First Amendment 2011

1
H. Warden First Amendment Prof. Benjamin Fall 2011
I.
GENERAL..............................................................................................................................2
A.
B.
C.
TEXT OF THE FIRST AMENDMENT........................................................................................2

THEORIES UNDERLYING FREEDOM OF SPEECH.....................................................................2
FLOWCHART OF FREE SPEECH INQUIRY...............................................................................3
II. RESTRICTIONS BASED ON COMMUNICATIVE IMPACT........................................4

A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
INCITEMENT..........................................................................................................................4
FALSE STATEMENTS.............................................................................................................6
OBSCENITY...........................................................................................................................9
VAGUENESS........................................................................................................................10
PRIOR RESTRAINTS.............................................................................................................11
SPEECH AS INTEGRAL PART OF CRIMINAL CONDUCT........................................................12
1. Child Pornography........................................................................................................12
2. Integral Part of [another] Crime..................................................................................13
OFFENSIVE SPEECH............................................................................................................14
SYMBOLIC EXPRESSION.....................................................................................................16
COMMERCIAL SPEECH/ADVERTISING.................................................................................17
STRICT SCRUTINY..............................................................................................................19
CONTENT DISCRIMINATION WITHIN UNPROTECTED SPEECH.............................................22
III. CONTENT-NEUTRAL RESTRICTIONS........................................................................24

A.
RESTRICTIONS ON SPEECH & EXPRESSIVE CONDUCT........................................................24
IV. SPECIAL BURDENS ON FREE SPEECH......................................................................27

A.
B.
C.
D.
V.
FORCED ASSOCIATION........................................................................................................27
SPEECH-RELATED SPENDING & CONTRIBUTIONS...............................................................29
SPEECH COMPULSIONS: DIRECT INTERFERENCE W/SPEAKERS OTHER SPEECH................31
SPEECH COMPULSIONS: INDIRECT INTERFERENCE W/SPEAKERS OTHER SPEECH.............34
GOVERNMENT ACTING IN SPECIAL CAPACITIES................................................36
A.
B.
C.
D.
GOVERNMENT AS EMPLOYER.............................................................................................36
GOVERNMENT AS POSTMASTER.........................................................................................38
GOVERNMENT AS LANDLORD: FORUM ANALYSIS.............................................................38
GOVERNMENT AS SUBSIDIZER/SPEAKER............................................................................40
VI. RELIGION CLAUSES.......................................................................................................44

A.
FREE EXERCISE..................................................................................................................46
1. Non-Discrimination Principle (Free Exercise).............................................................46
2. Compelled Exemptions & RFRA...................................................................................48
B.
ESTABLISHMENT CLAUSE...................................................................................................52
1. Non-Discrimination Principle (Establishment).............................................................53
2. Non-Discrimination Extended (No Endorsement Principle).........................................54
3. No Primary Religious Purpose Principle......................................................................56
4. No Coercion Principle...................................................................................................58
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5.
Compelled Exclusions: Facially Even-Handed Funding Programs.............................59
I.
GENERAL
A.
TEXT OF THE FIRST AMENDMENT
Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.
B.
THEORIES UNDERLYING FREEDOM OF SPEECH
Why we value freedom of speech

Search for truth through the marketplace of ideas
Self-government and democracy
Autonomy, Self-Actualization, Self-Expression
Benefits of tolerance
Why we dont restrict speech
No Law means no law. Justice Black.
So many alternatives to suppressing speech that restrictions are unnecessary
If speech is harmless or restrictions dont work, theres no need to restrict
Best remedy for bad speech is good counter-speech

C.
FLOWCHART OF FREE SPEECH INQUIRY

1. State Action?
a. If not, First Amendment does not apply.
b. Is the state acting in a special capacity?
i. If acting toward the public as a sovereign, continue to #2
ii. If acting in a special capacity (employer, landlord, speaker,
subsidizer), go to #6
2. Does it restrict Speech or Expressive Conduct?
a. If not, First Amendment does it interfere with speech in some other
way? See #5.
b. Vagueness & Overbreadth: Is it unclear whether speech or expression
would be restricted? Or would some protected speech be impacted?
i. chilling effect
ii. Look to previous constructions of the statute
iii. Ask Court to create a limiting instruction
c. Expressive Conduct: Would someone know what the conduct means
without a sign or explanation? Rumsfeld v. FAIR; Texas v. Johnson.
3. Speech restricted for its Content or Communicative Impact?
a. If yes, is the speech unprotected? Less protected Commercial Speech?
i. If unprotected, is this restriction content-based discrimination
within an exception, banned under R.A.V. v. City of St. Paul?
ii. If protected, does the restriction pass strict scrutiny?
b. If not, continue
4. Speech restricted for reasons unrelated to the content or communicative
impact?
a. Apply forum analysis (Part III of textbook)
5. Interference with Speech other than through Direct Suppression?
a. Expressive Association
b. Spending Money on Speech
c. Compelled Speech
6. Government in special capacity? Possible lower level of scrutiny
a. Employer
b. Landlord/Postmaster
c. Subsidizer/Speaker (consider forum analysis)
II.
RESTRICTIONS BASED ON COMMUNICATIVE IMPACT

A
INCITEMENT
Blackletter: p.3
Incitement (Brandenburg v. Ohio p5): Advocacy of the use of force or violation of a law is
unprotected incitement when it is
1. Directed at inciting or producing
a. Subjective intent
2. Imminent lawless action
a. Within hours, or at most days
b. NOT some indefinite time in the future (Hess v. Indiana)
3. And is likely to incite such action
a. Objective likelihood
Solicitation (US v. Williams p7): A proposal to engage in illegal activity (not just abstract
advocacy of illegality) is unprotected, even if it is not imminent. Speech that is a crime unto
itself.
Cases:
Brandenburg (1969) p5
Rule: Advocacy of the use of force or of law violation is incitement when it is (a) directed to
inciting or producing (b) imminent lawless action (c) and is likely to produce such action.
Facts: KKK leader convicted under Ohio Criminal Syndicalism statute for advocating the
duty, necessity, or propriety of crime . . . as a means of accomplishing industrial or political
reform and voluntarily assembling with any society . . . formed to teach or advocate the
doctrines of criminal syndicalism. Speaker suggested that revengeance might be necessary if
the U.S. continues to suppress the white, Caucasian race.
Holding: This statute is unconstitutional because it fails to draw the distinction between abstract
advocacy of violence and preparing a group for violent action and steeling it to such action.
But see Yates, Dennis (1950s), Communist cases, which allowed restrictions on concrete action
even when it wasnt imminent. Technically not overruled.
US v. Williams (2008) p7
Facts: In an internet chat room, Williams offered pictures of his daughter engaging in sexually
explicit conduct for trade. Agent got a search warrant and found pictures of real minors engaging
in sexually explicit conduct or displaying their genitals. Williams pled guilty to pandering and
possession of child pornography, but challenged constitutionality of the pandering charge.
Holding: Offers to engage in illegal transactions are categorically excluded from First
Amendment protection. Draws a distinction between promotion or advocacy of child porn
and recommendation of a particular piece of purported child pornography with the intent of
initiating a transaction.
Older Tests, limited by Brandenburg to imminent lawless action:
Wartime Espionage Act Cases: Limited by Brandenburg to imminent lawless action test
Schenck (1919) convicted under the Espionage Act for conspiracy to obstruct military
recruiting in war time, for sending out pamphlets encouraging young men to oppose the
war and recruitment. The test is whether the words used are used in such circumstances
and are of such a nature as to create a clear and present danger that they will bring about
the substantive evils that Congress has a right to prevent. Basically knowledge +
likelihood of illegal action (no imminence requirement).
Debs (1919, later) convicted under the Espionage Act for giving a speech praising people
who were convicted of obstructing the recruiting effort. Jury told that they cannot convict
unless the words used has as their natural tendency and reasonably probable effect to
obstruct the recruiting service, and unless the defendant has the specific intent to do so in
his mind.
Abrams (1919, later) convicted under the Espionage Act, for conspiring to print language
intended to incite, provoke and encourage resistance to the United States in said war.
They created 2 pamphlets encouraging workers to strike (up to fight!, stop creating
bullets, etc.), because they would be used against socialist revolutionaries in Russia.
Court holds that this intent isnt enough to save them, because they were aware that their
pamphlets would be likely to hinder the war effort in Germany. Strongly worded dissent,
saying this mens rea isnt enough for an attempt to hinder the war effort, so conviction is
unconstitutional.
Gilbert (1920), convicted under a Minnesota statute making unlawful oral or written
speech advocating that men should not enlist or assist the US in war. Conviction upheld.
Advocating Crime:
Gitlow (1925) was convicted of speech advocating the overthrow of organized
government by unlawful means. He wrote a Manifesto for the Left Wing of the Socialist
Party, advocating struggle and revolutionary mass action. Conviction upheld for
abuse of the freedom of speech. Basically, held that this is incitement (but the
likelihood of lawless action was small and there was little or no imminence/present
danger). Incorporates First Amendment against the States under the 14th Amendment.
Whitney (1927) conviction upheld under CA Criminal Syndicalism Act for organizing a
group assembled to advocate crime or violence to accomplish political change.
Communist, advocating strikes and the overthrow and conquest of capitalist rule.
Concurrence lays out something similar to Brandenburg (clear and present danger), but
determines that the acts here met that test.

D.
FALSE STATEMENTS
Theory: no constitutional value in false statements of fact; however, error is inevitable. First
Amendment require4s that we protect some falsehood in order to protect speech that matters.
Gertz, p 76
Blackletter: p 57
Must be a false statement of FACT (provably false factual connotation).
Not opinion, or parody
Can be an implicit statement of fact
Mens Rea requirement: False Statements of fact can be punished if they have a sufficiently
culpable mental state.
Deliberate lies
o okay if theyre about the government (seditious libel), as long as no particular
person is defamed. NY Times v. Sullivan.
o False statements about History, Science, or Current Events may be protected.
Knowingly (or recklessly) false statements of fact are usually punishable
o Malice standard, NY Times v. Sullivan
Negligence (Gertz)
o Private individuals, public concern
Strict Liability for matters of private concern? (Dun & Bradstreet)
Types of punishment that are constitutional (with the right mens rea)
Libel & Slander
Fraud
Perjury
False inducement of fear (Fire! or calling 911 and lying)
Flowchart for determining mens rea requirement for the speech to be unprotected: Chart p 62
(1) Public Figure, Public Concern
a. Actual Malice (knowledge of falsity or recklessness). NY Times v. Sullivan.
b. What is reckless disregard?
i. Publishing while actually entertaining doubts as to the truth
ii. Purposeful avoidance of the truth
(2) Private Figure, Public Concern
a. Negligence. Gertz.
(3) Anyone, Private Concern
a. Unclear. Maybe strict liability
b. See Dun & Bradstreet.
Who is a public figure? Pretty much anyone worth making statements about.
Government officials, unless WAY down on the totem pole
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People who have assumed an influential role in society (beyond involvement in

community and professional affairs). Gertz.
People who have achieved pervasive fame or notoriety
Those who have voluntarily injected themselves (or been drawn into) a particular public
controversy
o Limited Purpose public figures, only as to that controversy
o Must be of public importance
o Low-profile criminal prosecution & high profile divorce case are not enough to
become a public figure.
What is of Public Concern? Anything worth printing.

Anything about an officials fitness for office
Anything article with a broad public purpose, even if the individual named in it is not a
matter of public concern. Florida Star v. BJF.
Speech in the interest of the speaker and a small audience is probably not a matter of
public concern. Esp. if it isnt likely to be deterred. Dun & Bradstreet.
Remedies: Punitive & Presumed damages available
Public Concern? only if actual malice is proved (knowledge or reckless)
Private Concern? Yes, even without actual malice (negligence)
Criminal Liability for Libel: Okay, within confines of rules applicable to civil suits
Burden of Proof: Public Concern? Burden is on the plaintiff (the one who got defamed)
Quantum of Proof: Proof of Knowledge or Recklessness must be Clear & Convincing
Cases:
New York Times v. Sullivan (1964) p 63
Facts: Police commissioner sues for libel based on a full-page ad accusing the police of abuse in
a Montgomery, AL, school in response to a protest against segregation. Plaintiff claims that the
word police and they refers to him.
Analysis: Puts burden on the government official to show that the false statement (against him
specifically) was made with actual malice (knowledge of falsity or reckless disregard of the truth
or falsity of the statement).
Holding: The Times was at most negligent, and the false statements were not of and
concerning the police commissioner personally. Goes on to say that For good reason, no court
has ever held, or even suggested, that prosecutions for libel on government have any place in
the American system of jurisprudence. Preserves liability for knowing/reckless falsehoods, and
seems to protect all falsehoods that address matters of public concern.
Dissent: Misinformation frustrates the values of the first amendment in criticism and assessment
of public officials. Information is polluted, and the public official remains defamed unless he can
prove knowledge or recklessness. (Mad about burden shifting)
[More cases over]

Gertz (1974) p 76 (damages, p 83)
Private Individual, Public Concern.
Facts: Gertz represented a youths estate in civil litigation against a police officer who shot and
killed the youth. A crazy newspaper published a false story about Gertz, claiming she is part of a
conspiracy to discredit police and replace them with a Communist dictatorship.
Analysis: False statements of fact are inevitable in free debate. Creating strict liability would
chill the press. Private citizens have little or no access to self-help through the media, so they
cant fight speech with speech, and the state has a greater interest in protecting them.
Held: So long as it is not strict liability, the states can create libel laws that allow for recovery for
false statements made against a private individual, even on a matter of public concern. But there
can only be recovery for actual injury; no presumed or punitive damages without knowledge or
recklessness.
Dun & Bradstreet (1985) Majority, p 87. Concurrence, White, p 72
Public Individual, Private Concern
Facts: Recklessly sent out reports to 5 individuals stating that a company filed for bankruptcy
(mistake imputed bankruptcy of a former employee to the company).
Analysis: This case is different from New York Times and Gertz because this is purely private
speech: No potential interference with open debate, no problems with criticizing the government,
no risk of self-censorship by the press. Therefore, there can be punitive and presumed damages
even without actual malice. A credit report is not a public concern: Those who read were
contractually obligated to not disseminate it, there is no public interest in a credit report (but
what about in the health of the company?), and this commercial speech, so it is naturally hardy.
Holding: This is a matter of private concern, and is unprotected.
Concurrence by White, p72: Critical of New York Times. Erroneous information does not further
First Amendment values because they detract from debate and confidence in government. The
actual malice test is too strong, and the burden is in the wrong place.

E.
OBSCENITY
Blackletter: p 114
Miller test: Speech is obscene (and unprotected) if:
1. The average person, applying contemporary community standards, would find that the
work, taken as a whole [and with respect to minors], appeals to the prurient interest, and
a. Prurient means lustful excitement, deviant, shameful or morbid interest in sex, or
too great of an interest in sex
2. The work depicts or describes, in a patently offensive way [with respect to minors] under
contemporary community standards, sexual conduct specifically defined by the
applicable state law, and
3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value
[for minors].
a. Based on a reasonable person, not an ordinary person in the community
Cases:
Miller v. California (1973): p116, p126, p128.
Facts: Unsolicited brochure with explicit images and a movie.
Held: Rejects the utterly without redeeming social value test (Roth, Memoirs). Remanded.
Paris Adult Theatre (1973): p124
Companion case to Miller. Upholds Georgia law prohibiting adult movie theatres.
Analysis: Legislature reached a conclusion that there is a correlation between obscene materials
and crime; court defers.
Dissent p 126: Consent (and age of majority) is what matters; these theatres are limited to willing
adults.
Roth (1957): p120
Presumed that obscene material was utterly without redeeming social importance.
Nine years later, Memiors v. MA held that to prohibit allegedly obscene material, it had to be
affirmatively proven to be utterly without redeeming social value.
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F.
VAGUENESS
Blackletter: p. 133 & p. 168
Policy: Chilling effect on protected speech if a law restricting speech is vague or overbroad; must
give notice to citizens (due process) and guidance to police (preventing arbitrary enforcement)
Vagueness: p133; in Obscenity cases, p 128
A speech restriction can be unconstitutionally vague if it fails to provide an ascertainable
standard of conduct.
o If courts have interpreted the law in way that makes it less vague, then the court
considering the vagueness argument will look at the law as construed.
o Goguen: Notice plus Guidance (bottom p 137)
Overbreadth: p 133, 168-69
Can challenge a law for overbreadth under the First Amendment (restricts protected
speech), even if the law is constitutional as applied to that person. (unlike all other law)
o The overbreadth must be substantial
o Looks to the law as construed by the courts
Can also ask for a limiting instruction in the case at hand to preserve the
statute
o The overbreadth must relate to noncommercial speech
Policy: Three evils of overbreadth:
Need to know what is illegal to avoid the activity
Arbitrary and discriminatory enforcement
Chilling effect
Notes: Overbreadth can lead to vagueness. Jews for Jesus (p 503).
Cases:
Miller & Paris Adult Theatre (1973): p 128-29 Notice & Vagueness problems in obscenity laws
Grayned v. City of Rockford (1972) p 134
Facts: An Illinois law prohibits noise and disturbance near schools. The Illinois Supreme Court
interpreted tends to disturb as imminent interference with the peace and order of the school.
Analysis: The law, as interpreted by the state court, is not overly broad.
Smith v. Goguen (1974) p 137
Facts: Conviction under Flag Misuse statute for treat[ing] contemptuously the US flag, for
wearing it on the seat of pants.
Analysis: No definition of contempt. Need NOTICE and GUIDANCE to law enforcement.
Selective law enforcement is a due process denial.
[more cases over]
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Board of Airport Commrs v. Jews for Jesus (1987) p 139

Facts: LAX purports to ban all First Amendment activities and suggests a limiting instruction
to only cover non-airport-related speech.
Analysis: Even if LAX were a nonpublic forum, this seems an absolute prohibition on speech.
Gives too much leeway to airport officials to decide what is airport-related. Gives police
unrestrained power.
Reno v. ACLU (1997) p 140
Facts: The Communications Decency Act (CDA) prohibits transmitting obscene material to
minors over the internet.
Analysis: Vagueness uses inconsistent terms (indecent v. offensive); leaves out safeguards from
Miller test (limiting obscenity to sexual conduct, required definitions of proscribed speech,
appeal to prurient interest, lack of value). [Ultimately ruled on overbreadth grounds]
Held: Overly broad.
Child Pornography (see below, under Speech as Integral Part of Criminal Conduct)
G.
PRIOR RESTRAINTS
Blackstone: believed that Prior Restraints were the only thing protected by Freedom of Speech.
You can print whatever you want, as long as youre prepared to take the consequences.
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H.
SPEECH AS INTEGRAL PART OF CRIMINAL CONDUCT

1.
Child Pornography
Blackletter: p 142
Unprotected if (NY v. Ferber)
visually protects children below the age of majority
performing sexual acts or lewdly exhibiting their genitals
Supplants Miller when children are involved.
Concern is for children involved in production, not impact on society: the conduct is a violation
of the law, and the distribution is ongoing abuse of the child. (But, consider though that taping
other illegal acts is protected.)
Note: A person is only liable for distribution or possession if he knows or has reason to know that
the porn features an underage minor. Reasonable mistake of fact is a defense.
Only material using actual children is unprotected (Ashcroft v. Free Speech Coalition)
Cases:
NY v. Ferber (1982) p 144
Creates an exception to First Amendment protection for child porn. In that case, the speech is the
record of the crime of sexual abuse. Does NOT apply Mitchell (e.g. social value), because the
problem isnt the viewers reaction; its the abuse of children.
Ashcroft v. Free Speech Coalition (2002) p149
Court strikes down the CPPA because it is overbroad: prohibits any visual depiction of a minor
(or what appears to be a minor) engaging in sexually explicit activity, without regard to whether
any minors were involved OR whether it is obscene under Miller.
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2.
Integral Part of [another] Crime
Blackletter: p156
The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning
it (Ferber)
Burden of proof remains on the government to show that the speech will lead to harm
States can prohibit unlawful action or conspiracy, even when it is carried out using speech, as
long as the speech is intrinsically related to the criminal conduct.
E.g. Here are the blueprints and secret combination to the bank. Now, go! or Your
money or your life!
Threats p 208: There is a threat exception to the First Amendment
o But, if it is obviously hyperbole, then it is not a threat
o On the other hand, some types of ambiguous activities will be held to be threats
depending on the history between the parties
E.g., in Virginia v. Black, the Court upheld a Virginia statute that outlawed
burning a cross with intent to intimidate, but struck down a provision that
treated burning a cross as prima facie evidence of intent to intimidate; a
threat has to be aimed at someone
o some types of threats are protected
E.g., threats of social ostracism, or of politically-motivated boycotts
Verbal acts: perjury, conspiracy, assault
Intellectual Property (Speech owned by Others): p221 copyright violations
Cases:
US v. Stevens (2010): p 156.
Facts: Man who ran a dogfighting website convicted under a law that prohibits possession,
distribution, and production of visual depictions of illegal animal cruelty. The law was adopted in
response to crush videos, where state cant prosecute the actor because the video hides her
identity.
Holding: The law is unconstitutionally broad because it proscribes videos describing even legal
activities, such as hunting. (Unlike in other areas of the law, the overbreadth of the law can be
challenged even by someone whose actions are actually proscribable).
Note: Court rejects any idea of a balancing test for First Amendment restrictions. Recharacterized the exception for child porn as one for speech that is intrinsically related to the
criminal conduct of child abuse.
Giboney v. Empire Ice (1949): p 165
Relied upon in Rumsfeld v. FAIR, US v. Williams, US v. Stevens.
Facts: Union pickets Empire to try to force it to abide by union rules (dont sell to non-union)
Held: State may prohibit picketing that interferes with trade.
Chaplinsky: See below, Offensive Speech.
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I.
OFFENSIVE SPEECH
Blackletter: p 169
Fighting Words
Abusive Words
IIED on matters of private concern
Speech is unprotected fighting words if:
(1) It tends to incite an immediate breach of the peace by provoking a fight, so long as
(Chaplinsky)
(2) It is a personally abusive epithet which, when addressed to the ordinary citizen, is, as
a matter of common knowledge, likely to provoke a violent reaction (Cohen), and
(3) Is directed at the hearer and thus likely to be seen as a direct personal insult (Cohen).
Offensive Speech Exception:
May only apply to Low-Value speech epithets and vulgarities (Chaplinsky)
o but could also implicate political speech if it fits the other requirements of
fighting words (TX v. Johnson)
Never upheld a fighting words law since Chaplinsky. (Its reasoning, involving the
balancing of the social value of the speech and the countervailing social interests, might
have won the day in 1900; today, it wouldnt get a single vote)
What about Intentional Infliction of Emotional Distress?
Not enforceable if the words are on a matter of public concern, Snyder v. Phelps.
Notes: Pages 170-73 list other possible rules based on dicta in cases. Offensive speech seems to
be based in part on the personal targeting of someone, and in part on whether the audience is
captive.
Cases:
Chaplinsky (1942) p 174
Facts: D, taken away from site of demonstration by police to prevent violence against him, calls
the marshal a racketeer and fascist and is prosecuted.
Holding: Fighting words, those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace, are not protected under the First Am. Resort to epithets or
personal abuse is not communication of information or opinion; it is no essential part of any
exposition of ideas. The statute in question was limited to statements with a direct tendency to
causing acts of violence and that were offensive to a common sensibility.
Note: This is the only case upholding a fighting words conviction.
Rowan v. US Post Office Dept (1970) p 178, Summary p 171
Captive Audience Rationale.
Facts: A federal law allows residents to block the sending of erotic materials to their homes.
Analysis: Residents are captive audiences. Residences must take affirmative steps to block the
information.
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Held: Constitutional.
Cohen v. California (1971) p 175, 179
Limits Captive Audience rationale in Rowan (Avert your eyes); limits Chaplinsky (must be
directed at the person suffering the harm)
Facts: D is convicted of maliciously disturbing the peace by wearing a jacket stenciled with
Fuck the Draft at the county courthouse.
Holding: Even if the fighting words exception still exists, Ds jacket was not employed in a
personally provocative fashion. The mere presumed presence of unwitting viewers does not
automatically justify curtailment of all speech capable of giving offense. Those present could
have avoided further offense simply by averting their eyes. So long as Ds speech was
otherwise protected, its offensive nature alone is insufficient to justify criminalizing it. So long
as the means are peaceful, the communication need not meet standards of acceptability.
FCC v. Pacifica (1978) p 181, Summary p 171
Captive Audience Problem with broadcast makes banning certain epithets constitutional.
Distinguishes Cohen (written v. spoken cant avert your eyes to the radio).
Texas v. Johnson (1989) p 188
Flag burning
Facts: D is convicted of desecration of a venerated object for burning a flag at a political
demonstration.
Holding: Speech may not be banned because an audience that takes serious offense at particular
expression is likely to disturb the peace. Allowing such restriction would eviscerate both
Brandenburg and Cohen; thus, the states interest in maintaining order is not implicated by this
statute. The state may not foster its own view of the flag by prohibiting expressive conduct
relating to it or otherwise prescribe what ideas shall be orthodox. The First Am does not
guarantee that other concepts sacred to the nation shall go unchallenged in the marketplace of
ideas; the flag is no exception to this rule. We do not consecrate the flag by punishing its
desecration, for in doing so we dilute the freedom that this cherished emblem represents.
Dissent: argues the flag is truly unique and not simply a point of view competing for recognition
in the marketplace of ideas and that flag burning is merely the equivalent of an inarticulate grunt
or roar, not an expression of an idea.
Snyder v. Phelps (2011) p 191
Facts: Westboro Baptist Church protests at a military funeral, combining attack on the deceased
(Thank God for your dead son) with more general attacks on US tolerance for LGBT people.
Held: IIED verdict overturned because speech was on a matter of public concern. Doesnt matter
if it was in a private location or directed at a private party public concern is protected.
Dissent/Counterarguments: Some of the speech was not of public concern; how much is too
much? Captive audience at a funeral (except they couldnt see or hear the protesters). Special
sphere for grieving where speech can be restricted?
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J.
SYMBOLIC EXPRESSION
Blackletter: p 205
Rule: 1A protects symbols, defined as conduct that:
Test 1
Intends to convey a particularized
message
Likelihood is great that the message
would be understood by viewers
Message is created by conduct itself.
Test 2
OR
Traditionally a protected genre

(e.g., painting, music, etc.)
Various roads are not taken by SCOTUS:

First Amendment does not apply to anything that is not words. (Hugo Black's position)
o Yet, flag burning was meant to communicate something (in context). After all,
flags are destroyed humanely by the military without anyone thinking that the
military is protesting.
First Amendment applies to all conduct that has a symbolic element.
o Trouble is, even horrific crimes can have a symbolic element.
Rumsfeld v. FAIR's point: when you have to explain your symbolic conduct, its not really
symbolic conduct that is protected.
Rumsfeld v. FAIR (2006) p 206, p 387 (expressive association)
Facts: Law Schools challenge the Solomon Amendment as an infringement of expressive
association
Held: This is NOT expression. The Solomon Amendment regulates conduct, not speech.
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K.
COMMERCIAL SPEECH/ADVERTISING
Blackletter: p 229
What is commercial speech?
Proposes a Commercial transaction = advertising
Indirectly promotes a product, even if it doesnt offer it for sale (fuzzy line)
What is not commercial speech?
Being sold doesnt make it commercial
Label as Advertisement doesnt make it commercial (NYT v. Sullivan)
Economic motivation doesnt make it commercial (union pay demands)
Less protected that noncommercial speech (four prong Central Hudson test)
(1) False or (2) misleading ads can be punished
o potentially (but not inherently or actually) misleading info cannot be banned if
the info could be presented in a way that is not deceptive. Peel, p 250.
o Disclosures can be required even if theyd be unconstitutional as to noncommercial speech. Zauderer.
(3) Ads concerning unlawful activities can be prohibited (even if advocating those
activities is protected speech, and even if Brandenburg incitement criteria are not met)
(4) Truthful ads for legal activities can be prohibited if government regulation meets a
three-part test (similar to heightened scrutiny) (p 230)
o Restriction justified by a Substantial government interest
Prevent offense is not substantial
Preventing undue pressure on customer is substantial (Ohralik)
Promoting Energy efficiency and fair prices is substantial (Ctrl. Hudson)
o Restriction directly advances that interest
o It is not more extensive than necessary to serve that interest (proportional)
Tailoring prong here is significantly different than in the strict scrutiny context.
Here, identifying a less restrictive speech alternative does not mean that the restriction
fails. The government looks to a Reasonable fit.
Prophylactic rules that may restrict un-harmful speech are okay if its hard to distinguish
which speech will be harmful (Ohralik), but not if you can identify the bad speech up
front (Central Hudson).
Shielding customers from information that would lead to unwise choices?
Per se impermissible? 44 Liquormart (Stevens + 2 plurality, Thomas
Concurrence)
But see Central Hudson: Okay to ban ads that would cause a net increase in
energy usage.
Central Hudson (1980) p 233
Facts: Commission blocks ads intended to stimulate the purchase of utility services.
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Analysis: (1) not deceptive or criminal, (2) substantial interest in energy conservation, directly
advanced by blocking ads encouraging energy use. However, might be broad to the extent that it
blocks ads for products that have no effect (or a positive effect) on energy usage.
Concur: Blackmun: Government has no business regulating speech for its effect on the public,
absent clear and present danger. Stevens: Also adopts clear and present danger rationale (go
after the electricity usage, not the advertising). Dissent: Rehnquist: Majority Opinion is Lochner;
cant knock down reasonable regulation of commercial speech (distinguished from political).
Virginia St. Bd. Of Pharmacy (1976) p238
Facts: P challenged a VA law criminalizing publication or advertisement of the price for
prescription drugs by a licensed pharmacist.
Analysis: Speech does not lose protection because money is spent to project it, because it is
economically motivated, because it is carried in a form that is sold, or because it may involve a
solicitation to purchase goods or contribute money.
Held: Ban impermissible. The strength of the argument that aggressive price advertising will
corrode professional standards and relationships is undermined by the states licensing system.
The preferable alternative is to assume people will perceive their own best interests if well
enough informed.
Dissent: Rehnquist argues that this subject is properly the concern of the state legislature. The
difficulty of line-drawing between political and other forms of commentary does not excuse the
blurring of lines between protected non-commercial speech and regulateable commercial speech.
Ohralik (1978) p 243
Upholds ban on solicitation under circumstances where the potential customer is in danger of
fraud, intimidation, undue influence, etc. Inherent
44 Liquormart (1996) p 244
Facts: RI banned ads for liquor and on public display of liquor prices (outside the store).
Analysis: Keeping people in the dark for their own good = bad. Cannot have a blanket ban on
truthful, non-misleading, commercial messages for lawful products, without meeting the Cental
Hudson test; here, the wholesale ban on ads doesnt materially (or substantially) serve the states
interest in reducing alcohol consumption. Court suggests taxes or limiting purchases instead.
Banning speech may sometimes prove far more intrusive than banning conduct.
Thomas, concur: When the asserted interest is to keep people in the dark, it is per se invalid and
the Central Hudson test should not be applied.
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19

L.
STRICT SCRUTINY
Blackletter: p259. Even protected speech can be restricted.

If the speech restriction attacks core speech (not commercial or exceptions), strong
presumption of unconstitutionality. Used for non-excepted speech involving content-based
distinctions
Government as sovereign, attacking speech for its communicative impact.
o Different test for government as employer, subsidizer, speaker, etc.
o Different test when its a content-neutral restriction
Test is very, very difficult to satisfy: Holder is the only one to make the cut so far
The test:
o (1) Compelling government interest (important enough to restrict speech?)
Not Compelling: p 259, 261.f.
Cant favor some protected speech over other (without some other
reason than favoritism) (Carey v. Brown, labor picketing)
Avoiding offense and restricting bad ideas (without more) is not ok
(TX v. Johnson, flag burning)
Underinclusiveness: signal that the interest isnt very important,
(Florida Star v. B.J.F.) or that its not the genuine reason for the
regulation (Carey)
Equalizing relative ability to influence the outcome of elections
(Buckley)
Compelling: p 260.e.
Combating terrorism (Holder, p 281)
Protecting minors from literature that is not obscene by adult
standards (Sable Comm. v. FCC)
Protecting votes from confusion or undue influence (Burson v.
Freeman plurality)
Preventing Vote-Buying (Buckley v. Valeo, p 446)
Protecting minorities right to live where they want in peace (dicta,
R.A.V. v. City of St. Paul, p 295; struck down on tailoring)
o (2) Narrowly Tailored
Regulation must materially advance the interest (persuasive commonsense foundation)
Not overinclusive (cant burden speech that falls outside the interest,
unless its hard to tell the difference; Buckley p 446, But see Schneider v.
NJ p322, overturning littering ban on leafleting)
Not underinclusive
Highly tied to the compelling interest prong
o Government sincerity
o Government accuracy
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This could also lead, ironically enough, to greater government

regulation
o Think of Carey v. Brown, which prohibited picketing in
front of residences except for labor protests; this was struck
down largely based on underinclusivitylabor picketing is
just as invasive on privacy as other types of picketing
Least restrictive alternative
Restrict conduct instead of speech; limit speech instead of barring
it altogether
But must be an effective alternative to protect the interest
(Ashcroft v. ACLU II, p 268)
But see Florida Star v. B.J.F. p 264: There really is no less restrictive alternative to
forbidding publication of rape victims names (when the interest is protecting privacy and
encouraging others to come forward); however, Court rejected the argument, holding the
law unconstitutional even though it was necessary to a compelling interest just because
it didnt have an exception for public concern.
Cases:
Holder v. Humanitarian Law Project (2010) p 281
Facts: Crime to knowingly provide material support or resources to a foreign terrorist org. as
defined by Sec. of State. Definition of Material Support includes training, expert advice,
service, and personnel (under direction of the org.); challenged on free speech grounds as
preventing HLP from training these groups on peaceful alternatives to terrorism and political
advocacy.
Analysis: Compelling Interest of the highest order; Congress made a finding that these
organizations are so tainted by their criminal conduct that any contribution to such an
organization facilitates that conduct either through legitimization or fungibility. Court makes
much of the limiting factor that the support must be coordinated with or under the direction of
an org. Also points out that the challenge is pre-enforcement and very general; impossible to say
what are services (e.g. publications in support? Speaking in front of Congress?)
Dissent: Breyer +2. This prevents pure speech (petitioning Congress) and association (in
coordination with), and falls outside of Brandenburg incitement test. Theoretically could ban a
brief by a lawyer hired to represent such a group.
Carey v. Brown (1980) p 455
Facts: Picketing outside residences banned except for labor picketing. Plaintiffs picketed the
Mayors house demanding school integration.
Analysis: showing a preference for one topic of speech is impermissible.
[more cases over]

Ashcroft v. ACLU II (2004) p 268
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Facts: Child Online Protection Act imposes penalties for posting (for commercial purposes)
anything that is obscene or violates Miller For Minors. Affirmative defense: website requires
proof of age through technology, etc.
Analysis: Concern about less restrictive alternatives. Filters are just as effective and less speechrestrictive.
Dissent: Chooses a different baseline Majority (is COPA more effective than filters), Dissent
(is COPA more effective than filters alone)?
Florida Star v. B.J.F (1989) p 275
Strict in theory, fatal in fact.
Facts: BJF reports sexual assault; police f- up and put the report (with victim name) in the press
room. Florida Star reporter printed a short article, including the victims name, which violated FS
policy as well as a local law making it unlawful to print the name of a sexual assault victim.
Interest in privacy and encouraging victims to come forward.
Analysis: Emphasis on how FS got the information. (1) government can prevent the publication
simply by preventing dissemination of the protected information. (2) if info is already in the
public domain, you cant punish people for disseminating it. (3) Self-censorship if press could
get in trouble for publishing press releases, reports, etc. (4) underinclusive b/c doesnt go after
small disseminators, just mass communication
Held: Cant prevent publication of the name, because publication was on a matter of public
concern (getting the perp) and they got the info lawfully. Also says that if it becomes a matter of
public concern because of potential fabrication of charges, the info is fair game. (UGH!)
Dissent: p 279 There were signs all over the press room saying that reporters were not to
disseminate the name of rape victims. This basically eliminates the tort of publication of private
facts. Biggest difference from majority: private (not public)
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M.
CONTENT DISCRIMINATION WITHIN UNPROTECTED SPEECH
Blackletter: p 292 Even restrictions on unprotected speech can be unconstitutional

R.A.V. v. City of St. Paul: A restriction on unprotected speech must pass strict scrutiny if it
includes a specific content restriction within it, e.g. obscenity that includes flag burning; threats
against the President that mention his economic policy; commercial ads that depict men in a
demeaning fashion.
What is a content-based distinction? You have to know what the speech says to determine if it is
covered by a restriction.
Exceptions:
Virulence: The internal content discrimination if the basis for it is the same reason that
the class of speech is proscribable
o extra prurient obscenity; very threatening threats (e.g. against the President); extra
fraud-prone commercial ads (lawyers, maybe funeral homes)
Secondary effects of the subclass of speech are independently justified without reference
to the speech
o Offense and emotive impact of speech isnt a secondary effect
o Basically, correlation with bad conduct (Renton: adult entertainment attracts
prostitution)
Conduct: If the subclass can be swept up under a law that regulates conduct, not speech
o Sexual harassment law permits a restriction on sexually derogatory fighting
words.
o But see p 358, Holder.
No Suppression of Ideas: If there is no realistic possibility that official suppression of
ideas is afoot
Hate Crimes: Strict Scrutiny only applies to Speech restrictions, not bias-motivated Conduct
(increased penalties for hate crimes).
Cases:
R.A.V. v. City of St. Paul (1992) p 295
Bigoted Speech
Facts: Racially-motivated cross burning punished under a law that prohibits placing a
symbol including a burning cross which one knows arouses anger, alarm, or
resentment in others on the basis of race, color, creed, religion, or gender. MN Sup. Ct. had a
narrowing construction such that only Chaplinsky fighting words were punishable (those
which by their very utterance inflict injury or tend to incite an immediate breach of the peace.).
Analysis: Scalia You cant have a content-based restriction within proscribable speech
(exceptions start p297 bottom). This law only punishes fighting words on one of the disfavored
topics (content-based), and only when speaking on one side of the topic (viewpoint-based).
Fighting words is about the Manner of expression, not the content. And though there is a
compelling interest, this speech restriction is not necessary; there are content-neutral
alternatives.
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Concurrence: Concur in result b/c the fighting words construction doesnt save causing anger,
alarm, or resentment, which is not proscribable. White +2: Within an unprotected class of (non-)
speech, there is not good reason why a subclass should get protection; this signals that fighting
words and hate speech are a legitimate form of public discussion. White +3: It should survive
strict scrutiny, because there is no less restrictive (albeit content-neutral) alternative; majority
says you cant have a content-based restriction if the objective could be achieved by banning a
wider swath of speech. Would apply Equal Protection review to regulation of unprotected
speech. Also notes that the St. Paul restriction falls into the first exception (for extra-bad threats).
Virginia v. Black (2003) p 303, facts on p 216 (Threats)
Facts: two sets of convicted Defendants under a VA statute criminalizing cross burning with
intent to intimidate (and rebuttable presumption that there was intent): one KKK leader who
burned a big cross with no particular person as a target; other were two boys who burnt a cross to
get back at a black man who complained about their shooting guns for target practice.
Analysis: OConnor - This passes the first exception to RAV, because intent to intimidate is a
subcategory or proscribable threats (extra violent threats).
Dissenting in Part: Souter This is about blocking racist speech, not violence, so doesnt fit into
the extra violent threats exception to RAV. It is content-based. The prima facie provision shows
that official suppression of ideas may be afoot. It doesnt fit the secondary effects exception
either. Thomas this is about conduct, not speech; the ban is on violence (Siamese twin of crossburning).
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III.
CONTENT-NEUTRAL RESTRICTIONS
A
RESTRICTIONS ON SPEECH & EXPRESSIVE CONDUCT
Blackletter: p 319
What is expressive conduct / symbolic speech? p 205 (if it needs an explanation, probably not
expressive enough to be considered speech. Rumsfeld v. FAIR)
OBrien Test: a government regulation is sufficiently justified . . . if it furthers an important or
substantial government interest; if the governmental interest is unrelated to the suppression of
free expression; and if the incidental restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest.
Time, Place, and Manner restrictions on speech & limits on expressive conduct are okay if
(1) justified for non-content reasons, and may limit expressive conduct (symbolic
speech) for its non-communicative impact. (loud, littering, traffic, fires)
(2) Substantial government interest
o Less than compelling. Residential privacy counts (Frisby).
(3) Narrowly tailored to serve this interest
o Less than is required under strict scrutiny (can be underinclusive, doesnt need to
be the least restrictive means)
o Removing the restriction or exempting the conduct would materially interfere
with the government interest (Clark v. CCNV)
o Cant be overinclusive (cant burden speech that doesnt implicate the
governments interest)
o Burden must be proportionate to the threat to the government interest (Schneider)
(4) Leave open ample alternative channels for communicating the information.
o Basically measures the burden on speech
o Suggested Alternative Channel fails if it is: (see City of Ladue)
Too expensive
Unlikely to reach the same audience
Likely to carry a different implicit message from the suggested alternate
time, place, or manner
o If it doesnt leave open ample alternative channels, apply strict scrutiny.
o May not apply when its a restriction on conduct (but there is always an
alternative to conduct --- speech! OBrien, Harlan concurrence)
What is Content Neutral? P 337
Cases:
Schneider v. NJ (1939) p 322
Facts: People with a right to be where they were, and only giving leaflets to willing recipients,
were convicted under laws prohibiting leafletting because it leads indirectly to littering.
Analysis: Keeping the streets looking good is not a substantial government interest; even if it
were, the ban is disproportionate, and removing the restriction wouldnt materially interfere with
the governments interest, because they could still punish people who actually litter.
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Frisby v. Schultz (1988) p 323

Facts: peaceful, quiet anti-abortion protesters picketed the home of a doctor who performs
abortions. Town enacts a provision making it unlawful to picket an individuals residence.
Analysis: Content Neutral, yes. Ample alternatives? Yes, can walk through a neighborhood, make
phonecalls, etc. Significant government interest? Yes, sanctity of the home and protection of the
unwilling listener in his home (think FCC v. Facifica, as opposed to in-public, Cohen). Narrowly
tailored? Yes. Only limits targeted picketing of homes, which is inherently intrusive, and where
the resident is presumptively unwilling to hear it.
Dissent: Brennan, Marshall Intrusiveness is not inherent, and the speech is to the public, not
just the resident. Not narrowly tailored, because it limits more than coercive or intrusive conduct
(could limit the number of protestors, the hours, and the noise).
City of Ladue v. Gilleo (1994) p327
Facts: Sign in window advocating peace in the Gulf; prohibited under an ordinance that bans
signs in residential areas.
Analysis: Not compelling; no meaningful alternatives; overbroad. The govt interest in reducing
visual clutter is valid, but not especially compelling. In contrast, the ban has almost completely
foreclosed a unique and important means of communication. Although prohibitions foreclosing
entire media may be free of content or viewpoint discrimination, they pose the danger of
eliminating too much speech. Here, there are not adequate alternatives preserved; residential
signs, precisely by their location, provide information about the identity of the speaker, which is
an important component of attempts to persuade. Moreover, they are a low-cost form of
communication which may not have cheap and practical substitute, eliminating speech by those
of limited means or mobility; in addition, their placement may be linked to a desired audience of
neighbors. Finally, residents self-interest in governing visual clutter diminishes the need for
govt involvement.
US v. OBrien (1968) p328
Facts: D burns his draft card at a public demonstration, and is convicted under a statute
prohibiting knowing destruction or mutilation of same.
Analysis: a government regulation is sufficiently justified . . . if it furthers an important or
substantial government interest; if the governmental interest is unrelated to the suppression of
free expression; and if the incidental restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest. Draft cards serve the govt interest in
raising armies, facilitating communication, and reminding registrants of their draft obligations,
all of which would be impaired by their destruction. The ban directly targets only conduct
endangering the govt interest; this is not a case in which the interest in regulating conduct arises
because communication integral to the conduct is found harmful. Legislative history
notwithstanding, the motives of Congress or the measures sponsors is not relevant in
determining the intent of the statute for First Amendment purposes.
Concur: Harlan - this rule may not apply where incidental regulation may entirely prevent a
speaker from reaching a significant audience.
[more cases over]
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Clark v. Community for Creative Non-Violence (1984) p331

Facts: The National Park Service issued a permit to erect symbolic tent cities in the Mall, but
denied the request that people be allowed to sleep there overnight (not a camping area).
Analysis: NPS could ban 24-hr vigils and tents altogether to protect the park (legitimate
interest); by allowing the protest, they arent foregoing the right to prevent sleeping, even if it
would hinder the protest. Doesnt matter if there is a less speech-restrictive alternative.
Dissent: Majority failed to examine whether the ban actually furthers the governments interest.
Notes that the ban is underinclusive it permits feigned sleep, which probably has the exact
same detrimental effect.
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IV.
SPECIAL BURDENS ON FREE SPEECH
A
FORCED ASSOCIATION
Blackletter: p 359
We have a right to associate for expressive purposes (broader than the right to assembly). Not the
same as intimate association (smaller groups).
Usually, requirements that an expressive association accept unwanted members or voters, if it
substantially interferes with the organizations ability to convey its message, would be reviewed
under strict scrutiny:
(1) Substantial burden? Compare Boy Scouts (yes, substantial burden to permit gay
scoutmasters) to Jaycees (not substantial burden to admit women as full members)
(2) compelling government interest? (ending discrimination Jaycees)
(3) narrowly tailored? See Strict Scrutiny section.
o But see Boy Scouts: neglected to apply strict scrutiny after finding that admitting
gay scoutmasters would be a substantial burden; never looked at government
interest or narrow tailoring.
Note: commercial associations may be different. See OConnor concurrence in Jaycees.
Cases:
California Democratic Party v. Jones (2000) p364
Facts: California has a partisan blanket primary where anyone can choose the partys candidate
(contrast with a non-partisan blanket primary, where voters are not choosing the partys nominee,
but are simply picking the top two favorites among all candidates).
Analysis: Huge burden on a partys associational freedom; doesnt survive strict scrutiny (not
narrowly tailored to serve a compelling state interest). Compelling interest in including non-party
members in primaries is no good they can simply join the party. Dissent p 369 questions the
courts choice of what makes democracy work by siding with autonomous parties, versus
including the entire electorate. Parties are state institutions once they go into elections.
Roberts v. Jaycees (1984) p 372
Facts: Jaycees will not admit women as full members, though they are allowed to participate in
some activities. Jaycees offers networking, business training, and political training. Violates MN
law of organizational discrimination.
Analysis: Substantial Burden on message to admit women? No (therefore, burden of strict
scrutiny does not switch to the government). The right to not associate / to choose with whom to
associate is protected, but eradicating gender discrimination is a compelling interest. Here, that
interest is furthered in the least restrictive manner possible. Jaycees only make unsupported
generalizations about how women change the message, and the court doesnt buy it.
Concur: OConnor rejects the member-message test; only question is whether the association
exists predominantly to engage in protected expression (if so, message and members are
protected). Includes activities engaged in for educational purposes (Boy Scouts). Characterizes
Jaycees as a commercial association (eee to eer, shopkeeper to customer), so can be proscribed.
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Boy Scouts v. Dale (2000) p 377

Facts: Superstar boy scout comes out in college and engages in some gay rights activism
(interviews). Boy Scouts revoked his membership in the Scouts and would not allow him to be a
scoutmaster. NJ Sup. Ct. ruled that the Boy Scouts are a public accommodation.
Analysis: Relies on Hurley. It seems indisputable that an association that seeks to transmit such
a system of values engages in expressive association. Forced inclusion of Dale would
significantly burden the orgs right to oppose or disfavor homosexual conduct b/c anti-gay
views are sincere and we must give deference to an associations view of what would impair
its expression. (conflicts with Jaycees). Also says it doesnt matter whether they tolerate dissent
in the ranks, because a gay scoutmaster sends a different message than a straight scoutmaster
who loudly disagrees.
Dissent: Stevens +3: No serious burden, and no compelled speech. Exactly like Jaycees (simply
adopted a discriminatory policy, and has no shared goal of expressing views on sexuality at all);
look to whether excluding [gay people] would impose a serious burden on their ability to engage
in protected speech or reach their basic goals. The law doesnt require them to change
ANYthing. Compare to Hurley: unlike GLIB, Dale has no intention to carry a message about
homosexuality; he is not affixed with a label that makes him forever excludable under the First
Amendment.
Rumsfeld v. FAIR (2006) p 387, facts p 206
Facts: law schools refuse to allow military recruiters; claim first amendment freedom of
expressive association.
Held: Allowing recruiters on campus is not expression; it doesnt violate association either,
because students and faculty can still protest the presence of the military, and the statute does not
make membership in the [law school] less attractive (where did they get this idea? Wouldnt
LGBT students and allies be less likely to go to a school that allowed discriminatory recruiting
practices on campus?)
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N.
SPEECH-RELATED SPENDING & CONTRIBUTIONS
Blackletter: p 445-59, 468-96
Money is not speech, but it enables speech. A restriction on money-used-for-speech is thus a
restriction on speech and must pass [heightened?] scrutiny.
Rules:
Content-based restrictions on expenditures, i.e. spending money to speak (independent of
political candidates or parties), must pass strict scrutiny. Citizens United, Bellotti.
o Includes union, corporate, non-profit and individual spending
o Political non-profits speech/money is usually considered protected even by those
who would allow restrictions on election speech by unions and corporations.
o ** Restrictions on Independent Expenditures fail strict scrutiny. Citizens United,
Buckley.
Restrictions on contributions to candidates and parties must pass heightened scrutiny.
o Government interest in avoiding corruption and the appearance of corruption
permits a $1000 cap on individual contributions (narrowly tailored)
But a later case (Randall v. Sorrell) said $400/pp was too little.
Restrictions on expenditures in coordination with a candidate is the same as a
contribution to the candidate.
Themes:
Expenditure does NOT equal contribution.
o Contributions dont have as much expressive quality
Legitimate interests:
o Level the playing field is not a legitimate interest; favors some speech more
than others.
o Preventing corruption (quid pro quo) & appearance of it is legitimate.
First Amendment values?
o Neutrality? but you always start out somewhere, and the default isnt neutral.
o Marketplace? But big voices drown others out
o Democratic process? But this distorts democracy and principle of free elections
o Self-expression? Only for the super rich; others get drowned out.
o Whatever happened to one-person, one-vote?
Cases:
Buckley v. Valeo (1976) p 446 Analysis: per curiam
Upholds law placing a cap on contributions to candidates, because it helps reduce the appearance
of corruption.
Strikes down law limiting individual expenditures; first, saying it only applies to advocating
election or defeat of a candidate (for vagueness), and then saying that the appearance of
corruption doesnt justify a limit on this particular construction, because orgs are not prevented
from campaigning a LOT to help an unnamed candidate, and there is little chance of quid pro
quo corruption.
Strikes down ceiling on campaign expenditures. Equalizing financial resources is not a legit goal.
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Strikes down ceiling on individual expenditures by candidates and their family.

Dissent: White - Agreed with upholding contribution limits; dissent as to individual
expenditures; they are the same. Campaign expenditure limits would help candidates free up time
for actual communication, and restore faith that elections arent for sale to the highest bidder.
[see also dissent in Randall v. Sorrell (2006), which equates these limits with time/place/manner
restrictions, not content-based restrictions.] Marshall dissents just as to individual expenditures,
because a restriction combats the idea that only rich candidates can enter politics.
First National Bank of Boston v. Bellotti (1978) p 459
{didnt read for class}
Citizens United v. FEC (2010) p 468
Facts: CU produced a film called Hillary that was really negative toward her campaign. BCRA
prohibited corporations (incl. non-profit advocacy corps) and unions from using general treasury
funds referring to a particular candidate within 30 days of a primary or 60 days of a general
election. There is a PAC exemption, with money limited to donations of employees,
stockholders, and union members.
Analysis: six parts, see p 468.
(1) Corporate Status: The PAC exemption does not allow corporations to speak as their own
entity, and they are burdensome to run. Speech restrictions based on the identity of the speaker
are all too often simply a means to control content.
Dissent: This is not a Ban. PACs and MCFL organizations (see p 242-43) are viable alternatives
allowing individuals associated with corporations to speak out; it doesnt apply to books or noncandidate related material (so issue advertising is safe). And we CAN distinguish between
speakers based on their identity, p 476, such as limiting campaign contributions from foreigners,
and preventing government employees from engaging in certain political activities, and
preventing corporations from voting. Some companies actually WANT limits on contributions to
avoid a shake down.
(2) Media Corps: p 482 Anti-distortion rationale would allow rich media corps to be limited.
Dissent: Media is special, and identity of the speaker does matter we can provide an
exemption.
(3) Corruption: p 483, agrees with Buckley that independent expenditures cause corruption;
Scalia notes that these rules help incumbents. Dissent p 485
(4) Original Meaning: p 489-90 Concurrence: Associational speech was okay under the
founding, and the text has no limits on which kind of speakers get rights. Dissent: Founders
hated Corps, and, other than media (freedom of the press), can be regulated.
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O.
SPEECH COMPULSIONS: DIRECT INTERFERENCE W/SPEAKERS OTHER SPEECH
Blackletter: p 496-520
Compelled speech is bad because:
(1) A speakers message can be changed by the speech it is forced to accommodate
(Rumsfeld v. FAIR; Hurley v. Irish-American GLB Group)
o Requiring a newspaper to print something will change the content because:
It now has the new content
The new content replaced something else
News may be deterred from publishing certain things if that will require
space to be made for a reply (Miami Herald)
(2) Required speech violates the freedom to choose what to say, if anything.
o Requiring a child to say the pledge (Barnette)
o Requiring display of a message on a license plate (Wooley)
(3) Requiring payments that will be used for speech may interfere with right to expressive
association (i.e. he will be associated with the speech by paying for it). Detroit Bd. Of
Ed., Keller v. State Bar.
(1) When a speech compulsion interferes with the speakers message, its presumptively
unconstitutional.
Triggered by the content of the speakers message (Miami Herald). Content-based
penalty (Turner Broadcasting) = restriction and compusion.
Interferes with coherent product (common theme or editorial voice). Hurley, Miami
Herald, Riley, maybe PG&E.
The compulsion makes the burdened party feel pressure to respond or disavow the
message. (see p 498. Less strong in precedent.)
(2) When the compulsion doesnt stop you from expressing your own views: see below.
(3) Forced contributions are unconstitutional, except: {Didnt Read This Section}
When they pass strict scrutiny (but money must be used for purposes germane to the
reason for the compulsion, and nothing more broad). Abood (union dues to prevent
strikes through collective bargaining), Keller (bar dues for attorney discipline).
To a university student government, when it will be spent in viewpoint neutral ways
To the government for the governments own speech. Explanation, p 499 - 500.
Cases:
Miami Herald v. Tornillo (1974) p 503
Facts: law required newspapers to give a right to reply to people attacked by newspapers
Held: Court strikes this down both because it forces the newspaper to use its resources for
someone elses speech, and because being forced to carry their adversaries may chill newspapers
against speaking in the first place. Not only can states not censor speech to encourage equality
(Buckley), but they cannot force people to speak.
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32
Riley v. Nat. Federation of the Blind (1988) p 505

Facts: Professional fundraisers have to disclose the percentage of the money they raise that goes
to the charity.
Held: This is a content-based regulation. State interest: ensure public is informed to prevent
fraud. But donors already realize solicitors incur costs. This law disfavors professional
fundraisers. Other, more narrowly tailored options exists: State could publish this information
itself; state could enforce its antifraud laws. It also prevents people from giving the message they
want to present.
PG&E (1986) p 508
Facts: Utility commission required utility to allow TURN, an advocates group, access to its
billing envelopes for speech purposes.
Held: Discriminates against who may access the envelopes (The order awarding access
discriminated on the basis of viewpoint in selecting speakers; two of its purposes were to provide
a greater variety of views and to assist intervenor groups to raise funds; such one-sidedness
impermissibly burdens Ps own expression). Burdens the utilitys expression, b/c forces utility to
respond or tacitly approve the speech (Because access is only awarded to those who disagree
with P, whenever P speaks on a given issue, it may be forced at anothers discretion to help
disseminate hostile views. Under these circumstances, P may conclude the safe course is
silence). Would be constitutional for California to tax utilities and use that money to send the
TURN message because that would not risk confusing it with the utilitys message or force the
utility to respond.
Turner Broadcasting (1994) p 514
Facts: P challenges statute requiring cable systems to carry local commercial and public
television stations operating in the same market as the cable system without charging a fee for
carriage.
Held: Constitutional. Viewers understand that cable companies do not send messages via their
content. They are really just conduits for messages. Unlike the access rules in Tornillo and
PG&E, the cable must-carry rules are content-neutral; they are not activated by any particular
message spoken by cable operators, exact no content-based penalty, and do not grant access to
broadcasters to counterbalance cable operators messages. Thus, cable operators will not be
required to alter their messages in response to the broadcast signals and no aspect of the rule
would lead to the conclusion that the safe course is silence. Moreover, unlike a newspaper, cable
operators exercise de facto control over access to the medium and can silence the voice of
competing speakers; the potential for abuse in this situation need not be ignored. The
requirement that govt not impede the freedom of speech does not disable it from taking steps to
ensure that private interests do not restrict the free flow of information or ideas by virtue of their
physical or market position.
[more cases over]
32
33
Hurley v. Irish-American Gay, Lesbian and Bi. Grp. (1995) p 515

Facts: GLIB P sues private organizers of traditional parade, alleging violations of state public
accommodations law based on sexual orientation. D appeals, arguing that forcing Ps admission
would violate their First Am rights of expressive association.
Held: Hurley does not need to include the group. Parades are expressive and inclusion of groups
will likely be attributed to the organizers. Since every participating unit affects the overall
message conveyed, application of the state public accommodations statute essentially required D
to alter the expressive content of its parade, having the effect of declaring Ds speech to be a
public accommodation. A private speaker does not forfeit protection simply by combining
multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive
subject matter of its speech; thus, past lack of selectivity by D alone cannot justify forcing their
acceptance of Ps presence in the parade.
33
34

P.
SPEECH COMPULSIONS: INDIRECT INTERFERENCE W/SPEAKERS OTHER

SPEECH
Blackletter: p 496 (see above)

When the speech compulsion doesnt prevent or inhibit you from expressing your own views:
Compulsion to say things, orally or written, is presumptively unconstitutional. See
Barnette, Riley, Wooley.
o Ideological statements or factual ones. Riley.
Compulsion to display things on a business property seems to be okay, under Pruneyard,
Rumsfeld v. FAIR.
Compulsions to speak incidental to regulation of conduct are okay (forcing school to send
recruitment emails in Rumsfeld)
Compulsions to say things to the government are okay (?)
o Taxes, duty to report child abuse, etc.
o Different to require disclosure than to require that utilities carry the messages of
third parties that are contrary to their own. PG&E.
PROBLEM: Mandatory job reference law
First question: is this a speech compulsion?
Right off the bat, we come to the difficulty of the fact some speech compulsions
are okay (the government may force you to declare your income).
Which cases will we turn to?
Perhaps Riley -- the state interest here could be insufficient to require compelled
speech.
But facts of Riley could be distinguished because this law requires disclosure of
naked facts and not private reasoning in employee decisions. Additionally, Riley
hinged on the availability of a less-restrictive alternative (online listing). Riley
also involves solicitation.
Perhaps PG&E -- corporations have rights too, correct? But the footnote (p. 510)
indicates that perhaps some kinds of compelled disclosure (taxes, safety
warnings) are not speech compulsions, and perhaps this sort of disclosure is the
sort that is compelled.
The government will heavily cite Rumsfeld v. FAIR. FAIR indicates that there's
nothing that forces a particular message, it's simply the fact of the speech that is
required (more like governing conduct).
Even if there's a compulsion, then it's not over. Even if it is compelled speech, it still gets
strict scrutiny. This law may survive strict scrutiny. It could have trouble on narrowly
tailored -- how do we know that the employers will actually tell the truth?
It all gets back to the purpose of the First Amendment.
If we're worried about people being the forced mouthpiece of the government, this
should not bother you. But if you're worried about the freedom of action, it might
bother you.
Recall that in Citizens United, the court upheld the disclosure of information when you
contribute (8-1, Thomas dissenting).
34
35
[cases over]
Cases:
Barnette (1943) p 522
Facts: Ps sue to enjoin enforcement of board resolution requiring recitation of the Pledge of
Allegiance on pain of expulsion as inconsistent with their religious beliefs.
Held: To sustain compulsory flag salutes is to say that the First Am protection of the right to
speak ones own mind leaves it open to public authorities to compel him to say what is not in his
mind. Struggles to coerce uniformity of sentiment for some good end have been waged by both
good and evil men; as govt pressure toward unity becomes greater, so strife becomes more bitter
as to whose unity it shall be.
Wooley v. Maynard (1977) p 525
Facts: New Hampshire requires license plates to have state motto, Live free or die. Jehovahs
witnesses objected to this compelled speech.
Held: This invades the sphere of intellect and turns cars into mobile billboards for the state.
States compelling interestsidentifiable plates and preaching states valuefail. The states
interest in disseminating its values cannot trump an individuals.
Dissent: Rehnquist - Wants to place the burden to disassociate from the states message on the
plaintiff (i.e., they would have to get a bumper sticker).
PruneYard (1980) p 527
Facts: PruneYard had a policy of not allowing expression unrelated to commercial speech. Some
students tabled in the mall.
Held: PruneYards rights were not abridged by requiring it to allow the nondisruptive tabling.
The owners purposefully opened the mall to the public. The state is not dictating a message. The
owners can disavow the message with signage (this is Rehnquists dissent in Wooley; Rehnquist
is writing for the Court here).
Concurrence: Powell, concurring, notes D failed to present evidence that passersby would
mistakenly interpret the message as expressed by the owner or that the message would be
strongly opposed by the owner, which in either case would essentially compel a response and
violate Ds right to maintain his own beliefs without public disclosure; this decision is not a
blanket approval of state efforts to transform private commercial property into public forums.
Note: Hard to reconcile PruneYard and Wooley. The best way is to look at how likely people are
to attribute the speech to the property owner.
Rumsfeld v. FAIR (2006) p 206 (part A), p 530
Held: like PruneYard because people will not attribute the militarys discriminatory policies to
the law schools.
35
36
V.
GOVERNMENT ACTING IN SPECIAL CAPACITIES
A
GOVERNMENT AS EMPLOYER
Blackletter: p 565
Government may not fire an employee based on the employees speech if:
(1) the speech was on a matter of public concern, AND
o Content, form, context
o Not just anything that might interest the public (Connick v. Myers, p 567);
suggestion that invasion of privacy is the standard
o Motive of the speaker (personal, or to inform) may matter
o Examples, p 566
(2) the speech was not said as part of his job duties (Garcetti v. Ceballos, 2006), AND
o when public employees speak within the scope of their employment, they are not
protected any more than other employees in other realms. In other words, when you are
speaking in a public capacity, you have no First Amendment rights at all.
(3) But they can fire the employee if the damage to efficiency (or potential damage)
outweighs the value of the speech to the employee and the public (Pickering balance,
see Connick)
o Interferes with close working relationships
o Disrupts the office
o Takes up work time
o Threatens eers authority
o Violates a specific work rule
The first aspect of public concern to discuss is whether this is on a SUBJECT of public
concern. ("I think the vice president is an idiot!").
In the Pickering balance, the public concern balancing test is a little different -- how
much would the public want to know?
Also applies to hiring and firing based on membership in an expressive association, unless party
membership is an appropriate requirement for effective performance, Branti.
Cases:
Pickering v. Bd. of Ed. (background)
Dismissal of a teacher for criticizing allocation of funds between athletics and education is
reversed. Such a subject is a matter of legitimate public concern about which a free and open
debate is vital to informed electoral decision-making. A balance must be struck between the
damage caused by the speech to govt operations and the value of the speech to the employee and
the public. Balancing the interests of the eee, as a citizen, in commenting upon matters of
public concern with efficiency of the public services the office performs.
[more cases over]
36
37
Connick v. Myers (1983) p 567

Facts: Asst. Dist. Atty Myers served under DA Connick; opposed to a job transfer, and
challenged Connick when he said no one else felt that way. Fired after asking questions on a
survey about office morale, feelings about the transfer policy, confidence in supervisors, and
pressure to work in political campaigns.
Held: When a public eee speaks not as a citizen upon matters of public concern but instead as
an employee upon matters of personal interest [courts are not the right forum for grievances].
Only one question was of public concern (pressure to work on political campaigns); the rest are
just gathering ammunition for more controversy with superiors. Motive matters; just because the
questions could be of interest to the public doesnt convert Myers personal interest as an
employee into a public concern. Pickering balance: even though it didnt affect Myerss work, it
upset close working relationships with others in the office.
Dissent: Context shouldnt be used to figure out if its a matter of public concern, just if it
disrupted the office. Majority seriously narrowed the realm of speech that if considered public
concern. And it deferred to much to the judgment of the DA, despite lower ct. finding that this
didnt disrupt the office at all.
Rankin v. McPherson (1987) p 575
Facts: McP is a clerk in a local police office that handles almost no criminal matters. Upon
hearing that Reagan had been shot, she commented to a coworker/BF that a lot of black people
were mad at him for cutting social services, and that if someone tried to kill him again, I hope
they get him. Overheard by another eee, and McP was fired.
Held: Not an unprotected threat, and it was a topic of public concern. Pickering: Made at
workplace, but: no disruption (no factored into firing decision), didnt discredit the office (not
made in public), no determination of character that made her unfit (e.g. bad judgment dont talk
about the president dying in a police office), low-level employee whose comments will not affect
functioning of the office. Firing decision was based on the content of the statement alone.
Dissent: Majoritys view that non-policy making eees can get away with anything (because they
arent as disruptive) is nuts; public image and esprit de corps matters, too. EEOC employees
shouldnt be lauding the propriety of race discrimination.
Garcetti v. Ceballos, 547 U.S. 410 (2006)
What if one speaks as an employee on matters of public concern? (rather than as a citizen)
This case involved a case where someone who found evidence of police wrong-doing
wrote a memo about it. He testified to this in court. He was subsequently fired. He lost
5-4 at SCOTUS.
Everyone agreed he was speaking pursuant to his official duties for the government. He
wrote the memo because he thought the government should be doing things differently.
If he doesn't have free speech rights, this would chill whistle-blowing. If he does have
free speech rights, this could encourage insubordination.
Holding: when public employees speak within the scope of their employment, they are
not protected any more than other employees in other realms. In other words, when you
are speaking in a public capacity, you have no First Amendment rights at all. Scalia
argued that the simple rule was better since it did not leave things up to judges.
Dissent (Souter): we should apply Pickering balance.
37
38
Q.
GOVERNMENT AS POSTMASTER
Content-based restrictions? Same test as government-as-sovereign (no extra authority to govern

content of things that are sent through the mail). Lamont.
Content-Neutral? Nearly unlimited authority to set rates, restrict package sizes, etc.
R.
GOVERNMENT AS LANDLORD: FORUM ANALYSIS
Blackletter: p 601
(1) Traditional Public Forum: areas traditionally available for public expression
Parks, sidewalks, etc. Not airports; really, nothing new. (ISKCON)
Apply the same tests as above; content-based or content-neutral, proscribable or not.
o strict scrutiny for content-based restrictions on protected speech
o intermediate scrutiny for content-neutral restrictions
(2) Designated Public Forum: areas opened up specifically to be forums for speech
Same scrutiny as traditional public forums and restrictions on speech. (CLS)
Only difference: can change or close the forum altogether
(3) Limited Public Forum: limited to use by certain groups or dedicated solely to discussion of
certain topics
Restrictions must exist from the get-go. If its a designated public forum, youd have to
close it completely, then re-open with new rules to make it limited.
Restrictions must be (1) Reasonable and
o Consistent with governments interest in preserving the property for the use to
which it is lawfully dedicated (Perry)
o Evidence that the speech would interfere with government activities (Id.) More
than rational basis.
o If the speech (by plaintiffs and others similarly situated) would interfere with
states interest (ISKCON)
(2) Viewpoint-neutral.
o Can be Content-based (bans on profanity, complete ban on political advertising)
as long as it doesnt restrict some viewpoints while leaving others unrestricted.
(4) Non-Public Forum: all other government property that isnt used by the government itself to
speak.
Reasonable and Viewpoint Neutral
(5) Not a forum at all: avenues for government speech specifically.
Government is speaking, e.g. Government-owned TV channel, bulletin board, etc.
Can regulate entirely, incl. viewpoint-based restrictions.
38
39
[cases over]
Cases:
ISKCON v. Lee (1992) p 603
See chart p 604
Facts: NY Port Authority adopted regulations that prohibited distributing literature and soliciting
funds in the airport.
Issue: (1) Is an airport a traditional public forum? 5-4 non-public (2) Is the leafletting restriction
constitutional? 5-4 unconstitutional (3) Is the ban on solicitation for immediate payment
constitutional? 6-3 constitutional
Rehnquist +4: (1) Airports are not traditional public fora (streets and parks . . . have
immemorially been held in trust for the use of the public and, time out of mind, have been used
for purposes of assembly, communicating thoughts between citizens, and discussing public
questions). Government can regulate airports as non-public Forum. Implies no new public fora,
except by designation. (2) non-public = reasonableness test; 4/5 say reasonable to ban leafletting;
5/5 say reasonable to ban solicitation.
Kennedy +3: (1) compatibility test: p 608 traditional public forum wherever expressive activity
is appropriate and compatible with the physical characteristics of the property and the actual
public access and uses permitted by the government.
Pleasant Grove City v. Summum (2009) (not read in book)
Involved group that wanted to post 7 aphorisms marker in a public park that also contained the
10 Commandments. The Court upheld the denial: There is no right to put up a permanent
monument; the forum analyses only apply to temporary speech. Once something is left behind
and the government allows it to stay there, then it is essentially government speech. But,
viewpoint neutrality is still required.
39
40

S.
GOVERNMENT AS SUBSIDIZER/SPEAKER
Blackletter: p 614
See flowchart, p 616.
Government Speech: When the government is the speaker, it can say whatever it wants (except
for Establishment/Free Exercise problems), even if not viewpoint-neutral. The government may
pay private parties to convey its message. Rust v. Sullivan.
It can require that its payment be used only for the intended speech, even if the restriction
is viewpoint-based.
Limited to situations where the program is genuinely designed to promote a
governmental message (programmatic message in Rust, as opposed to just facilitating
private speech, as in LSC v. Velasquez)
Fungibility: Government cannot control the message of an organization by giving it partial
funding. It can only control how government money is spent (not funds from other sources);
however, it can make administrative demands to avoid the fungibility problem. League of
Women Voters.
First, have to decide whether its government speaking through an organization
Then, decide if government is attempting to take over the message of the org (compelled
speech?)
Government encouraging diversity: The government cannot impose viewpoint-based
restrictions when it creates a program to encourage private speech by subsidizing speech in
general or indiscriminately encourages a diversity of views from private speakers. This is
considered a designated (or non-) public forum, so viewpoint neutrality is required.
Compare NEA v. Finley (govt speech); Rust (govt speech); with Rosenberger v. Rector
(diversity of views), LSC v. Velasquez (diversity).
If government is allocating a scarce resource of the basis of quality, it can discriminate
on the basis of decency and respect and public interest, but not invidious viewpoint
discrimination, such as suppressing dangerous ideas. Finley.
Cases:
Regan v. Taxation with Representation (1983) p 616
Congress may decline to subsidize lobbying activities, even though it gives subsidies to 501(c)
(3) orgs and veterans groups that do lobbying. While the government may not deny a benefit to
a person because he exercises a constitutional right, this court has never held that Congress
must grant a benefit to a person who wished to exercise a constitutional right.
[more cases over]
40
41
FCC v. League of Women Voters (1984) p 619

Facts: LWV challenges statute forbidding editorializing on noncommercial PBS stations which
receive govt grants.
Held: Congress may refuse to subsidize speech activities by prohibiting use of govt funds to
support them; however, govt may not condition receipt of funds on abstaining from such conduct
when funded from non-govt sources. Grant recipients must be permitted to segregate private
funds for use in non-subsidized activities or the govt must permit use of the funds.
Rehnquist, dissenting, argues any condition is permissible where it is rationally related to
congressional purpose and is not aimed at suppressing dangerous ideas.
Stevens, dissenting, argues legislators are seeking to prevent entrenchment by their fellows by
unlinking funding decisions from editorial positions.
Rust v. Sullivan (1991) p 620
Facts: Title X of the Public Health Service Act of 1970 provides federal funds for family
planning services but limit funds to support of preventive family planning services; the
regulations prohibit recipients from counseling or referring for abortions (even upon request),
engagement in activities that encourage, promote or advocate abortion, including lobbying and
litigation, and require physical and financial separation from abortion activities. Recipients were
required to refer pregnant patients for prenatal care, though.
Held: Restriction constitutional because the government is paying others to speak for it. (The
govt may selectively fund activities in finds in the public interest without funding an alternative
which addresses the problem in a different way; this is not viewpoint discrimination but merely
choosing to fund one activity to the exclusion of another. Failure to subsidize the exercise of a
fundamental right does not infringe the right, and a refusal to fund cannot be equated with the
imposition of a penalty on the activity. The regulations at issue do not suppress a dangerous idea,
but prohibit grantees from engaging in activities outside the funded programs scope. Even if it
were a public forum, the doctor-patient relationship is not so encompassing as to raise the
expectation of comprehensive medical advice, and silence on abortion cannot reasonably be
thought to mislead a client into thinking the doctor considers it an inappropriate option.)
Dissent: argues this is simply content- and viewpoint-based discrimination, as is evidenced by
the failure to restrict anti-abortion activities.
Strong argument that this case is results oriented. Two members of the Rust majority
voted incompatably in Velasquez, saying that government cant limit the speech of
lawyers it hires.
Rosenberger: Rust is a case of government subsidizing its own speech, rather than
government creating a designated public forum. (in Rust, government was appointing the
clinic personnel as its agent. May limit the speech of their own agent (non-public
forum)).
Some thought that Rust should have been decided on the grounds that the regulations were an
impermissible interpretation of the statute (since the statute does not actually speak about events
post-conception)
Rosenberger v. Rector (1995) p 625

Facts: UVA pays the printing costs of student newspapers, so long as they did not promote or
manifest a belief in or about a deity or an ultimate reality. Refuses to fund Wide-Awake.
41
42
Held: This is a generally available subsidy for private speech, which actually created a limited
public forum. The govt may not exclude speech where its distinction is not reasonable in light of
the purpose served by the forum, nor may it discriminate against speech on the basis of
viewpoint. Because religion is not excluded as a subject matter, but rather as an editorial basis,
this restriction is viewpoint discrimination, rather than a general content discrimination.
Dissent: Not banning an editorial viewpoint, just a subject matter. Viewpoint discrimination is
distinguished by govt taking sides in public debate; the regulation is qualified so as to apply only
to those engaged in promoting or opposing religious conversion or observances as such, not to
those who discuss issues in general from a religious viewpoint. To call this viewpoint
discrimination erases the boundary between it and content discrimination.
NEA v. Finley (1998) p 628
Facts: Artist Ps sue NEA to challenge grant award process which takes into consideration
professional excellence, artistic merit, and general standards of decency and respect for diverse
American beliefs and values. NEA seeks to implement these by ensuring members of advisory
panels represent geographic, ethnic and aesthetic diversity.
Held: Artistic Excellence = content-based, not viewpoint. Because the criteria of decency and
respect for American values and beliefs are susceptible of multiple interpretations, they are
unlikely to preclude or punish the expression of particular views; the criteria are not sufficiently
subjective to allow viewpoint discrimination any more than artistic excellence itself is. It is the
competitive process itself which distinguishes this case from Rosenberger; the govt is not
indiscriminately encouraging a diversity of views from private speakers.
Concur: Scalia: this is plainly viewpoint discrimination, but even so it does not abridge the
freedom of speech; it merely deprives them of govt funding but does not constrain them from
creating their art.
Dissent: Souter: the principle that govt may not restrict expression because of its message applies
equally to affirmative suppression and disqualification for govt favors
Legal Services Corporation v. Velasquez (2001) p 637
Facts: Congress restricts LSC grantee funding to prohibit disbursement to any organization that
represents clients in an effort to reform a federal or state welfare system, whether funded through
LSC grants or otherwise.
Held: Unlike Rust, this is not direct govt speech; instead, like Rosenberger, this program is
designed to facilitate private speech on behalf of private clients. Legal advice and advocacy for
private clients is not govt speech even under a generous understanding. In this context, there is
no programmatic message as there was in Rust which suffices to justify the specification of the
advice necessary to achieve the programs objectives.
Dissent: Scalia (4 votes): Government funding conditions are invalid only if coercive or if the
program is intended to create a limited public forum. Theres no public forum here because its a
limited spending program, and because it's not designed to create a diversity of views.
Seems to squarely conflict with Rust, unless you think providing family planning services
is government speaking. Are lawyers special?
following attorney recusal pursuant to the statute, the client is unlikely to find other
counsel. This also distinguishes the case from Rust; there, patients were not required to
forgo govt-funded advice when they sought abortion counseling through other channels.
42
43
[more cases over]

Christian Legal Society v. Martinez (2010) p 643
Facts: CLS treats unrepentant homosexual conduct as a sin, and insisted that those who would
rise to leadership in its ranks had to embrace that view. Hastings law school officials would not
give it access to the special benefits that go with being an officially recognized student
organization because this violated a professed (and stipulated-to) all-comers policy.
Held: Limited Public Forum, so must be reasonable and viewpoint neutral. Hastings may limit
access to groups with an open-membership (and open-leadership) policy, to foster nondiscrimination and more varied social education (this is the limited part of the forum).
Dissent: Not an all-comers policy; and under a non-discrimination policy, CLS should be able to
discriminate based on belief and conduct. Likened to Dale.
Concur response to Dissent: Stevens the nondiscrimination policy is fine, too! It prohibits
subsidized groups from discriminating on the basis of several characteristics, including religion,
which is viewpoint neutral. Disparate impact on religious groups doesnt make it viewpointbased. In a limited public forum, this limitation is reasonable. A free society must tolerate
[discriminatory] groups. It need not subsidize them, give them its official imprimatur, or grant
them equal access to law school facilities.
43
44
VI.
RELIGION CLAUSES
Blackletter: p 721 (overview)

Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof.
o It doesnt say a religion; it doesnt say religion or the rights of conscience (as
Madison wanted); it doesnt refer to promoting one sect over another
Not clear what to make of these; looking at alternatives could show that
the drafters rejected the alternative ideas, or that they thought the
alternative ideas were included in the final text.
o Does it matter what the Founders believed? (Many were Deists)
Consider Madisons Remonstrance (pg. 975), which stakes out positions
on many of the questions that were still grappling with.
o Free Exercise Clause is very much about an individual's exercise of religion -that's very resonant of Protestant Christianity. The FE Clause fits less well to
some other faiths that do not emphasize the individual to the same extent.
Principles of the Religion Clauses:
Requirement that the government disregard religion:
o Nondiscrimination principle
No discrimination against religious people or practices (Free Exercise;
Lukumi, McDaniel)
But see Locke v. Davey; Even-Handed Funding issues.
No discrimination among religions (Establishment; Larson)
No discrimination against the irreligious (Free Exercise / Establishment;
Torcaso)
o No Endorsement principle (Establishment; Non-Discrimination Extended)
o No Primary Religious Purpose Principle (Establishment)
o No Coercion Principle (Establishment)
o No Religious Decisions (cant decide if a religion is true)
The debate about excluding religion
o Facially evenhanded funding programs
The debate about accommodating religion
o Constitutionally compelled exemptions (Sherman, Yoder versus Smith)
What is religion and religious belief?
o Conscience? Madisons Remonstrance; Welsh v. United States; Seeger.
But see Gillete; cant be opposed to only a particular war and claim
conscientious objector status.
o Sincerity? Boo Hoos case,
But our ideas about what is believable or reasonable color our judgment
of sincerity. See Jacksons opinion in United States v. Ballard, p. 905.
44
45

o Centrality of a belief? sometimes matters (Wisconsin v. Yoder). The trouble with
this -- and the reason that the Court has not addressed this often -- is that it is hard
to determine what is central to a particular religion, particularly if one has one's
own version of a religion.
Tension between the Clauses:

o When does accommodation of free exercise become an Establishment violation?
E.g., we now grant tax exemptions for religious donations, but this was not
the case under President Ulysses S. Grant
But, we also generally dont allow new 10 Commandments monuments on
government property
o The breadth or narrowness of one clause does not necessarily imply the breadth or
narrowness of the other
Rehnquist interprets both narrowlythis provides the play in the joints
in Locke v. Davey (2004)
Government may promote religion without violating
Establishment, and it may do things that incidentally restrict
religion without violating Free Exercise.
Souter, in contrast, interprets both broadly
45
46

A
FREE EXERCISE
1
Non-Discrimination Principle (Free Exercise)
Blackletter: p 727
No discrimination against religious people. McDaniel, p 730, striking down ban on

priests serving as public officials.
No discrimination against religious conduct. Lukumi, p 735. i.e. You can ban a whole
swath of activities (generally applicable), but cant ban only the religiously-motivated
portion of those activities.
o Funding is different; government may be required to exclude religious institutions
or uses from funding to avoid an Establishment Problem, Everson p 913, and is
usually allowed to exclude such uses, Locke v. Davey, p 745. See below, page 59.
Strict scrutiny (compelling interest, narrow tailoring) applies to statutes that intentionally
or facially discriminate against religion.
o Does not apply to generally applicable, facially neutral laws that happen to burden
one group more than others. Empl. Div. v. Smith, p 1030; RFRA.
o Compelling interest?
No cases on point all struck down for narrow tailoring (Lukumi, Larson,
McDaniel)
Religious accommodation cases apply a weaker form of scrutiny, p 995
Free Speech cases apply tough strict scrutiny, p 260
o Narrow tailoring? Must satisfy all four:
(1) Advancement of the interest
(2) No overinclusiveness
No discriminating except when necessary to compelling interest
(3) Least Restrictive Alternative
Is there an alternative program to reach the governments interest
that would burden religion less?
(4) No underinclusiveness
Applies equally to other dangers to the government interest
Church of the Lukumi Babalu Aye v. City of Hialeah (1993) p735

Facts: Hialeah is very upset about Santeria church in the city, esp. Animal Sacrifice. Creates
three facially-neutral laws designed to stamp out only religiously-motivated animal killing.
Held: Kennedy: "religious gerrymander" is not permitted under free exercise clause. Interest in
public safety? underinclusive: Santeria sacrifice would be illegal even in a licensed
slaughterhouse.
Concur: Scalia: nonneutrality (facially targeting a religion) and non-general applicability
(targeting a religion by design or enforcement) overlap. Blackmun & O'Connor.
[more cases over]

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47
Locke v. Davey (2004) p 745

Facts: Washington state Promise scholarship program excluded devotional religion degrees.
Exclusion challenged under Establishment and Free Exercise grounds, citing Lukumi = nonneutral, and fails strict scrutiny.
Held: Rehnquist: "Play in the Joints" Principle. Chooses "no benefits" as the baseline, and says
that this doesn't stop or compel anyone from practicing religion; government has simply decided
to fund a distinct category of instruction. Cites Madisons Remonstrance; special prohibition on
taxes funding religion. Rejects Rosenberger public forum argument.
Dissent: Scalia: Cites Witters (p931). When benefits become generally applicable, that is the
baseline. Law is facially non-neutral, therefore needs to pass strict scrutiny -- Formal neutrality is
key. Cites Everson - Can't deny benefits to (non-)religious people. Slippery slope, p 751.
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48

1. Compelled Exemptions & RFRA
Readings: 995-1025, 1028-1043, 1046-1057

Statutory Exemptions or Constitutional (compelled) Exemptions?
1940: hints that we might be moving toward a compelled exemptions model (Prince); but
see Chaplinksy. No exemptions granted except under religious speech.
1963 1990: Sherbert and Yoder strict (but not so strict) scrutiny applied to
government actions that burden religious exercise.
1990: Employment Division v. Smith rejected exemptions for religious exercise from
neutral, generally applicable laws.
1993, RFRA passes, to restore Sherbert strict scrutiny test. May have added teeth to it.
o RFRA only applies to Federal laws. Congress cant impose its standards on laws
created by others; these must be judged by Constitutional standards (Smith).
o Several states have RFRAs or the state constitution requires strict scrutiny. p.997
2001, RLUIPA passes, applies strict scrutiny to state and local decisions about land use
(Commerce power) and inmates in institutions receiving federal funds (Spending power)
Today, under Smith, the Free Exercise clause does not compel exemptions except in a few
specific situations:
RFRA (federal laws) & RLUIPA (specific state & local laws)
o Strict Scrutiny: strict in theory, feeble in fact under Sherbert/Yoder regime: If a
generally applicable law substantially burdens religious activity (courts usually
dont inquire into this), an exemption is required unless:
(1) Denying the exemption is the least restrictive means of serving
Denying the exemption is necessary to serve the interest. Would
this exemption for this person (and those similarly situated) really
undermine the broader government interest?
o Sherbert (no), Yoder (no), Gillette (yes), Lee (yes), Bob
Jones (yes).
o Scalia looks broadly at purpose of the program (as did the
court in Lee)Brennan focuses on this exemption
o Perversely, the smaller the group the less compelling the
government interest in restricting it. This might allow more
exceptions for the smaller religions than for the big ones.
(2) a compelling government interest.
Fair system of military drafts, Gillette
Sound tax system without myriad exceptions, Lee
Eradicating race discrimination in education, Bob Jones Univ.
Protecting children from possible harms of child labor, Prince
Not Compelling: requiring 2 more years of school so children are
better equipped to decide whether to follow their parents. Yoder.
Usually no discussion of underinclusivity (p 1002)
Hybrid Rights claims under Smith
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49
Individualized Exemption exception to Smith

o If the state already has a case-by-case system to determine exemptions
Prince v. Massachusetts (1944) p 1003

Facts: Jehovah's Witness mother allows children to distribute publications for a donation, a
required part of religious practice; convicted for child labor. Challenges under Free Exercise and
Parental right (due process)
Held: Rutledge: Legislatures can curtail a parent's rights and can limit the rights of children more
than adults. State is ok to restrict child labor, even if religious, b/c parents cannot freely "make
martyrs of their children"
Dissent: would apply a grave and immediate danger standard, not reasonableness of the child
labor laws generally.
Note: cited favorably under the Sherbert regime. Child labor = compelling interest?
Sherbert v. Verner (1963) p 1007
Facts: SC woman gets fired for observing Saturday sabbath, then refuses to accept work on
Saturday; applies for unemployment benefits and is denied because she "failed, without good
cause" to accept suitable work.
Held: Brennan: Pressure to forego religion to get a job, or follow religion and forego benefits.
Rejects the "baseline" argument that benefits are a privilege, not a right. Applies scrutiny, and
finds that concerns about feigning religion to get unemployment are suspect. Also, the system is
all case-by-case and rife with exemptions. Holding: must give her the benefits.
Concur: Stewart: Thinks that giving her benefits violates Everson and Engel (giving money to
aid religion = unconstitutional) but does not like that way of construing Est. Clause, so concurs.
Dissent: Harlan: Singling out religious believers for a benefit is not compelled by the constitution
(violates no-funding). However, Establishment shouldn't prevent states from granting these
exemptions - just not compelled. Also, why not include non-productive members of society?
Gillette v. United States (1971) p 1010
Facts: Gillete refused to register for the draft for Vietnam based on opposition to unjust war, but
not wars of national defense or UN peacekeeping efforts.
Held: Marshall: "Sincerity is a concept that can bear only so much adjudicative weight." Limits
Welsh v. US in support of unity; limiting conscientious objector status to those opposed to all
war (versus just a particular war) is neutral and justified by the govt's interest.
Note: Notable for placing some limits on the meaning of religion by limiting the power of
sincerity in determining outcomes. Example of strict scrutiny that is feeble in fact.
Wisconsin v. Yoder (1972) p 1013
Facts: Amish parents want to take their children out of school after middle school (2 fewer years
of education); challenged under due process and free exercise
Held: Burger: lots of emphasis on the success of the Amish in educating law-abiding, selfsufficient citizens. Also distinguishes personal & philosophical reasons from religious ones.
Burden on Amish is huge, and interest of state in the last 1-2 yrs of school for Amish students is
not compelling. Amish education seen as equivalently useful in preparing for life in the
community as an adult. Rejects Prince v. MA argument about rights of child to an education.
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Concur: White: Concurs because the state hasn't proven in this case that children who leave
school in 8th grade will be educationally unprepared if they leave the faith to do something else.
Yoder, contd: Dissent: Douglas: dissenting in part. Disagrees with majority that children are not
harmed when their parents pull them out of school, especially when the child does not want to
leave school. Also notes that the record of "law and order" among the Amish is irrelevant, and
that restricting this to "religions" that are well-established is a problem.
Note: Should exemptions be so fact-dependent?
U.S. v. Lee (1982) p 1021, 1042
Facts: Amish farmer sues under Free Exercise to block the collection of SS taxes, because he
feels a duty to help people already anyway.
Held: Burger: Avoids deciding whether it violates his religion and assumes that it is a burden on
free exercise, but NOT unconstitutional. Government interest in mandatory participation is great,
and it would be difficult to govern if there are too many tax exemptions for this and other
religious people.
Concur: Stevens (see also p 1042): [dissenting from the reasoning] the Government's interest in
rejecting this claim is small and more than offset by removing SS benefits to Amish who refuse
to pay; also rejects the slippery slope argument, b/c Amish are unique in that they supply the
thing they are opposed to (social services here, education in Yoder).
Bob Jones Univ. v. United States (1983) p 1024
Facts: Bob Jones Univ. punishes students who engage in interracial dating or marriage.
Challenged denial of tax exemptions on Establishment and Free Exercise.
Held: Burger: Free Exercise claim fails because the government's interest in ending race
discrimination in education is compelling and in direct conflict here, and no alternative exists.
Employment Div. v. Smith (1990) p 1030
Facts: Unemployment benefits denied to members of Native American Church who were fired
for peyote use; denial challenged on Free Exercise grounds (even though OR Sup Ct. ruled that
religious use of peyote couldn't be criminalized).
Held: Scalia: Cannot bring a free exercise challenge to a truly neutral and generally applicable
law. Leaves open Lukumi-type challenges (where a system of exemptions make a law not
actually "generally applicable"), Sherbert-type challenges (where there are already individual
exemptions in place), freedom of association and free speech (Boy Scouts v. Dale), the
ministerial exception, Establishment claims, and possibly "hybrid rights" cases.
Concur: O'Connor: First Am. doesn't divide belief and conduct, so laws regulating conduct can
invoke the First Amendment, too. Would apply strict scrutiny, though not question whether the
"centrality" of the conduct to the claimant's religion focus instead on whether the government
has a compelling interest and whether an exemption would undermine that interest.
Dissent: Blackmun: Don't look at government's interest in fighting drugs, but rather, in denying
an exemption to these people. No proof that anyone has been harmed by religious use of peyote,
and no proof that they would have enforced this. Compares to Yoder - this church actually
furthers the state's interest in preventing drug abuse.
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[more cases over]

Thomas v. Review Bd. (1981) p 1040
Facts: unemployment compensation claim similar to Sherbert
Dissent: Rehnquist (early supporter of a Smith-like approach)
RFRA (1993) p 1048
RLUIPA (2000) p 1050
Gonzales v. O Centro (2006) p 1052
Facts: Government attempts to impose drug laws on a church that imports a plant from Brazil for
use in a sacramental beverage.
Held: There is already an exception for religious use of peyote, and this undercuts the
government's argument about a uniform, categorical approach.
o
In a sense, Congress has told court to create exceptions to this categorical
law in RFRA.
o
This is not abnormal: the government gives exceptions to tax revenues
even while it has a compelling interest in collecting taxes.
o
The burden for the government is to show why the previous exceptions are
not the same as the new, claimed one. Here, the trouble was that the group
seemed very similar to those claiming a peyote exception.
There is always a risk that a judge will find a nascent religion implausible.
If the court allows exceptions for unpopular, astringent drugs (peyote), then is this
a slippery slope toward allowing drugs that are more popular and palatable?
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T.
ESTABLISHMENT CLAUSE
Justice Black, Everson, p 913: The establishment of religion means at least this:
Neither a state not the Federal Government can set up a church.
Neither can pass laws which aid one religion, aid all religions, or prefer one religion over
another.
Neither can force nor influence a person to go to or to remain away from church against
his will or force him to profess a belief or disbelief in any religion.
No person can be punished for entertaining or professing religious belies, for church
attendance or non-attendance.
No tax in any amount . . . can be levied to support any religious activities or institutions
Views of Establishment
Wall of separation view: as much as possible, government and religion should be
separated.
Neutrality view/endorsement view: The government should be neutral between
religions and between religion and secular viewpoints. Religious language is permissible
in government as long as "reasonably informed observer" feels there is no partiality.
o This approach allows for some flexibility
Accommodation view/coercion test: no coercing religious participation allowed. As
long as coercion or direct funds to religious organizations are not involved, then the
activity is permissible.
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1
Non-Discrimination Principle (Establishment)
Blackletter: p 756 (between religions), 763 (against irreligious)

Establishment limits government even when its not discriminating against religion:
cannot prefer particular religious affiliations over others (Larson; Thornton)
or discriminate against idiosyncratic beliefs (Thomas v. Review Bd.),
or prefer religion over non-religion (Welsh; Torcaso, p 765).
o Possible exception for few remaining exemptions to generally applicable laws
after Smith (Yoder-type exemptions might be limited to religious groups).
But see Texas Monthly (p 778) and Thornton v. Caldor (p 771) striking
down exemptions for being limited to the religious.
See also Non-Discrimination Principle (Free Exercise), page 46.
Larson (1982) p 757 {Didnt Read This} Held: Fifty Percent rule, exempting only religious
organizations with 50%+ income coming from donations from onerous reporting requirements, is
unconstitutional.
Torcaso (1961) p 765 {Didnt read this}MD cannot deny a notary public his position for refusing
to affirm belief in existence of God.
Welsh (1970) p 767 [& Seeger] Sincerity Test
Facts: Non-monotheistic draftees attempt to get out of the draft on conscientious objection
grounds; the regulation only gives CO status to people whose objection is religious (not moral,
ethical, or personal)
Black (plurality): Defines "religion" broadly as anything that holds the place of God in a
traditionally religious person, incl. sincerely held moral and ethical beliefs. Excludes non-sincere
beliefs and those whose objection is purely pragmatism, expediency, or policy.
Harlan: neutrality required between religious, non-theistic religious, and non-religious people.
Instead, focus on intensity of moral conviction.
White: No Endorsement problem here. The religious exemption is not for a religious purpose and
does not have the effect of furthering religion, but is to disqualify people unprepared to fight. It's
ok to exempt religious believers.
Thornton v. Caldor (1985) p 771

Facts: Religious observer invokes CT law requiring that employers give Sabbath-observers any
day off that they desire, with no exceptions for burden on other workers or jobs that require a MF week.
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Burger: "Unyielding weighting in favor of Sabbath observers over all other interests contravenes
a fundamental principle [that] no one [has] the right to insist that in pursuit of their own interests
others must conform their conduct to his own religious necessities. Lemon Primary Effect of
advancing a particular religious practice.
O'Connor: Endorsement of Sabbath observance to the detriment of others. Differentiates the
religious accommodation principles of Title VII, which requires religious non-discrimination
except when it causes undue hardship for an employer. Reasonable v. Absolute accommodation.
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3.
Non-Discrimination Extended (No Endorsement Principle)
Blackletter: p 788
Government generally may not engage in speech endorsing or disapproving of a particular faith
or of religion generally. Cant make adherence to a religion relevant in any way to a persons
standing in the political community. Cnty of Allegheny v. ACLU, 492 U.S. 573, 594 (1989);
Engel.
Exception: non-sectarian and deeply ingrained in US History (leg prayer). Marsh.
Twist: Breyers Van Orden controlling concurrence -- When endorsement is on the
borderline, the speech may be upheld if removing it seems likely to create more
religiously based divisiveness than keeping it would.
Whether government speech endorses or disapproves of religion is from the perspective
of a reasonable observer, aware of context and history. Not endorsements:
o Holiday displays with some religious elements, Allegheny.
o Museum setting negates message of endorsement. OConnor, Allegheny.
o Religious City names (Santa Fe) no longer communicate a religious message
o Ceremonial Deism: Motto In God We Trust, Pledge one nation, under God
no longer communicate a truly religious message. Emphasis on non-sectarian
nature of historical references to religion, see Allegheny.
o In K-12 schools, religious symbols may be more problematic. Stone v. Graham.
Religious speech in Public Places?
o Preferential access for religion = unconstitutional. Allegheny, Santa Fe Indep.
o Equal access is required under Free Speech, but may need to indicate that
religious speech is not endorsed by the government. Government as Landlord, 38.
Cases:
Engel v. Vitale (1962) p790
Facts: local ordinance required schools to lead prayers which students were allowed to, but not
required to join.
Analysis: Union of government and religion tends to destroy government and degrade religion,
says the Court. Tries to distinguish (unconvincingly, I think) other types of ceremonial deism
(Pledge, songs that mention God). School is special, perhaps?
Dissent: Doesnt see the difference between this and all other types of ceremonial deism and
non-coercive speech recognizing God.
Marsh v. Chambers (1983) p 797
Facts: legislative prayer
Analysis: heavy focus on history of leg. prayer and reliance on it as proof of what the Founders
meant by the Establishment Clause. Also seems to matter that these are adults (compare to Lee v.
Weisman)
[more cases over]

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Ten Commandments Cases: p 813 (see chart) (see also purpose in McCreary, p 873, below)
McCreary Cnty v. ACLU (2005):
Facts: three displays over time, decreasingly religious in appearance
Van Orden v. Perry (2005):
Facts: Ten Commandments on TX capitol grounds for 40 years
Endorsement Test: Breyer (uphold) p 814; Souter (dissent) p 816; Stevens (dissent) p
819.
Original Meaning: p 820: 14th amendment was not intended to be incorporated against
the states, and even if it is, it wasnt intended to block endorsement of judeo-christian
monotheism.
o Thomas: p 827: only actual coercion violates Establishment
Rehnquists Tradition Approach: p 835: Marsh v. Chambers tradition = ok
Divisiveness Approach: p 840: Breyer (swing vote) risk of divisiveness of the government
speech (or removal of the speech) should be the touchstone.
Purpose Approach: p 873 (see below)
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4.
No Primary Religious Purpose Principle
Blackletter: p 860
First prong of the Lemon test: The government may not do things for which the primary/preeminent purpose is religious. Stone v. Graham.
Religious Purpose examples
o Ban on teaching evolution (Epperson v. Arkansas); requirement to teach creation
science alongside evolution in Edwards v. Aguillard.
o Requirement that Ten Commandments be posted in a classroom (Stone v.
Graham) or courthouse (McCreary).
o Moment of silence in public school specifically to promote prayer (Wallace v.
Jaffree)
o High School authorization of election for student-led prayer at football games
(Santa Fe Indep. School Dist. v. Doe)
Limitations / Exceptions
o Secular Laws: Religious reasons for implementing law on a secular topic (civil
rights, abortion, polygamy, slavery, etc.) is not a religious purpose or an antireligious one. The Establishment Clause does not ban federal or state regulation
of conduct whose reason or effect merely happens to coincide or harmonize with
the tenets of some or all religions. McGowan v. MD; Bob Jones Univ. (not a
violation to prefer non-discriminatory religions over others).
o Accommodation: Accommodating religious observers by exempting them from
generally applicable laws is a permissible purpose (Amos, p 773), as long as the
lawmaker is neutral and doesnt act to promote a particular religious viewpoint.
Edwards v. Aguillard (1987) p 862
Facts: Lousiana mandates balanced teaching of evolution and creation science
Analysis: Purported purpose is to increase academic freedom or teach all the evidence. The law
doesnt require teaching of evolution or creation science; it just requires that both be taught if
one is brought up. It doesnt grant new authority to teachers to teach wide topics of their
choosing. Prefers creationism to evolution (requires development of teaching guides; resource
services provided; protections for creation scientists but not evolution teachers or people who
refuse to teach creationism). True purpose: to advance a religious belief by discrediting evolution
by counterbalancing its teaching with creationism.
Dissent: Rejects the Lemon Purpose test as unprincipled. The question should be limited to
whether their purpose was sincere (they really thought that the one-sided teaching of evolution
was an Establishment Clause violation because it was preferring secular humanism). Also, how
many of the votes must be for an impermissible intent?
[more cases over]
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McCreary Cnty v. ACLU (2005) p 873 (endorsement, p 813, above)

Facts: gold-framed copies of the King James version of the Ten Commandments hung in
courthouses by an order of the county legislature in a very high traffic area. Once challenged,
replaced by an even more overtly Christian display; then, after an injunction, replaced with a
more balanced display of the Foundations of American Law, the purpose for which (seemed to
be solely) to erect a constitutional ten commandments display.
Analysis: Souter - decided almost entirely on purpose grounds. Apparent purpose is what matters,
not secret purpose; its whether an objective observer would think that the government is taking
sides and promoting a particular faith. Implausible to think that the legislators purpose changed
between the 2nd and 3rd displays.
Dissent: (4 votes) Scalia should abandon Purpose prong; also, an objective observer who
walked down the hall for the third exhibit would see nothing wrong with it!
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5.
No Coercion Principle
Blackletter: p 888
Government may not coerce people to participate in religious activities.
Coercion?
o Psychological pressure can be enough. Lee v. Weisman (to attend graduation and
stay silent during a prayer); Santa Fe (to attend a football game and listen to
government-sponsored prayers).
o If people cant tell that youre not participating, you are (Lee v. Weisman)
o Particularly strong in public schools (Lee; Santa Fe)
Religious Activities?
o Standing or remaining silent during prayer = expression of participation. Lee.
o But see Lee dissent: listening is not coercive, and tolerance isnt participation.
This rule is usually swallowed by the rules prohibiting preference for religion or endorsement.
I. Analysis: multi-prong, checkbox test
a. Is there coercion?
b. Is there participation?
c. Is it religious?
d. Is there a Marsh v. Chambers exception?
Cases:
Lee v. Weisman (1992) p 891
Facts: School district invites a rabbi to give a non-sectarian invocation and benediction at the
graduation ceremony of a middle school. Father & daughter sue to prevent it from happening at
her high school graduation, too. Graduation attendance wasnt actually obligatory, and students
could choose to sit during the prayers.
Majority: (5 votes) Kennedy: Court focuses on the coercive aspect of forcing students to either
participate in the prayer by standing and acknowledging the prayer, thus giving the false
impression of assent, or the sit and remain silent, thus subjecting themselves to peer ridicule.
Distinguishes from Marsh, b/c those were adults that were free to move about and leave during
the prayer with no comment. School is special.
Concurrence Souter (3 votes): this conveys a message of endorsement to students.
Dissent Scalia (4 votes): Should look to history; this wrecks a long-standing tradition. Calling
this coercion oversteps the bound of judicial restraint and makes the amateur psychologists:
standing is more likely respect than adherence, and the false appearance of adherence is less
weighty than respect for religion. Barnette didnt make the pledge unconstitutional; just the
required recitation of it. Would define coercion as acts backed by threat of penalty: Speech is
not coercive; the listener may do as he likes.
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6.
Compelled Exclusions: Facially Even-Handed Funding Programs
Blackletter: p 911
May religious institutions receive financial subsidies from taxpayer money without violating the
Establishment Clause? Establishment has been construed to mean no government financial
support for religion
Government cant give subsidies just to religious institutions (TX Monthly, p 781)
o Reasonable accommodation through exemptions from generally applicable laws
are okay, though (Compare Corp. of the Presiding Bishop v. Amos, hiring only
religious people, p 773; to Thornton, p 771, giving blanket exemptions to Sabbath
observers)
But excluding religious institutions from even-handed funding programs might violate the
non-discrimination principle.
Ask: What is the Lemon primary effect? Entanglement?
o Some types of financial support that have been deemed constitutional:
Indirect funding: paying for transportation and safety that applies neutrally
to all students, including students going to religious schools, is not an
Establishment Violation. Everson.
But the state is not compelled to include religious schools, Locke v.
Davey.
Secular textbooks
GI Bill, which can be used anywhere, incl. religious colleges
Non-profit tax exemptions
Mysterious legal distinction between exemptions and subsidies
(direct or indirect aid)
o Even-handed Private Choice funding programs
Private individuals route the funds to institutions of their choice, incl.
religious. Zelman, Witters.
Choice must be genuine and independent (if the only choice is to funnel
the money toward religion, we have a problem)
o Even-handed direct aid ONLY WHEN there is some assurance that the funds
will not be used for religious purposes.
Funding new buildings in all universities, including religious uses of the
buildings, is unconstitutional. Tilton v. Richardson.
Funding secular materials (such as textbooks or computer equipment) is
permitted (Mitchell; Bd. Of Ed. v. Helms)
o What about Rosenberger? Wasnt that money going toward religious purposes?
Factors that may play into whether money is an establishment problem:
Direct or Indirect
o Private choice; exemptions v. subsidies; Zelman, Witters
o Via parents, or directly to schools. Everson
o But see Everson dissent (transportation is a subsidy)
Secular items or purpose
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o Books, computer equipment (printing costs?) are ok. Mitchell (Helms, Board of
Ed. v. Allen)
o But see Lemon (teachers are NOT books, even if they teach secular subjects; in
order to determine whether theyre avoiding religious inculcation, wed have huge
entanglement problems)
But see Mitchell dissent (Scalia: if its even-handed, money is okay)
Effect of Endorsement
o Would a reasonable person see this as government endorsing religion?
o Accommodating religion
Proportion of the funding program money used by religious entities
Divisiveness of keeping or removing the program, or excepting or including religion in it
Analysis:
1) Is this an evenhanded program?
2) Is there independent private choice?
3) Is this direct aid to religious activity?
4) Lemon test: 3 parts (Mitchell v. Helms)
a. Secular purpose? Consider the content of the aid
b. Secular effect? Consider the criteria for participation
c. Entanglement? Consider the oversight program
5) Will excluding religion lead the reasonable observer to think religion is disfavored?
Cases:
Everson v. Bd. Of Ed. (1947) p 913
Facts: New Jersey reimbursed parents for students bus fare, even if the students took the bus to
a parochial school.
Held: The law is okay because to exclude NJ parochial schools would be to discriminate
religious students out of a welfare benefit. Compare this to police, fire, etc., who protect kids no
matter where/who they are. NJ isnt contributing money to parochial schools, just providing a
general benefit to help parents get their children to and from accredited schools.
Dissent: (4 votes) Doesnt buy the indirect argument; transportation is part of the cost of
education, and people of different religions shouldnt be reimbursing parents of other religions.
Moreover, you cant separate it into proportional amounts based on secular/religious teaching.
Distinguishes transportation from fire & police (matters of common right).
Lemon v. Kurtzman (1971) p 918
Facts: RI Salary Supplement Act
Held: This fails on entanglement, and effect is never reached. Court is concerned that teachers
will never really be able to separate religious and secular instruction.
Witters v. Wash. Dept of Servs. For the Blind (1986) p 931
Facts: Washington statute provides money for college for the blind. Witters wants to use his
toward a theological degree.
Held: The statute has a secular purposehelping the blind. The effect is to give money to the
individual, who then gets to use it however he wants. Akin to using a govt salary to give to a
religious charity. The private action cures any religious effect problems. (Codified in Zelman.)
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Note: Combined with Locke v. Davey, this establishes the play in the joints: A state can give
students money that will be used for religious purposes or refuse to give them the money.
Rosenberger v. Rector (1995) p 933
Denying funding to Wide Awake is not necessary to avoid an Establishment Clause violation.
Not a tax levied for the direct support of a church but rather a neutral program designed to
encourage a variety of student viewpoints. Private (not government) religious speech is protected
(UVa might have a claim if they expressly endorsed and edited every student paper). Not a
religious purpose; no direct funding to religious institutions (goes to the printers). Look at the
nature of the benefit received (printing costs), not how the group uses it.
OConnor (controlling concurrence): Context makes a perception of endorsement improbable;
compare to a harder case where religious speech threatens to dominate the forum.
Dissent, Souter (4 votes): This isnt just a newspaper with a religious viewpoint; its preaching
the word and trying to convert people. Evenhandedness isnt enough; cases require a nonreligious third-party, and here, government is handing the money to print for Wide Awake, not to
choose among journals. Even in a limited public forum, you cant provide direct aid to religion.
Mitchell v. Helms (2000) p 941
Facts: Federal education funding act gives money to local educational agencies, which in turn
use the money to supplement, not supplant, non-Federal funds. The money can only go to
secular, nonidealogical uses. For private schools, the LEA purchases the item and lends it to the
school. The private schools affected in Jefferson Parish are 34 Roman Catholic, 7 other religion,
and 5 secular. Allocates money on a per-capita basis.
*Thomas (4 votes): In Agostini, modified Lemon test for school aid by rolling entanglement into
effect. Two part test for effect: not resulting in religious indoctrination, and not defining its
participants by reference to religion, or creating excessive entanglement. Here, since the statute
provides funds neutrally, the state is not conducting religious indoctrination. Affects school
equally, so not creating an incentive to favor religion. Here, the aid goes to religious schools
purely because of private choice (I think he stretches this a little bit).
*OConnor (concurring, w/ Breyer): Neutrality alone is not enough. Also, this per-capita
distribution should not be viewed the same as a private choice program. Says to instead apply
Agostini correctly: Is there indoctrination? Does it define receipt of aid by religion? This
program applies neutrally, and the funds follow the students, so they need not be indoctrinated to
get the money.
*Souter (dissenting, w/ Stevens and Ginsburg): Points to a number of distinctions from prior
cases.
*Note: No majority opinion; OConnor is the controlling opinion.
Zelman v. Simmons-Harris (2002) p 958
Facts: Ohio created program where students could opt out of failing schools and get a voucher to
take to any participating school. Students who stayed in public schools got extra tutoring. 82% of
the participating private schools were religious.
Secular purpose and effect. The program is a true private choice, neutral program. No financial
incentives to skew people toward religious schools. There is actually a financial disincentive to
attend private schools. A reasonable observer, especially one familiar with the context, would not
see this as an endorsement.
62

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1

H. Warden First Amendment Prof. Benjamin Fall 2011

TEXT OF THE FIRST AMENDMENT........................................................................................2

II. RESTRICTIONS BASED ON COMMUNICATIVE IMPACT........................................4

III. CONTENT-NEUTRAL RESTRICTIONS........................................................................24

RESTRICTIONS ON SPEECH & EXPRESSIVE CONDUCT........................................................24

IV. SPECIAL BURDENS ON FREE SPEECH......................................................................27

VI. RELIGION CLAUSES.......................................................................................................44

H. Warden First Amendment Prof. Benjamin Fall 2011

Compelled Exclusions: Facially Even-Handed Funding Programs.............................59

TEXT OF THE FIRST AMENDMENT

THEORIES UNDERLYING FREEDOM OF SPEECH

Why we value freedom of speech

H. Warden First Amendment Prof. Benjamin Fall 2011

FLOWCHART OF FREE SPEECH INQUIRY

H. Warden First Amendment Prof. Benjamin Fall 2011

RESTRICTIONS BASED ON COMMUNICATIVE IMPACT

H. Warden First Amendment Prof. Benjamin Fall 2011

H. Warden First Amendment Prof. Benjamin Fall 2011

H. Warden First Amendment Prof. Benjamin Fall 2011

People who have assumed an influential role in society (beyond involvement in

What is of Public Concern? Anything worth printing.

H. Warden First Amendment Prof. Benjamin Fall 2011

[More cases over]

H. Warden First Amendment Prof. Benjamin Fall 2011

H. Warden First Amendment Prof. Benjamin Fall 2011

H. Warden First Amendment Prof. Benjamin Fall 2011

Board of Airport Commrs v. Jews for Jesus (1987) p 139

H. Warden First Amendment Prof. Benjamin Fall 2011

SPEECH AS INTEGRAL PART OF CRIMINAL CONDUCT

H. Warden First Amendment Prof. Benjamin Fall 2011

Integral Part of [another] Crime

H. Warden First Amendment Prof. Benjamin Fall 2011

H. Warden First Amendment Prof. Benjamin Fall 2011

H. Warden First Amendment Prof. Benjamin Fall 2011

Traditionally a protected genre

Various roads are not taken by SCOTUS:

H. Warden First Amendment Prof. Benjamin Fall 2011

H. Warden First Amendment Prof. Benjamin Fall 2011

H. Warden First Amendment Prof. Benjamin Fall 2011

Blackletter: p259. Even protected speech can be restricted.

H. Warden First Amendment Prof. Benjamin Fall 2011

This could also lead, ironically enough, to greater government

[more cases over]

H. Warden First Amendment Prof. Benjamin Fall 2011

H. Warden First Amendment Prof. Benjamin Fall 2011

CONTENT DISCRIMINATION WITHIN UNPROTECTED SPEECH

Blackletter: p 292 Even restrictions on unprotected speech can be unconstitutional

H. Warden First Amendment Prof. Benjamin Fall 2011

H. Warden First Amendment Prof. Benjamin Fall 2011

H. Warden First Amendment Prof. Benjamin Fall 2011

Frisby v. Schultz (1988) p 323

H. Warden First Amendment Prof. Benjamin Fall 2011

Clark v. Community for Creative Non-Violence (1984) p331

H. Warden First Amendment Prof. Benjamin Fall 2011

SPECIAL BURDENS ON FREE SPEECH

H. Warden First Amendment Prof. Benjamin Fall 2011

Boy Scouts v. Dale (2000) p 377

H. Warden First Amendment Prof. Benjamin Fall 2011

H. Warden First Amendment Prof. Benjamin Fall 2011

Strikes down ceiling on individual expenditures by candidates and their family.

H. Warden First Amendment Prof. Benjamin Fall 2011

SPEECH COMPULSIONS: DIRECT INTERFERENCE W/SPEAKERS OTHER SPEECH

H. Warden First Amendment Prof. Benjamin Fall 2011