Download introduction to professional roles

M.Glick – First Amendment – Fried – Fall 2007
1 of 172
FIRST AMENDMENT THEORY
Three Takes on Free Speech
1. Meiklejohn/Sunstein
2. Post – (CF)
3. Fried
Meiklejohn/Sunstein
 What freedom of speech guarantee is necessary in order to ensure democracy?
o Want protection for political speech
o Free speech exists in order to ensure democracy, so free speech doctrine
must protect debate on public issues / speech regarding our politics
 Meiklejohn
o Simple dichotomy
 “Public” Speech  wholly immune
 “Private” Speech  entitled to less
o Our speech laws should be made in order to ensure democracy
 Equality/mutuality/multicultural society
 Want to guarantee talking amongst one another in order to hear a
series of viewpoints such that members of the community can vote
in a proper and sophisticated manner
 Town Meeting  all viewpoints should be presented in
order to arrive at wise public policy
 Sunstein
o Free speech is an instrument for democracy
 Democracy is the premise and free speech is only an entailment
o Democracy necessarily implies some values
 Democracy is a way of realizing the value of equality and diversity
 Keegstra
Fried
 Freedom of the Mind
 Steps:
o Start with Freedom of Expression as an inherent good for the individual
 Gov’t exists to protect freedom of expression
 Freedom of expression doesn’t exist to make gov’t work
o By having autonomous individuals, democracy will work better
 Autonomous individuals (responsibly for themselves and their own
choices) will construct democracy in order to preserve, maintain,
and enjoy their autonomy
 Assumptions:
o We have a capacity for choice/reason  Autonomy
 Notion of self-ownership  we own ourselves (not the gov’t)
o Out of that capacity, everything else comes as a result  we choose to
constrain our liberty into something called gov’t in order to maximize it
overall
M.Glick – First Amendment – Fried – Fall 2007



2 of 172
Compared to Post
o Post
 Calls it “autonomy”
o Fried
 More radical  the limits on self-ownership are only the ideas that
accord with the idea that no one owns us
 If what I am seeking to do is persuade you to reach your mind:
 No one has the capacity to stop me from reaching my mind
because no one owns my mind but me
 No one has the ability to stop me from trying to persuade
others since no owns their minds either
Compared to Meik/Sunstein:
o Fried
 Autonomy leads to Democracy
 Start with individual and make collectivity
o Meik/Sunstein
 Speech and Democracy lead to Autonomy
 Start with collective and shape individual
Current Law
o Focus is on Physical Liberty
 Unless you can show that speech impinges on the physical liberty
of others, you cannot restrict the speech
 Once you restrict physical liberty, we can regulate
o Can’t stop behavior because it will give people ideas  can only stop
because it’s going to hurt them
 Can’t get into someone’s head  not hurting anyone
 Ex.
 Child Porn
o Can’t get to virtual kiddie porn because only gets to
ideas
o But we can regulate Ferber because it gets to
behavior – (exploitation of kids)
o We all have capacity to reason/choose and then reject
 No one can do that for us
 Exs.
 Ashcroft
o We can just reject it  choice
 Ferber
o Action! So we nail it
Post
 Autonomy is the key principle for him
o Sunstein’s view is collectivist
o His view, by contrast, is autonomous
M.Glick – First Amendment – Fried – Fall 2007

3 of 172
Free Speech is the mechanism of democracy because democracy is about self-gov’t
and if self-gov’t is to be truly self-gov’t, then there can be no prior privileged values
that precede and constrain what self-gov’t comes up with
o That would impliedly preclude equality & diversity
o There cannot be a prior determination of what democracy holds
 Can’t be some prior determination of what the autonomous
deliberation will deliver
 (No prior privileged values in political context)
 Values chosen democratically  not bound beforehand
 Contra Sunstein:
o OK to privilege certain values prior to the debate
o Disagrees with the notion that there can be such a
notion as unconstrained/autonomous debate
Sunstein
 What free speech comes to in a particular society will depend on the legal framework
in which that speech is exercised
o Capitalist:
 Private interests control the means of production
 Ability of speakers to reach audiences will depend on what
resources the socialist economy accords them
 Some speakers have access to a great deal more of an audience
than other and need to buy off others in order to speak
 Bounded Rationality – (Hanson stuff)
o No pre-legal starting points / no natural rights / nothing constrains gov’t
 Lochnerism
o Most people do not reason rationally
 Defiant of their own purposes
 Overestimate their own events
 Do not put the proper value on the circumstances before them
o Result: Anti-Post
 Post’s ideal of autonomy is not worthwhile because citizens don’t
know any better
 Autonomy doesn’t really exist
 People influenced by social structure and don’t reason
rationally
 People are not free to choose  illusion of choice in our
society
o Colored by invisible forces – (cultural,
psychological, emotional)
 This is why Sunstein/Meiklejohn feel justified in positing values
which constrain and are implemented by free speech
 NOT a violation of free speech that speech of some be
suppressed in order that others may be heard
o Like Dworkin in realm of politics  equal access
and equal volume
M.Glick – First Amendment – Fried – Fall 2007

4 of 172
vs. Post
o All that matters is that it’s out there  autonomous
deciders can then decide
Meiklejohn / Sunstein
Free Speech enables Democracy
Democracy ensures desired values –
(equality/multiculturalism/mutuality)
 Speech and Democracy lead to
Autonomy
 Start with collective and shape
individual
“Public” Speech  protected
“Private” Speech  NOT
Sunstein
Disputes the value of Post’s “autonomy”
given restraint on choice
 That’s why it’s OK to posit values
Fried / Post
Focus on Autonomy as a way of
achieving Democracy
 Autonomy leads to Democracy
 Start with individual and make
collectivity
No Prior Privileged Values
M.Glick – First Amendment – Fried – Fall 2007
5 of 172
CORE INSTANCES OF 1A PROTECTION


Group of cases address what CF calls the “core instances of 1A protection and
violation”
Today’s cases make it criminal to say something
o You have no choice about saying it
 Direct prohibitions on speech rather indirect burdens
o Makes this the central area
Proving Treason
 “It is treason when a man doth compass or imagine the death of our lord or king.”
o Compass = try to bring about, conspire, attempt
o Imagine = think about
 How to know when this has happened?
 Say so / conveyed it to someone else
 Tyrannical regime may want to prove a treason w/o having to prove an overt act
o Why?
 Suspicion of persons
 Want to pre-empt negative speech
 Want more loyal followers – (don’t even want people to have those
thoughts)
 BUT can’t have a treason for just thinking bad thoughts  no one would ever know
o We want to know what people are thinking and imagining
o How to get there:
 Interrogate them
 Make it a crime to not answer
 Get them for perjury for lying
o 5th Amendment prohibits all of these things!
 Gov’t can’t pry your head open and find out what’s inside
 No self-incrmination
 The 5th Amendment protects THINKING
 CF: many people think the 1A protects freedom of the
mind, but that’s too much
o 5A protects mind
o 1A protects what you actually express
o (4A may protect things you’ve written down)
EARLY APPROACHES
1. Schenck – (1919)
 Facts:
o Espionage Act makes it a crime to:
 “willfully cause or attempt to cause insubordination or disloyalty”
 “willfully obstruct recruiting/enlistment of the US.”
 Note how the law operates:
o Law defines the offense in terms of the result
 XY
M.Glick – First Amendment – Fried – Fall 2007



6 of 172
There are other ways you might achieve Y than by speaking yet we
punish speech as a way of either producing a result or attempting
to produce a result in the world
 It’s the result that matters!
 Like Debs / Frohwerk
o Does NOT say “there are certain things you must not say”
 Contra Gitlow
 Certain speech constitutes an intolerable risk of harm
 Doesn’t matter if anything results  to simply say it is a
crime
This is CONSPIRACY
o (This may explain why these cases are not very speech-protective)
o Schenck / Debs / Frohwerk are all in fact conspiracy cases
 There are a list of crimes in criminal law  may not attempt to
conspire or assist in the commission of an offense
 BUT conspiracy has limits  need an overt act in furtherance of
the conspiracy – (law does not like the idea of punishing a
conspiracy that’s based only on people getting together and
talking)
o Test:
 Clear and Present Danger  simply a formulation of when a
bunch of people getting together matures into a conspiracy –
 (when talk gets close enough to action to be an attempt)
 Is the conduct (speaking) close enough to the proscribed result
(mutiny/obstruction) to constitute an attempt/conspiracy to
bring it about?
 Holmes: if the speaking constitutes a C&PD, then YES
“And” vs “Or”
o Assessing the last sentence of Holmes’s opinion:
 “If the act, its tendency and the intent with which it is donee are
the same, we perceive no ground for saying that success alone
warrants making the act a crime.”
o The courts in the early cases switch forth between whether “and” or “or”
is required
 OR – (require either intent or tendency)
 You need only intend to obstruct recruitment or bring
about mutiny/disloyalty
o Schenck
o Debs – (if it’s a natural and probable consequence
of what you did, then that’s intent; seems like it
could bleed into tendency too)
 AND – (require both)
 You have to both intend to bring about that result and it
must be sufficiently likely (tendency) that you’ll bring it
around
o Intent alone is not enough
M.Glick – First Amendment – Fried – Fall 2007
7 of 172
o Becomes a question of what degree or tendency is
needed to cross that line
o Abrams / Gitlow (Holmes dissent)
o Tendency
 Equivalent to “proximate cause”
 Proximate cause = close enough to the outcome
 “Bad Tendency” cases:
 If you intend to speak words with a bad tendency, you’re in
trouble
 If you used those words and those words have that
tendency  you had that intent
2. Majority in Gitlow and Whitney
 Facts:
o

(Gitlow is the 1st case which says that the 1A is part of the DP clause and therefore
applies against the states)
o Statutes prohibit certain speech that advocates principles
 The advocacy is itself the crime  NOT the bad results that flow
from speech
o Schenck vs. Gitlow/Whitney
 Schenck – (Holmes)
 C&PD related to X (conduct charged) as a means of getting
to Y (a result)
 The statute only mentions the Y (obstruction, disloyalty,
mutiny)
o Speech can only be nabbed if it leads (as
determined by some framework) to the prohibited
result
 Gitlow
 The speech is itself the evil
 Argument:
o This seems odd  what we really care about in the
end is the sort of “ultimate” evil
 We criminalize “advocacy of overthrow of
gov’t” because we think the ultimate evil is
“overthrow of gov’t”
Majority Approach
o Legislature has declared that certain kinds of speech will necessarily
lead to bad results – (legislature is expert body to make this type of
judgment)
 Statutory definition of evil given in terms of the speech  this
activity is itself dangerous
 We don’t need to get into “intent” or “C&PD” or “imminence”
 Those concepts are only invoked where the statutorily
defined evil is some result in the world and the speech is a
way of getting to that result
M.Glick – First Amendment – Fried – Fall 2007

8 of 172
 Here: speech is an end evil
o How to determine whether speech will necessarily lead to bad result:
 This is a normal legislative decision (not unlike economic
regulation) and should merely undergo rational basis scrutiny
 We later find that in cases where the speech is what’s
criminal, there must be more than rational basis
o Analogy to criminal law:
 Legislature can make attempted burglary a crime, just as it can
make burglary itself a crime  so maybe they can make it a crime
to possess burglary tools in the 1st place
 Pushes criminality forward
 Similarly, a legislature may make the judgment that advocating
violent overthrow is a crime
 Majority accepts that the respective state legislatures have
done the job  no need for the court to determine it
Contrast with Holmes (Dissent in Gitlow) and Brandeis (Concurrence in Whitney)
o The 1A does not allow the prohibition of speech as such  it must be
speech as incitement to a way of producing a forbidden result
 Speech can’t be the crime itself  can only be the way to another
bad
o Holmes in Gitlow
 Holmes has two prongs:
 No intent (to interfere with the war effort)
 No immediacy (puny anonymities)
o Remember the interplay of whether the court
requires “or” (Schenck) vs. “and” (Abrams)
o Brandeis in Whitney
 Goes one step further:
 Ultimate evil must be sufficiently serious to justify a
criminalization of its advocacy (imminence)
 Also believes that the COURT should be the one to decide what
constitutes the ultimate evil
o TWO DIMENSIONS:
 1. Should we be punishing the speech as such or only speech that
“objectively” relates to an ultimate evil
 Holmes/Brandeis want to unpack the two: speech vs. the
ultimate evil it may cause
o Legislature cannot make advocacy the crime except
where advocacy has some relation to some
“ultimate” evil
 2. Who should be making the decision?
 Legislature – (Majority approach in Git / Whit)
o Frankfurter (concurring in Dennis) thinks it’s an
inappropriate inquiry  calls for deference to
legislature akin to Holmes in Lochner
M.Glick – First Amendment – Fried – Fall 2007
9 of 172


Legislature defined a crime and we (the
judiciary) are in no position to say how
pressing the danger is
 Whether particular circumstances are OK in
particular circumstances is up to the
legislature
Judiciary – (Brandeis in Whtiney)
3. Hand’s approach in Masses
 Holmes
o Every idea is an incitement – (passion can set fire to reason)
 Not very speech-protective
 Hand – (Masses)
o Facts:
 Plaintiff publishing revolutionary newspaper comes under fire for
the Espionage Act
o Draws a line  more speech-protective
 Distinction between:
 Counseling/advising a man to an act by telling him it his
duty or interest to do so  BAD
 Stopping short of telling people it’s their duty  OK
o Just political discussion / non-criminal agitation;
discussing ideas in abstract
 Direct Advocacy  BAD
 Talk  OK
 Speech that stops short of advising people it’s their
duty/obligation to believe/do X is protected
 Holmes on Hand
o Hard to apply in practice because it’s hard to know what words do and do
not encourage in this prohibited way
o BUT Holmes dissents in Abrams
 Facts:
 Criminalizes activity that produces or is intended to
produce a given effect
 Conviction upheld but Holmes dissents
 How does Holmes get out of this framework?
 He believes the D should get off under the intent test
o Intent was to sympathize with the Russians
o Intent was NOT to disrupt the war effort
 No proximity / No requisite intent
4. Dennis
 Facts:
o Dennis belonged to an organization with an intent to further its purpose 
duty/necessity of overthrowing the gov’t with force or violence
o Statute is akin to Whitney/Gitlow in that it prohibits advocacy/organization
M.Glick – First Amendment – Fried – Fall 2007


10 of 172
TEST:
o Whether the gravity of evil discounted by its improbability justifies
the invasion as is necessary to avoid the danger
 Gravity of Evil x P > Free Speech ?
 (Sort of like negligence:
 Magnitude of Loss x P > Burden to guard against it
Other opinions:
o Frankfurter
 Judicial Role  we’re not the proper group to determine the
“probability” and “gravity” of the evil
o Jackson – (colored by his time at Nuremberg)
 Doesn’t think C&PD is appropriate here
 Judicial process is not the place to make a “prophecy”
based on “imponderables” in the national/int’l context
 Wants to limit C&PD to the types of cases on which it was
previously applied:
 In these cases, it is not beyond the capacity of the judiciary
to determine if it’s a C&PD  the danger in such cases has
matured by the time of trial of it was never present –
(judges can do this!)
 Exs.
o Hothead on a street corner
o Zealots behind a flag
o Incendiary pamphlets
 NOT
o Vast and complicated international crises where we
would be concerned that judges would not properly
know what a C&PD was
5. Yates and Scales retreat from Dennis
 Cases require more than mere advocacy of abstract doctrine
o Distinction between advocacy of abstract doctrine and advocacy of action
 Yates
o We need adequate guidance as to the distinction between advocacy of
abstract doctrine and advocacy of action
 Want to see an effort to instigate action, not just advocate forcible
overthrow
 Scales
o (Dennis and Yates have laid in doubt that the present advocacy of future
overthrow satisfies the Constitutional requirements in the same way that
advocacy of imminent overthrow does)
o Looking for intent to advocate concrete action (not just a doctrine)
and a clear danger that this advocacy will maybe produce bad results
in the future
 Intent + Clear Danger
 “Active” rather than just “Nominal” membership
M.Glick – First Amendment – Fried – Fall 2007
11 of 172
o Harlan actually abandons imminency of danger  just needs clarity of
danger:
 “clear proof that a D specifically intends to accomplish the aims of
the organization by resort to violence”
 Clear > Present
o As applied to facts in this case:
 Mere membership in an organization that advocates the overthrow
of the government is not sufficient  need proof of specific intent
to accomplish the aims of the organization by resort to violence
Summary of 5 early approaches:
Schenck
Majority Test
Notes
Law defines the offense in terms of the
result
XY
And/Or distinction
 “or” requires either “intent” or
“tendency”
 “and” requires both
“If the act, its tendency and the intent with which it
is donee are the same, we perceive no ground for
saying that success alone warrants making the act a
crime.”
Advocacy is itself the crime
Gitlow/
Whitney
Statutory definition of evil given in terms
of the speech  this activity is itself
dangerous
 No concern with “imminence” or
“C&PD”
Dissents (Holmes/Brandeis)
The 1A does not allow the
prohibition of speech as such  it
must be speech as incitement to a
way of producing a forbidden
result
Legislature has determined certain words
cause certain harm
Hand in
Masses
Dennis
Speech that stops short of advising people
it’s their duty/obligation to believe/do X is
protected
Dissent (Holmes)
Hard to apply in practice because
hard to know which words count as
illegal advising and not
Whether the gravity of evil discounted by
its improbability justifies the invasion as is
necessary to avoid the danger
Concern over judicial role in
assessing the gravity of evil

Concern about overestimating the
potential for evil
Gravity of Evil x P > Free Speech
M.Glick – First Amendment – Fried – Fall 2007
Yates /
Scales
12 of 172
Mere membership doesn’t make it  we’re
looking for:

intent to advocate

clear danger

Active vs. Nominal membership
MODERN APPROACH
Brandenburg – (1969)
 (said to be the canonical case on where the law is on “advocacy crimes”  CF
doesn’t believe it)
 Gets rid of Whtiney’s categorical approach to dangerous speech
 TEST:
o State may only forbid/proscribe advocacy of the use of force or law
violation where:
 Advocacy is directed to inciting or producing imminent lawless
action
 AND likely to incite or produce such action
o Sum:
 Must intend to produce it
 Must intend it to be imminent
 Must be likely to produce lawless or violent action
 Must be likely to produce imminent and lawless action
 (implied requirement of seriousness after Whtiney)
 (Mere abstract teaching is protected)
o (Test is supposedly tough)
 CF: Brandenburg is Schenck/Abrams on steroids
Brandenburg Requirements

Intended to incite or produce imminent lawless
action

Likely to incite or produce such action
UK Terrorism Act
 Facts:
o UK has a very large Muslim minority that has been historically mistreated
o Politicians believe some mosques are pushing violence/jihad and
recruiting for such  pass law
 What’s noteworthy/problematic about the law?
o Association
 Does not have to be an association which advocates/encourages
any action
M.Glick – First Amendment – Fried – Fall 2007


13 of 172
Would fail under Scales
o Speech
 Reckless wrt encouragement – (careless about causing a potential
problem)
 Hard to define “glorifying”
 Hard to figure out whether it is a statement from which
people could infer that what is being glorified should be
emulated
o (Trying to get to precursors of terrorism, but end up sweeping in stuff that
isn’t a precursor to terrorism)
 BUT why take risk of allowing speech that is a precursor to
terrorism?
 Society might be better off hearing the speech and allowing
a debate that allows these ideas to be knocked down – (sun
as a disinfectant)
 If we shut these people up, we in essence give them
potency by lending an aura of importance
Assessing it under our precedents:
o Masses (Hand)
 Looking for a statement that it is your duty (Hand in Masses) or
that is in your interests to do X
o Dennis  would probably survive the balancing test
 High gravity of evil (50 people killed + planning for more)
 Pushback:
 Maybe Dennis makes sense in the abstract, but in practice,
we’ll always overweight the possible gravity of evil in the
present moment
o Hard to fairly judge the potential harm and judges
not capable of doing it
 At least Brandenburg has some parameters other than the
“gravity of evil”
 Frankfurter  leave it to the experts
o BUT that doesn’t seem very speech-protective
because we’re putting the decision in the hands of
people (legislators, cops, FBI) who are susceptible
to just following the winds of the day
o Brandenburg  this law goes beyond
 Brandenburg was looking for imminence or at least an intention
for it to be imminent
 Here: “reckless” without any discussion of imminence
o (This act would fail in the US)
 We tolerate some risk of creation of danger with the 1A
 UK  pre-emption
 US  nervous about pre-emptive measures restricting
speech and association
M.Glick – First Amendment – Fried – Fall 2007

14 of 172
o We’re OK with pre-emption when it comes to
bombs and firearms, but not speech/association
o Maybe we have faith in people to evaluate and
reject certain kinds of speech
Maybe we think the downside is too big:
 If we kill your ability to carry bomb-making tools, you can
still do a lot of things
 If we kill your ability to speak, we kill ability to think
o Control of Speech = Control of Thought = Control
of person in the way that is more dangerous that
other types of control
TRUE THREATS
Distinguishing True Threats
 Threat is no longer a way of persuading someone of believing a doctrine or causing
something to happen  it’s a way of obtaining a result through intimidation
o Not persuasion/argument  signal or form of action
o Get someone to do something by putting them in fear of an unlawful and
violent action – (signal)
 LAW
o Incitement (i.e. get others to do it who are completely independent) 
Brandenburg
o Facilitation or True Threat (i.e. I’ll kill you myself)  NOT Brandenburg
Incitement
Example
Controlling Case
Get others to do it who are
completely independent
Brandenburg
Facilitation or
I’ll kill you myself
True Threat
NOT Brandenburg
 Not looking for harm to be
intended or imminent
(Nuremberg files)
Nuremberg Files Case
 Facts:
o Group intimidating abortion doctors
o What’s the evil?
 NOT the violence/murder of the doctors
 The violence is the intimidation  “apprehension/fear of violence”
 Compelling state interest in protecting people from being
scared to death  scare someone by making them think
they will be hurt or killed
M.Glick – First Amendment – Fried – Fall 2007


15 of 172
Opinions
o Majority:
 Treats “true threats” differently than advocacy of violence
(Brandenburg)
 Not looking for harm to be intended or imminent
 Maybe this is something different:
 No longer advocacy but rather just like handing someone
ammunition or supplying directions on how to make a
bomb  no longer in speech, but in a different domain
o Dissent (Berzon and Kozinski):
 Do Brandenburg!
 They disagree that the speech was intended as a signal  argument
that abortion is murder and murderers come to band ends
 Just a vivid form of persuasion
Arguments:
o Dissent is right
 There is a message  “you will meet a just end”
 Dramatic form of persuasion – (especially if it will be
carried out by someone you’re not affiliate with)
 (Berzon) – These ads may be inciting people to kill you, but if it’s
incitement, then it should be Brandenburg
o Majority is right
 You are just trying to intimidate/scare people
 BUT shouldn’t that depend on what the communication is saying:
 “If you don’t stop, we will kill you.”
 “If you don’t stop, you’ll die like these others have.”
FIGHTING WORDS


Speech that induces violence  violence directed at the speaker
o (provocative message outrages audience)
Concern: Heckler’s Veto
Cantwell
 Facts:

o Jehovah’s witnesses proselytizing on street
o Conviction overturned
No C&PD to substantial state interest, so cannot curtail his right to speak
o Contents of his speech may arouse animosity, but absent a narrowly
tailored statute defining and punishing specific conduct as a C&PD, the
speech is protected
Chaplinsky
 Facts:
o Statute: No person “shall address any offensive, derisive, or annoying
word to any other person who is lawfully in any street or other public
place.”
M.Glick – First Amendment – Fried – Fall 2007


16 of 172
o Jehovah’s witness escorted away and gets in fight with marshal 
conviction upheld
Analysis:
o OK with punishing insult because its directed @ someone (not at a group
or ideology) and presents a more C&PD – (invitation to fight)
 Provocative language directed @ person
 Direct face-to-face insult
 Court interprets that to ban words that “men of common
intelligence would understand would be words likely to
cause an average addressee to fight”
o (Other categories included in this unprotected zone:
 Lewd, obscene, profane, libelous, insults, fighting words
 Prevention/punishment of these categories has never been
felt to raise any constitutional problem
 These categories tend to incite an immediate breach of the
peace
 Rationale:
 The very utterance of these categories inflict injury
o Hurt people
o Little social value as step to truth
o Protect the dignity of people
Assessing Murphy’s rationale:
o Categorizing
 Some speech is wholly outside 1A coverage
o Balancing
 Attaches low value to the speech claiming protection – (“no
essential part of any exposition of ideas”; “slight social value as a
step to truth.”)
 Measured against the competing state interests
Fighting Words post-Chaplinsky
 Murphy in Chaplinsky defined fighting words as EITHER:
o Those “which by their very utterance inflict injury” OR
o Those which “tend to incite an immediate breach of the peace”
 Morality AND Order
 BUT since then, the cases have focused on the “Breach of the Peace” rationale:
o Cohen v. CA – (contra Chaplinsky)
 “Fuck the Draft”
 Held:
 YOU may not think it contributes much to our vocabulary,
but one man’s obscenity is another man’s lyric
o Free speech is not just about abstraction  it’s
about expression and emotion
 Maybe Chaplinsky was wrong  words conveyed both
emotion and important ideas
 TEST:
M.Glick – First Amendment – Fried – Fall 2007
17 of 172



Profanity is protected; no golden words
Fighting words exception it limited to words directed at
a person, not addressed generally to the world at large
o Gooding and the Motherfucker Trilogy
 Statutes here were too vague/general
 Want statutes to focus on words that have a direct tendency to
cause acts of violence by the person to whom, individually, the
remark is addressed
 Direct, face-to-face to an individual rather than generally a
at a group
Nothing left of Fighting Words Doctrine except where it creates an imminent
danger of violence to the single person it is addressed to
Fighting Words
Looking for:
 imminent danger of violence
 To the single person it is addressed to
 Tending to incite an immediate breach of the
peace
(Post-Chaplinsky world)
Only thing banned is the quite unambiguous
invitation to brawl
Hostile Audiences and the Heckler’s Veto
 If speech can be limited because it tends to incite violence, then maybe not the
speaker but the incited party should be the one restrained
o Restraint should be on audience not on speaker  speaker has right to
provoke audience; audience has no right to respond
 Terminiello
o Pro-Speaker
 Speaker convicted under breach of peace statute for speech which
“stirs the public to anger, invites dispute, brings about a condition
of unrest, or creates a disturbance.”
 SCOTUS overturns  “Speech is often provocative and
challenging.” It’s OK to “invite dispute.”
 Speech is protected unless it’s shown likely to produce a
C&PD of a serious substantive evil (above inconvenience,
annoyance, or unrest)
 Feiner
o Pro-Audience
 Police see imminent explosion  stop the speaker because the
crowd doesn’t seem practical to stop
M.Glick – First Amendment – Fried – Fall 2007
18 of 172

Not arrested for what he said, but rather the reaction it engendered
 Court points to community desire for peace and order
o BUT is the harm imminent?
o How to reconcile:
 Look to it as a crowd control statute
 The offense is not what the speaker is saying, but rather
that he is inciting the crowd by virtue of his speaking
 CF: cases best understood as cases of refusing to obey a reasonable
police order in a situation of imminent crisis
 Ely: what’s left of the “fighting words” doctrine is the
prohibition on quite unambiguous invitations to brawl
 “Let’s go out and fight”  a signal, not an attempt to
convince or express an idea or opinion
DEFAMATION
Beauharnais – (Group Libel)
 (Hasn’t been overruled, but no longer valid)
 Held:
o If an utterance directed at an individual may be the subject of criminal
sanctions, we cannot deny to a State the power to punish the same
utterance directed at a defined group.
o C&PD not considered  Libelous utterances not within the area of
constitutionally protected speech
NY Times v. Sullivan
 After Chaplinsky, everyone felt libel was outside the scope of the 1A  abandoned
here
 Facts:
o AL Law makes it a per se crime (libel) if the words tend to injure a
person’s reputation or bring him into public contempt
 Once per se crime is established, D can only use truth as an
affirmative defense to persuade jury that publication was true in all
its particulars
o Clergymen took our full page ad criticizing Montgomery police
commissioner’s terror toward blacks
o Some of the specific facts in the ad were false, though the “defamatory
sting” was true  Plaintiff won at trial
 Potential arguments for NY Times (Defendant):
o Words were not directed @ Sullivan
 P in a defamation suit must prove that the utterance was “of and
concerning” him
 Feiner and the insult cases call for an identified and pointed
remark about a particular person – (though Beauharnais
does not require same)
M.Glick – First Amendment – Fried – Fall 2007
19 of 172
 We don’t even mention Sullivan!
 Was this “of and concerning”?
 Didn’t mention Sullivan, but referred to events under his
purview and people testified that they believed it was about
him
 BUT if every time you criticize the gov’t, the officials
responsible for that sphere can bring a defamation action, it
will chill criticism of gov’t
 Why care if it’s “of and concerning”?
 If it’s not focused on a particular plaintiff, penalizing the
speech would strike at penalizing criticism of gov’t as a
whole
 Held:
 SCOTUS establishes “of and concerning” rule
o No longer is it so that if you criticize a group that
every member of that group can claim harm
o (rejects Beauharnais and the group rule)
o Libel must be false
 Sullivan claims some of the information here is false and there’s
no value in falsehoods, so it can’t be protected
 Debate:
 Brennan (majority): “even a false statement may be deemed
to make a valuable contribution to public debate”
 OR maybe we recognize that we need to protect negligent
libels as a means of affording adequate breathing room for
the truth
 Held:
 Limit falsehood analysis to:
o “Defamatory Sting”
 We only care about the part where there’s a
concern for defamatory injury  Don’t
want to nail you because of minor
misrepresentations; no real harm in getting
that stuff wrong
o “Substantial Truth”
 Bound to make some mistakes, but if they’re
minor mistakes that don’t hurt the person,
it’s stupid to penalize
o Reputational Concern
 Sullivan did not have to prove damage  he was presumed to
endure damage to his reputation in the eyes of others – (reputation
must be protected and vindicated)
 Presumption:
 If you accuse someone of crime
 If you injure someone in their profession
 If you imply unchastity of a woman
M.Glick – First Amendment – Fried – Fall 2007
20 of 172
o You don’t have to prove that anyone now thinks
less of you


TEST:
o A public official when accused in official capacity can only recover if he
can prove:
 Actual Malice
 Intentional falsehood or reckless disregard for the truth
 2 situations:
o Know it’s false and print it anyway
o Not sure if it’s true or false and don’t care
 Falsity
 P bears the burden of proof
o (Rule compelling the critic to bear the burden of
proving truth of factual assertions would have the
effect of chilling effective criticism / censorship)
Concurrence (Black/Douglass):
o Free Speech is absolute and you can never sue for libel
 Plaintiffs should have unconditional right to publish criticism of
public officials, even if malicious
NY Times Test
1. Actual Malice
 Know it’s false and print it anyway – (intentional
falsehood)
 Not sure if it’s true/false and don’t care –
(reckless disregard)
2. Falsity
 “Substantial Truth”
 “Defamatory Sting”
Don’t forget the “of and concerning” requirement
3 variables in extending NY Times:
 Identify of the Plaintiff – (public official, public figure, private figure)
o Public Figures
 Curtis Publishing v. Butts, AP v. Walker
 No 1A difference between public figures and officials
 Court applies actual malice standard to all public figures on
matters of public concern
 Rationale:
o Distinction between gov’t and private is
increasingly blurred
M.Glick – First Amendment – Fried – Fall 2007

21 of 172
o Public figures (even if not officials) play an
influential role in ordering society and citizenry has
a legitimate and substantial interest in the conduct
of such persons
 (Later cases construe “public figure” narrowly)
o “Voluntarily thrust” or “injected” self into public
eye – (Hutchison v. Proxmire / Wolston v. Reader’s
Digest)
o “any role of especial prominence in the affairs of
society” – (Time, Inc. v. Firestone)
o Private Figures
 Rosenbloom
 (Later overturned by Gertz)
 Subject matter is key
o Even if it’s a private figure, if it’s a matter of public
concern  speech is protected
 Gertz
 Private individuals CAN recover for libel, even if it’s a
matter of public concern, without meeting the NY Times
standard of actual malice + falsity
o Rationale:
 Easier for public figure to recover
 No voluntary exposure from private figure
 BUT damages limited to compensation for actual damages
if NY Times standard isn’t met
o No punitives unless you can show actual malice
 “So long as they do not impose liability w/o
fault, the States may define for themselves
the appropriate standard for a publisher or
broadcaster of defamatory falsehoods
injurious to private individuals.”
 Negligence is OK
o Burden of Proof remains with P
 See the track:
o Historically  Libel is strict liability
o NY Times  cuts back on availability of libel
o Gertz  restores some libel wrt private figures
Nature of the issue discussed – (matter of public vs. private concern)
o Matter of private concern
 Dun & Bradstreet v. Greenmoss
 Published inaccurate statement that plaintiff had filed for
bankruptcy
 Held:
o Private speech entitled to less 1A protection
 Reduced Constitutional Value
M.Glick – First Amendment – Fried – Fall 2007
22 of 172
o Therefore, state interest adequately supports awards
of presumed and punitive damages (w/o showing of
actual malice)
o Matter of private concern but for public official
 Court has not yet explored the question of a Public Figure with a
Matter of Private Concern  open question?
 Is there anything private about a public official that could
legitimately be defamed? Do they lose all privacy? Does
everything become a matter of public concern?
o Maybe title matters – (how “public” are you?)
Public
Figure
Private
Figure

Public Matter
Private Matter
NY Times
 Need to prove actual malice and
falsity in order to get damages
(not yet decided)
Gertz
 You can recover for actual
damages without meeting the NY
Times standard of actual malice,
but punitive damages require you
to show actual malice
 (overruled Rosenbloom which
focused on subject matter)
Dun & Bradstreet
 Private speech entitled to less 1A
protection, so you can get
damages (including punitives)
without showing actual malice
Identity of the Defendant – (media vs. nonmedia)
o Dun & Bradstreet v. Greenmoss
 Court finds no distinction between media and non-media
defendants
 Issue: Hard to figure out who the media is
Masson v. New Yorker Magazine
 Facts:
o Publish lengthy article with numerous quotations that embellished what he
said in tape-recorded interviews and then published book with same
 Held:
o Deliberate alteration of words does not equal knowledge of falsity for
purposes of NY Times unless the alteration results in a material change
in the meaning conveyed by the statement
 Alteration of quotes to correct grammar and syntax are okay or to
make comments intelligible
 BUT can’t effect material change or give words different meaning
 Writing vs. Lying
M.Glick – First Amendment – Fried – Fall 2007
23 of 172
o Quotation marks are the real sin
 “Devastating instrument for conveying false meaning.”
 Readers will take quotes more seriously and more likely to
consider it the true sentiments of the purported speaker vs. the
injected opinion of the author
 Greater defamatory sting
 Violates your personality to misquote in this manner – (much more
personal than just having your self/words/thoughts
mischaracterized)
 Emotive power of quotes carries special force beyond
cognitively similar non-quote falsities
 Contra NY Times
 We’re OK there with the false statements which merely say
that MLK was arrested 7 times, not 4
 OJ Simpson case
 The Browns are commandeering his book title:
o “If I did it… (subtitle) Confessions of the Killer”
 They might say that the rights were assigned to them, so
they can as they wish, but CF doesn’t buy it
 Boll – (Germany)
 Quotation touches a person’s dignity, even if it is
substantially accurate
 By putting words in my mouth, you’ve violated my right to
determine how to present myself
 Comparative approach:
o US
 Don’t want them to willfully get it wrong 
actual malice (negligence might be OK)
 Emphasis on truth
o GER
 Material change in the meaning of things
you said  dignity/preservation of self
 Emphasis on dignity – (to say words
are your own when they are not
when a particular right is dealt with)
State Action and Defamation
 US: 1A says “Congress (and the States) shall make no law”
o BUT in the defamation context, Congress/Alabama is not making a law
 GER: Basic rights are basic rights against the state
o So how to enforce against a private party who is defaming you?
o Answer:
 There is a value underlying the system  Free Speech
 Court interprets the code with that value in mind  courts enforce
those values, so we get to private action that way
 Contrast:
M.Glick – First Amendment – Fried – Fall 2007
24 of 172
o US cares only about state action – (where gov’t tells you what you
can/can’t say)
 Concern:
 NY Times fires reporter and he claims it’s based on his
speech  if the court comes out on his side, we’ve
vindicated his right to say what he wants, but we’ve
violated the newspaper’s right to say what it wants
o GER court does the opposite
 OK with choosing between and balancing two private parties –
(which speech they prefer over the other)
o (Maybe we don’t want our Constitution to be determined in this way 
hate putting our court in the position of balancing)
 Luth
 Parable about the danger of ignoring the state action
doctrine  is it appropriate for court to be balancing or
should we stick to rules?
 Brandenburg
 No balancing  perhaps why it’s withstood the test of time
NON-DEFAMATION TORTS
Intentional Infliction of Emotional Distress
 One who by extreme and outrageous conduct intentionally or recklessly cause severe
shame, humiliation, and distress to someone
 Hustler v. Falwell
o Public figures cannot recover for tort of IIED based on magazine parody
w/o showing of actual malice as required by NY Times
o Analysis:
 More offensive than Masson, yet no liability
 This is a parody/satire (and had disclaimer), whereas
Masson purported to be an accurate account
 Analogous to a political cartoon or satire
 No falsity
 Would have been libelous under old law, but OK under NY
Times
 Falwell claims this is “outrageous” but such a standard is
inherently subjective; impossible to draw line here
Invasion of Privacy
 Supreme Court has yet to reach a state law privacy torts case in which truly private
facts have been disclosed
“False Light” Invasion of Privacy
 Claim that the disclosure not only invaded privacy, but was also false – (though not
necessarily injurious to reputation to meet the standard of defamation)
 Time, Inc. v. Hill
M.Glick – First Amendment – Fried – Fall 2007
25 of 172
o Facts:
 Hills were victims of hostage situation
 Life magazine later portrays their situation
 Hills do not sue under defamation, but rather based on a right to
privacy
 Statute prohibited anyone from using for purposes of
advertising or trade, the name, portrait or picture of any
living person without having first obtained the written
consent of said person
 Not libel because not injurious to their reputation –
(portrayed as courageous)
o BUT they sue because they don’t like the stigma of
being a “victim” – (casts them in a certain light)
o Held:
 NY Times applies to “false light” cases where subject is a
matter of public concern
 NY statute can’t apply here in the absence of proof that the
D published the report with actual malice (knowledge of its
falsity or in reckless disregard for its truth)
o If substantially true or if false but no actual malice
 protected speech
 (Unclear how much one could fictionalize and still be substantially
true or when elaboration would start to cause damage)  slippery
slope
Disclosure of Rape Victims’ Names
 Cox Broadcasting Corp. v. Cohn
o Court barred liability because of public interest in a vigorous press
 Florida Star v. BJF
o Newspaper had published name of a sexual offense victim, obtained from
a police report  court overturned judgment based on state law barring
publication of such names
 Rationale:
o Civil liability can’t be based upon accurate publication of information
where information was a matter of public record
 Can’t be criminal to publish what readers themselves could find
out by going to the courthouse
 Just making it more available – (data mining, collecting
info)
 Problem:
 Data mining aggregates information in the public domain,
but may be subject to extrapolation  Nuremberg Files
o Court is afraid to draw delicate lines relating to 1A
 We like hard lines in 1A context because we don’t want people to
have to guess at what speech is protected
M.Glick – First Amendment – Fried – Fall 2007
26 of 172
Privacy and Electronic Eavesdropping
 Info is NOT in public record
 Bartnicki v. Vopper
o Facts:
 Call between union members suggesting violence was secretly
intercepted and taped by a citizen who gave it to a local radio who
played it on the air
 NOT originally in public record
 Convicted under federal statute that punishes “any person who
intentionally discloses… to any other person the contents of any
wire, oral, or electronic communication, knowing or having reason
to know that the information was obtains through interception of a
wire, oral, or electronic communication”
o Held:
 Publisher who obtains truthful info in “manner lawful in itself”
cannot be punished even if they obtained it from a source who
obtained it unlawfully
 If I got it from you lawfully, I can’t be punished even if you
got it unlawfully – (seems disingenuous because I KNEW
you got it unlawfully)
o CF: this is a “pretend bright-line”  NOT
 Balance:
 Privacy of Communication – (free speech interest)
 vs. Publication of truthful information of public
concern/importance
o Truth usually wins out – (state action to punish the
publication of truthful information can seldom
satisfy constitutional standards)
o Breyer Concurrence:
 Strike reasonable balance between statutes speech-restricting and
speech-enhancing consequences  no sharp lines
 Public interest in hearing this outweighs private interest in
privacy
 CF: skeptical  makes Breyer (judge) ruler of the world
o Dissent:
 Can distinguish from Florida Star because that info was lawfully
obtained from the gov’t itself and the statute here contained a
scienter requirement
 McDermott v. Boehner – (DC Circuit)
o Facts:
 Tape recorded conversation between Rep. Boehner and another
person is brought to McDermott
 Takes to ethics committee and plays for NY Times
o Held:
 Boehner wins  maybe the dissent wins out after all
M.Glick – First Amendment – Fried – Fall 2007
27 of 172
Appropriation Torts
 Zacchini
o Human cannonball
o Held:
 1A does not immunize the media from liability when they
broadcast performer’s entire act w/o his consent
 IP right of publicity (like Copyright)
 This is his livelihood – if anyone could just show it, he
wouldn’t do it anymore
 3 Approaches
o Balancing Test – (Tony Twist)
 Is the predominant purpose to exploit the commercial value of an
individual’s identity or to make an expressive comment on or
about a celebrity?
 (Inherent danger of balancing)
 Tony Twist
 Comic book contains villainous character sharing his
name/attributes
 Held:
o Right of Publicity > Free Speech Right
 Court compares it to Zacchini  P’s right to
protect his home/property/livelihood
 “I’m the one who should be able to make
money because of my fame.”
o Primary purpose was to make $$$ off of him
 Counter:
o Maybe we should distinguish this from Zacchini
because Twist can still go out and make money as a
hockey player even with this comic – (Zacchini
could not – everyone saw his act)
 If Zacchini couldn’t sue  we’d lose his art
o Transformative Test – (California)
 Have they taken this and added a creative dimension to it?
 Adds something significantly creative so as to transform it
into something more than a mere celebrity likeness or
imitation
 (Tries to avoid the danger of balancing by having a rule)
o Relatedness Test – (ALI)
 Protects the use of another person’s name or identity in a work that
is “related to” that person
 Is the new likeness related?
M.Glick – First Amendment – Fried – Fall 2007
TEST
28 of 172
Case
Rules
Tony Twist
Is the predominant purpose to exploit the name for
commercial value or is it to make an expressive
comment about the person?
California
Have they taken this and added a creative dimension to
it so as to transform it into something more than a
celebrity likeness of imitation?
ALI
Is the new work said to be “related” to that person?
Balancing
Transformative
Relatedness
Copyright
 Harper & Row v. Nation
o Facts:
 Magazine publishes 300-400 words from President Ford’s yet-tobe-released memoirs
 Tries to avoid copyright law under an expanded definition of “fair
use” in light of 1A principles surrounding a public figure
o Held:
 NO – Copyright law already embodies 1A protections
 Plus, copyright is mentioned as Congressional power in
Constitution
Breach of Contract
 Cohen
o Newspaper reporter promises confidentiality to informant who wanted to
give info to the reporter about the newspaper  reporter breaks promise
o SCOTUS says breach of contract action is OK against a speaker, even if
the breach of contract is publication of a newsworthy fact
 (No state action here)
o Rationale:
 Law of General Applicability
 It may have an effect on speech, but it’s a law of general
applicability
o UNLIKE defamation  the very cause of action
(publication of a fact) is a speech cause of action
 Ex.
o “The NY Times may not purchase the NY Post &
CNN.”
 Valid law because antitrust law is an LGA
o “Authors must pay a royalty tax.”
 LGA!
M.Glick – First Amendment – Fried – Fall 2007
Case
Rules
Hunter v. Falwell
Public figures cannot recover for tort of IIED
without showing of “actual malice” under NYT
(None)
Supreme Court yet to reach a state privacy law torts
case where truly private facts were disclosed
Time, Inc. v. Hill
Apply NY Times to “false light” cases where the
subject is a matter of public concern
 Only punish magazine if they published the
report with actual malice – (if substantially true
or false but no actual malice  protected speech)
Cox
Florida Star
Can’t base civil liability on accurate publication of
information in the public record
Bartnicki v. Vopper
Publisher who obtains truthful info in “manner
lawful in itself” cannot be punished even if they
obtained it from a source who obtained it unlawfully
IIED
Invasion of
Privacy
“False Light”
Invasion of
Privacy
Disclosure of
Rape Victims
Eavesdropping
29 of 172
(McDermott v. Boehner)
(McDermott goes the other way)
Appropriation
Zacchini
Tony Twist
(Transformative Test)
(Relatedness Test)
In some cases, right to publicity trumps freedom of
speech
Harper & Row v. Nation
Copyright law embodies 1A principles – no greater
right of “fair use” because it’s a public figure
Cohen
Law of general applicability OK even if effect of
burdening speech
Copyright
Breach of
Contract
M.Glick – First Amendment – Fried – Fall 2007
30 of 172
OBSCENITY: SEXUALLY EXPLICIT AND INDECENT SPEECH

Regarded as an unprotected category
o Problem: How to define that category?
THEORY BEHIND REGULATION OF OBSCENITY AND FREE SPEECH
Two competing pictures of Constitutional Democracy:
 1. Bad governments can do anything they choose provided they do it in correct form
o Requirements:
 Right Person – assigned to one of the democratically elected
branches
 No Prohibition – doesn’t violate a particular Constitutional
prohibition
 2. Every enactment/exercise of government power that restricts liberty of individuals
has to be justified somehow – (more controversial)
o Gov’t must always explain itself and courts must enforce that explanation
 Must have a rational basis for what it does when restraining people
 If not, it’s a deprivation of liberty which violates substantive DP
o This is hardly a restraint, but you have to at least describe why you’re
doing something
 Roe
 When liberty of individual is interfered with, the gov’t must
explain itself – (they had a reason here, but not strong
enough)
 Lawrence
 Even though it wasn’t a right listed in BoR, the law here
seemed like a purposeless restraint
o Controversial:
 Assumes a kind of reason/rationality that transcends the actual text
of the Constitution
 “Congress shall make no law” = “Congress shall make no
law that is not substantially justified.”
o 1A context
 Where there is a prohibition, the gov’t’s action is evaluated relative
to the reasons thought to underlying the prohibition
 1A = series of isolated points  there’s an effort to
characterize decisions as being part of a rational process
and continuum
PORNOGRAPHY DOCTRINE
Roth – (Old) – (Brennan)
 1A protects all ideas having even the slightest redeeming social importance
o BUT we’ve historically rejected obscenity as being utterly w/o redeeming
social importance
 “Whether to the average person, applying contemporary community standards, the
dominant theme of the material taken as a whole appeals to the prurient interest.”
M.Glick – First Amendment – Fried – Fall 2007
31 of 172
Miller – (Current Law)
 TEST:
o Average person / applying contemporary community standards
 Miller focuses on the standards of that locality
 Maine/Missouri different from NY/Las Vegas
o Taken as a whole lacks serious literary, artistic, political, or scientific
value
 Must look @ all of it to determine if there is any redeeming value
 Sweeps a lot more in:
 Roth
o “utterly lacking” social value
 Miller
o Lacks serious social importance – (smidgen of
importance is not enough)
o Appeals to prurient interest
 Having a tendency to excite lustful thought
 CF: ridiculous – (can’t explain the obscure by the more
obscure)
o Statutory specificity
 “whether the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the applicable state
law”
 Takes some of the sting out of Miller  makes statutes obscene
themselves
 Brennan dissent:
o Too hard  Let’s get out of this business!
 If it’s not a public display and it doesn’t get to children, then who
cares? Not the court’s role
 CF: This is where law enforcement has ended up, but the
law is still Miller
o Redrup
 Prior to Miller  Court issues per curiam opinion in which it’s just
calling balls and strikes
 Unpredictable and unprincipled
Obscenity Test – (Miller)
1. Average Person / Contemporary Community
Standards
 Focus on THAT particular locality
2. Taken as a whole  lacks serious literary,
artistic, political or social value
 Tougher standard than “utterly lacking”
M.Glick – First Amendment – Fried – Fall 2007
32 of 172
3. Appeals to prurient interest
 Lustful Thought
4. Statutory Specificity
 Want specific definition of wrong – (leads to
obscene statutes
Paris Adult Theatre I
 Facts:
o Involves showing of adult films behind closed doors
 Held:
o Court vacated for reconsideration in light of Miller
o BUT categorically disapproved of the theory that obscene films acquire
constitutional immunity from state regulation simply because they are
exhibited for consenting adults only
 Discussion:
o Enduring justification for allowing criminalization of some non-public
sexually explicit speech: Quality of Life
 Having this type of stuff out there in the public is bad because it
will infiltrate and corrupt society
 Akin to 2nd-hand smoke
o Like Rehnquist’s dissent in Lawrence v. TX
 Homosexual sodomy (even in private) degrades public morality
because people know it’s going on and know it’s not criminal
 Polluting the atmosphere!
o This seems very paternalistic
 Assumes that citizens will reach in a certain way upon exposure
 Judges have a degraded view of sex and concerned about its effect
on society
Bickel and theory on banning pornography
 Bickel: obscenity impinges on people simply by being out there
o Need to protect against the very idea (like Lawrence)
o What’s disturbing is the very fact that you know it’s going on with
impunity
 It’s happening and it’s alright under the law
 Mechanism of Impact:
o Ferber  child – (subject to horrors)
o Bickel
 Possibilities:
 Corruption of the community
 Forced to be around people who you know are looking at
this stuff – (self-inhibiting)
 Discomforting
M.Glick – First Amendment – Fried – Fall 2007

33 of 172
CF: Compare to Violence:
o Depictions of violence do more damage than obscenity  why among all
these other things that distress us about the moral failings of our fellow
man do we choose to criminalize porn?
 Maybe we should prohibit violent movies because it leads to
violence – (demand side regulation)
o Two possibilities:
 Maybe we punish obscenity as a crime because we are unwilling to
make the act itself a crime
 Violent speech OK because violence itself is criminal
 Sex is not criminal, so maybe we criminalize the speech
 Sex doesn’t work thru the mind
 Schenck: “every idea is an incitement”  works through
the mind – (but sex does not)
Pornography as Subordination
 Pornography is sexually explicit + demeans women
 Why care?
o Potent in subordination  when sexually-related, delivers a powerful
punch that it wouldn’t otherwise have
 Carries some risk of socialization
 Bypasses mind and goes straight to emotional appeal
o BUT
 Remember Harlan – “:one man’s vulgarity is another man’s lyric”
 Should music be regulated just because it delivers a powerful
punch?
 Defeats rational faculties and gets to emotion
 MacKinnon
o Pornography should be a category outside the protection of the 1A
 Similar to Fighting Words or Ferber
o Makes “pornography as subordination” argument
 Everyone has equal dignity / nobody should be subordinated
 Any speech that argues in a powerful or persuasive manner for
subordination or despising of any group of persons can be a cause
of axn
 Problem:
o ANY speech that would subordinate or demean
ANY group would be problematic
o Easterbrook response in American Booksellers Ass’n
 Strikes down anti-porn ordinance as improper viewpoint
discrimination
 We are suppressing an idea!
 Subordination of women is an idea and you may not
punish/sanction an idea any more than you may sanction
any other idea
M.Glick – First Amendment – Fried – Fall 2007


34 of 172
o By singling out this idea to ostensibly protect
women, you are in danger of overlooking the fact
that a similar argument is available for all sorts
of expression
 Hard time protecting some while
disallowing others
MacK retort:
 This is an idea that:
o Causes specific harm
o Is unanswerable – (1A only protects expression
which takes the form of rational argument)
 BUT you’re still discriminating based on an idea
o NOT trying to say it’s bad because it bypasses the
mind; trying to say it’s bad because of what gets
through
Two other outlets
o Brandenburg
 Don’t forget that we still have Brandenburg  could imagine
pornographic speech could in some circumstances lead to
incitement of violence
o Secondary Effects
 Maybe some argument about rape/subordination
 Distinction:
 Renton
o Secondary effects have nothing to do with
persuasion
o Worried about the side effects/behaviors associated
with allowing this speech
 Here
o Concern is persuasion
o Worried about mind/brain
CHILD PORNOGRAPHY
 Everyone seems to be OK with regulating this
 Rationale:
o No consent / desire to avoid exploitation – (primary)
 Children can’t consent
 Possibility for lasting and eradicative damage to them
o Disgusting
 Cases
o Ferber
 NY Law prohibiting the distribution of material depicting children
engaged in sexual conduct is OK
 Child Porn is category outside the protection of the 1A
(Chaplinsky)
M.Glick – First Amendment – Fried – Fall 2007

35 of 172
Do NOT have to go through the Miller Test if you can
show harm to children
 Rationale:
 State’s interest in safeguarding the physical and
psychological well being of a minor is compelling
o Survives strict scrutiny
 Distribution of these materials is intrinsically related to
sexual abuse of children
 Low social value
 Evil to be avoided outweighs any potential expressive
interests
o (Definitional balancing)
o Ashcroft v. Free Speech Coalition
 Virtual Kiddie Porn  OK
 (Subject to Miller)
 Rationale:
 We don’t have the same risk of exploitation of nonconsenting children
o The harm to the children is what we care about
 Can’t survive strict scrutiny because we don’t have that
same compelling interest in protecting children
o Gov’t tries to come up with justifications, but none
accepted:
 Hard to prosecute child pornography cases
because can’t prove the actor is underage, so
we try to extend law to limit the virtual stuff
too
 Virtual porn creates an appetite for real child
porn
o Stanley v. Georgia – (possession)
 1A prohibits making the private possession of obscene material a
crime
 Constitutional right to receive info and ideas, regardless of
their social worth, is fundamental to our free society
o Freedom of Mind – (state has not right to control
the moral content of a person’s thoughts)
o Osborne – (possession of child porn)
 Possession of child porn CAN be criminalized – (contra Stanley)
 Rationale:
 Ferber
o Same interests in eliminating the entire chain of
distribution that justified the result in Ferber also
justify eliminating demand by criminalizing
possession
 Demand-side regulation
M.Glick – First Amendment – Fried – Fall 2007
36 of 172
o Allowing possession encourages distribution and
production
EROGENOUS ZONING
 These shops are NOT obscene under Miller, yet the gov’t seeks to regulate them
o Time/Place/Manner – NO
 NO – not content-neutral – (targets certain kind of shop)
 Exs.
o Doesn’t matter what you’re playing  we care
about volume
o Doesn’t matter what your parade is about  we can
ban all parades at certain times
 Cases:
o Young v. American Mini-Theatres
 Disperse porn shops
 Held:
 Total suppression is not OK, but regulation is
 Rationale:
 Lower Value – (Stevens)
o Lower value than core, political speech
 Concurrence (Powell):
 Only incidental effect on 1A
o No content limitation imposed on creators or their
ability to make these films available
o No significant restriction on viewers
 Wants to use O’Brien balancing test:
o Within Constitutional power of gov’t
o Furthers important or substantial gov’t interest
o Interest is unrelated to the suppression of free
expression
o Restriction is no greater than essential
 Powell seems to say that it’s zoning so it’s OK, but CF
doesn’t buy that  not complete enough
o Renton v. Playtime Theatres
 Concentrate porn shops
 Held:
 (embraces Powell balancing, not Stevens “lower value”)
o Steals from Young fn.3 (p. 136):
 “concentration of ‘adult’ movie theaters
causes area to deteriorate and become a
focus of crime, effects which are not
attributable to theaters showing other types
of films. It is this secondary effect which
this zoning ordinance attempts to avoid,
not the dissemination of ‘offensive’
speech.”
M.Glick – First Amendment – Fried – Fall 2007
37 of 172


Secondary Effects
o Ordinance is aimed not at the content, but at the
secondary effects
 Attract a certain demographic
 Attract crime/violence/prostitution/drugs
o Claim a right to shut down/regulate these things
based on 2ndary effects
 Seems like a Nuisance argument
 Speech-content neutral!
 CF doesn’t say that
o Rationale:
 What we’re regulating has nothing to do
with the persuasive element of
speech/expression
 We’re worried about other stuff (prostitutes,
pimps, drugdealers)
 They’re not persuaded by anything,
but they’re attracted by these
establishments
Has not been extended to any other context:
 Boos v. Barry
o Attempt to create protest buffer zones around
embassies
o Try to justify based on 2ndary effect of listener’s
reaction and the effect on diplomatic process
o Opinion by O’Connor (3 justices):
 Want regulation to target a secondary
feature that happens to be associated with a
certain type of speech
 NOT targeting the direct impact of a
particular category of speech
INDECENCY
 “Obscenity Lite”
 Problem:
o How to define
 “That which is not obscene” – (passes Miller)
 BUT related to obscenity in that we’re talking about offensive
speech that relates to sexual matters, excretory matters, or shows
nudity

Attempts
o Erzoznik  NO
 Ordinance bans drive-in movie screens from showing adult films if
visible from public space
 Held:
M.Glick – First Amendment – Fried – Fall 2007

38 of 172
NO
o Admits indecency (thrust upon you a troubling
word or image)
o BUT avert your eyes!
 Cohen v. CA
o Pacifica  OK
 George Carlin “filthy words” monologues
 Distinction:
 Unwanted image/word is intruded into your home in a
manner that you cannot avoid
o Uniquely pervasive presence and prior warnings
cannot protect the listener from the unexpected –
(can’t unring the bell)
 Broadcasting given less protection; Radio
pushes itself intro your home  intrusion
 Before you can turn it off or change the dial,
you have
o Home
o Uniquely accessible to children
 (CF unimpressed with this distinction – “meaningless”)
 How to get around:
 Confine for certain hours
o Sable
 Dial-a-Porn
 FCC tries to shut down  NO
 Rationale:
 “Pull” not “Push” (Pacfica)
o You have to pull in for speech
o Medium in which you have to “take steps to receive
communication”  don’t have the same non-prior
notice argument as Pacifica
o Playboy
 Regulation (not ban) of cable indecency  Struck down
 Require cable operators to either fully scramble sexually
explicit programming or confine such program to late-night
hours
 Court applies strict scrutiny and decides that the regulation failed
due to the availability of a less restrictive alternative
Denver Area
 After Sable, we know that Congress cannot ban indecent programming on cable
television, so Congress tries to authorize cable operators to simply decline to show
such programming on stations where they would not normally have such discretion
o BUT can’t excessively limit the access of non-children
 Analysis
o On the surface, indecency seems OK in cable context – (Sable)
M.Glick – First Amendment – Fried – Fall 2007



39 of 172
Rationale:
 Something you subscribe to; You pick the channels (“Pull”)
o If you don’t want to be tempted, don’t subscribe
 Cable provided by a cable operator  pipe for access
o BUT Cable seems like both a “Push” and “Pull”
 Push
 Content choice  not just a pipe
 Question of what types of channels the cable operator
wants to make accessible  seems like editorial discretion
 Pull
 You have to opt to get cable
Statute had 3 provisions:
o 10(a) Operators could block certain programming that is disapproved of
 Court: OK
 Permissive nature restricts less speech
 Adult viewers could still receive indecent programming
through other means
o 10(b) Required blocking of certain leased access programming which was
obscene, offensive, and indecent
 Court: NO
 Mandatory requirement inappropriate
 Insufficiently narrow  1A interests of cable operators
o 10(c) Operators could block public access programming which was
obscene, offensive, and indecent
 Court: NO
 Even though permissive, still gets shot down
 1A interests of cable operators were weaker wrt public
access channels than leased access channels because cable
operators never had any discretion over channels that local
governments reserved
Two Poles
o Kennedy
 Strike down all 3  indecent but non-obscene programming is
protected speech
 Strict scrutiny applies and these provisions are not narrowly
tailored to a compelling interest
o Thomas
 Uphold all 3
 Wrt 10(c), this provision affects the cable provider’s property 
just giving him some lost power/discretion over his property
 It’s the cable operator’s system and they can do what they
want with it
o Can’t be censored, but CAN censor self
 Counter:
 The system is not quite 100% theirs
o They must give something to the public
M.Glick – First Amendment – Fried – Fall 2007

40 of 172
o When it comes to the public, they can censor
o BUT when it comes to the gov’t, they can’t censor
 Cable systems have dual function
o Telephone  like a pipe
o Network/newspaper/content provider  more
complicated 1A analysis
What we would have preferred:
o Use other technologies to protect children, but allow non-children to
access
Indecency and the Internet
 Reno v. ACLU / Ashcroft II
o Seems like a pure “pull” case
 You are reaching out / must type in address yourself
o Problem:
 Children
o Held:
 Communications Decency Act goes too far
 No history of regulation here
 The Internet is NOT as invasive as broadcasting
o Requires affirmative steps
 Distinguishing Pacifica
 Regulation not limited to specific programming and timing
 Criminal prosecution (not just fines)
 Internet requires affirmative steps
 Distinguishing Renton
 Regulation here is much more broad – (not just zoning)
 Content-based – (not just time/place/manner)
 (Ashcroft II discusses number of valid alternatives)
 Filtering software
 Lock down your computer
 Control what your kids see
o That’s where the law is today  filtering
software might suck, but we think it’s less
intrusive than government surveillance
M.Glick – First Amendment – Fried – Fall 2007
41 of 172
SUM of Indecency
 Push vs. Pull
PUSH – can regulate
PULL – can’t regulate
Radio in home
 Pacifica
Dial-a-Porn
 Sable
Cable TV
 Wary of editorial
discretion in Denver Area
Cable TV
 Playboy
 Parts of Denver Area
Neither
Drive-in Movie
 Erzoznik – (avoidable)
Internet
 Reno
 Ashcroft II

Are there alternative ways to meet the state’s interest?
o Could we keep children from seeing it another way:
 Timing restrictions
 Software
 Scrambling equipment
o (Desire to allow non-child viewers to access programming)
M.Glick – First Amendment – Fried – Fall 2007
42 of 172
HATE SPEECH
RAV
 Facts:
o Cross-burning outside black family’s home
o Ordinance barring bias-motivated crime


Held:
o Ordinance is invalid
 Nonverbal expressive activity can be banned because of the action
it entails, but not because of the ideas it expresses
 Can go after fighting words because of their effect on victim, but
not because of the ideas they express
Analysis:
o Don’t allow a sanction to be applied to the expression of an idea
 This is viewpoint discrimination
 We are defining the offense (obscenity) by a particular point of
view  can’t do that
o Look to PURPOSE of the statute
 NOT to protect people from the harm of fighting words
 Purpose was to suppress an idea
 The mixed motive of preventing intimidation/incitement
coupled with conveying an idea means that the state
fails
o If RAV had simply been prosecuted under a “fighting words” statute, that
would have been OK
 BUT here we’re regulating the message / not just the
manner/conduct
 Even if fighting words can be regulated, gov’t can’t regulate their
use in a content-dependent manner
 CAN ban fighting words completely
 CAN’T only ban fighting words when critical of gov’t or
focused on certain groups
VA v. Black
 Focus on particular threat
 2 Holdings:
o 1. Statute bans cross-burning with intent to intimidate  Constitutional
 We’re regulating the conduct/manner of a particular threat
 Cross-burning with intent to intimidate is particularly
dangerous – (valid state concern)
 Analogy:
o We are concerned when you threaten someone, but
it’s OK to be especially concerned when you’re
threatening the president
o 2. Use of cross-burning as prima facie evidence of intent to intimidate 
NOT
M.Glick – First Amendment – Fried – Fall 2007


43 of 172
You can ban cross-burning if the intent to intimidate is PROVEN,
but can’t ban use cross-burning as prima facie evidence
 Can’t say that cross-burning = intent to intimidate
Thomas Dissent:
o Thinks cross-burning should be like flag-burning and receive no 1A
protection  historic association between cross-burning and terrorism
 Doesn’t matter the message; we’re regulating conduct
Wisconsin v. Mitchell
 Wisconsin increases penalty for racially motivated crimes  argue that it’s
unconstitutional under RAV
 Held:
o OK to take viewpoint into account
 If you choose your victim based on race, we will enhance your
sentence
 NOT attacking an idea
 Reconciling Wisconsin v. Mitchell with RAV
o RAV
 Criminal act criminalized only because of an expressive motive
 Cross-burning is done because it’s expressive in a way that
beating someone up is not
o Wisconsin v. Mitchell
 The criminalization is not about expression, but all about the act
 Think that crimes with certain characteristics are more
dangerous and egregious
 So we’re criminalizing that extra-dangerous conduct, not
the actual hate/idea
o Alternative:
 Maybe motive and expression are different
 Attackers did not attack victim to express themselves in the
same way that the cross-burners did
Keegstra – (CAN)
 Facts:
o Keegstra denies the Holocaust and makes anti-semitic remarks
 Canadian framework:
o Strong freedom of expression component
 2(b) guarantees fundamental freedom of thought, belief, opinion,
and expression  Positive Right
o Why it matters:
 Private action could be thought to violate that right – (Luth)
o BUT
 Rights and freedoms are subject only to such reasonable limits
prescribed by law as can be justified in a free and democratic
society
 Free and democratic society requires:
M.Glick – First Amendment – Fried – Fall 2007



44 of 172
o Equality / mutual respect / multiculturalism /
freedom from humility and degradation
We can forbid certain speech in a reasonable way in order to
protect certain fundamental values in our democracy
 Sunstein/Meiklejohn
o Political view of the 1A
o Be reasonable! 1A only protects certain speech
 Does NOT protect:
 Threats, incitement,
conspiracy/frauds
As applied:
o BALANCE:
 Free Expression
 Preservation and Enhancement of the multicultural heritage of
Canadians
 Equality under the law
o Comparative:
 US  categorical
 CAN (and around the world)  balancing
CERD
o UN Int’l Convention on the Elimination of All Forms of Racial Discrim
 Bans all dissemination of ideas based on racial superiority
 US signs, but doesn’t consider it self-executing  does not create
a right for individuals within a country by virtue of us signing it
 (we issued reservation to this effect)  “US will always be
bound by 1A as interpreted by the US Supreme court”
Harper – (9th Cir., Reinhardt)
 (like Keegstra  struggle between free speech and some other principle)
 Facts:
o School punishes Harper for anti-gay shirt worn on gay pride day
 Held:
o OK  no free speech violation
o Rationale:
 Public HS – “special characteristics”
 Go back to Tinker  two rationales for banning arm bands:
o 1. “would impinge upon rights of other students”
o 2. “substantial disruption of or material interference
with school activities”
 Reinhardt focuses on #1
 Nothing actually happened, but he relies on sociological
evidence and studies showing how this might legitimately
affect public HS students
 Emphasizes values: democracy, tolerance, equality
o It is just these values that we seek to promote in
public HS that are under attack here
M.Glick – First Amendment – Fried – Fall 2007
45 of 172

Reinhardt distinguishes this from political speech:
 The focus here is on a core characteristic
o Not something chosen
o Something that is a part of you down to your shoes
 Even though it’s a general statement, it’s OUT
 Focus on general statements related to core characteristics
of persons in the minority  forbidden idea that cannot be
expressed in a public HS
 Infringement on the “rights of others”
o Right to be let alone in public school:
 Students more vulnerable
 Special context
 Education important to future
o Right to be able to conceive of yourself and to
imagine that you are conceived by others as being
their equal
o Right to have self-esteem not be fundamentally
undermined by attack on core characteristics
 Reinhardt is doing Keegstra
 Students have enough trouble  they shouldn’t have their
core personal characteristics questioned in the school
environment – (hurts their person)
o Objections:
 This is viewpoint discrimination!
HARRASSMENT
 Two Kinds:
o Title VII Discrimination
 Discrimination in employment, terms, etc. on grounds of gender
 Working for less, being forced to have sex
o (When you have to endure sexual demands in the
workplace, it’s like having to give a kickback)
o Hostile Work Enviroment
 Because of your gender, your employment conditions are less
enjoyable than for other workers
 Some distraction that makes your job more difficult 
unpleasant to have to work surrounded by this hostile work
environment (dirty jokes/nasty remarks)
 Like being forced to have an office w/o AC
 SCOTUS has approved of these laws
 Vincent – (DC Circuit)
o Said the law was OK  discrimination
o (many dissents  this is NOT discrimination)
 Problem: 1A
o Gov’t is penalizing off-color speech in the
workplace
M.Glick – First Amendment – Fried – Fall 2007


46 of 172
How to justify regulation:
 Captive Audience Analysis
o Can’t avert your eyes / have to be there and endure
this unpleasantness
 Shouldn’t have dignity compromised by
having to listen
o Lehman v. Shaker Heights – (ads on bus)
 OK to get ride of music/ads
o (Assess who else might be able to use this)
 Cohen?  NO – (just corridor)
 Harper?  YES – (Reinhardt)
SCOTUS
o SCOTUS has never ruled on harassment punishment as a violation of the
1A  nervous about this
 Conflict:
 The same justices who are big free speech advocates are
also big on anti-discrimination, so it’s hard to make up your
mind on which value is more important
o Free Speech vs. Anti-Discrimination
 Arguments:
 Employee:
o I shouldn’t have to quit (equivalent of averting my
eyes) just to avoid this
 Employer:
o I have right to conduct my business (speech) as I
wish
o Workplace vs. School
 (Under Keegstra, you might say that everyone should be free to
take a job and one where they can do so without being
uncomfortable)
 BUT employment context is more difficult than school
o Where we’re headed:
 Tough possibility:
 As long as it’s ideas, you have to accept it
 As long as it’s not tough and in your face, you have to deal
with it
 Easier possibility – (Keegstra)
 Gov’t may limit speech in terms of it’s judgment about
what constitutes a free multicultural society of equals
 Problem:
o Those words/values don’t define themselves 
Who will decide?
Tracing our speech doctrine so far
 Schenck
o Go to slammer for what you say
M.Glick – First Amendment – Fried – Fall 2007


47 of 172
Brandenburg
o Protects us against that by creating only narrowly limited exceptions to the
1A:
 Compelling interest
 C&PD
Harper
o Seems to go back the way of limiting speech more and more – (picking
out zones of protection)
 SCOTUS is afraid of it
M.Glick – First Amendment – Fried – Fall 2007
48 of 172
COMMERCIAL SPEECH


Protected, but in a category of lower value speech  not entitled to the same high
degree of protection as core speech
o Lone exception to the two-level approach in Chaplinsky:
 Core = high degree of protection
 Incitement, fighting words, malicious libel, child porn = none
 Commercial Speech = some protection, but not a ton
How do we feel?
o Too Permissive – (Rehnquist)
 Too much protection afforded to this sort of speech
o Too Restrictive – (Blackmun)
 Not enough protection
o Dubious about everything – (Scalia)
 Original Intent Inquiry
 In absence of that  stare decisis
o Some restrictions are per se illegitimate – (Thomas)
Bigelow
 Recalcitrant state’s attempt to interfere with Roe by criminalizing advertisement
explaining the availability of abortions in NY
 Held:
o 1A applies to advertising of commercial transactions (like NY Times v.
Sullivan)
 VA could not criminalize ad in VA paper advertising for abortion
services in NY
 Ad for commercial service could not be regulated
Virginia Board of Pharmacy
 Facts:
o VA law prohibited pharmacists from advertising the price of prescription
drugs  prevents dissemination of prescription drug info in state
o Distinguished from Bigelow
 Here, the state was not using speech to suppress some underlying
constitutional right
 Held:
o Blackmun assimilates commercial speech into the 1A
 How?
 Public interest in information
o One mind seeking to reach another mind
o Counter (Rehnquist):
 This is not a communication about
democratic self-gov’t  shouldn’t be
covered – (Sunstein/Meiklejohn)
o Reply (Blackmun):
 Yes, but it is about important choice for
people (how you spend your money
M.Glick – First Amendment – Fried – Fall 2007
49 of 172

Plus, price info affects political choices  if
you can vote for who you want, you can get
rid of the price suppression
 We live in a free enterprise economy where
a purchase is a vote just like on election day
 Choice in the market place = vote
 We should protect communication relating
to those choices, just as we protect speech
related to voting
o Counter (Rehnquist):
 The free enterprise system is just one
specific view of economics and one choice
that a Democracy can make
 Holmes’s dissent in Lochner  free
enterprise/market is one way to
organize things, but not req’d
 If Democracy has chosen to be a little
paternalistic, then that’s fine

Fried
o States may achieve the end of regulating prices directly (i.e. min prices) 
so why not do that?
 Political Accountability – (regulation through speech is less
annoying)
o Blackmun reply:
 The legislature should have the guts to enforce price controls
directly
 If they did that, I would have nothing to say about it (Lochner)
 But they don’t have the spine, so they’re doing it in a way that
people don’t understand
 This is a means of regulation which prevents the citizens
from knowing that they’re regulated and therefore
exercising appropriate Democratic choice
o You cannot regulate keeping people ignorant of their choices 
FREEDOM OF THE MIND (sacred)
 Liquor Cases:
 Cases that Fried worked on where the gov’t didn’t allow
beer companies to advertise the content of alcohol in their
products
o State interests:
 Avoid war of raising alcohol content
 Prevent drunkenness and accidents
 44 Liquor Mart
o Liquor Pricing
 Coors Beer
o Alcohol content of beer
 Held:
M.Glick – First Amendment – Fried – Fall 2007
50 of 172
o Regulation was designed to keep people ignorant 
BAD
 You can limit the amount of alcohol in beer,
but you can’t limit the advertising
o (Fails last 2 prongs of Central Hudson)
Central Hudson
 (canonical statement on commercial speech)
 TEST (4)
o Truthful/non-misleading + Lawful Undertaking
 If false or misleading  unprotected
 Lawful Activity
 Pittsburgh Press
o Ran “help wanted” ad drawing distinction between
men/women  gender discrimination in
employment is illegal, so ad was not protected
o Gov’t interest is substantial
 Doesn’t have to be compelling – (no strict scrutiny)
 Schenck / Brandenburg:
o C&PD/imminent/serious harm  compelling
 Here
o Intermediate
o Regulation directly advances the substantial interest
 If not  speaker wins
o Regulation is necessary to serve that interest
 Want it to be close
 Some controversy over this prong:
 Doesn’t have to be absolutely crucial to meeting the goal
(i.e. necessary) – (not a standard of “without X regulation,
the goal wouldn’t happen)
o Not quite rational basis, but want to find an
appropriate relation to the end
 Fox
o Scalia says that “necessary” does not mean that the
court has to find the “least restrictive alternative”
o Turn to McCulloch v. MD
 The Nat’l Bank was not absolutely
necessary for the function of the nation, but
we allow it under “necessary and proper”
clause
 Apply a looser meaning  appropriate /
reasonably related
 Looking for a regulation that is appropriate to the chosen and
identified substantial interest
M.Glick – First Amendment – Fried – Fall 2007
51 of 172
Central Hudson TEST
1. Truthful/Non-Misleading
1a. Concerns a lawful activity
2. Substantial gov’t interest – (not compelling)
3. Regulation directly advances that interest
4. Regulation is necessary to serve that interest –
(though not absolutely necessary such that it could
not be achieved without it  should be appropriate to
meet the chosen interest)

Philosophical Dilemma wrt Commercial Speech
o Why have protection of commercial speech at all?
 (and if so, why stop halfway?)
o Truth/Misleading
 Non-commercial speech:
 Don’t care whether it’s false or misleading
 One of the values of 1A is allowing all ideas to come
forward  “false” ideas will be filtered out with public
deliberation
o The alternative would be the gov’t determining
which ideas were true  BAD
o Not subject to objective verification
 Libel:
 Gov’t has not been totally unconcerned with truth until now
 If you can prove falsity + actual malice  libel
o Rationale:
 Personal reputation at stake  doesn’t apply
in the same way to political parties
 Analogy between libel and commercial speech:
 We care about false/misleading in the commercial speech
context because it’s a tort to take money based on false
information
o More susceptible to fraud
o Lawful Action
 No similar requirement in other 1A cases – (Brandenburg /
Whitney)
 They are proposing an unlawful action, but they’re
protected because they are not calling for an imminent and
substantial injury
 Rationale:
M.Glick – First Amendment – Fried – Fall 2007

52 of 172
Commercial Speech is part of a course of conduct
o We aim at the course of conduct and this part of an
illegal transaction
o We’re OK protecting changing ideas, but not being
part of an illegal transaction
Thompson v. Western States
 Forbade drug compounders from advertising services in order to get exemption from
FDA approval
o They can do this compounding stuff, but they can’t advertise that they do
so
o Claims it is just part of a regulatory scheme and NOT a suppression of
expression
 Held:
o SCOTUS disapproves  can’t regulate by keeping people ignorant
 Agree that there may be some gov’t interest, but the regulation has
not been narrowly tailored to meet it
Henney
 Regulation of information regarding off-label uses for prescription drugs
o Scheme
 FDA requires approval for use of drugs prior to distribution
 Drug companies avoiding FDA regulation by not putting off-label
uses on the label (which would have required FDA approval), but
instead getting the info published in a journal and then mailing it to
every MD in that field
 No trials for safety/effectiveness
 Saves money
 FDA said you could not distribute articles in medical journals to
discuss off-label uses
 Applying Central Hudson:
o False/Misleading or Unlawful Action?
 NO
o Substantial Interest?
 Public health  OK
 Breyer: FDA’s call – (if this is a big leakage, then maybe it’s
factually necessary)
o Direct Advancement
 Probably
o Sufficiently narrowly tailored?
 (Battlefield)
 Drug companies argue that the regulation is more extensive than
necessary
 Seems like the FDA is regulating by keeping people ignorant
 Can’t regulate by keeping doctors in the dark
M.Glick – First Amendment – Fried – Fall 2007

53 of 172
BUT isn’t that what the SEC and FDA are doing with their
regulation of prospectuses and packaging inserts?
Nike v. Kasky
 Facts:
o Nike sent letter to college presidents and athletic directors with whom they
had an existing business relationship and with whom they want to have a
relationship in the future
o Plaintiff (under CA “private AG” statute) claims that the letter has falsities
in it
 Issue:
o Is this protected commercial speech or not?
 If YES:
 Kasky can claim it’s false and then have a trial about
whether it’s true or false
 If NO:
 No such thing as a false idea
o If the Chamber of Commerce could make this
speech, why can’t Nike?
 Tribe (representing Nike) asks for the NY Times standard of
“actual malice”
 SCOTUS ducks the case as “improvidently granted”
o Breyer’s Dissent:
 Would hold that it’s a mix of commercial and public-issue-oriented
speech  inextricably intertwined
 Looks to form/content – (determining whether it’s commercial
speech)
 Does not propose the sale of a product or any other
transaction
 Concerns a matter of significant public interest and
controversy
 If we apply commercial speech when the content is mixed, we
force a commercial speaker to take considerable care when
speaking on public matters
o Three possible alternatives the court might have chosen:
 Apply Central Hudson unmodified
 Ask whether Nike’s statements are true – (Letters are
essentially a commercial activity with a smattering of
public interest information)
 Problem:
o Nike put at disadvantage (esp in court of public
opinion) because they’d have to respond and be
absolutely truthful in every statement
 Apply Breyer’s heightened scrutiny
 Problem:
M.Glick – First Amendment – Fried – Fall 2007

54 of 172
o How to draw line between commercial and noncommercial speech
Apply a modified Central Hudson
 Say it’s commercial speech, but alter the test such that an
element of malice must be shown by the speaker, or at least
a reckless disregard for the truth
 Problem:
o Discourages commercial actors from checking their
facts because they’ll just plead negligence to get out
from the malice/reckless disregard framework
Lawyer Advertising
 (Examining what are substantial gov’t interests and what are appropriate relations to
those interests)
 Potential Substantial Interests:
o Protecting victims from coercion
o Protecting victims after accident
o Desire to forge lawyer-client relationship built on trust  want client to
have time to think and consider it
 Where the cases come out:
o Bates
 States could not prohibit lawyers from price advertising for routine
legal services
 Print ads with prices  OK as long as accurate/not
misleading
o Ohralik
 OK to ban in-person solicitation
 Face-to-Face  appropriate restriction
o Florida Bar
 OK to ban targeted direct mail to accident victim to solicit within
30 days
OK
Ban on in-person solicitation –
(Ohralik)
NOT OK
Prohibition of price advertising for
routine legal services – (Bates)
Ban on targeted direct mail – (Florida
Bar)
Association Cases
 Commercial Speech cases where the complaint is about SILENCE, not speech
 Cases
o Glickman
M.Glick – First Amendment – Fried – Fall 2007



55 of 172
All CA stone fruit producers had to kick in money used to regulate
stone fruits
 Some money went to generic advertising – (forced to pay)
o United Foods
 All mushroom producers had to kick in money for ads
o Johanns
 All beef growers had to kick in money and gov’t was putting out
beef ads
Complaint:
o Start with:
 Right to speak includes the right not to speak
 Gov’t can’t force you not to say X
 Gov’t can’t force to claim/say Y
o (can’t make you into a billboard)
o Next Step:
 Just as you can’t put political messages in my mouth, you can’t put
commercial messages in my mouth unless you hit the Central
Hudson standard
Court wasn’t buying it
o This has nothing to do with commercial speech! These concern a scheme
of commercial regulation
o Economic regulation is fine
 You may not like the cartelization, but you’re Lochnerizing if you
prohibit on that ground
 These are generic regulations that are part of a self-regulatory
scheme  like the SEC regulating stock prospectuses or the FDA
regulating packaging
o Outcomes:
 Glickman  loser
 United Foods
 Court distinguishes Glickman by saying that the only thing
the mushroom scheme handles was advertising (whereas in
Glickman the regulation of stone fruits advertising was part
of a larger regulatory scheme)
 CF: no principle distinction / just shifting majorities
 Johanns
 Compelled speech was gov’t speech  OK to regulate
Questions to ask for commercial speech
1. Is this regulation trying to keep people ignorant?
 Virginia Board of Pharmacy / 44 Liquor Mart / Coors Beer
2. Does it pass Central Hudson?
M.Glick – First Amendment – Fried – Fall 2007
56 of 172
CONTENT NEUTRALITY AND CONTENT-BASED REGULATION
Assessing where we are going
 Early Cases:
o Attack speech head on
 Frank and explicit attempt by gov’t to limit that which is expressed
because that which is expressed (or the effects we think it will
have)
 Exs. of Reg:
o “Don’t say that.”
o “Don’t say that if it has certain kinds of effects such
as a breach of the peace.”
o “Don’t say that because it’s obscene.”
 Coming up:
o Sideswiping speech
 Gov’t does not assert an interest in silencing a particular message
 Gov’t asserts an interest in some other kinds of harm but
purporting to be indifferent toward speech
 Gov’t trying to minimize a particular range of effects and
purports to be indifferent in the fact that speech contributes
to or produces that effect
 Purports to be indifferent to the message
o O’Brien – purports to be indifferent to the idea that
the draft is a bad thing
 We just have a simple draft card rule that
you have to have the card on you
 Comparison:
o Sort of like comparing intentional torts to torts of negligence/strict liability
 Old: Brandenburg
 1A claim is that you attacked speech directly
 CATEGORICAL
o Some purposes the gov’t isn’t allow to have
o (perhaps some ex ante balancing, but scales are
tipped a lot)
 Now:
 1A claim is that you haven’t attacked it directly, but you
have affected the message
 BALANCING
o Some purposes the gov’t is allowed to have
o Gets intricate  where gov’t is doing something
that it’s justified in pursuing and incidentally
burdens speech, we balance
Content and Viewpoint Neutrality
 Content Neutrality
o Indifferent to the communicative impact of the speech
M.Glick – First Amendment – Fried – Fall 2007

57 of 172
o Two types
 Laws aimed at wider range of behavior but with an incidental
impact on speech
 Violator challenges after engaging in that behavior in an
instance of expressive or symbolic conduct
 O’Brien
o Care about the administration of gov’t, NOT the
communicative impact of the draft card burning
 Could be that you’re protesting the war, but
could also be that you’re volunteering for
the war, not waiting to be drafted
 Laws aimed at expression, but for reasons unrelated to content
 “Time, Place, and Manner”
 Cox v. NH
o Care about flow of traffic, NOT about the
communicative impact of your parade
 In both situations, the gov’t claims to not care about what message
you’re trying to give via burning your draft card or parading in the
street  just claim they’re trying to facilitate the orderly
processing of gov’t services and property
o Opposite: Content-Specific
 Regulation is related to the communicative impact of what’s being
done
Viewpoint Neutrality
o Indifferent to the viewpoint of the communicative impact
 May not limit what’s said to one view or group of views on that
subject matter
o Ex.
 Can have program on marijuana
 BUT to be VP-neutral, you must have legalization arguments and
also arguments based on the evil of marijuana
o Opposite: Viewpoint-Specific
 Not only related to the communicative impact, but also focused on
one kind of communication (particular set of communicators)
 Viewpoint discrimination is the paradigm violation of
the 1A
M.Glick – First Amendment – Fried – Fall 2007
ContentNeutral
ContentSpecific
58 of 172
Viewpoint-Neutral
Viewpoint-Specific
You can’t have any shirts with writing
on them in school
You can’t have t-shirts in school with
an anti-gov’t message
Tax on all publications – (Minneapolis (It would be shot down)
Star)
Subsidy to civil rights lecture
ANALYZING CASES ACROSS 3 LEVELS
1. Strict Scrutiny
 Apply to cases where:
o Focus of law is on the Communicative Impact
 Content Regulation
 Regulation that which arrogates to itself the authority to
regulate ideas and the content of ideas
 Suppression of Expression
 If it’s a law intended to suppress expression  SS
o What troubles you is what it persuades or tells people or makes them think
about
 Standard:
o Compelling gov’t interest needed
o Narrowest tailoring of the law to meet that interest
 Hypo:
o “No political speech on city buses.”
 Viewpoint-neutral (Dem vs. GOP on same footing) but Contentspecific  we don’t like it
 Rationale:
 In public forum if what you’re getting at is expressive
conduct, then you are trying to regulate speech/ideas
o Strict Scrutiny
 Cases:
o Boos v. Barry
 Ordinance requires protestors to keep distance from embassies
 Gov’t tries to make secondary effects argument  diplomatic
effects of protest justify gov’t regulation
 Held:
 Struck down as content-specific
o You are regulating the communicative stuff
 Diplomatic effects come about through the
message that is sent out
M.Glick – First Amendment – Fried – Fall 2007
59 of 172
o In Renton, the effects did not operate through
communicative impact  more public morality and
behavior – (lower-level stuff)
o RAV
 Ordinance forbids burning of cross to express hatred on grounds of
race/ethnicity/religion
 Content-specific  Forbidden
o Burson
 Time/place/manner restriction in a public forum: 100 ft from
polling place – (can’t discuss politics)
 Content-specific – (rules out all gatherings and
communications on a particular subject)
 Held:
 Strict Scrutiny  BUT the regulation survives
o Compelling state interest
o Narrowly tailored
o Flag Burning
 Texas v. Johnson – (1989)
 State claims this isn’t about speech at all  conduct/axn
o BUT concede that this is expression and it looks
like the statute is directed at that expression
o (Alternatively, flag is a symbol of national unity 
right to protect flag and get rid of this sort of
expression)
 Defining Expression:
o An intent to convey a particularized message
o Likelihood was great that message would be
understood by those who viewed it
 National symbol = speech
 Court finds that the flag-burning ban is an inappropriate
prohibition of the expression of an idea simply because
society finds it offensive or disagreeable
o Gov’t bans because it disagrees with msg
 Eichmann
 (CF wrote brief in favor of ACLU  thinks flag-burning is
OK)
 Court strikes down new flag-burning ban
 Rationale:
o Clear that the gov’t’s asserted interest is related to
the suppression of free expression and concerned
with content of such expression
 Two Possibilities:
 Fighting words  Chaplinsky
o Argue that it induces violence directed at a
particular speaker
o Problem:
M.Glick – First Amendment – Fried – Fall 2007
60 of 172


Fighting Words Doctrine has been so limited
 Limited to words directed at a person
 not addressed generally to the
world at large
 Looking for imminent danger of
violence to the single person it is
addressed to
Apply Barnes or Paris Adult Theater  Public Morality
o Look for a sort of public morality banning flagburning
 Barnes is not about flaunting speech in the
face of unconsenting people – (these people
have consented to be behind closed doors
viewing this stuff)
 Rather, it’s about the very idea that this stuff
is going on
o Why can’t we have a public morality about flagburning?
 It may be an expression, but public morality
is offended by it, so can’t they be overcome
just as nude dancing lost out to public
morality in Barnes
o Hate Crimes
 RAV
 Handled under strict scrutiny because we believe that
what’s being penalized is the message
 To avoid this:
 Want to pry the message away from the medium in order to
punish  Make the message seem irrelevant
 Then the regulator can just say it’s the medium he’s after
 falls in O’Brien (below)
o Only when the message doesn’t matter can you
avoid falling under the 1A prohibition of punishing
messages
2. Intermediate Scrutiny
 Apply to:
o Laws that involve “incidental” burdening of expression
 Unrelated to the suppression of expression, yet nonetheless effect
expression/speech
 Standard:
o Important/Substantial Interest
o Narrowly tailored, though not the least restrictive alternative
 Ward v. Rock Against Racism
 Not the least restrictive alternative
M.Glick – First Amendment – Fried – Fall 2007



61 of 172
Need it to be close enough fashion, but it would survive
even if there was another way
Why important?
o Solution to the problem that expression/communication requires action
 Expression requires material manifestation
o O’Brien tries to pry action and communication apart
 Action  can be regulated
 Communication  cannot
 If you claim you are just after action, but you’re not, we
will disclaim your motive
o If activity is intended to convey a message and it’s likely to be
understood to convey a message, then it has both thought and action
aspect
 BUT Regulation can only be of the action
 Regulation must be unrelated to the communicative impact of
the action
O’Brien
o Facts:
 Law forbids burning draft cards
 O’Brien convicted then claims that the law burdens his 1A right of
free expression
o TEST:
 Within the constitutional power of government
 Furthers an important or substantial gov’t interest
 Gov’t interest is unrelated to the suppression of free expression
 (This is another way of saying “content-neutrality”)
o If it’s content-specific, it is related to the
suppression of expression
 Is it intended to burden speech?
o If yes, struck down
 Gov’t may have a reason for burdening speech, but that
reason must be indifferent and apart from the suppression
of speech
o Must cite a reason that is unrelated to the
suppression of speech
 Incidental restriction is no greater than is essential to further
the interest
 If it heavily burdens speech but doesn’t have to, the Court
will strike it down – (some content-neutral regulation isn’t
alright)
M.Glick – First Amendment – Fried – Fall 2007
62 of 172
O’Brien TEST
1. Within the constitutional power of gov’t
2. Furthers important/substantial gov’t interest
3. Gov’t interest is unrelated to the suppression of
free expression – (“content-neutral”)
4. Incidental restriction is no greater than is
essential to further the interest – (can’t burden too
much)

o Speech-Action distinction
 Court announced that it could not accept the view that an
apparently limitless variety of conduct can be labeled “speech”
whenever the person engaging in the conduct intends thereby to
express an idea
 He might claim that he intended to express an idea, but at
some point, we can still bar the conduct
o Motive
 Warren rejected summarily any inquiry into congressional motive
 BUT this isn’t universal:
o Wallace v. Jaffree – (school prayer)
o Hialeah – (ritual slaughter)
o Aguillard – (Creationism Act)
Applying O’Brien
o Barnes v. GlenTheatre
 Glen Theatre convicted for violating ban on public nudity
 Analysis:
 1A
o There is an expressive element to nude dancing
 State Interest
o Public morals/decency
 Run it thru O’Brien  regulation OK
 Within constitutional power
 Important/substantial interest in morals/decency
 Interest is unrelated to suppression of free expression
o No direct burden on speech
o All conduct could be labeled “expressive”
 Narrow tailoring
o Requirement of g-string and pasties is narrowly
tailored to the interest and does not take away from
expressive aspect too much
M.Glick – First Amendment – Fried – Fall 2007
63 of 172
 Scalia (concurrence)  this is an LGA, so it’s fine
o Motive Cases
 We’re basically casting doubt on the stated motive behind the law
 SO  require generality
 By requiring generality, we know that gov’t can’t play
favorites wrt speech and we know that their stated
reason is genuine
o Put it to them to really fulfill their motive
 If X is your motive, go all the way
 If not doing that, we don’t believe your
motive is X
 Mosley and Carey
 Facts:
o Mosley
 Law restricted picketing of schools except in
labor dispute
o Carey
 Law restricted picketing outside buildings
except for peaceful picketing of place of
employment in labor dispute
 Held:
o Strikes down laws as content-specific
 Not necessarily viewpoint-specific  you’re
allowing both pro-management and prolabor together – (VP-neutral)
o You COULD get around this by allowing NO
speech
 Seems like an anomaly (less speech > more
speech)
 BUT prohibiting some speech implies that
that speech is more worthwhile than other
types of speech
 Makes us nervous to have gov’t
saying what speech is worthy
 If we disallow all, we’re not making
a value judgment about some speech
being any better
 Doubt about motive!!!
o Stated motive: order in schools
o BUT if what you really care about is
order/tranquility, why are you making an exception
for this?
 City of Cincinnati v. Discovery Network
 City disallows Discovery from putting their boxes on the
street along with a newspaper of general circulation
o Claims it’s clutter
M.Glick – First Amendment – Fried – Fall 2007

64 of 172
Held:
o Court casts doubt on motive
 Such a small number of boxes that we don’t
believe your alleged motive of unsightliness
and obstruction
 Simon & Schuster
 NY Law requires payment to crime victims board of any
income derived from books related to crime
o Stated motive: Don’t want criminals to profit from
crime
 BUT if that was your real motive, you would have done
something more general
o Since you did not, we assume you are attacking
expressive conduct  NO
 NY v. Railway Express
 NY ordinance says no ads on side of your truck unless you
are advertising your own business
o Reality:
 Exempt newspapers because they endorse
 Comes under Equal Protection fire
o The reason we have EqPC is so that gov’t can’t play
favorites
o We want genuine reasons  all or nothing
 No illegitimate favorites
 SUM
 In these cases, we’re probably better off with less speech
o (fewer protests / fewer distribution boxes  50%
down from 100%)
 BUT we’re skeptical about how you distinguished 
skeptical that you aren’t really following your claimed
motives
o Reality:
 Newspapers (Cincinnati) and Teachers
Unions (Mosley) are powerful groups and
don’t want to piss them off
o Hate crimes  the regulation is OK if it’s targeting CONDUCT
 Want to pry the message away in order to punish the conduct 
Make the message seem irrelevant
 Then the regulator can just say it’s the medium he’s after  falls
in O’Brien (below)
 Only when the message doesn’t matter can you avoid
falling under the 1A prohibition of punishing messages
 Wisconsin v. Mitchell
 Wisconsin increases penalty for racially motivated crimes
 Claim that we’re regulating conduct here  the underlying
crime
M.Glick – First Amendment – Fried – Fall 2007



3. Rational Basis
65 of 172
Apply the test:
o Within the constitutional power of government
 Yes
o Furthers an important or substantial gov’t interest
 Think that crimes with certain
characteristics are more dangerous and
egregious
o Gov’t interest is unrelated to the suppression of free
expression
 The criminalization is not about expression,
but all about the act
 Unrelated to suppression of
ideas/expression in the sense that
the statute did not speak in terms
of committing a violent act to
express a point of view  spoke of
committing a violent act with a
particular motive
 Must cite a reason that is unrelated to
the suppression of speech
o Incidental restriction is no greater than is essential
to further the interest
 Seems to fit
 Violence Against Women Act
o Act violent due to concern about gender-motivated
hatred, but it’s certainly legal under 1A
 What you communicate doesn’t matter
 It’s about WHY you did it and criminal law
is wrought with provisions like these
Contra RAV
 Court believes this is more about ideas/expression, so it
gets strict scrutiny
o “We have long held, for example, that nonverbal
expressive activity can be banned because of the
action it entails, but not because of the ideas it
expresses.”
Synagogue Hypos
 Act punishes, “Defacing places of worship.”
o OK – you could fall under that w/o intent to express
anything
 Law is not targeting expression
 Act punishes, “Defacing a place of worship in order to
express hatred or contempt”
o NO  that’s RAV / VA v. Black
M.Glick – First Amendment – Fried – Fall 2007



66 of 172
Apply to:
o Laws of General Applicability
 Applied generally and without picking out anyone to advantage
 Ex.
 Zoning / Environment
Standard:
o Rational relation between means/ends
 Virtually always met
Issue:
o Why isn’t it that once it’s clear that a law is “unrelated to the suppression
of speech” that we don’t just put it in this category as an LGA?
 Scalia concurrence in Barnes
 Also: how we deal with religion – (Smith)
 Freedom of Expression gets greater protection than Free
Exercise
o Free Exercise  Smith
 LGA can apply even if burden on religion
o Freedom of Expression  O’Brien
 LGA still undergoes scrutiny:
 Does it leave ample opportunity for
other forms of expression?
 Substantial gov’t interest
 No more incidentally restrictive than
necessary for avowed purpose
 (Scalia wanted to treat all LGA under
rational basis, but the court went the othe
way in Ward)
o Rationale:
 Sometimes law claims to be LGA but the motive is fairly blatant
on its face
 Court can’t accept the full logical consequence of the act-speech
distinction  we just don’t trust the legislature
 Ex.
o State passes law banning all outdoor fires
o Citizen then prosecuted for burning flag  not for
the message, but because he’s caused a hazard
 The prosecution makes uneasy  gov’t
should not be free to choose our media, just
as it cannot choose our message
 This area requires compromise and balance
 This is why Scalia is alone
o Hates balancing
o Acts as if it’s possible to totally separate out these
things – (medium and message / act and speech)
 Medium is inevitably connected to speech, so it gets some
protection
M.Glick – First Amendment – Fried – Fall 2007
67 of 172
o But it’s also different from speech in some regard,
so it’s given only intermediate protection
 If you’re going to limit, you’ll need some
reason

Cases
o Arcara
 Facts:
 NY law defines places of prostitution and lewdness as
public health nuisances
 Bookstore claims that this has the effect of burdening its
1A right to sell books
 Held:
 LGA is OK even though it burdens speech
o 1A is not implicated by the enforcement of a public
health regulation of general application against the
physical premises in which respondents happen to
sell books
 Why this is attractive?
 Scalia has a horror of balancing
o Derogation of rules/clarity
o Assigns to courts the duty to determine between
competing values  don’t like that
o Tax on Authors
 Seemingly an LGA
 Just gets down to a matter of degree
 There’s a connection between mode of speaking and
message  if this connection becomes too attenuated, the
court stops caring and the regulation is allowed
o Scalia concurrence in Barnes:
 O’Brien is the wrong framework
 This is an LGA unrelated to the suppression of free expression
 Akin to Smith
 If the regulation is truly unrelated to the suppression of
expression (truly content-neutral), then it shouldn’t get
heightened scrutiny at all  LGA!
M.Glick – First Amendment – Fried – Fall 2007
68 of 172
LAWS RELATING TO:
COMMUNICATIVE
IMPACT
CONTENT REGULATION
SUPPRESSION OF
EXPRESSION
Strict Scrutiny
 Compelling gov’t interest
 Narrowest tailoring
Boos v. Barry
RAV
Flag-Burning
Burson – (survives)
“INCIDENTAL”
BURDENING OF
EXPRESSION
LAWS OF GENERAL
APPLICABILITY
Can burden, but unrelated
Intermediate Scrutiny
 Important/substantial interest
 Narrowly tailored, but don’t
need least – (Ward)
Rational Basis Scrutiny
 Some connection –
(almost always met)
O’Brien
Cloud v. Arcara
Barnes
(Motive Cases)
Hate Speech where we’re
getting to conduct, not
expression
M.Glick – First Amendment – Fried – Fall 2007
69 of 172
PUBLIC FORUM

Close to O’Brien in that the gov’t claims it’s regulating the medium and not the
message
o Gov’t has right to regulate speaker, but must show the regulation has no
impact on communicative impact or free expression
Time, Place, and Manner
 Gov’t is entitled to give consideration, without unfair discrimination, to time, place,
and manner in relation to other proper uses (Cox)
o We cannot limit you on communicative impact grounds, but we can limit
you in a content-neutral way
o Test:
 If you’re going to stop people from expressing themselves in a
place where they are entitled to be, you:
 Must have good reason
 That reason must not be related to what they are saying
o Exs.
 Noise
 Residential Tranquility
 Proximity to a school
 In certain places, only TPM restrictions apply
o Places that belong to all of us  Public Forums
 Streets
 Parks
 Places you’re allowed to be
o Places that belong to you
 Home
 Office
 Rented auditorium
o TEST STRATEGY:
 Find places that look like these!
 Modern TPM Test:
o Looking for:
 Public Order or Safety
 Controlled discretion
 Cox v. LA / Heffron v. ISKON
4 Levels of restrictions
 1. Gov’t may not restrict what is said @ all in terms of its content
o Only TPM
 Ex..
 One parade at a time
 No blaring sound equipment
o Must be content-neutral
 Restrictions can have no reference to what is being said
 (can’t matter why you’re having a parade)
M.Glick – First Amendment – Fried – Fall 2007


70 of 172
2. Gov’t may specify the topics to be considered, but may not specific what is
being said about those topics
o Content-specific / Viewpoint-neutral
3. Both topic and viewpoint about that topic are subject to regulation
4 Types of Forums
 1. Traditional Public Forum
o TPM only
o If state wishes to enforce a content-based exclusion, it must show that its
regulation is:
 Necessary to serve a compelling interest
 Narrowly drawn to serve that end
o Hague v. CIO
 Streets and parks which forever have been a part of the public
discussion – (time in memorial)
o Theory
 Why do we have such a thing?
 Holmes: We shouldn’t!
o Your living room belongs to you / streets and parks
belong to city
 You can keep people out and so can the city
o Gov’t has the right to its own property
 Idea of gov’t as a private property owner or
employer with the freedom to make
whatever decisions it wants as a private
actor  NO
 Why Holmes is wrong:
 Two rationales:
o Must have private property in order to have
somewhere to speak
 Place for speaker to speak
o The public forums are where the audiences are
 Place to find an audience
o (Undermined a bit by the Internet)
 Notion that streets and parks are where
people go to speak and/or find an audience
is obsolete
 No longer the easiest way to reach
people cheaply
 People no longer need the
streets/parks
 Human contact is not as important
 1a. Non-gov’t venue at all
o (All of the forum cases really address only gov’t venues)
 If it’s not public property  only TPM
o Only TPM – (absent compelling state interest)
M.Glick – First Amendment – Fried – Fall 2007


71 of 172
Mistake to think that gov’t is free to go beyond TPM in all places
that are not streets and parks
 Gov’t can’t control viewpoint/content in your living room!
o Terminello
 Privately-held auditorium  gov’t can’t restrict
2. Designated Public Forum
o Gov’t actions or permission designate something as being the same thing
discussed in Hague
 Just like a PF forum because gov’t said so
 Even if state was not required to create such a forum in the fist
place, as long as it keeps it open as such, it is bound by the
same standards as the traditional public forum
 Forbids state from enforcing certain exclusions from a
forum generally open to the public
o Oftentimes, these cases arise when the gov’t believes it has not
designated something a public forum, but a group argues that it has
 There are no “magic words”
 Circularity of DPF:
 “Designated Public Forum” conjures up an image of a
plaque that designates an area as a public place
 BUT that’s not reality  gov’t merely allows certain
activity to take place there and the court then infers or
ascribes the concept of a public forum by designation
o Sort of like adverse possession
 So can it be un-designated?
o (CF thinks so) – the gov’t deciding to restrict it is
just part of what the gov’t has done!
o What’s OK?
 TPM
 You MAY limit to particular category or community
(speakers/audiences)
 Try to claim:
o Content-neutrality
o Subsidy
o Cases
 SE Promotions
 Close to pure PF by definition
 If you want to use, you have to pay rent, but anyone who
pays can use it
 Lamb’s Chapel
 DPF but limited  Only available to student population
 Widmar
 DPF but limited to students
o Cannot prevent venue from being used for prayer
(content-regulation) when you have designated thos
rooms as a public forum)
M.Glick – First Amendment – Fried – Fall 2007



72 of 172
Rosenberger
 DPF but limited to students
o Can’t prevent student group from using subsidy to
publish religious publication (content regulation)
3. Non-Public Forum (Unclear designation)
o NOT public forums of any sort
 You can’t use free speech rights to tell the gov’t what to do in a
non-public forum
o What’s OK?
 TPM
 You MAY limit to particular purpose or category of
speakers/audience provided:
 Regulation on speech is reasonable
o Must make some kind of sense
o (but any unreasonable law is subject to challenge
under DP clause anyway)
 Regulation is not an effort to suppress the expression
merely because the public official opposes the viewpoint
o The sense that gov’t makes mustn’t have anything
to do with the opinions being discussed
o Gov’t can insist the forum be reserved for the
general purpose for which it has been designated
BUT must not be viewpoint-specific
o Cases
 Velazquez – (legal services)
 Cornelius – (combined federal charities)
 Court remands to find out whether the limitation was
viewpoint-specific
 Greenburgh – (mailbox)
 Viewpoint-neutral
 Perry – (teachers mailbox)
 Discrimination OK because it relates to status, NOT viewpt
4. Gov’t allowed to have a point of view
o Gov’t venue (doesn’t have to by physical) where the gov’t is quite
specifically entitled to be viewpoint-specific because the very point of the
program is to promote a particular point of view
 Odd conclusion to say gov’t can’t have a viewpt
o Cases:
 Forbes – (candidate debate)
 Rust – (abortion funding)
 NEA v. Finley – (subsidy to arts)
M.Glick – First Amendment – Fried – Fall 2007
Traditional
Public Forum
Hague v. CIO
Designated
Public Forum
73 of 172
Limited
Public Forum
SE Promotions
Velazquez
Rosenberger
Lamb’s Chapel
Widmar
Cornelius
Gov’t CAN have
a point of view
Finlay
Rust
Forbes
Greenbush
Perry
Private Property as Public Forum
 We’ve seen a tremendous arc:
o Marsh
 Company-town = public town, so streets are part of public forum
 1A right to speak on “private property” because the streets
(though privately-owned) ARE the public square
o Logan Valley
 Shopping center/mall
 Places so historically associated with 1A practice
 Functional Equivalent  Makes it like a public forum
 That’s where you go to find people / where people go
o Lloyd
 Want the speech in question to have some relation to the property
 Invoke Trespass
 This is our property and we have withdrawn the license to
be here  you’re trespassing
 LGA!
o Not a speech-specific law or race-specific law
o (Logan has disallowed  speech-constraining law
w/o a compelling interest)
o Hudgens
 Yes, we limit speech  but not a 1A violation
 (Lloyd didn’t merely distinguish Logan Valley 
overturned it)
 The state could give you that right (Pruneyard), but it hasn’t and
you have no 1A right because this is not a Pub Forum
 No 1A right absent a statutory provision allowing you in
o (Private shopping centers are not, by their very
nature, public forums)
 How they get in though:
o EQUAL PROTECTION
M.Glick – First Amendment – Fried – Fall 2007


74 of 172
Statutes bar this sort of behavior – (civil rights or public
accommodations statutes)
Argue that it’s just the way in which private parties choose to act,
but the statutory rights grant you access
Assessing a variety of forums and forms of regulation
 Total Medium Bans
o Martin v. Struthers – (Doorbell)
 Statute forbids distribution of handbills by ringing doorbells
 Medium Ban
 Held:
 Cannot ban
 Rationale:
o 1. Functional
 Need freedom to distribute
o 2. Designated
 Doorbell is on street, so part of public
sphere
 Qualification:
o If someone puts up a “no solicitation” sign, you
must respect it
o (How we get around “Do Not Call” list in the
telemarketing sphere)
 BUT we probably could not have a “Do Not
Call” list that exempted political donations
 Carey problem
o Kovacs v. Cooper – (Truck speakers)
 Ordinance designed to regulate loudspeakers
 Held:
 OK
o Absolute prohibition of loudspeakers would
probably be held unconstitutional but this ordinance
is valid insofar as it only applies to those speakers
emitting “loud and raucous” noises
 Streets are Traditional PF, but still subject to some control
o Schneider – (Leaflets)
 Law forbids distribution of leaflets on grounds of preventing
littering
 Held
 NO
o Purpose to keep the streets clean is insufficient to
justify an ordinance which prohibits leafletting in its
entirety
 Rationale:
o Streets are natural and proper place
o (seems like balancing)
M.Glick – First Amendment – Fried – Fall 2007



75 of 172
Aesthetics
o Taxpayers for Vincent
 Ordinance prohibits posting of signs on public property
 Challenged by political campaign
 Apply O’Brien
 Succeeds on two prongs of O’Brien:
o Within the constitutional power of the city
o Interest is unrelated to the suppression of ideas
 Challenged on two other prongs:
o Interest is sufficiently substantial to justify the
effect of the ordinance on the expression?
o Whether the effect is no greater than is necessary to
accomplish the city’s purpose?
 Held:
 Ordinance is OK
o Interest is substantial/sufficient and statute is
narrowly tailored to that interest
 IDs a valid problem  signage
 Curtails no more speech than is necessary to
accomplish its purpose  the medium is the
problem, so OK to ban
Airports
o ISKON v. Lee
 Religious organization wants to sell literature at airports, but
statute restricts it
 Stated interest: security/crowd constraint
 Argument:
 Hudgens  not a public forum
 Kennedy
 Function  airport is where people come and pass thru –
it is a public forum
 TEST:
 Rehnquist doesn’t care about function
 Public forum is one of two things:
o 1. Traditional forum (time in memorial) dedicated
to people
 Hague v. CIO
o 2. Designated Public Forum
 (The airport fails because it’s a place for commercial
activity)
o Hudgens and ISKON reject the functional view 
don’t want to get into that
City Theater
o SE Promotions v. Conrad
 City Theater wouldn’t show Hair
 Public thinks it’s been designated a public forum
M.Glick – First Amendment – Fried – Fall 2007




76 of 172
 Gov’t doesn’t think it’s done that
Held:
 When you’ve designated this a public forum, you can’t
discriminate on grounds of content
Can they undesignate?
 Limited Public Forum
o Must only be viewpoint-neutral
o Exs.
 Need only be suitable for all audiences
What if they use the Finley rationale?
 Finley (NEA Case)
o NEA comes up with certain guidelines for
distribution of federal subsidies which take into
account values such as decency, respect, public
values
 Don’t have to be viewpoint-neutral!
o We only have a certain amount of money here and
we must make inevitable judgments about quality,
decency, artistic interest to the community
 Claim would be that there is limited space (one theater) and
we need to give it to people who will appeal to the most
number of people and therefore fill the theater
o Get rid of Hair that way
 Problem:
o You might always be able to find people to fill the
theater
o The people who are willing to pay should just get in
line
National Parks
o Clark v. CCNV
 No camping in Lafayette Park
 How to analyze:
 O’Brien
o Fact that they were sleeping in the park had a
communicative impact – (message wrapped up in
the medium)
o Applying the test:
 Within Constitutional powers
 Serious gov’t interest  preserving the
amenity of national mall
 Policy that serves that interest  (seems iffy
because we let you keep the tent there
overnight)
 CF says NO – does not substantially
prevent wear and tear given all that
is allowed
M.Glick – First Amendment – Fried – Fall 2007


77 of 172
Religious speech on public property
o Widmar
 State university that makes its facilities generally available for the
activities of a registered student group may not constitutionally bar
a group desiring to use the facilities for religious worship and
discussion
 Rationale:
 Designated Public Forum
o Created a forum generally open to students
o Lamb’s Chapel
 Local school district makes auditorium available afterhours, but
restricts use for religious organizations
 Anyone can use it  chess club, political candidates,
ACLU
 Held:
 Designated Public Forum
o If you open it all it becomes a DPF
o If you don’t open it to all, you must come up with
some accounting for what you’re doing:
 Some legitimate explanation for what
you’ve done
 Maybe it’s a subsidy
 Maybe you’ve regulated in a
content-neutral manner
o Good News Club v. Milford Central School
 School district would not allow a private Christian organization to
hold weekly afterschool meetings
 Held:
 Scalia did not decide whether the program constituted a
traditional or designated public forum, but held that an
exclusion of this sort would be unconstitutional viewpoint
discrimination
o Rosenberger
 You opened it up to students groups, so can’t now restrict a
religious publication from using the money
o Mergens
 No Establishment clause violation where law requires schools to
open limited public forums to groups even if they discuss religion
 Rationale:
 This was a Public Forum, so can’t restrict access to anyone
Public Transportation
o Shaker Heights
 Rule against political advertising on city buses
 Argument:
 Bus is on street and street is a public forum
M.Glick – First Amendment – Fried – Fall 2007




78 of 172
Therefore, this is content-specific regulation or a traditional
PF
Held:
 Court says regulation is OK
o Not a Traditional PF – (no open space, meeting hall,
park, street corner, or other public thoroughfare)
Charitable campaigns in federal offices
o Cornelius v. NAACP LDF
 Facts:
 Charities want to solicit in federal offices  combined
federal campaign
 Cornelius want to keep some groups out of this process
o She comes up with a rule that says you can only
collect funds for groups that don’t distribute directly
to the beneficiary of the charity
 Homeless  OK
 Litigating groups (like LDF)  out
 NAACP argues it’s a Designated Public Forum
o You’ve opened to all charities who want to solicit in
public sphere
 Held:
 Non-public forum!
o Court looked to:
 Evidence of intent to create a forum
 Nature of Property
o Therefore, requirements (Perry)
 Reasonableness in light of purpose
 Viewpoint-neutrality
 You CAN distinguish based on
speaker identity and subject matter
Mailboxes
o Greenburgh
 Not a public forum
 Not a traditional public forum
 Therefore, may be subject to a prohibition of speech
o Requirements:
 Reasonable regulation
 Viewpoint-neutral prohibition  gov’t
regulation is not based on what is being said
o Perry
 Rival teachers union wants to gain access to teachers mailboxes
and the interschool mail system
 Teachers mailboxes are not a public forum
 Not a quintessential/traditional public forum
 Alternatives:
o Designated Public Forum
M.Glick – First Amendment – Fried – Fall 2007
79 of 172

State has opened for use by the public as a
place for expressive activity
 Court rejects
o Even though they open to
some private, non-school
groups, this type of selective
access does not transform the
property into a public forum
o Even if it did, the
constitutional right of access
would only extend to groups
of similar character
o Limited Public Forum
 Maybe
 BUT regulation is OK because it’s
viewpoint-neutral  limits the use of the
mail system not by viewpoint, but by
status/subject matter
 Those things having to do with the
school
 Speech by the recognized bargaining
unit

Schools
o Tinker
 School tries to restrict armbands
 Held
 NO  Students do not leave their 1A rights at the door
o Kozinski dissent in Harper
o Bethel
 School punishes sexually-suggestive speech at school
 Held:
 OK
o Political speech vs. sexual stuff
o Kuhlmeier
 School censors school newspaper article about pregnancy/divorce
 Held:
 OK
o School not required to promote certain things
o Concern about wrongful attribution – (people will
think school has these beliefs)
o Morse v. Frederick – (Bong Hits 4 Jesus)
 School punishes student for this banner
 Held:
 OK
o Compelling interest in preventing drug use
 Hypo:
M.Glick – First Amendment – Fried – Fall 2007


80 of 172
His sign said “Legalize Drugs”
o May have had enough to get by, especially with
Alito on the court now
 Not a provocative celebration of drug use
o Harper – (9th Cir.)
 School punishes student for anti-gay shirt
 Held:
 OK
o Special sociological characteristics of schools
o SUM
 Started with speech-protective ideal in Tinker, but have walked
back from that  School has not (really) lost since Tinker
 School has become an uncomfortable midpoint between
limited/complete/non-public forum
 Rationale:
 Why might schools be different?
o School is a non-public, non-forum
 Schools meant to show certain values and to
educate people, NOT to provide a forum –
(functional argument)
o Students required to be at school to learn
 BUT to learn is to discuss/talk/listen
 Seems like a forum after all, yet we
have fairly strong measure of
viewpoint control
 School is a forum (place for
intellectual curiosity), but in 3
cases in a row, the court has
decided against free speech
 Maybe we apply a de facto Connick test in the schools
cases:
o School asserting a managerial authority to maintain
an atmosphere in which learning can go on vs.
student’s 1A interest
 Bethel  student’s claimed 1A interest is in
low-level speech
o BUT as student gets older, the managerial authority
decreases and the 1A claim gets greater
Library Book Removal
o Pico
 School authorities remove books from library
 Held:
 Not OK
o Makes a distinction between not buying them in the
first place (which would have been OK) and
removing them after you bought them (which is not)
M.Glick – First Amendment – Fried – Fall 2007
81 of 172


(Brennan test)
Ex.
o Invitation of speaker to come to Harvard  one
thing to say, “I wouldn’t have invited him in the
first place.” But another to renege on an invitation
once given

Abortion Clinics
o Madsen v. Women’s Health Center
o Schenck v. Pro-Choice Network of Western NY
o Hill v. CO
 OK
 Noise regulations
 36-foot buffer zone around front of clinic
o Concern:
 Can’t be too large
 Can’t be moving
 Must allow people to come and go
 NOT OK
 Bubbles – (moving zones where no one could approach
you)
o 300 ft in Madsen  NO
o 15 ft in Schenck  NO
o 8 ft in Hill v. CO  OK
Gov’t Wins  Regulation OK
Kovacs – (Truck Speakers)
TPM OK
Total Medium
Bans
Aesthetics
Airports
City Theater
Gov’t Loses  Regulation not
OK
Schneider – (leafletting)
Too much regulation
Martin v. Struthers – (doorbells)
Look to function
Taxpayers v. Vincent
Medium was the problem, so OK to
ban
ISKON v. Lee
Airport is place for commercial
activity, so OK to regulate – (not
traditional and not designated)
SE Promotions
You’ve designated this, so now
you can’t regulate base on content
M.Glick – First Amendment – Fried – Fall 2007
Gov’t Wins  Regulation OK
National Parks
82 of 172
Gov’t Loses  Regulation not
OK
Clark v. CCNV
Passes O’Brien
Widmar
Rosenberger
Lamb’s Chapel
Good News
 You’ve created and DPF and
opened to students, so you can’t
now limit
Religious
Groups using
public schools
after hours
(Mergens protects you from any
Establishment Clause violation)
Shaker Heights
Not a traditional PF
Public
Transportation
Cornelius
Gov’t remands to determine
whether this is VP-neutral
Gov’t
Charitable
Program
Greenburgh
OK because not a traditional PF and
it’s reasonable + viewpoint-neutral
Mailboxes
Perry
Teachers mailboxes can be
regulated based on status/subject
matter – (NOT a designated PF)
Bethel – (sexual speech not
protected)
Tinker – (students don’t leave
their 1A rights at the door)
Kuhlmeier – (concern about speech
being attributed to the school)
Kozinski dissent in Harper
Schools
Morse – (compelling interest in
preventing drug use)
Harper – (special nature of school)
M.Glick – First Amendment – Fried – Fall 2007
Gov’t Wins  Regulation OK
Library Book
Removal
Abortion
Clinics
Public
Subsidies
83 of 172
Gov’t Loses  Regulation not
OK
Pico
Would have been fine to never get
them in the 1st place
Hill v. CO
Noise regulation and buffers around
the front entrance to the clinic are
OK
Moving buffer zones are NOT OK,
until we get to small zones (8’) in
Hill v. CO
Finley
Limited amount of money, so we
can take into account
decency/values
FCC v. League of Women Voters
Can’t say “no editorializing” if you
take our money
Forbes
Public TV has editorial content –
(without it, we just wouldn’t have
the debate at all)
Speiser
Loyalty oath necessary for tax
deduction  NO NEXUS
Rust
Gov’t allowed to have a point of
view – (mere prioritizing)
Velazquez
(Lawyering is different)
Taxation w/o Representation
Gov’t can validly choose to
subsidize certain groups
Public Subsidies of Speech
 Finley (NEA)
o OK to be viewpoint-specific in distribution of limited funds
 Can take account of decency/values/interest to community
 AETC v. Forbes
o Debate by Arkansas public TV station keeps out minor party candidate
o Held:
 OK
 Public TV station and editors have editorial content
 FCC v. League of Women Voters
o Gov’t giving money to public TV and saying do what you want, BUT no
editorializing if you accept our money
 Gov’t gives a little money and using that as a hook to cut down on
all editorializing
o Held:
M.Glick – First Amendment – Fried – Fall 2007



84 of 172
 Invalid  seems like a penalty
Speiser v. Randal
o CA tax deduction available to all veterans unless they won’t take a loyalty
oath
o Held:
 NO
 Unconstitutional Conditions
o No constitutional right to tax deduction
o BUT can’t be taken away from you because you
ARE exercising a constitutional right
 Principle:
o You’re not entitled to a benefit, but it can’t be
denied to you for exercising your 1A right
 This is just like Designated Public
Forums  not constitutionally entitled to
the forum, but if it has been designated,
you can’t be excluded from it in a
content- or viewpoint-specific way
Rust v. Sullivan
o Facts:
 Law cuts off public funding if you discuss abortion
 Doesn’t say you can’t do it
 Just says that if you do and you want federal funds, you
must be able to adequately separate the public-assistance
part of your program from the part where you discuss
abortion
o “Not on our Nickel”
o (This sort of separation wouldn’t have been possible
for a public TV station in FCC v. LWV)
 Can’t be much less viewpoint-neutral
 The gag rule is imposed or not imposed based on what you
say
o Held:
 OK
 Mere prioritizing who to give money to in a government
program
o Gov’t can choose to fund a program to encourage
activities believed to be in the public interest
Taxation w/o Representation
o Facts:
 Tax rules:
 501(c)(3)
o Can’t lobby
o Tax-exempt from income
o Donations are tax-exempt to donors
 501(c)(4)
M.Glick – First Amendment – Fried – Fall 2007
85 of 172
o Can lobby
o Tax-exempt from income
o Donations ARE not tax-exempt for donors


o Argument:
 TWR claims the law is content-specific discrimination because if
you want 501(c)(3) status, you can’t lobby
o Held:
 Law is OK
 This is a subsidy! The gov’t can validly choose to
subsidize certain groups/charities
o Result:
 Groups like NRA/NAACP/ACLU compartmentalize into groups
that lobby and those that do not
Legal Services Corp. v. Velazquez
o Facts:
 Gov’t is tired of getting sued by people who they are financing, so
they condition public funding on groups who don’t try to sue to
hold welfare programs unconstitutional
 Can sue on behalf of individuals under a program, but can’t
sue to invalidate the whole system
o Held:
 Court goes the other way from Rust
 Rust  subsidy depends on not saying X, but OK
 Velazquez  subsidy cannot depend on not doing Y
 Rationale:
 Lawyering is different
o No alternative avenue in the law field – (can’t get
some services from A and other service from B
 Gov’t is not the speaker here
o Gov’t not using private speakers to transmit its own
message  lawyer should be free to have own
message
 Adversarial relationship
o Rust – not an adversarial situation with gov’t on the
other side
o Velazquez – gov’t trying to silence its opponent and
we don’t like the idea of an adversary dictating the
rules of the contest
Contrasting Outlooks
o Kennedy
 Gov’t is allowed to be view-point specific if:
 It’s speaking itself
o AETC
o Finley
 If gov’t is hiring someone to speak for it
o Rust
M.Glick – First Amendment – Fried – Fall 2007
86 of 172
o Scalia
 Gov’t not speaking itself when giving grants nor hiring grantees
Public Employment and Contractors
 Idea:
o Just as gov’t has no obligation to subsidize speech in a public forum,
maybe gov’t has no obligation to subsidize/employ/tolerate speakers
 Pickering
o School fires teacher who makes nuisance in school board meeting and
writes editorial about the way schools are run
o Argument:
 Holmes  no constitutional right to be a teacher
 He has a right to say what he wants, but doesn’t have a
right to be a schoolteacher
o Held:
 NO
 Gov’t interest do not outweigh Pickering’s speech rights
o Teachers most likely to have informed opinions
about school actions, so essential to have them
speak out without fear of retaliatory dismissal
 (This looks like Speiser)
 Connick v. Myers
o ADA is fired for making office trouble
 Conduct she engaged in was not punishable if she was a private
citizen, but could be punished as an employee
o Held:
 OK
 BALANCE:
o Gov’t’s managerial claim vs. Individuals’s 1A
claim
 Can the managerial/regulatory powers of
gov’t justify the burdens on free speech?
 Does this gov’t action require this degree of
1A imposition?
o We want some nexus between the regulatory
power you are asserting and the 1A right you are
balancing
 If gov’t is acting OUTSIDE it’s capacity as
regulator of speech, then they have more
leeway
o Applied here:
 Connick seems like an appropriate exercise
of managerial power and 1A rights aren’t
that urgent – (don’t have much to do with
the public interest)
M.Glick – First Amendment – Fried – Fall 2007
87 of 172

Trivial 1A right balanced against
strong right to manage DA’s office
o Think of other contexts where this is applies
 Nollan – (property context)
 CA coastal commissioner says you
can improve your beachfront house,
but you must give public a right of
way across your beach
 We see this is an illegal blackmail!
o No nexus between regulation
and exaction
 Speiser
 No nexus between tax deduction and
loyalty
 Schools
 School asserts managerial authority
to maintain an atmosphere in which
students can learn
Connick Test
Gov’t Managerial Claim
Gov’t claiming right to conduct its
business/regulation as necessary
Individual 1A Claim
Individual claiming right to speak
and not be disciplined because of
viewpoints express in job
(Matter of private concern to
employer)
(Matter of public concern)
Looking for some nexus between the speech the government is trying to
silence and the management interest the gov’t claims
Regulation   Exaction

Rankin
o Clerical employee in county office discharged for making comment about
President Reagan’s attempt assassination
o Held:
 NO
 Applies Connick
o Matter of public concern  firing violates 1A
 Speech was as citizen, not employee
o Waters v. Churchill
 Establishes that it’s the EMPLOYER who
gets to determine what is a matter of private
concern  must reasonably believe
M.Glick – First Amendment – Fried – Fall 2007



88 of 172
Garcetti
o ADA fired after complaining to his superior about insufficient affidavit for
a search warrant
o Held:
 OK – (fireable offense)
 Court applies Connick:
o Is he disturbing the operation of a particular gov’t
unit or performing the function of a proper citizen?
 Court concludes that his complaint was only internal and
the public wouldn’t have known about it anyway
o Public’s right to know if not affected, so that part of
the equation is balanced out
Hatch Act Cases  OK
o Hatch Act says that if you are a civil servant, you can’t engage in certain
political acts
 Rationale for law:
 Interferes with managerial function of gov’t
 Destroys the confidence of the public if they see civil
servants raising money and supporting political causes
o Cases
 United Public Workers v. Mitchell
 Upholds Hatch Act – “Congress can regulate the political
conduct of gov’t employees within reasonable limits even
though the regulation trenches to some extent upon
unfettered political action.”
 United Civil Service Comm’n v. Nat’l Ass’n of Letter Carriers
 Defer to congressional judgment that partisan political
activities by federal employees must be limited if gov’t is
to function properly and elections are to run fairly
Patronage Cases
o Hiring/Firing based on political party
o Elrod / Branti
 TEST:
 Is party affiliation an appropriate requirement for the
effective performance of the public office involved?
o Lower-level civil service employees can’t be fired
for party affiliation
 The court constitutionalized civil service
reform here
o Exception:
 High-ranking, policymaking jobs can be
subject to patronage
 If you ARE doing a job where political
loyalty is relevant, then we’re OK with
patronage  why the public voted in the
last election
M.Glick – First Amendment – Fried – Fall 2007
89 of 172




Rationale:
o No nexus!
 Party has nothing to do with these jobs!
Once again, you don’t have a right to the job in the first place,
BUT you do have the right to not be dismissed for irrelevant
reasons
 Speiser / Pickering
Scalia dissent:
 NO
o Patronage has been a part of our country since the
founding  it can’t violate the 1A
o If you don’t like it, go through the legislature
o Rutan
 Extends Elrod and Branti to employment decisions short of hiring
and firing
Contractor Cases
o Contracts are a big part of patronage
o Court applies patronage and employment speech rules to contractors
 Umbehr
 Court extends Pickering line to independent contractors 
can’t have contract pulled for speech on a matter of public
concern
o Balance gov’t interest in managerial authority
against contractor’s 1A right
 O’Hare
 Court extends Elrod line to independent contractors 
can’t be removed from list based on lack of political
support for the gov’t giving the contracts
o Just because you’re outside the formal employment
relationship doesn’t mean that you can be cast aside
from your low-level role just for your political
views
Contractors
Pickering  Umbehr
Can’t have contract pulled for
speech on a matter of public
concern
Elrod  O’Hare
Can’t be removed from contractor
list for patronage reasons
M.Glick – First Amendment – Fried – Fall 2007
90 of 172
AVENUES OF FIRST AMENDMENT CHALLENGE
Vagueness
 What might be tolerable vagueness in civil context might not be tolerable in the 1A
regulatory context
 Two Concerns:
o Censorship
 Statutes that give too much discretion to gov’t on what it will
prosecute, punish, or regulate
 Not feasible to review
o Chilling Effect
 Vague statute chills ALL speech because people are afraid to speak
because they don’t know the consequences
 Cases
o Coates v. Cincinnati
 Bans assembly “in a manner annoying to persons passing by.”
 No standard of conduct is specified at all
 Obvious invitation to discriminate
o Lakewood v. Plain Dealer Publishing Co.
 Licensing statute includes “other terms and conditions deemed
necessary and reasonable by the mayor”
 Held:
 Facial challenge lies whenever a licensing law gives a
government official or agency substantial power to
discriminate based on the content or viewpoint of speech
o Want state to make the limits that it claims are
implicit in its law explicit by textual incorporation
o Thomas v. Chicago Park District
 Want grounds that are reasonably specific and objective and do
not leave the decision “to the whim or the administrator”
o Cox v. NH
 Want provision of objective standards for the licensor to
administer
o Freedman v. MD
 Need procedural safeguards in licensing schemes  can’t only
allow for timely, costly, impractical review
 The licensing decision can’t have a “finality effect”
o Opposite
 Finley
 OK to be vague in the subsidy context
o Gov’t acting as patron, not as sovereign
Overbreadth
 Brings in all sorts of things that CANNOT be regulated even if some of the stuff
CAN be regulated
 Dilemma:
M.Glick – First Amendment – Fried – Fall 2007


91 of 172
o Why is it that a statute that covers some things it may cover and some
things it cannot cover cannot at least be constitutionally applied to the
things it CAN cover?
 Answer:
 It chills speech!
o We’d prefer to put the onus on the gov’t to get it
right the first time rather than make the speaker
guess at what is allowed and then fight a court
challenge afterwards
o The line between what can/cannot be regulated may
be doubtful so we want to get the sloppy statute out
What this means:
o Exception to the normal rules of standing
o We are going to allow even a person who is engaging in speech that
COULD be proscribed to raise the objection that someone else could raise
in order to have the statute not apply
 A arrested
 Statute COULD constitutionally apply to A
 Statute is overbroad
 We’ll let A argue it’s overbroad as applied to B and C, even if A
could be nailed under it
Cases
o Gooding v. Wilson
 Law swept in too much protected speech alongside the fighting
words proscribable under Chaplinsky  overbroad
o White concurrence in RAV
 Law was overbroad because not limited to fighting words
 Covers fighting words, but also words that cause
embarrassment, distress, etc.
o Broadrick v. OK
 Extends the requirement to “substantial overbreadth”
 “We believe that the overbreadth of a statute must not only
be real, but substantial as well, judged in relation to the
statute’s plainly legitimate sweep.”
 Later applied in:
 Ferber – (NOT substantially overbroad  OK)
o “legitimate reach dwarfs arguably impermissible
applications”
 Ashcroft – (YES substantially overbroad  Not OK)
o Broadrick met  statute struck down
Facial and “As Applied” Challenges
 Facial:
o Statute is unconstitutional and it doesn’t matter who it’s applied to
 Can’t apply to anyone
 As Applied:
M.Glick – First Amendment – Fried – Fall 2007
92 of 172
o I don’t know about the whole population, but you can’t apply it to me
 Can’t apply to me
Prior Restraints
 Why bad?
o (Why should rule which allows an unlawful publication to be disseminated
be allowed to be distributed?)
o Two Worlds
 Prior restraint
 Allows gov’t censorship w/o public knowing what the
harm was
 Harm is never done
o Pre-emption!
 No Prior restraint
 Public is aware of the censorship and can respond to it
 Harm is done
o Punishment
 (Our criminal law is focused on punishment)
 We don’t address pre-emption because that takes place
before the deed is done
o The victim of Prior Restraint is the Public  never get to see this
 Public gets “punished” but hasn’t done anything wrong
o Prior Restraint is a lot like C&PD in Brandenburg
 Presumption against PR because we’re nervous that we’ll
overestimate the dangers
o Counter:
 It’s a good idea that D should know what’s legal and illegal  he
might like to actually know if he’ll be punished or not
 Cases:
o Near v. MN:
 Newspaper is enjoined from publishing an article about a gangster
and gov’t corruption
 MN law allowed injunctions for malicious, scandalous and
defamatory newspaper articles
 (Today, it would probably be unconstitutional under NY
Times)
 Held:
 Injunction set aside
o Burden should not be on the publisher to prove that
the charges they want to publish are true and
published with good motive
o 1A guarantees “immunity of the press from
previous restraint dealing with official misconduct”
o Pentagon Papers
 Court pretty well split:
 Black/Douglass  PR is never OK
M.Glick – First Amendment – Fried – Fall 2007


Vagueness
Overbreadth
93 of 172
o Not even for nat’l security
 Brennan/Stewart/White/Marshall  sometimes maybe, but
not on this occasion
 Harlan/Burger/Blackmun  cool with it
o The last 6 justices would be OK with deference to
the executive:
 Maybe / narrow / if war declared
 (probably wouldn’t allow published details
about troop movements)
Rationale:
 Worried about executive run amok
o Using a notion of inherent executive power to
censor everything and go nuts
o We won’t let the judiciary do the executive’s dirty
work
END:
 Rule about no Prior Restraints, but with a very narrow
exception
 Possible exceptions:
o Narrow national security exception
o Obscenity  not depriving the public of anything
worth seeing
o Commercial Speech  if fraudulent/misleading or
another category which escapes Central Hudson,
court might allow PR
Argue either:
 Gives gov’t too much discretion to censor me
 Since lines are unknowable, it chills my speech
Argue that it chills speech because it covers so much and I have
to guess if it’s valid as applied to my situation
There must be “substantial overbreadth” after Broadrick
Facial Challenge
Statute is unconstitutional and it doesn’t matter who applied to
As Applied
I don’t know about whole population, but you can’t apply to me
Prior Restraint
Argue that public is harmed by never getting to see this; allowing
gov’t to censor w/o public knowing what the harm was
(be careful of possible exception – Nat’l Sec, Obscenity)
M.Glick – First Amendment – Fried – Fall 2007
94 of 172
RIGHT TO NOT SPEAK
Thinking about the Speech dimensions
 In each case, you’re moving AWAY from the paradigmatic case  Brandenburg
o Brandenburg regulates PURE SPEECH
 Speech to Action
o Speech
 Brandenburg is action, but no one is saying anything about it
 The suppression of action is completely devoted to and
explained as a suppression of speech
o Law is not unrelated to the suppression of
expression
 Flag-burning  action but court bans because of the expressive
element
o (O’Brien is the dividing line)
o Action
 Barnes – (we’re regulating conduct)
 Speech to Commerce
o Speech
 VA Board of Pharmacy / 44 Liquor Mart
 Cases are quite close to the heart (speech) because they
operate through keeping people ignorant
o Related to the suppression of speech, not of
commerce
 Hurt ideas
 Thompson v. Western States Pharmacies
 Forbade advertising of compounded drugs
o Claimed to be part of a regulatory system  court
rejects
 Nike
 Breyer dissent focuses on the speech aspect of the letter
o (Central Hudson divides this)
o Commerce
 Florida Bar
 Forbade sending personalized letter within 30 days of
accident
o We see this as a regulation of commerce  OK
 Ohralik
 Ambulance chasing involves risk of coercion
 Speech to Silence
 Speech to Association
M.Glick – First Amendment – Fried – Fall 2007
95 of 172
2 Competing views of Constitutional Rights
Complete Constitutional Order
Positivist Account – (Scalia)
Generalized Liberty Right
Notion of Constitutional and legal order such
that concepts in the Constitution apply to
everything in the legal order
People have small catalog of positive
Constitutional rights
If you can’t find your right in one of the
listed rights, then you don’t have it
How this plays out:
How this plays out:
EqPC and DP are generalized individual
You need to find one specific right if you
rights that say that gov’t may not interfere
want to enjoy protection
with citizens in any sense unless there is
some sort of reason
 If no reason, then they can’t interfere with
my liberty
o I don’t even need a name for
the liberty  I just have a
generalized liberty right
o Then, in some cases, I will be
granted specific rights that rise
above this original generalized
plane
Model:
Florida:
 The whole state is flat and lies 6 inches
above sea level (generalized right) and
there are some mountains/hills (1A, 14A)
that rise above the generalized plane
Model:
Only the hills and mountains matter
Question:
Is the Right of Silence protected in the Generalized Liberty Right or is it incorporated in
our specific right to free speech?
Why is this about the 1A?
 Silence as expression  Not saying the pledge IS speech
o Compelled speech = prohibition of silent expression
o Gov’t is forcing you to speak in one of two ways:
 Say the Pledge
 (makes you a hypocrite or a liar)
 Remain Silent and yet still “say” something
o You shouldn’t have to declare yourself  don’t like putting you in a
position where you have to pick a side/make a speech
M.Glick – First Amendment – Fried – Fall 2007





96 of 172
Analogy:
 5A right against self-incrimination
o Can’t put us into some position where we’re either a
hypocrite or a criminal
 1A: speak (hypocrite) or silence (criminal)
 5A: guilty (truth) or perjurer (lie)
Freedom of the Mind  DP right
o Generalized liberty clause  idea is that we have a right of personal
autonomy and integrity
 “I am the master of my own life and no one should make me say or
believe something that I don’t”
Barnette
o Jehovah’s witnesses refuse to say the Pledge of Allegiance
o Held:
 Rights of free speech and worship preclude the state from making
the flag salute compulsory
 1A guards the individual’s right to speak his own mind
 “No official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters
of opinion or force citizens to confess by word or act their
faith therein.”
Wooley v. Maynard
o New Hampshire License Plate says “Live Free or Die”
 Citizens challenge  don’t want to be a rolling billboard for
political slogan
o Held:
 Court strikes down mandatory license plate rule
 (Same “silence as expression” rationale)
 Either you say “Live Free or Die” OR you take the
affirmative step of covering it up and in doing so, you make
a statement
o You shouldn’t have to make that affirmative step
“Right of Reply”
o Tornillo  NO
 Requirement that newspaper publish reply by victim of publication
 Held:
 NO
o By allowing a right of reply, you chill what might
be said in the first place
 Implication:
o Not only are you making the broadcaster speak (via
mandating the response), but you’re also altering
they speech they do want to make
 You have both:
 Altered speech
o Hurley
M.Glick – First Amendment – Fried – Fall 2007
97 of 172




o Barnette
Prohibited Speech
o Might say, “This is my
message and because you’re
forcing me to alter it, I won’t
speak at all.”
 Better to not speak
than to speak what
you don’t believe
o Red Lion  YES
 FCC Fairness Doctrine for TV
 If you give an editorial point of view on your station, you
must give equal time to your opponents
 Held:
 OK
 Rationale:
o Airwaves are scarce resource, so gov’t can regulate
as a public trust for the people in the name of public
ideals
o This furthers public debate  goal of 1A
McIntyre
o Ohio election law requires you to put your name on any election material
o Held:
 NO
 Right of anonymous pamphleteering is a respected tradition
o Federalist papers
 Burdens/chills speech to require you to put your name on it
o BUT
 Later held constitutional in BCRA § 311
 “I’m Hillary Clinton and I approve this msg”
PG&E
o California forced PG&E to let other groups use the excess space in their
mailing
o Held:
 NO
 Tornillo
o Penalizes the expression of the speaker’s point of
view and forces speakers to alter their speech to
conform with an agenda they do not set
 It’s not likely that any rational reader
would attribute to PG&E the views of the
non PG&E speakers, but we don’t allow
it for the distortion rationale
Pruneyard
o Shopping center forced to open to allow leaflettors within its corridors
o Held:
M.Glick – First Amendment – Fried – Fall 2007

OK



98 of 172
Not likely to attribute the leafletters message to the
shopping center’s owners or lessees
Not like a mobile billboard or being compelled to promore
particular gov’t speech
Turner
o FCC rule requires cable provide to offer/show the programs of the local
public TV station (and in lowest channel numbers) and to show broadcast
TV stations that are available in that market on the same # as they show up
on the broadcast dial
 Cable companies dislike this because it uses up their lowest
numbers and helps their competitors
 Argue Tornillo
o Held:
 Not compelled speech  action!
 Content-neutral regulation and with valid/substantial gov’t
interest
o If cable doesn’t carry these, the 60% of households
who have cable won’t get it and it won’t be worth
advertisers’ money to spend on these things, so they
would diappear
 CF Disagrees:
 This is NOT content-neutral
o The gov’t interest is based on the importance of
local programming/public TV  that’s content
regulation
o Why gov’t wins in Turner but loses in Tornillo:
 Tornillo says that the media has a 1A right to not be made to say
things you do not wish to say
 Kennedy distinguishes Turner by saying that Turner is ACTION
 Regulatory conduct regarding how you conduct your
business  claim that this is content-neutral, so the
regulation is fine
o Thinks that if you suppress speech in a contentneutral manner, then you’re fine
 But that can’t be right  Schneider
o Similarly, if you force speech in a content-neutral
manner, that should be fine too
 Says O’Brien is inapplicable because it relates to the
suppression, not the promotion of speech
 (CF thinks this is wrong)
 The conduct he was being forced into was speech!
 Plus, this claim that content-neutrality means you are
exempt from scrutiny is wrong
o If the law in Tornillo had said, “In any market were
there is only one daily newspaper, that paper must
M.Glick – First Amendment – Fried – Fall 2007

99 of 172
devote one column a week during election season
the views of anyone running for office.”  contentneutral, BUT a clear violation of Tornillo
 Kennedy simply thought that TV should be made available
to the largest number of people and this way seemed less
burdensome to him
o Alternative Explanation  VALUES – (Breyer/Sunstein)
 Maybe there aren’t 1A rights against the gov’t, just 1A values:
 Free public debate / variety of views
 These public values can supercede the media’s 1A value:
 “variety of views” > “editorial control”
o Turner claims 1A right not to be able to put on
someone else’s speech, but Breyer might say that
you only have a delegated right on behalf of the
public to participate in this great debate
o Importance of Turner
 Signal of constantly increasing regulation of media  could lead
to more regulation of the internet
Compelled Commercial Speech
o OK
 SEC
 Mandates disclosure in stock prospectuses and proxy
statements – (no right to remain silent)
 FDA
 Requires prescription drugs and food labeling
 Glickman
 Stone fruit advertising contributions OK  part of a larger
regulatory scheme
o Just paying money into a fund; aren’t forced to say
“I approve this message.”
 Johanns
 Mandatory contributions to “beef for dinner” ads OK
because gov’t doing the speaking
o NOT OK
 United Foods
 Struck down mandatory contributions from mushroom
producers because that was the ONLY thing in the
regulatory scheme
M.Glick – First Amendment – Fried – Fall 2007
100 of 172
When right to silence CAN be invoked
When right to silence CAN’T be invoked
When we don’t want to make you choose
whether to speak or take affirmative step
of remaining silent
Barnette
Wooley v. Maynard
Right of Reply (Broadcasting)
Red Lion
When the speech wouldn’t be attributed
to you
Pruneyard (but yet PG&E)
Right of Reply (Newspaper/Print)
Tornillo
When forced to include info from
competitor
PG&E
When forced to identify yourself
McIntyre – (but yet BCRA)
When it’s a respected tradition to remain
silent
McIntyre
When speech is the ONLY thing the
regulatory scheme is concerned with
Johanns
When you could argue that it distorts what
you are going to say (or silences you)
Tornillo / PG&E
When it’s part of a large commercial
regulatory scheme
Glickman / Johanns
M.Glick – First Amendment – Fried – Fall 2007
101 of 172
FREEDOM OF ASSOCIATION
Right to Associate
 Just like gov’t can’t force you to say what you think about something (of force you to
say you don’t think something – saying something in your denial), we can’t force you
to disclose who you associate with
 Why is this like speech?
o Series of possible rationales:
 Speech right seems to blend into a generalized right about freedom
and autonomy
 Association is a way of being heard  crucial to speech
 Harlan – need association to engage in speech:
o Debate
o Persuasion
o Promotion of message
 Association is itself an expression
 The very fact that you’re associating expresses something
 NAACP v. Alabama
o Alabama demands that NAACP reveal all of its members
o Held:
 NO  1A protects association as it protects speech
 Like a prior restraint  if people know their association
might be disclosed, they might not associate expressively in
the first place
 Button
o Law tries to say “you may not band together to offer legal services”
o Held:
 NO  association
 If the banding together is a political association for the
purpose of litigation, that’s protected  can’t regulate it
o Association for litigation may be the most effective
form of political association
 No substantial state regulatory interest
 Dallas v. Stanglin
o City of Dallas banned social dancing between teens and adults in dance
halls  challenged by over-age man who said right to associate
o Held:
 Law is OK  no right to associate in the abstract
 No generalized right of social association that includes
chance encounters in dance halls
 Freedom of NAACP association does not equal Freedom of
Association of 15 year olds to dance with adults
 Action as Association
o Claiborne Hardware - (association OK)
 NAACP organizes boycott of white merchants in Mississippi
 Merchants sue for economic losses
M.Glick – First Amendment – Fried – Fall 2007
102 of 172

Held:
 NO  boycott is an association for political purposes
o May be action, but that action is expressive and we
will protect it
o Int’l Longshoremen – (association not protected)
 Union gets in trouble for boycott of Soviet grain as political protest
 Held:
 Fine to punish
o This was a strike, not a political discussion
o Conduct was designed not to communicate, but to
coerce
Right of NON-Association
 Argument:
o Freedom of Association (provided in NAACP v. AL), also involves a right
not to associate
 (just as Tornillo says freedom of speech is also freedom not to
speak)
o No forced inclusion/association
 If I can’t refuse, then the right to associate means nothing
 If any one can associate with us, our association is meaningless
 Cases where compelled association was struck down:
o Abood
 Union levies mandatory fees on its members and part goes to
political communication
 Held:
 OK to levy fees for collective bargaining, but NOT for
speech purposes
 Rationale:
 Just as you have right to associate, you have right not to
associate
o Analagous to Barnette
 Right to speak your mind
 Right not speak what is not on your mind
o Hurley
 Gay Irish parade comes under fire for violating state antidiscrimination law
 Held:
 1A right trumps Anti-Discrimination Law
o Expressive association of people who are
expressing what it means to be Irish
 Since it’s their expression and association,
they can say what they are expressing
o Dale v. Boy Scouts of America
 Do the Boy Scouts have to associate with an openly gay scout
master?
M.Glick – First Amendment – Fried – Fall 2007


103 of 172
Held:
 NO
o Boy Scouts (unlike Jaycees) are an expressive
association – (morals/culture/way of life)
 To force them to include all-comers would
be to affect their expression
o Goal:
 Want to claim your group is more
ideological and subscribe to a certain set of
values  inclusion of the person might
show that certain behavior/values are
appropriate
 Stevens Dissent:
o This is NOT part of your message
 Heterosexuality is not a part of your oath or
handbook or culture
o Counter
 Not for court to decide what your message is
 Rehnquist: Deference to an
association’s assertions regarding
what their message is
 Once you’ve determined that it’s an
expressive association, then part of your 1A
association right is to determine what your
message will be and to determine what
would impair that expression
Cases where compelled association upheld:
o Roberts v. Jaycees
 State anti-discrimination law compels them to open to women
 Held:
 OK
 Brennan (Majority):
o Anti-discrimination is a compelling state interest
and this law is narrowly tailored
 O’Connor (Concurrence  LAW)
o Two kinds of association enjoy full protection:
 Expressive and Intimate
 This does not qualify  it’s
commercial/networking (no
expression)
 Jaycees are not an organization with a
message  compelling them to be associate
with women does not distort their message
because there is none
o What is an expressive association?
 Goal is to express some goal/voice/issue
M.Glick – First Amendment – Fried – Fall 2007
104 of 172

Expressive in joining by itself, though not
necessarily vocal
 (Once the law gets to core speech or
expressive association, the
justifications have to be higher)
o NY State Club Assn’s v. City of New York
 Any club which rents out its facilities, has more than 400
members, and serves meals must admit women
 Held:
 OK  this is a commercial endeavor, so compelled
association is OK
 Testing other kinds of associations:
o HLS  expressive, but also commercial
o Church-run hospitals  could be expressive
o Fried’s reading group  intimate association
o Rumsfeld
 Challenge to Solomon Act, which cuts federal funding to schools
that do not allow military recruiters onto their campus
 Schools don’t want to let recruiters in because of “Don’t
Ask, Don’t Tell”
 Claim that this is forced compulsion with discriminatory
entity (against their right of free association)
 Arguments:
 YALE
o Want to say that having the military recruiters is
like having a gay scoutmaster or gay group in our
parade  compels us to associate against our
message
 HARVARD
o Statutory Interpretation argument
 We’re not violating the Solomon Act! We
ARE letting the military in on the same
grounds as other employers: if they follow
our policy
 Our policy is simply a LGA that is
applied equally to firms, public
interest, and the government
o Why do this?
 Harvard realized Yale’s argument might be
a double-edged sword  could be used by
institutions of higher learning that
WANTED to keep blacks/women out
 Winning on this ground would be a
blow to anti-discrimination laws
 Held:
 Law is OK
M.Glick – First Amendment – Fried – Fall 2007

105 of 172
CF:
o This is pure regulation of action and it’s fine
because it’s content-neutral
 Not speech / not assocation
o Rotary Club
 California antidiscrimination law
 Held:
 Law can be applied without infringing on the Rotary Club’s
associational right
o (Court notes that it will make a careful inquiry into
the objective characteristics of the particular
relationships at issue)
o Southworth
 Challenge to a public university’s requirement that students
contribute to a student activity fund used in part to support
controversial student advocacy organizations
 Held:
 Compelled contributions are OK
 Rationale:
o Abood  limits compelled contributions to speech
that is germane to the organzation’s purposes
 BUT tough to say in an academic context
what speech is germane to the organization
o Higher education given more leeway
o Also
 Pruneyard – (shopping center must associate with leafletters)
 Glickman – (stone fruits) and Johanns – (beef)
When right to not associate CAN be invoked
When right to not associate CAN’T be invoked
Where you’re being asked to associate for
something that is not germane to the
purposes of the organization
Abood
When you don’t know what speech is
germane to the organization’s purposes
Southworth
Where the organization actually has a msg
Hurley
Dale
Where there’s no message
Jaycees
Rotary Club – (will make careful inquiry)
Where it’s a commercial association
NY State Clubs
When the law is regulating action, not
expression
Rumsfeld
M.Glick – First Amendment – Fried – Fall 2007
When right to not associate CAN be invoked
106 of 172
When right to not associate CAN’T be invoked
When no one will attribute the
association as meaning anything
Pruneyard
When it’s part of a commercial
association that is part of a larger
regulatory scheme
Glickman
Johanns
POLITICAL ASSOCIATION



Seems to be the paradigmatic case for association  core political reasons
o Nor commercial, not silent
TEST
o Special Kind of Strict Scrutiny:
 Can’t regulate the right of political parties to associate in any
unduly burdensome fashion
Cases where the political party or candidate wins:
o Anderson v. Celebreeze
 Law creates high barriers for 3rd party to get on POTUS ballot
 Held:
 NO
 Rationale:
o (CF understands it’s anti-democratic, but why 1A?)
 No right to vote  but it’s a fundamental
right
 Early ballot access cases were EqPC cases
 BUT Anderson goes for 1A
o Act of voting is a kind of expression/association
 Anderson’s party wanted to associate for the
purpose of electing him  statute
unconstitutionally limited opportunity for
independent-minded voters to associate
 Elections are an arena where people
associate in order to act
o Another possibility:
 Ballot is a metaphysical public forum 
therefore only TPM restrictions can be put
on it
o Tashjian
 Connecticut law mandates CLOSED primaries
 Held:
M.Glick – First Amendment – Fried – Fall 2007


107 of 172
NO  political assn and if they want to allow independents
to associate with them, they have that right
o Can’t keep you from associating with people you
want to associate with
o California Democratic Party v. Jones
 California law mandates OPEN primaries
 Held:
 Can’t force you to associate with those they don’t want to
associate with
o Dale (for political association)
o GOP v. White
 Minnesota code of judicial conduct prohibits candidates for
judicial office from announcing views on disputed legal or political
issue
 Held:
 NO
o Burdens core political speech
o Law not narrowly tailored to meet the state’s
claimed compelling interest (impartiality)
Cases where the gov’t wins:
o Burdick v. Takushi
 Hawaii bans write-in voting
 Held:
 OK – (court does NOT apply strict scrutiny)
o The restriction is seen as “reasonable” and
“nondiscriminatory” so the court is only looking for
“important regulatory interests”
o Timmons
 Ban on fusion candidacies
 Held:
 Not a “severe” burden  no strict scrutiny
o Clingman
 Semi-closed primary: political party may invite only its own party
members and voters registered as Independents to vote in its
primary
 Held:
 (goes against Tashjian and CA Dem Party)
 The only people who are limited are those who have
already committed to a party
M.Glick – First Amendment – Fried – Fall 2007
108 of 172
CAMPAIGN FINANCE
The Apparatus
 CORE:
o Two main goals:
 Limit contributions
 Eliminate corporate/union contributions
o The rest of the structure should be viewed as ways to accommodate those
limits and avoid circumvention of them
 3 Major Dimensions
Contributions
Made by citizen to candidate
 What someone makes to someone who
will speak
Expenditures
Whatever candidate spends in order to
speak – (buy ads / print leaflets / fly to
speech)
[Subject to Regulation]
[Full Protection]
Hard Money – (FederaL)
Soft Money
Contributed to a candidate of party subject to
source and $$$ limits set up by law
Money in excess of amount allowed to
contribute to federal campaigns – (said to be
for party-building and GOTV)
Retains its character such that if hard
money is contributed to a 501(c)(4), the
501(c)(4) may go on to contribute to a
campaign provided it retains its hardness
(limits)
Taints the whole pool  once you accept
it (money above the limits), you’re out and
can no longer contribute anything to a
candidate
 Strategy: set up 2 organizations – (one is
only hard money and the other is soft
money  akin to Rust)
Independent Expenditures
No coordination = No concern
This is just regular speech
[Protected]
Coordinated Expenditures
Expenditures which an organization other
than the candidate makes, but are
coordinated with the candidate – (agreement
on timing, content, etc.)
[Counted as Contirbutions]
M.Glick – First Amendment – Fried – Fall 2007

109 of 172
Other segments:
o Corporate Contributions
 Tillman Act (1907) forbade corporate contributions to candidates
 Smith-Connolly Act (1943) extended this concept to labor unions
 (akin to Abood)
 Can’t use general treasury money
 CAN set up separate PACs – (voluntary contributions from
just our membership)
o Rule: Can only submit from Union members or
from corporate employees/shareholders – (must be
limited in some way)
o Bundling
 Way to get around individual contribution limits
 $2200 to candidate / $5000 from PAC
 BUT you can go around to your friends and collect for the
candidate
 Only giving him $2200 yourself, but getting “credit” for
much more
o 501(c)(3) vs. 501(c)(4)
 501(c)(3)
 Fully charitable organizations – (church/foundation)
 No income tax on earnings + donations are tax-deductible
o Forbidden from electioneering
 501(c)(4)/527
 Social improvement orgs – (Swiftboat / Move On / NRA)
 Exempt from taxation on donations themselves, BUT
donors do not receive preferential tax treatment
o CAN be active in electioneering
 If hard money  can spend however they
want
 If independent  they’re fine spending
however they want
o Millionaire Candidate
 Nothing you can do to limits that person  regulation of
expression endures strict scrutiny
o Public Funding
 If you accept it, then you must accept expenditure limits
 SCOTUS is OK with this
o Express Advocacy
 Introduced in 1974 and tightened in McC-Fein
 Refers to advocacy that clearly refers to an identified candidate for
federal office and made within 60 days of general election or 30
days of primary
 Applies to ads for or against a particular candidate
o Ballot Measures
M.Glick – First Amendment – Fried – Fall 2007

110 of 172
Court has found limits on contributions to ballot measures to be
unconstitutional because there is not the same state interest in
avoiding corruption  No candidate
 Bellotti
o SCOTUS throws out state prohibition on corporate
contributions/expenditures wrt referenda
 Berkeley Rent Control
o SCOTUS throws out limits on amount individuals
could contribute to an organization defending a
ballot measure
The seminal cases
 Buckley v. Valeo
o Challenge to FECA
 Ct of Appeals had applied O’Brien, but SCOTUS finds it
inapplicable here
o Holdings:
 OK to cap contributions
 1A interest in supporting a candidate but the amount of
money given doesn’t significantly change that support
interest
 More likely to lead to corruption
 Expenditure limits illegal
 Amount of $$$ directly correlates to speech
 Seen as less corruptible
 Independent expenditure limits struck down
 Equalization rationale may be noble, but it’s unconstitutional
 Public Financing OK
 McConnell v. FEC
o Challenge to McC-Fein
o Holdings:
 Soft Money ban upheld for anti-corruption rationale
 Differential access
 Parties seen as mere pass-thru  contribution limits OK
 Issue Ad ban is constitutional
 OK to regulate out unions/corporations
The Policy
 Crucial Distinction: Contributions treated differently than Expenditures
o Dissenting views:
 White – (all is fair game)
 Doesn’t make any sense to divide the two  we can
regulate BOTH
 Scalia/Thomas/Rehnquist – (none is fair game)
 Stupid line we are drawing  we can regulate NEITHER
o Two reasons we split:
M.Glick – First Amendment – Fried – Fall 2007


111 of 172
Contributions are more like conduct than speech
 Expenditures are the very heart of the 1A
o Much stronger interest in protecting expenditures
because they’re more akin to speech
 Contributions are not as big a concern
o Definitely limiting your expression, but not in the
same fundamental way
o Distinction:
 Expenditures = the speech
 Contributions = only a measure of support
o Counter
 Contributions are still a :
 Message to candidate
 Message to other like-minded
persons that you associate
o Right to associate in a
material way with other likeminded persons
 BUT contribution limits fail O’Brien
o O’Brien requires that the regulation be “unrelated to
the suppression of expression”
 The interest in regulating the conduct here
arises in some measure because the
communication is itself thought to be
harmful/effective
Government interest in corruption and the appearance of
corruption wrt contributions
 (concern not as great with expenditures)
 Sufficiently important interest and employs means closely
drawn to avoid unnecessary abridgement of associational
freedoms
o Cases
 Randall v. Sorrell
 Court invalidates Vermont contribution limits as being too
low
 Rationale:
o Not a valid corruption rationale at these levels
 Nixon v. Shrink Missouri
 $1000 limits were just fine
o Contribution limits will survive if “closely drawn”
to a “sufficiently important interest”
o Not so radical as to render political association
ineffective
o Relation to Coordinated/Independent Line
 Coordinated expenditures can be regulated because there’s a
similar concern about corruption
M.Glick – First Amendment – Fried – Fall 2007



112 of 172
Coordinated speech is seen more like a contribution
o (just a proxy for a donation; instead of exhausting
your own funds, you get to use/control someone
else’s)
 Contribution limits are meaningless if you can’t limit in
this regard
Electioneering Communication
o McC-Fein bans advertising advocating a clearly identified candidate
within the window before an election
 Expands on FECA’s “magic words” ban
 Rationale:
 Contribution limits are meaningless unless we limit express
advocacy as well
o Even uncoordinated express advocacy is seen as a
contribution  fear of corruption/appearance
thereof
o Only applies to groups who take union/corporate money
 Leaves out a tremendous amount of independent and
entrepreneurial electioneering stuff
 George Soros Factor
o Wealthy individual can blanket the airwaves with
whatever he wishes (as long as uncoordinated) and
nothing in the legislative process prevents that
o You can spend all you want whenever you want as
long as you’re uncoordinated
o Wisconsin Right to Life
 Feingold running for Senate and ad tells him to cut it out on
judicial nominees  Issue Ad
 Refers to a clearly identifiable candidate
 Held:
 If there’s any other reasonable interpretation of the message
other than an appeal for a vote, then it escapes the
regulation
o (seems easy)
o So long as there’s any possibly interpretation
that the ad is not advocating a vote for/against a
candidate, the ads can be fine
 Basically overruling that part of McConnell
and eviscerating that provision of McC-Fein
 If you are discriminating inappropriately, you have two
choices:
o Can discriminate against all groups
o Can give up and discriminate against none
 Court chooses to give up in WRTL
Debating the “Equalization Rationale”
o Idea:
M.Glick – First Amendment – Fried – Fall 2007


113 of 172
OK to restrict voice of some to enhance the relative voice of others
when it comes to an electoral contest
 Has been rejected by the court
o PRO – (Dworkin)
 We should have equality of views  leveling the playing field is
legitimate
 The amount of money in now takes away from the legislature’s
ability to do its job and therefore hurts democracy
 Role of Citizens
 Equalization Rationale focuses on citizens as judges, but
neglects citizens as political actors
o Expenditure limits are about the ability to command
attention for one’s views
o Citizens should be free to command equally the
attention of their fellow citizens
 (CF disagrees)
 Bowman (UK)
 Limits on expenditures to procure election of a candidate
o Ct acknowledges the equality rational, but believes
that only allowing citizens $5 is carrying it too far
 Ackerman  Yale Solution
 2 kinds of money:
o Green money – for everything else
 Spend as much as you can earn
o Blue money – just for politics
 Distributed by the gov’t to each person
equally
 Can give to candidates and can use together
with others
o CON
 Not gov’t’s business to say what is too much or that we should all
be equal
 Let them subsidize poorer voices!
 Lowering voices might put you at a disadvantage against long-time
and well-known opponents
Why pick on Corporations and Labor Unions?
o Cases
 Austin
 Corporate spending on behalf of candidate could be
prohibited
o Corporations should not be allowed to engage in
electioneering communication if state wants to shut
it down
 Bellotti
 Corporations have full 1A rights for issue ads/referenda
o Rationale behind anti-corporate policy:
M.Glick – First Amendment – Fried – Fall 2007


114 of 172
Corporations are different  what do we mean by this?
Two possibilities:
 Equality  they’re just richer
o BUT that’s the first step down Dworkin’s slippery
slope that equalization of voice is a valid purpose
 (Marshall is OK with this in Austin)
 He doesn’t rely on Buckley’s
corruption rationale, but rather on
equality
 BUT he limits this to candidate ads!
o (Seems schizophrenic)
 If he wanted to take
equalization all the
way, then you’d care
about ballot referenda
and issue ads also
o If the point were equality, then it would apply to
George Soros too  but NO, we only apply to
corporations
 (Yet CF thinks the equality rationale was
doing the work here)
 Corporate Rules  they have all this money because
the gov’t has created this corporate form that allows for
vast accumulations of wealth
o The state has NOT granted the corporate form for
the purpose of just allowing the corporation to do
whatever it wants
o People invest in corporations because they believe
in their business, not because they want to get
involved in politics and sign on to the CEO’s views
 Abood rationale  shouldn’t be forced to
speak
 BUT Abood is a bad analogy because you
don’t have to invest in a particular
corporation
o Media Exception to Corporation rule
 Media doesn’t count as electioneering communication
 Implications:
o Rupert Murdoch can spend all the money he wants
to promote or defeat a candidate
o GE can’t send electioneering communication itself,
but NBC (it’s wholly-owned subsidiary) can
 Rationale:
 (CF struggles to find a rationale)
 Extra “Freedom of the Press” Clause
M.Glick – First Amendment – Fried – Fall 2007

115 of 172
o This is what the media business IS  to have
opinions
 BUT so are the ACLU/George Soros 
they have opinions too!
Congress doesn’t want to mess with the media
o Like Cincinnati with the Enquirer (Discovery
Networks) or NY with the NY Times (Railway
Express)
M.Glick – First Amendment – Fried – Fall 2007
116 of 172
FREEDOM OF THE PRESS

We have developed such a wide definition of freedom of speech such that freedom of
the press seems redundant
Access to public places
 Early cases
o Press can publish whatever they want, but can’t go wherever they want
 1A as a negative right  right not to have gov’t stop you from
speaking
 BUT NOT a positive right
 Can’t use it to get you into a place you’re not otherwise
entitled to
 1A can’t get them backstage
o Gannett
 No right to pretrial hearing
o Pell / Saxbe
 Unsuccessful challenges to CA and federal
laws restricting right to interview individual
inmates in prisons
 If you can find it out (even if you shouldn’t have, you can’t
be stopped from publishing it):
o Bartnicki v. Hopper
 Working back the other way
o Richmond Newspapers
 Changes course forcing a criminal case to be open to the press,
absent an overriding interest
 Rationale:
 Crucial for democracy to inform people about gov’t 
if the press can’t get information and notify people, they
can’t do their job
o Need a positive right in order to make the negative
right worthwhile
 (But this proves too much  would mean that newspapers
can go wherever they want without a compelling state
interest  strict scrutiny)
o SO, Burger pulls it back in and limits to the
courtroom
 How?
 Emphasizes historical openness of
the courtroom
o Akin to a traditional public
forum! (“time in memorial”)
o If he hadn’t done this, we’d basically be
constitutionalizing FOIA  majority wouldn’t go
that far
M.Glick – First Amendment – Fried – Fall 2007
117 of 172


FOIA allows anyone in gov’t to get any file
in the gov’t that they want except for
classified/privacy-related docs
o Extended in:
 Globe
 MA law restricting press access during testimony of minor
who was victim of sex offense
 Press-Enterprise I
 Access to voir dire
 Press-Enterprise II
 Access to preliminary hearing transcripts in criminal case,
despite the objections of judge, prosecutor and D
 SUM
 You cannot waive the 1A right
o Public has its own interest in access to the trial to
ensure a fair trial  public has an interest in
criminal trial because if prosecutor is taking a dive
or if judge is unfair, we should know
How did the court get there from the TEXT?
o 1. Talk about guarantees in the 1A
 Negative rights
o 2. Admit that this right is not one of the explicit guarantees, but it’s a
fundamental right in addition to the explicit rights listed
 “Implicit fundamental right”  (pushes the Roe button)
 Problem:
 He is reading the fundamental rights he wants between the
lines:
o FOIA  NO Trial  OK
o 3. Say that the 1A is a way to give meaning to that fundamental right
Demands for Information
 Trying to NOT submit to subpoena/warrant
o Branzburg
 Reporter subpoenaed to testify to grand jury cannot use 1A to
refuse to testify based on wanting to protect a confidential
informant
 Argument:
 It will chill the news
o Dissent in Zurcher – Stanford photo case:
 No worth of my right to publish if I can’t get
the info from a confidential informant which
I can then publish
 (Just like “no worth of my right to publish if
I can’t attend trial to get the information.”)
 Rationale:
 Richmond Newspapers
M.Glick – First Amendment – Fried – Fall 2007

118 of 172
o No special treatment
 Not asking for something that a regular
citizen couldn’t have; just wants an open
trial that anyone can attend
 Branzburg
o Special treatment
 Wants privilege to not be served or to keep
quiet
o Thinks there’s some value in confidentiality
o Trying to constitutionalize shield laws
Problem with special treatment:
o If we’re going to give special treatment to only the press, that means
we have to DEFINE the press
 Tough to do  who to count in?
o In other areas of privilege law, it’s easier to delineate the category:
 Priests
 MDs – (licensed)
 Spouse – (easiest)
o BUT there’s a significant 1A interest in there not being an official press
 Branzburg would force us to determine who was in the “official
press”
BROADCAST, CABLE, INTERNET

Way people communicate and get their news
Red Lion
 Authorized gov’t to impose on broadcasters the obligation to let the other side answer
 Fairness Doctrine
o Anti-Tornillo – (which said you could NOT force a newspaper to speak,
even if it’s just a response)
 Rationale:
o Airwaves are scarce and they’re really our property
 Why are they the public’s?
 w/o gov’t intervention  chaos
o BUT it’s quite another thing to say that if gov’t
intervenes, they can regulate
 In some of the public parks/streets, we allow
for a licensing scheme, but we still mandate
that it be content-neutral
o Radio/TV require large capital investment
 In order to elicit that investment, we must five the owners of that
station a certain permanence in what they’re doing
 So they’re scarcity in that sense, as well:
o Scarcity in terms of limited space
M.Glick – First Amendment – Fried – Fall 2007


119 of 172
o Scarcity in terms of the limited number of groups
who can actually use the space
o Contrast with cell phone spectrum – (also auctioned in neutral manner)
 Why different?
 We don’t care about the content of the cell phone spectrum
 Verizon is not a publisher – (CBS/NBC are)
 The only thing we care about with cell phones are that they provide
good service  common carrier problems
What’s the alternative to the Red Lion paradigm?
o Gov’t can create its own channel and give response on that channel
 BUT no one watches public-access TV
Why tolerate it here, but not in Tornillo?
o CF says it comes down to the questions of scarcity and who owns the
airwaves
 BUT we basically have the same problem of scarcity with
newspapers  there’s no physical scarcity of newspapers but most
cities really only have one newspaper anyway
Turner
 Among the 500 channels that your cable company will provide, there must be a small
# they must carry
 Held:
o OK  must carry
 But the scarcity rationale is gone  now it’s just companies being
forced to speak
 Tornillo / Hurley / Dale
 Court does an awkward job with it
 Kennedy says this is CONDUCT and therefore governed
by O’Brien – (not regulating speech)
 The court’s supposed content-neutral reason was that
public broadcasts will die if cable consumers don’t have
them  BUT this isn’t content-neutral! It’s making some
inherent comment about the worth of public television
o CF hates this!
 Turns gov’t into an engine of gov’t
allocation with gov’t judging what is good
for us
Forbes v. AETV
 Candidate forum, but only with major candidates
 Held:
o OK  1A right to have a debate and if you let in ALL these people, you
might as well not even have a debate
Internet
 Central Issue:
M.Glick – First Amendment – Fried – Fall 2007
120 of 172
o State Action
 Only applies if state is acting
 If a private party burdens, suppresses, or privileges speech, that is
not a 1A problem
o BUT Internet is all private
 The activities of all the different players are private actions and not
bound by the 1A
 Subject to legislative control/statutes only
 BUT many points of control
 The machine – (v-chip)
o Internet version of making you put all the dirty
books on the highshelf – (hasn’t created much fuss)
o Seems better than allowing gov’t to regulate and
make it a crime to send things that are deemed
inappropriate
 ISP
o Being able to check what you were looking at
 Search Engine
o Internet has infinite channels, but paradoxically,
that creates a scarcity of attention
o Point of possible regulation
 Probably subject to LGA
M.Glick – First Amendment – Fried – Fall 2007
121 of 172
RELIGION
Determining what religion is
 Why care?
o Need to know what it is such that the free exercise of it may not be
prohibited
o Need to know what it is such the gov’t may make no law respecting the
establishment of it
 Opening cases all try to interpret a statute that exempts a certain class of people who
conscientiously object on religious grounds
o Exs:
 Pledge  “under god”
 Teaching of certain doctrines in public schools (Marxism /
Leninism)
o NOT itself a constitutional question, but rather one of statutory
interpretation
o So the constitution tells us we’re not allowed to establish a “religion,” but
there’s nothing that tells us what a religion IS
 Cases:
o Seeger / Welsh / Gillette
 “conscientiously opposed to participation in war by religious
training or belief”
 Requirements:
 Must believe it
 Must be a religion  some picture in mind of what it is
o Thoughts?
 Training – imbued with this after some time
 Want it to be drilled into you, not
just volitional
 Want some bureaucracy/organization, not
something you made up on your own
 Might want some objective evidence, not
just a subjective avowal of belief
 Congress wanted someone who by virtue of their
upbringing really couldn’t help it
o Seems like a high barrier, but we worry about a
free-rider problem  don’t want people to abuse it;
want those who will be truly psychologically
harmed by overturning their religion
 Why even have an exception for religion? What makes it special?
 It’s not necessarily eternal damnation (because not all
religions believe in after-life, yet their adherents remain
steadfast), but rather it’s a set of commitments and beliefs
such that to violate it destroys who we are and there is a
chance we would not recover from it
M.Glick – First Amendment – Fried – Fall 2007
122 of 172
FREE EXERCISE
 What gov’t may not do TO you on account religion
Importance of Intent
 Hialeah
o Law prohibits killing/slaughtering animals for any type of ritual,
regardless of whether or not the animal is to be consumed
 Seems facially neutral
 BUT:
 The legislative record is wrought with intent
o (contra O’Brien  intent of LH disregarded)
 Law is clearly gerrymandered to include certain stuff but
not others
2 Enormous Landmarks
 Sherbert – (Brennan) (1963)
o LGA: Employment Benefits – (Sherbert denied unemployment benefits
because he can’t work on Saturday)
 Choice between honoring his religious beliefs and working on
Saturday to earn his unemployment benefit
o Held (Brennan):
 We are going to strictly scrutinize the application even of a general
law if the application has the effect of burdening religion
 If the APPLICATION burdens religion (makes the exercise
of your religion more difficult), then the gov’t must have a
compelling reason for applying it to you and law must be
narrowly tailored
 This regulation is no different than if there had been a fine imposed
for her Saturday worship
 Gov’t is imposing on people who “voluntarily quit”
o Refuse to give unemployment compensation to
people who had a job, but chose not to take it
o Underlying issue: What’s the baseline?
 1. If you have an LGA which gives everyone a benefit, but then
takes it away for the exercise of religion, that’s prohibited (seems
more like a fine)
 Notion of New Property
o Not giving benefit = DP violation
 Once you extend to some, there are certain
reasons that you can’t limit it
 Goldberg v. Kelly
o If you’re getting a gov’t benefit (welfare) and then
they take it away from you, you deserve Due
Process
 Gov’t claim: no right in 1st place
M.Glick – First Amendment – Fried – Fall 2007
123 of 172


SCOTUS: Benefit = Property and can’t be
taken away w/o DP
 2. Not required to receive unemployment benefits  baseline is
zero
 This is just extending something “extra”
o We’re saying, if you do X, you won’t get the
“extra”
 Different from a fine
o If you do X, you’re a criminal – (society forbids it
and we’ll take money away)
o We view legal system as giving fines a particular
force
 Fine Cases:
o Hialeah  slaughter
o Reynolds  bigamy
 Particular religious practice was subject of a
specific criminal prohibition
 SUM:
 Won’t extend “unnecessary” benefit vs. sanctioning you
publicly for your behavior
o Can’t withdraw for wrong reason vs. Stop
Complaining/we’re giving you something “extra”
Exemptions between Sherbert and Smith:
o Religion Wins
 Unemployment
 Thomas v. Review Board
 Hobbie
 Frazee
o Court follows Sherbert
 Coercive impact on religious practice
(Thomas))
 Even if the practice had changed during the
course of unemployment (Hobbie)
 Even if not part of a particular sect (Frazee)
 Yoder – (compulsory ed)
 OK for Amish to not send kids to HS in violation of LGA
o Government Wins / Religion Loses
 3 Rationales:
M.Glick – First Amendment – Fried – Fall 2007
Gov’t Interest in
Uniformity
124 of 172
US v. Lee
 Amish object to paying SS tax for employees
 Tax system could not function if denominations were allowed
to make their own rules
Bob Jones
 IRS denials of tax-exemption for educational institutions who
claim discrimination is OK based on religious beliefs
Goldman v. Weinberger
 No yamulkes in Air Force
Special Environments
Narrow Definition of
what constitutes a
burden
O’Lone v. Estate of Shabaz
 Prison regulations claimed to infringe on Muslim worship
Bowen v. Roy
 “Little Bird of the Snow” challenge to AFDC SSN
requirement
 Can’t tell the gov’t how to operate
o How to deal with its own business
o How to keep files
Lyng v. Northwest Indian Cemetery
 Road being built thru cemetery grounds on gov’t land
 Can’t be that because of your religion beliefs you can tell the
gov’t how to run its business and operate its own property –
(O’Connor)
Analogy:
 These are sort of like non-public forum cases in the free
speech context:
o You can’t use free speech rights to tell the gov’t
what to do in non-public forum
o You can’t use free exercise clause to tell the gov’t
how to operate its program

Moving away from Sherbert:
o Braunfeld
 Orthodox Jews challenge Sunday Closing law  want to stay open
on Sunday, but rest on Saturday
 Claims is that they lose the whole weekend if they have to
close for gov’t on Sunday and religion on Saturday  sort
of forces them to open on Saturday in violation of their
Free Exercise rights
M.Glick – First Amendment – Fried – Fall 2007


125 of 172
Held:
 NO  this is LGA with purpose and effect to advance the
State’s secular goals
o Valid despite indirect burden on religious
observance unless State may accomplish its purpose
by means which do not impose that burden
 How does this get around Sherbert?
o Braunfeld says that it was just an LGA that simply
made practice of religion more expensive
o Court looks to the claimed compelling interest
 Braunfeld  unified day of rest
 Sherbert  unemployment fraud
 Court believed the interest in
Braunfeld was more important
o (CF thinks the difference is precarious)
 Brennan Dissent:
 Puts individual to illegal choice between religion and
business
 Would prefer to apply Sherbert:
Smith – (Scalia) (1990)
o Law denies benefits to persons dismissed from jobs for illegal use of drugs
 claim that drug was being used for religious purposes
o Held:
 LGA  law is neutral in effect/intent (religion-blind), so it’s OK
 Religion can be superseded by LGA
 Scalia is allergic to balancing & 4-part tests – (O’Brien)
o Contra Brennan:
 Brennan: cares about differential effect
 BUT that is not how the law comes out
 WA v. Davis – (differential purpose vs. differential effect)
o Even if facially neutral in intent and as written, it is
a constitutional problem if it has the effect of
burdening a particular group
o BUT rejected in WA v. Davis
 If you want a violation, either:
 The law must facially discriminate
OR
 Be intended to to be discriminatory
(Gomillion – 27-sided figure)
 Disparate impact is not enough
o SUM
 Smith: Religion :: WA v. Davis : Race
o How to possibly distinguish from Sherbert?
 Scalia tries to slalom through without upsetting precedents
 Possibility:
 Sherbert  he just took a Sabbath
M.Glick – First Amendment – Fried – Fall 2007

126 of 172
o Not something we wish to penalize
Smith  fined for violating a criminal drug statute
o A little less sympathetic
o No desire to modify a criminal statute to
accommodate a person who wants an exemption to
use drugs
o Concerns (2):
 Discretion!!! Some danger here that the system cannot determine
what is so urgent about a religious obligation
 Uncomfortable coming up with a standard regarding
religion to LGA
 (Some Establishment Clause concern with recognizing
religious excuses but not others)
 Giving religion a status for some people that you don’t give to
others
 We don’t like giving people a free pass wrt religion that
they’re not entitled to with other things
 What is special about religion that it should get you out of
obligations that are imposed on others?
o Ex.
 How can we justify the following?
 Religious excuse  OK
 Illness/allergy  OK
 Visit your kid  NO
o How to justify modifying visitation right for
religious obligation, but not OK to modify because
he has to work?
o Should gov’t be religion-blind?
 Hialeah  seemingly religious blind on the face, but clearly not
religion-blind on “intent”
 CF doesn’t love this “religion-blind” test (Kurland)
o Comparison to speech:
 Being “religion-blind” seems to be enough here
 Being “speech-blind” is not enough in O’Brien
 Even if it’s content-neutral, it still fails if it’s not narrowly
tailored of if there are alternative means
o Speech gets more protection wrt LGA than in
religion context
o We do not allow expressive conduct to be beaten
by LGA
 We do allow religious conduct to be beaten
by LGA
 Speech > LGA – (O’Brien)
 Religion < LGA – (Smith)
 Rationale for difference:
o Why give speech more protection than religion?
M.Glick – First Amendment – Fried – Fall 2007
127 of 172




Speech  external effects – (avert your
eyes)
Religion  external effects of free exercise
are more serious
 Exercise is not just expression, it’s
CONDUCT!
Cases
 There are a number of cases that might have been decided
on free exercise grounds, but end up winning on free
speech grounds
o We don’t care as much about protecting your free
exercise religious rights
o We DO care about protecting your free speech right
 Barnette
o Children had free exercise objection to having to
recite the Pledge, but they won on freedom of
expression
 Rosenberger v. UVA
o UVA refuses to pay costs of Christian publication
under guidelines prohibiting student activities fees
for any “religious activity”
o Held:
 Group wins, but based on freedom of
expression (funding restriction said to
discriminate on the basis of viewpoint)
 Lamb’s Chapel
o School making auditorium available after-school,
but only for non-religious groups
 Religious group wins, but on free speech
grounds
Sherbert v. Smith
o Scalia disliked Sherbert
 Hates balancing / likes rules
o Breyer/Brennan/Ginsberg liked Sherbert
 OK with balancing
 If there is a burden on religious practice, the gov’t must not only
explain itself, but must have a compelling purpose and be narrowly
tailored
o PROBLEM
 Sherbert
 Makes each man a law unto himself (Scalia  bigamy)
 Seems extreme that even an incidental effect on religion
must be justified under strict scrutiny
 Smith
 Too stingy in recognizing protection for religious exercise
– (McConnell)
M.Glick – First Amendment – Fried – Fall 2007
128 of 172
o Religion has been an important part of our history
o Perhaps a 3 Way?
 Maybe we do Smith, but with an exception for extreme hardship,
even if it’s an LGA
Religious Freedom Restoration Act
o Congress sought to overturn Smith by the Religious Freedom Restoration
Act  Congress has not gotten away from it
 Congress itself won’t pass a law that has incidental burden on
religion (even if LGA)
 BUT violates the Constitution when applied to states
 Congress has no power to tell the states what to do about
religion
o RFRA that was struck down in Boerne
 CF: Smith is pretty secure
SUM of Free Exercise
rd


Non-LGA
LGA
SUM

Gov’t Providing a BENEFIT
Gov’t Imposing a DISABILITY
OK, so long as it’s not gerrymandered
to explicitly/implicitly benefit religion
OK, so long as it’s not imposed in
terms that are in reference to
disadvantage religion
OK if giving out money in a general
way
OK if disadvantaging in a general
way
If what’s included is included because it’s a religious exercise, then we have a
problem with that
 If you’re targeting for religion  NOT OK
o Protecting some behavior because of religion
o Free Exercise doing some work – (Hialeah)
Ex.
o McDaniel
 Members of clergy ineligible for public office
 Distinction:
 If the law said, “You can’t hold public office if you have
another job.”  OK
 BUT since the employment specified was, “being a
member of the clergy.”  NO
M.Glick – First Amendment – Fried – Fall 2007
129 of 172
ESTABLISHMENT CLAUSE
 What gov’t may NOT do for you on account of religion
Interaction with Free Exercise
 Definitions:
o Free Exercise
 Do not do anything to disadvantage religion
o Establishment Clause
 Do not give anybody any benefits because of religion
 If you give full weight to Free Exercise, have you not violated the Establishment
Clause?
o Is there room between the Ceiling (Est Clause) and the Floor (Free Ex)?
 The ceiling (establishment clause)  how much can you benefit
religion?
 The floor (free exercise)  how much do you have to allow / how
can you disadvantage religion?
o Any attempt to do something because of religion violates one of the
two clauses
 Favorable  violates Est Clause
 Unfavorable  violated Free Ex

Various opinions:
Scalia
Harlan
Notes
Floor – (Free Ex)
WIDE
Low – (Smith)
Defer to the
legislature
Anything goes – just
need neutrality (LGA)
 Easy to infringe on
Free Ex
(Dissent in Sherbert)
Low – (Smith)
Blaine Amdt
Believes that LGA can
infringe upon religion
without any problem
No money raise by
taxation in any state for
any public fund shall ever
be in control of religion
Ceiling – (Est
Clause)
High
Low – hefty Est
Clause
Hated giving $$$ to
parochial schools
(nativist / antiimmigrant)
M.Glick – First Amendment – Fried – Fall 2007
Brennan/
Souter
130 of 172
Ceiling – (Est
Clause)
Low
Notes
Floor – (Free Ex)
NARROW
High – (Sherbert)
The whole domain is
constricted to a point,
so the room for
legislative deference
is low
Everything is either
required by the Free Ex
Clause or prohibited by
the Establishment
Clause
Wary about any law
benefiting religion
Low – (OK with Smith)
Low
Every law touching
upon religion must be
judged strictly
Stevens
Very protective view
of religion under the
McConnell
Free Ex Clause
Allergic to attempts to
establish religion
High/middle floor –
(can’t do a whole lot of
regulating)
Higher ceiling – (OK
with government
benefiting religion)
Original Understanding
 Congress shall make no law touching upon the establishment of religion – (pro- or
anti-)
 BUT several states already had established churches
o Thomas thinks original intent was the Congress would stay out of the
Establishment business – (14A then incorporated 1A against states)
 Establishment Clause may have been a federalist provision
o Not about individual liberty at all
o Assignment of responsibility between federal and state gov’t
 Makes no sense to incorporate that right against the states
 What would that look like today?
o States COULD establish religion
o The only 1A right you would have against the gov’t would be in the Free
Exercise realm
 If a law did not violate the free exercise clause, it would be OK
if it established religion
 ISSUE: What does the Establishment Clause do that the Free
Exercise Clause does not?
 If something is a violation of the Establishment Clause as it
stands today, couldn’t we just argue that it violates my Free
Exercise rights because gov’t is compelling me to believe
M.Glick – First Amendment – Fried – Fall 2007
131 of 172
something else (the established religion) as opposed to
what I would freely exercise on my own?
Modern Understandings
 Lemon Test:
o 1. Secular Legislative Purpose
o 2. Principal Effect must be one that neither advances nor inhibits religion
o 3. Must not foster an excessive entanglement with religion
 Cases
o McGowan v. MD
 Other side of the Sunday closing cases  say that making Sunday
your closing day is an establishment of religion
 Held:
 Law is OK
o Though original motive may have been religious, so
long as today’s motive may not have been, it’s in
the clear
 Today: secular
o Bowen v. Kendrick
 Authorizes federal grants to organizations in the business of
teaching abstinence of premarital sex
 Analyzing the statute:
 Could argue McGowan  whatever the history of
abstinence or even the church’s feeling on it, if there is a
secular account of this law, it’s alright
 BUT ACLU makes a fatal mistake  facial challenge
o In order to succeed on a facial challenge, you must
knock it out in ALL cases
o BUT the gov’t could show some valid applications,
so can’t win facial challenge
 Statute upheld on face
 Maybe abstinence IS a religion:
 What is a religion such that you may not establish it?
o (CF: This is a big problem  the boundary)
o When is a deeply held belief not a religion, but
something else?
o How to distinguish an ethical culture from a
religion?
 Potential Explanations:
o God/Supreme Being
o Institutions/Apparatus
o Formal Training
o Original Meaning of religion (1791)
 We’re back at Gillette
 French Revolution  Temple of Reason
M.Glick – First Amendment – Fried – Fall 2007
132 of 172
o Something does not become a religion if they
depend on public reason
o If the abstinence teachers make arguments the terms
of which are pertinent to anyone willing to listen,
then it’s not a religion
 If you can depend just on arguments of
public reason  you’re fine
 If you give out and go beyond simply reason
and argument  religion
o Problem (CF):
 There are many public arguments that are
very complicated, but still non-religious
School Prayer
 Basic Rationale:
o Don’t want to put burden on beliefs such that the choice is either:
 Participate – (say the prayer)
 Sit out – (still saying something)
o Engel v. Vitale
 Court strikes down “non-denominational” prayer written by NYS
Board of Regents
 Est Clause does not require any showing of direct gov’t
compulsion
 Violate by the enactment of laws which establish an official
religion even if those laws do not directly coerce
nonobservers
o Schempf
 Struck down law requiring Bible reading and recitation of the
Lord’s Prayer
 (Was taking place all over the country!)
 More complex rationale:
o Lee v. Weisman
 Struck down graduation speaker at Middle School
 Rationale:
 Kennedy
o Indirect coercion – (more potential for this in the
school setting)
 Conformist / peer pressure
o Compelled to make a choice
 If they stand  agreement is assumed – (put
in a position where they are making a speech
they don’t want to)
 If they sit  also make a speech
 (forced to put “Not” on your license
plate)
 Blackmun – (CF: better than Kennedy)
M.Glick – First Amendment – Fried – Fall 2007

133 of 172
o Coercion doesn’t matter  ENDORSEMENT does
 Seems like state is saying that religion
(either generally or specifically) is a good
thing
 Regardless of whether people are coerced,
there’s a harm if state endorses religion
 O’Connor
o Exclusion of non-believers is the problem
 When gov’t endorses religion, even though
it doesn’t compel anyone to do anything, it
is sending a message of exclusion:
 People who believe  IN
 People who don’t  OUT
o You’re not a 1st-rate citizen
 1st-rate citizens
believe in God or are
Christian
o Civic Excommunication
o This seems ultimately to get back to coercion:
 “You’re not a 1st-class citizen, but if you
want to be, you should come believe X.”
 Attenuated form of Free Exercise
o The endorsement is a step
towards convincing you to
believe X and not Y (what
you believe), so it’s an
infringement of your free
exercise of Y
The pattern after Lee v. Weisman
o Court trying to discern a mysterious line between endorsement that
excommunicates (coercion) and something that no one takes seriously
o The result of these cases is an unstable and unsatisfactory body of
cases:
M.Glick – First Amendment – Fried – Fall 2007
SERIOUS  COERCION
Lee v. Weisman
(though 4 say it’s silly and therefore allowable)
Santa Fe Independent School District
Students elects speaker before a football game
 NO
 Invites and encourages religious message
o Gov’t policy
o Gov’t property
o Gov’t sponsored school event
Allegheny County
Nativity scene in courthouse struck down
 Can’t makes adherence to religion relevant
to a person’s standing in the community
134 of 172
NOT SERIOUS  NO COERCION
Burger
There’s got to be some point where we cut
some slack to have at Christmas w/o the
ACLU being able to spoil it
McGowan
Sunday closing law has secular purpose today,
even if it didn’t in the past
Lynch v. Donnelly
Pawtucket X-mas display  OK
 No rigid/absolutist view of Est Clause
 Passive display; no subtle gov’t advocacy
(O’Connor concurs)
Gov’t can run afoul in 2 ways:
 Excessive Entanglement
 Gov’t endorsement or disapproval of
religion – (excommunication idea)
Capitol Square
(We have Lynch  Allegheny  Cap Sq ?!?!)
 KKK’s large unattended Latin cross on
public square was OK
McCreary – (KY courthouse)
10 Commandment  Breyer swing vote says
you can’t have it in courthouse
 Pitched battle between court and citizens –
(meant as a provocation
Van Orden – (TX State Capitol
10 commandments  OK, been here over 40
years
 Problem: How do we know when it’s
been long enough?
School Cases
 Where the fight over the establishment clause really exists  school prayer and gov’t
aid to parochial schools
o Symbols / Creches / 10 commandments are really ways for courts to
develop doctrine for the important stuff
 Rationales:
o Fear of Indoctrination
M.Glick – First Amendment – Fried – Fall 2007
135 of 172

o
o
o
o
o

These are the areas for indoctrination  at younger ages, you can
be indoctrinated and we don’t want that on the taxpayer’s nickel
 (we’re not as concerned at college level)
Common Experience
 Idea that public school is a common experience which brings us
together as citizens, teaches us citizenship, and makes us
Americans
Fear of Community Schism
 Fear that if you allowed education to be taken over by religious
institutions, you’d be accentuating differences between us and
isolating communities
Pure bigotry
 (nativist, anti-Catholic sentiment)
Power of Teachers Unions
 Ferociously opposed to anything that impinges on their power and
authority
Counter:
 JS Mill notion of choice and a diverse society  should allow it
Cases:
o Edwards v. Aguillard – (Creationism)
 Louisiana says you can teach evolution, but if you do, you must
teach creation science – (don’t have to tech either once,
 Held: (Brennan)
 NO
o Purpose is clear – (it’s a sham!)
 Favoring creation science and NOT setting
the two on equal footing
 What’s really going on here is a way
of getting creationism into the
curriculum as a way of endorsement
 Epperson made clear that religious
science is not all you can teach, so
this was an attempt to get around it
 Dissent (Scalia):
 Purpose discussion is irrelevant
o Wasn’t the stated purpose in O’Brien a sham too?!?
o We don’t look at purpose!
 Brennan: sometimes we do
 Debate: Could a teacher do this outside this law?
 NO – (me)
o Gov’t putting itself behind a religious message
 YES – (weird)
o Just the presentation of an opposite account of
events
 There are 2 possibilities and here they are
M.Glick – First Amendment – Fried – Fall 2007
136 of 172


Can’t you at least present 2 alternative
explanations / viewpoints
o Pierce – (No compulsory public education)
 Parents have due process right to send kids to private schools
o Yoder – (Amish HS)
 Amish not required to send kids to school after 8th grade
 CF: WRONG
 Amish kids aren’t equipped at adulthood to decide if they
want to stay in that community
School Aid Fights
o Everson – (Seminal Case – at least for a while)
 Reimbursement of transportation expenses to parents sending their
kids to parochial schools  OK
 Can’t support religious schools directly or indirectly with
materials or anything else
 Principle:
 “No tax in any amount, large or small, can be levied to
support any religious activities or institutions, whatever
they may be called.”
o (Souter employs this a lot)
o Standing Issue
 Must be a real case or controversy  if you are not in some
material way hurt then you do not have standing to come to court
 Cases:
 Mellon
o Individual taxpayer does not have right to complain
of constitutionality of some gov’t spending program
 BUT then: Flast v. Cohen
o Makes exception to Mellon for the establishment
clause
 (applied only to Congressional enactments
said to violate the Establishment Clause,
NOT executive acts  faith-based
initiatives)
o Era of non-coherence following Everson
 Transportation:
 Everson  TO schools OK
 Wolman  field trip transportation NO
 Textbooks:
 Allen  OK to lend books on secular subjects
 Lemon  reimbursement = excess entanglement
 State-authorized exams:
 Regan  OK to reimburse
 Levitt  Can’t do it
 Maps/globes
 Mitchell/Helms  instruction materials OK
M.Glick – First Amendment – Fried – Fall 2007
137 of 172
 Meek / Wolman  no maps, magazines, equipment
o Breakthrough for parochial schools in 1980s:
 Mueller v. Allen – (1983)
 Tax deduction for certain education expenses  OK
 Rationale:
o Rehnquist points to the neutrality/generality of the
program
 Purpose  secular
 State’s decision to defray the cost of
educational expenses incurred by
parents
 Puts parents on even footing and
frees people up to make educational
choice
 Effect  said to be neutral, but in reality,
the people who are getting the benefit
(deduction) are the ones who send their kids
to private schools because public schools
don’t charge tuition
o Money going to individuals who make use of
“many private individual choices”
 Money not going right to schools
 Dissent:
o Sectarian Effect!
 Rehnquist says the effect comes from a large
number of private, individual choices rather
than directly to the institution, but why does
that matter?
 Money is ending up there anyway
o Counter:
 Gov’t not endorsing / not sending the $$$
 Gov’t program does, in effect,
cause money to end up in sectarian
treasuries, but that’s OK
What we’re looking for in school aid cases now
1. (Still probably want secular purpose)
 (At least an arguable secular purpose)
2. Neutrality/generality/breadth of class
 No incentive or greater benefit to religious class
3. Money going via individual/private choice, rather than
directly from state
M.Glick – First Amendment – Fried – Fall 2007
138 of 172
o Post-Mueller
 Witters – (Blind man) (1986)
 Gov’t giving people money to train to be a pastor/minister
of the gospel  OK
o No incentive to undertake sectarian education
o No greater benefits for those who do
o Benefit to individual, not institution
 (emphasize generality)
 Zobrest – (sign-language OK) (1993)
 Gov’t employee coming into a religious school and
communication sectarian messages
o Paying a public employee to deliver a religious
message
o (Prior to this, we disallowed a public teacher from
coming in to teach secular stuff  Lemon)
 Rationale:
o Mechanical transmission
 Mitchell v. Helms – (2000)
 Publicly-funded computers and other teaching aids to
private schools  OK
 Rationale:
o Broad/neutral
o Private choice vs. State choice
 Agostini v. Felton – (1997)
 (BIG SIGN OF DISINTEGRATION)
 Special Ed teachers paid with federal $$$ being sent to all
kinds of schools
o A public employee teaching on religious school
grounds is not automatically barred
 (Zobrest had gotten rid of exclusion of
public employees from religious school
grounds)
 (Here the court expressly overturns 1985
ruling in Aguilar v. Felton)
o All gov’t aid that directly aids religion is not
automatically invalid
 Zelman – (2002)
 Court upholds Voucher system
 Why care?
o This challenges the current institution of American
public education in a way that past cases did not
 Past cases:
 Agostini (special ed)
 Zobrest (signers)
 Witters (education for a minister)
M.Glick – First Amendment – Fried – Fall 2007



139 of 172
 Mitchell (maps)
 Mueller (tax deduction)
 Persons who are committed to the current
system fought these past minor
encroachments because of the possibility of
Zelman
Dissent (Souter):
o Total abandonment of precedent and principle
 BUT (CF) the precedents being overturned
were from the 1960s and the precedents
being invoked were more recent
Responses from Rehnquist:
o Yes, 99% of the money is going to private schools
and religious schools are being advanced BUT:
 Denominator Argument:
 If you look at ALL the $$$ being
given out, it’s not that much
 Souter: it’s just the right amount to
go to parochial school
 Choice is what matters  Individuals!
Comparing Zelman to Locke v. Davey:
o Locke v. Davey
 WA State giving out Promise Scholarships
for postsecondary education, but State
Constitution bars students from using the
scholarship to pursue a degree in devotional
theology
 Free Exercise Challenge
 Held (Rehnquist):
 OK  like Rust or Findlay v. NEA
o Large area in which the gov’t
is acting to subsidize
o They CAN give money
however they want  fine to
give it to these students, but
don’t have to
o After Locke and Zelman, the principle is that you
don’t have to do anything  you CAN have a
voucher program that includes religious schools, but
you don’t have to
 Permitted by Establishment Clause
 NOT required by Free Exercise
o CF: Does Witters + Hialeah = the opposite of
Locke v. Davey?
 One side:
M.Glick – First Amendment – Fried – Fall 2007
140 of 172



Hialeah  program unconstitutional
because it is not facially neutral wrt
religion
 Witters  payment for Christian
theology student is OK
Other side:
 Locke  program not facially
neutral and says you don’t have to
give to theology student
Seems that:
 If you can’t discriminate against
religion in a public program
(Hialeah) and if the establishment
clause doesn’t forbid a voucher
system (Zelman), then you can’t
have a voucher system that
excludes private schools (Locke)
RELIGIOUS ACCOMMODATION
 Pleas for accommodation  not claiming that law is totally invalid altogether / just
asking for accommodation
 Conflict between the Clauses:
o Free Exercise  “I deserve accommodation for my religious needs.”
o Est Clause  “Can’t accommodate them; that would be establishment.”
 Accommodation is not compelled by the Free Exercise clause,
but if you do it, you don’t violate the Establishment Clause
 SUM
o The concern is establishment of religion through excessive
accommodation
 Establishment clause does not allow church groups to create
exclusive communities which compete with the general society in
a potentially coercive way – (Community acquires some of the
coercive power that the state is supposed to enjoy exclusively)
o BUT we do have some non-state coercive pressures (non-portable
pensions and employer-provided healthcare)
 May be a generalized establishment of the “religion of the market”
 Cases AGAINST religion (no accommodation  gov’t wins):
o US v. Lee – (Amish Social Security)
 If you do accommodate, who gets hurt?
 Generalized hurt to system
o Creates moral hazard
o Threat to system if not mandatory
 Specific threat to employees
M.Glick – First Amendment – Fried – Fall 2007
141 of 172
o Won’t get the benefits; if they’re cut off from gov’t
benefits, then they’re totally dependent on charity
from the Amish brotherhood
 This becomes an Establishment Clause case
 If his claim is acknowledged, then the Amish charity
system becomes a legitimate system  puts pressure on
people to remain in the system in order to obtain the benefit
o Yoder – (Amish HS)
 Establishes the church’s hold on the community – (only place you
can get your skills)
 If you don’t go to HS, you’re confined to whatever skills
the community provides post-8th grade
o Kiryas Joel
 NY State legislature sets up school district to include just a
particular community of Hassidic Jews who were worried about
sending their kids out for special education
 (Post-Aguilar, they could have sent special ed teachers to
religious schools)
 Held:
 NO – state took orders from and intended to benefit a
religious group
o Larkin v. Grendel’s Den
 MA Law prohibited issuance of alcohol permits within 500 feet of
church; religious establishment is given the authority to decide on
whether the permit should be issued (no standards)
 Held:
 NO
o Excessive Entanglement
o Substituting unilateral/absolute power of church for
the reasoned decisionmaking of a public legislative
body  can’t delegate gov’t power to a body
chosen based on religiosity
 Can hand gov’t speech over to mushroom or
fruit growers, but not a religious group
 Dissent (Rehnquist):
 Greater includes the lesser
o Since gov’t can ban liquor altogether, they can limit
it by whatever means they want
 Maybe the restriction should be that the
liquor license can be approved so long as the
church doesn’t object
 Analogy to Posadas:
o Puerto Rico approved gambling but said you could
not advertise in NY/FL
M.Glick – First Amendment – Fried – Fall 2007

142 of 172
o Rehnquist says that since they can prohibit
gambling altogether, they can limit the
advertisement of it as well  Vice Exception
 (overturned in Coors / 44 Liquormart)
o Estate of Thornton v. Caldor
 CT law allows everyone to pick a religious day of rest and not be
subject to dismissal
 Held:
 NO – gives supremacy to the religious observance of
citizens over the secular interests of the workplace
o Statutes clearly advanced a particular religious
practice
 We don’t like advantaging a religious guy over one who
wants Sunday off because the court gave him custody on
that day
o Violates the Establishment Clause
o Bob Jones
 Claim that their religion bans interracial dating, so they should be
able to claim tax exemption even if they are racially discriminatory
 Item of religious doctrine in that community that interracial
dating was problematic
 Held:
 IRS wins
Cases FOR religion (accommodation  gov’t loses)
o Amos
 Title VII bans discrimination on the basis of religion UNLESS you
are a religious organization
 Arguments:
 Amos
o Claims illegal religious discrimination
o Establishment Clause violated by recognizing this
religious organization and allowing them to
discriminate
 Church
o Free Exercise
 Forced inclusion of someone different than
us violates our free exercise rights
 BUT you have to show how the inclusion
will affect your free exercise  Dale
 Want someone who will affect your
expressive association
o Dale > Jaycees
 Held:
 Establishment Clause not violated
M.Glick – First Amendment – Fried – Fall 2007
143 of 172
o “the Court has never indicated that statutes that give
special consideration to religious groups are per se
invalid”  room for accommodation
 Brennan concurrence:
 Even trying to figure out whether an employee is part of the
expressive association of the religious organization would
involve “ongoing gov’t entanglement in religious affairs”
o Mergens
 Law conditions federal funding to secondary schools on them not
restricting access to limited public forums based on religion
 Escapes scrutiny due to Public Forum analysis
 Since it’s a public forum and it’s open to all as such, there’s
no Establishment of religion for allowing a religious group
to use it
o If the American Nazi Party wanted in, they could
o Waltz v. Tax Commission
 Allow property tax exemption for schools/churches
 “Indirect economic benefit,” but within a broad class of
property
How you LOSE accommodation case
How you WIN accommodation case
Accommodating you would be de facto
Expressive Association case
establishing church’s hold on an important Amos
function of gov’t
US v. Lee
It would take considerable effort to figure
out what doctrine of church
Amos
Establishes church’s hold on you
Yoder
Public Forum open to all – (OK to
Gov’t delegating power of gov’t to a
accommodate religion
Mergens
religious group
Larkin v. Grendel’s Den
Kiryas Joel
Benefit is part of a broad class
Waltz v. Tax Commission
Law gives religion supremacy over other
valid secular purpose
Estate of Thornton v. Caldor
Other compelling gov’t claim – (EqPC)
Bob Jones
M.Glick – First Amendment – Fried – Fall 2007
144 of 172
CHURCH PROPERTY DISPUTES
 The law in this area is very odd
 Issue:
o When there is a dispute, who gets the building and the money?
 Two kinds of churches:
o Hierarchical
 Easy to know who would get it  property owned by the highest
rank
o Congregational
 Church owned by the congregation as a whole – (governed by the
congregation and the property belongs to them
 Problem:
 Who to count in the denominator for the majority?
o 2 possibilities:
 Any resident of the town
 Anyone who was a regular
contributor/participant at church
 Possible Rules:
o Money given to closest adherents
 AG v. Pierson – (Lord Elden)
 Decide the case as you would a dispute over a trust: give
the money to whomever most closely adheres to the
fundamental doctrines/practices of the church when the
donations came in
o Look to original purposes of the church – (if we
were talking about anything but religion, no one
would think much about this)
 Like Dale:
o Organization gets to decide what the oath means
and what the original principles of the organization
are
o Stevens  I get to decide
o Let the Church Decide / Keep the State Out
 Kedroff
 Dispute between American and Russian segments of the
Russian Orthodox Church
 NY State Legislature passes statute transferring control
from Russian to American
 Held:
o NO – church should get to decide, not the state
 NY statute improperly involved the state in
an internal church dispute
 What kind of claim?
o Free Exercise
 Individual right to free exercise:
M.Glick – First Amendment – Fried – Fall 2007
145 of 172

Ought to be able to commit yourself
to follow whatever organization you
want
 BUT also group right to free exercise:
 Doesn’t let the church decide for
themselves who should lead
 Free Exercise might not be just an
individual right, but also a right of an
entity called a “church” to its
freedom  church like a corporation
and has its own rights – (not just the
sum of its members)
o Outruns and not completely
coextensive with the persons
who inhabit it
o Establishment Clause
 Excessive entanglement between the state
and the church
 State passing a statute and saying
this is the official orthodox
o No secular purpose
o No secular effect
o Big entanglement
o Neutral Principles
 Presbyterian Church
 Jones v. Wolf
 If the criteria under which you assign property is an
LGA that does not involve religion, then you’re alright
o Assign based on trust/contract/corporation/property
law according to explicit terms of the trust does not
require religious inquiry  OK
o BUT can’t engage in religious reasoning
 (can’t do Lord Elden and figure out who is
adhering to the doctrine of the church)
o No arbitrariness review
 Serbian
 Can’t review church decisions for arbitrariness
 Dissent (Rehnquist):
o What if they plainly didn’t follow their own rules?

SUM:
o Unseemliness of the courts opining on matters of religious doctrine
o BUT at least it’s only about $$$/real estate  not life/death
M.Glick – First Amendment – Fried – Fall 2007
146 of 172
Rationales for Not Shutting People Up ex ante

Sun as disinfectant – want to allow ideas to get out there, so people
can shoot them down.

Killing your ability to speak = killing your ability to think  this is
more dangerous than other types of control

Shutting people up might give their ideas legitimacy – (make it seem
like gov’t is worried their ideas will work)

Have faith in people to evaluate speech/ideas – (don’t think preemption is necessary like in UK)

Fear of overestimating the dangers up front – (UK Law / Dennis)

Danger in gov’t deciding which ideas are “true”/good
o But we allow this with commercial speech

Victim of prior restraint is the PUBLIC  never get to see this –
(Public never gets to know what the harm was; they’re “punished” but
they haven’t done anything wrong)
M.Glick – First Amendment – Fried – Fall 2007
147 of 172
Courts looking (or not looking) at Purpose
YES

Edwards v. Aguillard – (religious purpose is clear)

Hialeah – (clearly intended to target  gerrymandered)

Wallace v. Jaffree – (school prayer  no secular purpose)

Lemon – (looking for secular legislative purpose for the law)
NO

O’Brien – (Warren rejects any inquiry into purpose)
Courts not trusting the supposed motive of the legislature

Act-Conduct Distinction  sometimes laws look unrelated to
expression on their face (looks like we’re just regulating
conduct/action, but motive is pretty clear)

Courts require generality
o If X is really your motive, go all the way (include everyone)
o If you’re exempting Y, then we questions your motive/interest
– (skeptical about how you cut the lines)
 One of the places where allowing ZERO speech is
better than selectively allowing 50% speech

Mosley / Carey – (exempt protests by certain groups and about certain
topics)

Discovery Network – (certain mainstream newspapers can keep box
on public streets, but others can’t  endorsement)

NY v. Railway Express – (NY Times can keep their name on the truck)

Simon & Schuster – (victims compensation board)

Media exception to the corporate campaign finance rules
M.Glick – First Amendment – Fried – Fall 2007
148 of 172
Fried’s emphasis on NOT controlling one’s mind

IDEA: No one has the capacity to stop me from reaching my mind
because no owns my mind but me; no one has the ability to stop me
from trying to persuade others since no owns their minds either

Virtual Child Porn  OK – (Can’t stop behavior just because it
gives someone ideas)

Stanley  can’t prohibit private possession of obscene material

Ignorance Cases
o Virginia Board of Pharmacy
o Coors / 44 Liquormart / (Posadas)
o Thompson v. Western Medical States / Henney – (concerned
that we’re regulating by keeping people ignorant about helpful
medical practices)

Right to Silence Cases – idea is that we have a DP right of personal
autonomy and integrity  “I am the master of my own life and no one
should make me say or believe something that I don’t”
o Barnette – (silence)
o Abood – (association)
o Lee v. Weisman – (religion)

Think about “true threats” or MacKinnon’s argument about
pornography  how it’s not trying to convince of anything, but just a
bypass to bad stuff – (bypassing the mind)

(See also: PERSONALITY sheet)
M.Glick – First Amendment – Fried – Fall 2007
149 of 172
Areas not yet explored

Libel  Area of private concern for public official

State Law Privacy Torts  court yet to reach a circumstance where
state law punished disclosure of information that was truly private

Hostile Work Environments

Harassment punishment as a violation for 1A
o Liberals concerned – (don’t like 1A violations, but also don’t
like discrimination/harassment)
M.Glick – First Amendment – Fried – Fall 2007
150 of 172
Problems with defining the class

Media / Journalist – (Branzburg wants us to do it, but there’s a
significant 1A interest in NOT doing so)

Religion
o (Establishment Clause problems with defining a class)
o Problems of defining what is “religious training or belief” for
the sake of conscientious objector statute – (Gillette)
 Training
 Bureaucracy/Organization/Apparatus
 Objective Evidence
 Supreme Being?
 Originalist notion of “religion”
 Public Reason
o Public Reason – (if you can go on arguments from public
reason alone, then you’re fine, but you start to use concepts
beyond the range of normal person, you’re in trouble)
o Smith – don’t like giving people a free pass for religion that we
won’t give for other seemingly valid reasons – (child custody)
o Bowen – (maybe abstinence is a religion)
 How to distinguish an ethical culture from a religion?

Congregation – (Church Property Disputes)

(as opposed to MDs (licensing), spouse (easy), clergy)
M.Glick – First Amendment – Fried – Fall 2007
151 of 172
Personality

Importance of quotations – (Masson / Luth)

Focus on core characteristic in Harper  we’re OK punishing the
students here because he’s attacking another student in a public school
on a core characteristic that gets right down to who he is
o Right to be able to conceive of yourself and to imagine that you
are conceived by others as being their equal – (especially in
public school)

O’Connor’s idea of Civic Excommunication in Lee v. Weisman
M.Glick – First Amendment – Fried – Fall 2007
152 of 172
Attribution Cases  ASSOCIATION CASES

IDEA: No one will attribute this speech that you’re complaining
about to you anyway
Concern about Attribution:

Kuhlmeier – (regulation OK because concerned that speech from
student newspaper will be attributed to school)

PG&E – (no one will attribute, but it forces you to alter)

Tornillo – (not likely they’d attribute, but it might encourage you to
shut up)
No Concern about Attribution:

Pruneyard – (not likely to attribute the leaflettors messages to you)
M.Glick – First Amendment – Fried – Fall 2007
153 of 172
Balancing vs. Categorizing
BALANCING
CATEGORIZING
O’Brien
Court has to measure whether regulation that
is “unrelated to the suppression of speech” is
nonetheless going too far
(This is why Scalia hates O’Brien and pushes
for LGAs be treated same for speech as
religion  Barnes)
Scalia in Barnes
If it’s an LGA, it doesn’t matter if it
burdens free speech – (wants to do Smith)
 rejected
Scalia hates it:
 Derogation of rules/clarity
 Assigns to courts the duty to determine
between competing values  don’t like
that
Disdain for weird lines in the area of
1A
 Confusing lines have the effect of
chilling speech because people are
afraid to speak because they don’t
know what’s going to be punished
(Why we give a hard time to vague
statutes)
Sherbert – (Brennan and now Breyer/Gins)
OK with Sherbert’s balancing of free
exercise claim against compelling purpose
McConnell’s 3rd Way
Keep Smith, but give an exception for
extreme hardship
Smith – (Scalia)
If it’s an LGA, doesn’t matter if there’s
an incidental burden on religion –
(straight line)
 Scalia wants to do the same thing for
speech (Barnes)
(some were OK with Sherbert’s
balancing of free exercise claim against
compelling purpose)
Braunfeld vs. Sherbert
Free Exercise claim lost in Braunfeld against
LGA, but won in Sherbert  maybe we
think the compelling interest for the gov’t is
better in Sherbert – (notice that Scalia moves
to LGA in Smith)
Approach in Dennis
 Whether the gravity of evil discounted by
its improbability justifies the invasion as
is necessary to avoid the danger
 (Dissent concerned over judicial role in
doing this)
Brandenburg
(More Clear  perhaps that’s why it’s
withstood the test of time)
M.Glick – First Amendment – Fried – Fall 2007
154 of 172
BALANCING
CATEGORIZING
Luth
Parable about the danger of ignoring the state
action and having to balance competing
speech interests against one another
Defamation – (State Action Reqmt)
Don’t like notion that A could bring suit
against Private Employer B and the court
would get to choose whose speech should
win
Canadian Approach to Hate Speech
Canada (and many other countries) are
engaged in a balancing of:
 Free Expression
 Preservation and Enhancement of the
multicultural heritage of Canadians
 Equality under the law
US Approach to Hate Speech
Are you regulating an idea/expression or
rather conduct that you believe is more
dangerous?
Bartnicki v. Vopper
 Breyer (concurring) wants to balance the
public interest in hearing this against the
privacy interests of the parties
Chaplinsky
 Court is categorizing in that some
speech is put wholly outside 1A
coverage
 BUT also balancing by attaching low
value to some speech and measuring
it against competing state interests
Tony Twist
(Balancing test for appropriation)
 Is the predominant purpose to exploit the
name for commercial value or is it to
make an expressive comment about the
person?
Obscenity – (Roth)
Not within the area of constitutionally
protected speech or press
 Mackinnon wants to put pornography
here
Child Pornography
We’re fine just banning it – (definitional
balancing: evil to be avoided outweighs
any potential expressive interest)
M.Glick – First Amendment – Fried – Fall 2007
Technology Issues

Data Mining – (doing what public could do on its own)
o Rape Cases
o Nuremberg Files
o Issue: How you present the information?

Internet – (state action)
155 of 172
M.Glick – First Amendment – Fried – Fall 2007
156 of 172
Law of General Applicability

Breach of contract infringes on free speech  Cohen
o OK, because it was an LGA
o I guess we could put it through O’Brien:
 Substantial gov’t interest in enforcing contracts
 Interest is unrelated to suppression of speech
 Means narrowly tailored

Speech  Ward / O’Brien
o O’Brien – apply the test whenever there is an LGA with an
incidental burden on speech

Religion
o Sherbert – (if the APPLICATION burdens religion, then the
gov’t must have a compelling reason for applying it to YOU
and law must be narrowly tailored)
o Smith – (if law is neutral in effect/intent, then it’s OK; religion
can be superseded by LGA)

Church Property Disputes – (neutral principles: Jones v. Wolf)
M.Glick – First Amendment – Fried – Fall 2007
157 of 172
Judicial Role Arguments

C&PD
o Not right to assess what is an imminent danger – (Dennis)
o Not right to question what speech the legislature believes is an
abstract evil – (Gitlow/Whitney)

Obscenity – Judges should not be describing what is pornographic –
(Brennan dissent in Miller)

O’Brien - Judges not good at balancing between competing values –
(Scalia on O’Brien)

Public Forum - Hudgens and ISKON reject the functional view of a
designated public forum – (judges shouldn’t be making those
inquiries)

Expressive Association
o Stevens in Dale wants to be able to be the one to determined
what the expressive association of the Boy Scouts is
o Rehnquist wants to give deference to an association’s assertions
regarding the nature of its expression

Accommodation - Brennan worried about judge’s being excessively
entangled in Amos and trying to figure out what is being
expressed/taught/believed in that religion

Church Property Disputes - Church Property Disputes are all about
Judicial Role

McConnell’s 3rd Way – Maybe he wants to do Smith but with an
excuse for “super-infringement of free exercise – (problem is who
decides what is a “super” infringement?
M.Glick – First Amendment – Fried – Fall 2007
158 of 172
Public Morality as a justification for regulation

IDEA: Harm is that stuff is out there, even behind closed doors, and
it’s taking place with impunity

Bickel – harm just by being out there

Paris Adult Theatre – (harm is that this stuff is out there and taking
place without impunity)

Lawrence v. TX – (even if private, concern is that it degrades public
morality)

Barnes – (not about flaunting stuff in front of unsuspecting public;
this was happening behind closed doors with consenting people)

Flag Burning  NO – (maybe the very idea that flag burning is
happening and people aren’t being punished for it is a threat to our
public morality  the very idea that it’s going on)
M.Glick – First Amendment – Fried – Fall 2007
159 of 172
Secondary Effects

Renton  hasn’t been extended beyond the pornography context
o Ordinance aimed not at the content, but at the secondary effects
– (attraction of bad demographic, crime, violence, drugs)

Boos
o Can’t use  try to claim that we’re targeting the secondary
effects of the listener’s reaction (effect on diplomatic process)
 Effects cannot be related to the communicative impact;
can’t regulate the persuasive impact
o NO – this is targeting a direct impact of a particular category of
speech  must target a secondary feature that is associated
with a certain type of speech

Pornography as subordination with secondary effects such as rape –
(but again we run into the problem of the secondary effects arising
because of the effectiveness of the speech!

Hate Speech? – (maybe argue about the secondary effects of it  just
want to make sure that the secondary effects don’t have anything to do
with persuasion or the effectiveness of the communication)

(BE CREATIVE – Fried seems to like this stuff)
M.Glick – First Amendment – Fried – Fall 2007
160 of 172
Captive Audience

THINK OF THE VARIOUS TYPES OF PUBLIC FORUMS

Hostile Work Environment

Pacifica  intrusion into home – (can’t unring the bill!)
o Push vs. Pull
o Children
o Availability of Alternatives

Lehman v. Shaker Heights  OK to regulate ads/music on bus
because it’s a captive audience

Harper  captive audience in public school

NOT
o Cohen
o Erzoznik  NOT a captive audience – (avert your eyes!)
o Internet is not a captive audience situation because you have to
take affirmative steps
M.Glick – First Amendment – Fried – Fall 2007
161 of 172
Lesser includes the greater arguments

ARGUMENT: Gov’t doesn’t have to give benefit, so we can restrict
it however we want  usually fails
o Designated Public Forum  never had to open it up, but now
that you have, you can’t limit
o Speiser – (no constitutional right to forum or tax deduction, but
once it’s been designated, then can’t restrict in content- or
viewpoint-neutral manner)
 Can’t restrict for exercising your constitutional right (1A)
o Pickering – (no right to job in the 1st place, but can’t be
dismissed for speaking out on matter of public concern)
o Elrod/Branti – (no right to job in 1st place, but can’t be
dismissed due to political beliefs/patronage)

Baseline issue with Sherbert
o (New Property) – LGA gives every person away but then takes
it away because of religious exercise  Is that a penalty?
o (Old) – The LGA is giving you something EXTRA, so the
gov’t can most certainly take it away

Hate Speech
o CAN regulate fighting words entirely – (ban them entirely)
o CAN’T only ban fighting words when they express a certain
idea – (hatred of a certain race / criticism of gov’t)

Posadas
o Rehnquist says it’s fine for Puerto Rico to regulate advertising
of gambling since they could regulate gambling entirely in the
first place – (“Vice Exception”)
o (Vice Exception overruled in Coors / 44 Liquormart)
M.Glick – First Amendment – Fried – Fall 2007

162 of 172
Coors / 44 Liquormart
o CAN limit the amount of alcohol in the beer
o CAN’T limit the advertising

Rehnquist Dissent in Grendel’s Den
o Gov’t has the power to ban liquor altogether, so of course we
can regulate liquor license by whatever means we want
M.Glick – First Amendment – Fried – Fall 2007
163 of 172
Emphasis on VALUES

Meiklejohn/Sunstein
o Free Speech should be harnessed such that it makes a better
Democracy  Democracy is good because it ensures equality,
mutuality, and a multicultural society

Keegstra (CAN) – equality / mutual respect / multiculturalism

Harper (9th Cir.) – democracy/tolerance/equity

Turner (Breyer concurrence) – there is a value in free public dbate and
providing a variety of views
o 1A values on both sides  “variety of views” supersedes cable
operators’ 1A right to editorial control

Post: No prior privileged values

Prior Privileged Values would seem to indicate Content- or
Viewpoint-specificity
M.Glick – First Amendment – Fried – Fall 2007
164 of 172
Conduct/Expression Distinction

Can’t punish conduct because of its expressive aspect
o Court doesn’t trust legislature to properly monitor the actspeech distinction – (worried they’re targeting speech under the
guise of regulating action)
Regulating the ACT
Regulating the EXPRESSION
O’Brien
Recognizes that
expression/communication require
action, so try to pry action and
communication apart

If you’re regulating the action 
Religion
Ee give freedom of expression more
OK – (regulation must be
protection than free exercise  religion can
unrelated to the communicative
be beaten by LGA, but expression cannot
impact)
unless O’Brien

If you’re regulating the
Rationale:
communication  NO – (Is the
The external effects of religion are more
activity intended to convey a
serious  exercise is not just expression
message?)
(where you could just avert your eyes/ears), it
o BUT at some point we can
is CONDUCT
still bar the conduct even
if he intended to express
an idea – (person could
Barnes
Regulation OK because it seems like we’re
claim that his conduct
regulating the ACT  falls on the other side
should be allowed because
of O’Brien
he was “expressing an
idea” but the court draws
lines)
Commerical Speech
We’re comfortable giving less protection to
commercial speech because it’s aimed at a
course of conduct
Commercial association cases
NO  this is part of a valid regulatory
scheme
Flag-Burning
Can’t ban the ACT of flag-burning
because it has expressive aspect
Hate Speech – (WI v. Mitchell)
OK because we think the regulation concerns
stuff on the conduct side – (the action is
more dangerous because it has certain
characteristics)
Synagogue Hypo: OK to ban “defacing a
place of worship”
Hate Speech – (RAV)
Concerned with penalizing action
BECAUSE it involved expression
Synagogue Hypo: NOT OK to ban
“defacing a place of worship because of
hatred or contempt”
M.Glick – First Amendment – Fried – Fall 2007
Regulating the ACT
Rumsfeld v. FAIR
Solomon act OK because it’s content-neutral
regulation of ACTION
FDA Cases – (Thompson / Henney)
Try to argue that they’re keeping people
ignorant as part of a regulatory context

Paradox of why we allow SEC to
regulate what companies must
disclose or why FDA can mandate
drug companies to label
Turner
Court rules this is not compelled speech, but
rather a regulation of action that is OK
because it’s content-neutral – (Kennedy says
O’Brien is inapplicable because it relates to
the suppression and not promotion of speech
and distinguishes Tornillo by saying this is
action, not speech)
CF disagrees:

The “action” in question here was
SPEECH

NOT content-neutral because it’s
propping up public television which
is an inherent commentary on the
value of such speech
Campaign Finance Laws
We think we can regulate contributions
because they’re more akin to conduct than
speech
Problem: We limit contributions because of
the message they send – (to candidate)
Lawyer Advertising
OK to regulate because it’s commerce/action
165 of 172
Regulating the EXPRESSION
Ignorance Cases
We think this is regulating ideas, not
merely regulating the businesses and
marketplace
United Foods
Struck down because the association is
solely for the purpose of speech – (the
only thing they do
M.Glick – First Amendment – Fried – Fall 2007
166 of 172
Public Forum Checklist
1. Is this a traditional public forum (streets/parks)? Hague  time in
memorial – (try to make some connection to street/park)
2. Is this a place that belongs to me (non-gov’t venue  home/office/rented
auditorium)?
3. Has this been designated a public forum?
o No “magic words”
o Might look to function – (Martin v. Struthers)
o (Make the undesignated public forum argument)
4. Was the designation limited to certain subjects or persons?
o Lamb’s Chapel / Widmar / Rosenberger limited to students
5. Is this a limited public forum?
o (Gov’t can’t control viewpoint even if limited)
6. Is this one of those weird “non-public forums” where you can’t use your
free speech rights to tell the gov’t what to do? – (regulation must be
reasonable and unrelated to viewpoint)
7. Is this a subsidy case where gov’t CAN have a viewpoint?
o Finlay / Rust / Forbes
8. Is there a Freedom of the Press argument that can be made? (Richmond
Newspapers – courtroom as a sort of traditional PF)
9. Think of “metaphysical” public forum (like ballot in Anderson).
10.What kind of regulation is the gov’t seeking?
o TPM only
o TPM + Topics (but not concerned with viewpoint on those
topics)
o TPM + Topics + Viewpoint
M.Glick – First Amendment – Fried – Fall 2007
167 of 172
Does your group have a message?

YES
o Dale
o Hurley
o Amos – (and we won’t begin inquiring because that’s an
Establishment Clause problem)

NO
o Jaycees
o Rotary

Who gets to decide?
o CF: once you’ve determined you want to have an expressive
association with someone, it should be up to YOU to decide
what that message wants
o Rehnquist (Majority in Dale): give deference to an
association’s assertions regarding the nature of its expression
and what would impair that expression
o Stevens (Dissent in Dale)  I do (The court should be able to
tell)
o Maybe we don’t want gov’t looking into the religious message
because that’s excessive entanglement (Brennan in Amos)
o Rotary Club: Court will make a careful inquiry into the
objective characteristics of the particular relationships in
question
o Waters v. Churchill – (the EMPLOYER gets to decide whether
the speech concerns a matter of private concern – which would
be within his managerial interest – or public concern – which
would be protected. He must reasonably believe it’s a matter of
private concern)
M.Glick – First Amendment – Fried – Fall 2007
168 of 172
“Don’t want to make you choose” Cases

Barnette – (Pledge)

Lee v. Weisman – (prayer at graduation)

Wooley v. Maynard – (“Live Free or Die”) – (reqs affirmative step)

Tornillo – (don’t want to make you choose between speaking your
mind and being forced to allow a reply vs. not speak at all)
THINK OF FREEDOM OF THE MIND and PERSONALITY
M.Glick – First Amendment – Fried – Fall 2007
169 of 172
Concern about chilling speech

Vague statutes – (not sure where we stand)

Overbroad statutes where we’re not concerned about whether we fit in

Tornillo – (forced right of reply might force me to not speak in the
first place)
o BUT then we have Red Lion  maybe there’s some rationale
for when we would make you give a right of reply (here:
scarcity of airwaves)

McIntyre – (no anonymous pamphleteering)
o BUT then we have BCRA §311 (“I’m Hillary Clinton and I…”)

Branzburg – (want privilege to deny subpoena because if I have to
disclose my informant, it will chill what comes out of my mouth)

Zurcher Dissent – (no worth of my right to publish if gov’t can
uncover my confidential informant; chills journalism because I won’t
publish)

Defamation: Concern about harsh libel laws potentially chilling
criticism of gov’t  so we make the P prove the “substantial falsity”
and that the defendant had reckless disregard/intentional falsehood
(NY Times)

PG&E  at the very least, it forces you to ALTER your speech

Freedom of Association  NAACP v. Alabama – (if we know our
membership lists are going to be made public, then we might not
associate in the 1st place)

(Maybe make some “public forum” argument about how gov’t will
not “designate” some spaces if it knows it must then allow everything
in)
M.Glick – First Amendment – Fried – Fall 2007
170 of 172
Internet

Importance of Turner  signals increasing willingness to regulate
technology – could lead to more regulation of the internet

Reno – (Internet not as invasive as Broadcasting  “pull”)

Number of valid alternatives – (filtering software + locks)

Remember that we’re looking for STATE ACTION

Probably subject to LGA (antitrust)
M.Glick – First Amendment – Fried – Fall 2007
171 of 172
RANDOM

Could we argue that this person is like a gov’t contractor?

Could we argue that this is some sort of subsidy?

Could we argue this is a public forum?

Could we argue there is a gov’t interest in management?

Is there a scarcity argument? (Red Lion and maybe subsidies 
gov’t allocating scarce resource, so can force stuff that you couldn’t in
other areas)
o BUT remember that parks/streets are scarce and we only let the
gov’t do TPM
o (Think of scarcity in the other regard too  scarcity of people
who could possibly afford this sort of speech)

Is there a secondary effects argument?

Is there a captive audience that we want to protect?

Can you set up a shadow organization to avoid the reach of these
laws? (Rust, Soft Money limits and PACs, Corporations forming
PACs to avoid Tillman Act)

Is this legal opinion trying to constitutionalize something?
o FOIA – (Richmond Newspapers)
o Civil Service Reform – (Patronage cases)
o Branzburg – (shield laws)

Is there a history argument? (“Time in Memorial”; McIntyre, Van
Orden and TX State Capitol)
M.Glick – First Amendment – Fried – Fall 2007
172 of 172
STANDING

Flast v. Cohen – (taxpayer suits OK in challenges to Establishment
Clause)

Overbreadth – (exception to the standing rule)

State Action – (remember this; distinguished from other countries)