A. Freedom of Speech ............................................................................................................................1 1.

History: The 1stA was only intended to protect against prior restraints (reqing approval for publication) and seditious libel (bringing the govt into disrepute).........................................................1 2. Speech Lawyering.................................................................................................................................1 3. General policy for protecting speech:...................................................................................................2 4. Speech (Test).....................................................................................................................................2 5. Unprotected Speech..............................................................................................................................2 6. Reluctance to Create New Unprotected Categories.............................................................................9 7. Overbreadth and Vagueness...............................................................................................................10 8. Symbolic Expression, Content Neutral Reg, and Sexually Explicit Speech ....................................10 9. Commercial Speech ...........................................................................................................................12 10. Campaign Finance............................................................................................................................14 11. Prior Restraints..................................................................................................................................15 12. Concept of a Public Forum...............................................................................................................16 13. Hate Speech.......................................................................................................................................17 14. Govt Support of Speech..................................................................................................................18 15. Reg of the Media...............................................................................................................................20 **SUMMARY OF FREEDOM OF SPEECH:.....................................................................................21 B. Freedom of Religion .......................................................................................................................22 1. Establishment Clause : religious faith must be arrived at voluntarily; Cong may not do anything to promote any particular religion or coerce people into a religious belief...............................................22 2. Free Exercise Clause : the govt cannot interfere w/ a persons right to practice a religion; Cong cannot single out and prohibit religiously motivated conduct just bc it is religious.............................24 C. Freedom of Association ...................................................................................................................26 1. Right not to speak...............................................................................................................................26 2. Right to associate: while not expressly mentioned in C, SC has reaffirmed the rights existence on the basis that association is instrumental to freedom of speech. However, it is NOT absolute. Analysis centers around germaneness to legitimate governmental purpose.................................................26 3. Right not to be forced to associate w/ speech....................................................................................26 4. Right not to associate..........................................................................................................................27 5. Association & Religion: Religiously friendly justices get the protections that they want under the free speech clause get religious speech protected, get equal acess to public forums, get freedom not to associate..............................................................................................................................................27
A. Freedom of Speech 1. History: The 1stA was only intended to protect against prior restraints (reqing approval for publication) and seditious libel (bringing the govt into disrepute). 2. Speech Lawyering a) General Rule: The two level theory of the 1stA (everything that is protected gets absolute protection) is unworkable, so in addition to protected and unprotected categories, there are special rules for special contexts. (1) Content-based reg yields strict scrutiny. (2) Adult, commercial, and libelous speech receive lesser protection. (3) There are special rules for special places (public forum). (4) There are different rules for different types of media. (5) The govt is subjected to lesser scrutiny when it is speaking or subsidizing speech.

b) Approach: When something does not fit into one of the First-Amendment categories, analogize it to something else that does, e.g., child pornography is more like crying fire in a crowded theatre than it is like adult speech. c) Remember that the doctrine has been made and remade several times. To function as a Cal lawyer, know the history of the tests. Even tests laid down that seem determinate have wiggle room. Also, Brandenburg still good law, but people question it after 9/11. 3. General policy for protecting speech: a) Need free speech to operate a political democracy b) the best way to find truth is through an open, robust discourse c) the marketplace is the best test of ideas d) John Stuart Mill: Tyranny of public opinion will stop people from saying unpopular things unpopular ideas need the MOST Cal protection bc of social pressure against it 4. Speech (Test) a) Content-based political speech (Brandenburg) b) Defamation (NYT, Gertz) c) Commercial Speech (Central Hudson) d) Obscenity (Miller) e) Place Matters: (Renton (secondary effects), Colorado, (health centers), Stanley (home), Burson (polling center), The Workplace Sexual Harassment) f) Role of govt as regulator or speaker matters g) What broadcast medium is being used? h) Speech in Schools Test i) Expressive conduct (OBrien) (1) Adult speech (Paps) j) Campaign Finance (Citizens United) 5. Unprotected Speech a) Speech Not Protected at All (1) speech related to perjury, blackmail, fraud, threats, pursued as part of criminal conduct (2) obscenity no social value (Miller) (3) fighting words (Chaplinsky) (4) private speech does not make it onto the 1stA map (5) previously included libel and slander b) Advocacy of Illegal Action (1) Approaches and Theories (a) Harm-Based/Consequentialist (Schenck v. US, Debs v. US) (b) Political Democracy (Masses Publishing v. Patten) (c) Dissent (d) Marketplace of Ideas (Holmes dissent in Abrams v. US) (e) Autonomy (Gitlow) (f) Safety Valve (Whitney) (2) Modern Rule (Brandenburg): [T]he Cal guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is (1) directed to inciting or producing IMMINENT lawless action and (2) is LIKELY to incite or produce such action. As we said in Noto, the mere abstract teaching [of] the moral propriety or even moral necessity for a resort to force and violence is NOT the same as preparing a group for violent action and steeling it to such action. (blurring the C&PD test by not even mentioning it realizing that courts previously overestimated danger, so the court bound itself prospectively). (3) Timeline: Courts tended to find C&PD where, in retrospect, it clearly didn't exist. (a) Emerging Principles (formed in context of anti-war speech)

Schenck (1919) (upholding conviction under 1917 Espionage Act when s printed and circulated among men accepted for military service a document characterizing conscription as despotism and advising them not to submit): The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a C&PD that they will bring about the substantive evils that Cong has a right to prevent. Restrictions on speech during wartime entitled to more deference than restrictions during peace time. > RF: harm-based consequentialism > rejection of literalism: Cong shall make NO LAW cannot be absolute, for the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. Masses v. Patten (L. Hand) (NY 1917)(granting an injunction preventing the Postmaster from refusing to allow the to mail cartoons/article/poem praising conscientious objectors and two persons imprisoned for conspiracy to resist the draft the s speech was protected bc he stopped short of urging upon others that it was their duty or interest to resist law) Rationale: Hand assumes that this (political) type of speech is normally protected bc it is necessary for the growth of the political democracypeople need the right to criticize the govt. Therefore, speech advocating ideas is permitted, but speech advocating illegal acts is not. > Ad hoc judicial balancing will lead to an over-estimation of danger. > counter: where some dangerous language is still prohibited by Hands test anyway, dangerous is still defined by the political majority. Debs (1919) (upholding conviction for violating the Espionage Act by giving an anti-war speech at a state convention of Socialist Party of OH): The jury could not find the guilty for advocacy of any of his opinions unless (1) the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service [and] (2) unless the had the specific intent to do so in his mind. In this case (and in Shenck, Holmes wants to draw a line bw words alone and words as acts (though here there was no advocacy of specific action). When words become the equivalent of acts, they no longer have 1st amendment protection. Does not consider the benefits of speechmakes political speech extremely vulnerable to C&PD test. Abrams (1919) (upholding conviction for violating Espionage Act by distributing thousands of leaflets protesting American invasion of Siberia). Overly-broad application of the CP&D test. > Holmes dissented emphasized that intent was not to disrupt war, nor could he have because Abrams was a puny anonymity. Argues that the free trade or marketplace of ideas is the best way for truth to be revealed and democracy to be fostered. (Should there be some limitations?? What about false advertising or racially derogatory ideas?) (b) State Sedition Laws (laws that prohibited speech advocating violent overthrow of govt) Gitlow (1925) (upholding conviction of members of the socialist and communist parties for violating state statute prohibiting advocacy or advising of overturning organized govt by force or violence). The C&PD doctrine need not be satisfied where the legislature had pre-determined that the activity in question presented a C&PD. Court adopts a hybrid Hand and Holmes approach: speech can only be prohibited if (1) it advocated illegal acts, not ideas AND (2) it posed a C&PD. Brandeis dissents and introduces the theory of personal autonomyarguing that the 1stA should protect liberty as an end and a means. People should be able to say and hear what they want (freedom of mind). This approach would still allow limits on crying, fire in the theater, bc that does not give the listener time for deliberation or contrary speech. Whitney (1927) (overruled) (upholding conviction of who attended a Communist Labor Party meeting.) Mere presence at a meeting of an organization that advocates, teaches, or aids and abets criminal syndicalism could constitute a crimecould be seen as equivalent of a criminal conspiracy. The 1stA does not protect present advocacy of future unlawful action. Doctrine at this point is that advocacy of ideas is protected and advocacy of illegal ideas is protected unless speech poses a C&PD. > Brandies (concurring) introduces the safety valve theorythat law stifling speech breeds more dissension. Our society is safer if hate groups are allowed to speak their minds rather than are forced underground. Also, the autonomy theorythat ppl have a right to freedom of mind (anti-paternalism).

- counter to autonomy theory: they prove too much. No such freedom is absolute in any organized society. Dennis (1951) (upholding conviction under the Smith Act for organizing a society to teach and advocate overthrow of the govt and that there exists duty to do so, despite the fact that there was no immediate danger of violence): Court applies but weakens the hybrid test: In each case courts must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. (LH-type formulation) > Jackson (concurring) criticizes the immence requirement: the test applied here means that the Govt can move only after imminent action is manifest, when it would, of course, be too late. He thinks this case shouldve been evaluated under conspiracy law. (c) Modern Test and Application Yates (1957) (overturning conviction of 14 Communist Party officials for conspiring to advocate and teach the duty and necessity of overthrowing the federal govt): The Smith Act only directed towards the advocacy and teaching of concrete action vs. abstract doctrine. The essential distinction is that those to whom the advocacy is addressed must be urged to do something now or in the future, rather than merely to believe in something. Brandenburg (1969) (overturning conviction of KKK leader and invalidating OH syndicalism statute bc it punishes mere advocacy). Created modern rule (see above). C&PD rule was problematic bc it was colored in times of anxiety (easier to find a danger), so should err on the side of overprotecting speech. Thus, court created an imminent/non-imminent distinction, focusing on the inciting language of the speaker and the probability of the harm. (incitement to imminent lawless action vs. mere advocacy) Limits on Brandenburg: Conspiracy/solicitation to commit a crime; Threats: Teaching techniques of terrorism; Holder Hess (1973) (applying Brandenburg in reversing a disorderly conduct conviction based upon an antiwar demonstrators statement to a police officer: Well take the fucking street later [At] best, [the] statement could be taken as counsel for present moderation; at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time. It could not be said that appellant was advocating, in the normal sense, any action and there was no evidence that his words were intended to produce, and likely to produce, imminent disorder.) Speech is not punishable on the grounds that it has the tendency to produce violencemust be imminent (but generally cant make threats/bribes/solicitation of crimes, its political speech that is protected). Indefinite future (later) not = to imminent. Holder v. Humanitarian Law Center (2010) (Court says that it is OK to prohibit giving instruction to terrorist groups on any subject, even otherwise lawful tasks). Court says that Brandenburg doesnt apply may be more results-drive because feels dangerous to allow speech. Buys Congress & Exec Branch assertion that since money is fungible, any form of aid can fund terrorist activity. Can also distinguish from Brandenburg bcs this isnt realy public political speech. Worth asking if Brandenburg reflect American commitment to freedom of expression or if it could change based on sociological facts (post 9/11 world) c) Defamation and Privacy (1) Defamation (a) Public Figures and Public Officials (i) NYT Rule: The 1stA prohibits recovery for defamation for statements concerning the private or public conduct of public figures or public officials absent a showing of actual malice knowledge of falsity or reckless disregard for truth. (a) This standard requires a high degree of awareness or probable falsity, Garrison v. Louisiana (1964), (b) but is satisfied by publishing while in fact entertaining[ing] serious doubts about the truth of the publication. St. Amant v. Thompson (1968).

(c) However, a deliberate alteration of the words uttered by a does NOT equate w/ knowledge of falsity [unless] the alteration results in a material change of meaning conveyed by the statement. Masson v. NYer Magazine (1991). (d) The malice must be proved w/ clear and convincing evidencecant just be negligent. Near v. MN (1931) (overturning a perpetual injunction prohibiting the s from publishing or circulating any publication whatsoever which is a malicious, scandalous or defamatory newspaper.). Public officials can get their redress through state libel laws. The doctrine of prior restraints forbids any scheme of law pursuant to which people can be enjoined from engaging in speech by a court unless the speech threatens public safety or is obscene. Rationale: dont want to chill or circumvent the 1st Amend inquiry. Beauharnais (1952) (upholding statute prohibiting exhibition in a public place of any publication portraying depravity, criminality, unchastity or lack of virtue in a group of citizens of any race, color, creed or religion that exposed such citizens to contempt or derision.) Certain well-defined and narrowly limited classes of speech are below Cal protection, including lewd or profane words, libelous words, or insulting or fighting words, which by their very utterance inflict injury and tend to incite an immediate breach of breach. These utterances are not essential to the marketplace of ideas and have little social value as compared to the social interest in order and morality. > This was the last SC case that expressly upheld the categorical prohibition of false or defamatory speech. NYTimes v. Sullivan (1964) (reversing a judgment against the NYT for running an ad stating that truckloads of police armed w/ shotguns and tear-gas ringed AL State College Campus, and that the Southern violators [have] bombed [Dr. Kings] home, assaulted his person [and] arrested him seven times, although the ad was false in several respects) SC held that the police commissioner must prove the NYT had acted w/ malice, even though NYT had printed false and defamatory statements. Reasoned that the 1stA must protect vehement, caustic and unpleasant attacks against govt officials, even if occasionally erroneousbc errors are inevitable in free debate. A rule compelling speakers to guarantee the truth of their assertions will lead to self-censorship and would chill speechthe 1stA needs breathing room. > This shows that Court is impelemnting rather than interpreting 1A values bcs under the traditional 2 tier 1A structure, libel is totally unprotected. SC brings this into the fold of protected speech because of counterweighing 1A values. Curtis Publishing v. Butts (1974) (held that NYT standard also applies to public figures (not just public officials) bc the distinction bw govtal and private sectors are increasingly blurred, and public figures play an important role in society and have access to media to counter criticism and influence policy.) (ii) Rationale (a) Protection of Robust Debate (b) Danger of Self-Censorship (c) Reciprocal Qualified Immunity for Public Officials (b) Private Individuals: The 1stA prohibits imposing liability w/out fault or the recovery of presumed or punitive damage w/out a showing of actual malice. Gertz. But, does not need to be as stringent as NYT. Dont need clear and convincing evidence. Rosenbloom (1971) (Plurality holds that NYT standard should apply to every case in which a newspaper says something false and defamatory if the report is dealing w/ something of public (vs. private) interest/concern, even if dealing w/ a private indidivual). I.e. printing false statements about individual bribing zoning board. Gertz (1974) (Held that Gertz is not a public figure even though he was active in the community, bc he was not famous enough none of the jurors had heard of him. W/ private individuals, state legislatures can adopt a less stringent standard than NYT. No need to show actual malice, just negligence by the , even if the speech is of public concern.) Court rejects the breakdown of public interest vs. private interest (Rosenbloom), instead focuses on the public figure vs. private figure. Court reasons that private individuals dont have access to the media to correct falsehoods and do not thrust themselves into the public limelight.

Dun & Bradstreet (1985): Where private figure and private concern, must show negligence to get compensatory damages and can get punitive damages without proving actual malice where issue is not of public concern, since public concern is the heart of 1A. Contrary to Gertz claim that Courts cant adequately determine public v. rivate concern. (c) Distinguishing Public Figures from Private Individuals (i) Limited Purpose Public Figures: Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should NOT be deemed a public personality for all aspects of life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individuals participation in the particular controversy giving rise to the defamation. Gertz (1974). One can also be a limitedpurpose public figure by injecting himself or being drawn into a particular public controversy. (ii) Voluntary Participation: Persons who have not assumed role of special prominence in the affairs of society are not public figures unless they have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. Time v. Firestone (1976). Time v. Firestone (1976) (holding that a divorce proceeding involving one of Americas wealthiest industrial families and containing testimony concerning the extramarital sexual activities of the parties did not involve a public controversy even though the marital difficulties of extremely wealthy individuals may be of interest to some portion of the reading public.). Divorce did not involve a public controversy. d) Emotional Distress & Private Facts Hustler v. Falwell (1968): Falwell sues bcs of ad that meets common law standard of IIED, but SC says that the speech is protected even though valueless. Court says outrageousness is too vague and subjective of a standard to determine. Also points to assumption of risk, rebuttal capacity, democracy value (history of political cartoons), democracy & distrust (dont want to punish press for airing politically unpopular ideas). Snyder v. Phelps (2011): Protects Church that demonstrates at a funeral for a soldier. Meets IIED criteria, but SC protects bcs dealing with matters of public concern and SC doesnt trust vague outrageousness standard to limit such speech. Court tries to limit holding to the facts & implies that speech could be Clly restritcted under new statute that prohibits any picketing within a certain distance of funerals that statute appears content neutral. Disclosure of Private Facts: Florida Star v. BJF: (1988): No libel action where paper publishes name of rape victim from improperly but lawfully obtained document. Relies on Daily Mail standard that says that State cant punish lawfully obtained truthful information of public significance without state interest of the highest order. Here the statute isnt narrowly-tailored enough to that interest. Also unclear why victims name is a matter of public concern, but court looks at it more about crime. e) Obscenity and Pornography (1) Modern Rules (a) General Rule (Miller): A state offense must be limited to works which, taken as a whole, (1) appeal to the prurient interest in sex, (2) which portray sexual conduct in a patently offensive way, AND (3) do NOT have serious literary, artistic, political, or scientific value. Apply the perspective of the average person, applying contemporary community standards. > formalist objection (Sullivan): how is that something arouses and offends at same time? Is it that it arouses some and offends others? If so, this test becomes a vehicle for majorities to persecute minorities.

Roth (1957) (holding that sexually obscene speech is not protected under the 1stA bc it is utterly w/out social value, can lead to violence and degradation of women, debases consumers [better if left private], and will lead to contamination of our city squares.) The test is whether the average person applying contemporary standards would find the dominant theme of the material as a whole would appeal to the prurient interest. Subjects freedom of speech to more important interests the social interest in order and morality. > rejects liberalism (Mills: ppls rights to be authors of own character, up to the point that it would hurt someone else) in favor of republicanism (where the predominant concern of govt is to create a good society, w/o which there can be no good individuals). Kingsley Pictures (1959) (held that NY could not deny the showing of a film (Lady Chatterlys Lover) portraying adultery as ok bc it was not obscene, but rather was advocating an idea, and it would be offensive for the court to prohibit the freedom to advocate and listen to an idea.) Distinction bw obscene and nonobscene portrayal of sex in art and literature. Memoirs (1966) plurality applies different test: no speech can be prohibited on the ground that it is obscene unless the govt can carry the burden of proving that it is utterly w/o redeeming social value. Miller v. CA (1973) (remanding the s conviction under CAs obscenity laws for mass mailing of unsolicited pictorial advertising brochures depicting men and women in variety of group sexual activities): [E]xamples of what a state could define for reg under the second part (b) of the standard announced in this opinion [include] (a) Patently offensive representation or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. (b) Discriminatory Definitions: The state may not prohibit certain types of pornography based upon the ideas it conveys. Hudnut (1985 7th Cir & 1986 - SC) (found the Dworkin-MacKinnon Ordinance (attempt to define a new category of speech that should be regulated: sexually explicit violent, degrading or coercivce speech that subordinates women) impermissible bc it is an attempt to deny people access to ideas based on the content of those ideas, and the govt should not act as a censor in a free society). The First Amend prohibits viewpoint discrimination or thought control the D-M ordinance establishes an approved view of women. Says Miller is different bcs that was just about sex & not a specific viewpoint. (c) Prohibition of Private Possession: The state may not criminalize private possession of pornography. Stanley (1969) (reversing a conviction for knowing possession of obscene matter in the home). Court rejected the states assertion that it had a right to protect an individuals mind from the effects of obscenity, but limited its holding to the facts of the case such that mailing or transporting obscene material would not be protected) Paris Adult Theater (1973) (Declines extension of Stanley to more public context and upheld injunction against adult theater even though minors and unconsenting adults couldnt enter). State has a legitimate interest in order and morality or to maintain a decent society. Harms cited: Increased sexual violence, harms to juveniles & offense to passersby, debasement & interest in morality. f) Exceptions to the Usual 1st A Rules: Fighting Words (1) General Rule: States may prohibit (1)face-to-face words plainly likely to cause a breach of the peace by the addressee, (2) words whose speaking constitute a breach of the peace by the speaker including classical fighting words, words in current use less classical but equally likely to cause violence, and (3) other disorderly words, including profanity, obscenity and threats. They may not, however, prohibit only certain classes of fighting words based upon the ideas they express. Chaplinsky (1942) (upholding conviction for violating a state statute forbidding anyone to address any offensive, derisive or annoying word to any other person who is lawfully in any [public place] [or] cal[ing] him by any offensive or derisive name when, in the course of protest, the had called police officer God

damned racketeer and damned fascist). Fighting words (words that by their very utterance inflict injury or incite an immediate breach of peace) have such slight social value that they are not Cally protected. > Possible policy: this speech has no political value and bypasses the deliberative faculty (like obscenity). > The English language has a number of words and expressions which by general consent are fighting words when said w/o a disarming smile. Can doctrine get more subjective? > 1st prong may not be good law anymore: much speech today is injurious. R.A.V. v. St. Paul (1992) (invalidating the s convictions for burning a cross on the lawn on of black family under St. Paul Bias-Motivated Crime Ordinance, which provided: Whoever places on public or private property a symbol, object, appellation, characterization or graffiti which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor the ordinance was facially unCal in that it prohibited otherwise permitted speech solely on the basis of the subjects that the speech addressed). Basically overrules first prong of Chaplinsky: words that inflict injury are not necessarily out of the bounds of 1stA protection. See also Cohen. State can only ban speech on the basis of content if this leads to no significant danger of idea/viewpoint discrimination (such as obscenity or threats to kill the Pres.) > This changes 1A architecture because it seems to give fighting words some protection by saying that they cant be prohibited on the basis of viewpoint.

VA v. Black (2003): Uphold statute prohibiting cross-burning with intent to intimidate. Cross-burning as a

special kind of symbol that inherently conveys a threat. This is a category of 1 outside of RAV, Collin& Brandenburg. > Interesting to compare US to Europe when it comes to hate speech. We pride ourselves on wild, open hate speech. In contrast, in Europe, the lawis more paternalistic and doesnt trust people to make up their own mind about speech that inflicts a psychic harm. Sees restriction of speech that threaten individual dignity & pro-democratic values as facilitating freedom, democracy & equality. So, in America, wideopen vicious discourse is the norm. g) Exceptions: Hostile Audiences (1) When C&PD of riot, disorder, interference w/ traffic upon the public street or other immediate threat to public safety, peace, or order appears, the power of the State to prevent or punish is obvious. Feiner (1951). However, it is not enough that the speaker has made the crowd angry there must be a C&PD of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. Terminiello (1949). Thus, mere use of offensive words, w/out more, is protected. [Pragmatism the adequacy of police protection also is relevant might be possible only to stop speaker rather than the mob]. Terminiello (1949) (striking down a breach of the peace ordinance that defined breach of the peace to include speech which stirs the public to anger, invites dispute, [or] brings about a condition of unrest): [F]reedom of speech, although not absolute] is nevertheless protected against censorship or punishment, unless shown likely to produce a C&PD of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. Feiner (1951) (upholding conviction for disorderly conduct when referred to Pres as bum, to American Legion as Nazi Gestapo, and to Mayor of Syracuse as champagne-sipping bum who does not speak for the Negro people; crowd had threatened violence). Court uses C&PD test instead of fighting words bc Feiner is speaking to a large crowd. How can this case be reconciled w/ Brandenburg (in which Feiner would not have been convicted bc he was not expressly advocating violence)? The Brandenburg test is applicable where the speaker is speaking to a crowd of supporters, whereas Feiner deals w/ a hostile crowd. RF thinks this case is flat wrongwhy would we wouldnt we protect this speaker even more? Maybe has to do w/ providing a safety valve for the police.

> We dont like the hecklers veto, but this is more about protecting the speaker when the police cant control the crowd cited only in desperate situations Edwards v. South Carolina (1963) (reversing a breach of the peace conviction of civil rights demonstrators who refused to disperse w/in 15 minutes of a police command on the grounds that the onlookers did not threaten violence and that police protection was ample) Cohen v. CA (1971) (overturning the s conviction for disturbing the peace for wearing a Fuck the draft jacket in a county courthouse on the grounds that the word served a dual communicative purpose and that it was not reasonably foreseeable that the s conduct would provoke others to violence): Vulgarity that does not come w/in the ambit of fighting words is protected, at least where it does not produce a C&PD of violence. Distinguishable from Feiner bc nobody threatening to hurt Cohen, so not inciting anybody to violence. > this case shows SC willing to consider the emotive element of speech. Sometimes the words are more than words. (Fuck the draft not = fornicate the draft) > Also important turning point in 1A jurisprudece shift towards robust & uninhibited speech, along with NYT and Brandenburg. Reflects skepticism about categories outside of 1A protection. h) Exceptions: Child Pornography (i) General Rule: The Miller formulation [as applied to child pornography] is adjusted in the following respects: A trier of fact need NOT find that the material appeals to the prurient interest of the average person; it is NOT required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need NOT be considered as a whole. [T]he distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains 1stA protection. Ferber (1982). Ferber (1982) (upholding the conviction of a seller of films depicting young boys masturbating the Court rejected the s overbreadth challenge on the grounds that protected expressions, ranging from medical textbooks to pictorials in Natnl Geographic, amount to no more than a tiny fraction of the materials w/in statutes reach) The state can prohibit child pornography if the statute adequately defines and describes the prohibited materials and the crime is limited to works that visually depict conduct by children below a certain age. Cannot be applied to works of serious public value. The Court justified this holding by noting that 1) the state had a compelling interest in protecting the physical and psychological well-being of children, 2) the permanent record of a childs abuse will exacerbate the harm to the minor, 3) the distribution of child pornography encourages the exploitation of children, and 4) the social value of this material is minimal. > Scalia says this is an adjusted category, but really a new category. Points to low speech & high harm & past decisions saying it would be outside of 1A. Note that things are different when there is a potential harm to kids. Ashcroft v. Free Speech Coalition (overturns statute dealing w/ the technological simulation of child pornography. Rejected govt argument that seeing these videos will induce people to engage in acts of pedophilia.) Distinguished from Ferber bc there is no harm to children in the production (Ferbers main rationale). Plus, there is not enough evidence that this will cause more acts of pedophilia. > The govt may not suppress lawful speech as the means to suppress unlawful speech. 6. Reluctance to Create New Unprotected Categories

US v. Stevens (2010): Prohibits dissemination of depictions of animal cruelty (crush videos) where depictions of animal cruelty is unlawful in the state where the image is filmed or disseminated. Argues that this is like Ferber and that balancing of harm v. value necessitates creation of new category. Ct says that methodology is wrong and that they dont balance and that the Ct has always respected the traditional limitations from 1792 and has not expanded. Harkens back to originalism, even though Schenck abandoned this approach from the get-go. Also, from 1792-1920, the 1A didnt apply to the states, so all Ct can mean is that the SC has had pattern of describing unprotected speech and adjustment is OK if dealing with one of the traditional categories. Ct. says animal

cruelty isnt a traditional unprotected category and also that the statute was substantially overbroad by including hunting (but how can it be overbroad if no prohibitable category??) Brown v. Entertainment Merchants (2011): Prohibit sale of violent video games to minors. Scali maj opinion is very originalist and says that there is no tradition here re: depictions of violence. Difference from obscenity bcs there is a history wrt that we can point to. Also Court says even though no category, this is a content-based restriction, which isnt OK unless the statute passes strict scrutiny. RF thinks Scalia is focused on the wrong thing this is about prohibiting sale of certain materials to minors, which has been historically permissible. So even though the current Court hates to balance, it still hasnt gotten outside of the business of categorizing speech and createing narrow prohibitable classes. Not done doing harm/value balancing, but less up front about it. 7. Overbreadth and Vagueness Overbreadth: 1. An overbroad statute is one that is designed to burden or punish activities that are not Cally protected but, as drafted, also includes activities that are protected by the 1stA. 2. A statute that is substantially overbroad is thought to chill protected speech bc people will not know if their conduct falls w/in the scope of the 1stA and will only note that their conduct is prohibited by the statute. Vagueness: 1. The vagueness doctrine prohibits statutes that burden speech in terms that are so vague that they include protected speech or leave individuals w/out clear guidance as to the nature of speech for which he or she can be punished. 2. Vague laws can also have a chlling effect and deter people from engaging in protected activity. In addition, w/out clear guidelines, law enforcement officers have too much discretion to enforce the statute on a selective basis. Challenging a statute as overbroad or vague: 1. An attack based on overbreadth or vagueness will fail in federal court if the statute is readily subject to a narrowing interpretation by the state courts. 2. A litigant whose own conduct is unprotected cannot prevail on an overbreadth claim w/out showing that the statutes overbreadth is real and substantial. 3. A litigant whose own conduct is protected can argue 1) that the statute, as applied, is unCal, or 2) argue that the overbreadth is real and substantial and the statute is facially invalid. 8. Symbolic Expression, Content Neutral Reg, and Sexually Explicit Speech a) Expressive Conduct (1) Is there an intent to convey a particularized message? Is it likely that the message would be understood by a viewer? If so, go to (2); if not, there is no 1stA issue. TX v. Johnson (1989) (718) (overturning the s conviction for violating TXs flagburning law on the grounds that the states interest in preventing breaches of the peace was not implicated bc no disturbance occurred or was likely to occur, that the states assertion of an interest in preserving the flag as symbol of natnl unity took the case outside of OBrien bc it showed that the state was reging speech precisely bc of its message, and that it is impermissible for the govt to regulate speech merely bc society finds an idea offensive): A reg is not content-neutral if it regulates conduct bc of its message. (2) Is the reg related to the suppression of free expression (motive irrelevant)? If so, strict scrutiny (use another test, but some exceptionssee Pap, Brandenburg); if not, go to (3). TX v. Johnson. (3) OBrien TEST: [W]hen speech and nonspeech elements are combined in the same course of conduct, a sufficiently important govtal interest in reg of the non-speech element can justify incidental limitations on 1stA freedoms. [A] govt reg is sufficiently justified (1) if it furthers an important or substantial govtal interest; (2) if the govt interest is unrelated to the suppression of ideas; and (3) if the incidental restriction on alleged 1stA freedom is

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no greater than is necessary to the furtherance of that interest. MUST THERE ALSO BE AMPLE ALTERNATIVES, AS IN TIME, PLACE, AND MANNER REGS? OBrien (1968) (711) (upholding the s conviction for burning his draft card the Court rejected the s argument that the reg was unCal bc its purpose was to suppress freedom of speech): [T]his court will not strike down an otherwise Cal statute on the basis of an alleged illicit legislative motive. Court concluded that the statute was intended to facilitate quick induction in times of war, inform people of change in status, etc.not meant to suppress expressive conduct. But, seems like court easily could have concluded that the purpose was to suppress ideas (subjective motive seems not to matter). Not every idea = to speech. .> Impt govt interest question is proxy for actual motive not perfect though. They used this as the test bcs of lack of faith in judicial competence, Given Courts experience discerning motive in Equal Protection Context, would probably look into it now. > Expressive conduct must be understood as conveying a relatively particularized message, so once you hit the threshold of having an intelligible message, then you can claim right against enforcement. > Like Shiffrin can argue that OBrien is wrong 1A should protect dissenters. Also note that novel forms of dissent are likely not to be protected bcs the message may be unintelligible to the Court. b) Time, Place, and Manner: Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid provided that they are justified w/out reference to the content of the regulated speech, that they are narrowly tailored (no more restrictive than necessary) to serve a significant govtal interest, and that they leave open ample alternative channels for communication of the information. Clark v. Community for Creative Non-Violence (1984) Note: Test is not very speech protective lowered scrutiny once the regulation is contentneutral. Clark v. CCNV (1984) (729) (upholding the Natnl Park Services reg against sleeping in natnl park as applied to a group that wanted to sleep there to protest homelessness the Court analyzed the issue under OBrien and held that reasonable time, place, or manner restrictions may be valid even though they directly limit oral or written expression). Reason that an exception would be too difficult to administer, and could lead to repeated exceptionswhich would end up overriding the govts interest. Different from Cohen bcs in Cohen the content of the speech was offensive but here the act is harmful regardless of the content c) Sexually Explicit Speechuse OBrien test protected by less equal bcs not political and doesnt implicate 1A values (1) Secondary Effects: The govt can regulate adult entertainment based on its secondary effects, e.g., crime, drugs, etc., although this doctrine has no application outside the context of adult entertainment. (Renton) (2) Nude Dancing: Can be prohibited entirelythe Court will apply the OBrien test. Nudity is not an inherently expressive condition at outmost 1A borders. Stevens thinks that Paps amounts to suprression. Paps (2000) (749) (Plurality opinion upholding an ordinance prohibiting public nudity as applied to nude dancing under OBrien notw/standing the recognition that reqing pasties and G-strings may not greatly reduce secondary effects of crime and other public health and safety problems and that nude dancing is an expressive form of nudity OBrien requires only that the reg further the interest in combating such effects.) Court sees this not as a prohibition but as a TPM zoning restriction. (3) Zoning: The Govt can concentrate or disperse adult entertainment industries, but probably cannot exclude them entirely. Renton v. Playtime Theatres (1986) (743) (upholding a zoning ordinance prohibiting adult motion picture theatres from locating w/in 1,000 feet of any residential zone, church, park, or school, effectively excluding such theatres from approximately 94% of the city the court applied the test for content-neutral regs (even

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thought it was content-based) bc the city councils predominate concerns were w/ the secondary effects of adult theatres (crime, prostitution), not w/ the content of the adult films themselves). C LA v. Alameda Books (2002) (S87) (allowed LA to disperse adult businesses, and also to prohibit more than one adult business in the same building bc of the secondary effects). 9. Commercial Speech a) General Rule: [W]e have afforded commercial speech a limited measure of protection, commensurate w/ its subordinate position in the scale of 1stA values, while allowing modes of reg that might be impermissible in the realm of noncommercial expression Obralik v. OH Bar Association (1978). According to RF, the practical implication is that the govt may prevent point of sale deception/overreaching and force disclosure of information, e.g., truth in advertising, but not restrict speech that merely proposes a transaction. Gets growing amount of protection b) Truthful Speech: (1) Rule: The govt may restrict truthful commercial speech only if the reg directly advances substantial govt interest in a way that is no more extensive than necessary to achieve the govts objective. In reality, the Court seems to be applying something close to strict scrutiny. (Central Hudson) c) Why speech? Free market tied up in our political democracy. We find censorship offensive. Why not? Speech is related to regulated business. Concerns about free speech opportunism (get unprotected conduct protected by associating it with protected speech) VA Pharmacy (1976) (757) (dicta) (invalidating VA statute that prohibited pharmacists who advertised prescription drugs prices consumers have a compelling interest in making intelligent choices about drug purchases for which the free flow of commercial information is indispensable) Moved commercial speech from the unprotected category to middle/intermediate category of protected speech, but doesnt specify how protected. Central Hudson (1980) (771) (Court struck down reg prohibiting advertising by energy companies bc the reg reaches all advertising by electric companies, regardless of the impact of the advertising on overall energy use). The Court established a four-part test to determine whether particular commercial speech is protected by the 1stA: 1) the speech must concern lawful activities and not be misleading, 2) the asserted govt interest must be substantial, 3) the reg must directly advance the asserted govt interest, and 4) the govt must be no more extensive than is necessary to serve that interest. The Commission could better achieve its goals by reging the format and content of advertising by electric companies. (1) Rationale (a) There is no reason for a blanket ban on commercial speech. (b) Commercial speech is essential to the free market by reducing information costs. (c) The govt should not keep people in the dark for their own good. Paternalism is contrary to personal autonomy. (d) There is no vice exception to the 1stA. (e) The appropriate remedy is more speech. d) False, Deceptive, or Illegal Speech: The govt may forbid false or deceptive commercial speech as well as speech that proposes illegal transactions in ways that could not be forbidden for political speech. e) Harmful Products: [A] state legislature does NOT have the broad discretion to suppress truthful, nonmisleading information for paternalistic purposes. Posadas (1986) (774) (upholds a PR statute prohibiting casino advertisements bc the state has a substantial interest from protecting its citizens from squandering their money. Plus, PR could prohibit gambling all together, so the greater power must include the lesser).

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> Greater power shouldnt always include the lesser: there are situations in which it would be politically palatable to ban just advertising, but not advertising + activity. A greater includes lesser argument undermines political accountability. Suggested that there would be weak protection for commercial speech but didnt turn out that way. 44 Liquormart (1996) (771) (holding that the power to ban alcohol does not include the power to ban alcohol advertisement): The power to ban a product does not include the power to ban advertisement of that product. Seems to overrule Posadas, but plurality opinion, so Posadas not formally overruled, until Lorillard (2001) (S89) (Court strikes down a number of MA statutes putting regs on tobacco advertising, alcohol advertising, etc. Find the regs are broader than necessary to advance the states interest). Court strikes down regs restricting advertisements from being w/in 1000 feet of schools, parks, or other places where children are likely to be playing. RF thinks the only way this can be reconciled w/ Renton is to argue that the smut cases were being regulated bc of their secondary effectsand billboards do not cause those effects. But, could counter there are secondary effects (advertisements directed at adults, but may be influencing children). RF thinks may be manifestation of courts political viewsreg of adult speech gone way up while reg of commercial speech has gone way down. > Return to Central Hudson test: 4th prong of tailoring is a proportionality test. Here, the reg was not a reasonable fit bc it prevented advertising in 91% of the city. Cf. Renton, where prohibition was 94% and deemed ok. > Cf. Playboy: there, there was a less restrictive option house-to-house blocking. Here, no such option. This is more like FCC v. Pacifica (Carlin case). **Lingering issues: What can Cong do? Can they regulate image-based advertising only so cigarette companies can only advertise the truth (tombstone ads)? Probably not upheld note that Conservative justices want more stuff protected as speech. Libertarian imupulse

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10. Campaign Finance a) History: Wealth has outcomes on political campaigna and there is a history of corruption (influence-peddling) so Congress early on regulated campaign finance under the Federal Corrupt Practices Act. Early on was also illegal for corporations and labor unions to advocate election or defeat of a candidate. 2nd big push in 1970s bcs of big campaign finance scandals association with the 1972 Nixon campaign. b) FECA Conceptual Apparatus: Contributions direct money to candidate or election committee limits the amount. Expenditures use money to promote candidate without directly giving him or her money. Coordinated expenditures asking director how best to spend own money equivalent to contributions. Note: expenditures only a problem if the speech they fund is persuasive c) Why Limit Expenditures? Concerns about corruption (quid pro quo, influence peddling-access), equalize political opportunity, avoid drownout by wealthy speakers, limit corporate influence, limit distracting nature of fundraising for incumbents. d) Is money speech? SC treats contributions and expenditures as speech or at least as expressive conduct. IF it is just expressive conduct, then we should regulate under OBrien, where OK to regulate if the government has a substantial interest unrelated to the suppression of ideas. Contributions are like expressive conduct but expenditures are different. Buckley (1976): Contributions allows regulation sees it as expressive conduct. Ct only sees compelling interest in avoiding quid pro quo and corruption. Also says theres no such thing as too much political speech and Govt cant tell one person not to speak to let others speak. Expenditures sees limits on expenditures as the same as pure speech & restrictions will be upheld only where enc to further a compelling govt interest. However, by allowing one but not the other you just channel money into the other, so turned out to be ineffectual ruling >> Loopholes: PACS (Corps can pour personal money into PACS) + Issue ads (cant advocate for election/defeat of a candidate but corps that hate an incumbents policies or actions can denounce these but not make a statement about electing.)+ Soft Money (political parties can run issue ads without hitting expenditure cap and contributions to political parties is essentially uncapped)

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e) Ideological Conflict: Free speech idealists v. civic egalitarians & realists: Free speech idealists think that government shouldnt ever regulate how much speech is out there/be concerned about too persuasive speech. Kennedy, Scalia, Thomas & maybe Roberts & Alito. Realists: Pay attention to how things work in real life. Egalitarians are inclined to say that too much political speech by the wrong people/interests is bad and worth regulating, especially if the effect of their speech is to reduce, reather than enhance, the quality of deliberation. If you are concerned about lack of proportionate resources, then level down.

Austin (1990): corrosive & distorting effects of immense wealth. Departs from Buckley commitment by upholding statute that restricts election-related speech by corporations. Corporate form has immense aggregation of wealth that has corrosive & distorting effects . Court is willing to acknowledge pernicious effects of wealth, but if the effect is due to persuasion, not OK. Allows for more government power to regulate at the state level. McConnell v. FEC (2003) 5-4 Retains Buckley framework but wrt expenditures upholds limitations on issue ads, echoing Austin concern about privileged access (expanded definition of corruption selling access & corrosive influence). Doesnt specify about how corrupting forces work. Impassioned dissent.

Citizens United (2010): Current last word on campaign finance. Challenge BCRA on issue ads nonprofit ideological corp wants to run a free movie on demand and run ads for the movie. Majority (Kennedy idealist): Law unconstitutional in all applications > Reasoning: Market/speaker restrictions are suspect; No corruption through independent contributions (could expressly prohibit bribery/quid pro quo without improperly restricting speech); Persuasion principle means anti-distortion justification isnt OK; Dissenting shareholder justification doesnt make sense (govt contended that corporate expenditures can be limited to protect dissenting SHs from funding speech they dont support over and under inclusive) > Upholds regs that impose disclaimer requirement must announce who is paying for ads. > Criticism: Access is inseparable from how democracy works but donating soft money doesnt nec mean support. > Dissent (Stevens): This law targets a class of communications likely to corrupt the political process at least 1 degree removed from individual citizens. Under law corps can still do issue ads, internally communicate re: politics, fund PACs through trade groups, publicly endorse through press releases.. Thus, like TPM restriction, applying in viewpoint neutral fashion to narrow subset of advocacy messages during a particular time. f) Speech & power: 1A as tool for historically disadvantaged groups to express views, but when we have some big exceptions to the rule . Commercial speech maintains a consumerist society. Campaign speech is entrenchment of wealth. Porn as misogynist speech to maintain traditional gender relations. Sometimes speech is power for the powerful. A broad tolerance of speech can thus reinforce the current power structure. 11. Prior Restraints a) Licensing: (1) Leafleting: The govt may not require a license for leafleting in public places. Lovell (1938) (invalidating an ordinance prohibiting distribution of handbooks, advertising or literature w/out obtaining written permission from the city manager). Circulation is as essential as publishing. (2) Solicitations: The govt may not require registration prior to distributing literature door to door. Watchtower (2002)(invalidating village ordinance reqing door to door advocates of distributors of literature to register first w/ the mayor bc it violated the 1stA). Reasoned that it was offensive to the notion of a free society. Supposed state interests (crime prevention, protecting privacy of residents [who are protected by

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other means, such as no solicitation signs] and prevention of fraud [but not commercial solicitations]) do not outweigh detriments (spontaneous speech banned, impinging on speakers anonymity, and may silence people who do not want to register). (3) Parading: The state may require parade permits issued on a content-neutral basis. Cox v. NH (1941) (upholding the convictions of sixty-eight Jehovahs Witnesses for parading w/out permit). Licensing procedure ensured proper policing and prevented confusion of overlapping parades. This case shows that the doctrine of prior restraint must bow to the practicalities of modern life. Rights are not absolute. b) Injunctions Against Publication: The govt cannot enjoin publication. Near v. MN (1931) (overturning a perpetual injunction prohibiting the s from publishing or circulating any publication whatsoever which is a malicious, scandalous or defamatory newspaper.). Public officials can get their redress through state libel laws. The doctrine of prior restraints forbids any scheme of law pursuant to which people can be enjoined from engaging in speech by a court unless the speech threatens public safety or is obscene. Rationale: dont want to chill or circumvent the 1st Amend inquiry. (1) Collateral Bar Rule: A court order must be obeyed until it is set aside, and persons subject to the order who disobey it may NOT defend against an ensuing charge of criminal contempt on the ground that the order was erroneous or even unCal. This rule makes an injunction against publication very similar to prior restraint. 12. Concept of a Public Forum (1) Public Forum (streets, parks, sidewalks): Content-based strict scrutiny. Contentneutral test from Ward. Schneider (1939 (invalidating ordinances prohibiting leafleting on public streets or other public places the purpose of keeping the streets clean was insufficient to justify an ordinance prohibiting leafleting when other methods were available, e.g., criminal penalties for littering): A state may not prohibit leafleting in a public forum. (RF: state shouldve argued that the alternatives were more expensive.) Cox v. NH (1941)parade case (see above). Mosley (1972) (invalidating an ordinance banning all picketing w/in 150 feet of school building except the peaceful picketing of any school involved in a labor dispute the Court rejected the argument that the reg was valid bc labor picketing tends to be more peaceful on the grounds that such decisions must be made on an individual basis): Once a forum is opened up to assembly or speaking by some groups, govt may not prohibit others from assembling or speaking on the basis of what they intend to say (no content-based discrimination). Heffron v. Internatnl Society for Krishna Consciousness (1981) (upholding a state fair rule prohibiting distribution of printed material or solicitation of funds except from a duly licensed booth on the fairgrounds the test of reasonableness is the TPM test, whether restrictions are justified w/out reference to the content of the regulated speech, that they serve a significant govtal interest, and that in doing so they leave open ample alternative channels for communication of the information.): States may require a license for distributing printed material or solicitation of funds at a public fair. Ward v. Rock Against Racism (1989) Held that a govt may impose reasonable restrictions on the time, place, and manner of protected speech in a public forum provided the restrictions 1) are justified w/out reference to the content of the regulated speech (content-neutral), 2) serve a significant govt interest, 3) are narrowly tailored to serve a significant govt interest, and 4) leave open ample alternative channels for communication of the information. However, although the reg must be narrowly tailored, it need not be leastrestrictive or least-intrusive means of reg as long as the reg promotes a substantial govt interest that would be achieved less effectively absent the reg. Burson v. Freeman (1992) (plurality) (upholding a state prohibition on soliciting votes or the display of campaign materials w/in 100 feet of the entrance to a polling place the 100 foot zone was a public forum, the reg was based on content, and the state was required to show that the statute was necessary to achieve compelling state interest and narrowly drawn to achieve that end, but the FR to vote outweighed the FR to free speech. Strict scrutiny satisfied)

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Hill v. CO (2000 (upholding an ordinance preventing people from coming w/in 8 feet of anyone w/out consent for purpose of oral protest, hand billing, education, or counseling the public sidewalks affected were a public forum, but the reg was content neutral, there was a substantial state interest in unimpeded access to healthcare facilities, avoidance of potential trauma to patients associated w/ confrontational protests, and preserving unwilling listeners right to be let alone, but there was no analysis of narrow tailoring or alternative means of expression except in the concurring opinion. Strict scrutiny satisfied). NOTE: Although the law was formally content-neutral, its function clearly was content driven. Somebody could be approached for the time, just not to talk about abortion. Blurry line bw content-neutral and content-based. (2) Limited Purpose Public Forum: Strict Scrutiny. A public forum may be created for a limited purpose such as use by certain groups, e.g., Widmar v. Vincent (student groups), or discussion of certain subjects, e.g., City of Madison Joint School District v. WI Public Employment Relations Commissions (school board business). When a govtal body voluntarily constitutes a public forum for some purposes or some persons, as far as those purposes or persons are concerned, regular public forum rules apply and any content reg will receive strict scrutiny. The major question here will be the extent to which the govt can define the forum so as to constitute de facto content or even viewpoint discrimination. Hazelwood School District v. Kuhlmeier (1988) (upholding school newspapers refusal to publish pregnancy story on grounds that story contained information on sexuality and birth control not appropriate for younger students at school school officials reserved newspaper as forum for its intended purpose as supervised learning experience, and were therefore entitled to regulate contents in any reasonable manner). See also: Rosenberger v. UVA (university creating a student fund created a limited public forum). (3) Non-Public Forum (other govt-owned land): When the govt is acting as a proprietor and manages its internal operations, rather than as a lawmaker, its actions will NOT be subjected to heightened review. A reg merely has to be rationally related to some legitimate govtal objective. Lee (1992) (dicta). Content reg is permissible, but viewpoint reg is not, e.g., govt can say no political speech but not not political speech that promotes Republican party. Lehman v. Shaker Heights (1974) (holding that a public transit system could sell commercial advertising space for cards on its vehicles while refusing to sell space or political or public issue advertising) Krishna v. Lee (1992) (holding that the govt could ban face-to-face solicitation of funds, but not literature distribution, in a public airport terminal that was held not to be a public forum.) Airport is not public forum bc not historically considered one, so can be regulated as long as it is reasonable and not an effort to suppress the speakers activity due to disagreement w/ the speakers views. Reg of solicitations is reasonable bc they can affect the flow of traffic and can potentially be abused (bc people in hurry). Plus, area outside terminal can be used to solicit. But, ban on leaf letting cannot be upheld bc does not involve the same problems. Big debate over which approach to take when deciding if something is a public forum: functional (Kennedy) vs. historical (Rehnquist). 13. Hate Speech The govt may not prohibit hate speech that does not fall w/in an unprotected class of speech. Nor may the govt define a class of unprotected speech discriminatorily, so as to include only fighting words used against minorities. **2 Exceptions: (1) (VA v. Black) A subcategory of a category that can be banned can be prohibited when it constitutes a peculiarly egregious case especially exhibiting why the category is banned. I.e. Govt can just ban threats against Pres rather than all threats bc those threats exhibit to a particularly egregious degree the harms that make it ok to ban all threats. (2) The govt can ban incidental prohibitions of speech when it is mostly banning conduct. I.e. Title VII of Civil Rights Act bans discrimination by empersconstrued by EEOC and Courts to require empers to make their workplaces so environment does not

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harass/intimidate on the basis of race/gender. Lingering issue: Can empers ban sexually harassing speech? RF thinks yesplace should matter!! Content neutrality ideal that the court uses ought to recognize place-based exceptions (workplace is like the home). Collin v. Smith (1978) (striking down a Village of Skokie Racial Slur Ordinance making it a misdemeanor to disseminate any material, defined to include public display of markings and clothing of symbolic significance promoting and inciting racial or religious hatred) City planned to apply ordinance to Nazi group planning to demonstrate peacefully. The case did not fall under Chaplinksy or Feiner bc the Village did not claim the ordinance was justified to prevent responsive violence. R.A.V. v. St. Paul (1992) (invalidating the s convictions for burning a cross on the lawn on of black family under St. Paul Bias-Motivated Crime Ordinance, which provided: Whoever places on public or private property a symbol, object, appellation, characterization or graffiti which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor the ordinance was facially unCal in that it prohibited otherwise permitted speech solely on the basis of the subjects that the speech addressed): Even though obscenity, racial slurs, and fighting words are not protected speech, the govt may not ban them on the basis of their content. Underbroadcant ban a subset of fighting words and content-basedracist ideas stand on the same footing as other ideas. VA v. Black (2003) (held it is Cally permissible for the govt to ban cross burning w/ the intent to intimidate bc of the general category of (1) fighting words that intimidate and (2) all threatening and intimidating speech. Even though it is a subcategory of all intimidating speech, cross burning exhibits the harm of these two categories to a peculiarly high degree.- Interesting bcs intimidation is emotional effect like IIED btut also threat of violence, which is unprotected 14. Govt Support of Speech a) Govt as Speaker Pleasant Grove v. Summum (2009): Affirms the view that when government is speaker content-neutrality no longer applies bcs govt can decide what issues to address and what to say. Here city accepts monuments in public partk SC says this doesnt make it a public forum. Govt can be selective and need not be content/viewpoint neutral as speaker, but EC limits what govt can say b) Govt as Emper: Govt can always control private speech. Can also control public speech when people are hired specifically to spread a govtal message (i.e. math teachers hired to teach math). Controversy occurs when empees claim it appears that they were hired to spread a specific message, but they actually should have some autonomy (i.e. teachers dont approve of curriculum). Consider germaneness: any interest that would justify govt in firing an empee for engaging in independent speech would have to be germane to the legitimate purposes for which the employment was established (health teacher could be fired for saying drugs OK, but not a janitor). Pickering (1968) (holding that govt/school board cannot fire teacher for writing a letter to editor criticizing the board in budgetary matters). Pickering was speaking on his own time, on a matter of public concern, in which voters may have an interest in hearing. Garcetti (2006): Says that Pickering only applies when employees speak in a personal capcity and not professionally. Here EE demoted after EE disagrees with bosses about prosecuting a case and writes a report to the Court saying as much. Ct wants to protect governments managerial domain and have a rule rather than CBC dassessment. c) Govt as Property-Owner/Manager: Govtal control of speech will depend on whether the govt meant to create a limited purpose public forum, in which case speech must be content neutral, or meant to maintain a property. d) Selective Subsidies (1) General Rule: The govt may not penalize speech, but may choose what to subsidize, even if doing so thereby promotes or excludes certain viewpoints. The inquiry centers on whether

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the taxation or subsidy is coercive. RF also thinks that the condition placed on funding must have something to do w/ the govts initial purpose for providing the subsidy, e.g., the govt could not condition receipt of a subsidy on an artists supporting a political party. The most important considerations will be whether the benefit to be conferred constitutes a subsidy or an entitlement (coercion test) and whether the benefit is speaker-based or project-based. Other factors include (1) the strength and legitimacy of the govts purpose, (2) the context, (3) the degree of influence exercised, (4) the threat to the countervailing institution, and (5) the individuals vulnerability to pressure. Rust v. Sullivan (1991) (upholding grants to organizations that assist w/ family planning on the condition that the funds not be used in programs where abortion constitutes a method of family planning the reg did not condition funding on the relinquishment of Cal right bc the reg did not force grantees to give up abortionrelated speech, but merely to keep such activities separate from funded activities, i.e., conditions were placed on the program rather than the recipient) A legislatures decision not to subsidize the exercise of a FR does not infringe the right. A subsidy is a giftso w/holding it should not be seen as a penalty. Blackmans dissent says this is effectively denying poor women the right to get information. RF thinks its hard to reconcile this w/ FCC. > Baseline difficulty: outcome of these cases based on the basine determination: is it that everyone gets the money (in which case non-subsidy is a penalty), or no one gets the money (in which case, subsidy is allowed)? Cf. Masses v. Patten: the baseline determination was that everyone got use of mail services and denial was a penalty. e) The govt may NOT engage in content discrimination when the purpose of the forum is to promote diversity of viewpoints. Rosenberger v. UVA (1995) (holding that a university could not refuse to fund religious publications if it chose to subsidize the printing costs of a wide variety of student organizations) Viewpoint based restrictions are impermissible when a University does not itself speak or subsidize transmittal of message it favors but instead expends funds to encourage diversity of views from private speakers contrast this w/ Finley, where the purpose of the funding was to promote good art. > the university, in creating a student activities fund, created a limited public forum. f) Government as Educator: Children as Chielles heel of 1A doctrine unlike adults, you cant assume that they are autonomous and paternalism is OK. Pierce(1925): Strike down OR law requiring children to go to public school through 8th grade. SC says law interferes with rights of parents to send their kids to private school. Yoder (1972): SC strikes down WI statute requiring kids to go to school until 16 against Amish parents claims that he had a FEC interst in directing childs religion and other upbringing. > Concern about letting parents have too much control and thereby preventing the children from becoming autonomous. There is a shared responsibility in how children are raised. Pierce and Yoder means that ouside of the special context of religiously-motivated parents, parents can be required to send their kids to school up to a certain age. (1) Flashpoints caused by public education: Liberal school prayer, bible reading, pledge of alliegance. Conservative evolution w/o creation science, sex ed, homosexual lifestyle. (2) Students Speech Rights Cases Tinker (1969): SC says children dont shed 1A rights at school house and have the right to express opinions unless theyre doing so causes material aor substantial disruption or somehow interferes with the rights of others. Bethel School District v. Fraser (1986): SC upholds punishment of student who makes vulgar and suggestive sexual jokes when addressing school assembly. School has legit interest in being able to inculcate appropriate values of civility Hazelwood School District v. Kuhlmeier (1988) (upholding school newspapers refusal to publish pregnancy story on grounds that story contained information on sexuality and birth control not appropriate for younger

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students at school school officials reserved newspaper as forum for its intended purpose as supervised learning experience, and were therefore entitled to regulate contents in any reasonable manner). Morse (2007): SC upholds punishment of kids who display Bong Hits for Jesus sign at school parade puts on narrow ground that OK to punish just because advocating illegal drug use.

Hypothetical Cases: Kids suspended for passing out racist jokes; School prohibits profanity on school grounds; off-campus cyber bullying case with on-campus effects; teachers rights to teach things they want to 15. Reg of the Media **Policy: govt may want to regulate to (1) provide more/better news, (2) create a more aware populace or (3) prevent sex/profanity that may be harmful to kids. a) Traditional Media (1) Prohibition on Obscenity: Permissible (2) Prohibition on Offensive Words: Impermissible. Cohen v. CA (1971) (overturning the s conviction for disturbing the peace for wearing a Fuck the draft jacket in a county courthouse on the grounds that the word served a dual communicative purpose and that it was not reasonably foreseeable that the s conduct would provoke others to violence) (3) Print Media Equal Time/Space Reqs: Impermissible. Miami Herald v. Tornillo (1974) (striking down a FL right of reply statute that required newspapers that assailed the personal character or official record of political candidate to print, on demand, free of any cost, any reply the candidate might make to charges the attempt to ensure that a wide variety of views reach the public constituted a content-based penalty). Court reasoned that the statute may chill speech bc papers would avoid publishing controversial ideas, and the primary responsibility for what goes into a paper rests w/ the newspaper itself. RF thinks that this case was rightly decided bc the press is supposed to be a foil to the govt and that there is more access to it than there is to the broadcast media. b) Broadcast Media (1) Prohibition on Offensive Words: Permissible. FCC v. Pacifica (1978)(holding that the fact that Pacifica broadcasted Carlins seven dirty words routine could be relevant to licensing reconsideration [cant prohibit, but can dictate circumstances] broadcast media intrudes into the home and is uniquely accessible to children, even children too young to read). Only patently offensive material will be censored and that is at the fringes of 1stA protection. But, given that the these concerns (kids will hear offensive speech, etc) also seem to apply to public places (like Harvard Square, where it is ok), theres the suspicion that the court is attempting to distinguish bw those protesting on the street and polite society. But could argue that media has more of a pervasive effect than somebody yelling on the street. (2) Equal Time Reqs: Permissible. Red Lion v. FCC (1969) (upholding an FCC rule reqing notice of political endorsement or personal attack and opportunity to respond as applied to television broadcaster the reg was warranted to preserve the marketplace of ideas given the limited number of available frequenciesspectrum scarcity rationale and the govt owns the airwaves) RF does not agree w/ this argument bc it is unfeasible that there will be many newspapers (tend to be more radio stations) and the govt owns all the public forum where it cant regulate speech. But, does agree that while the govt should not be pervasively involved in the business of ensuring citizens get a balanced view of ideas, it can engage in limited reg to endure that voters are well informed (Bollingers theory). [Not that important now that the Internet exists, but remains good case lawalthough may be overruled bc radio is now a vast wasteland] c) Cable (1) Restriction of Pornography: Invalid, unless the material rises to the level of obscenity (subject to strict scrutiny).

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Playboy (2000) (invalidating a law that essentially required Playboy not to broadcast bw 6:00 a.m and 10 p.m. a narrower alternative that would prevent child access to pornography was available, i.e., the channel could have a block upon request w/ notice of the option.) (2) Req to Carry Local Broadcasters: Permissible, but subject to strict scrutiny if contentbased reg. Turner Broadcasting v. FCC (1994) (upholding the req so long as the govt could demonstrate on remand that in absence of the legislation, (1) a large number of broadcast stations would not be carried or would be adversely repositioned, (2) that such stations would be at serious risk of financial difficulty, (3) that cable operators programming selections would not be excessively affected, and (4) that no less restrictive alternative means existed the decision involved speaker-based vs. content-based reg and the court appeared to rely upon antitrust considerations similar to those implicated in Red Lion) Court acts it is treating print and cable the same, but allowing reg on cable, so not really. May be bc cable companies have monopolies in localities (no alternative cable source). Also, newspapers are at the heart of the 1stA from a historical perspective. d) Internet: Prohibitions on sexual content are impermissiblestrict scrutiny applies. Reno v. ACLU (1997) (holding that a prohibition on the knowing transmission of indecent messages to any recipient under 18 and prohibition on knowing sending or displaying of patently offensive messages in a manner available to person under 18 was vague and overbroad the internet is like traditional public forum (low-cost communication) and the reg would have curtailed adult-to-adult communication. Plus ,the internet is not as invasive as radio or TV. Case shows the breakdown of the Pacifica polite/impolite society distinction. It doesnt make sense anymore now that children can access pornography on the internet. More News, Etc. Tornillo (1974) Red Lion (1969) Turner (1994) Reg of Adult Speech Cohen (1971) Pacifica (1978) Denver Consortium (1996) US v. Playboy Reno v. ACLU (1997) Ashcroft v. ACLU (2002)

Traditional Media Airwaves Cable Internet

**SUMMARY OF FREEDOM OF SPEECH: The Ideal: Protected Speech that receives Full 1stA Protection Unprotected speech that receives no 1stA Protection The Reality: The norm is still that protected speech is reviewed under a strict scrutiny standard. Protected Speech that gets less Protected Speech that Protected Speech bc of the medium protection bc of the place gets less protection bc involved cable, airwaves, and where one speaks home, of the content of the Internet workplace speech: commercial speech, adult speech, libel Unprotected Speech: obscenity, fighting words, libel, imminent threats

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B. Freedom of Religion 1. Establishment Clause : religious faith must be arrived at voluntarily; Cong may not do anything to promote any particular religion or coerce people into a religious belief We have weak FE clause exemptions arent nec. And Strong EC clause (which would say that exemptions are prohibited). Govt can decide if wants to exempt or not, but not required to do so. People with mainstream relig win and minority relisiong lose. a) Conflicting Tests (1) Endorsement Test: The govt may not take actions that endorse religion or a particular religion. OConnors endorsement test asks whether a reasonable/ordinary observer from the outside would take it that the govts purpose was to endorse religion or make status in the community hinged on religion. (Wallace, concurring) (2) Lemon Test: A statute is valid under the EC only if (a) it has a secular purpose, (b) if its primary or principle effect is neither to advance nor to inhibit religion, and and (c) if the statute does not foster excessive govt entanglement w/ religion. Lemon v. Kurtzman (1971). (3) Coercion/Historical Test: favored by Rehnquist, Kennedy, Scalia, Thomas. (Applicable cases: Kennedy in Allegheny County, Marsh, Lee v. Weisman, Santa Fe) b) Policy (1) In favor of separation: > Jefferson: wall of separation insulates democratic process from religious degradations > Madison: church-state separation preserves autonomy of religious institutions (2) Against separation: > separation will be breached from state side, w/ police/fire protection > separation will be breached from church side, since church officials try to influence politics c) Religion and the Public Schools: It appears that OConnors endorsement test applies. Pursuant to that test, the govt may not conduct religious instruction in public schools or allow privately employed religious teachers to do so on public school premises during school hours, but may allow students to leave school early to attend religious instruction somewhere else or allow a religious group access to school facilities provided that other groups have the same opportunity and theres no excessive teacher involvement. Everson (1947) upheld NJ townships practice of reimbursing parents for the cost of sending kids on regular buses to schools (be they public, private, parochial, secular). The govt is not the churchs adversary, and doesnt have to cut off access to things like police or sewage (the wall of separation is not absolute). You cannot advantage religion, but you can give benefits w/out regard to religious belief. Neutrality is the key: transportation is separate and so indisputably marked off from the religious function. Epperson (1968) held that an anti-evolution statute forbidding teachers to teach about evolution violated the religion clauses and was unCal (the purpose was clearly religious). Stone v. Graham (1980) held that statute reqing posting of 10 commandments in classrooms w/ notation the secular application of the 10 Cs is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the US had no secular purpose and was therefore unCal. Wallace v. Jaffree (1985) (EC violation where the state authorized a period of silence for meditation or voluntary prayer after it already had authorized a one-minute period of silence there was no secular legislative purpose bc the govt was trying to endorse religion): The govt cannot take measures intended to endorse religion. Under 1st prong of Lemon test: Legislative history evinced a non-secular purpose. > accommodation followed by specific invitation is endorsement Aguillard (1987) : held that LA statute forbidding teaching of evolution unless accompanied by instruction in creation science was unCal bc it had no clear secular purpose. (Strict application of Lemon test)

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 Board of Education v. Mergens (1990) (No EC violation where a high school included a Christian club in

its thirty recognized student groups the govt was not speaking but allowing private speech, the act limited teacher involvement thereby avoiding the problem of emulation, and the broad spectrum of other recognized clubs counteracted any message of official endorsement): A school may recognize religious clubs. Lee v. Weisman (1992 (EC violation where public school officials invited members of the clergy to offer invocation and benediction prayers at a high school graduation the Court did not need to apply the Lemon test bc the practice in question amounted to coercion): The govt may not coerce students into participation in religious activities. Coercion is more likely w/ children as in this case. Distinguished from Marsh bc there they were adults and therefore were less impressionable. Applies Lemon test, where primary purpose of having clergy come was to coerce. > Scalia (dissent) this isnt coercion: there is no penalty. Santa Fe (2000) (EC violation where a school district authorized a student election to determine whether to have a student deliver brief invocation and/or message [at] varsity football games to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition the invocations were not private speech in the sense that they were authorized by a govt policy and took place on govt property at govt-sponsored school-related events): The govt may not authorize or acknowledge student prayers at a school-govt sponsored event, even if the kids vote for it. Zelman (2002) court upheld school vouchers given to parents who chose whether to send their children to public/private, secular/parochial schools in order to raise the level of education in Cleveland. Neutral objective, neutral application (even though most of the private schools were parochial). There was a focus on private choice of where to use the vouchers. > Private choice: the perceived endorsement of a religious message is reasonably attributable to the individual recipient, not the govt. > Souter (dissent): this was not really a private choice: the criterion is one of genuinely free choice on the part of the private individuals who choose, and a Hobsons choice is not a choice, whatever the reason for being Hobsonian. There is a skew w/ the voucher amount so low, one couldnt go to secular private school, only a parochial one. Good News Club (2004) upheld public schools practice of permitting Christian orgs to use school rooms for after-school meetings bc there was parent consent, it was neutral, and there was no govt sponsorship of the activities (it was after school hours). d) Financial Aid to Religion: The govt may not single out religious institutions for exemptions or subsidies, or enact programs intended to benefit a specific sect, but may, provide aid to religious organizations under the same conditions that it provides such aid to other organizations, but only if the aid itself is secular, e.g., loaning textbooks or school supplies, allowing public school teachers to teach remedial classes in private religious schools, etc. Walz (1970) (upholding a state tax exemption for real or personal property used for religious, educational, or charitable purposes religion was not singled out). Secular purpose of promoting non-profit activities. Under 2nd prong of Lemon test, an incidental enabling effects on religion are permitted. TX Monthly v. Bullock (1989) (EC violation where a state exempted from sales tax books and periodicals that are published or distributed by a religious faith and that consist wholly of writings promulgating the teaching of the faith): [W]hen govt directs a subsidy exclusively to religious organizations that is not required by the FEC and that either burdens nonbeneficiaries markedly or cannot reasonably be seen as removing a significant state-imposed deterrent to the free exercise of religion it provide[s] unjustifiable awards of assistance to religious organizations and cannot but conve[y] a message of endorsement to slighted members of the community. This is particularly true where, as here, the subsidy is targeted at writings that promulgate the teachings of religious faiths.)

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e) Official Acknowledgment of Religion: The govt may not acknowledge religion in a way that indicates govt approval or sponsorship. Here, context and tradition are particularly important. McGowan (1961) (holding that Sunday closing laws do not violate the EC): A statute primarily having a secular effect does not violate the EC merely bc it happens to coincide or harmonize w/ the tenets of some or all religions. Purpose was a secular day of rest. Under 2nd prong of Lemon test, incidental enabling effects on religion are permitted. Marsh (1983) (no EC violation where a session of the legislature is opened w/ a prayer by the legislative chaplain the practice dates back to colonial times, so presumably the authors of the Bill of Rights thought that it did not violate the EC legislators, unlike children, are not impressionable). Rehnquist focuses on history. Allegheny County (1989) (EC violation where a town placed a crche on the courthouse (highly visible, top of steps) but no endorsement where the same town placed a menorah next to a Christmas tree outside the citycounty building [court remanded for determination of purpose and entanglement prongs of Lemon] the key question was whether the govt practice had the purpose or effect of endorsing religion, and the menorah did not have that affect bc in the context of the display it was merely a recognition of the winter holiday season): The govt may not acknowledge religion in a way that endorses or symbolically supports it. > Kennedy (concurring/dissenting): coercion is the important factor, and the crche and the menorah are purely passive symbols of religious holidays. Lee v. Weisman (1992) EC violation where public school officials invited members of the clergy to offer invocation and benediction prayers at a high school graduation the Court did not need to apply the Lemon test bc the practice in question amounted to coercion): The govt may not coerce students into participation in religious activities. Coercion is more likely w/ children as in this case. Distinguished from Marsh bc there they were adults and therefore were less impressionable. Applies Lemon test, where primary purpose of having clergy come was to coerce. Scalia (dissent) this isnt coercion: there is no penalty. f) 2005 Cases: Ten Commandments

McCreary County: 10 Commandements display surrounded by other symbols of lawgiving. Held Unconst

on grounds that purpose was to promote religion. Van Orden: Uphold privately donated display of 10C on grounds of TX state capital. Plurality never overrules Lemonbut says N/A to practices with firm roots, like symbolic displays of religions. Breyer conc notes that display was uncontested for 2 generations and unliekley to prove divisive. Would be more divisive to mandate tearing out of all displays of 10C. 2. Free Exercise Clause : the govt cannot interfere w/ a persons right to practice a religion; Cong cannot single out and prohibit religiously motivated conduct just bc it is religious. a) Modern Rule (1) Right to Believe and Profess: [T]he 1stA obviously excludes all govtal reg of religious beliefs as such. The govt may not compel affirmation of religious belief, see Torcaso v. Watkins, punish the expression of religions doctrines it believes to be false, US v. Ballard, impose special disabilities on the basis of religious views or religious status, see McDaniel v. Paty [state rule disqualifying clergy from being legislators], or lend its power to one or the other side in controversies over religious authority or dogma, see Presbyterian Church v. Hull Church. Employment Division v. Smith (1990) (dicta). (2) Values: Religious Liberty (tax to support religion would offend dissenting TP); Portect secular politics from religion; Dont let politics dictate religious practice; People voluntarily embracing religion is a good thing, so OK for govt to accommodate it. (3) Facially Neutral Laws: The FEC only bars application of a neutral, generally applicable law to religiously motivated action where it is implicated in conjunction w/ other Cal protections,

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such as freedom of speech and freedom of the press; however, where the state has in place a system of individual exemptions, it may not refuse to extend that system to cases of religious hardship w/out a compelling reason (unemployment cases). Employment Division v. Smith (1990) (dicta). Hybrids may trigger strict scrutiny (protect religions) though this remains unclear. (a) Employment Division v. Smith (1990) (No FEC violation where the govt denied unemployment to people fired for testing positive for peyote, a criminal act, the use of which was part of religions ritual). If you have a facially neutral statute, enforcement against a religious use is not unCal. The enforcement is only prohibited if there is deliberate singling out of religious conduct for a burden. The dissent argued for a stronger FEC reading which permits all religious behavior in order to protect religious minorities (RF agrees w/ this). > incidental effect on FE of religion does not = strict scrutiny. (b) Church of the Lukumi v. Hialeah (1993) (FEC violation where a statute forbidding animal sacrifice was directed at a particular religion). Not facially neutral: cant ever target a particular religion. b) Historical Development (Scalias Taxonomy in Smith) (1) FEC Violation (a) Freedom of Speech (hybrid cases) WV v. Barnette (1943) (holding that public school children could not be required to salute the flag where their religions beliefs forbade doing so [T]he compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. [If] there is any fixed star in our Cal constellation, it is that no official can prescribe what shall be orthodox in politics, natnlism or other matters of opinion or force citizens to confess by word or act their faith therein.). This was a hybrid case free exercise and free speech (b) DP + parental rights (hybrid cases) WI v. Yoder (1972) (EC violation to compel the Amish to send their children to school past a certain age per compulsory attendance laws there was no compelling govt interest). Demonstrated an increase in the courts consideration of compelling govtal interest. This was a hybrid case, involving free exercise rights and parental rights to raise children. Strict scrutiny. (c) Exemptions Otherwise Granted (unemployment context) Hobbie (1987) (FEC violation where the govt refused unemployment when a worker was fired for refusing to work during hours that her religion forbade): [W]here the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit bc of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs such infringements must be subjected to strict scrutiny and could be justified only by proof by the State of a compelling interest. No such compelling interest has ever been found in unemployment benefits cases. > Rationale: FEC is meant to protect religious minorities. The majority will not enact legislation that burdens their own religion (e.g., communion wine during Prohibition). > SC: nothing should hinge on the Q of burden vs. benefit. (2) No FEC Violation Gilette v. US (1971) (No FEC violation where Cong conscripted those who opposed a particular war on the grounds of conscience and religion The conscription laws [are] not designed to interfere w/ any religious ritual or practice, and do not work a penalty against any theological position.) Locke v. Davey (2004) (No FEC violation where State has statute in which it provides financial support for high school grads who want to go to college, w/ the exception that it will provide no money for religious education.) This statute is a choice of not funding and not an absolute ban. [Argument that this exception is Cally impermissible the statute is not neutral bc it prefers secular education to parochial education. Can make a free speech argument that the govt is selectively funding speech (viewpoint discrimination). EC:

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govt is funding secularism over religion in a non-neutral way. This is a hard argument w/ public schools bc the govt only has a duty to fund secular schools.] c) Conflict w/ EC: The Court might be less likely to find an EC violation where an Act of Cong constitutes an attempt to balance the Establishment and FECs. > at the very least, the FEC cannot constitute a violation of the EC. Welsh v. US (1970) (No EC violation where the govt exempted only religious conscientious objectors the Court applied RBR bc the provision related to the military and was Congs way of trying to balance FEC w/ EC) Thornton (1985) (EC violation where a state law provided that those who observe a Sabbath any day of the week as a matter of religious conviction must be relieved of the duty to work on that day when an obligation is imposed on some people to assist the observance of their religion, then a reasonable observer would find endorsement) Amos (1987) (No EC violation where the Civil Rights Act exempted religious organizations from Title VIIs prohibition against discrimination in employment on the basis of religion Bc the law passed the Lemon test, the Court applied RBR, concluding that the statute was rationally related to the legitimate purpose of alleviating significant govtal interference w/ the ability of religions organizations to define and carry out their religions missions): Cong can authorize religious groups to discriminate on the basis of religion. OConnor applies the endorsement test. > SC interprets EC Lemon test in light of EC-based challenge. > example of permissible accommodation of religion that operates by lifting a burden otherwise imposed by the government on religious practice. Cutter v. Wilkinson (2005): SC upholds act that requires state and local govts receiving federal funds to provide exemptions for people engaged in religiously motivated actions when regulating people who are engaging in an activity when such an activity occurs on federal lands or where the person is institutionalized. SC says OK bcs alleviating governmentally-created burdens taking acct of burdens imposedo on nonreligious test and being neutral among faiths. RF cconcerned about possible message of endorsement when govt thinks it is doing accommodating. C. Freedom of Association 1. Right not to speak WV v. Barnette (1943) (invalidating statute reqing recital of pledge of allegiance) The values that support freedom of speech apply equally to right NOT to speak: freedom of mind/conscience. NAACP v. AL (1958) (prohibiting AL from compelling NAACP to publish membership list) Rationale: disclosure would result in harassment. McIntyre (1995) (invalidating OHs prohibition against anonymous campaign literature) 2. Right to associate: while not expressly mentioned in C, SC has reaffirmed the rights existence on the basis that association is instrumental to freedom of speech. However, it is NOT absolute. Analysis centers around germaneness to legitimate governmental purpose. 3. Right not to be forced to associate w/ speech Wooley (1977) (violation of 1stA where Jehovas Witness tapes over NH Live Free or Die on license plate) Analogizes Barnette. (RF: this case is better handled as expressive conduct OBrien) Pruneyard (1980) ( the business establishment that is open to the public to come and go as they please. The views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified w/ those of the owner.) Hurley (1995) (MA Veteran's Council may disallow Irish-American GLBT group from marching w/ them.) The 1st amend gives the speaker a near absolute right for the speaker engaging in inherently expressive activity to not include in his speech a message w/ which he does not agree. The GLBT marthers are viewed as walking billboards.

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4. Right not to associate Roberts v. Jaycees (1984) (upholding statute that prohibits Jaycees from excluding women.) While Jaycees are an expressive association, forcing them to include women does not present a serious or substantial interference w/ expressive efforts. Satisfies compelling interest test: 1) compelling state interest, 2) unrelated to the suppression of ideas, 3) that cannot be achieve through means significantly less restrictive. Dale (2000) (invalidating NJ statute that prohibited BSA from excluding homosexuals.) The public accommodations law does not apply: BSA are an expressive association, w/ a clear expression. Dale would be a walking billboard for views contrary to BSA dont reach the Roberts compelling interest test. 5. Association & Religion: Religiously friendly justices get the protections that they want under the free speech clause get religious speech protected, get equal acess to public forums, get freedom not to associate.

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