Con Law II

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3. Fighting Words And Hate Speech:
One of the unprotected categories is fighting words words which are likely to make the person to whom they are addressed commit an act of violence (probably against the speaker) Has gotten narrower and narrower difficulty is in determining what is a fighting word and what is political speech
Chaplinsky: This case marks the origination of the fighting words doctrine Facts: D was a Jehovah witness who called the City Marshall a goddamned racketeer and fascist when they got into a fight. Convicted under a statute which provided no person shall address any offensive, derisive or annoying word to any other person lawfully in any street or public place. Held: statute does not violate free speech Rationale: Ds words were ones that would likely provoke the average person to retaliate
Rule: Words that are likely to provoke the average person to retaliate are not protected by the First Amendment Fighting words are words that inflict injury OR tend to incite an immediate breach of the peace Must be pretty direct, face to face confrontation can be time sensitive calling someone a fascist today may not bother them Cantwell:
Facts: C, asked people on street if he could play them a record. The record denounced religion and Catholicism and the listeners were highly offended. C was convicted of inciting a breach of the peace. Held: Court set aside Cs conviction Rule: You must distinguish between fighting words and words that offend. NO constitutional right not to be offended Ct has interest in preservation of peace and order, but here the interest of free speech outweighs that interest Cs speech was NOT directed personally at the hearer there was no invitation to breach of the peace the court protects offensive speech Using Cantwell P can use Cantwell to distinguish Chaplinsky Must argue words only rose to the level of offending (Cantwell) But did not invite breach of peace (Chaplinsky) Argue that words were not directed personally Argue that the interest of free speech outweighs states interest of maintaining the peace and order
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Offensive Speech: Generally, the Court has not allowed government to suppress speech or expressive conduct on the grounds, that others would find it offensive unless substantial privacy interests are at stake (most notably when those offended for a captive audience)
Cohen v. California: important case involving states right to ban offensive language Facts: During Vietnam war C wore a jacket into a courthouse where woman and children were present that said fuck the draft. Convicted under statute prohibiting intentional disturbing of the peace. Held: Conviction reversed Starts w/ the assumption that it is free speech: Rationale: Analysis Started w/ the assumption that it is protected speech: Does it fit into one of categories? If not, then it is protected Why not time, place, and manner? Not limited to Courthouse cant argue it was conduct-based Does not fit under unprotected category, so protected Not Obscene? Nothing erotic a/b fuck the draft (Miller Test) Not Fighting Words? Not direct insult no nature of a personal provocative insult No Captive Audience? Principle is that people will not be able to get away from the insult mere presence of unwitting listeners does not serve automatically justify curtailing all speech capable of giving offense Here, they can avert their eyes Not incitement? Not directed at any individual (intent, likely, imminent)
Rule: An undifferentiated fear or apprehension of disturbance IS NOT enough to overcome the right of freedom of expression Government CANNOT single out specific words and subject them to punishment Hostile Audiences: The Court has limited the fighting words doctrine in a number of ways
Terminiello v. Chicago (good for challenger): Facts: T delivered a publicized speech, and an angry crowd formed outside. T urged the listeners inside to defy those outside and stand up to them. D was found guilty of breach of the peace. Held: ordinance was invalid
Rule: It is NOT enough that the speakers words make the listeners angry; incitement to violence is required speech that stirs the audience to anger or invites dispute is protected
Feiner: Hecklers Veto (good for state gives exception to silence speaker) Facts: P addressed crowd using derogatory comments a/b politicians. The crowd grew very restless. B/c of the strong feeling in the crowd for and against the speaker the police stepped in to prevent riot. Ultimately, P was arrested for refusing to stop. Held: Conviction upheld, b/c arrest was motivated purely out of concern for preservation of order and safety in making the arrest
Rule: Police may silence a speaker whenever the audience threatens violence and where arresting the speaker is the polices only chance at maintaining order exception: IF police have the physical ability to control the angry crowd as a means of preventing threatened violence, they must do so in preference to arresting the speaker for using fighting words
Using Hostile Audiences: Plaintiff: Argue it is not enough that speech makes people angry there must be an incitement to violence (Terminiello) An undifferentiated fear or apprehension of disturbance is NOT enough (Cohen v. Ca) Will counter hecklers veto argument by stating police were physically able to control the crowd w/out arresting the speaker - will argue state arrested speaker to suppress speech and not for the purpose of safety State: Will argue arresting the speaker was only way to prevent the imminence of greater disorder (Feiner) - must argue police action was not to suppression expression but only to preserve order Modern Approach: Tolerate lots of free speech, and require people listening to act appropriately unless speech reaches level of fighting words or incitement
Captive Audiences: See infra
4. Obscenity and Pornography: Not all sex-laden speech Is outside the First Amendment (child-pornography has no First Amendment protection) for example, non-obscene pornography remains protected the court has never acknowledged that non-obscene pornography occupies low-value status receiving less protection but the Courts actions speak louder then its words Obscenity: Assumption is that the First Amendment does NOT protect obscenity
Miller: Facts: D conducted mass mailing to advertise sale of adult books. D was convicted for distributing obscene matter to unwilling recipients. Held: gave standards for obscenity
MILLER OBSCENITY TEST: The basic guidelines for the trier of fact are: (1) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interests; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value a. Prong #3 is not governed by a community standard instead the standard is whether a reasonable person would find such value in the material, taken as a whole national standard ALL three requirements MUST be met (if missing one then not obscene) Note: The fact that material may have some redeeming social value will not necessarily immunize it from a finding of obscenity Exception to Miller
Court carved out an exception to governments power to ban obscene material private possession: State may NOT make the private possession of obscenity a crime Stanley and Post-Stanley Cases: Rule: Child-pornography is contraband, and obscenity depicting adults is semi-contraband unprotected except for personal use in the narrow sanctuary of ones home
Non-extension of Stanley Exception Court chose not to extend Stanley to include a freedom from suppression of all materials exhibited only to consenting adults.
Paris Adult Theatre: Different from Miller since there was no issue of unwanted exposure (involves consenting adults) Facts: DA brought suit to enjoin playing of obscene film at two Atllanta theatres. Signs warned of adult material and prohibited admittance to people under 21. Held: Prohibition ok
Rule: State has legitimate interest in regulating exhibition of obscene material in places of public accommodation, including theatres here, IF regulation meets the First Amendment standards of the Miller test 4
Paris Theatre: good for State does not matter if audience is consenting may still regulate obscenity if Miller is satisfied Arguments For Ousting Obscenity: (arguments for obscenity being unprotected) (a) Avoiding Offense: to avoid offending non-consenting adults and to children (b) Incitement of Crime: Argument that sexually explicit materials stimulate some people to commit criminal acts (c) Preservation of Morals: Miller and Paris Theatres relied in part on legitimacy of government attempts to preserve public morality by suppressing obscenity (d) Remote Connection to the Core Purposes of Free Speech: Not connected to the purposes of free speech Child Pornography: A state may ban the distribution of materials showing children in sexual conduct, even though the material is not legally obscene
NY v. Ferber: Facts: Owner of adult store sold undercover cops videos containing two minors masturbating. Held: convicted under NY law Court upheld statute prohibiting distribution of child porn ok
Rule: Because of the strong interest in preventing child abuse states are entitled to greater leeway in the regulation of pornographic depictions of children States have compelling interest in safeguarding the physical and psychological wellbeing of minor child porn is intrinsically related to child abuse (1) permanent record of childrens participation exacerbated by circulation (2) must close distribution network to effectively stop production of child porn Exception: serious education or scientific use of such pictures as in medical textbooks or National Geographic is probably constitutionally protected (P must argue this) Exception to Stanley There is one important exception to the Stanley rule that private possession of obscene material by an adult may not be made criminal: States MAY criminalize the private possession of child pornography
4. Indecency and Mass Media a. low-value speech b. captive audiences c. indecency on the internet a. Low-Value Speech: Certain types of expression, while not directly suppressible on the grounds of their content, are inherently less valuable and may therefore be regulated more extensively than speech closer to the core of First Amendment values, such as political speech. Indecency v. Obscenity: If something rises to the level of obscenity (Miller) then it is not constitutionally protected so government can freely regulate or ban it Indecency is not quite obscene, essentially it is sexually explicit material not considered obscene under the Miller test Sometimes means profanity and vulgarity, but be careful (government may NOT take words off the table Cohen) Expressive conduct of a sexual nature may also fit into this category
Young v. American Mini Theatres: Note: this case was the beginning of the secondary effects doctrine (see infra page 49) Facts: zoning ordinance required movie theaters that had sexually explicit but not obscene movies to be dispersed throughout the city so as to avoid creation of skid row. City claimed it was merely a zoning law. Held: Ordinance was upheld
Rule: Some types of expression are of lesser value than other types of speech (indecency), thus, such sexually-explicit, but non-obscene, materials can not be completely suppressed BUT they can be regulated to an extent to which political speech can not This creates a two-tier theory of First Amendment Speech by which some types of speech are less deserving of full 1st Amendment protection then others (political speech)
Note: this case was the beginning of the secondary effects doctrine (see infra page 49)
secondary effects: government is not trying to regulate content of speech, but rather the secondary effects of the speech (affecting the character of neighborhoods)
a government could regulate the location of business dealing in non-obscene sexual expression in order to address the problem frequently associated w/ areas surrounding such businesses of drunkenness, drugs, petty theft, as those problems are NOT produced by sexually explicit speech they are mere secondary effects YET government could not regulate same business to address problem of patrons committing sex crimes since they are arguably induced by sexually explicit speech
State: Will argue that the regulated speech is of lesser value and subject to the two-tier theory and can be regulated to a degree that political speech could not Challenger: - Will argue the regulation effectuates a complete suppression - Argue that Young does not apply b/c the speech being regulated is not of lesser value and deserves full protection of First Amendment - Argue that Young only pertains to indecency and speech being regulated here is 6 -
NOT indecent Just b/c the offensive speech does not address important topics or ideas of social and political significance does NOT mean it is less worthy of constitutional protection
b. Captive Audiences: In Cohen it was stated that the constitutional ability of government to shut off discourse solely to protect others from hearing it is dependent upon showing that substantial privacy interest are being invaded in an essentially intolerable manner meaning the public had no way of averting their eyes or avoiding the offensive speech
FCC v. Pacifica: Main case on when government can combat indecency in radio and TV broadcasting Takes two-tier theory from American Mini Theatres by saying that not all First-Amendment protected speech is precisely equal in its susceptibility to context-regulation Facts: George Carlin monologue was broadcast during a weekly afternoon show. FCC said the broadcast was indecent but not obscene and that it could keep this type of material off airwaves during afternoon when children were likely to be in the audience. Held: FCC upheld Issue: content-based regulation (but not in unprotected category like obscenity, fighting words, etc.) why could govt. punish the broadcast?
Rule: social value depends on the context and the FCC had a right to take context into account and to hold that even First Amendment protected language may be prohibited in contexts where it is especially offensive. Context: Two justifications for the context being inappropriate here: (1) Pervasive Presence: confront people in their own home and creates a captive audience b/c at least for an instant you are forced to listen (2) Children: The broadcast was uniquely accessible to children - Thus, it did not matter that Carlins words alone were not obscene the context of the situation made it suitable for regulation Note: Court has traditionally allowed substantial government regulation
EXAM: Allows limited ability to regulate indecency must look to context Factors: (1) audience (children) (2) medium (radio) (3) time (mid-day) (4) form of transmission
Justifications for Pacifica (1) Captive audiences: monologue might be forced upon audience of unwilling listeners (2) Vulnerable audiences: impressionable children might hear the vulgarities (3) Low-value Speech: monologue was so distant from the core purposes of free speech that it was of low value and deserving of only limited protection (4) Broadcasting as a Special Media: it is clothed w/ a public trust such that it may be subject to greater government control than other forms of speech Indecent Speech: Pacifica A broadcast has ability to invade privacy of the home, thus the 1st Amendment does NOT forbid imposing civil sanctions on a broadcaster for airing patently offensive sexual speech
c. Indecency on the Internet Reno v. ACLU:

Indecency on the Internet efforts to limit access of minors to indecent material via internet Facts: Ps attacked two provisions of the Communications Decency Act Provision #1: prohibits knowing transmission of obscene or indecent messages to under 18person Provision #2: prohibits knowing sending/display of patently offensive messages in a manner available to a person under 18 years of age. Held: Both provisions were struck down Rationale: Internet Less Risk of Intrusion: burden on govt. to justify content regulation of Internet was greater then for over-the-air broadcasting Over air broadcasting warranted regulation b/c there was no way to adequately protect the listener from unexpected messages whereas the risk on a computer user was remote Overbroad: Suppresses speech that adults have a constitutional right to receive in order to deny minors Fails SS: govt. could not show that there was no less restrictive alternative that would accomplish this. Ashcroft: Issue: Whether Act prohibited sexually explicit images that appear to depict minors but were produced w/out real children. Held: Statute was overbroad
Rule: If a substantial amount of permissible speech is proscribed, statute will be invalid

Significance of Reno and Ashcroft (1) Broad Protection for Internet: Internet receives same very broad protection as books and newspapers NOT the limited protection given to over-the-air broadcasts (Reno) time, place, and manner restriction must be closely linked to the achievement of an important government interest (2) Protection of Rights of Adults: When protecting minors from non-obscene material government must make great efforts to ensure the rights of adults are not hampered (Reno) ex: a ban on putting non-obscene indecent material in any place where minors might see it infringes the rights of adults since adults have a right to see the material (3) No less-restrictive available alternatives: If government makes it harder on adults to view material they have a constitutional right to view (indecency) the government bears the burden of proving that there are no less restrictive available alternatives ex: If Congress wants to impose an age-verification requirement, they must prove the device is either less-restrictive or more effective than other devices (ashcroft) Receives Traditional 1st Amendment Strict Scrutiny: In contrast to broadcasting there is; (i) no history of extensive government regulation of the internet (ii) no scarcity of available frequencies, and (iii) no likelihood that the internet will unexpectedly invade the privacy of ones home
6. Commercial Speech: Advertising Speech that invites a commercial transaction receives second-class constitutional protection Commercial speech is protected by the First Amendment but is subject to greater regulation than other forms of speech Why more regulated? Commercial speech has greater potential for deception and confusion than noncommercial speech EXAM: any restriction on advertising should raise an issue of commercial speech
VA Board of Pharmacy: Even purely commercial speech is entitled to 1st Amendment protection Facts: State statute made it unprofessional conduct for a pharmacist to advertise prescription drug prices essentially banning price advertising of prescription drugs. Va claims ads are outside 1st protection b/c it is commercial speech. Held: violation of 1st amendment
Rule: Purely commercial speech that contains truthful information a/b entirely lawful activity is entitled to First Amendment protection and may not be proscribed merely b/c the state is fearful of that informations effect upon its disseminators and its recipients.
So long as the speech is not misleading or does not promote illegality it should be protected by the 1st amendment
Track One Cases: where govt. tries to suppress information based on the chance that the communicative impact of the message might cause harm (VA Board) Track One regulations will be allowed ONLY IF they fall into pre-defined unprotected categories or survive strict scrutiny. (VA Board makes clear Commercial Speech is no longer an unprotected category) Limit on VA holding: Such content-based restrictions MAY be upheld if narrow and direct means of pursuing substantial governmental interests (Central Hudson)
Central Hudson: (limits VA pharmacy) Facts: To conserve energy act ordered electric utilities in NY to cease all advertising that promoted the use of electricity. Issue: Did this violate free speech by its complete ban on promotional advertising by an electrical utility. Held: violation of free speech
Central Hudson TEST: Protection of Commercial Speech Intermediate Scrutiny (1) Must determine whether the speech is protected at all by the First Amendment a. The speech may NOT be false or misleading or propose an illegal
activity (if it is it may be fully regulated)
(2) The asserted Governmental interest must be substantial (easy to meet) a. Need not be compelling but has to be something more then legitimate
If answers to inquiries (1) and (2) are yes then: (3) Must determine whether the regulation directly advances the governmental interest asserted, AND a. Nexus b/w regulation and asserted interest (4) Whether the regulation is not more extensive than is necessary to serve the governmental interest (is it narrowly tailored?) a. However this does NOT mean it has to meet a least-restrictive-means standard regulation must not burden substantially more speech than is necessary to further the governments interests
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Analysis of Central Hudson: Prong #2: States interest in conserving energy is substantial Prong #3: There was a direct link b/w conservation and that ad ban since there is an immediate connection b/w advertising and demand Prong #4: Ad banned all promotional advertising regardless of particular activities effect on overall energy use Court felt there was a less restrictive way regulation prohibited ads that would have promoted conservation THUS it was not narrowly tailored Note: If Prong #1 is not satisfied The speech is unprotected If Prong #1, 2 or 3 is not satisfied Then the restriction is invalid 44 Liquormart: Facts: RI prohibited all advertising of liquor prices except w/in store not visible from street. State said ads would lead to lower price which would lead to more consumption. Held: Act invalid Note: 4 justices would apply SS, not mid-level scrutiny of Central Hudson when a ban on advertising is premised on the idea that less advertising of a harmful product will lead to less consumption
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C. CONTENT-NEUTRAL REGULATIONS OF SPEECH: When governments regulate speech w/out reference to its content (typically by time, place, or manner limits on speech) a form of intermediate scrutiny applies Contents: 1. Time, Place, and Manner of Speech: 2. Symbolic Conduct (supra page 35 of outline) 3. Secondary Effects Doctrine: Example: (1) auto bumper stickers critical of the government (viewpoint based SS) (2) auto bumper stickers containing political messages (content based SS) (3) all auto bumper stickers (content-neutral Intermediate Scrutiny) (4) auto bumper stickers visible to other drivers (content-neutral Intermediate Scrutiny) (5) all auto bumper stickers for the 60-day period prior to any general election (contentneutral Intermediate Scrutiny) 1. Time, Place, and Manner of Speech: The state is substantially freer to regulate when it acts in a content-neutral manner state will claim it is merely regulating time, place, and manner of speech so to receive intermediate scrutiny as opposed to SS TEST Valid Time, Place, and Manner Regulations A regulation claiming to be a valid time, place, and manner regulation is NOT valid UNLESS it satisfies all 3 requirements: (1) It must be content-neutral (2) Narrowly tailored to serve a significant governmental interest a. means that the interest cannot be equally well-served by a means that is substantively less intrusive of First Amendment interests (3) Must leave open alternative channels for communication of the information Note: Prong #2 and 3 are interpreted more stringently in the public forum situation Prong #2 Narrowly Tailored
Ward v. Rock Against Racism: (Good for State makes Prong #2 easier to satisfy) meaning of narrowly tailored Facts: To cut down on volume complaints city required bands to use only city-provided sound equipment for city park concerts. Held: This was valid time, place, and manner restriction.
Narrowly Tailored does NOT mean state must choose the least-restrictive means of achieving its objective state must merely avoid choosing means that are substantially broader than necessary to achieve the governments interest
Rationale: Court conceded less-restrictive means of solving loudness problem might be possible (i.e., monitoring performances and punishing for violations). availability of less-restrictive means of regulating volume was irrelevant since the means chosen by the city were justified w/out reference to the content of the regulated speech AND were
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substantially broader than necessary to keep the sound low THUS the means being narrowly tailored to serve governments interest requirement was satisfied Narrowly Tailored SS vs. Content-Neutral Time, Place, and Manner SS use of narrowly tailored calls for the least restrictive alternative Content-Neutral analysis requires the means used not to be substantially broader than necessary meaning the govt. interest would be achieved less effectively absent the regulation
Meaning of Narrowly Tailored No Least Restrictive Means Requirement: Regulation need not be least restrictive means of achieving governments interest Not Substantially Broader: Instead state must merely avoid choosing means that are substantially broader than necessary to achieve the governments interest HOWEVER, may NOT regulate speech in a manner that a substantial portion of the burden on speech does not serve to advance its goals Note: Ps argument of narrowly tailored will bleed into Prong #3s requirement that the government must leave ample alternative means of communication Using Ward: Strong case for the Government as it lessens difficulty of satisfying Prong #2s Narrowly Tailored requirement Prong #3 Leave Open Alternative Channels: Typically a regulation that satisfies content-neutral and the narrowly tailored and significant governmental interest requirements will also satisfy Prong #3 HOWEVER, prong #3 sometimes makes a difference especially regarding total medium bans Total Medium Bans: If, after a medium is closed, ample alternative channels of communication remain open then, a total medium ban could, in theory, survive Strict Scrutiny More likely to be violated when the method is so easy-to-use or inexpensive that other channels simply are not substitutes 3. The Secondary Effects Doctrine: (Avenue for declaring regulation Content-Neutral) Rule: Governments may regulate speech (even by apparent reference to its content) IF its purpose for doing so is wholly unrelated to the content of the speech BUT is instead designed to ameliorate some phenomenon closely associated w/ speech but not produced by the content of the speech. If this occurs the Court declares the regulation to be Content-Neutral secondary effects doctrine seems to apply to lesser-valued speech (supra) Analysis: If government is merely trying to eliminate the undesirable non-content related consequence of an expressive activity (say strip clubs) like increased crime, decreased property value the regulation will be found to be content-neutral and will receive Intermediate Scrutiny Cases applying under this doctrine usually satisfy the intermediate standard and Courts usually accept that the government is pursuing an important interest, and that the
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means appropriately further that interests while leaving open adequate alternative channels
Renton v. Playtime Thatres: Case created the secondary-effects doctrine Facts: Plurality upheld a municipal zoning ordinance that prohibited adult movie theaters from locating in about 94% of the citys land. Ordinance designed to prevent crime, and property value
Rule: City may regulate the for the purpose of combating secondary effects rather than trying to suppress messages it doesnt like Regulation will be viewed as content-neutral and will receive mid-level review
City of Erie v. Paps: Expands the secondary-effects doctrine it allows a complete ban Facts: PA passed act requiring nude dancers to wear minimal clothing. City claimed to be fixing secondary effects of violence, drunkenness and sexual harassment not expression of nude dancing. Ban applied throughout entire city. Held: Satisfies secondary effects doctrine apply content-neutral time-place-and-manner analysis
Rule: Dramatically expands secondary effects doctrine by holding that the doctrine now may result in a complete ban (not just a geographical limitation) on the disfavored expressive conduct Rationale: Bad motive irrelevant: As long as one purpose of the regulation was to combat secondary
speech does not matter that another motive may be to stifle particular expression Means-end Link: need not greatly reduce secondary effects so long as it furthers the interest of combating the effects
Attacking Content-Neutral Regulations:

(1) Straight Forward Method: Go through 3-prong test must be content-neutral: (1) narrowly tailored (2) significant government interest (3) ample alternative means of communication (2) Secondary Effects Doctrine: must argue that government is trying to combat undesirable non-content-related consequence of expressive conduct Government: Will a argue that the regulation is content-neutral seek Intermediate Scrutiny - Will apply 3 pronged test Can argue secondary effects doctrine so regulation is treated as content-neutral - complete bans are okay (City of Erie) - means need only further interest of combating effects not eliminate (Erie) - Okay even if one purpose was to chill expression so long as another motive was to combat the secondary effect (Erie) Plaintiff: Will argue that the regulation is content-based to seek Strict Scrutiny - will argue that it is viewpoint based (worse then content-based) IF content-neutral will claim it doesnt satisfy three prong test - not narrowly tailored, no significant govt. interest, no ample alternatives Will refute Secondary Effects doctrine - claim reg. is targeting suppression of the expression and NOT the secondary effects - Argue that Secondary Effects Doctrine ONLY applies to sexual indecency
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C. Public Forum Doctrine: This is the regulation of speech when the government is BOTH the Sovereign and Proprietor Difficulty in this doctrine is formulating a rule for deciding when the public may speak on its property under government control and when it may not. - Public forum doctrine is used as a factor in determining whether governmental regulation that purports to be merely of the time, place or manner of expression nonetheless violates the First Amendment Rules: Content-Neutrality: If regulation occurs b/c government objects to communicative impact of the expression (not content-neutral) it does not matter whether the expression takes place in a public forum or not the regulation is presumptively invalid, unless it is w/in an unprotected category OR w/in a class of low-value speech (offensive or indecent) (1) Traditional Public Forum: Streets, parks, and sidewalks which have historically been held in trust for the public as places of assembly, for communicating thoughts b/w citizens, for protest, and discussing public questions Government is very limited in the restrictions it can place on traditional public forum Content-based restrictions get Strict Scrutiny Time, manner, and place restrictions that are content neutral, and narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication are okay (2) Designated Public Forum: This occurs when state opens up property for use by the public as a place for expressive activity. Although state is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as in a traditional public forum. Government must make an affirmative choice to open up its property for use as a public forum...ex: a public library does not acquire internet terminals to create a public forum for web publishers to express themselves Open to those subjects and speakers that the government wishes to permit, provided that the limiting criteria are not viewpoint-based OR otherwise offensive to a constitutional guarantee (e.g., public forum limited only to those who are not black) Limiting criteria may NOT (1) be viewpoint based (2) of offend constitutional guarantee - Viewpoint based restrictions are not allowed - Restrictions limiting some other constitutional guarantee (like limiting speech to nonreligious speech) is not permitted
Ex: Widmar: public school made facilities open to student groups except religious ones. Although school created limited public forum its device for doing so was viewpoint based, thus, subject to strict scrutiny, and ultimately voided Ex: Goodnews Club: School allowed after school groups to use facilities except religious groups. Limited public forum was created but denial of access based on religious was viewpoint discrimination and not justified in an effort to avoid creation of establishment of religion - ex. setting aside 45 minutes at a city council meeting for public comment
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(3) Non-Public Forum: Public property which is not by tradition or designation a forum for public communication. E.g., Oval Office. Rational basis review: state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely b/c public officials oppose speakers view Viewpoint restrictions are not permitted Not a public forum at all and may be closed to all or some speech so long as the closure is reasonable in light of the non-speech purposes to which the property is devoted
Ex: Adderley: trespass convictions were sustained of demonstrators block jail entrance. The part of the jail used was reserved for jail uses and not public gatherings. Thus, it was neither a traditional nor a designated public forum
Test: Is the place a Public Forum (or designated Public Forum) OR a Non-public Forum? Public Forum: The regulation must: (i) Be content-neutral (ii) Be narrowly tailored (iii) Serve a significant government interest; and (iv) Leave open ample alternative opportunities for communication of the expression content-based regulation must be narrowly drawn to effectuate a compelling state interest) Non-public Forum: The regulation must: (i) Be reasonable (i.e., viewpoint neutral, but speakers status may be considered); and reasonableness is supported by substantial alternative channels (ii) Not be meant to suppress expression merely b/c officials oppose it
Perry Education: Facts: The official teachers union and some other organizations were permitted to use the school mail system but no other union was given access to they system. Held No violation of Speech Claim: School claims that once mail system was opened to some groups it became public forum Rationale: Court focuses on the character of the property Mail system was NOT a traditional public forum since it was not a public forum no constitutional obligation to let any organization use the mail boxes key: the different treatment b/w the two unions was reasonable b/c it was consistent w/ the Districts legitimate interest in preserving the property for the use it was lawfully dedicated Evaluating Public Forum or Not? 1) Ask who has access? is government drawing distinctions w/ respect to speech (content-based or viewpoint) 2) Where are they? what is the location has it traditionally been used as a forum has it been opened up as forum 3) Context: Grayned: says it is the nature of a place, the pattern of its normal activities, that dictate the
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kinds of regulations of time, place, and manner that are reasonable a crucial inquiry has become whether the manner of expression is basically incompatible w/ the normal activity of a particular place at a particular time Ex: upheld ordinance banning noise or disruption during school sessions as applied to demonstrators outside of schools
Public Forum Exam Tip: Plaintiff: Will argue that it is a traditional public forum If not traditional will argue it has become a designated public forum Will argue it is not (1) content-neutral; or (2) not narrowly tailored; or (3) does not serve a significant government interest; or (4) does not leave open ample alternatives Finally if a non-public forum (easier standard for government) must argue it is NOT reasonable (perhaps viewpoint based) OR is meant to suppress expression b/c of officials opposition towards the particular speech Public Education: Much of the speech that occurs in public education is highly regulatedsome is contentbased and some may be viewpoint based Limit: BUT students and teachers have 1st Amendment rights that they do not fully surrender when they enter the school Note: Government is given more leeway in regulation pertaining to 1st Amendment rights in schools This trilogy of cases present the arguments as to why certain expression is even punishable
Tinker Did speech occur in school? Students do NOT shed their constitutional rights to freedom of speech or expression at the schoolhouse gate Facts: students were suspended for wearing armbands in opposition of the vietnam war. Held: First Amendment rights were abridged
HERE: no evidence of disruption by students protest no intrusion upon the work of the schools or the rights of other students not all symbolic speech was banned (political pins allowed) which tends to show that the restriction was viewpoint based
Effect of Tinker good for Plaintiff Rule: Students have 1st amendment rights IF his expression does not materially and substantially interfere w/ the requirements of appropriate discipline in the operation of the school and it does not collide w/ the rights of others - IF conduct materially disrupts class work or creates disorder OR invades the rights of others it is NOT allowed by the constitutional guarantee of freedom of speech Limit: Fear or apprehension of disturbance is NOT enough to overcome the right to freedom of expression - The state MUST show its action was caused by something more than a mere desire to avoid the discomfort that accompanies an unpopular viewpoint (ex: protesting a war)
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Key: Although teachers and students maintain a degree of 1st Amendment rights in the school house school authorities have a strong and valid interest in maintaining school discipline and incarrying out their educational mission - pursuit of these goals will sometimes entitle the authorities to regulate speech in a way that would not be permissible outside the school context Bethel Did it interfere w/ schools fundamental purpose Facts: At assembly student gave a lewd speech w/ sexual metaphor. Student was suspended. Held: The court upheld the schools disciplinary action Rationale: Highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse Important, here, that the speech was offensive to both teachers and students AND, the penalties, unlike in Tinker, were unrelated to any political viewpoint Effect of Bethel: (Good for Government) Balancing Test: The freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the societys countervailing interest in teaching students the boundaries of socially appropriate behavior. Schools interest in prohibiting lewd speech outweighs 1st Amendment rights of student content-neutral: Especially since, in Bethel, the penalties were unrelated to particular view Hazelwood: -- School sponsored event? Concerns regulation over expression during school-sponsored events Facts: Principal removed 2 articles from school newspaper (one on pregnancy and one on divorce). Felt the materials were inappropriate. Held: Upheld principals decision Effect of Hazelwood: (Good for Government increases ability to restrict) Rule: Where a school sponsors an activity in such a way that people may reasonably perceive the activity as bearing the schools imprimatur, the schools right to restrict student speech is much greater than in the Tinker situation BUT if decision to censor school sponsored event has no valid educational purpose then the 1st Amendment requires judicial intervention to protect students rights Reasonable Relation Test: Schools actions must be reasonably related to legitimate pedagogical concerns Note: Few real restrictions on schools ability to censor expression during school sponsored event - School will almost always be able to show that the censorship was reasonably related to some legitimate pedagogical interest Factor: (1) did expression take place in a school sponsored activity; - just know that there are different tests??
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D. Public Sponsorship of Speech: Unconstitutional Conditions Doctrine Idea that, while government need not confer a benefit, it may not condition the receipt of a benefit upon the relinquishment of an independent constitutional right Rule: Unconstitutional Penalty versus Constitutional Subsidy: A government is free to pay for speech it agrees w/ (government subsidy) and to refuse to pay for speech w/ which it disagrees, but a government CANNOT w/hold some unrelated benefit form private speakers who happen to use their own resources to say things the government dislikes (government penalty) When government is funder of speech the government has somewhat greater ability to prefer one viewpoint over another than it does when it merely regulates the speech Government as Funder of its own Speech:
Rust v. Sullivan: (Provides leeway for Government) Facts: Regulation limited Title X fund recipients to engage in abortion related activities the health clinics could not promote abortion in any way. Any fund recipients had to maintain a separation b/w the abortion activities and the Title X funds Issue: whether condition was a penalty or just the government regulating speech that it was paying for. Held: Regulation was upheld
Rule: Refusal to fund protected activity, w/out more, cannot be equated w/ the imposition of a penalty on that activity When government appropriates public funds to establish a program it is entitled to define the limits of that program
Rationale: Not being put to choice: B/c grantee was allowed to promote abortion so long as the activities were done through a separate, and separately funded program they were not being forced to choose b/w the funding and exercising constitutionally protected rights Government as Speaker: when government appropriates public funds to promote a particular policy of its own it IS entitled to say what it wishes (does not need to be viewpoint-neutral) When government disburses public funds to private entities to convey a governmental message, it MAY take legitimate and appropriate steps to ensure that its message is portrayed Private Speaker: Viewpoint based restrictions are not proper when the Government does not itself speak or subsidized transmittal of a message it favors but instead expends fund to encourage a diversity of views from private speakers (ex: university newspaper case) Government as Funder of 3rd Party Speech: Rosenberger: Once a public university chose to fund various student publications it could not exclude publications that had a religious content (viewpoint based) The student groups that were funded were not speaking on behalf of the University but were engaging in their own private speech and thus the schools paying of printing costs does not allow them to silence the expression of selected viewpoints rationale: Was not government speechwas private speech Legal Services v. Velasquez: (Greatly cuts back on Rust)
Facts: Congress funded a program which supplies legal representation to indigent people on the condition that the lawyers would not challenge the welfare system. Held: violated 1st amendment
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Rule: When government disburses public funds to private entities it may take steps to ensure its message is portrayed BUT it does not state that viewpoint based restrictions are proper when the government does not itself speak or subsidize a particular message that it favors but instead gives funds to encourage a diversity of views from private speakers (Rosenberger)
Rationale: Private Speech: program was designed to facilitate private speech not to promote governmental messages lawyer is speaking on behalf of his client against the government - Unlike Rust the lawyer program was designed to facilitate private speech, not to promote a governmental message
EXAM Subsidy v. Penalty: Rust: Government can pick and chose activities it wants to fund when government appropriates public funds for a program it is entitled to define the limits of the program Velasquez: cuts back on Rust, by stating if government funds a 3rd party to promote private speech then the government does NOT have extensive power to put certain topics off limits Issue Is the speech being paid for the speech of the government OR is it the speech of a 3rd party? Plaintiff: Will argue government regulation effectuates a penalty and not a subsidy Claim that regulation puts P to choice of either rejecting the funds or giving up a constitutional right (ex: freedom of speech) Must claim that the government funds a 3rd party to promote private speech thus, the may not regulate b/c of viewpoint (Velasquez and Rosenberger) - argue that the speech being regulated is purely private and not government thus government is restricting private speech Government: Will argue regulation is a subsidy and that government can selectively fund a program to encourage certain activities it believes to be beneficial w/out have to fund alternative programs seeking to deal /w problems in another way - government may selectively fund some speech and refuse to fund others Cite Rust and claim the case gave government power to condition the receipt of its funds - when government appropriates public funds to establish a program it is entitled to define the limits of that program - no benefit is being denied to anyone government is merely insisting that public funds be spent for the purposes for which they were authorized Argue that condition does NOT prohibit certain speech only prohibits using particular funds in promoting that speech (e.g., In Rust, could speak on abortion just couldnt use federal funds to speak on abortion Will refute Velasquez and Rosenberger by stating 3rd party is merely an agent for the government and its speech is merely promoting governmental message
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Vagueness, Overbreadth, and Prior Restraints: The doctrines of vagueness, overbreadth, and prior restraint involve impermissible modes or procedures of regulating speech the problem typically lies in the way in which the regulation is implemented 1. Overbreadth An overbroad statute regulates constitutionally unprotected conduct by also regulating constitutionally protected conduct Government may NOT use means which sweep unnecessarily broadly and thereby invade the area of protected freedoms in order to control behavior legitimately susceptible to governmental control Overbreadth Rule: Only statutes that are substantially overbroad are voided for overbreadth Application: A challenged statute is tested on its face rather than as actually applied to the litigant before the court means that speakers of constitutionally unprotected speech are permitted to challenge validity of a law under which they are prosecuted on the grounds that the law is too sweeping rather than on the grounds that their own speech is constitutionally protected Effect: Overbreadth is concerned w/ all possible applications of a statute Invalidation: When a statute is overbroad and thus invalid on its face, the statute is void in toto this is b/c overbreadth is analyzed under all possible applications this is in contrast to typical constitutional law Usually you examine the validity of a law as it is actually applied to a challenger and if it is struck down, it is only that application that is voided effectively narrowing the scope of the statue Reasoning: Chilling effect on speech people may be intimidated into not exercising their right to speech for fear of prosecution even though their speech may be constitutionally protected invites selective enforcement
Broadrick v. Oklahoma: Facts: Statute prohibited civil servants from engaging in certain political activities challenge of overbreadth brought b/c constitutionally protected speech was prohibited like wearing political pins or bumper stickers Held: statute primarily directed at conduct not pure speech and was not substantially overbroad
Rule: Challengers on First Amendment basis may challenge a statute not b/c their own rights are violated but b/c of a prediction that the statute existence may be unconstitutional to others Limiting Rule: Where conduct and not merely speech is involved, the overbreadth of a statute must be substantial in relation to the statutes plainly legitimate sweep
As Applied Rule: IF a court w/ authority to narrow a statute by judicial construction to avoid overbreadth can prune the overbroad limbs from the statutory trunk by construction the speaker of protected speech should be limited to an as applied challenge - IF statutes overbreadth extends to the statutory trunk, the entire tree must be chopped down
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Vagueness: A law is unconstitutionally vague if persons of common intelligence must necessarily guess at its meaning and differ as to its application Rule: if a law does not provide sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices, it is unconstitutionally vague and its enforcement is a denial of due process Will be vague if statute is so poorly defined as to give no guidance Extension: If a statute impinges on expression it will be held to a greater degree of specificity in order to avoid invalidation as vague Prior Restraints: Prior restraints of speech are among the most disfavored of speech restrictions and are presumptively void A prior restraint is an administrative or judicial order that prohibits speech before it occurs, and it does so on the basis of the speechs content only content-based restrictions on speech before it occurs are prior restraints Content-Neutral: Content-neutral ban on speech before the fact is permissible IF its purpose and effect are NOT to suppress ideas but to advance legitimate state interests unrelated to the suppression of speech After the Fact: Punishments after the fact are NOT prior restrains 2 Types of Prior Restraints: (1) Licensing (2) Injunctions Licensing: Requires speakers to obtain the permission of the government before they speak Licensing of speech before its utterance raises the question of whether the licensing scheme operates to restrain speech prior to an adequate judicial determination that it is not protected by the First Amendment Validity: Depends on purpose for requiring speakers to obtain license AND the criteria established to determine when licenses will be issued or denied Problem: When there are no criteria for issuance of a required license the danger to free speech is much higher problems occur when licensing scheme is completely subjective Requirements: (1) Content-Neutrality: license requirement must be applied in a content-neutral manner The granting or denying of a permit request may NOT take into account the ideas or politics being espoused - only when the content of the expression is w/in an unprotected category may this content be taken into account (2) Specific Guidelines: The grounds upon which a permit may be denied must be forth specifically in ordinance (3) Limited Discretion:
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If the official charged w/ granting or denying permit applications is given too much discretion the ordinance will be voided for overbreadth, vagueness or both If licensing scheme is completely subjective it is deemed standardless discretion and may be facially invalid (City of Lakewood) If the official in charge is given too much discretion in the amount of the fee the ordinance may be struck down (4) Narrowly Tailored means to the end: The permit mechanism must be closely tailored to the objective that the government is trying to achieve Injunction: Injunction of speech b/f it occurs is a powerful weapon thus, only the most compelling reasons will support the issuance of an injunction restraining speech in advance Injunctions restraining speech raise the question of whether it is better to punish the few who abuse rights of speech after they break the law than to throttle it beforehand it is impossible to know in advance what an individual will say or express
Near v. Minnesota: Facts: State procedure for closing down as a public nuisance any malicious and defamatory newspaper was used to permanently enjoin the publication of a paper criticized by officials. Held: Violated 1st Amendment proper remedy for false accusations against public officials was by a post-publication libel action
Rule: Injunctions are disfavored b/c it is not the ordinary way to punish speech this case is cited for the principal that there are situations where injunctions are okay (national security) but this type of restriction is still VERY limited
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E.
FREEDOM OF ASSOCIATION; COMPELLED SPEECH
Freedom of Association: The First Amendment does not explicitly mention the freedom of association but the Supreme Court has held that the freedom derives by implication from the explicitly stated right of speech, press, assembly and petition TEST: Before the government may significantly interfere w/ protected associational activity two showings must be made: (1) the governmental interest pursued must be compelling (2) that the interest cannot be achieved by means less restrictive of the freedom of association Basically it is a strict scrutiny application Two Types: (1) intimate association: a. Personal affiliations are distinguished by such attributes as i. Relative smallness ii. High degree of selectivity in beginning and maintaining affiliation iii. Seclusion from others in critical aspects of the relationship (2) expressive association: a. right to associate for purpose of engaging in activities protected by First A speech, assembly, exercises of religion b. Govt. actions that infringe upon right to expressive association work in different ways: i. Imposing penalties or w/holding benefits from members ii. Requiring disclosure of membership in a group seeking anonymity iii. Govt. may try to interfere w/ internal organization or affairs of group
Roberts v. US Jaycees: Presents a governmental interest that is almost always found to be compelling and that often cannot be achieved w/out restrictions on First Amendment freedoms this is the interest in preventing discrimination based on race, sex, or other suspect criteria Facts: Js was a group devoted to promoting development of young men membership limited to men 18-35. Human Rights Act prohibited discrimination in any public place b/c of sex. Issue: Did the law interfere w/ Js freedom of association Held: No Intimate Association: Personal affiliations, w/ attributes like (1) relative smallness; (2) high degree of selectivity in decisions to begin and maintain affiliation Held: Js not entitled to this The chapters were large and unselective Expressive Association: Right to associate w/ other in pursuit of political, social, economic, education, religious and cultural ends Js argue that admission of women burdens the message they express Held: infringement on right to expressive association may be justified: (1) Compelling interest: Compelling interest in eradicating sex discrimination (2) Narrowly tailored: Yes, Js did not show burden on males freedom of expression women were already invited to share groups views and participate and train in its activities Thus, it wont interfere w/ the message
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Rule of Roberts: The right to association is NOT absolute. If right to intimate or expressive assoc. is implicated, must apply Strict Scrutiny Thus, infringements on the right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means less restrictive of associational freedoms
Boy Scouts: Facts: NJ law prohibited discrimination of sex orientation in public places. Boy Scouts revoked Ps membership b/c he was gay. P claimed this was a violation of the NJ law. Scouts claimed that if they were required to allow P as a scout leader it would violated their First Amendment Rights. Held: Applying the NJ law to allow P back as scout leader violated Scouts 1st Amendment Rights Forcible inclusion of gay leader unlike the Roberts case was a severe burden on the Scouts freedom of expressive association Rationale: Association is expressive whenever it engages in expressive activity, not just when the association is for the purpose of expressing a particular message THUS, boy scouts use of adults as leaders was to instill a value system in youngsters and was an expressive activity which made the scouts and expressive association the expressive association right was infringed by the states forcible inclusion of an unwanted member Scouts claimed inclusion of homo was inconsistent w/ its preaching of moral purity
Exam Tip Associational Freedoms: TEST: In order to interfere w/ freedom of association the state must show a compelling interest that is unrelated to the expression of ideas that can not be achieved through less restrictive means ROADMAP: (1) Is it a group, or an organization looking towards group membership? This may trigger the right to association ANALYSIS: Usually will have a compelling interest Battleground will be over whether the intrusion on the association is too great CASES: Roberts: Good for State applied SS, and the state overcame it P must show burden on associational expression as a result of the interference Boy Scout: Good for Challenger loose interpretation of expressive association Freedom Not to Associate: The right not to associate also means that an association has a 1st Amendment interest in not being forced to accept unwanted members Boy Scouts: Court held the b/c opposition to homosexuality was part of the Scouts expressive
message their freedom of association was violated by a state anti-discrimination law that barred the group from excluding gays as leaders
Factors: The more central the organizations views on a matter the greater the interference w/ associational rights if the organization is force to accept a member w/ opposing views
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If a view is not clearly articulated or not especially central to the organizations mission, compulsory membership by one w/ opposing views may cause so little harm that the governmental objective may outweigh the associational interest Ex: Roberts: This is what happened in Roberts. The all-man group had a 1st Amendment
interest in not being required to accept women BUT the stance was not very central to the organizations purposes and was outweighed by the States compelling anti-discrimination interest
Compelled Speech: The Freedom NOT to Speak: The mirror image of the right of free expression is the right not to express ideas Just as government control of the content of expression is presumptively invalid, so is government compulsion of specified expression TEST: Compulsion of speak or associate may be justified IF: (1) It is the least restrictive means of; (2) Accomplishing a compelling interest (3) That is unrelated to the force expression of ideas
W. Virginia v. Barnette: (Overturned State requirement) What is the extent to which First Amendment restricts educators choice of curriculum and teaching materials Facts: Regulation required teachers/students to salute the flag during the pledge of allegiance and failure to conform led to expulsion. Jehovahs refused b/c of religion and were expelled. Held: Violation Rationale: This type of law compels people to do something they do not believe Wooley v. Maynard: (overturned State requirement) Facts: NH law required noncommercial vehicles to put live free or die motto on license plate. Held: State may not require an individual to disseminate ideological message on license plate Rule: 1st Amendment protects right o f individuals to hold a point of view different from the majority and to refuse to foster, an idea they find objectionable Pacific Gas & Electric: Facts: Public Utilities Commission required a PG&E, a privately owned utility company to include in its billing envelopes speech of 3rd party w/ which the utility did not agree. Held: Commissions order impermissibly burdens PG&Es right Note: Commissions order could be valid if it were narrowly tailored means of serving a compelling state interest here it was not narrowly tailored Hurley v. Irish-American Gay Group of Boston: (good for state) Facts: Parade conducted by war veterans council. Council refused to let gay group march and pronounce their sexual orientations. Group brought suit under law barring gay discrimination. Held: Requiring the gay group to march violates Free expression guarantee b/c the parade organizers had a right not to promote gay speech Rule: Speech involves choices of what to say and what not to say one important principal of free speech is that one who chooses to speak (parade organizer) may also decide what do say
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It is the choice of the speaker not to propound a particular view this choice is presumed to lie beyond the governments power of control
Freedom Not to Speak: CASES: For Freedom Not to Speak: (1) PG&E: Not allowed to require private utility company to use space on its bill to accommodate speech of 3rd party to which they disagree (2) Hurley v. Irish Gay Boston: May not force parade organizer to allow gays in the parade promoting their sexual orientation a message organizers did not wish to convey Against the Freedom Not to Speak: (1) Fair v. Rumsfeld: School was not considered to be compelled b/c their was no association b/w army recruiter and the school and no compulsion school only had to allow recruiters on campus This case shows how to make an argument against compelled speech (2) Barnette: Requiring all students to salute the flag qualifies as compelled speech (3) Wooley: Requiring citizens not to cover up state motto live free or die on their license plate constituted compelled speech
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III. FREE EXPRESSION OF RELIGION: First Amendment contains two clauses pertaining to religious freedom (1) Establishment Clause; and (2) Free Exercise Clause Establishment Clause: Congress shall make no law respecting an establishment of religion purpose: To prevent government from endorsing or supporting religion Specifies when governments may NOT accommodate religion (and when it must refuse to accommodate religion) Free Exercise Clause: Congress shall make no law prohibiting the free exercise of religion purpose: To prevent government from outlawing or seriously burdening a persons pursuit of whatever religion (and whatever religious practices) he chooses Specifies when governments MUST accommodate religion Note: Both clauses apply to any action of the federal and state government Issues: (1) Under what circumstances may the government provide for religion w/out violating the Establishment Clause? (2) Under what circumstances may the government prohibit religious activity w/out violating the Free Exercise Clause? FREE EXERCISE CLAUSE: Religious conduct can sometimes clash w/ secular rules of conduct that is generally applicable to everyone Rule: The Free Exercise Clause flatly forbids the outlawing of any religious belief Problems: Problems arise when government, acting in pursuit of non-religious objectives, either; (1) forbids or burdens conduct which happens to be dictated by someones religious belief; or (2) compels or encourages conduct which is forbidden by someones religious belief 1. Generally Applicable Laws that Impede Religious Conduct: Originally: The court was of the belief that the free exercise clause did NOT bar generally applicable regulations that impeded religious conduct the court then moved to an opinion that such regulations are valid UNLESS there is a less burdensome means to achieve the states objective
Sherbert v. Verner: Facts: State awards unemployment benefits to those who are available to work mon-sat. Although the rule had a non-religious purpose the statute encourages conduct that is contrary to some religions (Evangelists use Saturday as their day of rest) Held: The state policy burdened Ps free exercise of her religion by making her choose b/w receiving benefits and following religion Burden on Free Exercise? Yes, P must choose b/w religious practice or receiving unemployment pay State Compelling Interest? Worried a/b fraud in claiming religious observance and ERs inability to get EEs to work on Saturdays these were not compelling State had no evidence for these claims didnt show it was least restrictive means no showing was made by the state that an exemption would prevent achieving state goals
State had to show compelling interest applied in the least restrictive means 28
Smith reflects current view on Free Exercise Employment Division v. Smith:

This case establishes a new standard instead of Sherbert Facts: Issue was whether state could criminalize possession of peyote, and refuse to give exemption to American Indians who used peyote as part of religion. Ps were fired from jobs and denied unemployment since their terminations were for misconduct Note: Here, the Ps were also violating laws and not just being denied unemployment benefits as in Sherbert) Held: Law Upheld (1) State COULD refuse an exemption; and (2) no balancing of the states interest in its prohibition against the burden on the individuals religious beliefs need be carried out so long as the ban on peyote was generally applicable and not motivated by a desire to effect religion HERE: Since the law was not an attempt to regulate religious beliefs, the new rational basis test under Smith applied and the old Strict Scrutiny test under Sherbert is rejected
Rule: If prohibiting the exercise of religion is NOT the object of the regulation but merely the incidental effect of a generally applicable provision, then the First Amendment isnt offended Right of Free Exercise does not allow an individual to ignore valid and neutral laws of general applicability on the ground the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes) KEY UNLESS there can be shown to be intentional discrimination Rational Basis Review is the new standard Free Exercise: Smith TEST: Rational Basis Review So long as the Government Regulation does not intentional discriminate against Religion you must apply rational basis review THUS law of general applicability that substantially burdens religious practice is evaluated under Smith (1) Legitimate State Interest (2) Rationally Related Most likely applied for civil and criminal cases (at very least only criminal) Effect: Dramatically tougher for P to win Free Exercise challenge to government action - only applies where government action has unintentional effect of burdening religion Law will almost always be upheld under the rational basis review Sherbert TEST: Strict Scrutiny Now only applied where governemtn acts for the purpose of disfavoring a particular religious practice (Lukemi) note: Under this test the govt. practice will usually be void (1) Aimed at a compelling state objective (2) Applied in the least restrictive means a. IF state goal can be served as or almost as well by granting exemption to those whose beliefs are burdened, then the exemption MUST be given Note: Strict Scrutiny may also be applied for the narrow exception of (1) unemployment compensation payments (Sherbert); and (2) where Constitutional Interests (free speech, etc.) are present in addition to Free Exercise claims Main Problem w/ SS: Making every regulation of conduct presumptively invalid as applied to religious objector would open prospect of applying endless exemptions of every conceivable kind law will almost always be struck down under the strict scrutiny review 29
SMITH: Very strong case for the government - Makes it far easier to foreclose a Free Exercise Challenge so long as the prohibition of religion is not the object of the regulation but merely an incidental effect of an otherwise valid regulation it is okay Note: As a practical matter, mainstream religions are often able to obtain religious exemptions 2. Legislation that Targets Religious Conduct or Belief: Note: Smith distinguishes from generally applicable laws that interfere (even substantially) w/ religious conduct from laws that target religious conduct for unfavorable treatment Rule: Laws the single out religious belief for unfavorable treatment are void per se Law that single out religious conduct for unfavorable treatment are presumptively void
Lukumi: Good for the challenger as the regulation was held to be a violation of Free Exercise Facts: Santeria is a religion that perform animal sacrifice for many religious ceremonies. P was a member of a Santeria church in Florida. The city, enacted ordinances that together outlawed religious animal sacrifice. The ordinances were carefully written so as to only outlaw religious animal sacrifice. Also, the history behind the ordinance made it clear that the community disliked the religion and its practices Held: Ordinance was struck down as a violation of the Free Exercise Clause
Rule: If a statute intentionally targets a particular religious practice, it must be evaluated under Strict Scrutiny Regulations that affect religion are subject to strict scrutiny UNLESS act is both: (1) Neutral; and (2) of general applicability
Rationale: Not Neutral: Ordinance were enacted for the purpose of disfavoring the religious practice
Not Generally Applicable: The more under-inclusive an act is the more likely it will not satisfy this. HERE, the act was very under-inclusive (ex: claimed unproperly disposed animals from sacrifice were dangerous yet did not regulate those from hunting)
Locke v. Davey: Good for State Limits the effect of Lukumi Fact: Washington gave merit scholarships to eligible students provided that that the scholarships was not used to pursue a degree in devotional theology (ministry training) Claim: Not facially neutral to religion since it will fund any major except religious one Held: The Carved out generally applicable govt. benefit didnt violate Free Exercise Clause Rationale: Dissenters: Said Lukumi required the carve-out to be strictly scrutinized and then struck down for being facially discriminatory towards religion Majority: Lukumi didnt apply b/c the disfavorment towards religion was far milder AND didnt impose criminal nor civil sanctions on any religious service or right o no burden on religion: Students could use the scholarship to pursue secular degrees and then pursue religious degrees separately
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o Whereas in Lukumi the religious service was fully restricted EXAM: Targeting Religious Conduct and/or Beliefs: Lukumi: Good for Challenger Rule: If statute intentionally targets a particular religious practice or belief it must be subject to strict scrutiny and NOT the Smith Test. - If statute burdens religion it get SS UNLESS; It is neutral; and of general applicability Factors: Court looked to Legislative history what was the purpose behind the act Under-inclusive was the law very under-prescribed so as to suggest it was focused purely on the religious conducts or belief Davies v. Locke: Good for the State Effect: May limit Lukumi to only cases that apply criminal or civil sanctions (punishments) that are imposed for the purpose of disfavoring religious practices and NOT to government conduct merely w/holds a generally applicable benefit so the benefit cannot be used in connection w/ a religiously motivated activity At the Least: Lukumi wont apply and Free Exercise clause wont be violated IF govt. intentionally w/draws funding from an essentially religious endeavor, while continuing to fund comparable endeavors ESTABLISHMENT CLAUSE: Intended to erect a wall of separation between church and state 1. Government financial aid and school vouchers 2. Government endorsement of religious beliefs religion in the public schools LEMON TEST: Lemon Test: Three things must be true of any law for it to survive an Establishment Clause challenge: (1) Purpose: Statute must have a secular legislative purpose a. Court may look to actual purpose and intent of legislation (Aguillard) (2) Effect: Principal or primary effect must neither advance nor inhibit religion a. Is the effect of the law neutral (3) Entanglement: Must not foster excessive government entanglement w/ religion a. Look to states involvement in monitoring or evaluating the religious group Other Approaches: Endorsement: Governments may NOT endorse religious beliefs or disbelief This approach has been used in the area of government display of religious symbols BUT has not displaced Lemon otherwise endorsement test is the current test regarding religious symbols Endorsement of religion may count as a factor 31
Less Effect: Aid given to religious school no longer presumes endorsement (Agostini) rule: Governments may neither coerce nor endorse religious belief or observance, BUT they are otherwise free to acknowledge the religious beliefs and practices of the people Coercion: Government practices that coerce religious belief or practice (or deny religious belief or practice) offend the Establishment Clause (Lee v. Weisman) Note: A majority has yet to state coercion as a necessary element of an EC violation Other Factors: Direct/Indirect: Direct: Direct aid/assistance provided from State to religious institutions is more susceptible to Establishment Clause violations - Agostini cuts back on this problem Indirect or Programs of True Private Choice Government is less likely at fault if religious aid is incidental to a general benefit scheme that did not target religious institutions for favorable treatment - Regulations are viewed more favorably when the aid ends up w/ religious schools b/c of private persons choice of delivery and not the states - Cases include Mueller, Everson, Zelman Disproportionate Use (weakens Effect Prong): Court has shown that stats showing a disproportionate amount of aid going towards religious schools is NOT enough especially when channeled indirectly Mueller (96% of beneficiaries children went to private school); Zelman (97% chose religious schools) Monitoring: Excessive monitoring raises questions of State entanglement w/ religion However, monitoring needed to ensure that in-school programs dont inculcate religion do not necessarily cause excessive entanglement b/w government and religion (Agostini) Ceremonial Deism: Use of religious term where effects are so minor it does not amount to constitutional violation (in god we trust on currency) 1. Government Financial Aid to Religion and School Vouchers: Indirect Aid:
Everson: (program was upheld) Facts: NJ allowed schools to pay cost of transporting children to and from school including to private schools. School then agreed to reimburse parents for costs of using public buses Claim: State is assisting religious schools by paying transportation costs for children to attend Catholic school thus, it violated the Establishment Clause Held: The program was upheld did NOT violate Establishment Clause Rationale: The plan was neutral b/c it applied to children of religious and non-religious schools Even if plan had the effect of causing some parents to send their students to private schools that they otherwise couldnt afford w/out transportation this was an incidental or remote effect and NOT a primary or principal one
HERE: Legislation was part of general program that paid transportation costs of students regardless of the schools they attended Rule: State power cannot be used to aid religions any more then it can be used to harm religions Catch 22: failing to act may inhibit religion while acting may accommodate religion
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No monitoring might cause a regulation to fail the effect prong Too much monitoring may cause regulation to violate excessive entanglement prong
Mueller v. Allen: (No Violation of Establishment Clause) Facts: State law allowed tax deductions for educational expenses. Law was facially neutral available to anyone Issue: whether deduction accommodated religious schools by reducing tuition. Held: Under Lemon the tax deduction did NOT violate Establishment Clause Purpose: State had secular purpose of promoting education by reducing costs Effect: Does not advance religion b/c of broad availability o Does not matter that the benefit is taken by one group so long as it is offered to all o Provides indirect benefit any benefit to religious schools flows through parents Entanglement: Only state involvement is that they must review the chosen text books
Neutrality Key: Any money provided to parochial schools did not flow directly to them instead there was a buffer zone where tax relief was given to parents parochial schools were benefited only indirectly as a result Direct Aid:
Agostini v. Felton: (Good for Government lessens harsh effect of Entanglement Prong) Case highlights a problem of the Entanglement Prong Facts: Public schools provided teachers to parochial schools for some remedial subjects. Held: This plan did NOT violate the Establishment Clause Rule: Federal funded program giving aid to disadvantaged children on neutral basis does not violate Establishment Clause when such aid is given on premises of religious schools pursuant to safeguards Court abandoned presumption that placing public employees on premises of parochial schools inevitably results in impermissible entanglement and symbolic union of church and state If Aid is given on basis of neutral, secular criteria the neither favors nor disfavors religion and is available to both religious AND secular beneficiaries on a non-discriminatory basis it is less likely to have the effect of impermissibly accommodating religion Effect: Court will be more flexible w/ idea of endorsement Will not presume endorsement
every time there is aid (direct or indirect) provided to or on premises of religious school Previously, courts assumed that presence of public teacher at religious school constituted religious endorsement of the state
Zelman: (state voucher plan DID NOT violate Establishment Clause) Case discusses tuition vouchers tuition vouchers may be given to parents to enable them to pay religious school tuition IF the vouchers may also be used in non-religious private schools Facts: State set up program where a student could receive voucher to attend private school. Of --the students who participated 97% attended religious schools. Purpose of program was to enable students in a failing city public school system to receive better education options. Lower Court: said program violated EC b/c it had the primary effect of advancing religion Held: The program DID NOT violate EC Rule Direct/Indirect: Programs of true private choice, in which government aid reaches religious schools only as a result of genuine and independent choices of private individuals is okay (Mueller) Rational: Private Choice: HERE, program was one of true private choice and neutral Other Options: The program also provided aid for tutors and community schools w/ those factored in only 20% of people receiving aid went to religious schools
Using Zelman Good for State
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Gave the Government a lot more leeway to provide funding to religious institutions ANY FUNDING QUESTION must trigger a grappling w/ Zelman State: - Try to analogize facts of case w/ the facts of Zelman (argue it is the same) - Choice: Determine if there is a true private choice (argue that such a choice breaks the chain and relationship b/w government funding and religious promotion - Real World Effects: Unproportional use of government aid not determinative Challenger: - Must argue that facts of case are not Zelman (failing schools w/ no other options, etc.) - At least claim case is a step removed from Zelman (that aid goes further) 2. Government Endorsement of Religious Beliefs Religion in the Public Schools: A pattern similar to that concerning financial aid can be discerned w/ respect to Government acts that symbolically endorse religious beliefs TEST: (1) Actions that unequivocally endorse religious beliefs violate the Establishment Clause (2) Actions that merely facilitate religious beliefs or defer to private voluntary choices are far less likely to violate the Establishment Clause Religion and Public Schools:
Lee v. Weisman: (Violated EC Clause Good for challenger) This case is the Rule regarding prayer in school Fact: School conducted ritual graduation ceremony outside of school which included prayer. Rabbi spoke but was instructed to be secular. The speech given was entirely non-denominational Issue: Whether inclusion of benediction and invocation prayers at formal graduation violated EC Held: Yes,
Rule: Government may NOT coerce anyone to support or participate in religious exercise Where school officials can be said to be sponsoring the religious message, a prayer will be found to be a violation of EC Completely non-denominational school prayer will also violate EC if its state-sponsored
Rationale: Coercion: The state coerced students to participate or at least support the prayers - Graduation was not Voluntary: The importance of graduation in ones life effectively eliminated the option not to attend as a non-realistic alternative - Participation was Effectively Required: Combination of peer pressure and school supervision effectively required student to stand or remain silent (equaling participation) - Non-denominational nature not important: This aspect ignores those who believe in no God
Use of Lee: Any fact pattern discussing prayer must address Lee v. Weisman State: Must try to limits effect - Argue that the holding is limited to the school context - Argue that it only applies to children b/c of their vulnerability to coercion Ceremonial Deism (De-minimis Argument): 34
- State should argue the a technical infraction is too little to be unconstitutional e.g. in god we trust on currency, God bless America by the President, under god court oath, etc. Challenger: Must try broaden its effect - Argue the holding extends to all people and all situations involving government coerced prayer
Edwards v. Aguillard: (good for challenger act violated EC) Discussed idea of teaching the biblical creation theory of evolution in school Facts: Act forbade teaching evolution UNLESS school also taught creation science theory. No school was required to teach either, but if one was taught the other must be taught as well Held: The balanced treatment of creation and evolution theories violated Equal Protection clause Rationale: Majority said Act lacked a secular purpose in fact it had a discriminatory purpose
Rule: Court will NOT defer to any stated secular purpose Court will look into the purpose to determine if it qualifies as a legitimate, actual, or primary purpose Court looked to legislative intent to deduce the preeminent purpose Note: State is especially concerned w/ compliance w/ EC w/in schools b/c of coercive nature of schools (mandatory attendance, teachers as role models, kids can be influenced) Adoption of Religious Symbols: Outside of public schools, the Court is more deferential of government adoption of religious symbols and messages Display Issues arise when government puts on OR allows its property to be used for a religious display TEST: Courts have NOT applied Lemon (1) Government may not act impermissibly to endorse religion (2) Government may merely co-opt a religious message or symbol in a manner that delivers a benign, secular message Question: Would a reasonable observe seeing the display conclude that the government was endorsing religion in general OR a particular religion IF YES it violates EC Reindeer Rule: As long as non-secular symbol is not alone it is okay secular symbols serve to water-down the religious message and make the endorsement less severe Application: Violation of EC: IF religious symbol is presented by itself The space used is reserved by government for its own property and its own messages Court will likely conclude a reasonable observer would believe the government to be endorsing a particular religious message Non-Violation of EC: IF religious symbol is surrounded by other non-religious symbols nearby; OR There is a sign indicated the display was furnished by private parties without government approval; OR Widespread local knowledge that the public space is commonly used by private parties who wish to set up displays These factors may lead a reasonable observer to the conclusion that the government was 35 not endorsing religion through the displays
Lynch v. Donnelly: (Good for Government did not violate EC) Facts: Town had xmas display every year including secular xmas symbols and a nativity scene Held: Nativity scene did not violate EC Reindeer Rule: Religious symbols by themselves raise more concern for violations of EC whereas the effect of those surrounded by traditional secular symbols may be so diluted as to not violate EC Note: After Lynch the Court abandoned the Lemon Test and substituted the endorsement test for evaluating legitimacy of government displays or religious imagery
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IV. CONGRESS POWER TO ENFORCE THE 14TH AMENDMENT 14th Amendment, 5: Congress shall have power to enforce, by appropriate legislation, the provision of this article (key this includes the Equal Protection clause) Issue: Whether Congress may only implement legislatively the Courts interpretations OR whether Congress has a power independent of the Court to enforce its own interpretation of these guarantees Rule: Congresss power to enforce these Amendment rights is remedial, though that remedial power is broad enough to encompass legislation designed to prevent future violations Broad Remedial Powers (Morgan literacy tests for voting rights was allowed) Congress has the power to adopt remedial legislation concerning the 14th Amendment the power so granted to Congress is extremely broad Ex: Congress may prohibit a state from enacting a facially-constitutional law if Congress merely has a reasonable fear that the effect (not the purpose) of the law will be to interfere w/ a right guaranteed by the 14th Amendment Why? Requiring a judicial determination that the enforcement of such a state law would in fact violate the 14th amendment as a condition to allowing Congressional enactment would depreciate Congressional resourcefulness AND responsibility for implementing the Amendment Congress may expand but not contract the substantive scope of the 14th Amendment Proportionality: (City of Boerne) Repudiates outer reaches of Congressional power afforded in Morgan and provides the mechanisms for drawing the boundaries of Congressional enforcement power Congress has the right to enforce (defined as merely remedial powers) BUT NOT to determine what constitutes a Constitutional violation TEST Must be congruence and proportionality b/w the injury to be prevented or remedied and the means adopted by Congress to that end END RESULT: Congress has the power in the first instance to determine whether and what legislation is needed to enforce the guarantees of the 14th Amendment and its conclusions are given much deference (Morgan) This Congress discretion is NOT unlimited it has been restricted to merely a remedial power Courts retain the power to determine if Congress has exceeded its authority under the Constitution
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V. SECOND AMENDMENT: Amendment II: A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed MUST: Be able to know that there is an issue of the 2nd Amendment Know that the D.C. circuit recently struck down the ban on handgun regulation Know that the Supreme Court says it is a collective right and not an individual right Parker case presents new argument that it is an individual right If Court were to say it is like the 1st Amendment and is an Individual Right: 1st Amendment is highly regulated (SS, intermediate, regular scrutiny, etc.) Deciding it is an individual right is NOT the end of the game it is merely the beginning Lanctot thinks majority would say that it is an individual right This would open up years and years of litigation much like what has occurred w/ 1st Amendment litigation
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3. Fighting Words And Hate Speech:

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Captive Audiences: See infra

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c. Indecency on the Internet Reno v. ACLU:

Rule: If a substantial amount of permissible speech is proscribed, statute will be invalid

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Attacking Content-Neutral Regulations:

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FREEDOM OF ASSOCIATION; COMPELLED SPEECH

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Smith reflects current view on Free Exercise Employment Division v. Smith:

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Using Zelman Good for State

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