First Amendment Outline

I. Policy Reasons to Protect Free Speech

A. Slippery Slope: it is impossible to draw the line between speech which is
purely harmful and speech which is not. Better to permit all speech.
B. Chilling Speech: especially when rules are ambiguous, people may refrain
from engaging in protected speech in the false belief that it may be unprotected.
C. Necessary to Democracy: policy makers need to hear opposing viewpoints to
make good policy. Voters need to hear opposing viewpoints to choose who to
vote for.
D. Marketplace of Ideas
1. M of I assumes that law cannot ex ante determine which speech is or is
not valuable or correct.
2. response: certain speech is beyond all reasonable possibility of being
valuable or correct.
3. other response: certain speech so damages the marketplace as to require
its suppression.
4. Brandeis concurring in Whitney v. California: Those who won our
independence by revolution were not cowards. They did not fear political
change. They did not exalt order at the cost of liberty. To courageous,
selfreliant men, with confidence in the power of free and fearless
reasoning applied through the processes of popular government, no danger
flowing from speech can be deemed clear and present, unless the
incidence of the evil apprehended is so imminent that it may befall before
there is opportunity for full discussion. If there be time to expose through
discussion the falsehood and fallacies, to avert the evil by the processes of
education, the remedy to be applied is more speech, not enforced silence.
Only an emergency can justify repression. Such must be the rule if
authority is to be reconciled with freedom. Such, in my opinion, is the
command of the Constitution. It is therefore always open to Americans to
challenge a law abridging free speech and assembly by showing that there
was no emergency justifying it.
E. Constitutional Tension: there is often a tension between the First Amendment
and other constitutional provisions when speech endangers another constitutional
value, it is worth of regulation.
II. Unprotected Speech

A. Incitement
1. The Current Rule: Brandenburg v. Ohio (1969)
a. Advocacy of the use of force or of law violation is not
protected when:
i. it is directed to inciting or producing (mens rea =
intent)
ii. imminent lawless action (does not include advocacy of
illegal action at some indefinite future time Hess v.
Indiana)
iii. and is likely to incite or produce such action.
b. speech must be evaluated at the time it was made (even if the
action occurred later)
c. test does not require magic words, thinly veiled communication
or code words can still incite violence.
d. In this case, Court struck down the conviction of a Klansman
who called for revengence against the government.
2. Prior to 1919, understanding was that First Amendment only protected
against prior restraints (Blackstone)
3. Holmes Conversion
a. Schenck v. U.S. (1919)
i. Holmes articulates his clear and present danger test.
Speech is not protected when it is used in such
circumstance and [is] 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.
ii. protection of free speech would not protect a man in
falsely shouting fire in a theatre and causing a panic.
(emphasis added)
iii. part of this test is that the scope of protected speech
changes with circumstances. When nation is at war, First
Amendment is less protective than in times of peace.

b. Abrams v. U.S. (1919)

i. Majority says that if you say something knowing it was
likely to cause certain forbidden actions, than you are liable
for saying it.
ii. Holmes shifts in this case from a narrow reading of the
1st Amendment to a broad reading. Holmes dissent says
freedom of speech can abridged only when it is necessary
to prevent an immediate danger
iii. also, Holmes says there must be specific intent to cause
the forbidden action in order to not be protected.
c. Debs v. U.S. :standard is that Debs may be convicted if his word
had as their natural tendency and reasonably probable effect to
obstruct the recruiting service, and unless the defendant had the
specific intent to do so in his mind.
d. this series of cases articulate an extreme deference to the
legislature. Even Holmes dissent in Abrams assumes that one
cannot intentionally undermine the war.
B. False Statements of Fact
1. False statements concerning public officials over matters of public
concern: New York Times, Co. v. Sullivan (1964)
a. Civil rights leaders take out an ad in the NYT which has a few
factually false statements (very minor falsities). Alabama policy
commissioner sues, saying that he was implicitly the subject of this
language. (Court rejects this).
b. Court says that in order to be found liable for libel, must
demonstrate actual malice, which means that statement was in
fact false, and that it was knowingly or recklessly published (D
was aware of a substantial risk that statement was false).
c. Policy:
i. Marketplace of Ideas Argument: self-governance requires
a profound national commitment to the principle that
debate of public issues should be uninhibited, robust, and
wide-open, and that it may well include vehement, caustic,

and sometimes unpleasantly sharp attacks on government

and public officials.
ii. Court rejects the argument that this was not protected b/c
it was a paid advertisement. Say that this is not commercial
speech b/c it was not designed to sell goods or services, but
instead it intended to communicate information. (freedom
of the press exists for those who own one. To encourage
the freedom, must expand ownership (through ads, if
necessary))
iii. also a concern with chilling speech. Under Alabama
rule, a paper with minimal circulation in Alabama could
receive massive damages from biased juries. Reason for
actual malice rule is that speech would be chilled if people
had to constantly check their facts. (response: England has
a robust press)
d. Who is a Public Figure?
i. In Gertz, the Court also suggests that a public figure is
one who assumes the risk of being in the public spotlight.
(Gertz also says that a figure can be thrust into the public
spotlight by events, but that such people are exceedingly
rare.)
ii. can also be thrust in by being a relative of a public figure
(Jenna and Tonic)
iii. one can be a public figure for the purposes of a special
context.
iv. one can be a government employee of sufficient import
(unsure how important). Does not have to be a commonly
known name (like the Deputy Assistant Undersecretary).
Might also be important what the character of the persons
responsibilities are (are they related to the process of
governance, or to traditionally private functions performed
by public employees).
e. What is defamation?
i. Key distinction is between fact and opinion. There are no
false opinions under the First Amendment.

ii. An opinion which reasonably implies certain facts,

however, may be defamatory. (parody is not defamatory so
long as it could not be reasonably construed as true).
2. Private individuals/public concern: Gertz v. Robert Welch, Inc. (1974)
a. Case involving a right-wing newspaper which published false
statements against a civil rights attorney.
b. Court says that suits against non-public officials on matters of
public concern, states may require mere negligence in order to
sustain a defamation suit.
c. Punitives still require actual malice. Court was concerned with
the randomness of jury awards.
d. Two policy reasons for this less protective standard:
i. Public figures have greater media access, and may resort
to self-help, to combat bad information with good
(marketplace of ideas works better for public figures).
ii. By thrust[ing] themselves to the forefront of particular
public controversies, public figures invite attention and
comment.
d. White dissent: the press is robust and juries are capable of
making assessments of punitives with the help of judges. Burden
of bearing the costs of false speech should not fall upon the
innocent party (would impose strict liability).
3. Private individuals/private concern: Dun & Bradstreet v. Greenmoss
Builders (1985)
a. Powell Plurality says that when speech regarding a private
individual address not public concern, the state is free to regulate it
as they choose, including with respect to punitives.
b. Brennan dissent criticizes plurality for failing to adequately
define just what a matter of no public concern is. Plurality says
questions of whether speech is a matter of public concern should
be decided by an individual inquire into the speechs content,
form, and context. Then gives three reasons for their holding:

i. The credit reports at issue in this case were solely in the

individual interest of the speaker and its specific business
audience
ii. Because this speech was made available to only five
subscribers and could not be widely distributed, it did not
require protection to ensure a vibrant marketplace of ideas.
iii. Like commercial speech (speech offering a commercial
transaction), this speech is hardy and unlikely to be
deterred by regulation.
c. Burger concurrence calls for Gertz to be overruled. White
concurrence goes even further and says that New York Times was
wrongly decided b/c public has an interest in keeping false
information out of discourse, and individuals have an interest in
insuring facts are investigating to prevent harm to reputation.
C. Obscenity
1. Miller v. California (1973)
a. three prong test for obscenity:
i. a) average person, b) applying contemporary community
standards would find that the work, c) taken as a whole, d)
appeals to the prurient interest.
ii. the work depicts or describes, a) in a patently offensive
way, under b) contemporary community standards, c)
sexual conduct specifically defined by the applicable state
law.
iii. the work, a) taken as a whole, b) lacks serious, c)
literary, artistic, political or scientific value. (question of
fact for jury)
iv. prurient interest= appeals to a shameful or morbid
interest in sex. Brockett v. Spokane Arcades, Inc. Focuses
on abnormal sexual interest.
v. this test is an objective standard. Intent of person is
irrelevant
vi. the average person applying contemporary community
standards test applies to the local community, not to the

national community. As local standards evolve, more porn

is protected.
b. Possible Defenses to an Obscenity Prosecution
i. compare the instant porn to what is available in the
community. If something is already out there, there is a
community standards defense.
ii. hypocrisy is also a defense. Highest rate of porn
downloads is in Utah. Bring in these statistics from the
distributors, not the purchasers.
iii. Miller has not had the expected chilling effect on porn
sales in large part b/c contemporary community standards
do not support banning porn.
c. Reasons For Excluding Obscenity From First Amendment
i. Wingnuts argue that Miller test produces a vicious cycle,
where coarsening standards lead to more protection for
porn, which leads to coarsening standards
ii. Also concern that obscenity appeals to base instincts and
bypass the kind of rational thought which free speech is
supposed to allow (this goes straight from the eyeballs to
the genitals)
iii. another fear is that women will be objectified, or that
relationships with existing couples will be damaged.
iv. another argument is that porn hurts the people engaged
in the production (this is the argument against kiddie porn).
d. Responses to these arguments:
i. There is no evidence of a coorelation between porn and
deviant behavior. (President Nixons study says opposite).
Some studies show that porn reduces anti-social behavior.
When Denmark reduced their anti-porn laws, rape went
down.
ii. Rule singles out porn for unfair treatment. Studies do
show watching violence causes anti-social behavior, yet
depictions of violence are protected speech.

iii. Also, there are other areas of protected speech, such as

violence or graphic photojournalism which also have the
kind of emotional response which can bypass reason.
(should impassioned sermons be banned?)
iv. Direct incitements to harmful conduct (Brandenberg)
are given greater protection than porn. This is non-sensical
b/c any alleged harms caused by porn are based on an
attenuated chain of causation.
2. Paris Adult Theatre I v. Slaton (1973)
a. Courts apply only rational-basis scrutiny in evaluating laws
regulating obscenity, even when only consenting adults will view
the porn.
b. Anti-porn law is upheld even though the only scientific study
which could be cited was the Hill-Link Minority Report.
Government may regulate on unproven assumptions.
c. Court also raises fear here that if porn is not regulated, it will
corrupt the minds of men and thus harm all of society.
D. Child Pornography
1. Policy
a. focus of ban on child porn is that it is harmful to the children
being filmed, not to the society as a whole.
b. this personalized harm argument fails for adults b/c adults are
felt to have the capacity to make certain decisions w/o
psychological harm and with attention to the consequences in a
way that children are not.
c. reason why economic coercion argument has never gained
traction with adults is because it would eliminate any degrading
labor.
2. New York v. Ferber (1982)
a. does not matter if the work passes the Miller test. It need not
appeal to the prurient interest, does not need to lack serious artistic,
political, literary or scientific value.
b. test for kiddie porn has two parts

i. visually depict[s] children below the age of majority.

ii. performing sexual acts or lewdly exhibiting their
genitals
c. OConnor concurrence: consideration of whether piece has
literary or artistic value should not be considered. Willing to
include some valuable speech (such as National Geographic or
medical textbooks) to get at child porn.
d. Brennan concurrence: reason for kiddie porn exception is that its
value is de minimus. Once you bring medical textbooks and the
like into the picture, their value places them w/in the First
Amendment.
e. This rule prevents even socially beneficial child sexual
depictions, such as exposes of horrible child explotation (kiddie
brothels)
3. Ashcroft v. Free Speech Coalitions (2002)
a. suit challenging anti-child porn law which forbids simulated
child porn. Does not need to be a child in any way involved in the
making of the illusion.
b. Statute was struck down b/c no actual harm is done to children
by simulated porn. Aim in Ferber was to prevent the harm to
children caused by filming porn.
c. government cannot premise a law on controlling a persons
thoughts. (this prohibition on thought control is in conflict with
Miller test, because Miller does not protect prurient interest
speech which will poison peoples minds.)
d. Thomas concurrence: while this law is now unconstitutional, if
the simulated porn defense frustrates prosecution of actual child
pornographers, than under those circumstances the law would be
justified.
e. Majority rejects the lure kids into sex argument because it
would also mean criminalizing candy and cartoons.
f. current Court is more interested in specific harms to be avoided
by laws, rather than abstractions about making people better
people

E. Offensive Speech/Risk of Violent Reaction

1. Chaplinsky v. New Hampshire (1942)
a. two part test. Speech is unprotected as fighting words if:
i. it tends to incite an immediate breach of the peace by
provoking a fight
ii. the speech is individually addressed to the person who is
insulted
iii. might be restricted to expressions that are no essential
part of any exposition of ideas.
b. This decision recognized words which by their very utterance
inflict injury or tend to incite an immediate breach of the peace.
c. since Chaplinsky, SCOTUS has never found another instance of
speech to be unprotected as fighting words. Hard to draw a line
between fighting words and words that only effect the oversensitive.
d. if words do actually cause a fight, the government can prosecute
both parties for fighing.
2. Cohen v. California (1971)
a. D wears a fuck the draft jacket to court, is arrested for
violating a statute which forbids malicious disturbances of the
peace by offensive conduct.
b. Court strikes down the statute, concern that there is no
principled line allow the court to pick some bad words over
others (one mans vulgarity is anothers lyric)
c. Also a concern with the importance of emotive expression. Part
of Cohens communication is lost if he can not express his outrage
through language. (how is this consistent with banning obscenity?)
d. Captive Audience
i. Court says in order for captive audience doctrine to
apply, the speech must be such that substantial privacy

interests are invaded in an essentially intolerable

manner.
ii. Here, this did not apply for three reasons:
(a). unwilling viewers were only briefly exposed to
Cohens speech.
(b). there was not evidence that anyone who was
unable to avoid exposure objected.
(c). The statute did not address the problem of a
captive audience. (overbredth)
3. Texas v. Johnson (1989)
a. Case striking down a Texas statute which banned flag burning.
State asserted an interest in preventing an audience that takes
serious offense at particular expression from disturbing the peace.
b. Court said no dice, it is one function of free speech to invite
dispute, and [i]t may indeed best serve its high purpose when it
induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger.
c. Government must weigh each utterance against its actually
chances of breaching the peace. Here, no onlooker could view this
flag burning as personally directed towards them, so no fighting
words.
d. States other asserted interest is in preserving the flag as a
symbol of national unity. This fails because it is not content
neutral, it allows people to burn the flag for any purpose other than
one which desecrates it. (in P.A.V. v. St. Paul, Court struck down a
hate crimes statute b/c a law cannot draw a content based line b/t
different types of hate speech)
4. Hustler Magazine v. Falwell (1988)
a. Hustler publishes an ad parody at Jerry Falwells expense.
Falwell sues for defamation and IIED
b. defamation suit fails b/c no reasonable person could think the ad
represented true statement.

c. First Amendment does not prevent suits in IIED, does protect

speech directed to public figures on matters of public concern. (no
case has said private figures cannot sue for IIED)
d. one reason for this decision is because parodies are an essential
part of political discourse. Impossible to separate the ad parody
here from more serious political cartoons.
5. Threats
a. May be punished for issuing a threat if a reasonable person
would see it as a threat, if they would view it as obvious hyperbole,
it is protected speech (threats of social ostracism does not fall
within the threat exception.)
b. Virginia v. Black
i. Virginia statute banned cross burning w/ intent to
intimidate.
ii. in a fractured opinion, Court said that statute was not
facially invalid, but a presumption that the burning was
done with intent to intimidate was not constitutional.
II.. Commercial Speech
A. Commercial speech is speech proposing a commercial transaction. Bolger v.
Youngs Drug Products Corp. defined this to include economically motivated ads
which identify a certain product.
B. Central Hudson Gas & Elec. v. Public Serv. Commn (1980)
1. NY statute forbade all advertising for the purpose of selling electricity.
2. Court says that a law restricting commercial speech must survive a four
part intermediate scrutiny:
a. Is the speech false, misleading or does it concern illegal
activities (if yes, rational basis)
b. Is the restriction justified by a substantial government interest?
c. does it directly advance that interest?
d. is it not more extensive than necessary to serve the interest?

3. Here, Court invalidates the regulation, b/c the states interests in

conservation can be attained through direct economic regulation which
does not implicate the Constitution. (ironically, state can ban certain trade,
but cannot ban speech advertising it)
4. Rehnquist dissent: commercial speech does not fall within the scope of
the First Amendment, by striking down restrictions on commercial
advertising, the court is engaging in Lochner-like tampering with
economic regulation.
5. Blackmun concurrence: by restricting commericial speech, government
treads a dangerous line not only by regulating information, but also by
regulating markets in a way which is not obvious to the public (taxes, by
contrast, are obvious).
C. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council (1976)
(policy reasons for protecting economic speech)
1. One policy reason for this decision is that commercial speech can lead
to important political speech (such as Canadian pharmacies advertising
their lower drug prices to border states)
2. Another is that consumers have a strong interest in knowing what
products are available at what prices to allow the advantages of
competition.
3. Blackmun in majority speaks out against paternalism. First Amendment
makes the decision against government intrusion.
4. This was the first case to hold the First Amendment protects commercial
speech.
D. Lawyers Soliciting Fees: Ohralik v. Ohio State Bar Assn (1978)
1. Ohio State Bar has a prohibition on certain kinds of client solicitation
Court upholds the ban b/c of fear of client manipulation. Certain speech
may be inherently deceptive.
2. state has an substantial interest in preventing abusive solicitation
3. one reason why this case is distinguishable from Central Hudson is that
the law in Central Hudson could be more narrowly tailored to the
particular harm sought to be prevented. Here, it would be difficult to
narrowly tailor a law which regulates private conversations between
lawyers and clients.

4. Possible policy rule to take from this case is that the states interest in
paternalistic regulations increases as the knowledge & power disparity
between the speaker and the consumer increases.
E. 44 Liquormart, Inc. v. Rhode Island (1996)
1. Statute prohibited advertising of liquor prices except at point of
purchase.
2. Seven Justices agreed that statute violated the Central Hudson test.
State said its interest was in temperance, Court says that, while
suppressing price information will likely lead to higher prices, there is no
indication that this will prevent heavy drinkers from drinking.
3. Also, higher prices could be maintained with taxes or other economic
regulation.
4. Court was particularly concerned with suppression of truthful
information. 4 Justices (Ginsberg, Stevens, Thomas & Kennedy) say that
government must show a very substantial reason to ban advertising of the
truth.
III. Strict Scrutiny
A. prongs of the test
1. compelling government interest
2. which is substantially advanced by the challenged law
3. cannot be over or underinclusive
4. must not be less restrictive means (and/or narrowly tailoring)
B. Carey v. Brown (1980)
1. state statute prohibits all picketing, except for labor picketing. Court
says this statute is not valid because it is not content neutral. Can forbid
all picketing, cannot select picketers.
2. also a fear of sham statutes. The fact that government allows some
kinds of picketing shows that government is not really concerned with
their stated reason (privacy in the home). Law is underinclusive.

3. also an aspect of minority protection. If the statute also restricts the

majoritys views, the legislature will be pressured not to enact the law.
C. Florida Star v. B.J.F. (1989)
1. Florida Star publishes a rape victims name in violation of a state statute
2. Court first establishes that true speech is presumptively protected even
if it applies to private facts.
3. three government interests raised:
a. privacy of victims of sexual offenses
b. physical safety of such victims, who may face retaliation
c. encouraging victims to report crimes
4. Court says that there are less restrictive alternatives: Government could
have done a better job in shielding the name. (this means that even if the
existing regulation on its face is sufficient, when it is violated, government
still has a duty to self-police)
5. Scalia concurrence: this statute is underinclusive and overinclusive b/c
it does not apply to other crimes where the same concerns exist, and it
does apply to rape victims who are not in danger of the above harm.
6. also underinclusive b/c it applies to newspapers and not neighborhood
gossips.
7. White dissent: neighborhood gossips would be covered under the
publication of private facts tort.
D. Ashcroft v. ACLU (2004)
1. challenge to a law requiring certain screening on adult web pages to
prevent minors from viewing them. (strict scrutiny is triggered b/c law
restricts adult access to protected speech)
2. part of test is whether there are other effective (not equally
effective) means of serving the governments interest.
3. Court remands to consider whether filters are an alternative, less
restrictive means to achieve the same compelling interest.

4. Breyer dissent: filters dont get at all porn and restrict other things (over
and underinclusive), they cost money, and they require effort on the part of
the parents.
E. Republican Party of Minnesota v. White
1. candidate for judicial office cannot announce their views on legal issues
2. Scalia majority: this law fails strict scrutiny. Strict scrutiny is triggered
b/c it is a content based restriction on speech
3. state asserted interest of preserving impartiality. Court says this law
was not narrowly tailored to fit this interest.
4. dissent: judges are not like ordinary people, must maintain appearance
of impartiality
IV. Campaign Finance Regulation
A. Overarching restricting campaign speech is the desire to ensure a handful of
persons do not have a massively disproportionate control over political dialogue.
1. Buckley rejects this with respect to direct speech through money (money
spent on political expression). [T]he concept that government may
restrict the speech of some elements of our society in order to enhance the
relative voice of others is wholly foreign to the First Amendment.
2. Purpose of First Amendment is to secure the widest possible
dissemination of information from diverse and antagonistic sources and
to assure unfettered interchange of ideas for the bringing about of
political and social changes desired by the people. (quoting New York
Times).
B. Arguments for constitutionality of CFR
1. First Amendment is in conflict with Guarantee Clause. (problem is that
First Amendment amends the Guarantee Clause). (use Ryans argument
here).
2. another argument: in a modern society, First Amendment must empower
the government to preserve the marketplace of ideas.
3. no Justice has ever said that the First Amendment can equalize the
voices which people are hearing.
C. Buckley v. Valeo (1976)

1. Challenge to limits on individual expenditures for political purposes and

limits on campaign contributions.
2. Government asserts two interests:
a. Preventing corruption or the appearance of corruption
b. Neutralizing the effects of wealth on the campaigns. Equalizing
voices. (see above. Court says this in not compelling, and
possibly not legitimate)
3. With respect to interest in preventing corruption, Court says that the
limit on contributions is narrowly tailored to support this interest.
a. Not overinclusive b/c each large contribution can lead to
corruption or the appearance of corruption.
b. Least restrictive means because other regulations, such as
banning bribery or requiring disclosure, are not nearly as effective.
c. Also, contributions have only a vague relation to speech, since
speaker is not saying why he supports the candidate, and a larger
donation communicates the same message as a small donation (I
support his candidate). So these laws make a relatively minor
burden on communication.
d. Burger dissent: These laws are just as burdensome as the
restriction on individual expenditures, b/c contributions are merely
an alternative means of spreading an opinion.
4. Restriction on individual expenditures is not narrowly tailored to
preventing corruption
a. Does not advance the interest because the law would be too
broad or too vague unless it is limited to express advocacy of the
election or defeat of a candidate, but then it is too easily
circumvented.
b. Also, does not significantly advance because one you take out
contributions, the absence of coordination is all that is necessary to
remove corruption.
5. Also struck down is a limit on a candidate spending their own money,
because a candidate cannot be seen as bribing themselves.

D. First Natl Bank of Boston v. Bellotti (1978)

1. Challenge to law forbidding corporations from influencing ballot
measures or other referendum which do not relate to the business of the
corporation.
2. State lists several interests:
a. Preserving integrity of electoral process & confidence in
government. (court does not decide if compelling)
b. Preventing corruption (compelling) (White/Brennan/Marshall
dissent says corporate contributions are like compelled speech for
stockholders).
c. Preventing corps from spending stockholder money on issue
they disagree with (court does not decide if compelling)
d. Preventing corporate speech from downing out others. (may be
illegitimate b/c it means drowning out some voices)
3. (a) & (d) above are not substantially advanced by this law b/c there has
been no showing that the relative voice of corporations has been
overwhelming or even significant in influencing referenda in
Massachusetts.)
4. (b) is not substantially advanced because a referendum cannot be bribed
or corrupted.
5. The law is both under and overinclusive with respect to (c).
Overinclusive b/c it applies even to referendum the stockholders agree
with, underinclusive b/c stockholders may not agree with referendums
which the statute allows corps to influence.
6. Rehnquist dissent: the state creates corps, so it can restrict them as it
chooses.
E. Austin v. Michigan Chamber of Commerce (1990)
1. Challenge to law forbidding corporations from engaging in political
speech, except through PACs. Law is upheld.
2. Compelling Interest: preventing the corrosive and distorting effects of
immense aggregations of wealth that are accumulated with the help of the
corporate form and that have little or no correlation to the publics support
for the corporations political ideas

3. Law is narrowly tailored b/c it still allows corps to speak through

segregated funds maintained by money specially contributed for this
purpose.
4. Law is not underinclusive. Even though it does not apply to individuals
and unions, they do not have the advantage of the corporate form.
F. McConnell v. F.E.C. (2003)
1. Upholds laws restricting electioneering communications by any
union, corporation or individual.
2. Court upholds this ban, saying that Buckleys limit on individual
expenditures was unconstitutional as vague or overbroad, but this law does
not suffer from that vice. (Benjamin says this is a movement away from
Strict Scrutiny)
V. Content Neutral Regulation
A. U.S. v. OBrien suggests a law is content neutral when the government
interest is unrelated to the suppression of free expression. This means
government must articulate a substantial interest which is content neutral.
B. Frisby v. Schultz (1988)
1. local ordinance forbade picketing which targeted a particular home.
2. test for determining if a content neutral law which burdens the time
place or manner of speech survives scrutiny (Ward v. Rock Against
Racism test):
a. must serve a substantial government interest (Volokh says this is
an easy test. Here, the interest was preserving residential privacy)
b. must be tailored to serve this interest (not narrowly tailored in
the SS sense, although this wording is often used)
i. must not be substantially overinclusive
ii. or impose a burden which is disproportional to the
problem (Schneider v. NJ)
iii. does not need to be least restrictive means. (Ward v.
Rock Against Racism)

iv. ok to be underinclusive (City Council v. Taxpayers for

Vincent)
v. Here, since the interest was in preserving residential
privacy of unwilling listeners, the statute was narrowly
tailored because it targets only focused picketing, not
picketing in general.
c. must be ample alternative channels available to allow the
speech. Cannot ban speech, can reroute it to other, more or less
equally effective communication. (similar to the substantial
burden test in Casey) (ample alternatives prong requires an ample
opportunity to make the same communication, but in a different
manner.) (here, picketers could just picket elsewhere)
3. a complete ban can be narrowly tailored, but only if each activity
within the proscriptions scope is an appropriately targeted evil
4. even if ample alternatives do not exist, can still argue that the law
survives strict scruinty.
5. Implication of this decision is that, given this substantial interest,
protected speech is speech which is directed at the public in general, not
individuals. (distinguish key figures by saying an important part of the
message is speaking to this person)
C. City of Ladue v. Gilleo (1994)
1. Case striking down an ordinance which forbade posting of signs in
residential areas.
2. Citys interest in minimizing . . . visual clutter was concededly valid
but certainly [not especially] compelling.
3. Ordinance fails b/c it fails to leave ample alternative means. While D
could still display the sign elsewhere, like on a bumpersticker, an
important part of communicating is being able to identify oneself with the
communication.
4. Our prior decisions have voiced particular concern with laws that
foreclose an entire medium of expression.
5. Always look for an essential aspect of the communication which is
lost by the regulation.
D. Conduct with Communicative Aspects: U.S. v. OBrien (1968)

1. Challenge to ban on burning of draft cards

2. OBrien test:
a.. law must be justified (what is the substantial interest?) w/o
reference to the communicative impact of the expressive conduct
(content-neutral). Does the conduct endanger the government
interest b/c of the message, not the means? (Texas v. Johnson)
b. does it serve a substantial governmental interest?
c. is not substantially overinclusive, or disproportional to the harm
d. underinclusiveness is ok.
3. to reach the OBrien test, must show that the action:
a. intends to convey a particularized message, and
b. either:
i. the likelihood is great that the message would be
understood (Johnson), or
ii. it is within a traditionally protected genre (Hurley v.
Irish-American Gay, Lesbian & Bisexual Group).
4. Legislative motivation is not relevant to determining if a law is content
neutral. Here, Senator Thurmond said this law was to punish people who
spoke out against the draft, but since the law was written to be content
neutral, it is treated as such.
5. here, the relevant law was a ban on the burning of draft cards. Court
says the substantial interest is preserving the administrative system
associated with the draft. Law was upheld.
E. Clark v. CCNV (1984)
1. Park granted a protest permit to set up a homeless camp. Could not let
the homeless sleep overnight.
2. Governments interest was content-neutral. Preventing damage to parks
from camping.

3. (Harlan, J., concurring): ample alternative channels prong is implicit

in the test, but it will always be met b/c speech can always replace conduct
as a means of communicating.
F. Texas v. Johnson: flag burning is only banned when it is done to express a
certain purpose. This is content based, and is not allowed.
VI. Government as Employer
A. Holmes approach (not the law): you have a right to speak, but you dont have
a right to be employed
B. reasons for giving free speech rights to government employees
1. without such rights, people wont want to work for the government
2.government workers are in the best position to reveal information
beneficial to the public
3. if government can offer a conditional removal of rights, they can wield
their power to systematically replace all rights.
4. civil servants have a duty to the public beyond their duty to their
employer
C. reasons for giving less First Amendment protection to government employees
1. public has a strong interest in well managed government offices. This
means restricting speech which hurts the office.
2. people who work for the government choose to do so. They can choose
to quit and regain their rights.
3. the public has an interest in government supervisors being able to trust
their subordinates not to publicly lambaste them.
4. possible national security interests in classified information.
5. Scalia dissenting in Rankin: public confidence will be undermined by
government employees speaking out in contradiction to their agencys
mission
D. Connick v. Myers (1983)
1.Government may not take action against an employee because of their
speech if:

a. the speech is on a matter of public concern

b. the damages caused by the speech to the agencys operation
does not outweigh the employee & publics interest in its being
spoken. (Pickering balancing test)
2. factors to be considered in Pickering test
a. does the speech interfere with close working relationships?
b. does the speech disrupt the office?
c. does it take up work time?
d. does it threaten the employers authority?
e. does it have the potential to do the above?
3. the greater the publics interest in the speech, the stronger the
governments need must be.
4. Here, Court says virtually all of Myers speech was not on a matter of
public concern. Myers did not seek to inform the public that the District
Attorneys office was not discharging its governmental responsibilities in
the investigation and prosecution of criminal cases. Nor did Myers seek to
bring to light actual or potential wrongdoing or breach of public trust on
the part of Connick and others.
Indeed the questionare, if released to the public, would convey no
information at all other than the fact that a single employee is upset with
the status quo.
5. Myers question regarding political pressure is a matter of public
concern b/c it alleges an illegal act by a public official.
E. Rankin v. McPherson (1987)
a. woman who says in a private employee room that she hopes that a
future attempt on Reagans life will be successful is fired
b. Court says this is a public concern because the public is quite obviously
interested in the continued life of the President.
c. here, the fact that the woman is just a file clerk and was unlikely to
disrupt or undermine her office weakened the strength of the government

interest, as did the fact that her comment was only overheard by two
employees, one of whom was her boyfriend.
d. Scalia dissent: people in government offices should not be able to
advocate against the purpose of that office.
VII. Government as Postmaster
A. old rule is government creates post office, so government may regulate it
B. current rule is that the government does not have an additional authority to
regulate the post office with respect to content-based regulations
1. one reason for this rule is that Post Office is analogous to a traditional
public forum, while something like the UNC e-mail server (which can be
restricted) is analogous to a designated public form
2. another reason for this rule is that the Post Office has a monopoly on
certain types of traffic, such as first class mail.
C. Government has nearly limitless power to enact content-neutral restrictions,
such as setting postal rates or limiting package sizes.
VIII. Government as Landlord
A. law establishes four different kinds of forums
1. Traditional public forums: most protective test. Strict scrutiny if
content-based, special intermediate scrutiny test if content-neutral. These
include sidewalks, parks and the like (but not airports)
2. Designated public forums: forums which are created for a specific
communicative purpose. Government may limit communication on these
forums to things reasonably related to the purpose of the forum (still
cannot state a forum purpose which is viewpoint based).
3. Non-public forums: all other government property that is not used by
the government itself for speaking. Here, government may make any
regulation which is reasonable.
a. Restriction must be consistent with the governments legitimate
interest in preserving the property for the use to which it is
lawfully dedicated. Perry Education Assn v. Perry Local
Educators Assn

b. Government need not show conclusive proof that the speech

would interfere with the governments activities, but there must be
some evidence of this. Perry.
c. Regulation is reasonable if the speech carried on by plaintiffs as
well as other similar situated groups would interfere in some
measure with the states interests. ISKCON v. Lee.
d. Still cannot engage in viewpoint discrimination. ISKCON.
4. Not a forum at all: forums which are devoted only to government
speech (like a government owned TV station or a government office).
Here the government may engage in any speech they like, even if
viewpoint based.
B. ISKCON v. Lee & Lee v. ISKCON (1992)
1. case involving the right of Hari Krisnas to 1. solicit money, and 2.
distribute flyers in an airport.
2. paradigm example of a traditional public forum are streets and
sidewalks. They have a principal purpose of the free exchange of
ideas. Such a forum is not created simply because the public may visit.
3. three factors to finding a public forum
*a. long (immemorially) history of the forum being a public forum.
*b. designation of the forum as a public forum
c. might also be relevant where the forum is located. If separated
from other public forums, a new forum is likely not a public forum.
d. based on this test, it is unlikely that any new public forums will
be created except by designation.
4. Since this is is designated a non-public forum, then the test is 1)
reasonableness (not rational basis) and 2) no viewpoint discrimination.
5. OConnors opinion:
a. Reasonableness should be judged against whether the
regulation is consistent with the [governments] legitimate interest
in preserv[ing] the property . . . for the use to which it is lawfully
dedicated.

b. Here, this airport functions as both a terminal and a shopping

mall. Thus the solicitation ban is consistent with the commercial,
multi-purpose ban in place, but the ban on leafleting is not (could
only disrupt the mall by littering, which is a minor problem).
6. Dissent
a. dissent says this is a public forum, therefore standard for content
neutral laws which restrict speech applies. (substantial government
interest & no substantial overbredth & adequate alternative
channels)
b. dissent divides. Kennedy says that the ban on solicitation is ok
b/c governments interest in preventing fraud & duress is narrowly
addressed by this law and this law only prevents the manner of
solicitation (immediate receipt) and does not prevent other
communication (asking for subsequent donations)
c. Souter says law is not narrowly tailored (can just ban fraud) and
does not provide ample alternative channels b/c of the difficulty of
raising money through envelopes and the like.
IX. Government as Subsidizer/Speaker
A. FCC v. League of Women Voters (1984)
1. Government sought to ban government funded stations from
editorializing. Court strikes this ban down with respect to money derived
from other sources.
2. government can restrict what is done with government money. Cannot
restrict what is done with other money as a condition of taking the grant.
(government can cure a law by saying this money may not be used). A
condition on a grant which forbids certain communication through
independent funds in unconstitutional.
3. The government may force a speaker to separate out the nongovernment funded program if that program violates the grant. (or to form
a non-tax exempt 501(c)(4) to engage in activities forbidden to the a
501(c)(3))
4. government is still free to speak itself, or to flood the marketplace with
a certain message (no fairness doctrine for government speech)

5. Rehnquist dissent: money is fungible, if government gives a conditional

grant to an organization, they will shift other money to the forbidden
purpose. Also, government money might pay salaries of dual purpose
employees (response: government can require split labor)
B. Rust v. Sullivan (1991)
1. government program funds family planning clinics, but does not allow
clinic workers involved in those programs to advocate abortion.
2. the Government has not discriminated on the basis of viewpoint; it has
merely chosen to fund one activity to the exclusion of the other.
3. strong argument that this case is results oriented. Two members of the
Rust majority voted incompatably in Velasquez.
4. 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)).
C. Rosenberger v. Rector (1995) (Kennedy)
1. UVA funds could be distributed to any newspaper except one which has
the editorial policies of supporting any view regarding the existence of a
higher power.
2. Court says first that this is the government creating a designated public
forum (government appropriated some of its money for the purpose of
allowing equal exchange of ideas within guidelines), thus the test is 1)
purpose of the forum plus 2) no viewpoint discrimination.
3. Court then says that this policy is unconstitutional for engaging in
viewpoint discrimination.
a. Policy discriminates by forcing people who wish to express a
religious viewpoint to play by different rules than others.
b. P.A.V. v. St. Paul (Scalia): St. Paul has not such authority to
license one side of a debate to fight freestyle, while requiring the
other to follow Marquis of Queensberry rules (this is another type
of viewpoint discrimination.)
c. Judge McConnell: it is viewpoint based to say that you cannot
have either one viewpoint or its opposite, b/c you are still allowing
any other speech to take place which does not address that issue.

4. This case is distinguishable from Rust because here, the government

was creating a forum for individuals to speak, not expressing its own
views through subsidies.
5. Souter dissent: there is no viewpoint discrimination since all religious
viewpoints are subject to this policy.
D. NEA v. Finley (1998)
1. Congress passes law saying that NEA administrators must consider
prevailing standards of decency in determining who receives art grants.
NEA implements this by appointing an advisory board with a diverse
group of people who, in their diversity, will automatically consider their
standards of decency.
2. Court says this is viewpoint neutral. Grants are given on the basis of
excellence, which inherently means some kind of government discretion.
(maybe be different when the grant are not given for inherently subjective
purposes)
3. maybe what emerges from this case is that quality is an exception to
the viewpoint discrimination doctrine.
4. still cannot engage in invidious viewpoint discrimination.
5. cases involving science are easier than Finley because science is
objective. (based on whether scientific method is used)
E. Legal Servs. Corp. v. Velazquez (2001) (Kennedy)
1. government tries to put restrictions on what can be done by lawyers
funded by Legal Services funds. Court says that government cannot
prevent lawyers in these circumstances from speaking in court.
2. Part of the reason is that part of the fundamental job of the lawyer is to
raise legal issues including the ones forbidden here. Judge depends on the
lawyer for this purpose (separation of powers issue)
3. This case is also distinguishable from Rust because it is a case of
government funding lawyers to speak for their client, not to speak as the
governments agent. It does not follow . . . that viewpoint-based
restrictions are proper when the [government] does not itself speak or
subsidize transmittal of a message it favors but instead expends funds to
encourage a diversity of views from private speakers.

4. Where a government uses or attempts to regulate a particular medium,

we have been informed by its accepted usage in determining whether a
particular restriction on speech is necessary for the programs purposes
and limitations. (similar to limited public forum)
5. Since the purpose of LSC funds is to facilitate suits, this restriction does
not serve that end, and therefore it is invalid.
6. Scalia dissent (4 votes): Government funding conditions on speech are
invalid only if coercive or if the spending program is intended to create a
limited public forum for the purpose of encouraging a diversity of views
from private speakers.
X. Vagueness and Overbreadth
A. Vagueness:
1. A speech restriction may be unconstitutionally vague if it fails to
provid[e] an ascertainable standard of conduct. Baggett v. Bullitt.
2. This generally means that a reasonable person must be able to figure out
if their acts are prohibited. fair notice to those whom [it] is directed.
Grayned v. City of Rockford (1972)
3. Rule is more lax for government acting as subsidizer. NEA v. Finley.
This is probably because subsidies do not censor, they add speech.
4. Law must be evaluated as courts have interpreted it. Sometimes courts
will interpret away a vagueness problem.
B. Overbreadth
1. In free speech cases, a law can be challenged as substantially
overbroad, even if it is constitutional as applied to the challenging party.
2. The law must not be overbroad, as construed by the courts. Courts can
interpret away overbreadth.
3. Overbreadth only applies to non-commercial speech (hardy speech).
This applies to the theoretical speech that the overbroad law covers, not to
the challengers speech.
C. Grayned v. City of Rockford (1972)

1. local ordinance forbade willfully disrupting the peace or good order

of a school session with any noise or diversion which disturbs or tends to
disturb the school session.
2. Court looks to state case law to find that tend to disturb the peace has
been interpreted to include imminent threats of violence.
3. Court also says there is no more likelihood that this will be applied
arbitrarily than any other criminal statute (no statute will survive a no
arbitrariness standard)
4. under the Courts interpretation, what is forbidden is actually disturbing
the school, or speech which tends to incite violence. This is ok because it
gives fair notice to a speaker as to whether their speech is disallowed.
D. Miller v. California redux
1. Millers appeals to the pruent interest standard allows for some
ambiguity, but is acceptable b/c a reasonable person could figure it out.
2. this standard is helped b/c Courts have interpreted Miller to be very
protective, including anything with any vaguely artistic value.
3. line must be drawn with sufficient clarity that people with ordinary
understanding will have a strong sense of what they can and cannot do.
E. Hynes v. Mayor of Oradell (1976)
1. local ordinance required canvassers for recognized charitable causes
& political causes to make the local police aware in advance that they
would be canvassing for identification only
2. Court strikes the ordinance down. Unclear just who recognizes a
recognized charitable cause or just what causes are political. Also
unclear just what must be identified to the police.
XI. Compelled Speech
A. W. Va. State Bd. of Ed. v. Barnette (1943)
1. compulsory flag salutes are unconstitutional. Compelled speech is
treated the same under the Constitution as censored speech
2. compelled speech is being required to express something you do not
wish to express.

3. reasons for this rule

a. self realization as an important purpose for the First Amendment
b. marketplace of ideas will be harmed by forced speech
(Benjamin does not like this idea)
4. exception exists for compelled speech to the government, such as tax
returns and census forms. (this is Volokhs charactization, not based on a
explicit holding)
5. commercial speech is also less protected (same standard as for censored
commercial speech)
B. Riley v. National Federation for the Blind (1988)
1. statute requires commercial solicitors for charities to disclose the
amount of money they take off the top.
2. law is struck down even though the only required disclosure was one of
fact (not opinion)
3. Law fails strict scrutiny:
a. states interest is in dispelling any misperceptions as to how
much of their donations go to charity. Court says this is not
compelling because charities also gain publicity benefits from
solicitations & b/c compelled disclosures will reduce charitable
giving.
b. Also, state has alternative, less burdensome means, like
publishing the information themselves or vigorously enforcing
anti-fraud laws.
4. Court does not say whether this is commercial or non-commercial
speech. B/c law is not sufficiently narrowly tailored to survive either level
of scrutiny (not explicit in case)
C. Miami Herald Pub. Co. v. Tornillo (1974)
1. law required newspapers to give a right to reply to people attacked by
newspapers
2. 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.

3. Not only can states not censor speech to encourage equality (Buckley),
but they cannot force people to speech. Government can still do speech on
their own.
D. Wooley v. Maynard (1977)
1. challenge to state law requiring license plates to display Live Free or
Die. Court says this is compelled speech because it makes displaying
this message a condition of driving.
2. State asserts two interests, identification of cars (and NH cars), and
promoting appreciation of history, individualism and state pride
3. First interest fails b/c cars can be IDed w/ the motto. Second interest
fails because it is not ideologically neutral. State cannot have a
compelling interest in imposing a viewpoint.
E. Pruneyard Shopping Center v. Robins (1980
1. state law requires local businesses which are open to the public to allow
certain kinds of speech and solicitation
2. Court affirms this law, business by opening itself to the public also give
up its right to restrict the public, when the publics action do not disrupt
their business.
3. also, law is content neutral
4. finally, little likelihood that the law will cause people to impute other
speakers beliefs onto the business.
F. Pacific Gas & Elec. Co. v. Public Util. Commn (1986)
1. ordinance requires P to include newsletters written by dissident
organizations to counterbalance political newletters included in Ps
billings. Under ordinances reasoning, the extra space in the billing letters
are the property of the customers, not of the P
2. Court says this law is unconstitutional by compelling speech. By only
forcing the company to include dissident opinions, the law discriminates
on the basis of content
3. Rehnquist dissent: First Amendment is about individual expression,
should not apply to corporations.

G. Turner Broadcasting Sys. v. FCC (1994)

1. law requires cable companies to carry broadcast stations
2. Court says this is not content based, b/c it applies to all broadcast
stations, not just the ones of the governments choosing.
3. Nor will forcing cable companies to carry broadcast cause other speech
to be chilled or otherwise force cable to alter its messages
4. state also has a particularly strong interest in regulation b/c cable
company can effectively silence speech by depriving unwanted stations of
the right to be viewed.
5. speech cannot be challenged as being bad in and of itself, must be a
separate government interest to support a censorship or compulsion.
6. This case is distinguishable from Tornillo because it does not involve
forcing the provider to choose between meeting an unwanted condition or
not speaking. When resources are unlimited, state can compel additional
speech. (state may also be able to pay for speech).
XII. Right to Associate
A. Two kinds of Right to Associate
1. Intimate Association: applies to small groups, such as family, friends or
a very selective private club. Roberts v. U.S. Jaycees.
2. Expressive Association: applies to any group, but only those that are
organized to express a viewpoint. Id.
3. no protection for commercial association
B. expressive association cannot be substantially burdened by law (must be a
burden on the expression itself)
C. Roberts v. U.S. Jaycees (1984)
1. here, Jaycees argued that women could not be given full voting status
because admitting women would lead to their message being changed,
thus creating a substantial burden.
2. Court says that it is too attenuated that the Jaycees message would
change on their issues (school prayer, pro-business, etc.) b/c women are
admitted. Court will not engage in stereotyping.

3. this case is distinguishable from Dale b/c the Jaycees did not want to
articulate an anti-women policy, they articulated gender neutral expression
which they (Court says wrongly) say will be substantially effected by the
admission of women.
D. Boy Scouts v. Dale (2000)
1. an organization may state what their policy or reasons are for exclusion,
and the court will accept it as fact
a. Majority was likely concerned with judges telling organizations
what their opinions are.
b. also a problem of an organizations history preventing them
from changing if courts can define their expressive purpose.
c. likely impermissible for an organization expressly state their
exclusion is ad hoc. Probably must be some history of
discrimination.
d. dissent: never was a real policy against gays, Boy Scouts merely
decided to get rid of Dale. Must be an official policy to be
expressive association
2. court says that since Boy Scouts claim that they want to express that
homosexuality is not acceptable, it would be a substantial burden to force
the Boy Scouts to admit out homosexuals. By allowing openly gay people
to be Boy Scouts, this would undermine the Scouts intended expression.
a. if including members would force an organization to send a
message which is inconsistent with their stated expression,
discrimination is likely unconstitutional.
b. issue is still a matter of substantial burden. It is possible that a
closet case could not be excluded b/c this would not substantially
burden the Boy Scouts message (not express in opinion)
3. dissent: the Boy Scouts expression was very vague. To make
association into expressive association, must show that the expression is
public and is a central part of the organizations purpose.
4. implicit in Dale is that strict scrutiny is so tough to meet that the Court
wont even run through the analysis

XIII. The Religion Clauses

A. unlike Free Speech, Religion Clause decisions are infused with originalism.
Unlike the Free Speech clause, the founders actually talked about the Religion
Clauses
B. Establishment Clause is of particular value to small religions b/c they are the
least likely to be with the established faith. Establishment is the favoring of the
cool kids. Free Exercise also tends to benefit small religions b/c they have not
been culturally accommodated.
C. Engel v. Vitale (1962)
1. local ordinance required schools to lead prayers which students were
allowed to, but not required to join. At issue is whether or not this violates
the Establishment Clause.
2. one argument which proponents of prayer make is that such rituals are
banal, and have ceased to truly influence (problem, these rituals are more
like paradigms)
3. Court says that one purpose of the Establishment Clause is to prevent
strife. When the state Establishes a religion, those who are not part of the
religion develop a contempt for both the religion and the government.
4. under the Establishment Clause, also cannot prefer relgiousity to nonreligiousity (wingnuts argue that this prayer is ok b/c it does not select a
particular denomination). Part of the problem with a non-denominational
prayer is that simply by selecting any religious tenant, you exclude those
who do not believe it.
D. Marsh v. Chambers (1983)
1. Court focuses on the history of the Establishment Clause in upholding
official prayer and chaplains in legislative sessions.
2. One central point is that the First Congress, which ratified the
Establishment Clause also appointed a chaplain
3. Also, this prayer is merely banal, and unlikely to convert. No evidence
that the legislative prayer was used to coerce anyone into a new religion.
4. dissent: legislators cannot be trusted to be consistent, or to enact
Constitutional laws. Establishment Clause was largely forced upon the
First Congress by the states. Just because you make a promise doesnt
mean you keep it.

E. County of Allegheny v. ACLU (1989)

1. Challenge brought to the presence of a Menorah and a Creche in town
sponsored displays. Court issues a highly divided opinon striking down
the Creche and approving the Menorah.
2. The Endorsement Test
a. OConnor (and current majority): the government cannot
endorse one religion over another. Test is whether a reasonable
person viewing the government action would view it as endorsing
a religion.
b. Purpose of this test is to ensure that the government does not
make a persons religious beliefs relevant to his or her standing in
the political community by conveying a message that religion or a
particular religious belief is favored or preferred.
c. Marsh is distinguished because the history and ubiquity of a
practice is probative of whether a reasonable observer would view
the act as an endorsement.
3. Kennedy dissent
a. the endorsement test is hostile to religion because forcing the
government to focus exclusively on the secular reflects silent
hostility to religion. (by not letting the government state religious
reasons, it would give the impression that government only cares
about secular reasons). Kennedy would adopt the coercion test
which states that government cannot engage in prostylitizing.
b. Kennedy is also concerned that endorsement test creates a
jurisprudence of minutia. Decisions rest upon the location of
monuments, the context, etc.
c. Majority response: respect for religious pluralism should not be
confused with hostility for religion
4. while five justices adopt the endorsement test, they split on whether or
not the menorah violates the Establishment Clause. All five agree that the
crche is unconstitutional.
5. controlling vote says that menorah is constitutional because it has a
secular meaning which was captured by the display (also a message of
diversity).

a. Menorah was rendered acceptable (in Blackmun & OConnors

opinion) b/c it was in the context of a secular display. (including
Christmas tree and a message about lights and diversity)
b. Christmas tree is also interpreted as a secular symbol b/c it
captures the secular aspect of the Christmas holiday.
c. dissent: does not make sense to allow a legislature to engage in
prayer but at the same time forbid the crche.
d. one possible way to distinguish Marsh: members of the
legislature are more sophisticated and less likely to be converted.
6. Capitol Square Review & Advisory Bd. v. Pinette (1995) (OConnor, J.
Concurring): reasonable observer is one who is deemed aware of the
history and context of the community and forum
F. The Coercion Test (Lee v. Weisman (1992))
1. case shooting down a prayer offered at a non-mandatory graduation
ceremony. Majority opinion written by Kennedy, so decision was reached
under the endorsement test.
2. 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
a. Court focuses on the impact of peer pressure on young students
b. case is distinguished from Marsh v. Chambers b/c students are a
captive audience (even if the event is optional no one would
miss graduation). In a legislative session, no one is focused on the
prayer
c. when state tries to say something is not a coercion but is
really an optional benefit cite Lee to rebut. Lee can be
represented as placing a religious condition on the benefit of
attending graduation. Placing religious conditions is coercion.
(one way for government to get around this is to give multiple
paths to the benefit, some of which are secular.)
d. when a religious practice is merely background, might not be
coercive under Marsh. In a 7th Circuit opinion (Tanford v. Brand)
court upheld a mandatory prayer at a graduation ceremony b/c

people were merely milling about, many skipped the prayer, so

there was no compulsion.
i. another possible way to distinguish Marsh, at least under
the endorsement test, is that Marsh does not involve a
disparity of power, while students in school do.
ii. Marsh relies on history, so a possible distinction is
reliance on history. Argument in Marsh is not that the
practice is historical, but that this particular establishment
was allowed by the framers.
3. OConnor concurrence applies the endorsement test. When public
school officials, armed with the States authority, convey an endorsement
of religion to their students, they strike near the core of the Establishment
Clause. However ceremonial their messages may be, they are flatly
unconstitutional.
4. Scalia dissent: only logical conclusion from the majority in Lee is that
pledge is unconstitutional.
G. Facially Evenhanded Programs
1. Lemon v. Kurtzman (1971)
a. Challenge to state program which funds private school teachers
not engaged in religious instruction. 95% of recipients are in
religious schools.
b. three prong Lemon test
i. statute must have a secular legislative purpose
ii. its principal effect must be one that neither advances nor
inhibits religion
iii. statute must not foster an excessive government
entanglement with religion
iv. #1 & #2 have largely been subsumed by the
endorsement test (or in Kennedys mind, by the coercion
test)
c. Court says this entangles government with religion.

i. one problem is that teachers will choose not to express

their religious beliefs in class because of desire to maintain
funds. Government is causing the practice of religion to be
altered. (cannot put someone to the choice between
forgoing funds and forgoing religious practice)
ii. Also, government must constantly monitor the schools to
make sure funds arent being diverted to religious purposes,
this too is entanglement.
d. getting government involved in funding religious organizations
will force political divisions over whether or not to fund religious
schools.
e. Brennan concurrence: symbolic difference between exemptions
and grants is important. Giving money to a religious organization
is psychologically more likely to send a message of endorsement
than a tax exemption.
f. Walz v. Tax Commission (1970) allows government to give tax
exemptions to religious organizations. Possible reasons for this is
that a tax exemption is distinguishable from a subsidy.
2. Rosenberger v. Rector & Visitors of the Univ. of Virginia (1995) (redux)
a. case determining whether UVA can exclude religious
newspapers from funding
b. Majority:
i. [T]he government has not fostered or encouraged any
mistaken impression that the student newspapers speak for
the University.
ii. This makes the program distinguishable from a direct
subsidy to a religion because it both has less of an
appearance of endorsement and it does allows government
to control the funds to make sure they are not used for
impermissible purposes. (here, government did not give the
money to papers, it paid for printing)
iii. possible plurality rule: if a religious organization uses a
program on a religion neutral basis, and the government
manages the program to make sure the program does not
allow religious organizations to use funds beyond the
secular purpose of the program, then it is ok.

c. OConnor concurrence: this program does not offend the

Establishment Clause for three reasons:
i. the student organizations remain strictly independent of
the University
ii. safeguards are in place to ensure the program is only
used for permissible purposes (problem in Lemon was that
the safeguards put in place would force the government to
become entangled in religion)
iii. assistance is provided to religious publication in a
context that makes improbable any perceptions of
government endorsement of the religious message.
(relevant here is that the instant publication was one of 15
funded through the program. Possibly distinguishing this
case from Lemon, where 95% of the funds go to
Catholic schools)
iv. under OConnor, the program probably must be neutral.
the message is one of neutrality rather than endorsement
d. dissent accuses plurality of hinging entirely on whether funds, or
other things of value are given. This is based on a
misunderstanding of how economics works. (but not
psychologically flawed, per Brennans concurrence in Lemon)
3. Mitchell v. Helms (2000)
a. Challenge to funding program which gives textbooks and other
such objects for non-religious instruction in private schools
b. before Mitchell Court made a distinction between money which
supplements funds used in religious schools and which supplants
funds used in religious schools. (Souter dissent still wants to make
this distinction)
i. supplanting means that the school will shift government
funds to secular purposes and re-allocate pre-existing funds
to impermissible purposes. Thus effectively causing the
government to fund the religious program. Old rule is that
his is per se impermissible
ii. problem: either the government has an intrusive auditing
regime, in which case there is an entanglement problem, or

the government has no regime, in which case there is no

way to prevent supplanting
c. controlling OConnor concurrence:
i. Government may maintain control over funds to make
sure they are not applied to religious purposes (what about
entanglement?)
ii. proposes as a solution to have the presumption be that
the school is obeying the law, and the burden in on the P to
prove otherwise
d. dissent would forbid anything which can be diverted to a
religious purpose
e. Plurality: Two factor test
i. Does the program engage in religious indoctrination?
(including providing direct funding for impermissible
religious programs)
ii. Does it define its recipients by reference to religion?
4. Zelman v. Simmons-Harris (2002)
a. This case is a clear 54. OConnor does write separately, but
she joins the majority opinion.
b. Majority says that when a program provides neutral funding
which is distributed according to individual choice, this does not
fail the Establishment Clause
i. central issue here is just what are the choices which
students may choose from.
ii. majority says that public choice options, such as charter
schools and magnet schools, should also be considered as
choices which students have in addition to religious
schools. Thus this is not an Establishment b/c students may
also choose non-religious options.
iii. dissent says that the universe of choices is drawn too
broadly. Why arent regular public schools a choice?

iv. majority cites to fact that vouchers receive less money

than charter schools and magnet schools as evidence that
this voucher program does provide a real choice of nonreligious schools.
c. The Establishment Clause question is whether Ohio is coercing
parents into sending their children to religious schools, and that
question must be answered by evaluating all options Ohio provides
Cleveland school children . . . .
d. OConnor concurrence focuses on the fact that there are nonreligious reasonable alternatives to the religious schools. [T]he
goal of the Courts Establishment Clause jurisprudence is to
determine whether, after the Cleveland voucher program was
enacted, parents were free to direct state educational aid in either a
nonreligious or religious direction.
H. Original Meaning
1. looking to history is like going to a party and looking for your friends
2. Rosenberger v. Rector & Vistors (again)
a. Thomas Concurrence:
i. ultimately concludes that government may discriminate
in favor of religion over irreligion
ii. this belief in based on his representation of Madisons
Remonstrance as a document which only argued against
establishing Christianity, it did not expressly argue against
favoring religion.
b. problem with originalism is that once you open the door, you are
constantly having to bring in further conflicting pieces of historical
evidence in order to find the truth.
c. another problem is that by simply looking to the four corners of
the document, one winds up imposing their contemporary views of
the meaning of words into the document.
d.courts are generally very wary of extrapolating from the fact that
a proposed amendment was struck down that the framers of the
amendment did not intend to incorporate that past amendment in
the new one. This is because it is impossible to know what the
actual reasons for the votes were.

I. Facially Neutral Laws Which Burden Religion

1. Employment Division v. Smith (1990)
a. Debate over textualist meaning of Free Exercise Clause
i. Scalia in majority: It is a permissible reading of the text,
in the one case as in the other, to say that if prohibiting the
exercise of religion is not the object of the tax . . . (text is
ambiguous)
ii. OConnor Concurring in the Judgment: text comes down
one way. Government cannot infringe the free exercise of
religion. OConnor would have any law substantially
burdening free exercise be subject to strict scrutiny
iii. Scalia responds to this by saying that if generally
applicable laws which incidentally burden religion are
capable of challenge on Free Exercise ground, then any law
is instantly vunerable to challenge. This throws all laws
into question. (laws held hostage)
iv. Scalia analogizes to Washington v. Davis. Law need not
prevent any burden which may impact a particular group.
v. Court cannot limit the protection to central religious
tenants b/c courts may not interpret a religion
b. OConnor and Blackmun apply the same standard and come up
with opposite results w/ respect to strict scrutiny. Scalia says that
this demonstrates the problem of many litigants being able to
challenge many laws, with no certainty of results.
c. Under the Scalia (majority) approach, minority religions have
the most to lose, because they are the least likely to have political
capital necessary to pass laws.
d. Blackmun dissent ultimately requires courts to make an
individual inquiry into the states interests versus the religious
tenants.
e. if this decision had come down other way, any law would be
subject to strict scrutiny as applies to religious people.
2. Wisconsin v. Yoder (1972)

a. Court overturns a state law which compels Amish to attend

school after 8th grade. Amish say law burdens their faith. (Smith
expressly said that it did not overturn Yoder)
b. Court says that state does have a compelling interest in
preventing people from becoming a burden on society b/c of their
lack of education, but then says that will not be the case with
Amish who are given vocational training after 8th grade.
i. the case for the Amish is strengthened because the Amish
can show they are productive and have a very low crime
and unemployment rate.
ii. this suggests that it would be tough to win a claim on
facts which were terribly dissimilar from these
iii. also important that the pressure to break the law comes
from religion and not from society. (religion is not just a
philosophy)
iv. also relevant is that the state was only compelling two
more years of school, and the difference in education was
not so great as to produce a compelling interest (if you
were required to attend until 18, tougher case)
c. under the standard applying in Yoder, strict scrutiny is applied to
any law substantially burdening the free exercise of religion.
d. if you sincerely hold a religious belief, the fact that other
adherents of the same religion do not hold that belief does not
defeat the claim. May provide evidence that the belief is not
sincere.
e. Douglas dissent focuses on the need for the child to also
sincerely hold the religious belief for the 1st Amendment to be
triggered. Commentators have questioned the wisdom of allowing
parents a constitutional right to shield their children from
alternative beliefs, thus preventing them from attaining any new
ones.
3. Printz: Jehovahs Witness brought children to distribute literature in
violation of state law. Court says that states interest in not having
exceptions to its child labor statutes trumps over the Pierce parental right.

4. under Smith neutral laws are ok, can avoid the Smith rule by showing a
right is a hybrid right which invokes another fundamental right (such as
the right to raise your children in Yoder)
5. some courts have said that the non-religious aspect of a hybrid right
must be a winning claim (hybrids dont matter). Others have said it must
simply be a colorable claim. Some courts fall in the middle.