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Article III, Sec. 2: Defines power of federal judiciary as that of deciding “cases” and “controversies”
Judiciability Limitations:
Prohibits advisory opinions
a. must be actual dispute between adverse litigants (Opinion of the Justices)
b. must be a substantial likelihood that the decision will bring about some change or have some
effect (Hayburn’s Case)
c. must not direct federal courts to reopen decided cases, rendering those opinions basically advisory
(Plaut v. Spendthrift Farms, see below)
d. Reasons for the prohibition:
i. Separation of powers: courts are given the power to decide cases, not hypothesize on
unsubstantiated factual scenarios
ii. Conservation of judicial resources
iii. Better decision-making occurs if there is a concrete factual record
Standing (who can bring a lawsuit)
Ripeness (when can the suit be brought)
Mootness (when can the suit be brought)
Political question doctrine (what the suit’s subject matter may include)
Federal courts will not decide cases on constitutional grounds if other grounds for the decision exist.
Plaut v. Spendthrift Farms, Inc.: Legislation that directs the federal courts to reopen cases on which the courts have
passed final judgment unconstitutionally violates the separation of powers doctrine because it requires the courts to
decide that the law applied to a completed case was different than the courts concluded it was.
- Violates the Art. III principle that federal courts are empowered to “decide” cases.
- Would turn decisions already issued into advisory opinions by saying that final decisions could be ignored.
Standing is the determination of whether a specific person is the proper party to bring a matter to the court for
adjudication. It is the issue of whether the litigant is entitled to have the court decide the merits of the dispute or of
particular issues.
Standing Requirements:
Constitutionally mandated; Congress cannot suspend
Injury. Plaintiff must allege he has suffered or imminently will suffer a direct (not hypothetical or
conjectural), personal injury.
a. π illegally put into chokehold by LAPD officers had standing to sue them individually for
damages (or the City) but did not have standing to sue City for an injunction absent a sufficient
likelihood that he would again be wronged in a similar way. City of L.A. v. Lyons. Introduces
theory of bifurcated standing, the idea that π may have standing for damages but not for an
b. πs challenging the constitutionality of a state voting apportionment scheme did not have standing
because they did not live in the district where the violation allegedly occurred. U.S. v. Hays.
c. πs who challenged a Federal Elections Commission ruling that American Israel Political Action
Committee was not an election committee had standing based on claim they were denied
information that election committees were statutorily required to reveal. FEC v. Akins.
Causation. Injury must be fairly traceable to Δ’s conduct such that…
Redressibility. …a favorable federal court decision is likely to create a remedy for the injury.
a. π mother who alleged injury for not receiving child support did not have standing to sue for
enforcement of a state “dead-beat dad” statute because it was not likely that jailing the father
would remedy π’s injury. Linda R. v. Richard D.
b. πs who alleged injury from lack of low-income housing did not have standing to challenge
restrictive zoning regulations because it was not likely that absence of regulations would cause
contractors to build low-income housing. Warth v. Seldon.
Indigent πs alleging injury from unavailability of health care procedures from hospital did not
have standing to challenge the IRS’s revenue ruling on the hospital because it was “purely
speculative” whether that ruling was responsible for the denial of medical services. Simon v.
Eastern Kentucky Welfare Rights Org.
πs opposing construction of nuclear facility had standing to challenge a statute limiting liability for
nuclear accidents although no accident had occured because but for the statute, the nuclear plant
would not have been built. Duke Power Co. v. Carolina Environmental Study Group.
Prudential; Congress may override (Policy reasons underlie these two)
Personal right. Party generally may assert only his own rights and cannot raise claims of a 3d party not
before the court.
a. Person may sue to protect the rights of a third party when (1) relationship between parties is such
that the person suing may advocate effectively for the right (i.e., the interests of the parties
sufficiently close) and (2) there are genuine obstacles to the 3d party asserting her rights.
Singleton v. Wulff.
b. White person who was party to a restrictive covenant had standing to bring suit alleging
discrimination on behalf of blacks who were not (and could not become) parties to the covenant.
Barrows v. Jackson.
c. Bartender had standing to challenge law establishing different legal drinking ages for female and
male customers on behalf of the male potential customers. Craig v. Boren.
d. Mother of a death-row inmate did not have standing to petition for a stay of execution on behalf of
her son who knowingly waived right to appeal. Gilmore v. Utah.
Generalized Grievances Prohibited. “Taxpayer Suits.” Generalized grievances are prohibited (those
grievances shared with everyone else).
a. The fact that many—even thousands—of other people share your injury does not make it a
“generalized grievance.” If the only basis for your standing is that as a citizen/voter the
government isn’t complying with the law, or as a taxpayer the government is taxing/spending
contrary to the constitution, then you have a generalized grievance and it is prohibited.
b. Congress cannot pass a general override of Article III by simply creating a right for anyone
(absent particularized injury) to sue. Federal Election Commission v. Akins. Congress may create
a right, the violation of which results in standing for suit.
c. Absent direct injury, taxpayer status does not confer standing on an individual to challenge the
constitutionality of federal government actions. U.S. v. Richardson.
d. Taxpayer status confers standing to challenge Congressional authorization of expenditures that
violate separation of church and state. Flast v. Cohen.
e. Taxpayer status does not confer standing to challenge the constitutionality of a donation of
property authorized under Congress’ “Property Power.” Valley Forge Christian College v.
Americans United for Separation of Church & State, Inc., et. al.
Allen v. Wright: Standing requires a plaintiff to allege a personal injury fairly traceable to the defendant’s allegedly
unlawful conduct and likely to be redressed by the requested relief. In Allen, the Court refused standing to parents
of minority children attending public school districts that are under a duty to desegregate (or are likely to fall under
such duty) who wished to challenge IRS regulations for continuing to permit tax-exempt status to private schools
that discriminated against racial minorities.
- the asserted right to have the government act in accordance with law is not sufficient, standing alone, to confer
federal jurisdiction
o π alleged that their ability to attend integrated public schools was harmed
o π also alleged stigmatic injury that Government is assisting race discrimination by giving the tax
exempt status. Why does the court not recognize this as a valid harm? If the basis for the lawsuit
is simply “The government is violating the law and that upsets me” is not enough; then everyone
in the world could sue and it would bog down the court resources.
- stigmatizing injury accords a basis for standing only to persons who are personally denied treatment by the
discriminatory conduct
- no direct link between the actor and the harm: harm was caused by a 3rd party and the π had no standing.
o The white parents sending their kids to a private school is the result of their own actions (they’re
the 3d party)
o “Posner-ian” argument: A favorable to the π ruling would cause the price of private schools
would go up, which would then encourage more white parents to send their students to public
Brennen’s Dissent: The children’s denial of an opportunity to receive a desegregated education satisfies the
standing requirement
o The π was able to link the benefiting schools to the alleged IRS practice and should have passed
the standing test
Stevens & Blackmun Dissent: Purpose of a standing inquiry is to measure the π’s stake in a case’s outcome, not
whether the court has the authority to provide it with the exact remedy it seeks
Lujan v. Defenders of Wildlife: Congressional statutes cannot confer standing to plaintiffs who suffered no actual
or imminent injury in fact. In Lujan, the court held that the Constitution does not authorize Congress to pass
legislation creating “citizen suits” that confer standing on citizens who would not otherwise be able to allege an
injury in fact.
- Separation of Powers: Congress may not convert the undifferentiated public interest in an Executive officer’s
compliance with a law into an individual right to sue. To do so would transfer to the courts the President’s
constitutional duty to “take Care that the Laws be faithfully executed.”
- Burden of Proof. The three standing elements are not mere pleading requirements but are indispensable
elements of π’s case which must be proven.
- “Injury in fact” test requires more than an injury to a cognizable interest. It requires that π be himself among
the injured. [p. 42, III(A)]
o Neither “past exposure” to illegal conduct nor “some day” intentions without concrete future plans
are sufficient to support “actual or imminent injury”
o “It goes beyond the limit, however, and into pure speculation and fantasy, to say that anyone who
observes or works with an endangered species, anywhere in the world, is appreciably harmed by a
single project affecting some portion of that species with which he has no more specific
connection.” [p. 43]
- Redressability. Injunction unlikely to stop the projects endangering certain species because US Aid to the
projects is relatively small portion of their funding. Also, the funding agencies may or may not even be bound
by the Secretary (the Δ)’s regulation.
- Blackmun’s Dissent: πs raise genuine issues of material fact regarding injury and redressability. Also, Court’s
rejection of “procedural inquiries” is vague and overbroad.
Prudential Standing Requirements
The Prohibition of Third-Party Standing
Singleton v. Wulff: Person may sue to protect the rights of a third party when (1) relationship between parties is
such that the person suing may advocate effectively for the right (i.e., the interests of the parties sufficiently close)
and (2) there are genuine obstacles to the 3d party asserting her rights. In Singleton, two Missouri doctors who
performed abortions challenged a state statute that allowed benefits to indigent women seeking abortions only when
the procedure was “medically indicated.”
- Physicians alleged a proper “injury in fact”: They performed abortions for which the state refused to pay them
- Relationship between physicians & patients is proper to allow standing:
o Sufficiently close relationship to make doctors effective advocates of rights of women patients,
who could not exercise right to abortion without the doctor, and doctor cannot acquiesce without
o Genuine obstacles exist: women may not bring the matter to court because of privacy issues, and
case becomes “moot” once pregnancy has advanced beyond point where abortion is permitted
U.S. v. Richardson: Taxpayer status is not sufficient to confer standing to challenge the constitutionality of federal
action unless taxpayer alleges direct injury from the practice and not generalized grievances common to all members
of the public. In Richardson, π sued to compel the release of information about CIA expenditures under Art. I § 59
Clause 7 (“a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published
from time to time”), claiming that as a voter he needed that info to understand government actions.
- Frothingham = broad rule against taxpayer standing. π challenged a law as violative of 5th Amend. because it
caused her income taxes to increase. Court said the alleged impact to π was small, remote, fluctuating and
uncertain, so no standing.
- Flast = narrow exception (see below)
- “In a very real sense, the absence of any particular individual or class to litigate these claims gives support to
the argument that the subject matter is committed to the surveillance of Congress, and ultimately to the political
process.” (p. 59, bottom paragraph)
Richardson differs from Flast because Richardson’s statute is regulatory (not made pursuant to taxing &
spending power) and the Richardson funds not alleged to be allocated contrary to constitutional limit on taxing
& spending power.
Court compares Richardson to Ex Parte Levitt, in which π showed genuine constitutional violation but denied
standing for lack of direct impact unique to π.
Stewart’s Dissent: Richardson distinguished from both Flast and Frothingham because in F&F, πs sought to
strike down allegedly unconstitutional laws, whereas Richardson claimed the government owed him a duty.
Compares the case to Richardson suing someone who owed him money, where he would clearly have standing.
Flast v. Cohen: In ruling on standing, it is both appropriate and necessary to look to the substantive issues to
determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated to
assure that the π is a proper and appropriate party to invoke judicial power. Taxpayer status is sufficient to confer
standing on an individual to bring suit in federal court to challenge the constitutionality of federal spending in
violation of the First Amendment Free Exercise & Establishment clauses. In Flast, πs challenged the funding of and
expenditures for academic subjects in religious schools.
- Taxpayers were found to have sufficient “personal stake” in the case to confer standing.
- Two-part Test:
1. Taxpayer must be challenging an action taken by Congress under its Art. I § 8 taxing & spending power
2. Taxpayer must allege that the challenged expenditures violate specific constitutional limits on that
governmental power.
- Harlan’s Dissent: Neither prong of the 2-part test actually measures an individual’s interest in a case.
Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., et. al.: To have
standing regarding a constitutional violation, πs must allege a personal injury suffered as a consequence of the
constitutional error. Taxpayer status does not confer standing to challenge constitutionality of actions taken
pursuant to Congress’ power over federal property. In Valley Forge, the Secretary of Health, Education & Welfare
(HEW) authorized transfer of 77 acres of property to Valley Forge Christian College for educational use. πs claimed
such transfer violated the Establishment Clause by depriving taxpayers of the fair and constitutional use of their
- The only federal taxpayer action allowable must be under federal enactments through Congress’s spending
provision. Flast involved a transfer of funds under the spending power whereas Valley Forge involved only the
transfer of property under the property power.
o Mere transfers of property are insufficient to give standing
- Municipal taxpayers have standing for spending against municipal governments even if it is not under the
establishment clause
- State taxpayers = federal taxpayers; standing for taxpayers must be predicated on the establishment clause
- “Standing is not measured by the intensity of a ’s interest or the fervor of his advocacy”
- Brennan Dissent: Court used standing to avoid deciding the case. Because the federal government was giving
tax revenues to a church in violation of the establishment clause, the taxpayers were harmed as beneficiaries of
the constitutional prohibition on aid to religion
Ripeness is the determination of when a case is appropriate for federal judicial review; usually used in the context of
whether a federal court can grant preenforcement review of an issue.
- Absent state prosecution, the existence of a statute does not make a case challenging the statute’s
constitutionality ripe for federal court review. Poe v. Ullman.
- A case is “ripe” when it involves legal issues appropriate for the court to decide and the parties would suffer a
hardship if the court declined to hear the case. Abbot Laboratories v. Gardner.
- Speculative or hypothetical threats are not sufficient to render an issue ripe.
o Case seeking a declaratory judgment that law requiring federal employees to refrain from certain political
activities was not ripe because the activities were only speculative. United Public Workers v. Mitchell.
o Case was not ripe where alien residents sought assurances that they would be allowed to return to the US
after taking seasonal jobs in Alaska (prior to statehood) because changes to immigration law were
hypothetical. International Longshoremen’s & Warehousemen’s Union Local 37 v. Boyd.
- Ripeness exists where violations of a statute are inevitable.
o Case was ripe where railroads challenged future conveyance of their property to Conrail because operation
of the statute against the railroads was inevitable. Regional Rail Reorganization Act Cases.
o Case was ripe where boat owners brought a pre-enforcement challenge to a law barring sewage discharge
into lakes because boats would require lengthy refits to their sewage systems in anticipation of the law.
Lake Carriers Assoc. v. Macmullan.
Poe v. Ullman: The declaratory judgment of a state court upholding a statute on the books does not make the issue
of that statute’s constitutionality ripe for federal court review absent state prosecution (or likelihood thereof). In
Poe, patients seeking contraception from their doctor and the doctor seeking to give it challenged a CT statute
prohibiting use or distribution of contraceptives.
- In 80 years, only one criminal prosecution occurred. Therefore, prosecution is unlikely.
- Douglas’ Dissent: Majority decision gives πs the choice to violate the law and either wait to be caught to
challenge the statute or hope they don’t get caught, and that isn’t fair.
Abbot Laboratories v. Gardner: A case is ripe for federal court resolution when (1) the issues presented are
appropriate for a judicial decision (is it a pure legal issue, for which we have a concrete record and do not need
further facts) and (2) the parties would face hardship if the court declined to hear the case. In Abbot, drug
companies challenged Congressional legislation to print the “established name” of the drugs on their labels in a
specific font size and type.
- The huge financial burden for the companies is the “hardship” imposed if the court didn’t review the issue.
- The high costs and impacts that would arise if the court delayed hearing the case outweighed the risks of a
premature decision.
Mootness examines whether there is a live controversy (that is, an actual controversy between adverse litigants) at
all stages of federal court litigation.
Three Exceptions to the Mootness Doctrine:
1. Wrongs capable of repetition but evading review [by named π only]
a. Elections: Case in which π challenged state’s petition requirement was not mooted by passing of election
day because the case was likely to be repeatable but avoid review. Moore v. Ogilvie.
b. Pregnancy: Case in which π challenged state law outlawing abortion was not mooted by end of π’s
pregnancy because case was likely to be repeatable but avoid review because of the short duration of
pregnancy. Roe v. Wade.
c. (Moot) Admission to School: Law student challenging affirmative action policy of law school was moot
because student was allowed to attend and graduate; student’s personal situation not repeatable. Defunis v.
2. Voluntary cessation
a. To moot π’s case by claim of voluntary cessation, Δ has “heavy burden” of showing that it is “absolutely
clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth,
Inc. v. Laidlaw Environmental Services. By contrast, a π seeking to show ripeness must show that Δ’s
allegedly wrongful behavior is likely to occur or continue, rendering injury impending.
3. Class action suits
a. Appeal of trial court’s denial of class certification does not become moot because the named party’s case
becomes moot. U.S. Parole Commission v. Geraghty.
Friends of the Earth, Inc. v. Laidlaw Environmental Services: Δ’s voluntary cessation of actions that are the subject
of a Complaint does not make the lawsuit moot unless Δ proves there is no reasonable chance that he can resume
those actions. In Friends, Δ argued that its compliance with national pollution standards and its closing of an
offending plant mooted a citizen suit that alleged violations of the Clean Water Act.
- Δ kept its National Pollutant Discharge Elimination System license, indicating that the violations could occur
again—it certainly was far from clear that there was no chance they could resume!
US Parole Commission v. Geraghty: Appeal of a lower court’s denial of class certification does not become moot
due to the mootness of the named π’s case. In Geraghty, federal prisoners appealed a Dist. Court’s denial of their
class certification (for a suit challenging federal parole release guidelines) when Geraghty, the named π, was
released from prison.
- The dispute remains live between members of the potential class and the Δ even if the named π’s case is moot
- “Personal Stake” still exists: The named π can still strongly advocate for reversal of class certification denial
even if his case becomes moot.
The Political Question Doctrine
The political question doctrine refers to allegations of constitutional violations that federal courts will not adjudicate
because they are left to the political branches of government to interpret and enforce.
Political question cases are nonjusticiable when:
1) constitutional text commits the issue to another branch of government, or
a) impeachment
2) there is a lack of a judicially manageable standard for adjudication
a) Guaranty Clause: no clear standards to determine what constitutes a “republican form of
government” (Malapportionment cases)
3) The rest of the elements of a PQD as described in Baker is avoiding an excessive conflict with the
coordinate branches.
Arguments For and Against PQD:
- Critics of the PQD state that the Constitution is meant to insulate matters from the political process, so the
courts should not leave the constitutional provisions to the elected government branches for enforcement.
- Supporters of the PQD state that it minimizes judicial intrusion into the operations of the other branches of
government that may have superior expertise in particular areas.
Illustrative Cases:
- Claims that state apportionment violates the guaranty clause are nonjusticiable “political questions,” but claims
based on violation of equal protection are justiciable. Baker v. Carr.
- Political question doctrine does not bar the Court from deciding whether to seat a member-elect. Powell v.
- In general, the federal courts will not decide foreign policy issues because they are political questions given to
the President’s discretion under the Constitution.
- Whether the Senate is authorized to approve the decisions of the President in the termination of treaties is a
political question that the courts will not decide. Goldwater v. Carter.
- Federal courts are not authorized to review impeachments, which the Constitution explicitly confers to
Congress. Nixon v. U.S.
What is a Political Question? The Issue of Malapportionment
Baker v. Carr: The Guaranty Clause may not be used as a source of a constitutional standard for invalidating state
action, but an equal protection claim may be so used where it does not implicate a political question. Where the
question before the court is the consistency of state action with the federal constitution, there is no political question
problem because there is no coequal branch of government with the court to decide the issue. In Baker, the Court
struck down a Tennessee reapportionment plan because it violated the equal protection clause.
- the Court rarely hears cases under the Guaranty Clause; here, the Court addressed the reapportionment
problem under EQP
- ex: In Davis, the Court addressed a Republican reapportionment plan in IN as an EQP issue, not a political
question, but the Davis dissent dismissed the case as a political question.
- Frankfurter’s Dissent: Just because the parties choose to prosecute their claim under the EQP cl. rather than the
Guaranty Clause, does not make the issue justiciable. Questions concerning the form a government chooses to
take are political questions.
- Nixon is one of the few cases dismissed for dealing with a political question
Tests for Identifying a “Political Question” (as set forth in Baker):
Constitutionally assigned duty or power to a branch of government
Lack of judicially manageable standards for resolving the question
Impossibility of a court’s deciding the issue without an initial policy determination of a kind clearly for
non-judicial discretion
Impossibility of a court’s undertaking independent resolution without expressing a lack of respect to
other branches
Unusual need for adherence to a political decision already made
Potential for embarrassment from various pronouncements on a single issue by different departments
of government
Vieth: Partisan gerrymandering is a nonjusticiable issue. This overturns the prior decision in Davis, which held that
such gerrymandering was justiciable.
- The problem the Vieth court identified was that the Davis decision did not give clear factors for adjudicating the
issue. There was no majority standard defined, and in the 18 years between Davis and Vieth the lower courts
had also been unable to agree upon a standard as to when partisan gerrymandering was “so bad” as to be
Three Areas Where PQD Applied:
Challenges to restrictions on congressional membership (PQD rejected)
Challenges to President’s conduct of foreign policy (PQD applied)
Challenges to impeachment process (PQD applied)
The Political Question Doctrine Applied: Congressional Self-Governance
Powell v. McCormack: PQD does not bar federal courts from reviewing Congress’ powers to determine its
membership when the Constitutional text does not specifically commit the issue in the case to Congressional
resolution. In Powell, the 90th Congress voted not to seat member-elect Powell due to reports of his giving illegal
payments to his wife and producing deceptive expense reports.
- Brennan states in the opinion that determining whether the Constitutional text actually commits the issue to a
coordinate branch is a “delicate exercise in Constitutional interpretation” left to the Court.
- Congress does not have total authority to determine whether to seat a member-elect.
o The framers intended that great deference be given to the will of the voters.
o If Congress had such authority, it would basically nullify the Constitution’s requirements of a twothirds vote for expulsion.
The Political Question Doctrine Applied: Foreign Policy
Goldwater v. Carter: Disputes between the executive and legislative branch concerning foreign relations is
nonjusticiable. In Goldwater, a plurality of the Court held that the question of whether the President has the power
to abrogate a treaty without Senate approval was a political question because the Constitution is silent on the issue.
- Powell’s Concurrence: Case should be dismissed because it is not ripe: neither Executive nor Legislative
branch has asserted its authority. Until those branches do so and come to an impasse, the issue is not ripe.
- Brennan’s Concurrence & Dissent: Case is not ripe. No provision of the Constitution specifically gives this
issue to another branch for decision; it is simply silent on the matter. It is not beyond judicial expertise.
The Political Question Doctrine Applied: Impeachment and Removal
Nixon v. U.S.: The judiciary may not review the Senate’s trial of an impeached official. In Nixon, the Court held
that an impeached judge’s challenge to Senate impeachment rules was not justiciable because impeachment trials
were the exclusive domain of the Senate. Judge Nixon claimed that Rule 11 violated the constitutional mandate that
the Senate (as a whole) should try the case; the committee appointed by the Senate actually tried the case and then
the entirety of the Senate voted.
- Majority relies heavily on the phrase that the Senate should have the “sole authority” to try… they focus on the
word “sole” in determining that no other branch besides the Senate should have anything to do with the trial.
- White & Blackmun’s Concurrence: Justiciability is not dependant on the responsibility of a government
branch, but whether the Constitution gives a particular branch the final authority over an issue
- Souter’s Concurrence: Political questions should be dealt with on a case-by-case basis allowing judicial review
to be used when a political branch’s actions are so far beyond the scope of its constitutional authority so as to
merit a judicial response
Inherent Presidential Power
Inherent Presidential Power refers to the issue of when, if at all, may the President act without express constitutional
or statutory authorization.
Article II of the Constitution
Article II states that the executive power shall be vested in a President of the US.
a. This differs from Article I, which gives all legislative powers herein granted to Congress
b. Thus, Congressional authority is textually limited to that which is “herein granted” by the
Constitution, but the Presidential powers are not given the same textual limitation.
View I: President has certain inherent powers other than those granted explicitly by the Constitution
a. Hamilton’s view
b. Based on Art. I’s specific limitation on Congress, and the absence of that limitation in Art. II
View II: President, like Congress, has no powers outside those specifically enumerated.
a. Madison’s view
b. First sentence of Art. II only dictated that President would be one person and gave that person a
title; no further implications were intended
- In the 1950s, the Supreme Court declared the power of the President is limited to that granted in the
Constitution, plus whatever power is authorized by Congress. Youngstown Sheet & Tube Co. v. Sawyer.
- However, a certain amount of “inherent” power still exists by necessity.
o E.g., President’s authority to fire high-level, purely executive individuals is incident to his constitutionally
granted authority to appoint those individuals (but is never expressly granted, either by Constitution, statute
or Congress).
o E.g., Presidents have historically claimed an Executive Privilege in order to keep conversations with top
advisors secret. U.S. v. Nixon. Without this Privilege, advisors may fear to speak candidly, and diplomatic
and military secrets would be jeopardized.
 The Privilege is limited; Courts balance the need to know the content of “privileged” conversations
against the secrecy concerns.
Youngstown Sheet & Tube Co. v. Sawyer: The President does not have the inherent authority to order the voluntary
surrender of private property to the government. In Youngstown, President Truman ordered the Secretary of
Commerce to take possession of the nation’s largest steel mills and keep them active. Truman did this on the eve of
a massive steelworkers’ strike to prevent a possible interruption of supplies to military troops in Korea.
- Presidential power to issue a seizure order like this must come from (1) authorization from an act of Congress
or (2) authorization from the Constitution.
- Congress specifically rejected Presidential seizure as a method of settling labor disputes in 1947.
- Does not fall under President’s military authority because steel mills are not in the “theatre of war”.
- Does not fall under President’s authority as a lawmaker; President may only recommend laws or veto them, but
he cannot make them as he did here.
- Jackson’s Concurrence: President may command armed forces, but Congress alone may raise and supply those
forces. Identifies three possibilities: (1) President acts with Congress’ approval, (2) President acts contrary to
Congress, and (3) President acts where Congress is silent. In (1) court can evaluate whether Congress’s act was
- Douglas’ Concurrence: President may act more efficiently than Congress, but the ability to act expeditiously
does not confer power upon a branch. President’s action was legislative, not executive.
- Frankfurter’s Concurrence: Congress “clearly and emphatically” withheld authority for President to seize
private property in a labor dispute.
- Vinson’s Dissent: The President has Constitutional power to meet a critical situation in the absence of express
statutory authorization, which is what he did by preventing the stoppage of steel production.
The Scope of Inherent Power: The Issue of Executive Privilege
Executive privilege refers to the ability of the President to keep secret conversations with or memoranda to or from
U.S. v. Nixon, President of the U.S.: Conversations between the President and his advisors are generally privileged,
but the privilege is not absolute. In Nixon, the President refused to turn over tapes of his recorded conversations that
had been subpoenaed to assist in the prosecution of individuals in the Watergate break-in.
- Weigh need for secrecy against the need for disclosure of the information
o Harm to the President is Small. President did not claim military or diplomatic secrecy, and it is unlikely
that advisors will be less candid for fear of their conversations being produced as evidence.
o Need for Disclosure is Great. The withholding of relevant information in a criminal trial severely
undermines the guarantee of due process and impairs the functioning of the courts.
Cheney v. U.S. District Court for D.C.: Courts must be mindful of the burdens imposed on the Executive Branch
when requiring compliance with a discovery request. The Nixon decision did not leave only the option of invoking
executive privilege to withhold items from discovery; the court still has power to modify a party’s discovery
requests when they are overbroad.
- Ginsburg & Souter’s Dissent: The Government never requested a narrowing of the discovery order, but
requested that the case be resolved with no discovery at all. Therefore, the Court shouldn’t order a narrowing
unless that is requested by the Government.
The Authority of Congress to Increase Executive Power
Can Congress enhance the powers of the President by conferring authority not contained in the Constitution?
Two Viewpoints:
Separation of powers appropriately resolved.
a. If both Congress and the President agree to shift power between themselves, then the judiciary
should not interfere.
Separation of powers constitutionally mandated.
a. Powers reserved to each branch is a constitutional separation which the judiciary must enforce.
- The Supreme Court said Congress alone must legislate; it cannot give law-making authority to the President.
Clinton v. City of New York.
Clinton, President v. City of New York: The Line Item Veto Act is unconstitutional because it, in effect, gave the
President the authority to amend already-enacted Acts of Congress by rejecting only certain pieces of the Act after
Congress passed it.
- Differs from veto power in that the LIVA gives power to act after it becomes a law, whereas veto power occurs
beforehand, and LIVA gives power to reject pieces of an Act, whereas the veto requires approval or rejection in
- Kennedy’s Concurrence: Giving the political branches the ability to reallocate their own authority puts liberty
at stake by transgressing the separation of powers.
- Breyer, O’Connor & Scalia’s Dissent: The fact that the Act closely resembles a literally unconstitutional
arrangement is beside the point. The President’s exercise of power under the LIVA is not a “repeal” or
The Constitutional Problems of the Administrative State
Administrative agencies are usually explained as “helper organizations,” needed because government has become so
large and complex that members of Congress simply cannot know everything, and require bodies of specialists who
implement and enforce the laws.
Administrative Agencies exercise all three powers of government:
(1) Legislative. They possess the authority to promulgate rules that have the force of law.
(2) Executive. They are responsible for bringing enforcement actions against those who violate the relevant federal
laws and regulations.
(3) Judicial. They employ administrative law judges who hear cases brought by agency officials against those
accused of violating the agency’s regulations.
Controlling and checking administrative agencies poses an important constitutional problem unaddressed by the
[Constitution’s] text or the framers’ intent.
The Non-Delegation Doctrine and Its Demise
One check on the administrative agencies was the non-delegation doctrine.
- Under the non-delegation doctrine, Congress cannot give an administrative agency of the President unfettered
discretion in making rules and regulations with the force and effect of law. A.L.A. Schechter Poultry Corp. v.
- Congress may use administrative agencies as a tool, but it must not abdicate complete legislative authority.
Panama Refining Co. v. Ryan.
- Congressional delegations of authority get an “intelligible principle” test. Congress must set out a general
policy, the public agency to which it applies, and must set out boundaries of authority. Mistretta v. U.S.
- Though no Court has expressly overruled the non-delegation doctrine, it has not been used to invalidate a law
since 1935. In reality, though courts still give lip service to the intelligible principle test, even delegations
without any standards are upheld.
Mistretta v. U.S.: Congress is not forbidden from delegating its legislative power to another person or entity if it
lays down an “intelligible principle” to which the person or entity is directed to conform. In Mistretta, Congress
enacted a determinate sentencing scheme for federal crimes and created the US Sentencing Commission to devise
guidelines that judges were obligated to use in sentencing.
- Test for constitutional delegation of legislation authority:
(1) Congress must announce an overarching policy for the administrative agency to follow
(2) Congress must set forth reasonably specific standards to limit the amount of discretion vested in the
- Scalia’s Dissent: The sentencing guidelines have the force of law and the government is not supposed to allow
an agency that has no purpose but to make laws.
Whitman v. American Trucking Assoc., Inc.: An administrative agency’s guidelines that the “EPA must establish
uniform national standards at a level that is requisite to protect public health…” was sufficiently specific because it
required a level that is not lower or higher than necessary to protect public health.
- “A certain degree of discretion, and thus of lawmaking inheres in most executive or judicial action.” quoting
The Legislative Veto and Its Demise
The legislative veto was another way for Congress to control administrative agencies.
- Through the legislative veto, Congress kept a “veto” power over the actions of administrative agencies.
o Congress could make the agencies report on their activities to Congress.
o Congress then reserved the right to undo or “veto” certain actions taken by an administrative agency if
Congress felt that the agency had overstepped its bounds.
- A one-house legislative veto (where a single house of Congress can vote to defeat an act of an administrative
agency) is unconstitutional because it violates the bicameralism and presentment schemes of the Constitution.
INS v. Chadha.
- Both one-house and two-house legislative vetoes have been held unconstitutional because overruling an
administrative determination is a legislative act that must be passed by both houses and then presented to the
INS v. Chadha: Legislative action is not legitimate unless there is bicameral approval and presentment to the
President. In Chadha, the House of Representatives passed a resolution overriding the Attorney General’s decision
to allow Chadha, a deportable alien, to remain in the US. The Reps did this pursuant to a statute allowing for a onehouse “veto” of administrative action.
- Powell’s Concurrence: The case should have been decided on narrower grounds: separation of powers. The
House assumed judicial functions in determining whether six aliens did not comply with statutory criteria.
There was no need to decide that the legislative veto was unconstitutional.
- White’s Dissent: The legislative veto is an important tool and has been included in many statutes (nearly 200).
Congress has not used it to increase its own powers at the expense of other branches.
Checking Administrative Power
(1) Congress can control administrative agencies through statutes directing agencies to perform certain tasks or
denying them authority in particular areas.
(2) Congress can overturn agency decisions by statute.
(3) Congress controls the budget of administrative agencies.
(4) Appointment and removal power is another check.
The Appointment Power
The President appoints and the Senate confirms principal officers, while Congress may assign appointment of
inferior officers to the President, Department Heads, or the Courts. Morrison v. Olson.
Congress may not give itself or legislative officers the power to appoint inferior officers.
Morrison v. Olson: Since the Independent Counsel is an inferior officer, a law giving judges the authority to appoint
an Independent Counsel did not violate the Constitution. In Morrison, the Independent Counsel was appointed to
investigate a high-ranking government official who claimed that the appointment was unconstitutional.
- The Constitution requires that the President exercise sole and exclusive control over appointing principal
officers, but inferior officers may be appointed by others.
- Independent counsel is inferior officer:
(1) Subject to removal by higher executive branch official
(2) Empowered by the Act to perform only certain, limited duties
(3) Office of IC is limited to the jurisdiction granted by the Special Division
(4) Office is limited in tenure: temporary and for limited purpose of accomplishing a single task
Separation of Powers and Foreign Policy
Hamdi v. Rumsfeld: A citizen-detainee held indefinitely under suspicion of being an “enemy combatant” is entitled
to due process such that he is entitled to receive notice of the factual basis for his detention and a fair opportunity to
rebut the government’s factual assertions before a neutral decisionmaker.
- “Initial captures on the battlefield need not receive the process we have discussed here; that process is due only
when the determination is made to continue to hold those who have been seized.” (p. 130)
Checks on the President
Informal mechanisms:
Pressure of public opinion
Budget process (checks by Congress)
Two formal checks on presidential power:
Civil suits and criminal proceedings
a. The president has absolute immunity from damages liability predicated on his official acts. Nixon
v. Fitzgerald.
b. Absolute immunity extends to the President’s official acts only; the President has no immunity
(not even “temporary” immunity) for acts not taken in his official capacity as President. Clinton
v. Jones.
c. No case yet addresses whether the President may be criminally prosecuted. Fear of criminal
prosecution would definitely interfere with the President’s ability to take bold action in
controversial decisions. However, the competing consideration is that nobody should be above the
a. Impeachment is constitutionally permitted if the Senate finds the President guilty of Treason,
Bribery or High Crimes and Misdemeanors.
b. The House of Representatives votes for impeachment, and the Senate tries the President.
c. A two-thirds vote of the Senate is needed for removal of a President.
d. The Constitution leaves open the question of what constitutes a High Crime and Misdemeanor.
i. The Supreme Court refuses to consider the matter on the ground that it is a nonjusticiable political question.
ii. The three impeachment efforts that have been made to date have been essentially partisan
in nature and motive and do not provide a standard for which to determine what
constitutes a High Crime and Misdemeanor.
Andrew Johnson – The House voted to impeach this Southern-born President
after the Civil War on the pretext of firing the Secretary of War in violation of
the Tenure in Office Act. The Senate was one vote short of removal. (The
Supreme Court later found the Tenure in Office Act to be an unconstitutional
limitation on the President’s removal power.)
Richard Nixon – Impeachment was being considered in the House for Nixon’s
involvement with the Watergate break-in. Nixon resigned prior to the House
voting on whether to impeach.
Bill Clinton – The House voted to impeach Clinton for lying under oath about
his extramarital sexual relationships. The Senate did not vote to remove him.
Suing and Prosecuting the President
Nixon v. Fitzgerald: The President is shielded by absolute immunity from civil damages liability for acts done in his
official capacity as President. In Nixon, a cost-management expert for the Air Force was fired after he testified in
front of Congress about cost overruns in certain military projects. President Nixon claimed that he made the firing
- “Qualified immunity” such as that granted to other executive officers is not enough; the President is unique in
the Constitutional scheme.
o Don’t want the President to be distracted. Diversion of the President’s energies by fear over getting sued
would jeopardize the effective functioning of the government.
o President is too “visible.” The visibility of the President and the fact that his decisions and acts affect so
many people would make him an “easily identifiable target for suits and civil damages.”
o Affects decisionmaking. If the President knows that his actions will leave him vulnerable to liability, he
will not act as “fearlessly” for the public good, and we don’t want that to happen.
- Absolute immunity does not place the President “above the law.”
o There are other checks on the President: (1) Impeachment, (2) Scrutiny by the press, (3) Oversight by
Congress, (4) Desire for reelection, (5) Need to maintain the prestige of office, and (6) Historical stature.
o “[A]bsolute immunity merely precludes a particular private remedy for alleged misconduct in order to
advance compelling public ends.
- White’s Dissent (with Brennan, Marshall & Blackmun): Absolute immunity should be granted for certain acts,
but not for the whole office of the Presidency; doing so sets the President “above the law” and allows him to
injure people without remedy.
Clinton v. Jones: A sitting President does not enjoy temporary immunity from all civil lawsuits based on his
unofficial acts taken prior to becoming President. In Clinton, President Clinton was accused of making
inappropriate sexual advances toward a subordinate (Jones) while Governor of Arkansas, and sought to postpone the
proceeding of a civil lawsuit until after he left office.
- Immunity is extended for official acts to encourage the President to act fearlessly for the public good.
Unofficial acts are not covered by the same rationale, and so do not enjoy the same immunity.
The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.”
Historical Background
The First Amendment was a reaction against England’s oppressive restrictions: (1) requiring government
licenses for newspapers and (2) criminalizing “seditious libel” against the king/government.
o America also enacted anti-sedition laws, though, but allowed truth to be a defense to the violation of such
The Constitutional framers’ exact intent about free expression is unclear, so courts tend to decide cases based on
policy considerations.
While the text of the Amendment says “…shall make no law…” it is accepted that this is not actually an
absolute prohibition because some restraints are needed for policy reasons (e.g., sexually harassing speech).
Why Should Freedom of Speech be a Fundamental Right?
Four Reasons:
(1) Self-Governance. **this is the most important aspect; cited the most often as supporting reason
a. Reason: Crucial in a democracy to allow candidate debates and informed voter selections.
b. Criticism: Political speech should be the only kind protected—Court refused that argument.
(2) Discovering Truth.
a. Reason: “The best test of truth is the power of the thought to get itself accepted in the competition of the
market…” (Justice Oliver Wendell Holmes)
b. Criticism: Wrong to assume all ideas enter the “marketplace of ideas” and even if they do, some may
drown out others because some have more resources than others; even if truth prevails, enormous harm can
occur in the interim.
c. The marketplace of ideas may be terribly flawed, but allowing the government to decide what is true and
right and suppress all else is much worse.
(3) Advancing Autonomy.
a. Reason: “To engage voluntarily in a speech act is to engage in self-definition of expression.” (Professor
b. Criticism: No reason why speech should be a fundamental right over and above countless other activities
that may be regarded as advancing self-fulfillment. Plus, freedom of speech may actually undermine the
autonomy and self-fulfillment of others (i.e., hate speech).
(4) Promoting Tolerance.
a. Reason: Tolerance is a desirable/essential value and protecting unpopular speech is an act of tolerance.
b. Criticism: Why should tolerance be regarded as a basic value?
The Issues in Free Expression Analysis
No prescribed order for analysis
(1) Ways of evaluating any government action restricting freedom of speech
a. content-based (strict scrutiny) vs. content-neutral (intermediate scrutiny)
Content-based = narrowly tailored to further compelling interest
Content-neutral = fair & substantial relation to an important interest
b. unduly vague or overbroad = unconstitutional
c. prior restraint = strongly disfavored
d. what government actions sufficiently burden expression so as to trigger First Amend. analysis?
(2) Types of speech unprotected or less protected
a. Unprotected allows prohibition or punishment
b. Less protected gives more latitude in regulating
c. Include inciting illegal activity, fighting words, provocation of hostile audiences, obscenity, sexually
oriented speech, defamatory speech, conduct that communicates, and commercial speech.
(3) Places available for speech
(4) Freedom of association
a. Not mentioned in the First Amend. but held to be fundamental because of its close relationship to speech
and assembly
(5) Freedom of the press
a. Extent to which First Amend. is a “shield” protecting press from government regulation
Free Speech Methodology
Governmental speech regulation is legal if (1) content neutral, (2) law is not vague or overbroad and (3) it is not a
prior restraint (ban on speaking without a government-issued license)
The Distinction Between Content-Based and Content-Neutral Laws
Importance of the Distinction
- Supreme Court caselaw holds government cannot restrict speech because it objects to its content.
- Content-based speech regulations = strict scrutiny = must be narrowly tailored to further a compelling
government interest (e.g., laws against incitement or obscenity). Turner Broadcasting System, Inc. v. FCC.
- Content-neutral laws = intermediate scrutiny = fairly and substantially related to an important government
- A federal law requiring cable TV providers to devote some channels to local, educational broadcasters is
deemed content-neutral, and thus subject to intermediate scrutiny. Turner.
A state statute prohibiting judicial candidates from making statements regarding disputed political and legal
issues is not narrowly tailored to further a compelling government interest. Republican Party of Minn. v.
Turner Broadcasting System, Inc. v. FCC: A federal law requiring cable TV providers to devote some channels to
local, educational broadcasters is a content-neutral speech regulation, and thus subject to intermediate scrutiny. In
Turner, cable TV programmers challenged a federal statute requiring them to give channels to local TV
broadcasters, contending it regulates them differently based on their programs’ content.
- Must-carry provisions are content neutral.
o Interfere with cable operators’ editorial discretion by forcing them to carry local broadcasters, but the
extent of that interference is not dependent upon the content of the cable operators’ programming.
o Reduce the number of channels for which they can compete, but that burden extends to all cable
programmers regardless of the programming they offer, so it is not based on content.
- O’Connor’s Dissent (with Scalia, Ginsburg and Thomas): Preferences for diversity of viewpoints, localism,
educational programming and news and public affairs are content-based, and even though the motive behind the
must-carry provisions is laudable, it must still be met with strict scrutiny.
Determining Whether Laws are Content-Based
To qualify as content-neutral, regulations must be both:
(1) Subject-matter neutral
- Must not disallow discussion of certain topics
- Whenever the government attempts to regulate speech in public places it must be subject-matter neutral.
Simon & Schuster, Inc. v. Members of the NY St. Crime Victims Bd.
(2) Viewpoint neutral
- Must not apply only to supporters or only to opponents of a certain viewpoint
- The courts treats laws that are viewpoint-neutral but content-based a little less rigorously sometimes.
- If the regulation fails either prong, it is deemed content-based, and thus strictly scrutinized. Boos v. Barry.
Boos v. Barry: A federal statute prohibiting anti-government signs near foreign embassies is a content-based speech
regulation, and thus subject to strict scrutiny. In Boos, picketers challenged a statute which prohibited insulting antigovernment signs in front of foreign embassies.
- The signs may be “viewpoint-neutral” in the sense that the permissible message on the picket sign will be
determined only by the foreign government policies, but it is still content based.
- “A ‘dignity’ standard is so inherently subjective that it would be inconsistent with ‘our longstanding refusal to
[punish speech] because the speech in question may have an adverse emotional impact on the audience.’” (page
Simon & Schuster, Inc. v. Members of the NY St. Crime Victims Bd.: A state law requiring proceeds from
criminals’ memoirs to be paid to their victims is not narrowly-tailored enough to be constitutional. In Simon &
Schuster, a publisher challenged New York’s “Son of Sam” law, which gives proceeds from criminals’ memoirs to
their victims.
- The law is content-based because it places a financial burden or disincentive only on those works with specific,
criminal content.
- While the state has a compelling interest in ensuring victims are compensated and that criminals do not profit
from their crimes, the law is not narrowly tailored to that purpose as strict scrutiny requires.
o It applies to works on all subjects—encompasses even tangential thoughts about the author’s crimes
o It applies to too many people—not just those convicted, but to any person who admits to having committed
a crime, which would encompass Malcom X, St. Augustine, Martin Luther King, Jr.
Republican Party of Minn. v. White: A state statute prohibiting candidates for judicial election from announcing
their views on disputed legal and political issues violates the First Amendment.
Problems in Applying the Distinction between Content-Based and Content-Neutral Laws
(1) Categories of [Presumptively] Unprotected Speech
a. Obscenity
b. Libel
c. Incitement to lawless action
d. Child pornography
(2) Law is aimed at secondary effects of speech
a. Zoning ordinances restricting pornographic business’ placement far from schools/residences must be
analyzed as content-neutral, “time, place and manner” regulations, because they are aimed at
pornography’s “secondary effects” rather than at its content. City of Renton v. Playtime Theatres, Inc.
b. Use Intermediate Scrutiny: government still has to show it has some substantial interest
(3) Government-subsidized speech
a. The Government may fund art based on its assessment of its artistic content, as long as it does not (1) abuse
its discretion by penalizing disfavored viewpoints or (2) violate other constitutional rights. National
Endowment for the Arts v. Finley.
City of Renton v. Playtime Theatres, Inc.: Zoning ordinances designed to combat the unreasonable secondary
effects of adult industries are to be reviewed under the standards applicable to content-neutral “time, manner, and
place” restrictions. In Renton, the Court upheld a zoning restriction banning all adult theaters within 1,000 feet of
churches, schools, and parks.
- Secondary effects cannot be used where regulations are aimed at the direct emotive impact of speech
o Secondary effects regulations have only been effective with sexually explicit speech
o Even if a law is aimed at speech’s secondary effects, it must still meet the other elements of time, manner,
place, restrictions
o So long as the government’s predominant interest pertains the secondary effects of sexual speech, the 1st
prong of the time, manner, place test is satisfied
- Brennan’s Dissent: Merely because a statute is aimed at curtailing the secondary effects of speech does not
make it content neutral. City did not prove that such undesirable secondary effects even existed, and they failed
to show that they could not be addressed by less-restrictive means.
National Endowment for the Arts v. Finley: In providing subsidies, the government may not aim at the suppression
of coercive ideas, but may allocate funding according to a neutral, subjective criteria. In Finley, the Court upheld
stringent standards on funding for recipients of NEA endowments.
- Government may fund art based on its assessment of artistic content, as long as it does not (a) abuse its
discretion by penalizing disfavored viewpoints, or (b) violate other constitutional rights.
- Whenever the Government awards grants based on merit, it must make judgments based on content.
- Souter’s Dissent: In determining whether art has “merit,” the government is judging on the offensiveness or
unacceptableness of the content.
Vagueness and Overbreadth
Vagueness: A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what
is permitted. Unduly vague laws violate due process regardless of whether speech is regulated.
- For example, a criminal statute which forbids people from “conducting themselves in a manner annoying to”
passers-by is void for vagueness because no standard of conduct is specified, and because it is broad enough to
encompass many constitutionally protected forms of speech. Coates v. Cincinnati.
- Laws may be facially challenged for vagueness even by those whose speech would otherwise not be protected
by the First Amendment.
Overbreadth: A law is unconstitutionally overbroad if
(1) It reaches substantially more speech than the Constitution allows to be regulated.
a. As-Applied Exception: If the law is over-restrictive, but unlikely to applied often, then courts will not
declare it wholly unconstitutional, but will evaluate its legality as applied on a case-by-case basis.
b. Commercial Speech Exception: Overbreadth is inapplicable to commercial speech.
c. Limiting Construction Exception: Courts faced with overbreadth challenges may read a statute narrowly to
avoid declaring it unconstitutional.
(2) A person to whom the law constitutionally can be applied can argue that it would be unconstitutional as applied
to others.
a. Special Standing Rule: Overbreadth suits don’t require ordinary standing; πs may challenge the law as
potentially applicable in other situations to other parties.
- For example, a statute penalizing nude dancing of all sorts was unconstitutionally overbroad because it excluded
live entertainment of many kinds that were constitutionally protected. Schad v. Borough of Mt. Ephraim.
Relationship between Vagueness and Overbreadth: They often overlap, and the same statute is often challenged as
being both vague and overbroad. However, sometimes a statute may violate one but not the other.
- For example, in Bd. of Airport Cmmrs. of LA v. Jews for Jesus a statute banning “all First Amendment
activities” at the LAX airport was declared clear, but overbroad.
Virginia v. Hicks: A trespass policy does not prohibit a substantial amount of protected speech in relation to its
many legitimate applications, and it applies to all persons who enter the area, not just those who seek to engage in
First Amendment activities.
- “Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is no specifically
addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating).”
- The state supreme court was wrong to invalidate the whole trespass policy under the “strong medicine” of the
overbreadth doctrine.
Prior Restraints
A prior restraint is a system which bans certain types of communications, in advance, usually in the form of licenses
(administrative mechanism) and court orders against speech.
- Strongly disfavored and bear a “heavy presumption” of invalidity.
- Traditionally viewed as worse than after-the-fact punishments because they are likely to be more broadly
prohibitive than case-by-case enforcement, and because they suppress speech before it occurs.
- Under the collateral bar rule, people who violate court orders are punishable even if the order is found
unconstitutional, as long as its issuance was procedurally proper. This rule is sometimes also applied to
- The court in Near v. Minn. ex rel. Olson found that prior restraints against publication are invalid unless:
(1) They protect national security during wartime, OR
(2) Restrict obscenity, OR
(3) Protect against incitement to violence, or forcible overthrow of government.
Court Orders as Prior Restraints: Court orders enjoining speech/publication are analyzed as prior restraints.
Near (court cannot order editor to refrain from publishing slanderous newspapers).
Court Orders to Protect National Security: Supreme Court caselaw suggests that, during wartime, the
government may be able to enjoin publications, but only after meeting the heavy presumption of constitutional
invalidity. New York Times Co. v. U.S. (government cannot restrain Vietnam War-era publication of stolen
government documents).
Court Orders to Protect Fair Trials: Courts sometimes enjoin pretrial coverage of cases to avoid publicity which
may sway jurors.
a. Per Nebraska Press Assoc. v. Stuart: Court orders barring pretrial publicity by the media bear a heavy
presumption of invalidity, which must be analyzed by considering:
Extent and prejudicial nature of pretrial publicity
Whether other means would mitigate that publicity’s effects
How effective such an order would be, and
The order’s precise terms
b. Court orders barring pretrial publicity by attorneys and court personnel are often upheld.
Court Orders Seizing Assets of Business Convicted of Obscenity Violations: Government seizure of a business
for criminal obscenity violations does not constitute a “prior restraint.”
Licensing as Prior Restraint: Generally, when the government requires a license/permit before making certain
communications, this is a classic “prior restraint” and thus usually impermissible. Lovell v. City of Griffin.
a. Licensing/permits are allowed only if (all three are required):
The government has an “important” reason for licensing
1. Preserving order by limiting simultaneous parades
2. Affording opportunity for proper policing by giving police advance notice of demonstrations
The law has “clear standards leaving almost no discretion to the government”:
1. Limit licensor’s discretion
2. Give express standards for deciding whether to grant the permit
The licensing system has procedural safeguards (both portions of both steps are required):
1. Prompt decision after full and fair hearing
a. First by the administrative body…
b. …Then by a court of law
2. Burden of Proof is on the censor
a. To show unprotected
b. To initiate judicial proceedings
Near v. Minn. ex rel. Olson: Prior restraints against publication are invalid unless they (a) protect national security
during wartime, (b) restrict obscenity, or (c) protect against incitement to violence or forcible overthrow of
government. In Near, a newspaper editor enjoined from publishing slanderous periodicals challenged his injunction
as unconstitutional.
- A restraint against publication will result in impermissible censorship of the kind the First Amendment was
intended to stop.
NY Times Co. v. U.S.: (“The Pentagon Papers” Case) If the government may impose prior restraints to protect
national security, its proof burden is very high. In NY Times, a newspaper which, during the Vietnam War, printed
stolen military documents was enjoined on national security grounds.
Per curiam. The government did not meet its heavy burden.
Black’s Concurrence: The First Amendment should never allow injunctions against news publication.
Douglas’s Concurrence: The First Amendment’s plain language forbids governmental restraints on the press.
Secrecy in government is fundamentally anti-democratic.
Brennan’s Concurrence: The only exception to prohibiting governmental restraint on the press is when speech
actually obstructs recruiting or reveals troop numbers/locations when the nation is at war.
Stewart’s Concurrence: The Executive should have sole power and vast discretion to wage war and conduct
international relations, and here there is no proof that publication will surely result in direct, immediate and
irreparable damage to our Nation or people.
White’s Concurrence: Some of the materials will harm the public interest and should not be published, but the U.S.
did not meet their heavy burden.
Marshall’s Concurrence: A ban against publishing military secrets may be enacted only by Congress, not by the
Executive petitioning the Judiciary for injunctions.
Burger’s Dissent: The First Amendment is not absolute, but the Court was not given enough time to hear the full
facts and competently decide the case.
Blackmun’s Dissent: Standards guiding the proper way to use prior restraints have not been developed yet.
However, the NY Times should not publish these papers.
Nebraska Press Assoc. v. Stuart: Court orders barring pretrial publicity by the media bear a heavy presumption of
invalidity, which must be analyzed by considering (1) whether the extent and prejudicial nature of the pretrial
publicity would [not could, but would] impair a fair trial, (2) whether alternative means were available to mitigate
that publicity’s effects, (3) how effective such an order would be.
Alexander v. U.S.: Government seizure of a business for criminal obscenity violations does not constitute a prior
restraint. In Alexander, a pornographer convicted of obscenity and racketeering had his entire business seized, he
appealed the seizure as a “prior restraint.”
- The statute at issue seized all assets, regardless of whether or not they were “expressive” in nature.
- There is no prohibition to future expressive conduct, only to using assets gained through illegal activity to fund
the conduct (expressive or not).
- Kennedy’s Dissent: The majority opinion chills free speech because it allows seizure of a business’ entire
assets as punishment if even one of the products is deemed obscene.
Thomas & Windy City Hemp Development Bd. v. Chi. Park Dist.: Statute was not content-based; was based in the
policy of preventing multiple uses of the same public space at the same time. There were 13 criteria on which to
base the decision whether or not to allow the use.
- In the abstract, the criteria could be rather subjective and used to suppress certain speakers
- The key is that this is a facial challenge, not an as-applied challenge.
- Procedural Safeguards: (1) Provided prompt decision by administrative body and court of law, but the burden
of proof was not on the censor.
- The court held that they would not adhere to the strict standards imposed upon licensing schemes that are
clearly content-based. The clear standards must be there, but the burdens of proof don’t have to be quite as
City of Littleton, CO. v. Z.J. Gifts: This was an “in-between case.” It was certain kinds of material, content-based,
that rendered them subject to the zoning ordinance. But the criteria for granting or denying the permit were content
- The court points out that prompt judicial access to the court is meaningless without a connected requirement for
a prompt judicial decision.
- The problem is that Freedman set forth very specific requirements for “prompt,” just a matter of days. The CO
statute didn’t require a decision within days, but the Court said that an ordinance does not have to include
specific time requirements, so long as the court doesn’t “drag its feet” on the decision.
If a judge was “dragging his feet” on a particular case, the party could challenge the law in an “as applied”
The court also points out that the ordinance is not aimed at any particular piece of material; denying one adult
shop a license does not make it impossible to gain access to pornographic material.
The court recognizes the ordinance is a prior restraint, and some mechanism for prompt judicial review is
required, but they chose not to lay out specific time restrictions.
Dissent: “Pandering” sex is not First Amendment activity, so a restriction thereon does not infringe First
Amendment speech.
Watchtower Bible & Tract Society of NY, Inc. v. Village of Straton: You had to get a permit before you could go
“door-to-door.” Rule was passed in response to worries about crime, fraud, and invasion of privacy in the home.
This is supposedly a content-neutral rule, but the analysis seemed to be stricter than “intermediate” scrutiny.
- Why was the court so determined to invalidate the ordinance? The focus was that this is a certain mode of
speech that had been historically protected as an important method of communication, especially for the people
less-able to gain access to media.
- It appears the Court was concerned because the Jehovah’s Witnesses’ religious scruples include both the
requirement to go door-to-door and yet to not use the permit applications.
- Regarding the interests behind the rule, the Court said the prevention of fraud could have brought out a rule
aimed at commercial speech (i.e., used less restrictive means). The prevention of crime was ruled out because
the Court thought criminals wouldn’t be likely to abide by the rule anyway. Privacy of the home was not
sufficient because there are also less restrictive means, e.g., posting a “no solicitation” sign.
- The court focuses on two things: (1) The historically protected method of speech, and (2) anonymity being an
important part of free speech, which was destroyed by forcing people to register and show their permit when
requested by the homeowner.
What is an Infringement of Freedom of Speech?
Infringement is a threshold question, determining whether the First Amendment applies at all. For example, refusal
to fund a particular activity is not an infringement of the right to engage in that activity. Similarly, not every
regulation affecting speech per se infringes speech.
Main Idea: A finding that a law substantially burdens or infringes speech does not mean that it is automatically
unconstitutional, but it does mean that the law has to meet heightened scrutiny.
Laws which burden speech significantly, and thus may trigger constitutional concerns, include:
Civil Liability for Speech:
a. Imposing civil liability for speech (i.e., defamation laws) must be done within the bounds of the
First Amendment. NY Times v. Sullivan.
Denial of Payment for Expression
a. Legislation which forbids payment for certain speech implicates the First Amendment. U.S. v.
Natl. Treasury Employees Union.
Compelled Speech
a. The government cannot compel silence or speech, whether verbal or symbolic, except to prevent
“clear and present” danger of crime. WV St. Bd. of Education v. Barnette.
b. The government cannot compel anonymous speakers to reveal their identities. McIntyre v. Ohio
Election Commission.
c. The government cannot compel electioneers to reveal their identity by requiring name badges or
mandatory disclosure. Buckley v. American Constitutional Law Foundation, Inc..
Unconstitutional Conditions (Withholding Benefits to Punish Speech)
a. The unconstitutional conditions doctrine says the government cannot condition a government
benefit on giving up a constitutional right.
b. The government cannot deny benefits for exercising one’s constitutional rights. Speiser v.
c. The Supreme Court applies this doctrine inconsistently. Rust v. Sullivan. (Government may fund
family planning, with the condition that recipient medical centers not recommend abortion.)
Pressure by the Government (Exerting Pressure Not to Speak)
a. The court is inconsistent in deciding whether the government can pressure individuals to refrain
from speech, without formally forbidding/punishing it.
b. Compare Bantam Books, Inc. v. Sullivan (state “morality” agency cannot suggest it will
recommend obscenity charges against booksellers who don’t ban “objectionable” books) with
Meese v. Keene (government may label certain films as “propaganda” and demand list of viewers)
U.S. v. Natl. Treasury Employees Union: Legislation which forbids payment for certain speech implicates the First
Amendment. In U.S. v. NTEU, Congress passed a law barring federal employees from being paid for
speeches/writings, and the employees challenged its constitutionality.
- Federal employees do not relinquish their First Amendment rights to comment on matters of public interest that
they would otherwise enjoy simply because they work for the Government.
- Denying payment for writings may deprive the public of valuable information.
- Rehnquist’s Dissent: The law is justified under Intermediate Scrutiny.
W.Va. St. Bd. of Educ. v. Barnette: The government cannot compel silence or speech, whether verbal or symbolic,
except to prevent “clear and present” danger of crime. In Barnette, a state’s mandatory flag salute was challenged
by Jehovah’s Witnesses.
- The whole point of the bill of rights was to establish certain things as fundamental freedoms, which places them
beyond the venue of what can be voted on—that is, even if the majority of people wanted a speech restriction
that was ruled to be unconstitutional, they could not enact such a restriction.
McIntyre v. Oh. Elections Commsn.: The government cannot compel anonymous speakers to reveal their identities.
In McIntyre, an anonymous pamphleteer challenged a law banning anonymous electioneering.
- Thomas concludes the First Amendment would have intended to protect anonymity based upon the fact that
speech that is disfavored or could bring sanctions upon the speaker, often must be produced anonymously to
allow your message to be heard. E.g., Federalist Papers being published under the pseudonym “Publius.”
- Anonymity has long been protected as an important part of free speech, and this law is not narrowly tailored.
- Scalia’s Dissent: We are invalidating a protection of the election process that has a long pedigree: 49 states had
similar laws requiring disclosure for electioneering, because voters deserve to know how much credibility to
attribute to election speech.
Buckley v. American Const. Law Foundation, Inc.: The government cannot compel electioneers to reveal their
identity, by requiring name badges or mandatory disclosure. In Buckley, ballot initiative-petition-circulators
challenged a state law requiring them to wear name badges and disclose their fees. The fee disclosure was
unjustified because Colorado did not prove the benefits of such disclosure.
- The badge requirement’s restraint is even more severe than that in McIntyre because petition circulating is a
less fleeting encounter because Circulators must try to persuade electors to sign the petition.
- O’Connor’s Concurrence: The fee disclosure infringes speech in only an incidental manner, so it should be
permitted so long as it advances a legitimate government interest (rational basis), even though the badge
requirement is unconstitutional.
The doctrine of unconstitutional conditions is the principle that the government cannot condition a benefit on the
requirement that a person forgo a constitutional right. The corollary is that the government may not deny a benefit
to a person because he exercises a constitutional right.
- This is a step removed from a direct prohibition on speech, because you can speak, but the question becomes
whether a government regulation is directed so substantially at speaking that it in fact ends up chilling speech.
- Speiser v. Randall: Government should not be able to condition federal funding on the relinquishment of rights.
- Regan v. Taxation with Representation of Washington: Court said that it found no indication that the statute
was intended to suppress any ideas or any demonstration that it has had that effect. A legislature’s decision not
to subsidize the exercise of a fundamental right does not per se infringe the right.
Doctrine of Unconst. Conditions
Strict scrutiny
Gov’t cannot condition benefit on
relinquishing 1st Am. Rts.
Gov’t Need not Subsidize Exercise of 1st Am. Rts.
Rational Basis
Not infringement
Regan: Had to maintain separate funds, but could
continue the speech.
Rust: Doctor could counsel abortion if he chose
to work somewhere that did not receive Title X
funding, or do so outside of Title X time.
Rosenberger: Refusing to provide funds
to a Christian group was unconstitutional
because it refused funding based on religion
LSC v. Velazquez:
Rust v. Sullvan: It is constitutional for the government to selectively fund programs which encourage certain
activities in the public interest, without also funding alternative approaches. In Rust, health care providers
challenged regulations granting federal funding to family planning, on condition they not recommend abortion.
As long as the party receives Title X money, he has to stay out of the abortion issue; if he wants to counsel
abortion, he can choose to work somewhere that does not receive Title X money.
When the government funds a program encouraging activities it believes are in the public interest, the
constitution does not require the government to also fund alternative activities.
Blackmun’s Dissent: This is viewpoint suppression of speech; it is imposed on those dependent upon
Government grants and has the effect of manipulating pregnant women to carry babies to term.
The court saw this as “programmatic,” that it did not bar the doctors from speaking on abortion outside the
realm of the program, they just couldn’t do it during the times they were acting within the confines of their role
in the program. The difference is between barring an entire subject matter (everything post-conception) and a
particular viewpoint (only abortion post-conception).
Rosenberger v. Rector & Visitors of Univ. of Va.: In Rust, the government had a particular program in mind, and
any speech not a part of the program cannot be funded. But in Rosenberger, the program was “diversity of ideas,”
so to excise one topic runs contrary to the idea of the program.
Legal Svcs. Corp. v. Velazquez: The government cannot deny the court access to hear certain issues by refusing to
allow government-funded attorneys to represent certain kinds of cases. The idea is that once the government
decides to permit its funded professionals to discuss a certain issue, they can’t stop that speech “halfway” (i.e.,
cannot allow challenging welfare decisions but not the laws on which those decisions are based).
- There were many restrictions on what kinds of cases could and could not be handled by Legal Svcs. attorneys.
But the one restriction in question was that LSC attorneys could not handle any lawsuit that challenged the
validity of a welfare law.
- The majority argues that this is regulating private speech, and that Rust was regulating government speech. But
the dissent points out that the speech between a doctor and his patient is the utmost of privacy.
- Majority says that in Rust, the government had a program, but that the LSC was not designed to promote a
government program, and to the contrary, it would distort the legal system to instruct the attorneys not to
represent certain cases.
- Kennedy (writing for majority) throws in a separation of powers argument to further distinguish it from Rust:
The LSC restriction removes from judicial review certain kinds of cases.
Types of Unprotected and Less Protected Speech
Some types of speech are held to merit less constitutional protection because their subject matter carries less weight:
Unprotected/Less Protected/“Proscribed” Speech Types
Incitement to illegal activity
i. Policy: Mere advocacy of illegality is still protected
1. But when it crosses a line to become incitement, it loses its protection
2. The Court felt that mere advocacy is relatively harmless if there is little chance it will cause
ii. “Clear and Present Danger” [of harm] Test
1. During WWI, Congress passed the Espionage Act of 1917, which harshly punished interference
with U.S. war efforts.
a. The Supreme Court upheld it, adopting the “clear and present danger” test.
b. Under this test, the First Amendment does not protect speech which is used under such
circumstances, and is of such a nature, that it creates a “clear and present danger” of inciting
illegal activity. Schenk v. U.S. (wartime anti-draft pamphleteer may be convicting of
conspiring to obstruct the draft).
c. See Frohwerk v. U.S. (wartime writer who told readers to “cease firing” on Germans may be
prosecuted for obstructing the draft).
d. See Debs v. U.S. (socialist who made anti-draft speech to recruits may be imprisoned for draft
e. See Abrams v. U.S. (when pro-Bolshevik pamphleteers urge workers to stop producing
munitions, Holmes’ famous “marketplace of ideas” dissent recommends actual immediacy).
2. Later during WWI, Congress enacted the Sedition Act of 1918, which forbade obstructing the sale
of war bonds, calling for strikes, praising enemy nations, opposing the U.S.’s cause in war, or
“uttering…any disloyal, profane, scurrilous, or abusive language” intended to cause contempt for
the U.S. government, Constitution or flag.
iii. Reasonableness Test
1. Later in the 1920s and 1930s, the Court moved away from the “clear and present danger” test,
saying instead that the government could punish incitement when “reasonable.” Gitlow v. NY
(law banning advocacy of unlawful overthrow of government is reasonable to protect the public
2. See also Whitney v. CA (revolutionary communist organizer may be jailed for her organization’s
advocacy of revolution and crime).
iv. Risk Formulation Test
1. Still later in the 1950’s, during McCarthyism, the Supreme Court made efforts to assess the
speech’s likely risk and harm.
2. It held the Government may restrict incitements to illegality, if the potential harms’ severity,
discounted by their improbability, justifies the degree of restriction. Dennis v. U.S. (Communist
Party organizers may be imprisoned for teaching abstract Marxist doctrine).
3. (Worth Noting) Scales v. U.S.: Govermnent may punish an individual if he is (1) actively
involved with the group, (2) knows of its illegal objectives, and (3) has the specific intent to further
those goals. Scales is still law; it has never been overturned.
v. Brandenburg Test
1. By the 1960’s, Court decisions became more protective. They refused to punish “abstract
doctrine” and “hyperbole.” See Brandenburg v. Ohio (KKK speaker cannot be punished for
suggesting revenge against government for not maintaining white supremacy).
2. Under the most recent Court formulation, the government cannot criminalize advocacy of crime,
except where such advocacy is:
a. Intended to incite…
b. …Imminent lawless action, AND
c. Likely to produce such action.
3. “Sub-Category” of unprotected speech: True Threats
a. Must be a threat to a specific person
b. Must be a history of such violence in whatever group to which the speech was directed or
from which the speech came
c. E.g., the pro-life website that posted the healthcare providers’ names & addresses: the threat
was to specific people, and there was a history of that pro-life group of violence, to make the
threat “true” and the speech then unprotected.
4. “Sub-Category” of “True Threat”:
a. Intent to Intimidate
b. Targeted at a specific group/person
c. See Virginia v. Black (in supplement): Statute banning cross-burning with an intent to
intimidate was constitutional, because cross-burning was a particularly virulent form
intimidation, which is unprotected speech.
Fighting words, Hostile Audiences, & Racist Speech
vi. Fighting Words
1. At first, the Court held the First Amendment does not protect “fighting words”: words which by
their very utterance (1) inflict injury or (2) incite immediate breach of peace. Chaplinsky v. NH.
2. Fighting Words Doctrine Narrowed: Distressing insults enjoy constitutional protection so long as
they do not invite violence. Today, to be deemed fighting words, the speech must be targeted at a
specific person (face-to-face) and the average person would react with violence.
3. Fighting Words Laws Voided for Vagueness/Overbreadth
a. Court effectively limited the “fighting words” doctrine by finding many such statutes vague or
b. Speech restrictions can be found unconstitutional overbroad if they are susceptible of
application to protected speech, either (1) on their face or (2) as authoritatively construed by
courts. Gooding v. Wilson.
4. Narrow Fighting Words Laws as Content-Based Restrictions
a. Recently the Court struck down a law banning bias-motivated speech, holding that even
“unprotected speech, like fighting words, cannot be subject to content-based / viewpointbased regulation. R.A.V. v. City of St. Paul, MN.
b. Effectively, this threatens all fighting words laws, since a law banning all conceivable fighting
words is likely to be so vague or overbroad that it is void on those grounds.
vii. Hostile Audiences: Sometimes a public speech can incite audience members to violence against the
speaker, each other, and/or others.
1. At first, the Court applied the “clear and present” danger test to hostile audiences. Early cases
held that, when public speakers incite their audience to imminent riot, police may stop their
speech. Feiner v. NY.
But later court decisions suggest police must make reasonable efforts to control the audience and
allow the speech to continue, stopping the speech only if crowd control fails and violence is
viii. Racist Speech: Today, many governments and universities adopted codes punishing racist / hate
speech. Critics charge this constitutes censorship of unpopular views.
1. Initially the Court held government may punish racist speech as “group libel”, if such punishment
is rationally related to preserving peace. Beauharnais v. IL.
2. Later decisions suggest racist speech enjoys greater protection:
a. The first amendment limits liability for defamation. NY Times v. Sullivan.
b. Hate speech enjoys some constitutional protection. R.A.V.
c. Hate speech laws are assailable for vagueness and overbreadth.
3. Lower courts have not followed Beauharnais. For example, the 7th Cir. struck down a Skokie, IL
attempt to restrict a Nazi rally there. Collin v. Smith.
Sexually-Oriented Speech
ix. Obscenity: Generally, the Court has held obscenity unprotected, but has not clearly defined what
“obscenity” is. Also, Court decisions give government some discretion to regulate even non-obscene
sex-oriented speech.
1. Supreme Court Decisions Declaring Obscenity Unprotected
a. The Court holds “obscenity” enjoys no First Amendment protection, because it is utterly
without redeeming social value. Roth v. U.S.. See also Paris Adult Theatre v. Slaton, in
which it was held that states may restrict commercial obscenity, even to consenting adults, to
maintain order / morality.
b. But defining “obscenity” is difficult. It does not include all sex-oriented speech since the
Court recognized that sex speech may have artistic, literary, or scientific value. Roth.
c. The Court’s latest view of “obscenity” (Part I) (Paris Adult Theatre): States have an
interest in stemming the flow of commercialized obscenity:
(1) To preserve the quality of life and the total community environment
(2) To preserve the tone of commerce in great city centers, and
(3) To preserve public safety.
d. The Court’s latest view of “obscenity” (Part II) (Miller v. CA): It is material which:
(1) Depicts/describes sexual conduct
(2) Which conduct is specifically defined by state law
(3) Would be found to appeal to the prurient interest (i.e., be sexually arousing) by the
average person, applying contemporary community standards.
(4) Portrays sexual conduct in a patently offensive way
(5) Has no serious value (literary, artistic, political or scientific) (national standard as
judged by an objective, reasonable person)
2. Should Obscenity be Unprotected?
a. Arguments for regulating obscenity include allowing communities to:
(1) Enforce morality
(2) Preserve quality of life
(3) Protect prudes’ delicate sensibilities
(4) Prevent rape and other secondary crimes
(5) Prevent porn’s discrimination against women
b. Opponents argue that regulation:
(1) Constitutes thorough control
(2) Promotes government-approved morality
(3) Is based on speculation about obscenity’s effects on rape/crime, etc.
3. Should Pornography Be Unprotected?
a. Feminist critics allege pornography which depicts women’s subordination, exploitation,
masochism, enjoyment of rape / humiliation, etc. constitutes sex discrimination against
women, because it perpetuates prejudice.
x. Child Pornography: Child Pornography is unprotected, whether “obscene” or not. The state may
regulate child pornography, if it is:
1. A visual depiction
2. Of sexual conduct specifically described by the state
3. By real children below a specified age, AND
4. Made with some scienter. NY v. Ferber.
5. The government may not suppress “child pornography” that does not involve real children (that
uses, for instance, computer generated or modified images, or adults who appear to be minors).
xi. Protected, Low-Value Sexual Speech: Some commercial, sexually-explicit communication enjoys
some constitutional protection (by falling short of “obscenity”), but the government has greater leeway
to regulate it, because it is deemed low-value.
1. Zoning ordinances: Government may use zoning to restrict concentrations of pornographic
businesses. This is because pornographic films are low-value. Young v. American Mini Theatres,
2. Nude dancing: But the government may completely ban totally nude dancing. Barnes v. Glen
Theatre, Inc.; City of Erie v. Pap’s A.M.
3. Should “Low-Value” Sexual Speech be Protected?
a. Some criticize the Court’s view that some speech is higher value, thus deserving more
b. Also, they note the Court never clarified exactly which sexually-explicit displays are lowvalue.
The 1st Amendment does not protect speech which is used under such circumstances, and is of such a nature, that it
creates a “clear and present danger” of inciting illegal activity.
- Schenk v. U.S.: A wartime anti-draft pamphleteer challenged his conviction under the Espionage Act.
o The character of every act depends on its circumstances, and when the nation is at war, things that may be
allowable in peacetime are such a hindrance to the war effort that they cannot be endured.
o Schenk’s intent in circulating the pamphlet was to obstruct the draft; it would not have been mailed unless
it intended that effect.
- Frohwerk v. U.S.: During WWI, a pro-German newspaper writer, who advocated stopping the war against
Germany, was convicted of obstructing the draft under the Espionage Act.
o The right to condemn either measures or men is not lost simply because the country is at war.
o However, Frohwerk’s paper may have been circulated in quarters where “a little breath would kindle a
flame,” and Frohwerk may have known that and may have relied upon that.
- Debs v. U.S.: A socialist who made an anti-draft speech to drafted men was convicted under the Espionage Act
of obstructing the draft.
o Even if the general theme of the speech is protected, it may not be protected.
- Abrams v. U.S.: Pro-Bolshevik anarchists, who urged munitions workers not to make weapons for use against
Russians, were charged with hindering the war effort against Germany.
o No further discussion necessary after Frohwerk and Debs.
o Holmes’ (!!) Dissent: (The “Free Marketplace of Thought” Dissent) Government may only prevent (1)
present danger of (2) immediate evil (or an intent to bring it). We cannot check opinions we loathe unless
they so imminently threaten immediate interference with the law’s pressing purpose that immediate check
is required to save the country.
“Reasonableness Test” Cases
- Gitlow v. NY: State bans on advocacy of unlawful overthrow are valid exercises of police power, unless they
are reasonable. A communist radical, jailed for urging revolution, challenges a state law which criminalized
advocating unlawful overthrow of government.
o This policy is needed for states’ self-preservation. Such statutes are unconstitutional only if they are
arbitrary or unreasonable.
o “A single revolutionary spark may kindle a fire that…may burst into sweeping conflagration.”
o Holmes’ Dissent: “Clear and present” danger test is appropriate. Free speech advocates the allowance of
ideas of communism, even if they are destined to be accepted by the majority.
- Whitney v. CA: A state may ban joining an organization which advocates overthrow by illegal means, as long
as the ban is not unreasonable. The organizer of a revolutionary communist organization was convicted for its
advocacy of revolution and crime.
o It is reasonable for the state to find that united action is more dangerous to the public peace than isolated,
individual action: like a conspiracy.
Frohwerk v. U.S.: The 1st Amendment does not protect speech which is used under such circumstances, and is of
such a nature, that it creates a “clear and present danger” of inciting illegal activity. In Frohwerk
Dennis v. U.S.: There must be a “clear and present” danger of a substantive evil that Congress has a right to prevent
to suppress speech. The government may restrict suppress speech that incites illegality only if the gravity of the evil
discounted by its improbability justifies it. In Dennis, the Court held that the Smith Act (which punished members of
parties who taught or advised others to violently overthrow the government) does not infringe on protected speech.
- First Amendment protection depends on a case-by-case analysis, and imminent danger is not to be measured by
the probability of success
The simple exchange of ideas is protected, while active advocating and planning for a dangerous activity (i.e.,
governmental overthrow) is not protected.
Dennis does not actually return to the old “clear and present danger” test.
The Court looks at the gravity of the evil discounted by its improbability to justify speech’s suppression
o The Court bypassed the imminence requirement, making it sufficient that the communist party advocated
dangerous action when the opportunity presented itself.
o The Court focused on the substantive evil of the speech when allowing the suppression.
Frankfurter’s Concurrence: The conflict of interests (between the government’s right to safeguard the nation
through anti-conspiracy laws and the public’s right to advocate political theory) is best settled by Congress, and
should then be overturned by the Court only if it has no reasonable basis.
Black’s Dissent: It is prior restraint to prevent the assembly and discussion and later publication of ideas.
Also, there was no imminent risk or danger.
Douglas’ Dissent: Communist theory cannot pose a threat to the superior American government! Communists
are “miserable merchants of unwanted ideas” and are no threat.
Brandenburg v. Ohio: The government cannot criminalize advocacy of crime except where such advocacy is (1)
intended to incite (2) imminent lawless action, and (3) is likely to produce such action. In Brandenburg, the
conviction of a KKK leader under a state statute criminalizing the advocacy of forceful methods of terrorism /
government overthrow was unconstitutional.
- Statutes must draw a distinction between punishable incitement to imminent lawlessness and protected abstract
advocacy. The Ohio statute in question punished advocacy and assembly for the purposes of advocacy, which
are protected speech categories, so it was on its face invalid.
- The Court removed the “serious evil” requirement.
Chaplinsky v. NH: The First Amendment does not protect “fighting words” which inflict emotional distress or tend
to incite listeners to retaliatory violence. In Chaplinsky, the conviction of a Jehovah’s Witness who called a police
officer a facist was upheld under a NH fighting words statute.
- Fighting words bear no essential part in the exchange of ideas and are of such low value as a step to truth that
any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
- Unlike the Brandenburg test, fighting words focus on an individual confrontation, and the focus is on the
average listener.
- Statute was constitutional because it is applied narrowly, includes only face-to-face utterance of classical
fighting words, newer words likely to cause violence, and disorderly words (profanity, obscenity, and threats).
Gooding v. Wilson: Speech restrictions are unconstitutionally overbroad if they are susceptible of application to
protected speech either (1) on their face or (2) as authoritatively construed by courts. In Gooding, a demonstrator
charged with using abusive language for cursing at arresting officers challenged the statute as vague / overbroad.
- Statute was unconstitutional on both grounds:
(1) On its face: The language used in the statute applies to more than fighting words (words “intended to
convey disgrace” and “harsh insulting language” is also punishable by the statute)
(2) As construed: The GA courts interpreted the statute as applying to language that was not “fighting words.”
- Burger’s Dissent: No evidence demonstrates that the statute has significant potential for sweeping application
to suppress protected speech.
- Blackmun’s Dissent: Statute is not vague. Defendant had full notice his language was punishable.
The Hostile Audience Cases
Feiner v. NY: Where a speaker incites the audience to imminent riot, disorder, interference with public traffic, or
other immediate threat to public safety, the power of the state to prevent and punish is obvious. In Feiner, the Court
upheld the conviction of a street-corner political speaker who stirred a crowd to threats and shoving—approaching
- Unlike Brandneburg, Feiner was not a call to illegal action.
- Feiner has never been overruled. But the current rule is “Heckler’s Veto Rule” which states that speech cannot
be suppressed because of an audience’s unrest.
- Black’s Dissent: Where a speaker is confronted with an unsupportive audience, the speaker has a right to police
protection, not to police infringing on his speech rights (closer to today’s rule)
The Problem of Racist Speech
Beauharnais v. IL: The government may punish racist speech as group libel if such punishment is rationally related
to preserving the speech. In Beauharnais, a segregationalist was convicted for distributing leaflets libeling blacks,
calling them a “depraved race”, and the Court upheld the law under which he was convicted.
- Libel of collectives and groups is punishable just as it is of individuals.
- A clear and imminent danger is not necessary to prohibit libel, because libel is unprotected: it is not essential to
the exposition of ideas.
- Black’s Dissent: The “rational basis” test is incorrect. Prohibiting “libel” against large groups basically
prohibits people from criticizing those groups.
Narrow Fighting Words Laws as Content-Based Restrictions
R.A.V. v. City of St. Paul, MN: Government may suppress nonverbal expressive activity because of the action it
entails, but not because of the idea it expresses. In R.A.V., the court overturned the conviction of a teen charged
with burning a cross in a black neighbor’s yard, because the statute under which he was convicted impermissibly
banned speech based on the bias (idea) it expressed.
(1) Content-based restrictions on unprotected (or “proscribed”) speech triggers strict scrutiny…
a. Unless government is not trying to suppress the ideas, but is focusing on the secondary effects of the
b. If the whole reason you’re passing the statute focusing on a subcategory, is the very reason that the entire
category is proscribed, then the statute is okay—then there is no danger that the government is
discriminating on viewpoint.
(2) Even assuming strict scrutiny, why can’t it be met?
- Even though “fighting words” are not an essential part of the exposition of ideas, they still have expressive
content and thus cannot be suppressed based on the government’s hostility or favoritism to whatever idea
they’re expressing.
- Content-based speech laws are still subject to strict scrutiny, and the statute in this case was not narrowly
tailored to the protection of minorities.
o The court may have allowed the statute if it had prohibited all fighting words, but its focus on racial speech
was viewpoint suppression.
- R.A.V. did not involved “conduct discrimination”. That is, while it is permissible to discriminate on the basis
of conduct, like child pornography, there must not be a suppression of ideas—only of conduct.
- White’s Concurrence: The statute was overbroad and should have been void for that, rather than saying that
some speech is still protected even though it has almost no value.
- Blackmun’s Concurrence: The majority was wrong to hold that a State cannot regulate harmful speech unless it
also regulates harmless speech. No values are sacrificed by prohibiting cross-burning in a neighbor’s yard.
Virginia v. Black: A statute specifically aimed at cross-burning with an intent to intimidate a person or group of
person was struck down because of a “prima facie” clause that stated the very burning of a cross in itself was enough
to establish that intent.
- If you’re just trying to intimidate, then you’re not communicating; you’re actually creating a true threat to a
person or a group.
- There are 2 questions: (1) Whether the Court was correct in distinguishing this case from R.A.V., and (2)
whether the Court was correct in saying the prima facie portion of the statute was invalid.
- Why is this constitutional (minus the prima facie clause) and R.A.V. wasn’t? If a particularly virulent form of
intimidation is cross-burning, then we don’t want to allow it: it’s basically an intent to intimidate / true threat,
and thus is not protected. We can allow content-based regulation of proscribable speech, if we are certain that
the government is not trying to suppress a particular viewpoint or a particular idea.
o Is that true—does cross-burning articulate a particular idea?
Roth v. U.S.: Government may regulate “obscene” speech without implicating the First Amendment. In Roth, a
pornographer challenged a federal statute that banned mailing “obscene” materials (he lost).
- Douglas’ Dissent: The majority’s definition turns on the effects a book instills in reader’s minds, not for any
overt acts or harmful conduct. This vague standard permits unfettered censorship, in violation of First
Amendment principles.
Paris Adult Theatre v. Slaton: States may restrict commercial obscenity, even that viewed by consenting adults, to
further legitimate interests in maintaining order and morality. In Paris, an adults-only pornographic theatre
challenged a state’s restrictions on obscenity.
- States have an interest in stemming the flow of commercialized obscenity (1) to preserve the quality of life and
the total community environment, (2) to preserve the tone of commerce in great city centers, and (3) to preserve
public safety.
Douglas’ Dissent: The state has no right to censor the wants of consenting adults when obscene material is not
accessible to children or unconsenting adults.
Miller v. CA: In Miller, the Court upheld the conviction of Δs for distributing unsolicited sexual pictures in
violation of CA’s obscenity laws.
- States have the power to regulate obscene material if done in accordance with the following steps:
1. If the obscene conduct is specifically-defined by state law, and
2. If the offense is limited to works which, taken as a whole, appeal to a prurient interest in sex, which portray
sexual conduct in a patently offensive way, and which do not have serious value.
The trier of fact must judge:
a. Whether the average person applying contemporary community standards would find the work, taken
as a whole, applying to prurient sexual interests
b. Whether the work depicts or describes, in a patently offensive manner, sexual conduct specifically
defined by state law, and
c. Whether the work, taken as a whole, lacks any serious value (artistic, literary, or scientific): national
standard of an objective, reasonable person
- Obscenity is to be defined by applying contemporary community standards, not national standards.
NY v. Ferber: The traditional Miller standard does not apply to child pornography. In Ferber, the Court struck
down an overbreadth argument and upheld the conviction of a child pornography distributor under a NY law.
- The Miller standard is different than the child porn standard:
o The trier of fact need not find that the material appeals to the prurient interests of the average person
o It is not required that the material be portrayed in a patently offensive manner, and
o The material need not be taken as a whole
- Censorship of speech must meet strict scrutiny:
o Compelling government interest is preventing the sexual exploitation of children
o Narrow tailoring: preventing the distribution of child pornography. (The ban is narrowly tailored because
of the ineffective ability to stop the act of making child porn.)
- Ferber is actually aimed at conduct (the sexual exploitation of children), not at content
- Under Ferber, a law has to (1) be directed at the depiction of real children in sexual acts, (2) include scienter—
the party has to have known what it was doing, (3) define the prohibited conduct, and (3) disseminate the
standards to the public.
- The law did not fail an overbreadth challenge because the overbreadth was not substantial; it did not reach a
significant amount of constitutionally protected speech.
- Brennan’s Concurrence: The First Amendment forbids regulation of child pornography that has serious literary,
artistic, scientific or medical value.
Ashcroft v. The Free Speech Coalition: The government may not suppress “child pornography” created without real
children (computer images or adults who appear to be minors).
- Dissent brings out the point that if we get to the point where we cannot distinguish between a computergenerated child and a real child, then how can we prosecute those making child pornography with real children?
We won’t know who to prosecute.
Young v. American Mini Theatres, Inc.: Statutes aimed at the suppression of speech’s secondary effects are
permissible so long as they fall under intermediate scrutiny. In Young, the Court upheld an anti-skid-row statute
limiting the number of adult facilities in a given area.
- Although the First Amendment protects pornography from total suppression, the state may legitimately use the
content of these materials as the basis for classifying them differently than other media products.
- The city has a legitimate interest in the character of its neighborhoods that justifies its regulations.
- The restrictions are similar to zoning decisions that pertain to all businesses regardless of content.
- Stewart’s Dissent: The regulation clearly pertains the content of the stores’ products and should receive strict
Time, Manner, Place Restrictions: Trying to get out of the strict scrutiny alternative and use intermediate scrutiny
instead. What needs to be shown in order to render a regulation a valid TMPl Regulation?
Content Neutral
a. Purpose of the law cannot be to suppress speech; the purpose must be aimed at the secondary
effects of speech.
Substantial (rather than compelling) government interest
Reasonable alternative channels of communication available (though not necessarily the “least
restrictive means”)
City of Los Angeles v. Alameda Books: City ordinance was okay as it stood originally (it was essentially the same
as in Renton) but then an amendment was passed that prohibited more than one adult “operation” from existing in
the same space. So a store that was allowed under the original ordinance became prohibited under the amendment.
- Content Neutral? Los Angeles argued that, logically, if you’re going to have more than one operation under the
same roof, arguably, you’re going to draw more clients and therefore more crime (increased secondary effects)
o Δ argued that the “secondary effects” argument didn’t hold up: there will be the same secondary effects
with two operations in the same building as there would be with those two operations in two different
buildings, and arguably, if Δ were to open another establishment in a different part of town, then that would
just spread those secondary effects around the city.
- This case talks about deferring to the city in the judgments of secondary effects: it doesn’t take much proof,
doesn’t require strong empirical data, for a city to fulfill the secondary effects requirement.
o It is a reasonableness test when evaluating the evidence on which the City bases its secondary effects
o Even though the overall test is an “intermediate scrutiny” test, the test for the city’s secondary effects basis
is reasonableness.
- Kennedy’s Concurrence: Maybe the purpose is the secondary effects, but this is still, at minimum, a contentcorrelated regulation—it’s not content-neutral. Kennedy says that an ordinance is constitutional only if it
reduces secondary effects without substantially reducing speech.
o If the effect is supposed to channel speech, we should look at the effect to see if that’s what’s happening. If
in reality the effect is that it’s significantly reducing speech, then the ordinance is unconstitutional.
Barnes v. Glen Theatre, Inc.(note case): Another form of intermediate scrutiny was used to evaluate an apparently
content-based restriction. The test used for regulating “symbolic speech”:
(1) Furthers an important or substantial governmental interest
(2) That interest is unrelated to the suppression of free expression
(3) The restriction on speech is no greater than is essential for furtherance of the interest
City of Erie v. Pap’s A.M.: The government may ban nude dancing if (1) its intent is to prevent its secondary effects
rather than its content, and (2) its regulation is rationally related to promoting legitimate state interests. In Erie, the
Court upheld a PA statute banning public nudity and requiring nude dancers to wear pasties and G-strings to combat
the secondary effects of nude establishments.
- Court calls the dancing “symbolic speech” or “expressive conduct” (this concept was presented in conjunction
with cross-burning too—it’s conduct with an expressive component)
- The “least-restrictive means” standard is not applicable to content-neutral regulations.
- The Court will not strike down an otherwise constitutional ordinance on the basis of an illicit motive.
- If states are able to regulate secondary effects, then de minimus intrusions on expression (like forcing the
dancers to wear pasties) cannot be sufficient to render a regulation unconstitutionally content-based
- City of Erie used the O’Brien analysis for secondary effect regulations.
- City of Erie is important to the extent that the government may avoid the need to be content neutral so long as it
has a substantial interest in speech’s secondary effects.
o The means only have to be “reasonably believed to be relevant.” They do not actually have to be narrowly
- City of Erie is viewed as a “green light” for states to regulate adult establishments.
- Scalia’s Concurrence: The government is empowered to ban nude dancing completely, in order to foster morals
(assuming that nude dancing is immoral).
- Souter’s Dissent: The City of Erie presented no evidence that nude dancing has the alleged secondary effects,
and it did not show that banning nude dancing would have beneficial effects.
- Stevens’ Dissent: The majority expands the secondary effects doctrine impermissibly. Before Erie, secondary
effects justified zoning restrictions—minimal impositions on expression. After Erie, secondary effects justify a
total ban—censorship.
Government Control of Obscenity and Child Pornography
a. The government may limit the sale / exhibition of obscenity, even to willing buyers. Paris
Adult Theatres.
b. But the government may not punish mere private possession of obscenity. Stanley v. GA.
c. However, possession of child pornography is still punishable. This policy discourages the
exploitation of children used in making child porn. Osborne v. OH.
Profanity & “Indecent” Speech: Generally, profane speech enjoys protection. But when used in
public media, it is regulable to various degrees, depending on the medium.
Profanity Protected: Generally, the state cannot punish public (in-person) use / display of
expletives. Cohen v. CA.
Profanity in TV / Radio: The government may impose certain sanctions against radio / TV
broadcasts containing patently offensive language (involving sex or excretion) in certain
circumstances, unless the sanctions target their social or political message. FCC v. Pacifica
(1) Captive Audience Doctrine:
1. Primarily in home
2. Privacy must be invaded in an intolerable manner
3. With broadcast medium, it is uniquely accessible to children
Telephone Profanity: The government may regulate indecent dial-up telephone messages, but
only (1) to promote “compelling” government interests, and (2) by using the least restrictive
means possible. Sable Communications of CA, Inc. v. FCC.
Internet: Children can be protected by Internet indecency using only the least-burdensome
methods. Reno v. ACLU.
Cable TV: An early, fragmented plurality opinion held that, while the government may ban
broadcasting “patently offensive” sexual / excretory porn, it cannot require all such programs
be put on a single, by-request-only channel, nor ban all sex-oriented programs from public
TV. Denver Area Educ. Telecommunications Consortium v. FCC.
(1) Later, the Court held government may regulate cable TV to shield children, but again
must prove its method is the least restrictive. US v. Playboy Entertainment Group, Inc.
Stanely v. GA: The government cannot criminalize private possession of obscene materials. In Stanley, the Court
held that a man’s possession of obscene materials seized on an unrelated warrant was protected by the First
- Stanley differs from Roth, which held that the distribution (not the possession) of such materials was a crime
- The possession of unpopular ideas is at the heart of the First Amendment.
- The Court views the compelling government interest in banning obscenity only to (1) protect juveniles or (2)
protect unwilling adults.
- There is not a compelling government interest in banning thoughts in the privacy of one’s home.
- Stanley is still good law—never been overruled—but is basically obsolete since the state may ban the creation
and distribution of pornography.
Cohen v. CA: The state cannot punish public use / display of expletives: Speech cannot be suppressed because of
the response of an audience unless Δ incites the audience to an illegal act. In Cohen, the Court overturned the
conviction of a man under a public nuisance statute for wearing a “fuck the draft” jacket in a public courthouse.
- Speech which is deeply offensive is protected.
- This is not fighting words because the language wasn’t directed at any particular person or group.
- This was not a Brandeburg test situation because there was no advocacy of imminent lawlessness.
- This was not a captive audience situation, because the parties viewing the jacket could just look away.
- Blackmun’s Dissent: The actions at issue here were mainly conduct, not speech, so under Chaplinsky, the
actions (conduct) are regulable.
FCC v. Pacifica Foundation: The broadcast of patently offensive words may be regulated because of its context. In
Pacifica, the Court held that the FCC could regulate a station which chose to air George Carlin’s “Filthy Words”
during an afternoon broadcast.
- Regulation must be based on a nuisance rationale (i.e., the bombardment of offensive words onto the public)
- The regulation was one of context not content.
- “Captive Audience Theory”: The broadcast media permeates into peoples’ homes where unwilling audiences
and children may hear it.
- Dissent: It is not the role of government to censor speech: leave that up to parents and individuals.
Sable Communications of CA, Inc. v. FCC: The government may regulate indecent dial-up telephone messages
only (1) to promote compelling government interests and (2) by using the least restrictive means possible. In Sable,
the FCC banned a dial-up service which provided pre-recorded sexual messages (“dial-a-porn”).
- The government may restrict “obscene” messages, which are unprotected by the First Amendment, but may not
restrict “indecent” messages.
- The statute was not narrowly tailored because it reached “indecent” messages instead of just obscene ones.
- The government’s interest in protecting minors from the speech is compelling even if the message is not
obscene; however, Sable had safeguards in place to protect minors, so the statute was not narrowly-tailored
when it banned the messages completely.
No “captive audience” problem: the dial-up messages require affirmative action on the part of the listener to
access them; unlike radio / TV where it is just broadcast to an unwilling listener / viewer
Reno v. ACLU: The government may regulate the Internet to protect children from indecency, but only by using the
least restrictive method. In Reno v. ACLU, activists challenged the Communications Decency Act (CDA) which
made it a crime to knowingly transmit patently offensive material to minors.
- Internet regulations are treated like print media and receive strict scrutiny.
- CDA was overbroad because it pertained to all sexual material and made no exceptions for literary, artistic or
scientific works.
- CDA did not define “indecent” or “patently offensive”, yet enacted severe criminal sanctions that would chill
- The Government may not reduce the adult population to only that which is fit for children.
Ashcroft v. ACLU: Child Online Protection Act (COPA)’s use of “community standards” in identifying material
harmful to minors does not violate the First Amendment.
- Community standards need not be defined by precise geographic areas. “Absent geographic specification, a
juror applying community standards will inevitably draw upon person ‘knowledge of the community or
vicinage from which he comes.’”
- COPA applies to significantly less material than CDA because it defines the harmful-to-minors material by
using the Miller 3-part test.
- “When the scope of an obscenity statute’s coverage is sufficiently narrowed by a ‘serious value’ prong and a
‘prurient interest’ prong, we have held that requiring a speaker disseminating material to a national audience to
observe varying community standards does not violate the First Amendment.”
- O’Connor’s Concurrence: A national standard for obscenity relating to the Internet is constitutional and
o The existence of the Internet has itself made jurors more aware of other community standards.
- Breyer’s Concurrence: Congress intended the word “community” to mean the Nation, not geographicallyseparate areas.
- Kennedy, Souter & Ginsburg’s Concurrence:
- Stevens’ Dissent: “In the context of the Internet, community standards become a sword, rather than a shield.”
Allowing the “community standard” to dictate what is harmful on the internet will require everyone posting
something on the Internet to conform it to the most conservative and puritan standards in the Nation.
o “Speech is effectively prohibited whenever the least tolerant communities find it harmful to minors.”
Ashcroft v. ACLU (Handout / Supplement Case): Because the Government has failed to show that no less
restrictive alternatives exist, the Court of Appeals was correct in affirming a District Court decision to enjoin
enforcement of COPA.
- Filtering software is less restrictive and more effective than COPA, and whatever deficiencies may exist with
filtering software, the Government did not introduce specific evidence proving that such software is less
effective than the restrictions in COPA.
- Scalia’s Dissent: The type of material regulated by COPA is not protected by the First Amendment, and
therefore COPA should not be subject to the “least restrictive means” prong of the strict scrutiny test.
- Breyer, Chief Justice & O’Connor’s Dissent: Filtering software is part of the status quo, not an “alternative” to
the COPA legislation. The proper comparison to make is whether there are less restrictive means available to
COPA relative to a status quo in which filtering software exists.
U.S. v. Playboy Entertainment Group: When a plausible, less restrictive alternative is offered to a content-based
speech restriction, it is the government’s obligation to prove that the alternative will be ineffective in achieving its
goals. In Playboy, the Court invalidated a law requiring all sex channels to be blocked and only shown at night
because less restrictive means were available.
- Content based restrictions on Cable TV require strict scrutiny
o Cable TV, therefore, is no the same as broadcast TV
- Dissent: The alternatives available to the government’s tailoring were too cumbersome to serve its compelling
interest of keeping sexual images away from children.
Commercial Speech
Generally, commercial advertisement is protected as speech.
- Supporters argue that it is important to consumers, and necessary for well-functioning markets
- Critics contend it is less important than traditionally-protected social/political speech and requires regulation to
avoid fraud, deception, etc.
Constitutional protection of Commercial Speech:
- Early cases held “purely commercial advertising” purely unprotected. Valentine v. Christensen.
- Later, the Court offered commercial speech some protection. Bigelow v. VA; VA St. Bd. of Pharmacy v. VA
Citizens Consumer Council.
Defining Commercial Speech:
- In Bolger v. Youngs Drug Products Corp., “commercial speech” was defined as a communication which (1)
does no more than propose a commercial transaction, OR is an advertisement, and (2) references specific
products and (3) is mailed for economic motivations.
Tests for Regulating Commercial Speech:
(1) Unprotected: Illegal activities, false and deceptive ads, and ads which are true but inherently risk becoming
false or deceptive.
a. The Court always maintained that ads for illegal activities are unprotected without explanation.
Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations.
b. Ads which are false or misleading also lose constitutional protection.
c. True but Misleading Advertisements
i. Trade Name Restrictions: Government may ban professionals from practicing under trade names,
which are potentially misleading. Friedman v. Rogers.
ii. Attorneys’ Solicitation of Clients:
1. The Court ruled that lawyers have the right to honest, non-deceptive advertisement, but the
Court allows banning of in-person, for-profit solicitation. Ohralik v. OH St. Bar Assn.
2. ACLU attorneys may solicit for free representation. In re Primus.
3. Generally, the state must permit attorneys’ targeted direct mail solicitation (Schapero v. KY
Bar Assn.), but may ban personal injury/wrongful death solicitations too soon after the
accident (FL Bar v. Went For It, Inc.).
iii. Accountants’ Solicitations: The government cannot ban accountants’ in-person solicitation
(Edenfield v. Fane). Distinguished Ohralik saying that accountants are not persuaders, like attorneys
are, and unlike attorneys, accountants deal with sophisticated clients.
(2) Non-deceptive/illegal advertising may be regulated if:
a. The restriction is justified by “substantial” governmental interests
b. The restriction directly advances that interest, and
c. The regulation is the least-restrictive method needed to achieve that interest
Central Hudson Gas v. Public Service Commission of NY.
(3) “Least” Restrictive: Later cases dropped the requirement that the regulatory method be the least restrictive.
Modern cases require only that it be sufficiently narrowly-tailored.
Bd. of Trustees of the St. Univ. of NY v. Fox; Greater New Orleans Broadcasting Assoc. v. U.S.
Commercial Speech Regulations Intended to Achieve Non-Censorship Goals: Sometimes governments try to
restrict advertisements of certain facts to curb demand for “bad” things, for policy reasons (e.g., restricting tobacco
- Generally, such laws are invalid, except for gambling ad restrictions.
- The Court’s policy is that government cannot keep truthful, non-misleading information from the public for
paternalistic reasons (to keep them from making “wrong” choices).
(1) House “For Sale” Signs: Government cannot prevent homesellers from displaying “for sale” signs (even if
the motivation for the ban is to prevent white flight from interracial neighborhoods). Linmark Associates
v. Township of Willingboro.
(2) Alcohol: States banning liquor dealers from advertising prices or liquor potencies are also void. Rubin v.
Coors Brewing Co.; 44 Liquormart, Inc. v. RI.
(3) Gambling: Government restrictions on casino advertising, enacted to reduce gambling, are permitted.
Puerto Rico Assoc. v. Tourism Company; U.S. v. Edge Broadcasting Co. However, recently the Court
began scrutinizing such restrictions more strictly, using the Central Hudson test.
(4) Advertisements by Lawyers and other Professionals: Generally, professionals’ ads cannot be restricted
unless they are dishonest or misleading. Bates v. St. Bar of AZ; Zauderer v. Office of Disciplinary Counsel
of the Supreme Court of OH; Peel v. Attorney Registration and Disciplinary Commission of IL.
VA St. Bd. of Pharmacy v. VA Citizens Consumer Council, Inc.: Commercial speech is protected by the First
Amendment. A state may not completely suppress the dissemination of truthful information about an entirely lawful
activity because it is fearful of the speech’s impact on the public. In VSBoP, the Court invalidated a VA statute that
banned the advertising of pharmaceutical prices.
- Commercial Speech: Speech which proposes a commercial transaction
o The category of commercial speech is very limited
o If π may prove that speech does more than advertise a commercial transaction, the speech receives more
- Although commercial speech is protected, it is still subject to regulation. Economic motivation is not relevant
to protect the status of speech.
Differences Between Political and Commercial Speech
- With political speech, the focus is on the speaker
- With commercial speech, the emphasis is on the consumer.
- Commercial speech is more verifiable
- Unlike political speech, which allows falsity or misleading, commercial speech that is false or misleading is
Bolger v. Youngs Drug Products Corp.: “Commercial speech” is a communication which (1) does no more than
propose a commercial transaction OR is an advertisement, AND (2) references specific products AND (3) is mailed
for economic motivation. In Bolger, a drug company challenged a federal ban on ads for contraceptives.
Central Hudson Gas v. Public Svc. Comm. of NY: The Court invalidated a regulation prohibiting advertising of an
electric utility on an effort to promote conservation because it was too restrictive.
- Four Prong Test for Commercial Speech… Determine:
(1) Whether the expression is protected by the First Amendment
a. Commercial speech must concern a lawful activity and not be misleading
(2) Whether there is a substantial government interest
(3) Whether the regulation directly advances the governmental interest
(4) Whether the regulation is no more extensive than necessary to serve that interest; restrictions must be a
reasonable fit between the government interest (goal) and the means imposed.
- The restriction in Central Hudson was content-based
o Content-based restrictions concerning political speech require strict scrutiny.
o Content-based restrictions concerning commercial speech only require intermediate scrutiny
- Banning certain ads is paternalistic; the government has no right to ban ads on a product simply because the
government wants to lessen the demand for the product. The government should ban the product directly.
- The government regulation is available to regulate the truthfulness of commercial speech
- Dissent: The 4-prong test makes commercial speech indistinguishable from political speech and should not be
Friedman v. Rogers: The government may ban practicing under trade names.
- Trade names convey no additional information about the services offered or the prices.
- The public may come to associate a trade name with a certain quality or level of price, and since trade name
users may change or manipulate their trade names at will, this could lead to misleading the public.
Linmark Associates v. Township of Willingboro: The government cannot restrict commercial communications
unless they are false or misleading.
- House sellers are interested in communicating their sale, and buyers are interested in receiving that information.
- The Township’s interest in promoting racially-integrated housing is vital, but the Township did not prove that
the ordinance is necessary or effective in promoting that goal.
- The government also failed to prove that prohibiting the signs would reduce public awareness of the sales and
thus decrease public panic and white-flight.
- First Amendment requires governments to let people get full information and make their own informed
44 Liquormart, Inc. v. RI: A state legislature does not have the broad discretion to suppress truthful, non-misleading
information for paternalistic reasons. In 44 Liquormart, the Court struck down two statutes banning the advertising
of liquor prices in general and in the media.
- States are not able to prohibit advertising to advance their interests when less restrictive means are available for
doing so
While the government may rationally regulate the distribution of products, it faces heightened scrutiny when
regulating speech
The court focused on the “directly advancing government interest” prong when analyzing the RI statute
o The state had no data to support its ban on advertising in relation to the suppression of drinking
When a state entity prohibits the dissemination of truthful, non-misleading commercial speech for reasons
unrelated to the preservation of the bargaining process, there is less reason to depart from strict First
Amendment review
In Fox, the Court stated that narrow tailoring regarding commercial speech only means a “reasonable fit between
means and goal”
- This goes against the Central Hudson standard and allows less protection for commercial speech
Lorillard Tobacco Co. v. Reilly (supplement case):
- The state’s interest is the prevention of smoking by minors, as to whom the advertised product is illegal.
o Notice we’re not trying to stop adults from receiving truthful and non-misleading information about a legal
product; we’re trying to stop children from getting that, when that product is not legally available to them.
- Analyzed as a Time Manner Place restriction (intermediate scrutiny).
o Content neutrality is required under TMP restrictions, but because this is commercial speech, the Court
allows content-basis.
- The court uses the Central Hudson test, upholding the difference in treatment between commercial and noncommercial speech.
o The 3d and 4th prongs are problematic here: how much proof, empirical evidence is necessary to establish
a link between the asserted government harm and the regulation?
o This is sort of a zoning law, and in Renton such regulation was allowed. It is an interesting comparison to
note that the Court seems more reluctant to ban tobacco ads… is this perhaps because there are Justices
who are tobacco users but not porn users? Interesting food for thought.
- The law in Lorillard was deemed too restrictive, and there was no clear evidence showing that there would be a
significant impact on minors’ smoking habits through the law.
- The big concern in Playboy was denying access to adults based on a concern for children. Is that concern
present in this case as well? Adults can still get cigarettes; do they really need all the advertising?
Thompson v. Western States Medical Center (supplement note case):
- Deals with compounded drugs, combinations of medicines prepared for a specific patient by a pharmacist.
They are “cocktail” drugs.
- Government doesn’t want those compounded drugs to be advertised because they are not approved by the FDA.
The testing necessary would be cost-prohibitive because each “cocktail” is so individualized.
- If we want to continue to allow these drugs, we’ll do it, but because the testing is prohibitive, we don’t want to
encourage people to use them.
- The problem with that theory is that there may be people out there who will watch the advertisements, and
become aware of the presence of these drugs that may end up helping them.
The protection of commercial speech is different than non-commercial speech:
- Government may prohibit misleading commercial speech, but cannot prohibit misleading non-commercial
- Commercial speech only requires intermediate scrutiny
- Court applies stricter scrutiny when the government regulation of commercial speech is paternalistic, regulating
commercial speech to censor the idea conveyed
- The court uses a lesser standard when government regulation addresses the misleading nature of speech itself
(e.g., truth in advertising, etc.)
Reputation, Privacy, Publicity and the First Amendment:
Torts and the First Amendment
Defamation and related offenses are actionable as torts. While such tort suits are private actions, the Court views the
judge’s sentence and the tort laws as state action which may be found to violate the First Amendment.
New York Times Standard
- Public officials may recover under tort law if they can prove with clear and convincing evidence a falsity made
with actual malice.
(1) public official: includes only fairly authoritative / prominent government workers or candidates for office.
It does not include all government employees, but there is no strict definition. Must relate to the public
official’s official conduct.
(2) clear and convincing: “With convincing clarity”. This is more strict than the usual standard of
“preponderant” evidence. In practice, appellate judges must conduct an independent, de novo review of the
(3) falsity: Speakers can be liable only for false statements of fact, not false opinions. But the distinction is
vague, especially when opinions seem to be based on facts known to the speaker.
(4) actual malice: means (a) speaking while knowing the statement is false, or (b) making the statement
knowing (subjectively) that it is likely false
New York Times Co. v. Sullivan: A public official may not recover damages for a defamatory falsehood relating to
his official conduct unless he proves that the statement was made with actual malice. In NY Times, the Court
denied a libel claim brought by an Alabama police commissioner against several black ministers for an
advertisement purchased in the NY Times that contained some false statements because no malice was shown.
- Papers can print false statements about public officials so long as they do not know the statement was false, and
it was not printed with reckless disregard to the truth.
- Public official must prove malice by clear and convincing evidence (heavy standard)
- Libelous statements made must pertain to the official’s official conduct. They can pertain to the official’s
private life so long as they relate to official conduct.
- Damages Available:
o Compensatory: Actual (π must prove damages) or Presumed (allows jurors to assume an injury)
o Punitive: Though not addressed in NY Times, generally those who meet that high standard are allowed
punitive damages.
Defamation of Public Figures
- Originally, the Court said non-public figures could be bound by the New York Times standard when involved in
matters of “public” or “general interest.” Rosenbloom v. Metromedia, Inc.
- Gertz sets the state minimum of what must be required for state libel law: (1) Negligence, (2) BOP on Plaintiff
to prove falsity, and (3) actual malice required to presumed or punitive damages. States may use a higher
standard (Indiana, for example, requires that all public concerns trigger actual malice standard) but Gertz
establishes the minimum. Gertz v. Welch.
- Public Plaintiffs: Generally, “public figures” must thrust themselves into the public eye, willingly and
Gertz v. Welch: So long as they do not impose liability without fault, states may define for themselves the
appropriate standard of liability for a publisher or broadcaster of defamatory falsehoods injurious to a private
individual. In Gertz, the Court held the NY Times standard (which required malice) did not apply to private
- For π to be a public figure, he must affirmatively involve himself in the public sphere
- For private individuals to recover actual damages, they must only establish (1) a false statement and (2)
negligence by the newspaper in running the story.
- For private individuals to recover presumed damages, they must show recklessness or malice on the part of the
paper—the NY Times standard.
- The legal standard depends on the victim of the libel, not on the speaker
- Gertz sets the state minimum of what must be required for state libel law: (1) Negligence, (2) BOP on Plaintiff
to prove falsity, and (3) actual malice required to presumed or punitive damages. States may use a higher
standard (Indiana, for example, requires that all public concerns trigger actual malice standard) but Gertz
establishes the minimum.
Defamation of Private Figures
- Private Individual: (1) No (or very limited) access to media to defend reputation—more vulnerable to the
media, and (2) no voluntary waiver of right to protection from defamatory material—more deserving of
- Matters of Public Concern: Gertz applies, and plaintiffs must prove falsity. Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc. Must also have a minimum standard of negligence proven to get punitive or
presumed damages.
- Matters Not of Public Concern: May allow private plaintiffs to recover presumed and / or punitive damages
without proving actual malice. Must still show negligence even if not malice.
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.: The First Amendment places less value on private speech than
public speech. In Dun, the Court upheld a state court defamation decision against a credit bureau that falsely and
negligently reported information that damaged π’s business.
- For a private individual to recover actual damages on matters of private concern, all he needs to show is a false
statement. Δ may be strictly liable if allowed by state law.
- Gertz sets the standards for speech of public concern while Dun sets the minimum SC standard for matters of
private concern.
- Limited Purpose Public Figure: Allows for the public figure standard of libel for events in which π makes
himself a public figure.
(1) Examine status of the victim: public official / figure or private individual?
(2) Look at subject matter of the speech: public or private concern?
(a) Public concerns: State law must require at least negligence to pass constitutional muster
(b) Public Figure / Public Concern: π must prove malice & falsity (or reckless disregard for truth)
(c) Private Person / Public Concern: π must prove falsity & negligence
(d) Public Figure / Private Concern: π must prove falsity & negligence (?)
(e) Private Person / Private Concern: no need to prove actual malice to recover presumed / punitive
(f) Private citizens can become public figures with regard to a particular incident by thrusting themselves into
the spotlight for a single issue.
Intentional Infliction of Emotional Distress
- Public figures / officials must prove that the alleged defamatory publication (1) contained false statements of
fact, and (2) was made with actual malice. Hustler Magazine v. Falwell.
Hustler v. Falwell: Public figures and officials may not recover for the tort of IIED by reason of “parody
publications” without showing in addition that the publication contained false statements of facts made with actual
malice. In Hustler, Court held that a parody of Jerry Falwell was protected under the First Amendment.
- As a public figure, Falwell had to meet the NY Times / malice standard
- A public figure cannot waive that standard by changing the underlying tort from libel to IIED.
- The test may be different (using a lower standard) if a private individual brings an IIED suit.
Public Disclosure of Private Facts
- Involves publishing (1) non-public info (2) that is not of legitimate concern to the public, and (3) the publication
of which would offend reasonable people.
- Government cannot impose liability for publicizing public documents’ contents truthfully. Cox Broad. Corp. v.
Cohn; Landmark Communications, Inc. v. VA.
- Similarly, if the media lawfully obtains truthful info about a matter of public significance, state law may punish
its publication only to further a state interest of the highest order. Florida Star v. B.J.F.
o Court never decided whether information obtained from private sources merits the same protection
Cox Broadcasting Corp. v. Cohn: The government cannot impose civil or criminal liability for publicizing public
documents’ contents truthfully. In Cox, when TV reporters broadcast a rape victim’s name, violating state criminal
laws, the victim’s parents sued for privacy violations.
- Media coverage improves judicial proceedings through public scrutiny, so the government cannot prohibit the
media from publishing public records’ contents. People rely on media reports to get information they cannot
obtain themselves.
Florida Star v. B.J.F.: When a newspaper publishes lawfully obtained truthful info, punishment may be imposed
only narrowly tailored to a state interest of the highest order (strict scrutiny). In B.J.F., the Court allowed π to
publish the name of a sexual assault victim in violation of state law because the law was not narrowly tailored (it
was too broad).
- When dealing with true information that is lawfully obtained, there must be a compelling interest for the state to
censor speech, and the law must be narrowly tailored to meet the interest.
- The statute was overbroad: it applied to all victims regardless of circumstances and only prohibited the press.
Bartnicki v. Vopper (supplement case):
- Cell phone conversation illegally taped and broadcast. Federal law prohibits dissemination of information that
you know or have reason to know was illegally obtained.
- Bartnicki alleges that it will chill his speech if he thinks that not only can his speech be illegally taped, but can
then be broadcast to the nation.
The disseminator of the speech in no way participated in the illegal taping of the conversation.
Triggers strict scrutiny.
o State interest: Deter illegal activity and protect the individual’s right to privacy.
o Why isn’t that a sufficiently compelling interest?
Dissent says strict scrutiny shouldn’t be used because this is content-neutral. It should be intermediate scrutiny
because it is a law aimed at conduct with incidental consequences to speech.
Right of Publicity: Allows people exclusive commercial use of their own names, images or performances
- If someone broadcasts it, they may be liable civilly, but only if the plaintiff proves damages. Zacchini v.
Scripps-Howard Broad.
Communicative Conduct
Wordless acts can send messages: marches, armbands, gestures. The Court usually extends protection to such
“communicative conduct.”
- Spencer v. Washinton: Conduct is protected as “communicative” with:
(1) An intent to convey a particularized message, AND
(2) In the surrounding circumstances, the likelihood was great that the message would be understood by
Government Regulation of Communicative Conduct
- O’Brien Test: When an act combines “speech” and “nonspeech” elements, the government may impose
regulation if:
(1) It furthers an important or substantial government interest,
(2) It is unrelated to the suppression of the freedom of expression,
(3) The incidental restrictions on free speech are no greater than necessary to further the interest, AND
(4) The government may constitutionally regulate the conduct.
- Flag Desecreation Protected: Government may not ban flag-burning as a means of expression. TX v. Johnson;
U.S. v. Eichman.
- Political Spending as Political “Speech”: Government may limit campaign contributions but not campaign
expenditures. Buckley v. Valeo.
o Criticisms of Buckley:
 With the spending bar rising, third parties cannot afford to campaign effectively.
 Political spending is not “pure speech”
 Interest groups manage to buy influence indirectly by spending on “independent” ads which
promote favored candidates’ positions
o Continued Distinction Between Contributions & Expenditures: Later decisions permitted limiting
“contributions” but not “expenditures.” Nixon v. Shrink Missouri Government PAC.
 Contributions: Okay to restrict b/c still allow speech, and it serves government interest in
stopping corruption and the appearance of corruption.
 Expenditures: Increased interference with speech, and a weaker nexus to government interest
o Corporate Spending as Speech: Corporate spending to advocate issues is protected as speech, just like
individuals’ speech. First National Bank of Boston v. Bellotti.
U.S. v. O’Brien: When speech and non-speech elements are combined in the same course of conduct, a sufficiently
important government interest in regulating the non-speech elements can justify First Amendment limitations. In
O’Brien, the Court held that Δ’s conduct of burning a draft card in protest of the war was not protected speech.
- The government had a substantial interest in maintaining its draft system that could only be maintained by
regulating the use of draft cards.
- The Court will not strike down an otherwise constitutional statute on the basis of an otherwise illicit motive
(i.e., the suppression of speech)
- Dissent: Δ’s conduct was clearly speech and the statute was related to the suppression of antiwar ideas.
Texas v. Johnson: For conduct to be viewed as speech, there must be (1) an intent to convey a particular message
and (2) the likelihood that viewers will understand the speech’s meaning. In Texas, the Court struck down the
conviction of Δ under a TX flag burning statute.
- For the O’Brien test to apply to conduct/speech, the government must assert an interest unrelated to the
suppression of speech. Texas’s interest in preserving the sanctity of the flag was directed at the content of the
offensive speech.
- Rehnquist’s Dissent: The flag is unique as a symbol of national unity and burning it does not express any
“point of view.” Flag burning is not essential in the exposition of ideas.
Stevens’ Dissent: Sanctioning the public desecration of the flag tarnishes it value, and this is unjustified by the
ban’s trivial burden on expression. There are other modes of expression available to protesters besides burning
the flag.
Buckley v. Valeo: The government may limit campaign contributions, but not campaign expenditures. The court
uses strict scrutiny, and rejects use of the O’Brien test.
- Court treats this as pure political speech, not as conduct. This triggers strict scrutiny.
- The basic idea is that campaign expenditures are directly connected to political speech, since everything from
advertisements to flyers to campaign rallies cost money. So expenditures should not be limited, because doing
so limits the amount of speech available to the party. Campaign contributions, on the other hand, are not
restrictive on the amount of political speech a party can make.
- Court strikes a balance: as long as we allow you to make as much expenditure as you want, then we are okay in
limiting contributions.
Nixon v. Shrink MO Government PAC: States may impose campaign contribution limits, at any amount which does
not make contributions pointless. In Nixon, lobbyists challenged a state imposed campaign contribution limit statute
(as opposed to the federally imposed limits).
- π claimed that MO didn’t present sufficient evidence that corruption and voter apathy were real problems
warranting the imposition of the statute. The court said that lack of evidence didn’t make the statute void.
- The amount of empirical evidence needed to satisfy heightened scrutiny of statutes will vary, depending on the
claimed justification’s novelty and plausibility. Corruption from contributions and resultant voter apathy were
neither novel nor implausible and therefore didn’t require much evidence.
- Campaign contribution limitations will be voided only if (1) so radical that it renders political associations
ineffective, (2) mutes candidates’ messages, or (3) renders contribution pointless.
- Stevens’ Concurrence: Money is property, not speech. Spending should not be protected the same as pure
- Kennedy’s Dissent: Buckley was wrong and should be repealed. The results of the Buckley decision were to
make “covert speech” and force contributors to make increasingly elaborate methods of evading fixed spending
limits. They contribute “soft money,” which is unregulated, and cloak it in “issue advocacy” (promoting or
attacking a candidate’s position without actually urging their election or defeat).
- Thomas’s Dissent: Campaign contribution limits should be examined via strict scrutiny.
Federal Election Commission v. Colorado Republican Federal Campaign Committee: Coordinated campaign
expenditures are really the same as contributions.
- Anything that is the “functional equivalent” of a contribution should be analyzed as such, and not as an
- If we got around contribution limits by simply coordinating with the candidate as to how to make expenditures,
then we have the same risk of corruption and the appearance thereof.
First National Bank of Boston v. Bellotti: The government cannot ban corporations from spending to advocate their
opinions publicly. In Bellotti, corporations challenged a state statute banning them from spending to influence
referendums on individual tax policy, saying the ban abridged corporate First Amendment rights.
- The issue was wrongly stated by the lower court. The issue is not whether corporations enjoy First Amendment
rights, but whether the statute in question abridges expression protected by the First Amendment—which it
- The speech infringed by the statute is political speech, which is at the core of the First Amendment.
- Speech should not be permitted from one source and not from another; i.e., the same speech here at issue would
be permitted from an individual so it should not be banned simply because it comes from a corporation.
- State said they were addressing problems of undue influence and voter disillusionment, but Court said they did
not prove those theoretical problems exist (see Nixon above, though: does this mean they are novel and
- Statute was under-inclusive: corporations may still lobby influence everything except referendums.
- Statute was over-inclusive: banned corporation from speaking on referendum issues even where all
shareholders supported that position.
Federal Election Commission v. Beaumont (supplement case): Nonprofit advocacy corporations don’t have the
problem of protecting shareholders’ intents. But the other interest, corruption and the appearance thereof, is still
- Much greater deference given to Congress, stating deference is “particularly warranted” when Congress makes
decisions about campaign contribution
The standard the Court will use for contributions is “lesser demand” as closely drawn to match a sufficiently
important government interest (avoiding corruption and the appearance of corruption / potential corruption)
Thomas & Scalia dissent, arguing for strict scrutiny to be applied to all of these.
McConnell v. Federal Election Commission (supplement case):
- Soft Money. Any money not subject to federal campaign laws. The new law sought to restrict soft money by
broadly prohibiting parties from receiving or spending soft money to fund a federal election, and subject soft
money to all the same restrictions as hard money.
- Issue Ads. The old law drew distinction between express advocacy (urging election or defeat of a specific
candidate) and issue advocacy (not regulated).
- Merge these categories and developed new category: Electioneering Communications. Subjected all ads to the
same restrictions as express advocacy.
o Court held this new restriction was permissible. Parties can still make their position known and
get their messages out—in other words, speech is not totally prohibited, it is just limited.
- Does the Court retain Buckley? YES. It is not only retained but is expanded a bit as well.
- Level of scrutiny depends on level at which laws seek to circumvent the contribution limitations.
- Seemed to cross a line between expenditures and contributions; how does the Court get around that? Majority
says we can pass a law that prohibits expenditures where such is being used to circumvent the contribution
limitations. The commonly understood distinction between expenditures and contributions starts to be altered
by this case.
- Disclosure requirements. What’s the argument that it’s okay to require disclosure? It will help avoid corruption
if public can see where public figures are receiving their funds. Might discourage corruption, and will help
inform voters.
- Upholds both soft money and electioneering communication restrictions, and it ends with “We are under no
illusion that this new law will be the last Congressional statement on the matter. Money, like water, will always
find an outlet.” Court is basically saying that they will uphold Congress’ right to try to fix the problems with
- Dissent: Clarence Thomas. Anonymous political writing and action is part of our history, and is what our
founding fathers did. The majority doesn’t address the notion that you chill speech when you require
disclosure. Implicitly, the majority believes it’s more important to know who you’re voting for and who’s
supporting that person than it is to protect the anonymity.
- Scalia’s Dissent: Court hasn’t been so deferential to Congress re: freedom of speech. Political speech is the
core speech protected by the First Amendment, yet it receives a lower level of scrutiny.
- Note that this decision allows the media to go unregulated.
Places Which May Be Used For Speech
To Make Mass Speeches / Rallies, Individuals Require Public Space
- Often, they claim the First Amendment should allow them to use various forums to speak. Thus, the Court may
permit access, based on whether the forum is public, semipublic, or private.
- There are special rules for “authoritarian” environments: army, jails, and schools.
- Private property owners are not bound by the Constitution (no state action) so they can ban whatever speech
they want on their own land.
Speech on Government Properties
- Originally, Court said government may deny speakers use of governmental property because it has complete
control over it, like private property owners. More recently, Court held that government must allow public
places to be used for speech and can regulate access only to ensure convenience and maintain order. Hague v.
Committee for Industrial Organization; Schneider v. NJ.
- Some government property—courtrooms, highways, etc.—cannot be opened to disruptive public speech.
- The degree of speech restriction permitted depends on whether the forum is public, limited public or non-public.
Hague v. Committee for Industrial Organization: The government must allow public places to be used for speech,
and can regulate access only to ensure convenience and maintain order. In Hague, union pamphleteers challenged a
city ordinance that allowed the police chief to arbitrarily ban assembly in public streets and parks.
- Streets and parks have traditionally be deemed to be “held in trust by the government” for the people, and have
historically been used as places for assembly, communication and discussion of public issues.
- Public speech may not disturb the general comfort, convenience peace and order.
- Police may not “maintain order” simply by closing them to speech and assembly.
Schneider v. New Jersey: Although municipalities have a duty to keep their streets clear for traffic, it does not give
them license to abridge the constitutional liberty of an individual rightfully upon the street to distribute literature. In
Schneider, the Court invalidated several ordinances prohibiting leafleting on public streets or other public places,
which the municipalities claimed was to prevent litter.
- Government’s interest in keeping streets clean and neat is insufficient to justify banning pamphleteering to
willing recipients.
- Government must use other means to prevent litter, such as punishing the litterers themselves.
- Government may regulate conduct so as to prevent congestion on streets or to prevent the blocking of cars and
Public Forums: Public properties devoted to public speech, by traditional or government fiat / tolerance. E.g.,
sidewalks, parks.
o Content-Based Restrictions: subject to strict scrutiny (compelling interest, narrowly tailored).
Perry Education Assn. v. Perry Local Educators’ Assn.
 In public forums, government cannot selectively exclude certain speakers based on their
content, issue or viewpoint. Also cannot allow some speech while generally excluding
most. Police Dept. of Chicago v. Mosley.
o Time, Manner, Place Restrictions: Imposed to minimize disruption, subject to intermediate
scrutiny: (1) content-neutral, (2) significant govt. interest, (3) narrowly-tailored, & (4) leave
alternative channels of communication. Heffrom v. International Society for Krishna
 E.g.: laws against nighttime demonstrations, rallies in narrow side streets, banning public
display of weapons
 Court found a statute banning abortion clinic speakers from approaching patients was
“content-neutral” because it nominally applied to all speakers at all health care facilities.
Hill et al. v. Colorado.
 Court’s approach in other contexts is inconsistent.
 Least Restrictive Alternative Not Required: For TMPl restrictions only, they are
“narrowly tailored” as long as they are more effective than no regulation at all, even if
they are not the least restrictive method. Ward v. Rock Against Racism.
o Permits / Licenses: Permissible if (1) important purpose, (2) sets clear standards for granting /
rejecting applicants allowing almost no discretion, and (3) provides procedural safeguards—
prompt decisions and judicial review of denials
 The more discretion officials have in granting the permit, the greater the chance it will be
invalidated. Georgia v. Nationalist Movement.
 Generally the government can charge “nominal” fees to defray policing costs.
Perry Education Assn. v. Perry Local Educators’ Assn.:
- Content-based speech restrictions in public forums and limited public forums are permitted only if they meet
strict scrutiny.
- Time Manner Place (TMPl) restrictions are allowed if (1) content-neutral, (2) serve significant government
interest, (3) are narrowly-tailored, and (4) leave ample alternative channels of communication.
- Non-public forums may have TMPl restrictions if they are (1) reasonable and (2) viewpoint neutral.
- Board of Education’s school mail system is a non-public forum: it was traditionally non-public and its normal,
intended function was to communicate the school’s messages (not the public’s messages).
Police Dept. of Chicago v. Mosley: In public forums, government cannot selectively exclude certain speakers based
on their content, issue or viewpoint. In Mosley, a non-labor school picketer challenged a city ordinance as contentbased which generally banned picketing schools but exempted labor picketing.
- Analyzed ordinance under 14th Amendment’s Equal Protection Clause because it treats some picketing
differently from others.
- Once the government opens a forum for speech or assembly by some groups, it cannot then prohibit other
groups from using it based on the speech content. The government can only regulate it per content-neutral
TMPl restrictions.
Hill et al. v. Colorado: States may enforce the rights of individuals to be left alone so long as the restriction is
content-neutral. In Hill, the Court upheld a Colorado statute making it unlawful to “knowingly approach” within
eight feet of a person without consent for the purpose of passing a leaflet or handbill, displaying a sign or engaging
in oral protests within designated areas.
- The sidewalks were public forums.
- The restriction was narrowly tailored and, arguably, content-neutral
A flat buffer-zone would have been overbroad; the “knowingly approach” provision narrowed the
Scalia’s Dissent: The restriction was clearly content-based against anit-abortion speakers and should require
strict scrutiny.
o The ordinance, even if not content based, was not narrowly tailored; alternative methods that were
less restrictive to free speech were available.
Under Ward (see below), the narrow tailoring was satisfactory. Narrow tailoring is satisfied as long as the
important government interest would be less likely achieved without the regulation.
Ward v. Rock Against Racism: Although a TMPl restriction must be narrowly-tailored to serve the government’s
content-neutral interest, it need not be the least restrictive or least intrusive means. In Ward, the Court held that the
government may employ reasonable TMPl restrictions in a public forum. [A city required park concerts to use cityapproved amplifiers and sound technicians to reduce noise to surrounding areas and apartments.]
- Narrow tailoring is satisfied so long as the government regulation promotes a substantial government interest
that would be achieved less effectively absent the regulation.
- Ward is the best argument for government regulations in narrow-tailoring situations.
- Marshall’s Dissent: Not requiring the “least restrictive” element gives too much discretion to officials.
Limited Public Forums: Public places which the government affirmatively opened for public speech, at least
temporarily, e.g., a public school / university hall opened to various speakers.
o A property opened as a “limited public forum” need not be kept open as such indefinitely.
However, while the government keeps it open it is bound by the same rules as traditional public
Non-Public Forums: Other public properties, which were never opened for public speech—neither by tradition,
fiat, tolerance, nor governmental permission—are classified as “non-public forums” such as airports and
o If the forum has been opened to general access then it will be treated as a public forum. If the
forum has been opened to selective access then it will be treated as a non-public forum.
o Government may impose TMPl restrictions.
o Government may restrict space to its intended function (even by banning speech) if the restriction
is: (1) reasonable and (2) viewpoint-neutral.
o Court never articulated a comprehensive test to determine when a government property is nonpublic.
 Jail property is a non-public forum (Adderley v. FL) as are military bases (Greer v.
 When the government operates a commercial venture, it and its advertising is deemed
non-public. Lehman v. City of Shaker Heights.
 If a sidewalk outside a government property was constructed only to permit access (rather
than for public convenience), then it is not a public forum. U.S. v. Kokinda.
 Airports are non-public forums, and may ban solicitation but not pamphleteering.
International Society for Krishna Consciousness.
 Generally, public has no right of access to state-owned TV, but publicly-televised
candidate debates are non-public forums. Arkansas Educational Television Commission
v. Forbes.
Adderley v. Florida: Jail property is a non-public forum and the government may punish trespass there. In
Adderley, anti-discrimination protesters, arrested for trespassing on jail grounds, challenged their prosecution as
- The jail property’s intended use is as a jail, and the state has the power to preserve the property for that use.
- No evidence indicated that the sheriff arrested the demonstrators because of their speech or objective, but rather
that they were arrested for to clear the jail grounds for jail uses.
- Douglas’ Dissent: Jailhouses are historically governmental seats and therefore are obvious places to protest
unjust imprisonment and petition for redress.
Greer v. Spock: Military bases are non-public forums, and the government need not permit speech there. In Greer,
political candidates who were denied permission to speak at an Army training base claimed the base became a
limited public forum when officials permitted other civilian speakers.
- Government has the power to preserve the property it controls for the use to which it is lawfully dedicated.
- Maintaining an army is an indispensable function. The business of the military bases is to train soldiers, not
provide public forums.
Brennan’s Dissent: The competing interests of national security and first amendment speech should be
Lehman v. City of Shaker Heights: When the government operates a commercial venture, it may accept commercial
advertising while prohibiting political ads. In Lehman, the Court held that a public transit system could sell
commercial advertising space and refuse to print political ads.
- The bus cards were not a public forum.
- The city’s decision was reasonable to avoid political favoritism and influence a captive audience.
- The city is acting in a proprietary capacity and may make decisions accordingly (it is not acting as a lawmaker
in that capacity).
U.S. v. Kokinda: If the sidewalk outside a government property was constructed only to permit access (rather than
for public convenience) then it is not a “public forum” and speech restrictions there are valid if “reasonable.”
- Solicitation is protected by the First Amendment. However, solicitation lends itself to duress because it is an inperson interaction that seeks immediate response.
- Postal Service never expressly dedicated its sidewalks as a limited public forum open to speech.
- Restriction was reasonable based on Postal Service’s long history of permitted solicitation causing actual
distraction to postal managers.
- Kennedy’s Concurrence: The property was a limited public forum, but the regulation was a valid TMPl
- Brennan’s Dissent: This was a public sidewalk, but even if it was not, the regulation could not pass muster
because it is content-based.
International Society for Krishna Consciousness, Inc. v. Lee: Airports are non-public forums and may ban
solicitation. In Lee, the Court upheld a NY law prohibiting solicitation within airport terminals, but allowing
solicitation on outside sidewalks.
- In areas not traditionally open to public expression, regulations need only be reasonable and viewpoint neutral
- In Lee, the Court looked to history to decide that an airport (even in its relatively brief history) was not a
traditional public forum.
Arkansas Educational Television Commission v. Forbes: State-owned television stations are not public fora. In
Forbes, the Court held that a PBS station’s decision to exclude an independent candidate for a debate was a
reasonable, viewpoint-neutral exercise of managing a non-public forum.
- The debate did not open the station as a designated public forum because the government did not open the
forum indiscriminately to the public—this was a situation of selective access, not general access.
Differences on Broadcast Media
Broadcast Media
1) Scarcity of broadcast frequencies
2) The Public owns the airwaves which
are licensed and regulated by the
government to protect the public
3) Greater regulation is allowed
- look at captive audiences in the
home, and
- accessibility to children
Cable Television
1)  regulated like broadcast media
2) “must carry” provisions are seen as
content neutral
- require intermediate scrutiny
regulated like the print
media using strict
Speech on Private Property
- Early cases held that some large private businesses could not exclude protesters. Marsh v. Alabama (company
town could not exclude religious pamphleteering); Amalgamated Food Employees Union v. Logan Valley Plaza
(private shopping mall couldn’t exclude picketers).
- Later decisions held the First Amendment inapplicable to private property owners and as not compelling them
to allow speech there. Hudgens v. National Labor Relations Board.
- State constitutions can create a right of access to shopping centers. PruneYard Shopping Center v. Robins.
Speech in Prisons, Schools and the Military
- Generally the Court allows greater speech restrictions in the army, school and jails, where attendance is often
involuntary and authoritarianism reigns.
Military: The Court held the First Amendment offers military personnel less protection than civilians.
Parker v. Levy (UCMJ’s speech restrictions valid even if slightly overbroad); Brown v. Glines (army
may impose prior restraint).
Prisons: Prisons’ restrictions are valid if (a) government’s objective is legitimate, (b) neutral, and (c)
regulations are “rationally related” to that objective. Thornburgh v. Abbott (ban on inflammatory
publications valid).
a. However, jails cannot prohibit inmates from writing uncensored letters outside. Procunier v.
Martinez (ban on grievance letters void).
b. Press may be denied access to jail and prisoners.
c. Inmates’ assembly may be curtailed.
Schools: Court’s deference to schools’ speech restrictions varies: schools require less discipline than
armies or jails, but may need to make decisions about how best to discipline and educate.
a. Students and teachers retain some First Amendment protections, consistent with school officials’
need to maintain some discipline. Public schools cannot restrict students’ expression unless it
would “materially and substantially interfere” with appropriate school discipline. Tinker v. Des
Moines Independent Comm. School Dist. (school could not expel students wearing anti-Vietnam
b. Schools may sanction students’ lewd speech. Bethel School Dist. v. Fraser (student suspendable
for making innuendo-laced election speech).
c. When schools sponsor expressive activities (newspapers, plays, etc.) they may edit / censor the
product if (1) their actions are reasonably related (2) to legitimate pedagogical concerns.
Hazelwood School Dist. v. Kuhlmeier (school paper may delete articles about students’
pregnancies and family problems).
d. School officials may remove books from the library if they are vulgar, and may choose to buy
some books and not others, but not in order to deny students access to their ideas.
Parker v. Levy: The Uniform Code of Military Justice’s speech restrictions are not overbroad considering the First
Amendment offers military personnel less protection than civilians. In Parker, a black soldier was convicted under
military law for urging blacks not to fight in Vietnam, and he challenged the military law as overbroad.
- The military’s mission is to be prepared to fight, so while military members are not devoid of First Amendment
rights, they are applied differently.
- In the military, obedience is fundamental.
- Note that Greer v. Spock deals with the where (speech on a military base) whereas Parker deals with the who
(person in the military)
- Douglas’ Dissent: The First Amendment does not exempt military personnel.
- Stewart’s Dissent: The statutory provisions challenged are unconstitutionally vague and are incomprehensible
to servicemen. This permits arbitrary and discriminatory enforcement, which is constitutionally improper.
Thornburgh v. Abbott: Prisons’ restrictions on speech are valid if (1) the government’s objective is legitimate and
(2) neutral and (3) the regulations are “rationally related” to that objective. In Thornburgh, prisoners and inmatetargeted journals challenged prison regulations giving wardens discretion to ban dangerous materials.
- First Amendment protections for prisoners are lessened because of the fundamental need to maintain prison
- Deference must be given to the prison administrators’ decisions as they have more expertise in the area than do
- Stevens’ Concurrence: Prisons used this regulation to suppress 46 publications, despite testimony that officials
believed they posed no threat. This level of censorship must be examined with more than reasonableness.
Tinker v. Des Moines Independent Comm. School Dist.: Students may present unpopular views so long as they do
not materially and substantially interfere with appropriate discipline in and operation of the school, and without
colliding with the rights of other students. In Tinker, the Court held that a school’s suspension of students for
wearing armbands in protest of the Vietnam war violated the First Amendment.
- The armbands were a speech-mixed-with-conduct case (O’Brien).
o Thus they required (1) a substantial government interest (2) unrelated to the content of the speech and (3)
narrowly tailored means
o This was not a case dealing with secondary effects because it dealt with the direct emotive impact of the
- High schools are traditionally nonpublic fora; but the regulation must be reasonable and viewpoint neutral while
still avoiding overbreadth.
- Although a school is not a traditional public forum, students do not shed all their First Amendment rights at the
door. School boards must have evidence of a material, substantial disruption to support a restriction on speech.
Black’s Dissent: While schools are not void of all First Amendment protections, school boards have wide
authority governing conduct to protect the safety of their students. Students are too immature to make decisions
regarding educational policy and discipline.
Bethel School Dist. v. Fraser: Schools may sanction students’ lewd speech. In Bethel, a high school student gave
an election speech that included sexual innuendo, and the school attempted to suspend him.
- The student’s speech was non-political, it was not passive, and it was disruptive.
- Schools are supposed to teach what kind of speech is appropriate and tolerable, and the school would be remiss
if it did not sanction lewd and vulgar speech.
- Brennan’s Concurrence: Schools are allowed to teach students how to conduct civil, effective public discourse
and to prevent the disruption of educational assemblies.
- Marshall’s Dissent: School must prove the speech was disruptive instead of just claiming that it might be.
Hazelwood School Dist. v. Kuhlmeier: Educators do not offend the First Amendment by exercising editorial control
over the style and content of student speech in school-sponsored expressive activities so long as their actions are
reasonably related to legitimate pedagogical concerns. In Kuhlmeier, the Court upheld a principal’s refusal to let a
school paper publish articles on pregnancy and divorce.
- .Speech is less protected in school-sponsored events, but restrictions must still be reasonably related to
legitimate pedagogical concerns.
- Some viewpoint-discrimination is allowed.
- Grade schools are different than universities: educators play less of a parental role when dealing with adults in
college, and there is a difference in pedagogical concerns.
- Brennan’s Dissent: Under Tinker only disrespectful speech may be censored. Newspaper censorship does not
serve pedagogical concerns and is more akin to viewpoint discrimination.
Pickering Balancing Test:
Right of government employees, as citizens, to speak on matters of public concern
a. Form
b. Content
c. Context (Is it speech as concern citizen or simply as disgruntled employee?)
a. Citizens’ right to receive that information
b. Government’s right to operate effectively and efficiently
i. Disruption: Did the speech disrupt the functioning of the office?
ii. Disharmony: Was the speech directed at someone with whom the speaker has a close
working relationship?
Compare Pickering to Connick:
- In Pickering, generally speaking, if the speech is of public concern, the government must show actual material
and substantial disruption in order to sanction the speech.
- In Connick, where the speech is less a matter of public concern (and therefore less protected) then a reasonable
belief in disruptive potential is sufficient to justify the sanction.
Rankin v. McPherson: Where an employee serves no confidential, policymaking, or public contact role, the danger
to the agency’s successful functioning from that employee’s private speech is minimal. At some point, such
concerns are so removed from the effective functioning of the public employer that they cannot prevail over the free
speech rights of the public employee.
- A clerical employee working in a constable’s office said that she hoped the next time someone tried to
assassinate Regan, that person succeeded. Constable’s office wanted to fire her for that.
Freedom of Association: The Court holds the First Amendment to imply freedom of association with groups that
advance certain ideologies, petition the government collectively, pool resources for mass persuasion, etc.
Laws Prohibiting / Punishing Membership
The test is activated when the government takes various sanctions which count as punishments, including denying
public employment, requiring loyalty oaths, denying state bar memberships, etc.
- Government may punish membership only if the member:
1) Is actively affiliated with a group with illegal objectives
2) Knows of those illegal objectives and
3) Specifically intends to further those objectives.
In practice, the government used this to punish Communists and anarchists.
Revisiting the Doctrine of Unconstitutional Conditions: Government cannot condition employment or some
other government benefit on membership (or lack thereof) in some group
Patronage: Can public employees be discharged or threatened with discharge solely because of their political
affiliation? See Elrod v. Burns.
- Efficiency:
o Supporters argue the official needs to be surrounded by “his own people” in order to carry out the
objectives of the administration.
o Challengers argue that it is inefficient because it basically brings in people whose only “qualification” is
that they belong to the correct political party; they have no training in the job they’re taking.
- Sabotage:
o Supporters argue that employees not of their political party would sabotage their administrative goals.
o Challengers argue that if an employee stops doing their job or tries to take steps to sabotage their job, then
you can document that in a personnel file and terminate them on grounds. Makes no sense to presuppose
that someone would be unwilling to perform their job only because a Republican is in office instead of a
- Support:
o If we don’t have the “carrot” of jobs dangling in front of people, then you won’t be able to get people to
work in campaigns. The run for County Clerk doesn’t stir a lot of interest without the hope of getting or
keeping jobs. The dissent in Elrod holds fast to this point.
- Strict Scrutiny: We give freedom of association rights more protection than speech rights. Why?
- Court simply borrows language from a previous case using the Doctrine of Unconstitutional Conditions to say
that patronage firings were illegal. The question becomes whether the government has a compelling interest in
maintaining patronage systems.
Branti v. Finkel:
Laws Requiring Membership be Disclosed
- Strict scrutiny used
- If disclosure of an expressive assembly’s membership would chill its speech / assembly, then the state cannot
compel it, absent a valid, controlling reason. NAACP v. Alabama ex rel. Patterson (unpopular anti-racism
group need not reveal all members).
- Campaign Finance Disclosure: Many campaign finance laws require donors to reveal their identities. Court
generally upholds this even though it may chill donations for unpopular / minor parties. Buckley v. Valeo. But
where the risk of reprisal is great, the Court may exempt parties. Brown v. Socialist Workers ’74 Campaign
NAACP v. Alabama ex. rel. Patterson: If disclosure of an expressive assembly’s membership would chill its speech
/ assembly, then the state cannot compel it, unless it has a valid, controlling reason. In Patterson, the NAACP
defied a court order compelling it to disclose all members, contending it violates their speech / assembly right by
inviting retaliation.
- Both speech and association are necessary for effective advocacy.
- If state action impinges on either speech or association, then strict scrutiny is appropriate.
- Alabama did not present an interest sufficient to warrant the “chilling effect” of disclosure
Compelled Association: Certain professionals are required to join a union and pay dues to support its advocacy.
- Mandatory organizations (required unions, bar associations, etc.) may collect dues and use them for functions
benefiting all members (e.g., collective bargaining, maintaining professional standards) but may not spend dues
on viewpoint advocacy. Abood v. Detroit Bd. of Educ. (government employees may be required to union dues
for collective bargaining costs but not for ideological / political causes); Keller v. St. Bar of CA (compulsory
bar dues can be spent to regulate lawyers and improve legal services but not on anti-gun or anti-nuke
- State-owned schools may collect mandatory fees and spend them on promoting student organizations’ own
speech / advocacy, to further education and civics. But if they do, students may insist on some viewpointneutral procedural safeguards to limit the speech their money supports. Board of Regents of Univ. of WI
System v. Southworth.
Board of Regents of the Univ. of WI Sys. v. Southworth: In Southworth, students challenged a public university’s
mandatory student activity, 20% of which was used to fund student organizations, some of which may advocate
possibly objectionable speech.
- Student activities are not traditionally-public forums, but the funds should be similarly viewpoint neutral if the
school is going to condition its degree on agreeing to fund others’ possibly objectionable speech.
- Students may insist on viewpoint-neutral procedural safeguards.
- The university’s important/substantial purpose is promoting speech and the educational experience
- The procedural safeguard in place in Southworth was questionable, though, because it allowed the majority of
students to silence a minority viewpoint by putting funding applications through a student vote.
Anti-Discrimination Laws: Private groups’/clubs’ claimed right to associate with only similar members may
amount to discrimination and conflict with anti-discrimination laws.
- Two sources of associational freedom: (1) Intimate, founded in due process liberty and privacy, and (2)
Expressive, the actual expression of ideas.
- Intimate (Personal) Associations: “Freedom of Association” includes the right to form certain highly personal
relationships without state interference.
o Such relationships usually involve family (marriage, childbirth, raising children, cohabitating with
relatives, etc.)
o An “intimate association” defense depends on association’s degree of intimacy: small size, high
selectivity, scheduled activities, congeniality, purpose, policies, etc.
- Associations for Expression: Most associations are linked by belief, not family. Government regulation of
expressive associations must meet strict scrutiny: (1) serves compelling state interests (2) which are unrelated to
suppressing ideas (3) that cannot be achieved through significantly less restrictive means. Roberts v. U.S.
Jaycees (state can force male civic organization to admit women).
o TEST for Expressive Associations: (1) Is the organization engaged in an expressive activity? (2)
If yes, would the admission of the challenged members significantly impair the expression? (3)
Does the government have viewpoint-neutral compelling interest to ending the discrimination that
can be met in no less restrictive way?
o State anti-discrimination law cannot require private parade organizers to admit certain groups, if
admitting them would change the parade’s message. Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston (Irish parade may ban gay marchers as a unit).
o Expressive Associations need not accept members whose presence significantly impacts their
ability to advocate their viewpoint, barring strong countervailing policy reasons.
 In order to qualify as an “expressive association,” a group must show some kind of
discernable expression or message, explicit or implicit, which will be impeded. Boy
Scouts of America v. Dale (BSA’s message implicitly includes banning gays).
Roberts v. U.S. Jaycees: The Constitution protects both intimate and expressive association. In Roberts, the Court
held that the Minnesota Human Rights Act’s requirement for the Jaycees to allow women as members did not
violate the First Amendment because the Jaycees did not qualify as an intimate or expressive association with regard
to women.
- State and federal governments require commercial / employment associations not to discriminate.
- The Jaycees were not an intimate association; they were huge, not really selective in membership, and already
admitted women as associate non-voting members.
Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston: A fundamental rule underlying the First
Amendment is that a private speaker has the right to choose his message. In Hurley, the Court struck down a Boston
ordinance requiring private parade organizers to allow gays to march as a unit in a parade.
- In this instance, the gays could be easily associated with the speaker
- The speaker clearly chose not to allow gays access to the parade.
Boy Scouts of America v. Dale: The Court held that a NJ public accommodations law requiring the BSA to allow a
gay scout leader deprived the BSA of its expressive association rights.
- The BSA was found to be an expressive association for the purpose of distilling values. Allowing gays would
be tantamount to advocating homosexual values, significantly impairing the values the BSA was trying to
- The Court applied strict scrutiny when examining the NJ law, and found no compelling interest in forcing the
BSA to have a gay leader.
- Stevens’ Dissent: The BSA has no discernable anti-gay “message” that would be impaired, so Dale should be
permitted to be a member. The BSA handbook does not discuss the matter, and because BSA is non-sectarian,
even if the message is religious, some religions accept homosexuality and so that alone wouldn’t create a
discernable message. Policy should promote NJ’s eradication of anti-gay bias, not legitimize it.
Freedom of the Press
Does the press have special rights?
NO. But there are arguments on either side:
- In favor of special rights: Freedom of the press is enumerated as a distinct right from freedom of speech, and
failure to protect the freedom of the press will mean that people are denied significant information.
- Against special rights: Framers’ intent/view, using the words “speech” and “press” synonymously; plus,
defining the “press” presents insurmountable obstacles.
Protecting the Press from the Government
- Taxes on the Press: Media must pay ordinary taxes, but special taxes levied just on the press are
unconstitutional. Grosjean v. American Press Co. The fear is that the government could try to suppress the
press’ investigation and criticism using punitive taxes.
o Even differential taxes that benefit newspapers are unconstitutional. Minneapolis Star and
Tribune Co. v. MN Commr. of Revenue. The fear is that allowing the newspapers to be treated
differently for any reason could lead to censorial treatment.
o It is okay to subject different media to different taxation, as long as it is not a tax directed solely at
the press or that distinguishes amongst the press. Leathers v. Medlock (government could tax
gross receipts while exempting newspapers and magazines but not exempting cable television).
- General Regulatory Laws: The media is not exempt from general regulatory laws. Assoc. Press v. U.S. (press
liable for antitrust); Cohen v. Cowles Media Co. (reporters who revealed confidential source liable for
promissory estoppel).
- Keeping Reporters’ Sources Confidential: Many say the media should have a First Amendment right to refuse
to disclose sources since many sources reveal information only on a condition of anonymity. However, the
Court held that newsmen have no special privilege against grand jury subpoenas to identify confidential sources
(and most other legal proceedings), except that available to the general public. Branzburg v. Hays.
o States and Congress are still free to create a “newsman’s privilege,” and a few states have done so.
- Required Access to Media: The government sometimes tries to pass laws forcing the media to give equal
access to some speakers. Such policies may increase the amount of information available the public, but
conflicts with the media’s journalistic discretion.
o The government may require broadcasters (TV and radio) to give access to opposing views. Red
Lion Broadcasting Co. v. FCC (criticized author may claim right of reply).
o But the government cannot mandate a “right of reply” for newspapers. Miami Herald v. Tornillo.
- First Amendment Right of Access to Government Papers/Places: Some say that press should be allowed special
access to government documents and property to seek out truth for the public. But the Court refuses this.
o Access to Judicial Proceedings: The Court initially rejected any First Amendment right to attend
court proceedings, at least pretrial ones. Gannett v. DePasquale (press excludable from pretrial
hearing on suppressing confession). But later cases held criminal trials are presumptively open to
the public and the press absent “overriding” interests. Richmond Newspapers v. Virginia (judge
cannot close murder trial by mere consent of defendant and prosecutor).
o Access to Prisons: Reporters have no special right beyond those granted to the general public to
enter prisons or interview prisoners. Pell v. Procunier (jail may ban individual interviews with
prisoners); Houchins v. KQED (jail may offer reporters highly-restricted tour and ban cameras /
Minneapolis Star & Tribune Co. v. Minnesota Commr. of Revenue: The government may not tax the press
differently from other businesses, even to benefit it, unless it meets strict scrutiny.
- Must be necessary to achieve overriding governmental interests which cannot be achieved through lessrestrictive means.
- Grosjean not controlling because unlike that case, there is no indication of any impermissible or censorial
motive on the part of the legislature—and, in fact, the newspaper is benefited, not harmed.
- The power to tax differentially gives the government a powerful weapon against the singled-out taxpayer.
- The selection of the press for special treatment threatens it with the possibility of later differential and
burdensome treatment, even though the current law is beneficial.
- Minnesota asserted as its interest the need to raise revenue, which the Court concedes is substantial, but notes
that it could be achieved in a non-differential way: tax businesses generally, instead of levying special tax for
Rehnquist’s Dissent: There is no infringement upon First Amendment rights, and therefore, the Court is wrong
to hold the state to strict scrutiny. “This seems very much akin to protecting something so overzealously that in
the end it is smothered.”
Cohen v. Cowles Media Co.: When generally applicable laws are applied to the media, the level of First
Amendment scrutiny is no higher. In Cohen, a campaign aide who revealed negative information and documents
about a candidate to reporters on their promises of confidentiality (which they broke), sued the reporters for
promissory estoppel.
- The enforcement of generally-applicable laws against the press causes only incidental effects on the press’
ability to gather and report the news.
- The First Amendment does not give the press some shield against generally-applicable laws.
- Souter’s Dissent: It is necessary to do a case-by-case fact-sensitive balancing test to weigh the burdening of
constitutional interests against the interest in applying the law. The state’s interest in enforcing a newspaper’s
promise of confidentiality does not outweigh the interest in unfettered publication of the information revealed in
this case.
Branzburg v. Hays: It is more important to solve crime than to report/talk about crime. As such, newsmen have no
special privilege except those available to the general public against grand jury subpoenas to identify confidential
sources. In Branzburg, reporters challenged grand jury subpoenas requiring them to reveal confidential sources.
- Is newsgathering protected by the First Amendment?
o The Court does not “shut the door” to a press privilege to gather news: “without some protection for
seeking out the news, freedom of the press could be eviscerated.” Powell, in his concurrence, recognizes
some kind of a right and notes that the press could be harassed in such a way that inhibits their ability to
gather news.
o Yes, newsgathering is protected by the First Amendment, but only in a very limited fashion.
- There is no First Amendment privilege for the press to refuse to answer relevant and material questions
conducted during a good-faith grand jury investigation.
- No attempt is made to require the press to always publish its sources, or to indiscriminately disclose them any
time they are requested; this is only for good-faith criminal investigations.
- The public interest in law enforcement and effective grand jury investigations overrides the consequential and
uncertain burden on news gathering.
- There is no concrete evidence to show that the flow of news would be diminished by refusing a “newsman’s
- The administration of such a privilege would be very difficult—how do you define “the press?” The First
Amendment right of press is extended even to someone who wants to print and handout leaflets; do we really
want them to invoke a newsman’s privilege? Where would we draw the line?
- Powell’s Concurrence: The newsman is not without remedy; if he feels the grand jury investigation is being
conducted in bad faith, he can make a motion to quash and get a protective order. The privilege should be
determined on a case-by-case basis balancing the freedom of press with the citizens’ obligation to give
testimony on criminal conduct.
- Stewart’s Dissent: Court invites states to undermine the historic independence of the press by making the
journalistic profession an extension of the investigative arm of the government. A corollary of the right to
publish is the right to gather news, and that implies a right to confidential relationship between reporter and
source. Plus, the impairment of the flow of news cannot be proven with concrete evidence.
Red Lion Broad. Co. v. FCC: Access to broadcast frequencies limits the availability of broadcast media sources and
may be regulated. In Red Lion, the Court upheld the FCC’s “fairness doctrine” requiring broadcast media to allow
rebuttal time to political editorials and character attacks.
- The public has a right to receive suitable access to social, political, esthetic, moral and other ideas.
- The government cannot tell newspapers to grant a right of reply, but the can do so to broadcast media because
of the technological limitations of the airwaves’ frequencies.
o The radio is owned by the government, and there is a sense of public trust which mandates a higher concern
for presenting the issues.
o Scarcity of airwaves: there was less access by private individuals to the airwaves. Today, that may have
evaporated as an argument because nowadays, internet aside, newspapers are probably fewer than
- Unlike the press, the broadcast media is licensed by the government.
- The Court focused on the rights of viewers and listeners.
Miami Herald v. Tornillo: The government may not require the press to print designated materials. In Miami
Herald, the Court struck down a Florida statute requiring a newspaper to publish, for free, a political candidate’s
response to any article attacking his character or record.
- The law was tantamount to a penalty on the basis of certain content (by forcing a paper who prints criticism of a
candidate to pony up free response space) and significantly interfered with the freedom of the press by dictating
content to the papers’ editors.
- “It has yet to be demonstrated how governmental regulation of this crucial process [of editorial control and
judgment] can be exercised consistent with First Amendment guarantees of a free press as they have evolved to
this time.” (page 1221, bottom of page)
Gannett v. DePasquale (Note Case): Press could be excluded from a pretrial proceeding that considered the
suppression of a confession where both parties had consented to closing the courtroom.
- The press and public did not have an actionable right to access through the Sixth Amendment.
REVIEW/HYPO: Methods for Restraining Press Reporting of Court Proceedings
Gag Order.
i. Press can be in the courtroom but cannot publish anything about it.
ii. Prior Restraint? Must meet strict scrutiny. (See Nebraska Press)
After the Fact Punishment of Press.
i. Press can be in the courtroom, does publish information.
ii. Strict scrutiny. Government must meet SS if the press is printing truthful information,
lawfully obtained (at least as far as the reporter is concerned).
Closure Order.
i. The public and the press have a First Amendment right of access to criminal proceedings.
ii. The Court does not rely on any “press as watchdog” argument.
Richmond Newspapers, Inc. v. Virginia: The right of the public to attend trial is implicit in the guarantees of the
First Amendment. In Richmond Newspapers, the Court held that a trial court’s act of barring all observers from a
murder trial for necessary reason violated the First Amendment.
- (1) Is there a history of openness of this particular proceeding? (2) What function would be served by the
public’s presence?
- The history of trials dictates they be presumptively open: encourages fair proceedings and discourages perjury
and misconduct. Openness satisfies the peoples’ “fundamental, natural yearning to see justice done.”
- “Free speech carries with it some freedom to listen.” (page 1225)
- Richmond Newspapers has been extended to pretrial hearings as well.
- The Court in Richmond Newspapers recognizes a right of public access to the courts.
- A judge must meet strict scrutiny to close a court from the public: compelling interest in justice accompanied
by narrowly tailored means (no weaker alternative than shutting out the public).
- The right of public access to civil trials has not been adjudicated.
- The public is often barred from juvenile proceedings.
- Brennan’s Concurrence: Mere agreement by a judge and the parties is not enough, without more justification,
to close a trial to the public. The criminal trial has long been accepted as public in order to further the
appearance of justice. Publicizing trials is also important to expose judges’ law-making to public scrutiny.
- Rehnquist’s Dissent: Constitution does not guarantee the public the right to observe criminal trials. The Sixth
Amendment only grants the defendant the right to public trial; that right is not given to the public.
Pell v. Procunier: Reporters have no special constitutional right beyond that granted to the general public to enter
prisons or interview prisoners. In Pell, a jail barred reporters from individual interviews with inmates, and the
reporters and inmates claimed a First Amendment right to the conduction of the interviews.
- “Under some circumstances, the right of free speech includes a right to communicate a person’s views to any
willing listener, including a willing representative of the press for the purpose of publication by a willing
publisher.” (Page 1230)
- There were alternative modes of communication available to the reporters and prison inmates: they could
exchange letters, for instance.
- The visitation policy of the prison allowed only such visits that would aid the rehabilitation of the inmate (with
families, friends, clergy, and attorneys).
- Because the regulation operates in a neutral fashion without regard to the content of the expression, then it is
- The newsmen assert a right to gather news information. However, “it has generally been held that the First
Amendment does not guarantee the press a constitutional right of special access to information not available to
the public…” (page 1232).
Powell’s Dissent: The absolute ban on prisoner-press interviews impermissibly restrains the press’ ability to
gather news.
Houchins v. KQED: The First Amendment gives the press no special right beyond that given to the public to enter
government-controlled places. In Houchins, the Court upheld a prison’s regulations that denied the media access to
the prison except for restrictive tours without camera and recorders.
- Prison conditions are matters of public concern and importance, but deference must be given to the prison
administrators in the regulations they see fit to run the prison effectively. The Court is not better-equipped to
decide such policies.
- Media can get information in alternative ways: inmates’ letters, prior inmates, inmates’ attorneys and visitors,
public officials, etc.
- It is a legislative decision whether to open prisons to the public, it is not for the Court to determine.
- Stewart’s Concurrence: The media is given “equal access” as the public through the First Amendment, but
“equal” should be considered in light of what is required for the press to convey the news to the public.
- Stevens’ Dissent: The Constitution must be implied as offering protection for information-gathering, otherwise
the news cannot be reported. Thus, the no-access policy is unjustified where prior access by the media to other
jails has caused no administrative problems whatsoever.
HYPO: Dept. of Defense issued order prohibiting journalists from accompanying troops into combat zones. How
would you respond to that?
- No history of openness for military movements and battle.
- Let’s assume that we find a history of openness. What next?
o Is there a similar notion of wanting the public and press to see the military proceeding like the
court proceeding?
- Let’s assume you cover both of the first two hurdles. What next?
o Does the government have a compelling interest for keeping the press out?
The First Amendment states that Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof.”
- Two clauses: “Establishment Clause” and “Free Exercise Clause” apply to the states through incorporation into
Due Process of the 14th Amendment. Cantwell v. CT; Everson v. Bd. of Educ.
- Both clauses act as co-guarantors of religious liberty as “[t]he framers of the constitution did not entrust the
liberty of religious beliefs to either clause alone.” Abington School Dist. v. Schempp (Brennan, concurring).
- The Free Exercise Clause protects an individual’s ability to believe in and exercise their faith.
- The Establishment Clause prevents the government from taking actions that have the primary purpose or effect
of aiding or inhibiting religion, and also prevents government entanglement with religion.
- The historical record is ambiguous regarding the interpretation of the Religion Clauses because there are three
distinct framers’ views:
o Roger Williams: Government involvement would corrupt religion.
o Thomas Jefferson: Religion would corrupt government.
o James Madison: Religion is one of many factions that requires preservation.
- The Court has never really defined religion. It has considered it in three contexts:
“Religion” Under the Selective Service Act
i. Not actually 1st Amend. cases; interpreting statutes.
ii. SSA defined religion as “an individual’s belief in a relation to a Supreme Being involving
duties superior to those arising from any human relation.” U.S. v. Seeger. Thus, those
whose sincere and meaningful beliefs occupy a place in their lives equivalent or parallel
to that of an orthodox belief in God qualify for the exemption.
iii. The key to determining whether beliefs are religious is “whether these beliefs play the
role of a religion and function as a religion in the [person’s] life.” Welsh v. U.S.
Sincerity of Beliefs
i. Finders of fact may only determine if a religious belief is sincere—they may not
determine whether the beliefs themselves are true or false. U.S. v. Ballard.
Relevance of Religious Dogma and Shared Beliefs
i. An individual can claim a religious belief even if it is inconsistent with the doctrines of
his professed religion. Thomas v. Review Bd. of the Ind. Employments Security Div.
ii. Factors for determining the sincerity of religious beliefs include the prevailing doctrines
for that religious belief and beliefs of other members of that religion.
iii. However, religious beliefs are recognized as inherently personal, so the dominant views
of a faith are not determinant in assessing whether a belief is “religious.”
iv. The inquiry must be individualized. Frazee v. Ill. Employment Security Dept.
U.S. v. Ballard: The courts may rule on the sincerity of beliefs, but they may not rule on the beliefs’ validity. In
Ballard, the Court held that a jury could only decide the sincerity of Δ’s beliefs—not their validity—where they
claimed to be supernatural healers.
- “The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.” (Page
- Men of all religions tend to believe things that are not provable. The Court cannot subject the admittedly
preposterous-sounding views of the Ballards to a jury without opening up all other religions’ dogma to the same
scrutiny, a process which would infringe on peoples’ right to practice religion.
- Jackson’s Dissent: “I do not see how we can separate an issue as to what is believed from considerations as to
what is believable. The most convincing proof that one believes his statements is to show that they have been
true in his experience.” (Page 1245). When does less than full belief in a professed credo become actionable
fraud if one is soliciting gifts or legacies?
HYPO: Individual applied for position with VPD and was turned down because he’s a Mormon. What standard
would the police department have to meet to justify that exclusion?
- Strict scrutiny because he’s punished for pure belief. You can’t refuse to hire him purely because he’s a
Mormon; that’s a violation of free exercise.
Later it is learned the guy has four wives and practices polygamy.
- He can be fired for that. You cannot absolutely punish someone for their beliefs, but the conduct analysis may
be different.
Should the government have to show compelling interest when it interferes with free exercise, or should it be just
rational basis?
- When we do have at least neutral laws (as most free exercise cases are—government is usually smart enough to
not pass laws targeting a specific religion), what standard of review is appropriate?
The Free Exercise Clause
- Embraces two concepts: (1) freedom to believe and (2) freedom to act. The freedom to hold religious beliefs
and opinions is absolute, but the freedom of religiously motivated conduct is not. Reynolds v. U.S.
- Invoked in numerous situations:
(1) When government prohibits behavior required by a religion
(2) When government requires conduct prohibited by a religion
(3) When government burdens religious observation
- Generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need
not be justified by a compelling interest, unless another constitutional protection is burdened in conjunction, or
the government has provided for individualized treatment in an unemployment compensation scheme.
Employment Div. v. Smith.
o A denial of government funded benefits to those who are otherwise eligible, but leave their place
of employment because of religious reasons, unconstitutionally infringes on their right to free
exercise of religion. Sherbert v. Verner.
o A compelling interest is required in cases involving “hybrid rights”
 E.g., Amish parents were granted an exemption from compulsory school laws because
the laws violated (1) the Amish’s central religious concept of objection to formal
education beyond the 8th grade, and (2) the right of parents to control the upbringing of
their children. Wisconsin v. Yoder.
- In 1993 Congress adopted the Religious Freedom Restoration Act (RFRA) in order to negate the test applied in
Employment Div. v. Smith and restore the compelling interest standard set forth in Sherbert. However, the
Court held that RFRA was unconstitutional because Congress lacked authority under § 5 of the 14th Amend. to
expand the scope of constitutional rights. City of Boerne v. Flores.
CURRENT TEST: If a law burdening the free exercise of religion is neutral and generally applicable, it will be
analyzed under rational basis. If it fails those tests, then it must be supported by a compelling governmental
interest and be narrowly tailored to advance that interest. Church of the Lukumi Babalu Aye v. City of Hialeah.
Sherbert v. Verner: A denial of government funded benefits to those who are otherwise eligible but leave their job
because of religious reasons unconstitutionally infringes on their free exercise rights. In Sherbert, the State denied π
the right to receive unemployment benefits because she could not work on Saturdays, the Sabbath of her religion,
and therefore was unable to secure employment.
- Until Smith, this case was the standard used.
- Used strict scrutiny:
o Is the burden on free exercise constitutionally significant? Yes.
o Does some compelling state interest enforced in the eligibility provisions justify the substantial
infringement on the free exercise rights? No.
- Harlan’s Dissent: The State is preferring religious concerns to secular by being forced to single out for financial
assistance those whose behavior is religious motivated while denying assistance to others whose identical
behavior is not religiously motivated. The government should not be compelled to carve out an exception to a
general rule of eligibility.
Employment Division, Dept. of Human Resources of OR v. Smith: So long as a criminal law is generally applicable
and facially-neutral, there is no free exercise violation, and strict scrutiny does not have to be applied. In Smith, the
Court upheld the denial of unemployment benefits to an Indian discharged from his job for peyote use in accordance
with his religion.
- Individual religious beliefs do not excuse individuals from adherence to valid criminal laws so long as those
laws are not directed a particular religion.
- The government does not have to meet a compelling interest standard to enact criminal laws which incidentally
burden religious beliefs.
- The Court uses rational basis when dealing with a facially neutral criminal law
- Strict scrutiny is applied to individualized situations, such as unemployment cases and parental rights cases
(“hybrid rights” cases)
- O’Connor’s Concurrence: The Court did not need to depart from the strict scrutiny test to resolve the question
at hand, and should not have done so. Most free exercise cases will deal with generally applicable laws that
burden religious practices; that is part of what the free exercise clause is supposed to guard against.
- Blackmun’s Dissent: The Court should apply strict scrutiny. The State offered no evidence suggesting the
religious use of peyote interferes with its interest in protecting public health.
Church of the Lukumi Babalu Aye v. City of Hileah: A law targeting religious conduct for distinctive treatment or
advances legitimate government interests only against religiously motivated conduct will rarely survive under strict
scrutiny. In Lukumi Bablu, the Court struck down a law abolishing animal sacrifices because it was specifically
targeted at Santeria practices.
- Unlike Smith, the law was not facially neutral; it allowed other animal killing while simply singling out
religious sacrifices
- Strict scrutiny is applied where the law is not facially neutral
- The law would have been allowable under Smith if it had been a flat ban on animal killing because facially
neutral laws are subject to rational basis analysis.
Locke v. Davey (Supplement Case): In Locke, the State had a specific exemption from a state-funded scholarship
program for students pursuing theology degrees.
- The Court acknowledged that the State could have decided to fund Davey’s education without violating the
Establishment Clause.
- The Washington Constitution, like 36 other states’ constitutions, states that no public money should be given to
religious instruction.
- The exemption seems to facially discriminate by specifically carving out an exception for students pursuing
theological instruction. Washington would have argued, if it had to state a compelling interest, that it was
trying to not violate its own state constitution.
- How did the Court distinguish Lukumi?
o “No hostility.” Does this argument hold water?
 Can use scholarship to study theology, as long as it isn’t the student’s major; can use it to
attend pervasively religious university.
o No significant interference. The state is simply refusing to fund the study of religion; it isn’t
actually voicing hostility toward religion. There isn’t a significant burden on Davey’s free
exercise rights.
 However the line between refusal to fund and penalizing an unpopular condition is
always a very fine line.
 The Court argues that this doesn’t require students to choose between their religious
beliefs and receiving a government benefit. How does this differ from Sherbert? The
Court argues that the state was not telling Davey he has to give up or change his beliefs
or violate a precept of his religion to receive the scholarship; the state was just deciding
not fund pursuit of a specific degree.
Court argues that taxpayers should not be funding the ministry [see footnote 1 of the case].
Scalia’s Dissent: Violates the core principle of neutrality. Scalia says this discriminates against those
“minorities” that want to devote their lives to the ministry. Majority kind of balances competing interests but
doesn’t give a very clear analysis.
This case suggests that even with a facially discriminatory law, you have to examine whether there is hostility
behind the discrimination, or if it is simply a refusal to fund.
The Establishment Clause
- There are 3 competing approaches:
(1) Strict Separation: Adhered to by Ginsburg & Stevens. Requires a separation of government and
religion to the greatest possible extent, which is seen as necessary to protect religious liberty.
Calls for complete and permanent separation of church & state, forbidding every form of public
aid or support for religion.
i. The main problem is that a complete prohibition of all government assistance would
threaten the free exercise of religion, making total separation impossible. The issue is
therefore where to draw the line.
(2) Neutrality: Three or four adherents to this view, including O’Connor, Breyer and Sutor.
Government must be neutral toward religion and not favor one or another or favor religion over
secularism, as evaluated by the symbolic endorsement test as seen through the eyes of a
“reasonable observer.” Capitol Square Review & Advisory Board v. Pinette. The question then
becomes who this “reasonable observer” would be:
i. O’Connor: Test is whether a well-educated & well-informed observer, who is presumed
to possess a certain level of information that all citizens might not share, would likely
perceive an act as an endorsement of religion.
ii. Stevens & Ginsburg: Test should be whether a reasonable person passing by would
perceive government support for religion.
iii. Scalia: Rejected use of the test altogether in matters concerning private speech on
government property.
1. Critics of symbolic endorsement test argue the Court is inevitably left to make
subjective determinations as to how people perceive a particular symbol, and
that the test is too restrictive of government involvement with religion.
(3) Accommodation: Court should accommodate the presence of religion in government, and a
violation would occur only if the government actually establishes a church or coerces religious
i. Supporters of this approach argue it best reflects the importance of religion in America,
making religion a welcome element in the combination of beliefs and associations
ii. Opponents argue that little will ever violate the est. clause under this approach, and the
clause is supposed to prevent the government from using its power and influence to
advance one religion or religion in general.
- A government’s act is unconstitutional under the Est. Clause if, being evaluated in its context, the act has the
effect of endorsing religion or could be understood by viewers to be an endorsement of religion. County of
Allegheny v. ACLU Greater Pittsburgh Chapter.
- A law which facially discriminates between religions is unconstitutional unless it meets strict scrutiny. Larson
v. Valente. E.g., a state law that created a separate school district for a small village inhabited by Hasidic Jews
was found an unconstitutional preference of one religion over others. Bd. of Educ. of Kiryas Joel Village
School Dist. v. Grumet.
- If a law does not facially discriminate between religions, it must meet the Lemon Test:
(1) Have a secular legislative purpose.
i. State law requiring posting of 10 Commandments in every public school classroom was
unconstitutional because it lacked a secular legislative purpose. Stone v. Graham.
ii. State law requiring businesses to be closed on Sundays was constitutional because it had
a secular goal of providing a uniform day of rest. McGowan v. Maryland.
(2) Have principal or primary effect that neither advances nor inhibits religion. [Note that allowing a
church to advance religion does not violate Constitution; the government itself must have
advanced religion through its own activities and influence.]
i. Statute prohibiting employers from requiring employees to work on Sabbath day
unconstitutional because it favored religion over all other interests. Estate of Thorton v.
ii. Exemption for religious organizations from Title VII’s prohibition against discrimination
in employment based on religion was constitutional. Corp. of LDS v. Amos.
(3) Not foster an excessive government entanglement with religion.
i. Excessive entanglement is caused by requiring a comprehensive, discriminating and
continuing state surveillance.
ii. Government cannot pay secular-subjects’ teachers’ salaries in parochial schools because
it would force the government to monitor the teachers and subjects at those schools.
Grand Rapids v. Ball.
County of Allegheny v. ACLU Greater Pittsburgh Chapter: Clearly religious symbols displayed by the government
in isolation are problematic because they probably fail the endorsement test. A state may display religious symbols
so long as it does not portray an endorsement of religion. In Allegheny, the Court struck down a town’s singular
display of a crèche, but allowed a display of a menorah alongside a symbol of liberty and a Christmas tree.
- Where a city has alternatives to a religious symbol, it may not choose the religious symbol to deliver secular
- The Court looks to the context of the display
- In Allegheny, the Court subscribes to an endorsement test: Look to see if an objective observer would see the
display as an endorsement of religion.
- For singular displays, look to an endorsement / objective observer test
o Usually violates the establishment clause because it favors one religion over another
- For multiple displays, look to context
- O’Connor’s Concurrence: The proper question is whether the city of Pittsburgh’s display of the menorah next
to a Christmas tree sends a message of government endorsement of Judaism or whether it sends a message of
pluralism and freedom to choose one’s own belief.
- Brennan’s Concurrence/Dissent: Display of an object that retains a specifically religious meaning is
incompatible with the separation of Church and State.
- Stevens’ Concurrence/Dissent: There must be a strong presumption against the display of religious symbols on
public property because they have a greater tendency to emphasize sincere and deeply felt differences among
individuals than to achieve an ecumenical goal.
- Kennedy’s Concurrence/Dissent: Establishment Clause gives some latitude to government in recognizing and
accommodating the central role religion plays in our society. The displays are okay as long as the government
is not coercing anyone to support or participate in a religion, and is not giving benefits to religion such that it
establishes a religion or faith. Passersby who disagree with the display should just turn away.
HYPO: Chamber of commerce wants to do Christmas display on Courthouse lawn. What do you advise?
What kind of forum is it?
i. If it is public then any regulation must be a content-neutral Time, Manner, Place
ii. If it is non-public then any regulation must be viewpoint-neutral and reasonable.
iii. If it is neither content-neutral nor viewpoint-neutral then it is subject to strict scrutiny. In
this case, prohibiting the display is neither form of neutral, so regardless of what kind of
forum we decide the Courthouse lawn is, it must meet strict scrutiny.
What is the city’s compelling interest in not allowing the display?
i. Preventing an Establishment Clause violation
How do we decide whether we’d have a violation if the display was allowed?
i. Endorsement Test: Would a reasonable, well-informed observer view the display as the
government endorsing religion?
Restricting Private Religious Speech: Speech Rights vs. Establishment Clause
- Where government choice to restrict private religious speech on government property or with government funds
because of a desire to avoid violating the establishment clause has been challenged, the Court consistently held
that excluding religious speech violates the freedom of speech as content-based restrictions.
- State university created a public forum by allowing student groups to use its facilities, and therefore had to meet
strict scrutiny to justify preventing a student group from using the facilities for religious discussion & worship.
Widmar v. Vincent.
- A school opening its facilities to use by student groups dealing with religious subject matter does not violate the
Establishment Clause. Bd. of Educ. of Westside Comm. Schools v. Mergens.
o Lemon Test: (1) Preventing discrimination based on religious content has a legitimate secular
purpose. (2) Secondary school students are not likely to perceive school endorsement of the
group. (3) No excessive entanglement where faculty sponsors are not allowed to participate in the
A viewpoint-neutral student activities fund is not in violation of the Establishment Clause where it gives support
to a religious organization’s activities. Rosenberger v. Rector & Visitors of the Univ. of VA.
Allowing student-delivered invocations during high school football constitutes excessive entanglement. Santa
Fe Independent School Dist. v. Doe.
Larson v. Valente: Any law that discriminates between religions or assigns a denominational preference is subject
to strict scrutiny. In Larson, the Court struck down a Minnesota law requiring churches who solicited half of their
funds from non-believers to register with the state.
- The government may not display preference for one religion over another. The legislative history of the law
showed a purpose to inhibit religion.
- State of Minnesota has a compelling interest in protecting its citizens from abusive practices during charity
solicitation; however, this was not narrowly tailored, and serves only to set up a denominational preference.
Lemon v. Kurtzman: In Lemon, the Court struck down two state statutes that provided financial support to private
schools, including parochial schools.
- The 3 main evils against which the Establishment Clause protects are sponsorship, financial support and active
involvement of the government in religion.
- Thus, the Lemon Test requires:
State have a legitimate secular purpose for the law.
Law’s primary or principal effect must be one that neither advances nor inhibits religion.
Law must not foster an excessive entanglement with religion.
Good News Club (Supplement Case): An evangelical religious group may meet on elementary school grounds
immediately after school grounds.
- Is this subject matter discrimination, or is this content discrimination?
o The school said that it was the religious content that was problematic. But the Court said that if
the school allowed other groups that discussed morality and things like that, you had to allow the
Good News Club to discuss those matters, even if they were doing so from a religious viewpoint.
- If there is a question of accessibility that involves both speech and religion issues, you must first address the
speech challenge.
o What kind of forum is it?
 Limited Public: Restriction must be viewpoint-neutral and reasonable (note that you can
have a content-based restriction; you can bar an entire subject, just not a viewpoint on a
particular subject)
 A viewpoint-unneutral restriction isn’t necessarily fatal, though; if the
government can show a compelling interest in avoiding an establishment clause
violation, then the restriction may still be permissible.
 Public: Restriction must be content-neutral and meet strict scrutiny
- The school was a limited public forum. But their restriction was still problematic because it was not viewpoint
- What about the Establishment Clause defense [the school claiming that allowing this group would violate the
Establishment Clause]?
o The concern regarding young students’ impressionability was not as problematic here, the Court
argues, because the community at issue would be the parents, not the children, since the parents
had to give permission for the child to participate it.
Rosenberger v. Rector & Visitors of the Univ. of VA: In Rosenberger, the court found a university’s refusal to
allow general student funds to aid the publication of a religious student newspaper viewpoint discriminatory because
student funds were allocated on a neutral basis.
- The school created a limited public forum through its Student Activity Fund, and as such, it could not engage in
viewpoint discrimination.
- The university was not attempting to exclude religion as a subject matter, but only to prohibit student groups
from publishing religious editorial viewpoints.
- So long as the University is simply expending funds to encourage a diversity of private viewpoints, and the
school itself is not speaking / acting, then no Establishment Clause violation occurs.
When Can Religion Become a Part of Government Activities?
- A school policy allowing students to be released with parental permission to religious instruction classes
conducted during school hours in the school building by outside teachers is unconstitutional. McCollum v. Bd.
of Education.
Students may be released during school hours for religious instruction outside the school because that simply
accommodates religion, rather than advancing it, as no government funds or facilities were used. Zorach v.
Where the Board of Education directed a school principal to cause a prayer, composed by the Board, to be said
aloud at the beginning of class each day, the government is furthering religious beliefs and therefore breaches
the wall between Church and State. Engel v. Vitale.
A state law authorizing a moment of silence in public schools for meditation or voluntary prayer was found to
have the purpose of reintroducing prayer into public schools, and therefore lacked a secular purpose, rendering
it unconstitutional. Wallace v. Jaffree.
A school’s invitation to a clergyman to say a prayer at a graduation ceremony is government coercion to
participate in religious activity, and therefore violates the Establishment Clause. Lee v. Weisman.
States may not require teaching / learning be tailored to the principles of any religious sect or dogma.
Therefore, the prohibition of teaching evolution violates the Establishment Clause because it lacks a secular
purpose. Epperson v. Arkansas. Also, laws requiring that evolution be accompanied by the teaching of
“creation science” have the principal purpose of advancing religious belief and are therefore unconstitutional.
Edwards v. Aguillard.
Lee v. Weisman: In Lee, the Court struck down a school practice of inviting a clergyman to deliver a
nondenominational benediction at graduation ceremonies.
- Even though attendance at graduation ceremonies is not required to receive a diploma, in our society a person’s
attendance at his own graduation ceremony is “in a fair and real sense obligatory.” Therefore, allowing a
clergy-led prayer there essentially coerces the students to participate, or to at least respectfully remain standing
and / or silent.
- Blackmun’s Concurrence: It is not necessary to require the element of coercion be present to invalidate the
statute; the statute is unconstitutional because an observer would see it as government endorsement of religion.
- Scalia’s Dissent: Accommodationist approach. The history and tradition of America are “replete with public
ceremonies featuring prayers of thanksgiving and petition” (page 1301). The majority’s decision steps beyond
the expertise of judges and examines the psychological effects of the prayer on students to arrive at their
coercion argument. A student who remains respectfully standing and / or silent during a prayer would not be
seen to be participating, and is not being coerced.
Santa Fe Independent School Dist. v. Doe: The Court invalidated a statute allowing a student-elected speaker to
deliver an invocation before every home football game.
- Not Private Speech: Authorized by government policy, take place on government property, during governmentsponsored school events, using school PA system, by student elected by school body, with supervision of school
- Not Public Forum: The school had not opened “by policy or practice” the pre-game ceremony to
“indiscriminate use.” (page 1289)
- Because of the context in which the invocation is delivered, the audience “must” perceive the invocation as a
“public expression of the views of the majority of the student body delivered with the approval of the school
administration” (page 1291)
- Coercive: While attendance at the football games is not mandatory, someone wishing to avoid the invocation
must do so at a cost of the experience of extracurricular activities and gatherings.
- If the Court had used the Lemon test, the statute could have been invalidated based on the lack of secular
purpose, or its primary effect being advancement of religion.
- Rehnquist’s Dissent: Accommodationist approach. Majority’s decision is hostile to “all things religious in
public life.” The policy had viable secular purposes—solemnizing an event does not necessarily translate to a
religious purpose.
Elk Grove Unified School Dist. v. Newdow: The Pledge of Allegiance in school, including the words “under God,”
does not violate the Establishment Clause of the First Amendment.
- The judges characterize the Pledge as a patriotic exercise more than a religious exercise.
- If it is a patriotic exercise, then what can be said about the purpose for adding the words “under God”?
O’Connor says that the Pledge has lost its religious underpinnings, such that even if the original purpose was
religion-based, if it has lost that connotation then it may be permissible because the reasonable observer would
no longer see those two words of the Pledge as government endorsement of religion.
Mitchell v. Helms: In Mitchell, the Court upheld the loan of educational material to private schools.
- Government aid to religious schools is permissible so long as it is neutral in basis and secular in content
- The plurality considers (a) whether the funds can be diverted to support religion and (b) whether the fund is
direct or indirect.
The key issue for the Court was whether the aid was neutrally applied to all schools
In addition, the aid was indirect and the state retained ownership over the materials at all times. No money
flowed directly into the coffers of the religious schools themselves.
The aid was supplemental to the school’s educational purpose.
Court overturned Meeks and does away with the “diverted purpose” test
Concurrence: If you could show actual diversion of funds that would support not granting them but the actual
diversion was not present
CURRENT LAW: Even if the aid goes directly to the school, it is constitutional if it is a neutral program, and
in deciding whether we should find an Establishment Clause violation, the plurality looks to actual diversion
(the old version was just whether diversion was possible)…and “direct v. indirect” is a factor but may not be
determinative. NOTE: This is an attempt to assess whether the primary effect of the aid is endorsement of
Voucher Question
- The aid has a broad class of beneficiaries, is neutrally allowed, and is arguably indirect because the money
flows to the parents
- The aid is not limited to supplemental materials; the aid funds the core teaching of the religious schools
Tax Exemptions for Religious Organizations: Why doesn’t this violate the Establishment Clause?
- Broad class of beneficiaries, and the tax exempt status supports all charitable organizations and educational
institutions, not just religion.
- Would anyone see this as endorsing religion? If we subjected churches to taxation and if government had to
decide the value of religious objects on church property, that in and of itself would be problematic.
Zelman v. Simmons-Harris:
- Deals with vouchers, which are indirect aid. It is really through the true choice of the parents, though, that the
school gets the aid.
- Once the parent makes the choice and sends the child to a school of his choosing, are there restrictions on the
way the school can spend the aid? Not really; the religious schools could use the aid to do whatever they
- Thus, we have an indirect program with an actual diversion of money to support religious indoctrination.
- How is this neutral if the vast majority of the aid is getting to private schools? No public schools participate,
and only a handful of non-sectarian private schools participate, so the vast majority of the open voucher
students spots are found in private sectarian schools.
- The two factors of Mitchell are satisfied: (1) it is a neutral program and (2) it is through the true choice of the
parents that money is given to the parochial schools.
- We use presumably an endorsement approach, but the key question is direct aid (which must be neutral with no
actual diversion) or indirect aid (which must be neutral and true choice)
What if Valpo Univ. gets money for a new science building?
- Secular purpose, primary effect is not to advance religion because the funds are kept separate.