection of beliefs that we hold dear, including difference between democracy and fascism, so we become more conscious of upholding democratic values at home (flag salute feels like Hitler salute) Dissent by Frankfurter in Barnette is tortured: he is an immigrant minority, and so US to him is place of salvation, so his opinion is filled with love of the country and fear of his own feelings of libertarianism (opinion this tortured suggests that this is a bad position) -May also be a federalism issue, since federal government is striking down state-passed mandatory salute policies -Settled view now is not that state cannot mandate pledge, but rather than they have to create exemption Like Smith, issue is giving exemption to generally applicable law (and exemption given by state here, whereas in Smith state wouldnt give exemption, and Scalia said fed ct wdnt compel it to do so) -When Barnette first came down, thought of as oaths, since government was making you put your entire self on the line As opposed to Wooley v. Mayndard, where Jehovas Witnesses who covered Live Free or Die on license plate -Law struck down: government cannot compel individuals to be couriers for ideological messages or mobile billboards -Can state require people to be accountable and not speak anonymously? State law required person to identify who was producing campaign literature -Problems: potentially chills views that are not in the mainstream(social ostracism of a minority view, which we have not worried about in the past, instead focusing on chill caused by government actors) Holding in that case: struck down law, recognizing some right to anonymity -Can website require you to register your real name and real address? If no: Problems of hate speech online because of the very freedom of being anonymous (anonymity can lead to abandonment of sense of manners and telling the truth) -Pruneyard: students had fliers about Zionism and CA constitution was interpreted by CA SC as protecting rights of those speakers over objection of owner Rejected owners property right -Tornillo: SCOTUS rejected regulation that compelled newspaper to give right of reply -PGE (CA case): forced speech interfered with PGEs rights, so struck down requirement -Problem from class: Struck down law that required access to condominium as violating of the 1 st -Rumsfeld v. FAIR: Soloman Amendment required schools to open to military recruiters or lose all the federal funding We challenged this because we didnt want to be forced to accept sexual orientation discrimination (every employer except military has to sign statement of non-discrimination statement before giving them access to rooms to do interviews) -We lost. Badly. Court upholds forcing military recruiters on campus to do interviews. So schools can be forced to associate with groups that do not share their views This is a conditions case: and we didnt take any federal dollars, but would have lost funding for the entire university -Union Dues: alright for state law to require payment of union dues, even by non-union members because otherwise they are freeriders benefiting from collective bargaining, however those compelled dues and therefore compelled association of the union cannot be allowed where the union is pushing ideological views rather than just economical ones -Roberts v. Jaycees: forced inclusion of women is okay despite free association rights of jaycees (group formed for men) compelling state interest in countering discrimination outweighs And might be different if dealing with more intimate club where forced association would be more problematic -Boy Scouts v. Dale: just like Jaycees case, but goes the other way, that Boy Scouts right to associate allows them to exclude gays

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Difference: Boy Scouts have a message about being morally straight which the Boy Scouts argued was anti-gay message, although there is nothing in literature that says they are against homosexuality other than morally straight which was not a reference to sexuality when coined Nevertheless, group can define its own message and if they say message is anti-gay, cant force them to keep in their ranks in high position, an outwardly gay man, cant force them to -Can we reconcile these two: If group has message specifically against a group, cant make them admit members of that group? Gender is just a trait, versus the gay man being outspoken, etc. and so court emphasized it was a free speech case, as well, since Dale was interfering with message of the Boy Scouts and Jaycees never said that the message they wanted to communication was antifemale. Or, just treating gender and sexual orientation differently -Board of Regents: student object to student activity fee used to support student organizations and didnt want their money going to messages with which they disagree Challenge rejected because it is the Universitys mission to promote open dialogue Here, 600 organizations supported, so would have been different if entire fee would go to one kind of speech that you dont agree with -Brown v. Board itself pushed against free association -Commercial speech cases are completely incoherent: -Guidelines for advertising -Trade associations assess all their members a fee and then promote a generic product (eat mushrooms or drink milk) -Glickman: upheld forcing them to pay on theory that it was economic, not speech But, later assessed fees in mushroom case SCOTUS sided with mushroom producer and said that forced fees to advertise for mushrooms is a compelled speech and is not acceptable -Johanns: Beef case, where court says that it is government speech and therefore it is fine -Recognition of commercial speech has created a mess for the court not just in commercial speech, but also where it connects with compelled speech Reasons that we worry about compelled speech have mostly to do with individual conscience, so it does not map on to commercial speech well 1 Dec. SPEECH, RELIGION and EQUALITY continued and SECULARISM v. PLURALISM YODER: a couple comments (bridge to todays discussion, esp. Dougls partial dissent, where he argues that the children in that case shd be consulted about whether they wanted to be exempt from that schooling req children shd be heard Min: underscores that relig liberty is a personal right; majority: carries w/ it the right to educate your children in yr religious ways Min: obviously the backdrop of all the school cases: whose liberty is involved to underscore the complexity: implicit in these debates the 3rd actor the state always no way to avoid the states involvement. And these are the options: 1. state can recog and enforce the parents right 2. state can recog and enforce a childs right 3. or state can become the parent for the child and make a decision for the child NO OTHER OPTION so: no position of neutrality here: to leave it to the parents is to refuse the other two options Majority rejects both Dougls argument (lets ask the kids), and the position that Wis. had taken: of replacing the parents and choosing for all kids compulsory schooling What is the import of this for secularism as an option? One defense of Wiscs compulsory school law: cd create common culture for Wisc. By allowing exemption, Supr Ct is saying: there are other things more important than that common culture. Also: YODER: Dougls partial dissent also critiques majority emphasis on law and order (Burgers opinion holding up Amish as ideal, agrarian, self-reliant, never dependent on state, never need welfare, good values, wholesome, law-abiding, etc.) Dougl says: this is irrelevant to the decision. Chastizes maj for engaging in smthg like an assessment of the religion involved. Maj responds to other element of dissent, not this part. Min: Distinction between public and private is a line drawn from within a particular tradition liberal Protestantism of last 200 years. The idea that there is a public space thats secular not endowed w/ relig signif. (me: but what about France? not Protestant there. Perhaps has more to do w/ liberal Enlightenment science etc.)

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Finally: shd relig belief be treated identically to other beliefs, or does it have a preferential status? Dougl cites SEEGER, a stat interp case, but like todays discussions, well see there are some statutes where ct is interp.ing Const values, and these cases end up having a place in canon of Const law. SEEGER was Vietn era challenge to Sel Serv Act, allowing exemptions for conscientous objectors defined by ref to relig belief. Only a relig belief a sincere and meaningful belief only that cd supply a requisite basis for conscientious objection. Challenge and Supr Ct agreed w/ challenge: exemtpion cant be confined to a relig belief. But then the problem: can anyone walk through this exemption? Ct comes up w/ locution: a consc obj status to create an exemption has to have room for any belief that occupies in the life of its possessor a place parallel to that of the God of those admittedly qualifying for the exemption Or: Min: perhaps court wants to say: pol views cd change, relig beliefs arent yr choice. (Free will.) And lots of people see this way: its not my choice. Its not choice whether to salute the flag. Its not my choice whether kid can get blood transfusion. Im obliged to do this. Depends on the religion? Perhaps: this is about core 1st Am value: protecting individuals from govt coercion (me: = autonomy) (Cd be seen on cost-benefit model: govt. is trying to draw a line of commitment beyond which its just not worth the govt trying to coerce you b/c commitment is too strong better just to avoid the strife of trying to do so. Like the Amish who were going to leave the country if they lost in ct. BUT: some people have pol views that have the same quality. And some people have relig views that dont.) (Does SEEGER survive YODER? yes, its been reendorsed subsequently.) (Note: IRS has had this problem of defining religion re: tax exemption used to use heirarchical authority w/ belief in God as template) This is best rationale for Empl Div v. Smith: if its a generally applicable law, and it burdens yr religion, there still shdnt be an exemption b/c there will be too many claims only if theres something that singles out a group: you cant kill animals as part of a ceremony, etc. only then will there be strict scrutiny and this is the trend of the court (we can explain it this way) [Min: grew up thinking there was no difference between religion and politics: rabbi hiring buses and going South to register voters, etc. Others see categorical difference] Space of schools: WIDMAR v. VINCENT (S.560 and throughout book, already outlined above): there has to be equal access for relig grps on campus, comparable to accommodation for non-relig groups advanced by Charles Fried Fried = there shd be no meaning of free exercise clause thats diff than free speech clause free ex is just an example of free sp relig clubs wanting to do smthg on campus shd have same rt as non-relig clubs completely rejected by Whites dissent in WIDMAR (saying: then why did the drafters write the relig clauses? me: the rule against surplusage. Maj. wd treat relig club as purely speech, purely expressive. White: worship is diff than speech, cant be collapsed into it.) (to which Maj responds: you cant treat relig diff than speech, b/c we cant draw the line. And worship is like speech: words coming out of mouth, etc. And weve already given protection to proselytizing Krishnas how can we disting people who are already adherents from people recruiting?) Note: in WIDMAR, pub. univ. had already approved more than a 100 grps an example of a nontrad public forum. (v. trad public forum, v. e.g. govt. office) once its opened this for some groups, cant have content-based restrictions for other groups but note: univ. avoided granting permission to groups b/c worried about estab. clause Min: Q: Has majority accepted Frieds view? If so, thats really a dramatic change. Q2: Is this a good idea? So this belongs to the series of cases lowering the wall btw church and state by using essentially a viewpt discrim/content discrim theory Stevens in conc.: there can still be reasonable t/p/m restrictions NOTE this: b/c people are freaking out in practice. But if there are competing groups wanting to use the same space at same time, govt actor neednt have first-come first-serve policy. Neednt have to be the most neutral policy. Why? Min: maybe to avoid having first group to arrive sign up for all the spaces. Stevens: wd require the univ. to abandon its own character. It makes choices all the time to advance its own values and its values might elevate a lecture on Renaissance over cartoon festival. Min: these are content distinctions. but thats okay

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(Note: v. Fried?: some relig things arent really speech/expressive theyre just private relig activity, obligation e.g., having beard isnt to show anyone anything, its just yr duty) me: note: incomplete, perhaps vacuous McConnell argument: S.565: White argues in dissent to WIDMAR that religious worship is a special category, not fully protected by free speech and equality protections of 1st and 14th Amendments: so there could be cases where an activity might be protected by the free exercise clause but not by the free speech clause v. in general these act identically. So instead of asking whether govts treatment of worship was neutral (the free speech question) wed ask whether it was an inappropriate burden (the free exercise question). McConnell: Could result in more protection for religious worship in some cases, e.g. where govt imposes a burden in the name of neutrality (as in SHERBERT unemployment for 7th Day Adv. but this already came out protecting relig worship), could result for less protection for religious worship in other cases, e.g. where govt discriminates against relig. expression but dsnt create a burden? (All of this is from McConnells notes, not fleshed out there, unclear whether he really has a point here.) Note: one of the stakes in todays and toms cases: will there be content in free ex clause doing work not in free sp clause? Sahin case in Turkey (S.567): not allowed to wear headscarf at university, said her religious freedom had been infringed. Min. uses as example of importance of context: Euro. Ct. of HR says its okay for Turkey to ban wearing of headscarf in public universities given Turkeys context, and its better to decide about that and as a result, Erdogan sending two daughters to US univ. where they can cover S.569 summarizes laws re: veils in variety of countries US very permissive, France not 2 Dec. SPEECH AS RELIGION, RELIGION AS SPEECH and the Public Square HEFFRON (1981) (S.571): Upholding states requirement that anyone soliciting donations at state fair do so from within booth, where Krishnas say this violates their free exercise right, since their religion demands that they walk around and solicit donations, spread the word, etc. upholding this restriction as time/place/manner restriction satisfying substantial state interest Included in reading particularly to suggest, like BUSCH, that a time/place/manner restriction might actually be a form of viewpoint discrimination? Toward the creation of a secular space in public places like Turkey and we can then worry about establishment, or: is there some American alternative? Maybe: allowing private spaces within the public sphere? big controversy now re: redesign of bathrooms in schools w/ majority Muslim population for footwashing janitors support this: no more students washing feet in sinks! (maybe this accomodation could be viewed as the government enabling people to be their private selves in this public space) (good student objection: ct.s shdnt require state to make this accommodation, b/c a state cd reasonably conclude: one thing students should be learning is that the world isnt set up to cater to their personal religious needs; the govt has no obligation to cater to religious observances of anyone) Rem.: theories supporting freedom of speech: self-governance truth in marketplace of ideas autonomy/self-definition promoting tolerance But note that there may also be some special theories supporting free exercise : association speaking not to the world but to your self speaking to some being outside human experience Note: public/private: e.g. State law can extend speech regulations to private univ.s that fed govt cdnt e.g. CA speech law, upheld, covers private U.s No law does in MA, but Harv. willingly embraces 1st Amendment For a long time, conserv.s/Repub.s have been pushing for more recognition of relig in public sphere in last two elections, Dem.s as well, thats new

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Big issue now, from todays reading: People shdnt be forced to abandon their religious reasons when they enter the public square. Must everything be translated into speech that is (Rawls) publicly reasonable? i.e., secular. (Obama and second reading by Sandel: yes, if used in politics. First reading by Hollinger: no need just present religious reasons as religious reasons and let me shoot them down) The two readings took opposite positions on this issue An odd quality here: Hollinger (relig. arg.s shd be in public life, but only if made clear that it is religious, and they shd then be subject to critique; and wouldnt it be great if people actually got their relig. views critiqued and learned more about their religion, v. how little people actually know) tips over into Sandel Is it wise, good idea for people to check their religion at the door? Should a judge not consider his religious beliefs? A legislator? me: against Hollinger: yeah, it wd be nice if relig discourse cd be elevated but this is difficult, complicated, unproven goal versus simply making it a part of American civic republicanism to largely limit the role of relig beliefs as reasons in public discourse, esp. those of officials Finally: BUSCH NOTES my panel Facts: A very fact-sensitive case, so slightly long: The Marple Newtown School District in Pennsylvania, as part of its curriculum for kindergarteners, has a program called All About Me. Its a variation on show and tell, where children are asked to share information about themselves, both in order to learn about others and to identify sources of conflict with others and ways that those conflicts can be resolved (52). (The handout describing the program encouraged students to make a poster representing what they care about, to bring in a special toy or stuffed animal, and also invited parents to participate by coming in to read a story or share a snack.) Wesley Busch, one of the students in a kindergarten class taught by Jaime Reilly, made a poster with pictures of his family and friends, as well as a church. None of this caused a problem. His mother, Donna Busch, got the impression that students were being encouraged to bring in a favorite book and have their parents read from it, even though the handout desribing the program makes no mention of this (114). She says she asked Wesley what his favorite book was, and he said the Bible, though the testimony of his babysitter suggests that this was not his favorite book. Donna Busch then chose a few Psalms from the Bible, which she claimed to have selected because they do not mention Jesus, but which an expert on evangelical Christianity claimed were commonly used for evangelical proselytizing. Without prior warning (though she claims she met the teacher a week beforehand, without support from any record or the teachers memory, 115), Donna Busch went to Wesleys classroom and said she was going to read the Psalms to the children. The teacher asked the Principal for advice, and the Principal said that the school could not allow Donna to read the Bible to the children, because it would violate the law separating church and state. (By contrast, in the past, another parent had been permitted to read from a childrens book about Hannukah (8 n.10) as part of the general social studies curriculum.) Donna Busch then filed suit, arguing that the school had violated her free speech and equal protection rights and that the school had also violated the establishment clause. The District Court (Judge Surrick) granted summary judgment to the school district based on what seemed to me an unnecessarily idiosyncratic argument that the schools action had constituted viewpoint discrimination, but was permissible because of the school districts interest in avoiding an establishment clause violation (me: couldnt judge come up with a better interest than this?) was sufficiently compelling. (Busch relies primarily on Rosenberger: public univ. cannot exclude religious publication from subsidies for student publications.) (The school district, and the District Judge, relies primarily on Hazelwood [upheld high school principles exclusion of stories about pregnancy and divorce from a school newspaper, based on something like endorsement test: people might reasonably have thought the speech bore the imprimatur of the school] and Walz v. Egg Harbor [not WALZ v. TAX COMM.] latter actually a show-and-tell case! from 3rd Cir., 133, 135.) Arguments: For Busch: Her main argument on appeal is that the schools action violates viewpoint neutrality (234), and that this is forbidden even in the kindergarten context. (She also argues that it was not a devotional exercise, which makes it harder to dismiss the regulation as content-based. She wants the distinction between devotional expression and educational activity to be the starting point, so that once she has established that it was not devotional, she can then criticize the regulation as impermissible because viewpoint-based.) The strongest arguments I can add to this would be mostly rhetorical: 1) what are we so afraid of? its as though were equating religious expression with obscenity, when we say that these two things apparently categorically cant be brought into a public school classroom This is especially sad, because part of the point of All About Me was supposed to be about coming to appreciate differences. 2) Isnt this crazy? All these lawsuits, all these hundreds of pages of argument, over 5 lines of poetry that the students probably wouldnt have understood, much less remembered, just because those 5 lines appear in a religious book. We need to stop this separationist overreaction and refuse to allow schools to discriminate against religious views. Were not in France

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Or: she can try to distract by saying: how hard would it have been to turn this into a teachable moment? (me: ignoring that what she is really saying is: the framers of the Const. require that every school in the country turn this into a teaching moment whenever a parent arrives and proposes reading from the Bible to a class of kindergarteners.) Emotionally: She can say: the person who needs protection here is not Donna Busch, it is Wesley Busch. He expected his mother to read from his favorite book. Now that he has seen she did not, what is he supposed to think? What is he supposed to conclude from the fact that the school, the authority for him, thinks his religious beliefs are so wrong, so dangerous, it would be too great a risk to expose the other children to them? This is a case of the government adopting a viewpoint on Wesleys book, rather than remaining neutral and allowing it to be read like any other book. Also: Could argue that government created a limited public forum by inviting parents to classonce it did this, it could not engage in content-based discrimination, and certainly not in viewpoint discrimination (BUT: me: the law doesnt seem to support this, and in any case a condition of the limited nature of the forum may have been that it not be used for things like this.) Old: (Its as though religion is obscenity, as though there are only two things the government may not allow a teacher to bring into a kindergarten classroom: dirty pictures and psalms) This is a violation of her (and her sons) free exercise rights? Like saying: Christians cant participate in this show-and-tell (analogy: McDaniel v. Paty (1978), invalidating state law preventing ministers from participating in Const. convention) Precedent: Rosenberger: state is doing viewpoint discrim. against relig. here, just as when it tried to refuse to fund a student pub simply b/c it was religious in Rosenberger For school: Best argument: This is a public kindergarten classroom. The states ability to regulate speech in order to avoid potentially controversial, disruptive, or offensive speech must be at its zenith here. Almost none of the arguments for free speech apply here: theres hardly a marketplace of ideas when the community believes in the toothfairy and doesnt quite know how to count, and its unclear to what extent 5-6 year-olds are really autonomous in the usual sense we speak of that in 1st Amendment contexts. Do they even have free will, beyond wanting to eat cookies? Theyre like half-animals. The rhetoric of TINKER (70)not checking rights at the schoolhouse doorseems curiously inappropriate: rights? These kids are told what to do from the moment they wake to the moment they fall asleep. As for free exercise, thats simply not the question here: Wesleys exercise was not regulated. (Tho: note: mothers exercise or proselytizing was regulated in the HEFFRON sense but if it was okay at a fairground, a fortiori it wd be overwhelmingly okay in a public kindergarten class.) (Schools appeal even suggests theres something like a per se rule against reading religious texts aloud in a public school classroom, 141. See also C.H. v. Oliv., 143.) Second best argument: This is so fact-sensitive: was she praying? Reading a prayer educationally? etc. its categorically unsuited for judicial determination. As a matter of institutional competence, we should leave these decisions to schools (137, 170) in all but the most egregious cases, as so many of the past school cases have observed, and as the NASB emphasizes. We simply cant have courts second-guessing every determination made in complex, short-notice fact situations like these. Third best argument: Why on earth should a court intervene here? Who would the court be protecting, standing up for, by doing this? Donna Busch, protecting her right to come into a public kindergarten classroom and read the prayers to a class of strangers children, without their parents consent? Wesley Busch, a five or six year-old who almost certainly has no understanding of what took place outside of what his mother tells him, a student who is accustomed to accepting orders to do or not to do something dozens of times a day for reasons he doesnt understand? Protecting his right to have his mother read prayers from his favorite book to his classmates in a public school classroom? Noif anyone, the people the court should be protecting here are the other children and their parents, their ability to decide for themselves how to raise their families, as in YODER. Anyway, the court should not be intervening at all, because this kind of fact-sensitive situation lies precisely at the joints mentioned in LOCKE v. DAVEYthe school district should be free to follow its own discretion in these grey areas, guided by the democratic processes that put it in place, rather than risking constant lawsuits from a court intent on defining for itself the precise line between free exercise and establishment in every caseor worse, simply blocking out parental participation altogether, as the NSBA warns (176). The schoolboard was appointed through democratic processes, and it has decided, on behalf of the community that appointed it, to err on the side of not allowing parents to read prayers to kindergarteners. It should be free to make this decision without the risk of legal liability. Other arguments: Reading Bible verses wouldve been coercion (Lee v. Weisman), and/or wouldve reasonably been perceived as endorsement (OConnors test, and Allegheny)thus establishment violation (AUSCS, 199). Also keep in mind: even if this was viewpoint discrimination, might still be permissible (not on Dist. Ct.s strange avoiding Establ. Cl. viol. argument) but based on compelling interests in communicating a message of religious neutrality to students and parents, and in respecting the rights of parents to control childrens religious upbringing (AUSCS, 224). The question of whether the speech was devotional or a piece of cultural education (e.g. 235) is ultimately a red herring. Even if DB only intended cultural education, and even if a reasonable kindergartener would only have seen it that way, the school district

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should still have the power not to permit her to read from the Bible, or any parent to read from any religious text, without fearing that it will be legally liable as a result. The school district should be free to say: no, this is too close to controversy, too potentially disruptive, and no parent has had a chance to sign off on it. However, if one confronts this issue, the materials make it clear that the speech was intended to be devotional, or would have been perceived as a prayer by a reasonable observer however one defines it: reasonable member of community, reasonable kindergartner. As a result, the Dist. Ct. was wrong to conclude that the school engaged in viewpoint discrimination. It would be content-based discrimination instead: parents were supposed to present information, not engage in devotional acts. As the AUSCS notes, the teacher would have rejected any expressive activity having devotional content, regardless of the viewpoint. (Note that it doesnt make sense to argue that this was merely a time/place/manner restriction, because it clearly was not content-neutral. Also note a tradition, mentioned somewhere, of treating content-based restrictions on religious speech with the same strict scrutiny that viewpoint-based restrictions on non-religious speech receive.) Doctrine: FREE EXERCISE: Old: Employment Div. v. Smith (1990) (dicta: absolute protection from govt regulation of religious belief, v. conduct) (case itself affirmed regulation of peyote against Nat Amer Ch challenge: conduct) (cd. be seen as radical departure from YODER, which held that application of pub school attendance law to Amish parents violated Free Ex under a strict scrutiny standard triggered by the regulation of relig. conduct, whether purposeful or not, whether neutral or not; by contrast, SMITH says: if law regulates relig. conduct but is neutral/generally applicable and unintentional, Free Ex. Cl. isnt even triggered; its only triggered if the law is specifically directed at the suppression of a religious practice, like ritual slaughter; ct. distingd YODER by saying it was decided under hybrid doctrine) (SMITH also makes clear, however, that State may accommodate religious practices play at the joints from LOCKE->WALZ) (also extends to conduct that basically is a sign of belief: WV State Bd. of Educ. v. Barnette (1943) (invalidating statute requiring students to salute the flag and recite Pledge of Allegiance; suit filed by Jehovahs Witnesses; great line: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in)) Rosenberger v. Rector & Visitors of UVA (1995) (state university cant refuse to fund a student publication merely because that publication espouses a relig. viewpoint; +, re: establishment: funding the publication under neutral principles dsnt viol. Estab. Cl.) In general, content-based restrictions on relig. speech are subject to the same very strict scrutiny as restrictions on speech generally; and content-neutral restrictions subject to t/p/m standards ESTABLISHMENT: ON EXAM: keep these possibilities in mind as issues on the question relating to BUSCH Old: Separationist doctrine: Lemon v. Kurtzman (1971) (seperationist, not always followed, but reaffirmed in McCreary (2005) by majority of court): Govt. action 1) must have a secular purpose; 2) must have a primary effect that neither advances nor inhibits religion; 3) may not foster an excessive entanglement with religion. Coercion test? Lee v. Weisman (1992): coercion test (Kennedy): public high school cant invite religious cleric to recite nondenominational prayer because (given context) would coerce students into participating in a religious practice. (similarly: Sante Fe Independent School Dist. v. Doe (2000), striking down school-sponsored prayer at high school football games) Public forum doctrine? Government has created a limited use public forum by opening up the room for show-and-tell, cant now discriminate on the basis of content Viewpoint discrimination? This is viewpoint discrimination a secular poem wouldnt have been banned Parents ability to choose for child (see classnotes re: Amish case, YODER: court sided with parents and, despite Douglas, didnt ask children what they wanted), childs freedom to choose for self Individual choice acting as buffer? (as in the vouchers usable at faith-based treatment programs inter alia, ZELMAN) Endorsement test? (OConnor) (And if youre Thomas and think state can favor religion over nonreligion, so long as it doesnt prefer one religion to another, this would be okay. As in Westside Community Bd. of Educ. v. Mergens (1990), no violation of Lemon test where school allows Christian Club to meet on a public high school grounds under same rules applied to nonreligious clubs.) (sidenote: McCreary = the 10 Comm.s that were struck down; v. Van Orden = the 10 Comm.s that were upheld, because had been there so long and no one complained)

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