KONIGSBERG v. STATE BAR:
Words themselves can do no harm w/o communication to another.
-words can have no effect other than emotional harm, if the other
person has no capacity to respond behaviorally to the words.
i.e. If a hot-tempered person, is behind bars/is restrained, then no
harm (other than emotional) may occur upon communication of the uttered
REGULATION OF POLITICAL SPEECH BECAUSE OF ITS CONTENT: THE PROBLEM OF
THE WORLD WAR I CASES: “CLEAR & PRESENT DANGER”-ORIGINS, WEAKNESSES,
REGULATION OF POLITICAL SPEECH B/C OF ITS CONTENT:
SCHENCK v. UNITED STATES:
Danger is dependent on the context & circumstances under which the words
are uttered & the nature
of the hearer.
-Distinguish b/t innocent utterances & intent to cause harm.
i.e. Use example of a person falsely uttering “fire” in a movie
theater & causing a panic.
Clear & Present danger test: whether the words used are used in such
circumstances & are of such a
nature as to create a clear & present danger that they will bring about
the substantive evils that
Congress has a rt. to prevent.
EVOLUTION OR TRANSFORMATION OF THE CLEAR AND PRESENT DANGER TEST?
THE ABRAMS CASE:
Unlawful to produce papers against the prosecution of Germany.
Both Majority & Dissenter apply the clear & present danger test.
-Holmes’ dissent viewed a few publications & few people distributing
them as unlikely to present
a danger to the war effort.
-places a higher value on the expression than the CT did in this
-CT places a higher value on the National interest/security than
1st Amendment, Benefits:
1. Natural rt. to free speech
2. Rt. of free expression is a characteristic of a free person
3. Freedom to communicate facilitates the development of ideas
4. Capacity to communicate enables a person to develop to his/her
faculties w/o inhibition of
-one’s faculties can be seen as a means to an end
-should be an objective of the self
5. Effect rt. of free expression has on the rt. of the individual v.the
rt. of the state
-part of the power that we retain in a democracy.
6. Power to speak is an inhibitor on the power of the govt.
i.e., the public opinion poll
7. Sense & fact of freedom & sense of power that humans feel they have.
Feel more powerful by
virtue of possessing the rt. to free expression. Enables Democracy to
Downside to 1st Amendment:
1. Encourages disorder
2. Inhibits govts ability to get things done, leads to inefficiency
3. Produces irrational fears & beliefs
4. Leads to behavioral responses, leads to excess of behavior
-can lead to uncontrolled conduct
5. Can lead to personal insecurity
6. Can cause emotional pain
7. If clear & present danger test fails, then harm may result
Assessment of when the risk to the states’s interest is sufficient to
justify restricting the rt. of the
freedom. Usually a factual determination, based on the potential
psychological impact on the
LEGISLATION AGAINST FORBIDDEN ADVOCACY IN THE 20’S & 30’S
GITLOW, WHITNEY, AND THE INCREASING PROTECTION OF SPEECH:
GITLOW v. NY:
-Gitlow wrote & taught.
-The “clear & present danger test” was not applied.
-Only scrutiny applied was the power of the state to do what it did.
-Allows state determination to apply the law of the land.
-General advocacy w/o specificity of time, place, urgency, & duty, can
be prohibited & is not protected by the 1st Amendment.
-J. SANFORD: by enacting the present statute the state has determined,
through its legislative body, that utterances advocating the overthrow
of organized government by force, violence & unlawful means, are so
inimical to the general welfare & involve such danger of substantive
evil that they may be penalized in the exercise of its police power.
-We cannot hold that the present statute is an arbitrary or
unreasonable exercise of the police power of the state unwarrantably
infringing the freedom of speech or press; and we must & do sustain its
-involved the expression of indiv ideas.
-J. HOLMES dissent: His application of the “clear & present danger”
test. If applied, he doesn’t believe that there was any clear & present
RULE: W/the exception of moral concerns (or behavior resulting from
speech), the state can never prohibit speech.
WHITNEY v. CALIFORNIA:
-Whitney was convicted for organizing & assist in organizing & was, is
& knowingly became a member of an organization to advocate, teach, aid &
abet criminal syndicalism.
-A state may punish those who abuse by utterances inimical to the
public welfare, tending to incite to crime, disturb the public peace, or
endanger the foundations or organized govt & threaten its overthrow by
unlawful means, is not open to question.
STATUTE: (part in question) “Any person who…organizes or assists in
organizing, or is or knowingly becomes a member of, any organization,
society, group or assemblage of persons organized or assembled to
advocate, teach or aid & abet criminal syndicalism; is guilty of a
-CT upheld her conviction. Involved the association of a group.
-She never asserted her constitutional rts b/c she never asserted
that no clear & present danger existed.
FISKE v. KANSAS:
HELD that the conviction of the D, w/o any charge or evidence that the
organization in which he secured members advocated any crime, violence
or other unlawful acts or methods as a means of effecting inductrial or
political changes or revolution.
-The Act is an arbitrary & unreasonable exercise of the police power
of the State, unwarrantably infringing the liberty of the D in violation
of the due process clause of the 14th Amendment.
-Procedural due process grounds: the impermissibility of drawing
conclusory inferences from inadequate factual bases.
DE JONGE v. OREGON:
HELD: Rt of peaceable assembly is a rt cognate to those of free speech
& free press & is equally fundamental. Peaceable assembly for lawful
discussion can’t be made a crime. Rts of free speech & peaceable
assembly are to be preserved as to its purpose & only look to whether
their utterances transcend the bounds of the freedom of speech which the
-D couldn’t be convicted for attending the meeting.
HERNDON v. LOWRY:
HELD: overturned the conviction b/c the construction & applicationof
the law deprived Herndon of his constitutional rts of free speech &
assembly & the law as construed & applied didn’t furnish a reasonably
definite & ascertainable standard of guilt.
SUBVERSIVE ADVOCACY-NEW APPROACHES:
BRANDENBURG v. OHIO:
-The ct doesn’t’ mention the phrase “clear & present danger” test. Ct
uses the phrase “directed to inciting imminent & lawless action & is
directed to inciting such imminent & lawless action.”
-Test is that the Constitutional guarantees of free speech & free
press do not permit a State to forbid or proscribe advocacy of the use
of force or of law violation except where such advocacy is directed to
inciting or producing imminent lawless action & is likely to incite or
produce such action.
-The mere abstract teaching of the moral propriety or even moral
necessity for a resort to force & violence, is not the same as preparing
a group for violent action & steeling it to such action.
-A statute which fails to draw this distinction impermissibly
intrudes upon the freedoms guaranteed by the 1st and 14th Amendments.
It sweeps w/in its condemnation speech which our Constitution has
immunized from govt control
HAIG v. AGEE:
HELD: Sustained the application of a state dept regulation permitting
the secretary of state to revoke a passport if he determines that the
national’s activities “abroad are causing or are likely to cause serious
damage to the national security or the foreign policy of the US.
-The freedom to travel outside the US must be distinguished from the
rt to travel w/in the US. Assuming that 1st Amendment protections reach
beyond our national boundaries, Agee’s 1st Amendment claim has no
-The revocation of Agee’s passport rested in part on the content of
his speech-“specifically, his repeated disclosures of intelligence
operations & names of intelligence personnel.”
-This is an inhibition on action, rather than of speech.
***1st Amendment protection applies to US citizens abroad, from actions
against such indivs by the US Govt, state govt, or other such entity.
HESS v. INDIANA:
-Reversed a disorderly conduct conviction.
FREEDOM OF EXPRESSION: ADDITIONAL PERVASIVE THEMES; THE PUBLIC FORUM
OVERBREADTH, VAGUENESS, LESS RESTRICTIVE MEANS:
THE 1ST AMENDMENT OVERBREADTH DOCTRINE & RELATED TECHNIQUES:
BROADRICK v. OKLAHOMA:
-State law prohibited employees from taking part in mgmt or affairs of
any political party or in any political campaign.
HELD: Stat is not substantially overbroad & that whatever overbreadth
may exist should be cured through case by case analysis of the fact
situations to which its sanctions, asserstedly, may not be appled.
Statute seeks to regulate political activity in an even-handed & neutral
-Statute is not substantially overbroad & is not, therefore,
unconstitutional on its fact.
Overbreadth as applied: apply & look at statute from viewpoint of a
fact to fact analysis on a case by case basis. Sanctions would be
Overbreadth on its face: if overbroad, then Ct strikes the statute as a
-Must be substantially overbroad.
***OVERBREADTH ONLY APPLIES TO 1ST AMENDMENT CASES.
MASSACHUSETTES v. OAKES:
HELD: Ct rejected the argument that an amendment could foreclose an
overbreadth challenge. Strange judicial theory that a conviction
initially invalid can be resuscitated by postconviction alteration of
the statute under which it was obtained. The overbreadth doctrine
serves to protect constitutionally legitimate speech not merely ex post,
but also ex ante, when the legislature is contemplating what sort of
statute to enact. Law is not substantially overbroad.
-Upheld the conviction.
Facts: -Law prohibited the takin of nude & similar photographs of those
under 18yrs. State’s highest ct struck down the law as substantially
overbroad & amended it to add a “lascivious intent” equirement.
HOUSTON v. HILL:
-D interrupted police while they were speaking to another man.
HELD: The provision is overbroad under the Broadrick line of cases. The
enforceable portion of the ordinance deals with speech, not core
criminal conduct. The freedom “verbally to oppose or challenge police
action w/o thereby risking arrest is one of the principal
characteristics by which we distinguish a free nation froma police
state. The ordinance is not narrowly tailored to prohibit only
disorderly conduct or fighting words.
BOARD OF AIRPORT COMMISSIONERS v. JEWS FOR JESUS:
-Statute prohibited any indiv and/or entity seeks to engage in 1st
amendment activities w/in the Central Terminal Area at LA.
HELD: The resolutionis overbroad & facially void. The resolution
reaches the universe of expressive activity & prohibits all protected
expression. Ban cannot be justified b/c no conceivable governmental
interest would justify such an absolute prohibition on speech.
SUBSTANTIAL OVERBREADTH 1ST AMENDMENT DOCTRINE:
1. Burdens more activities than necessary
a. Must be a substantial concern in reading the whole context of the
statute, such as when speech is joined w/conduct.
2. Prohibits or chills protected freedom of expression
a. Ordinance which places discretionary power in administrative
official over citizen’s rt to speak in public in invalid for
3. General basis for decisions relating to statute as being overbroad.
a. Decision to strike stt is held where stat is so sweeping as to
deter citizens from engaging in protected speech or is applied
arbitrarily against political dissenters.
i. Legislature is required to use means which are least restrictive
of free speech.
ii. Govt workers may be compensated for non-polilical speech.
b. Decision to uphold stat is held where stat is used selectively to
punish dissenters & where it will generally not deter protected speech.
VOID FOR VAGUENESS DOCTRINE:
1. No clear notice of what is prohibited
a. Stat governing misuse of flag was struck down b/d the legislature
had not set clear guidlines for preventing arbitrary & discriminatorry
2. No ascertainable standards
PRIOR RESTRAINT: A law/ct order/any kind of enforcement mechanism which
obstructs expression prior to publication, prior to an appropriate
hearing to determine whether it is protected by the 1ST.
Distinguishabale from post-publication burdens imposed by the criminal
law or civil penalties such as damages or injunction.
LAKEWOOD v. PLAIN DEALER PUBLISING CO.:
HELD: Challenged b/c of Prior Restraint & Vagueness. Laws of general
application that are not aimed at conduct commonly associated
w/expression carry with them little danger of censorship. Standardless
ordinance is unconstitutional. Facial challenge is appropriate b/c the
standards controlling the Mayor’s discretion must be required.
-Ct will not write nonbinding limits into a silent state statute.
1. Vending machines are in the public
2. Sole purpose of the papers/vending machines are to solicit
information/speech/expression in the public arena.
HELD: Ordinance was struck b/c of potential for arbitrary application.
In a sense, it was also a prior restraint. Vagueness & Too Much
Discretion. Application of “fee structure” is dependent upon how others
will respond to the parade/breach of the peace. It is addressed to the
message of those who want to parade b/c addressed at it MAY cause a
breach of the peace.
NEAR v. MINNESOTA:
Statute: Authorized abatement, as a public nuisance, of a “malicious,
scandalous & defamatory newspaper, or other periodical.”
Pro: State ct order “abated” the Press & perpetually enjoined the D’s
from publishing or circulating “any publication whatsoever which is a
malicious, scandalous or defamatory newspaper.”
HELD: Ct noted that the law was “unusual if not unique”, reminded that
“the liberty of the press, & of speech,” was protected by the 14th,
-The object of the stat waas the suppression of the offending
newspaper. The reason for the enactment is that prosecution to enforce
penal stats for libel don’t result in “efficient repression or
suppression of the evils of scandal.”
-The operation & effect of the stat is that public authorities may
bring the owner or publisher of a newspaper or periodical b/f a judge
upon a charge of conducting a business of publishing scandalous &
defamatory matter & unless the owner or publisher is able to prove that
the charges & are true & published w/good motives & for justifiable
ends, his newspaper or periodical is suppressed & furtherpublication is
made punishable as a contempt. This is the essence of censorship.
-Liberty of the press is essential to the nature of a free state;
which consists in laying NO PREVIOUS RESTRAINTS upon publications, & not
in freedom from censure for criminal matter when published.
-Ct was particularly bothered by fact that the only reason for the
restraint was b/c publication contained criticisms of the govt.
-STATUTE WAS UNCONSITUTIONAL.
FREEDMAN v. MARYLAND:
Ordinance provided that films had to be submitted for lecensing.
HELD: Statutory procedure was held to be unconstitutional. Too great a
risk of delay in the procedure. Burden on the submitor to prove it was
ok was wrong.
-There is a “heavy presumption” against the validity of prior
restraints, a state is not free to adopt whatever procedures it pleases
to deal w/obscenity w/o regard to the possible consequences for
constitutionally protected speech.
KINGSLEY BOOKS, INC. v. BROWN:
HELD: Ct. upheld NY procedure which authorized an injunction to prevent
the sale & distribution of obscene printed matter & an order for its
seizure & destruction upon entry of final judgment.
-PRIOR RESTRAINT: Stat w/holds restraint upon matters not already
published & not yet found to be offensive. Prior restraints in a scheme
w/cclear standsrds & speedy judicial hearings (1 day later) are NOT
inevitably more harmful to speech than subsequent punishments,
preferable to some subsequent punishment laws.
-Doctrine of prior restraint focuses on the largely irrelevant timing
of the restraint, to the detriment of attention to those flaws that are
the actual source of the objection . It is the identity & discretion of
the restrainers that is important.
FW/PBS, INC. v. DALLAS:
HELD: Ordinance requiring the licensing of sexually oriented businesses
wan an unconstitutional prior restraint in violation of Freedman b/c
there was no “effective limitation on the time w/in which the licensor’s
decision must be made. The ordinance failed to provide an avenue for a
prompt judicial review. Freedman’s requirement that the lecensor bear
the burden of going to ct & the burden of proof once there was
inapplicable where there was no direct censorship of particular
EXPRESSION IN PUBLIC PLACES & THE MAINTENANCE OF LOCAL PEACE & ORDER:
NEUTRAL “TIME, PLACE, & MANNER” REGULATIONS IN THE “PUBLIC FORUM”?
ASSURED MINIMUM ACCESS OR MERELY EQUAL ACCESS TO THE PUBLIC FORUM?-AN
HAGUE v. CIO:
HELD: Streets & parks have immemorially been held in trust for the use
of the public & time out of mind have been used for the purposes of
assembly, communicatign thoughts b/t citizens, & discussing public
DOCTRINAL FOUNDATIONS: THE LEGACY OF THE EARLY CASES:
LOVELL v. GRIFFIN:
D was convicted for violation of a prohibited distribution of
“circulars, handbooks, advertising, or literature of any kind” w/in the
city “w/o first obtaining written permission from the City Manager.”
HELD: Ct reversed her conviction. Ordinance is not limited to
particular literature, it embraces “literature” in the widest sense. No
restriction in its application w/re: to time or place. The ordinance
prohibits the distribution of literature of any kind at any time, at any
place, & in any manner w/o a permit from the City Mgr.
-Ordinance is Facially Invalid. The struggle for the freedom of the
press is direccted against the power of the licensor. Rt to publish
‘w/o a license” While freedom from previous restraint upon publication
can’t be regarded as exhausting the guaranty of liberty, the ordinance
is void on its face.
Stat: prohibited the distribution of “circulars, handbooks,
advertising, or literature of any kind” w/in city w/o first obtaining
written permission from the City Manager.
COX v. NEW HAMPSHIRE:
State law prohibited a parade/procession upon a public street w/o first
obtaining a permit.
HELD: Marchers interfered w/the normal sidewalk travel, but no technical
breach of the peace occurred. The authority of a municipality ot impose
reulations in order to assure the safety & convenience of the people in
the use of public highways has never regarded as inconsistent w/civil
-Where a restriction is designed to promote the public convenience in
the interest of all, it can’t be disregarded by the attempted exercise
of some civil rt which in other circumstances would be entitled to
-There is no evidence here that the statute has been administered
otherwise than in the fair & non-discriminatory manner required.
CANTWELL v. CONNECTICUT:
D was arrested for proselytizing activities & was convicted of the
common law offense of inciting a brach of the peace.
HELD: In the circumstances disclosed, the conviction must be set aside.
To condition the solicitation of aid for the perpetutation of religious
views/systems upon a license, the grant of which rests in the exercise
of a determination by state authority as to what is a religious cause,
is to lay a forbidden burden upon the exercise of liberty protected by
-A state may not unduly suppress free communication of views,
religious or other, under the guise of conserving desirable conditions.
-This was a J based on a common law concept of the most general &
undefined [nature], it embraces a great variety of conduct. It includes
not only violent acts but acts & words likely to produce violence in
-It includes violent acts & words likely to produce violence in
-When clear & present danger of riot, disorder, interference
w/traffic, or other immediate threat to public safety, peace, or order
appears, the power of the State to prevent/punish is obvious.
-He/D invaded no right or interest of the public or of the men
-His conduct did not amt to a breach of the peace.
-His communication raised no clear & present menance to public peace.
SCHNEIDER v. STATE:
Ordinance forbidded distribution of leaflets.
HELD: Municipal authorities have a duty to keep their communities’
streets oen for movement of people & property. So long as legislation
to this end does not abridge the constitutional liberty of one
rightfully upon the street to import info through speech or the
distribution of literature, it may lawfully regulate the conduct of
those using the streets.
-The flat ban on distribution of leaflets was plainly content-neutral
on its face, not content-based. The Ct struct down the ban, by applying
a variety of strict scrutiny balancing.
-The rt to the streets as a public forum is such that leaflet, the rt
to the streets as a public forum is such that leaflet distribution
cannot be prohibited & can be regulated only for weighty reasons.
***One is not to have the exercise of his liberty of expression in
appropriate places abridged on the plea that it may be exercised in some
-All speech was ‘speech plus’, so it was subject to the regulation of
time, place, manner, & circumstance, but to be acceptable the regulatio
had to weigh heavily the fact that communication was involved.
INTRUSIVE SPEAKER & UNWILLING LISTENER:
SAIA v. NY:
Regulation prohibited the use of amplification devices w/o the
permission of the police chief.
HELD: Ordinance was invalid b/c it was held to be unconstitutional on
its face for establishing a standardless previous restraint on free
speech. Ordinance would be dangerous if allowed to get a hold on our
-Any abuses which loud-speakers create can be controlled by narrowly
drawn stats/laws. Subjecat to uncontrolled discretion & suppression of
free communication of ideas.
-Annoyance at ideas can be cloaked in annoyance at sound. The power
of censorship is inherent in an ordinance such as this.
KOVACS v. COOPER:
D was convicted of violating a ban on “any device known as a sound
truck, loud speaker or sound amplifier [which] emits therefrom loud &
raucous noises & is attached to and upon any vehicle operated or
standing [upon] streets or public places.”
HELD: Sustained the applicatio of the ordinnce designed to regulate
loudspeakers. Valid ordinance b/c it applied only to loudspeakers
emitting “loud & raucous” noises.
-It is a permissible exercise of legislative discretion to bar sound
trucks w/broadcasts of public interest, amplified to a loud & raucous
volume, fromt e public ways of municipalities.
-The need for reasonable protection int eh homes or business houses
fromt eh distracting noises of vehicles like these justifies the
RULE: The preferred position of freedom of speech does not require
legislators to be insensible to claims by citizens to comfort &
PUBLIC UTILITIES COMM’N v. POLLAK:
PUC found that the use of radio receivers on cty buses was not
inconsistent w/public convenience, comfort & safety.
HELD: Ct found no 1st or 5th Amendment (privacy) flaws.
FRISBY v. SCHULTZ:
HELD: Ct narrowly construed & sustained a flat ban on what it called
“focused picketing” of a particular residence.
-The ordinance didn’t prohibit all residential picketing, but only
residential picketing that focused on & took place in front of a
-Ordinance is valid b/c it “preserves ample alternative channels of
communication” & was “narrowly tailored to serve a significant govt
-Picketers could still march through the neighborhood, so long as
they didn’t focus on a particular residence; free to proselytize door to
door, and to distribute literature.
-Individuals are not required to welcome unwanted speech into their
own homes. There dimply is no rt to force speech into the home of an
***A complete ban can be narrowly tailored, but only if each activity
w/in the scope is an appropriately targeted evil.
-The picketing here is narrowly directed at eh household, not the
-Ordinance is facially valid.
IF CONTENT-BASED: then the State must show that its regulation is
necessary to serve a compelling state interest & that it is narrowly
drawn to achieve that end.
IF CONTENT NEUTRAL RESTRAINTS: then the State needed to show that the
restriction was “narrowly tailored to serve a significant govenment
-a lighter burden.
When in doubt, ask whether if the person(s) involved were singing
“Jingle Bells” if it would be protected under the 1st Amendment?
-If “yes”, then the regulation is “CONTENT BASED”.
US v. KOKINDA:
HELD: Ct upheld a Postal Srvice prohibition of “soliciting”
contributions on postal premises. The regulation was applied to
soliciting by volunteers for the National Democratic Policy Committee
who’d set up a table on the sidewalk near the entrance of the post
office, in order to collect contributions.
-The use of an area that seems to be a sidewalk (a traditional public
forum) doesn’t necessarily assure the most careful scrutiny.
-Concluded that the postal “sidewalk” was not the kind of sidewalk
that constituted a traditional
-The mere physical characteristics of the property can’t dictate
-The postal regulation was reasonable as applied.
-It is content based, but not viewpoint based.
STANDARD: The regulation at issue must be analyzed under the standard
for nonpublic fora: It must be reasonable and ‘not an effort to
suppress expression merely b/c public officials oppose the speaker’s
RULE: Governmental actions are subject to a lower level of 1st Amendment
scrutiny when the govt is not acting as a lawmaker, but rather as a
REGULATION OF SOLICITORS:
TOO MUCH DISCRETION v. ASSURANCE OF ACCESS APPROACHES:
MARTIN v. STRUTHERS:
HELD: Ct invalidated an ordinance prohibiting the distribution of
handbills to residences by ringing doorbells or otherwise summoning
residents to the door.
-Permission to engage in door to door canvassing had traditionally
depended upon the indiv master of each household, & not upon the
determination of the community.
-A city can punish those who call at a home in defiance of the
previoiusly express will of the occupant and, in addition, can by
identification devices control the abuse of the privilege by criminals
posing as canvassers.
HYNES v. MAYOR OF ORADELL:
Ordinance required advance notice to police in writing “for
identification only” by “any person desiring to canvass, solicit or call
from house to house for a recognized charitable or political campaign or
HELD: Ct invalidated the stat as being unconsitutionally vague.
SCHAUMBERG v. CITIZENS FOR BETTER ENVIRON:
HELD: struck down an ordinance barring door-to-door and on-street
solicitations of contributions by charitable organizations that did not
use at least 75% of their receipts for charitable purposes.
-Soliciting is subject to reasonable regulation, w/due regard for the
reality that solicitation is characteristically interwined w/informative
& perhaps persuasive speech seeking support for particular causes or for
– w/o solicitaiton the flow of such info would likely cease.
SEC. OF STATE v. MUNSON:
HELD: Ct struck down a restriciton on similar solictiations to those in
-The factors were insufficient to distinguish Schaumburg, for the
possibility of gaining an exemption as inadequate to prevent the
inhibition of activitiy itself protected by the 1st.
RILEY v. NATIONAL FED OF THE BLIND OF N.C.:
HELD: Struck down a range of licensing, disclosure, & presumptive fee
limitations on professional fundraisers.
-The regulatory scheme was insuffiently different from those at issue
in schaumburg & Munson to survive 1st Amendment scrutiny.
HOSTILE AUDIENCES & SPEECH:
SUBSEQUENT PUNISHMENT TECHNIQUES:
FEINER v. NY:
Feiner was speaking to crown & crowd began mumbling. Then a bystander
said to a policeman stepped in & said “If you don’t get that son of a
bitch off, I will go over & get him off there myself.”.
HELD: When clear & present danger of riot, disorder, interference
w/traffic upon the public strets, or other immediate threat to public
safety, peace, or order, appears, the power of the State to prevent or
punish is obvious.
-This ct respects the interests of the community in maintaining peace
& order on its streets.
-Can’t say that the preservation of that interest here encroaches on
the constitutional rts of this petitioner.
EDWARDS v. S.CAROLINA:
Petitioners walked along the State House grounds to protest against
racial discrim. After lg crowwn of onlookers gathered, they were
ordered to disperse w/in 15 minutes, they didn’t & were arrested.
HELD: State infringed the petitioners’ constitutionally protected rts.
-Ct reversed breach of peace convictions of 187 black student
GREGORY v. CHICAGO:
HELD: Ct reversed convictions for disorderly conduct which resulted when
demonstrators refused to cease the demonstration after onlookers became
unruly & the police had asked them to stop.
-Convictions were totally devoid of evidentiary support to show that
the conduct was disorderly.
ACCESS TO PUBLIC PLACES OTHER THAN STREETS AND PARKS NON TRADITIONAL
Public Fora: a limitation on public power to interfere w/communication;
speech. If it is a public fora, then State can’t command that speech in
that particular speech entirely. Also can’t draw distinctions on speech
in that place based on content w/o a compelling interest.
-State’s interest in controlling speech in a public forum is
relatively limited b/c the State’s interest is limited & the value of
the speech in such a place is very high.
BROWN v. LOUISIANA:
5 Blacks held a “sit in” in a public library & were convicted of a
breach of the peace.
HELD: Ct reversed the convictions. 1st contains a rt to peaceale &
orderly manner to protest by silent & reproachful presence, in a place
where the protestant has every rt to be.
-No evidence that they had violated the law.
ADDERLEY v. FLORIDA:
Students went to a jail to protest the arrest of other students who’d
been protesting the day before. The students went to the jail to
protest the policies of the jail itself.
HELD: The conviction doesn’t violate their 1st Amendment rts. The
objection to their presence on that part of the jail grounds reserved
for jail uses.
-The Constitution doesn’t forbid a State to control the use of its own
property for its own lawful nondiscriminatory purpose.
1. Jails aren’t traditionally open to the public
2. No discrimination here
3. Law only pertained to certian parts of the jail grounds
4. The constitution doesn’t forbid the State to control its property
in a lawful, nondiscrim way.
5. No lack of notice here
LEHMAN v. SHAKER HEIGHTS:
A candidate for electio attempted to buy car card space for campaign
advertisements on the city-owned buses. The Transit system accepted
commercial ads, but had always barred “any political or public issue
advertising” on the buses.
HELD: No First Amendment forum is here to be found. The city
consciously has limited access to its transit system advertising space
in order to minimize chances of abuse, the appearance of favoritism, and
the risk of imposing upon a captive audience. These are reasonable
legislative objectives advanced by the city I a proprietary capacity.
SOUTHEASTERN PROMOTIONS v. CONCORD:
HELD: First rts were vilated when the municipal board in refusing
permission to present the musical/controversial “Hair”.
-The refusal constituted a prior restraint imposed w/o affording the
“rigorous procedural safeguards” required by FREEDMAN.
-A municipal theater is no less a forum for the expressio of ideas
than is a public park, or a sidewalk.
EXPRESSION IN PUBLIC PLACES & MAINENTANCE OF LOCAL PEACE & ORDER:
ACCESS TO MILITARY BASES:
GREER v. SPOCK:
HELD: The business of a base is to train soldiers, not to provide a
public forum & rejected any claim to a generalized consitutuioal rt to
make political speeches or distribute leaflets there.
-Ct upheld 2 regulations which barred political activities on the
base: prohibiting speeches & demonstrationsof a partisan political
nature; & the distribution of literature w/o prior approval of the base
FAIRGROUNDS & HOME LETTER BOXES:
HEFFRON v. INT’L SOCIETY FOR KRISHNA:
Minn State Fair had a rule that prohibited the sale or distribution of
any merchandise, including printed or written material, except from
booths rented to all applicants in a nondiscriminatory manner on a
first-come, first-serve basis.
HELD: The restriction was permissible b/c the first doesn’t guarantee
the rt to communicate one’s views at all times & places or in any manner
that may be desired.
-Restrictions may be approved w/o reference to the content of the
regulated speech, that they serve a sgnificant governmental interest &
leave open ample alternative channels for communcation of the info.
-Rule was clearly content-neutral b/c it applied evenhandedly to all
who wish to distribute & sell written materials or to solicit funds.
-Alternative forums for the expression exist despite the effects of
US POSTAL SERVICE v. GREENBURGH:
Group of civic associations who asserted that the ban on their
delivering messages to local residents by placing unstampted notices &
pamphlets in the letter boxes of private homes unduly inhibited their
communications w/the residents.
HELD: Rejected a First challenge to a federal law prohibiting the
deposit of unstamped “mailable matter” in home letter boxes approved by
the Postal Service.
-A letter box is not traditionally a public forum, making it
unncecssary to apply the principles governing time, place, & manner
restrictions on the use of public forums, ONLY a “reasonableness &
content neutral” test must be passed.
-First doesn’t guarantee access to property simply b/c it is owned or
controlled by the government.
ACCESS TO SCHOOLS:
GRAYNED v. ROCKFORD:
Ordinance stated that no person on grounds adjacent to any school
building in which a class is in session shal willfullly make or assist
in the making of any noise or diversion which distrubs or tends to
disturb the peace or good order of such session.
HELD: The nature of the place, the pattern of its normal activites which
determines the reasonableness of time, place, & manner restrictions.
Crucial question is whether the manner of expression is basically
incompatible w/the normal activity of a particular place at a particular
-This restraint is appropriate to the school environment. The
reulation must be narrowly tailored to further the State’s legitimate
-The ordinance is not an unconstitutuional regulation of activity
around a school.
-Expressive activity may be prohibited it it materially disrupts
classwork or involves substantial disorder or invasion of the rts of
WIDMAR v. VINCENT:
The University prohibited the use ofits facilities for purposes of
religious worship or religious teaching, barred a student religious
group from meeting anywhere on its grounds.
HELD: A state university that makes its facilities generally available
for the activites of registered student groups may not constitutionally
bar a group desiring to use the facilities for religious worship &
-University assumed an obligation to justify its discriminations &
exclusions under applicable constitutional norms. The consitution
forbids a State to enforce certain exclusions from a forum generally
open to the public.
-To justify a discriminatory exclusion from a public forum based on
the religous content of a group’s intended speech, the University must
therefore satisfy the stndard of review appropriate to content-based
-It must show that its regulation is necc to serve a compelling
state interest & that it is narrowly drawn to achieve that end.
-A content-based exclusion violates the fundamental principle that a
state rgulatio of speech should be content-neutral.
-The university may not allow its agreement or disagreement w/the
viewpoint of a particular speaker to determine whether access to a forum
will be granted.
LAMB’S CHAPEL v. CENTER MORICHES:
The use of School facilities for the showing of films discussing
various social issues int eh context of traditional, Christian family
values, and the Church was denied access to the school’s facilities.
HELD: Films dealing w/the same subject matter would have been permitted
if only that subject matter hadn’t been treated rom a religious
perspective, and sponsored by a religious group.
-The exclusion was impermissible, for even a total exclusio of all
religious groups & perspectives was a viewpoint & not subject-matter
-The exclusion’s flaw was that it was “discrimination on the vasis
of viewpoint to permit school property to be used for the presentation
of all views about family issues & child rearing except those dealing
w/the sub. matter from a religious viewpoint/standpoint.
ROSENBERGER v. UNIVERSITY OF VIRGINIA
WHAT IS LEFT OF ACCESS TO PUBLIC PLACES? SURVEY OF THE MODERN CT’S
CLARK v. CMNTY FOR CREATIVE NON-VIOLENCE:
ISSUE: Can park service prohibit sleeping in the park & thereby
preventing such a message w/o violating the 1st Amendment.
HELD: Ct upheld the orinance. The regulation was very clearly content-
-The Park Service regulation is sustainable under the fourfactor
standard of O’Brian for validating a regulation of expressive conduct.
-This is no more than a reaffirmation that reasonable time, place, and
manner restrictions on expression are consitutionally acceptable.
WARD v. ROCK AGAINST RACISM:
First Amendment challenge to NYC regulation mandating the use of city-
kprovided sound systems & technicians to control the volume of concerts
at the Bandshell in Central Park. The regulation was challenged by a
group that claimed that the inability to use its own equipent &
technicians in a concert in a public forum interfered w/its free
HELD: Ct applied Intermediate Scrutiny. Held that the regulation was
content-neutral. Dispute rested on whether the application of the
narrowly tailored requirement permitted or required a least-restrictive
means or least intrusive alternative analysis.
-Restrictions on the time, place, or manner of protected speech are
not invalid simply b/c there is some imaginable alternative that might
be less burdensome on speech.
-Speech restrictive regulations unrelated to any governmental
interest in the suppression of expression were valid if the incidental
restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest.
-Means must be narrowly drawn to further a substantial governmental
interest & must be narrowly drawn.
***So long as the means chosen are not substantially broader than
necessary to achieve the government’s interest, the regulation will not
be invalid simply b/c a ct concludes that the govts interest could be
adequately served by some less speech restrictive alternative.
-Ct applied highly deferential standard, & finding that the
regualtion left open ample alternative channels of communication,,
concluding that it was a reasonable regulation of the place & manner of
PERRY v. PERRY LOCAL:
The PEA union, but no other would have access to the interschool mail
system & teacher mailboxes
ISSUE: Whether the denial of similar access to the PLEA, a rival teacher
group, violates the First?
HELD: The existence of a rt of access to public prop & the stand by
which limitations upon such a rt must be evaluated differ depending on
the character of the property at issue.
-The interschool mail system isn’t a traditional public forum. The
internal mail system isn’t held open to the general public.
-The schools do allow some outside organizations such as the YMCA, Cub
Scouts, and other civic & church organizations to use the facilities.
-While the school mail facilities thus misht be a forum generally
open for use by other organizations that engage in activities of
itnerest & educational relevance to students, they wouldn’t as a
consequence be open to an org such as PLEA.
-On government prop that hasn’t been made a public forum, not all
speech is equally situated, and the state may draw distinctions which
relate to the special purpose for which the property is used.
CORNELIUS v. NAACP LEGAL DEFENSE FUND:
HELD: Ct upheld an EO limiting the organizations that coupld
participate in CFC to voluntary, taxa-exempt, nonprofit charitable
agencies that provide direct health & welfare services to individuals;
the order expressly excluded legal defense & political advocacy groups.
-The CFC was the relevant forcus & held that it was a “nonpublic
-Content & Viewpoint based regulation (Executive Order).
-Not a public forum or a forum of any kind.
-If it were a public forum by designation would exclude the kind of
speech from the organizations which were excluded.
CITY COUNCIL v. TAXPAYERS FOR VINCINT:
A candidate wanted to post campaign signs on support poles in the city,
which were removed by city council workers. The ordinance prohibited
theh posting of signs on public policy.
HELD: Ct rejected an overbreadth challenge, turning to an “as applied”
-The state may sometimes curtail speech when necessary to advance a
significant and legitimate state interest. The first forbids the govt
from regulating speech in ways that favor some viewpoints or ideas at
the expense of others.
– The ordinance curtails no more speech than is necessary to
accomplish its purpose.
-The legitimate interest served by the ordinance, its viewpoint
neutrality, and the availability of alternative channels of
communication, the ordiance is certainly constitutional as applied to
appellees under this stand.
-We accept te City’s position that it may decide that the esthetic
interest in avoiding the “visual clutter” justifies a removal of signs
creating or increasing that clutter. We hold that on this record the
interests are sufficiently substantial to justify this content neutral,
impartially administered prohibition.
RULES: The incidental restriction on expression which results from the
city’s attemt to accomplish such a purpose is considered justified as a
reasonable regulation of the time, place, or manner of expression if it
is narrowly tailored to serve that interest.
-The first doesn’t deprive a municipality of power to enact
regulations against throwing literature broadcast in the streets.
-Characterizing such an activity as a separate means of communication
doesn’t diminish the state’s power to condemn it as a public nuisance.
-A restriction on expressive activity may be invalid if the
remaining modes of communication are inadequate.
-The first doesn’t guarantee access to govt prop simply b/c it is
owned or controlled by the govt. The existence of a rt of access to
public prop & the stand by which limitations upon such a rt must be
evaluated differ depending on the character of the prop at issue.
METROMEDIA v. SAN DIEGO:
Regulation of billboards placed on private property. The ordinance
imposing substantial restrictions on outdoor advertising displays,
largely in the interest of curtailing visual pollution. The ordinance
prohibited all billboards, w/certain exceptions for on site signs, those
that advertised products or services rendered on the premises on which
the sign was placed. Other exceptions were those for govt signs, temp
political campaign signs, for sale and for lease signs, and signs w/in
HELD: Ct struck down the ordinance, finding the content regulation
implicit in the exceptions to be a fatal constitutional infirmity.
-The content distinction contained in the ordinance is the basis for
finding the ordinance unconstitutional. The regulation of commercial
billboards is permissible b/c of the lesser protection provided to
-Noncommercial speech is to be afforded a greater degree of
protection than commercial speech.
-Insofar as the city tolerates billboards at all, it can’t choose to
limit their content to commercial messages.
-With respect to noncommercial speech, the city may not choose the
appropriate subjects for public discourse.
-This ordinance is an impermissible content distinction.
BOOS v. BARRY:
Ordinance in DC prohibited, w/in500ft of a foreign embassy, “the display
of any sign if that sign tends to bring the foreign govt into ‘public
odium’ or ‘public disrepute’.
HELD: Ct, using a strict scrutiny content-based regulation in the
traditional public forum, struck down the ordinance.
-Ct held that it was not viewpoint-based, although it is content-
based, b/c the govt has determined that an entire category of speech-
critical of foreign govts is not permitted.
-If viewpoint based, then it is content based. If content based,
then it is not necc viewpoint based.
-A content-based restriction on political speech in a public forum
must be subjected to the most exacting scrutiny. Must show that the
regulation is necessary to serve a compelling state interest and that it
is narrowly drawn to achieve that end.
-Even if it were sufficiently compelling to support a content based
restriction, it is not narrowly tailored to serve that interest.
*The display clause of the ordinance is not crafted w/sufficient
precision to w/stand First Amendment scrutiny. It may serve an interest
in protecting the dignity of foreign missions, but it is not narrowly
tailored; a less restrictive alternative is readily available.
CITY OF LADUE:
City ordinance prohibited homeowner from displaying any signs on their
property except “residence identification” signs, “for sale” signs, and
signs warning of safety hazards.
HELD: The exeptions in Ladue’s ordinance nevertheless shed light on the
separate question of whether the ordinance prohibits too much speech.
-A special respect for individual liberty in the home has long been
part of our culture and our law; that principle has special resonance
when the govt seeks to constrain a person’s ability to speak there.
REGAN v. TIME:
Federal law prohibited the publication of any photograph of US currency
except for “philatelic, numismatic, educational, historical, or
newsworthy purposes.” Sports Illustrated had a cover that “carried a
photographic color reproduction of $100 bills pouring in to a basketball
HELD: Ct struck down the law. The purpose requirement of the exceptio
was an impermissible content-based distinction.
-A determination concerning the newsworthiness or educational value of
a photograph can’t help but be based on the content of the photograph &
the message it delivers.
NATIONAL SOCIETY v. LEE:
ISSUE: Whether airports would be considered public fora for access
Port Authority of NY prohibited the distribution of literature & the
solicitation of funds, a prohibition challenged by Krishna society.
HELD: Ct upheld the restriction on solicitation of funds, but struck
down the prohibition on distribution of literature.
-Regulation of speech on govt prop that has traditionally for public
expression is subject to the highest scrutiny.
-Forum Analysis was applied to the solicitation of funds, stating
that the govt need not permit all forms of speech on prop that it owns &
-Where the govt is acting as a proprietor, managing its internal
operations, rather than acting as lawmaker w/the power or license, its
actions will not be subject to the heightened review to which its
actions as a lawmaker may be subject.
-Widespread public use & generally uncontrolled public access were
sufficient to create a public forum.
***The majority opinion required a standard of reasonableness.
RIGHT OF ACCESS TO PRIVATE PROP PRUNEYARD:
Shopping centers are not analogous to company-owned towns.
RED LION v. FCC:
FCC sought to provide rts of access for individuals attacked on the air
& imposed requirements that radio & television stations give reply time.
The FCC “The Fairness Doctrine” requires stations to present discussion
of public issues, and to assure fair coverage for each side. Later
rules by FCC elaborated the personal attack & political editorials
aspects of the fairness doctrine by specifying the circumstances in
which free reply time had to be made avail by licensees.
HELD: The FCC Regulations were sustained. Ct supported a limited rt of
access to the broadcasting media. Access would enhance rather than
abridge the freedoms of speech & press.
-Great speech interests of the public. Differences in the
characteristics of news media justify the differences in the First
Amendment standards applied to them.
-Govt may limit the use of broadcast equipment. The rt of free
speech doesn’t embrace a rt to snuff out the free speech of others.
CBS v. DEMOCRATIC NAT’L COMMITTEE:
Rt of access, involving a broadcasting context counterpart to the access
claim. Originatd w/complaints filed by the Democratic National
Committee and an anti-war group challenging the broadcasters’ policies
of refusing all editorial advertisements, before the FCC in 1970.
HELD: The majority emphasized the broadcasters’ rt to control the
content of their programs.
-Ct rejected the argument that a broad rt of access could be drawn
from the Red Lion ruling.
-Ct emphasized the statutory indications that “Congress intended to
permit private broadcasing to develop w/the widest journalistic freedom
consistent w/its public obligations.
-Held that the Commission’s rt of access system would tend to draw it
into a continuing case-by- case determination of who whould be heard and
when. Listeners & viewers consitute a captive audience.
CBS v. FCC:
Communications Act of FCC authorized the FCC to revoke a braodcaster’s
license “for willful or repeated failure to allow reasonable access or
to permit purchase of reas amts of time for the use of a broadcasting
station by a legally qualified candidate for Federal elective office on
behalf of his candidacy.” The Presidential Committee for Carter-Mondale
asked 3 diff t.v. networks to sell them a 1/2hr of early Dec air-time,
which they refused.
HELD: Red Lion did not support a First Amendment rt of access for
editorial advertisements. The Ct endorsed the FCC standards & their
ACCESS TO MEDIA:
MIAMI HERALD v. TORNILLO:
The law granted political candidates a rt to equal space to reply to
criticism & attacks on their record by a newspaper.
HELD: Ct found any such interest easily overcome by powerful protection
newspapers enjoy b/c of the freedom of the press guaranteed by the First
-Florida’s rt of reply law was unconsitutional, rejected efforts to
justify it on the bsis of a First Amendment rt of access. The law
violated the First.
-The Florida statute exacts a penalty on the basis of the content of a
***A government-enforced rt of access inescapably dampens the vigor &
limits the variety of public debate. It intrudes into the function of
RULE: At each point the implementation of a remedy such as an
enforceable rt of access necessarily calls for some mechanism. It it is
governmental coercion, then there is a confrontation w/the First
-A responsible press is an undoubtedly desirable goal, but press
responsibility isn’t mandated by the constitutution & cannot be
***Only dealing w/the airwaves.
-Red Lion: Ct found a limited rt of access. Fairness Doctrine was
sustained on theory that access to the airwaves is a limited media, so
that the State could control the access to an extent to expand that
access b/c of the peculiar nature of the airwaves.
-How far this sense that the limited access justifies a restraint on
the Broadcaster’s First Amendment rts.
TURNER BROADCASTING v. FCC:
The Consumer Protection & Competition Act required operators of cable
systems to carry local broadcast stations both commercial & non-
commercial w/o charge to consumers. The number of broadcast signals
that cable operators are required to carry, which varies w/the number of
subscribers & cable cannels, but can be up to 1/3 of the channels
offered by the cable operator.
HELD: The Ct didn’t make a final ruling on the consitutionality of the
must-carry rules. Congress’ acknowledgment that broadcast tv stations
make a valuable contribution to the Nation’s communications system
doesn’t render the must-carry scheme content based.
-The accss rules in those cases wre content-based, and those involved
here were content-neutral. The must-carry regulations are not activated
by any particular message spoken by cable operators & thus exact non
-By virtue of its ownership of the essential pathway for cable
speech, a cable operator can prevent its subscribers from obtaining
access to programming it chooses to exclude.
-No findings were found concerning the actual effects of must carry on
the speech of cable operators & cable programmers.
STANDARD: The intermediate level of scrutiny applicable to content-
neutral regulations that impose an incidental burden on speech. Ct had
no difficulty in concluding that the govt interest in promoting
competition & preserving broadcasting were important governmental
ACCESS TO OTHERS:
PACIFIC GAS v. PUBLIC UTIL:
A newsletter distributed by PG & E to its customers in the monthly
billing envelope was in question. PUC held that the company had to
allow private advocacy group to use the extra space four times a yr to
communicate w/that company’s customers. The company was a privately
owned utility claimed that requiring it to include in its billing
envelope speech of a 3rd pty w/which the utility disagrees, violated
First Amendment rts.
SOUTH BOSTON v. IRISH AMERICAN:
Council was given the rt to grant/deny applications to march in the
Parade in Mass. The counsil denied GLIB (Gays, lesbians, etc) the rt to
march in the parade.
HELD: The requirement to admit a parade contingent expressing a message
not of the private organizers’ own choosing violates the First
-The guarantees of free speech & equal protection guard only against
encroachment by the govt & erect no shield against merely private
-A private speaker doesn’t forfeit constitutional protection simply
by combining multifarious voices, or by failing to edit their themes to
isolate an exact message as the exclusive subject matter of speech. The
First Amendment doesn’t require a speaker to generate, as an original
mattter, each item feature in the communication.
-The presentation of an edited compilation of speech generated by
other persons is a staple of most newspapers’ opinion pages, which, of
course, fall squarely as does even the simple selectio of a paid
noncommercial advertisement for inclusion in a daily paper. The
selection of contingents to make a parade is entitled to similar
-Disapproval of a private speaker’s statement doesn’t legitimize use
of the Commonwealth’s power to compel the speaker to alter the message
by including one more acceptable to others.
Fighting Words and the Chaplinksy Categorization Approach:
CHAPLINKSY v. NEW HAMPSHIRE:
Chaplinsky was distributing literature & had attracted a restless crown
by denouncing all religion as a “racket.” A disturbance broke out &
Chaplinsky was taken away. D claimed that he’d asked the marshal to
arrest the ones responsible for the disturbance, but the Marshal
insisted that he’d merely told D that the crowd had gotten restless. D
& Marshal got into an argument in which D called the Marshal a “God
damned racketeer” and “a damned Fascist”, adding that “thw whole govt of
Rochester are Fascists or agents of Fascists.”
HELD: Ct upheld a conviction under a state law stating that “no person
shall address any offensive, derisive or annoying word to any other
person who is lawfully in any street or other public place, nor call him
any offensive or derisive name.” Those words were interpreted to ban
words that men of common intelligence would understand would be words
likely to cause an average addressee to fight..face-to-face words
plainly likely to cause a breach of the peace by the addressee, words
whose speaking consitute a breach of the peace by the speaker
-The appelations damned racketeer & damned Fascist are epithets likely
to provoke te average person to retaliation & thereby cause a breach of
-There are certain well-defined & narrowly limited classes of
speech, the prevention & punishment of which have never been thought to
raise any Consitutional problem.
-Such utterances are no essential part of any exposition of ideas, and
are of such slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the social interests
in order & morality.
GOODING v. WILSON:
Appellee & other anti-war picketeers at an Army building refused a
police request to stop blockin access to inductees. Appellee said to
the police officer, “White son of a bitch, I’ll kill you” “You son of a
bitch, I’ll choke you to death, & You son of a bitch, if you ever put
your hands on me again, I’ll cut you all to pieces.”
HELD: The conviction was reversed under the Georgia statute that
provided that any person who shall, w/o provocaion, use to or of
another, opprobrious words or abusive language, tending to cause a
breach of the peace, guilty of a misdemeanor.
-The statute was facially void, primarially on overbreadth grounds.
-The statute was overbroad: it was susceptible of application to
protected expression. Fighting words are words “whcih by their very
utterance tended to incite an immediate breach of the peace.
-The fighting words as used included not only those that tend to
incite an immediate breach of the peace, but also those which by their
very utterance inflict injury.
-Free speech may best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction w/conditions as they are,
or even stirs people to anger.
-Emphasis on the emotive power of words. The state interest
typicially relied on to justify the exclusion of fighting words-the
interest in avoiding disorder & violence has come b/f the ct.
***The ct addresses those problems through balancing rather than
CITY OF HOUSTON v. HILL:
Hill founded the Gay Politicl Caucus. He observed a friend who’d been
intentionally stopping trafic on a busy streep to enable a vehicle to
enter traffic. The friend was approached by 2 police officers. Hill
then began shouting to the officers to pick on somebody their own size.
Hill was then arrested under a code which prohibited “wilfully or
intentionally interrupting a city policeman by verbal challenge during
HELD: Ct found the provision overbroad under the Broadrick line of
cases. The enforceable portion of the ordinance deals w/speech, not
core criminal conduct.
-Freedom verbally to oppose or challenge police action w/o thereby
risking arrest is one of the principle characteristics by which we
distinguish a free nation from a police state & found the ordinance “not
narrowly tailored to prohibit only disorderly conduct or fighting words.
-Laws that provide police w/unfettered discretion to arrest
individuals for words/conduct that annoy or offend them are repeatedly
-The ordinance was musch more sweeping than others that had been
struck down, & furthermore the Constitution doesn’t allow such speech to
be made a crime.
***Absent an authoritative limiting construction of the ordinance, it
wested excessive discretion in police officers to act against protected
speech & was thus unconsitututional.
ADDITIONAL PERVASIVE THEMES:
DISCRIMINATORY RESTRAINT: CONTENT BASED v. CONTENT NEUTRAL:
POLICE DEPT. v. MOSLEY:
Ordiance barred picketing w/in 150ft of a school, but exempted “peaceful
picketing of any school involved in a labor dispute.
HELD: Ct focused on discriminatory regulations of speech. The First
Amendment means that govt has no power to restrict expression b/c of its
message, its ideas, its subject matter, or its content.
-Ct invalidated the Chicago disorderly conduct ordinance b/c it found
this “selective exclusion from a public place” unconstitutional.
-Ct analyzed this problem in terms of the Equal Protection Clause of
the 14th Amendment.
-The equal protection claim in this case is closely interwined w/First
Amendment interests. The Chicago ordinance affects picketing,
EXPRESSIVE CONDUCT, by classifications formulated in terms of the
subject of the picketing.
-The Ordinance describes the permissible picketing in terms of its
subject matter, whereby the operateive distincetion is the message on a
-The govt must afford all points of view an equal oppertunity to be
heard. Once a forum is opened up to assembly or speaking by some
groups, govt may not prohibit others from assembling or speaking on the
basis of what they intend to say.
-Selective exclusions from a public forum may not be based on
content alone, and may not be justified by reference to content alone.
***REASONABLE TIME, PLACE, & MANNER REGULATIONS OF PICKETING MAY BE
NECESSARY TO FURTHER SIGNIFICANT GOVT INTERESTS. But this was not a
time, place, & manner regulation, but rather one in terms of subect
RULE: Under equal protection the govt may not grant the use of a forum
to people whose views it finds acceptable, but deny use to those wishing
to express less favored or more controversial views. It may not select
which issues are worth discussing or debating in public facilitities.
-There is an equality of status in the field of ideas.
BARNES v. GLEN THEATRE:
Respondents claim that the 1st Amendment prevents the State of Indiana
from enforcing its public indecency law to prevent this form of totally
nude dancing as entertainment, and indiv dancers employed at these
-Statute regulating public nudity requires that dancers wear pasties &
a G-String when they dance.
HELD: The Indiana stat reqt that the dancers in the establishments
involved in this case must wear panties & a G-string doesn’t violate the
First Amendment. Statute was designed to protect morals & public order.
-Traditional police powers of the States is the authority to provide
for the public health , safety, and morals, then the public indecency
statute furthers a substantial government interest in protecting order &
-The interest in the legislation is unrelated to the suppression of
-Meets reqt that the incidental restriction on First Freedom to be no
greater than is essential to the furtherance of the governmental
SEID: Totally a communicative regulation, not a physical regulation.
Can be argued that this is not content based.
TINKER v. DES MOINES SCHOOL DISTRICT:
Dealt with First amend protection for symbolic expression. 3 students
wore black armbands to school to publicize their objection to the
Vietnam war, were asked to remove them & refused. The students were
suspended until they would return w/o the armbands.
HELD: The restriction was unconstitutional b/c the claimant’s behavior
was “closely aking to ‘pure speech”. The wearing of armbands in the
circ of this case was different entirely from actually or potentially
disruptive conduct. It was closely akin to PURE SPEECH.
-Problem here involves direct, primary First Amendment rts akin to
-The speech doesn’t concern speech or action that intrudes upon the
work of the school or the rts of other students.
-Because thre was no finding or showing that the forbidden conduct
would materially and substantially interfere with the reqt’s of
appropriate discipline & operation of the school, the prohibition
couldn’t be sustainted.
TEXAS v. JOHNSON:
HELD: D’s conviction was not consistent with the 1st Amendment.
-The govt interest in preventing breaches of the peace was not
implicated in the record . The govt interest in the preservation of the
flag as a symbol of nationhood & national unity is related to the
suppression of expression.
-D’s expressive conduct does not fall w/in the expressive conduct
fall w/in the small class of fighting words that are likely to provoke
the average person to retaliation, & thereby cause a breach of the
RULE: The first literally forbids the abridgement only of speech, but
its protection doesn’t end at the spoken or written word.
-Govt has not been permitted to assume that every expression of a
provocative idea will incite a riot, but have instead required careful
consideration of the actual circ surrounding such expression.
-Govt may not prohibit expression of an idea simply b/c society
finds the idea itselt offensive or disagreeable.
***O’Brien test does not apply b/c this stat is content based.
MASSON v. NEW YORKER MAGAZINE:
P, phychiatrist, argued that the false attribution contained in
quotation marks necessarily satisfied the actual malice standard, b/c
the author knew the P had not made the exact statements quoted.
HELD: Ct refused to recognize such a broad principle of liability for
inaccurate quotation. Where the P is a public figure, a fabricated
quotation may be the basis of liability only if there has been a
material change in the meaning.
-The actual malice meant on ly knowledge of falsity or reckless
disregard as to truth or falsity, where reckless disregard as to truth
of falsity is not satisfied by mere negligence, only by actual doubts
about truth or actual awareness of probable falsity.
RULE: If an author alters a speakers words, but effects no material
change n meaning, including any meaning conveyed by the manner or fact
of expression, the speaker suffers no injury to reputation that is
compensable as a defamation.
HUSSLER MAGAZINE v. FALWELL:
A nationally known minister was satired when a parody of an
advertisement for Campari Liquer entitled “Jerry Falwell Talks About His
First Time.”. Referred to sex, meant the drink.
ISSUE: Whether a public figure may recover damages for emotional harm
caused by the publication of an ad parody offensive to him, & gross &
repugnant in the eyes of most.
HELD: Public figures & public officials MAY NOT recover for the tort of
intentional infliction of emotional distress by reason of publications
w/o showing in addition that the publication contains a false statement
of fact which was made w/”actual malice”.
-ACTUAL MALICE: with knowledge that the statement was false or with
reckless disregard as to whether or not it was true.
CAMPBELL v. ACUFF-ROSE MUSIC:
HELD: a parody by the rap group 2 Live Cre of “Oh, Pretty Woman,” was
likely protected as fair use & thus not open to a charge of copyright
-The way in which a parody could be viewed as a work “commenting on a
criticizing the original work.”
-A parody might be in bad taste does not & should not matter to
IS OPINION PROTECTED BY 1ST AMENDMENT?
THERE IS NO DIFFERENCE B/T OPINION & STATEMENTS OF FACT. MILKOVICH.
FALSE LIGHT INVASIONS OF PRIVACY:
“True Privacy” Case. Father sued b/c of the broadcasting of the fact
that his daughter had been a rape victim.
HELD: Civil liability in a “true” privacy action could not be imposed
upon a broadcaster for accurately publishing information released to the
public in official ct records.
-Ct barred liability, Ct relied espicially on the public interest in a
MILKOVICH v. LORAIN JOURNAL CO.:
HELD: Ct rejected the idea that the First Amendment req’d a separate
inquiry into whether the statements were statements of fact or of
opinion, concluding that the language in GERTZ, was but a reformulation
of traditional “marketplace of ideas” theory & not an establishement of
a separate constitutional requirement.
-The First Amendment doesn’t require “the creation of an artificial
dichotomy b/t opinion & fact”, claiming that such a dichotomy was
unnecessary b/c D had already established that “a statement on matters
of public concern must be provable as false before ther can be liability
where a media D is involved.”
FIRST AMENDMENT QUESTIONS RE LIBEL:
FALSE SPEECH PROTECTED BY FIRST AMENDMENT?
COMMON LAW DEFAMATION
OBSCENITY AND PORNOGRAPHY:
ROTH v. UNITED STATES: [NATIONAL STANDARD; ANY LITERARY OR ARTISTIC
Roth, NY publisher & seller, was convicted of mailing obscene
advertising & an obscene book in violation of the federal obscenity
statute. Alberts engaged in the mail order business, & was convicted
under a Cal. law for “lewdly keeping for sale obscene & indecent books”
& “publishing an obscene advertisement of them.”
ISSUE: Whether obscenity is utterance w/in the area of protected speech
HELD: Obscenity is not w/in the area of constitutionally protected
speech or press.
-These statutes applied according to the proper standard for judging
obscenity, do not offend, constitutional safeguards against convictions
based upon protected material, or fail to give men in acting adequate
notice of what is prohibited.
TEST: Whether to the average person, applying contemporary community
standards, the dominant theme of the material taken as a whole appeals
to the prurient interest.
***OBSCENITY IS NOT THE SAME THING AS PORNOGRAPHY.
-Obscenity is bad & people shouldn’t be exposed to it.
-When obscenity exists then bad things will happen.
***Obscenity is historically immoral & insulting, as well as degrading.
-Many people in society are uncomfortable w/the things involved in
REDRUP v. NEW YORK:
HELD; Reversed convictions for the dissemination of materials that at
least five members of the ct.
STANLEY v. GEORGIA:
HELD: The First Amendment prohibits making the private possession of
obscene material a crime.
MILLER v. CALIFORNIA: [LOCAL COMMUNITY STANDARD; LACKS SERIOUS LITERARY
OR ARTISTIC VALUE]
State’s criminal obscenity stat to a situation in which sexually
explicit materials have been thrust by aggressive sales action upon
unwilling recipients who had in no way indicated any desire to receive
RULE: States have a legitimate interest in prohbiting dissemination or
exhibition of obscene material when the mode of dissemination carries
w/it a significant danger of offending the sensibilities of unwilling
recipients or of exposure to juveniles.
-If a state law that regulates obscene material is thus limites, as
written or construed, [First Amendment values] are adequately protected
by the ultimate power of appellate cts to conduct an independent review
of constitutional claims when necessary.
-No one will be subect to prosecution for the sale or exposure of
obscene materials unless these materials depict or describe patently
offensive “hard core” sexual conduct specifically defined by the
regulating state law, as written or construed.
MILLER TEST: (for obscenity) A)Whether the average person, applying
contemporary community standards would foind that the work, taken as a
whole, appeals to the prurient interest. B)Whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law, and C) Whether the work, taken as a
whole, lacks serious literary, artistic, political, or scientific value.
HELD: The requirement that ht ejury evaluate the materials w/reference
to “contemporary standards” of the State of Cal is constitutionally
PARIS ADULT THEATER I v. SLATON:
Films were obscene & law prohibited the showing of the films in the
theatre, though no kids were allowed in & there was no main
advertisement that it was an obscene film.
-Argument against the State Bar is the Rt to Privacy.
HELD: Ct doesn’t buy the argument. Community & public safety are state
concerns. Distinction b/t STANLEY w/the privacy of one’s home & the
-State’s interest in morality. No attention is given to what is lost
in terms of expression.
NEW YORK v. FERBER:
Law prohibited the distribution of material depicting children engaged
in sexual conduct; doesn’t require that the materially be legally
obscene. D owned the bookstore specializing in sexually oriented
products, & was convicted.
-Statute stated that “A person is guilty of promoting a sexual
performance by a child when, knowing the character & content thereof, he
produces, directs, or promotes any performance which includes sexual
conduct by a child less than 16yrs of age.”
HELD: A state’s interest in safeguarding the physical & phychological
well being of a minor is compelling.
-The Miller standard doen’t reflect the State’s particular & more
compelling interest in prosecuting those who promote the sexual
exploitation of children. ie. a work which contains serious literary,
artistic, political, or scientific value may nevertheless embody the
hardest core of child pornography. It is irrelevent to the child who
has been abused, whether or not the material has a literary, artistic,
political, or social value.
-The First Amendment interest is limited to that of rendering the
portrayal somewhat more realistic by utilizing or photographing
-It is not rare tat a content-based classification of speech has been
accepted bb/c it may be appropriately generalized that w/in the confines
of the given classification, the evil to be restricted so overwhelmingly
outweighs the expressive interests, that no process of case-by-case
adjudication is req’d.
-The Stat sufficiently describes a category of material the
production & distributiono f which is not entitled to First Amendment
TEST: A trier of fact need not find that the material appeals to the
prurient interest of the average person; it is not req’d that sexual
conduct portrayed be done so in a patently offensive manner; and the
material at issue need not be considered as s whole.
REGULATING HATE SPEECH:
AMERICAN BOOKSELLERS v. HUDNUT:
Indianapolis enacted an ordinance defining pornography as a practice
that discriminates against women. Pornography under the statute is the
graphic sexually explicit subordination of women, whether in pictures or
in words, that also includes one or more of 1) Women are presented as
sexual objects who enjoy pain or humiliation; or 2) Women are presented
as sexual objects who experience sexual pleasure in being raped; or 3)
Women are presented as sexual obejects tied up or cut up or mutilated or
bruised or physically hurt, or as dismembered or truncated or fragmented
or severed into body parts; or 4) Women are presented as being
penetrated by objects or animals; or 5) Women are presented in scenarios
of degradation, injury, abasement, torture, shown as filthy or inferior,
bleeding, bruised, or hurt in a context that makes these conditions
sexual; or 6) Women are presented as sexual objects for domination ,
conquest, violation, exploitation, possession, or use, or through
postures or positions of servility or submission, or display.
-Statute provides “the use of men, children, or transsexuals in the
place of women in 1-6 above shall also constitute pornography under this
-Stat also defined “sexually explicit” to mean actual or simulated
intercourse or the uncovered exhibition of the genitals, buttocks or
HELD: Ordinance discriminates on the ground of the content of the
-The First Amendment means that govt has no power to restrict
expression b/c of its message or its ideas.
-The definition of pornography is unconstitutional. No construction
or excisio of particular terms could save it.
-Pornography is not low value speech w/in the meaning of these
-The Court can balance the value of speech against the costs of its
restriction, but ONLY by category of speech & NOT by the content of
RULE: State may not ordain preferred viewpoints in this way. The
Constitution forbids the state to declare one perspective right &
OFFENSIVENESS & INDECENCY:
COHEN v. CALIFORNIA:
Cohen was convicted for violating a California law which prohibits
“maliciously & wilfully disturbing the peace or quiet of any
neighborhood or person by offensive conduct.” He wore a jacket that
said “Fuck the Draft” in the court. D wore the jacket as a means of
informing the public of the depth of his feeling against the Vietnam War
and the Draft.
-The only “conduct” which the state saought to punish is the fact of
communication. The Conviction rested solely upon “speech”, not any
other separately identifiable conduct which allegedly was intended by
Cohen to be perceived by others as expressive of particular view.
HELD: Convictions were reversed. Absent a more particularized &
comopelling reason for its actions, the State may not, consitently w/the
First, make the simple public display here involved of this single four-
letter expletive a criminal offense.
-His conviction rested squarely upon his exercise of the “freedom of
speech” and can be justified, if at all, only as a valid regulation of
the manner in which he exercised that freedom, not as a permissible
prohibitioni on the substantive message it conveys.
RULE: At least so long as there is no showing of an intent to incite
disobedience to or disruption of the draft. He couldn’t be punished for
assrting evident postition on the inutility/immorality of the draft his
ROSENFELD v. NEW JERSEY:
Used word “mother fucker” on 4 occassions in a school board meeting, to
describe the teachers, the school board, the town & his own country. He
was convicted under a disorderly person stat prhohibiting indecent &
offensive language in public places & interpreted to cover words “of
such a nature as to be likely to incite the hearer to an immediate
breach of the peace or to be likely, in light of the gender & age of the
listener & the setting of the utterance, to affect the sensibilities of
a hearer. His mother used “god damn mother fuckers” toward the police
arresting him. She was convicted under a breach of the peace stat
prohibiting anyone from wantonly cursing, reviling, or using “obscene or
opprobrious language” toward a police officer on duty. Brown, in a univ
chapel meeting, had referred to some policemen as “mother fucking
fascist pig cops” & to a particular cop as that “black mother fucking
pig”. He was convicted under a statute barring ‘any obscene or
lascivious language or word inany public place, or ing hte presence of
HELD: Rosenfeld, he felt, though not “fighting words”, were a verbal
assault on an unwilling audience that may be so grossly offensive &
emotionally disturbing as to be the proper subject of criminal
proscription. Lewis (the mother), was remanded solely in light of
Chaplinsky. Brown, it was emphasized, that the language had been used
in the course of “a political meeting to which appellant had veen
invited to present the Black Panther viewpoint. The language of the
character charged, in these circumstances, might well have been
anticipated by the audience.
– Vacated & remanded 3 convictions for the use of offensive language.
ERZNOZNIK v. JACKSONVILLE:
The ordinance prohibited exhibitions of the human male or female bare
buttocks, human female bare breasts, or human bare public areas. The
ban applied to non obscene films.
HELD: Ct. sustained a challenge to the facial validity of an ordinance
prohibiting drive-in movie theatres w/screens visible from public
streets from showing films containing nudity. Struck down ord.
-A State or municipality may protect individual privacy by enacting
reasonable time, place, and manner regulations applicable to all speech
irrespective of content.
-Such restrictions are only upheld when the speaker intrudes on the
privacy of the home or the degree of captivity makes it impractical for
the unwilling viewer or auditor to avoid exposure.
-The screens of drive in theateres are not so obtrusive as to make it
impossible for an unwilling individual to avoid exposure to it.
-The limited privacy interest of persons on the public streets can’t
justify this censorship of otherwise protected speech on the basis of
RULE: When the gov’t, acting as a censor, undertakes selectively to
shield the public from some kinds of speech on the ground that they are
more offensive than others, the First Amendment strictly limits its
-The burden usually falls upon the viewer to avoid further bombardment
of his sensibilities simply by averting his eyes.
LOWER VALUE SPEECH:
YOUNG v. AMERICAN MINI:
Detroit Ordinance req’d dispersal of “adult” theaters & bookstores,
stating that an “adult” theater may not be located w/in 1,ooo ft of any
2 other “regulated uses”. or w/in 500 ft of a residential areas.
Theaters classified as “adult” on the basis of the character of the
motion pictures they exhibit. If a theater preents “material
distinguished or characterized by emphasis on matters depicting,
describing or relating to specified sexual activities or specified
anatomical areas, it is an adult establishment.
HELD: The impact of the classification was to channel the display of the
sexually explicitmaterials into limited portions of the city, not to ban
the display from the city entirely.
-Ct upheld portions of a Detroit “Anti-Skid Row Ordiance” that
differentiates b/t motin picture theaters which exhibit sexually
explicit “adult movies” and those which do not.
-We hold that the State may legitimaately use the content of these
materials as the basis for placing them in a different classification
from other motion pictures.
-The city’s interest in the present & future character of its
neighborhoods adequately supports its classification of motion pictures.
-The city’s interest in attempting to preserve the quality of urban
life is one that must be accorded high respect. City must be allowed a
reasonable opportunity to experiment w/solutions to admittedly serious
ISSUE: Whether the line drawn by these ordinances is justified by the
city’s interest in preserving the character of its neighborhoods.
CITY OF RENTON v. PLAYTIME THEATRES:
Renton, Washington ordinance attempted to regulate the location of adult
theaters by concentrating them rathe than by dispersing them. Ordiance
provided that such establishments may not be located w/in 1,000 ft of
any residential zone, single-or multiple-family dwelling, church , park,
RULE: Regulations enacted for the purpose of restraining speech on the
basis of its content presumptively violate the First Amentment.
-Content-Neutral time, place, & manner regulations are acceptable so
long as they are designed to serve a substantial governmental interest &
don’t unreas limit alternative avenues of communication.
STAT PURP: To protect & preserve the quality of the city’s
neighborhoods, commercial districts, and the quality of urban life, not
to suppress the expression of unpopular views.
HELD: The ordiance is consistent w/the 1st Amendment. It was properly
analyzed as a form of time, place, and manner regulation.
-Nothing in the First Amendment compels the Govt to ensure tha adult
theaters, or any other kinds of speech related businesses for that
matter, will be ale to obtain sites at bargain prices.
BOOS v. BARRY:
HELD: Ct struck down provision of a DC code prohibiting display w/in 500
ft of a foreign embasy of any sign tending to bring that foreign govt
into public odium or public disrepute.
RULE: Any restriction on speech, the application of which truns on the
content ot the speech, is a content-based restriction regardless of the
motivation that lies behind it.
FCC v. PACIFICA FOUNDATION:
George Carlin’s Broadcast “7 Words you can’t say on television”.
HELD: The FCC has poer to regulate radio broadcasts that are indecent
but not obscene. “AS APPLIED” basis is applied in this case as to
whether the Commission has the authority to proscribe this particular
-The content of the broadcast was ‘vulgar”, “offensive”, and
“shocking”. Content of that caracter is not entitled to absolute
constitutional protection under all circumstances, so must consider its
context in order to determine whether the Commissions’s actions was
-Broadcast was “indecent” w/in the meaning of the governing statute.
-When the Commission finds that a pig has entered the parlor, the
exercise of its reulgatory power doesn’t depend on proof that the pig is
-A Nuisance may be merely a rt thing in the wrong place.
****The interest of children trumps the interests of those that want to
hear this speech.
RULE: The fact that society may find speech offensive isn’t a sufficient
reason for suppressing it. If it is the speaker’s opinion that gives
offense, that consequence is a reason according it constitutional
ISSUE: Whether a broadcast of patently offensive words dealing w/sex &
excretion may be regulated b/c of its content?
CHILDREN’S PROTECTION FROM VIOLENT PROGRAMMING ACT:
Bill makes unlawful broadcast or cabl distributio of violent programming
during hours when children “are reasonably likely to comprise a
substantial portion of the audience,” and mandates that the Federal
Commmunications Commission enact implementing rules, including rules
defining violent programming.
SABLE COMMUNICATIONS v. FCC:
Congress amended the Communications Act of 1934 to target such
services, criminally prohibiting telephone messages that were either
obscene or indecent. Control over sexually-oriented pre-recorded
telephone messages (dial a porn) available on a pay per message basis by
a telephone call initiated by the listener.
ISSUE: Whether the nature of dial a porn services was such as to justify
restriction on such protected material?
HELD: This prohibition insufficiently narrowly tailored, in lt of the
availability of numerous technological alternatives, such as credit card
payments, access codes, and scrambling rules.
-The prohibition had the invalid effect of limiting the content of
adult telephone conversations to that which is suitable for children to
-The Constitution prevents Congress from banning indecent speech in
this fashion, we don’t hold that the Constitution requires public
utilities to carry it.
TELECOMMUNICATIONS COMPETITION & DEREGULATION ACT OF 1995:
CONSOLIDATED EDISON v. FCC:
State attempted to rely on an in vasion of privacy rationale. PSC order
barred utilities from using bill inserts to discuss political matters,
including the desirability of future development of nuclear power.
HELD: The First Amendment barred an order of the NY PSC prohibiting the
inclusion in monthly electric bills of inserts that discussed
controversial issues of public policy.
-Ban was not permissible merely b/c it related to subject matter
rather than to the views of a particular speaker.
-The First Amendment’s hostility to content-based regulation extends
not only to restrictions on particular viewpoints, but also to
prohibition of public discussion of an entire topic.
RULE: The ability of the govt to shut off discourse solely to protect
others from hearing it is dependent upon a showing that substantial
privacy interests are being invaded in an essentially intolerable
manner. The First Amendment doesn’t permit the govt to prohibit speech
as intrusive unless the captive audience can’t avoid objectionable
SCHAD v. MT. EPHRAIM:
Zoning ordinance was used to curb displays,including sexually oriented
one. Operators of a store selling adult materials aded a coin-operated
mechanism permitting customers to watch a live nude dancer performing
behind a glass panel. The ordinance of the Borough described the
permitted uses in the small community’s commercial zone & barred all
other use. Ban covered all live entertainment.
ISSUE: Whether live entertainment is basically incompatible w/the normal
activity in the commercial zones?
HELD: The ordinance prohibits a wide range of expression that has long
been held to be w/in the protections of the First Amendment.
Entertainment, as well as political & ideological speech, is protected.
RULE: Nor may an entertainment program be prohibited solely b/c it
displays the nude human figure. Nudity alone does not place otherwise
protected material outside the mantle of the First Amendment.
-When a zoning law infringes upon a protected liberty, it must be
narrowly drawn & must further a sufficiently substantial govt interest.
-One is not to have the exercise of his liberty of expression I
appropriate places abridged on the plea that it may be exercised in some
FREEDOM OF EXPRESSION IN SOME SPECIAL CONTEXTS:
MONEY & POLITICAL CAMPAIGNS:
BUCKLEY v. VALEO:
Law provides: limited indiv. political contributions to $1,000yr to any
single candidate; independent expenditures relative to a clearly
identified candidate $1,000yr; campaign spending have ceilings for
federal offices & spending for national conventions by political
parties; Contributions & expenditures above threshold must be publically
disclosed; A system public funding for Pres. campaign activities is
established; and Federal Election Commission is established to
administer the act.
HELD: Sustained the individual contribution limits, the disclosure &
reporting provisions, and the public financing scheme. The limitations
on campaign expenditures, on independent expenditures, and on
expenditures by a candidate from his personal funds are constitutionally
infirm. The composition of the Federal Election Commission was held
-The Act’s contribution & expendituure limitations impose direct
quantity restrictions on political communication & association in
addition to any reasonable time, place, and manner regulations otherwise
-A limitation on contributions involves little direct restraint on
political communication, b/c it permits the symbolic expression of
support evidenced by a contribution but does not in any way infringe the
contributor’s freedom to discuss candidates & issues.
-Expenditure ceilings impose significantly more severe restrictions on
protected freedoms of political expression & association thatn to its
limitations on financial contributions.
-The impact of the Act’s $1,000 contribution limitaiton on major-pty
challengers & on minor-pty candidates doesn’t render the provision
unconsitutional on its fact.
-The govenmental interest in preventing corruption & the appearance of
corruption is in adequate to justify the ceiling on idependent
-While the independent expenditure ceiling fais to serve any
substantial governmental interest in stemming the reality or appearance
of corruption in the electoral process, it heavily burdens core First
-The independent expenditure limitation is unconsitutional under
-The First Amendment can’t tolerate a restriction upon the freedom of
a candidate to speak on behalf of is own candidacy.
RULE: Even a Significant Interference w/protected rts of political
association may be sustained if the State demonstrates a sufficiently
important interest & employs means drawn to avoid unnecessary abridgment
of associational freedoms.
FIRST NATIONAL BANK v. BELLOTTI:
Statute prohibited any cororation from making contributions or
expenditures “for the purpose of influencing or affecting the vote on
any questions submitted to the voters, other than one materially
affecting any of the property, business or asssets of the corporation.”
Also, the law further specified that no question submitted to the voters
solely concerning the taxation of the income, prop, or transactios of
individuals shall be deemed materially to affect the property, business
or assets of the corporation . The corps were prevented from spending
money on a proposed state consitutional amendment to authorize a
graduated indiv income tax.
ISSUE: Whether the law abridges expression that the First Amendment was
eant to protect. [Yes]
HELD: Strict scrutiny was applied. The law amounted to an impermissible
legislative prohibition of speech.
-The fact that a particular kind of ballot question has been singled
out for special treatment undermines the likelihood of a genuine state
interest in protecting shareholders.
AUSTIN v. CHAMBER OF COMMERCE:
MI law barred corps from using corp treasury funds for independent
expenditures regarding political candidates, but allowed such corp
spending from segregated funds used solely for political purposes.
HELD: Ct sustained the ban b/c of the unique legal & economic
characteristics of corps that enable them to use resources amassed in
the economic marketplace to obtain an unfair advantage in the political
-State articulated a sufficiently compelling rationale for its
restrictions on spending since the law was designed to deal w/the
corrosive & distorting effects of immense aggregations of wealth that
are accumulated w/the help of the corp form & that have little or no
correlation ot the public’s support for the corp’s political ideas.
-The law was sufficiently narrowly tailored to achieve its goal b/c
it was precisely targeted to eliminate the distortion caused by corp
spending while also allowing corps to express their political views
through separate segregated funds.
RULE: The mere fact that corps may accumulate large amts of wealth isn’t
the justification for the law; rather, the unique state-conferred corp
structure that facilitates the amasssing of large treasuries warrants
the limit on independent expenditures.
STATE REGULATION OF ELECTIONS IN THE 1980’S:
CITIZENS AGAINST RENT CONTROL v. BERKLEY:
Cal law imposed a $250 limit on personal contributions to committees
formed to support or oppose ballot measures.
HELD: Law was an unconsitutuional interference with “rts of
association” and “individual & collective rts of expression.”
-Buckley doesn’t support limitationson contributions to committees
formed to favor or oppose ballot measures.
-Bellotti relied on Buckley to strike down state legislative limits
on advocacy relating to ballot measures.
FIRST AMENDMENT IN SOME ADDT’L SPECIAL ENVIRONMENTS:
THE SCHOOL CONTEXT:
BOARD OF EDUCATION v PICO:
ISSUE: Whether the First Amendment imposes limitations upon the exercise
by a local school board of its discretion to remove library bookds from
high school and junior high school libraries.?
HAZELWOOD v. KUHLMEIER:
School exercised editorial control over the contents of a high school
newspaper produced as part of the school’s journalism curriculum. One
story dealt w/pregnancy experiences & the other story dealt w/divorce.
HELD: Upheld a high school principal’s deletion of 2 stories from the
school newspaper. The newspaper was not a public forum, either
traditionally oro by designation. School officials were entitled to
regulate the contents of the newspaper in any reas. manner.
RULE: Educators are entitled to exercise greater control over this 2nd
form of student expression to assure that participants learn whatever
lessons the activity is designated to teach, that readers or listeners
are not exposed to material that may be inappropriate for their level of
maturity, and that the views of the individual speaker are not
erroneously attributed to the school
-The standard in Tinker [armbands] for determining when a school may
punish student expression need not also be the standard for determining
when a school may punish student expression need not also be the
standard for determining when a school may refuse to lend its name &
resources to the dissemination of student expression.
INTERFERENCE WITH THE JUDICIAL PROCESS:
Test: Substantial likelihood of material prejudice. [Rehnquist]
Test: Imminent & substantial harm. [Kennedy]
-applicable to attnys who make statements about cases or judges in
cases pending against them, etc.
WOOD v. GEORGIA:
Sheriff was held in contempt of court for expressing his personal ideas
on a matter that was presently b/f the grand jury for its
-The gravemn of the case against the petitioner was that the mere
publishing of the news release & defense statement constituted a
contempt of ct, and in and of itself was a clear & present danger to the
administration of justice.
HELD: The burden is upon the court to define the constitutuional
limitations upon the contempt power.
-Men are entitled to speak as they please on matters vital to them.
-No actual interference w/the undertakings of the grand jury.
LANDMARK v. VIRGINIA:
Newspaper publisher printed an accurate report of a pending inquiry by
Virginia Judicial Inquiry & had identified the state judge under
investigation. A state law deemed such info confidential & made a
disclosure a crime.
HELD: The threat to the administration of justice posed by the speech &
publications in Bridges was, if anything, more direct & substantial than
the threat posed by Landmark’s article.
-Injury to official reputation is an insufficient reason for
repressing speech that would otherwise be free.
BUTTERWORTH v. SMITH:
HELD: Ct struck down Fl. law insofar as it prohibited a witness from
disclosing his own grand jury testimony even after the end of the grand
-The interest in grand jury secrecy had to be balanced against the
First Amendment’s requirements & noted that a prohibition extending to a
period after the close of the grand jury’s term was unlikely to rest on
state interests sufficient to outweigh the First Amendment concerns.
FREEDOM OF ASSOCIATION:
NAACP v. ALABAMA:
Alabama demanded that the NAACP reveal names & addresses of all of its
Alabama members & agents. NAACP produced substantially all of the data
called for except its membership lists.
ISSUE: Whether Alabama has demonstrated aninterest in obtaining the
disclosures it seeks from petitioner which is sufficient to justify the
deterrent effect which we have concluded these disclosures may well have
on the free exercise of constitutionally protected rt of association.
HELD: Alabama has fallen short of showing a controlling justification
for the deterrent effect on the free enjoyment of the rt to associate
which disclosure of membership lists is likely to have.
RULE: Freedom to engage in association for the advancement of beliefs &
ideas is an inseparable aspect of the “liberty” assured by the Due
Process Clause of the 14th Amendment, which embraces freedom of speech.
ABOOD v. BOARD OF EDUCATION:
Employees in a ublic sector and an agency shop. Under an agreement
adopted by a school board & a union pursuant to state law, every
nonunion employee was required to pay to the union a “service fee equal
in amt to union dues as a condition employment.
HELD: Ct rejected the claim that the fees were for collective bargaining
in the public sector. Ct sustained the 2nd claim that the employees
were being forced to support ideological union expenditures not directly
related to collective bargaining.
-State should bear the burden of proving that any union dues or fees
that it requires of nonunion employees are needed to serve paramount
governmental interests. Governmental collective bargaining agreement,
“like any other enactment of state law, is fully subject to the
constraints that the Constitution imposes on coercive governmental
KELLER v. STATE BAR OF CALIFORNIA:
HELD: Ct distinguished professional regulation from political or
ideological activities. The line b/t permissible impositions &
impermissible ones “will not always be easy to discern” The extreme
ends of the spectrum are clear: Compulsory integrated bar dues may not
be expended to endorse or advance a gun control or nuclear weapons
freeze initiative; at the other end of the spectrum there is no valid
constitutional objection to compulsory dues being spent for activities
connected w/disciplinin members of the bar proposing ethical codes for
-An integrated bar could certainly meet is Abood obligation by
adopting the sort of procedures described for a union in an agency shop
NAACP v. BUTTON:
Virginia had long regulated unethical & nonprofessional conduct by
attnys, including a ban on the solicitation of legal business in the
form of “running” or “capping”. The laws were amended to include, in
the definintion of runner or capper, an agent for any organizatio which
“empoys, retains, or compensates” any lawyer “in connection w/any
judicial proceeding in which it has not pecuniary rt or liability
HELD: The activities of the NAACP, its affiliates and legal staff shown
on this record are modes of expression & association protected by the
First Amendment which Virginia may not prohibit as improper solicitation
of legal business.
-Held unconstitutuional a Virginia prohibition of the improper
solicitation of any legal or professional business as applied to NAACP
-The State faild to advance any substantial regulatory interest int
he form of substantive evils flowing from petitioner’s activities,,
which can justify the broad prohibitions which it has imposed.
RULE: A state cannot foreclose the exercise of constitutuional rts by
mere labels. Abstract discuszsion is not the only species of
communication which the Constitutuion protects; the First also protects
vigorous advocacy, certainly of lawful ends, against governmental
***Speech Plus: picketing, flag-burning, parading in the street, must be
dealt w/like it was dealt w/in O’Brien.
RT TO ASSOCIATE v. INTEREST OF EQUALITY:
ROBERTS v. U.S.J.C.’S:
Minn. stat prohibited sex discrimination in a place of public
accomodation. Law was applied to the JAYCEES, a national civic org
which restricted full voting membership to men b/t ages of 18-35.
Jaycees insisted that this restricted their membership policies &
interfered w/their member’s freedom of association.
HELD:Ct rejected their claim. This was merely a restriction incidental
to Minn’s compelling interest in eradicating discrimination against its
female citizens. There was no indication that the law imposed any
serious urden on the male member’s freedom of expressive association.
BOARD OF DIRECTORS ROTARY:
HELD: Application of a Cal. antidiscrimination law that barred exclusion
of women from local Rotary clubs didn’t deny either freedom of intimate,
private association or freedom of expressive association.
NY CLUB ASSOCIATION v. CITY OF NEW YORK:
HELD: Upheld the City’s law prohibiting racial, religious, or sex
discrimination in any institutuion, lcub, or place of accomodation that
has more than 400 members, provides regular meal service & regularly
receives payment from nonmembers for facilities & services for the
furtherance of trade or business.
THE MODERN CONTEXT: REGULATION OF PUBLIC EMPLOYEES OUTSIDE THE
SUBVERSION AREA…STATE (AS EMPLOYER) RESTRICTION OF SPEECH:
THE HATCH ACT & AMENDMENT:
The new law bars federal emplyees from engaging in political activity
while on the job, including wearing campaign buttons, whcih had been
allowed under the old Hatch Act. It allows much more extensive
political activity by federal employees while they aren’t working,
however, including public endorsement of candidates, holding office in
political parties, participation in campaigns & political rallies, and
raising political funds for agency political action committees. Under
the new law, federal employees may still not run for partisan elective
offices or solicit campaign funds fromt eh general public.
PICKERING v. DETROIT BOARD OF EDUCATION:
Teacher was dismissed for writing a letter to a newspaper attacking a
school board’s handling of financing matters.
BALANCING TEST: The gov’t has an interest in regulating the conduct &
the speech of its employees that differs significantly from those it
possesses in connection w/regulation of the speech of the citizenry in
-The problem in any case is to arrive at a balance b/t the interests
of the the employee, as a citizen, in commenting upon matters of public
concrn and the interest of the gov’t, as an employer, in promoting the
efficiency of the public services it performs through its employees.
HELD: The interest of the school administration in limiting teachers’
opportunities to contribute to public debate is not significantly
greater than its interest in limiting a similar contribution by any
member of the general public.
-Absent satisfaction of the NY Times “malice” standard in libel cases,
the teacher could not be dismissed.
US v. NATIONAL TREASURY EMPLOYEES:
Fed law prohibited almost all federal employees from accepting
compensation for making speeches or writing articles.
HELD: The restriction was unconstitutional. Ct normally accords a
stronger presumption of validity to a ocngressional judgment than to an
individual executive’s disciplinary action.
-The widespread impact of the ban gives rise to far more serious
concerns than could any single supervisory decision.
-Although the ban neither prohibits any speech nor discriminates
among speakers based on the content of their messages, its prohibition
on compensation unquestionably imposes a significant burden on
-Expressive activities in this case fall w/in protected category of
citizen comment on matters of public concern rather than employee
comment on matters related to personal status in the workplace.
-The speculative benefits the ban may provide aren’t sufficient to
justify this crudely crafted burden on expressive activities.
RUSTAN v. REPUBLICAN PARTY:
HELD: Ct extended Elrod & Branti to decisions about hiring, promotion,
transfer, and recalls after layoffs, claiming that none of which would
be constitutionally based on party affiliation & support.
-Patronage-based dismissals violated the First Amendment & so does
-Patronage must be limited b/c the individual’s interest in
uncoerced belief & expression outweighs the systemic interest invoked to
justify the practice
-The govt can only preevail if it proves that the practice was
narrowly tailored to further vital govt interests.
SNEPP v. UNITED STATES:
Former CIA employee agreed not to divulge classified info w/o
authorization & not to publish any info relating ot the Agency w/o
prepublication clearance. He didn’t submit his manuscript for clearance
& published a book about CIA activities in Viet Nam.
HELD: Punitive damages were an inappropriate & inadequate remedy &
instead imposed a constructive trust on Snepp’s profits. Even absent
an express agreement, the CIA could have acted to protect substantial
govt interests by imposing reasonable restrictions on employee
activities that in other contexts might be protected by the First
-The govt has a compelling interest in protecting both the secrcy of
info imp to our national security & the appearance of confidentiality so
essential to the effective operation of our foreign intelligence
-The agreement that Snepp signed is a reasonable means for
protecting the vital interest.
CONNICK v. MYERS:
ADA served 5 &1/2 yrs. Was informed of a transfer that would occur, of
which she felt their was a conflict of interest. She protested & sent
around a survey w/in the office asking mostly non-public concerns.
ISSUE: Whether the First Amendment prevents the discharge of a state
employee for circulating a questionnaire concerning internal office
HELD: The First Amendment was fashioned to assure unfettered
interchange of ideas for the bringing about of political & social
changes desired by the people.
-Speech on public issues occupies the highest rung of the hierarchy of
First Amendment values, and is entitled to special protection.
RULE: When employee expression can’t be fairly considered as relating to
any matter of political, social, or other concern to the community, govt
officials should enjoy wide latitude in managing their offices, w/o
intrusive oversight by the judiciary int he name of the First Amendment.
-When a public employee speaks not as a citizen upon matters of public
concern, but instead as an employee upon matters only of personal
interest, absent the most unusual circumstances, a federal ct is not the
appropriate forum in which to review the wisdom of a personnel decision
taken by a public agency allegedly in reaction to the employee’s
-Official pressure upon employees to work for political candidates
not of the worker’s own choice constitutes a coercion of belief in
violation of fundamental constitutional rts. Govt service should depend
upon meritorious performance rather than political service.
-When close working relationships are essential to fulfilling public
responsibilities, a wide degree of deference to the employer’s judgment
TEST: Whether an employee’s speech addresses a matter of public concern
must be determined by the content, form, and context of a given
statement, as revealed by the whole record.
-A stronger showing may be necc if the employee’s speech more
substantially involved matters of public concern. Relevant also is the
manner, time, & place in which the questionnaire was distributed.
BURDEN OF PROOF: State’s burden in justifying a particular discharge
varies depending upon the nature of the employee’s expression.
REGAN v. TAXATION:
IRC prohibited lobbying for tax-exemt orgs.
HELD: Both tax ememptions & tax deductibility were a form of subsidy
that is administered throught he tax system.
-Congress isn’t required by the First to subsidize lobbying. Congress
has not infringed any First Amendment rts or regulated any First
RANKIN v. MCPHERSON:
Distinction b/t employee speech related to a matter of public concern &
speech not so related.
ISSUE: Whether a public employer has properly discharged an employee for
engaging in speech requires a balancing b/t the interests of the
employee, as a citizen, in commenting on matters of public concern & the
interest of the state, as an employer in promoting the efficiecy of the
public services it performs through its employees?
HELD: A clerical employee in a cty constable’s office couldn’t be
discharged for remarking, after hearing of the attempted assassination
of Pres Reagan that she hope’d they’d get him if they tried again.
-No showing that the employee’s statement had interfered w/the
effective functioning of the office. The First Amendment had been
BURDEN OF PROOF: The state bears a burdn of justifying the discharge on
legitimate grounds. The State’s interest in content-related sanctions
was minimal where the employee serves no confidential, policymakign, or
public contact role.
WATERS v. CHURCHILL:
Nurse was dismissed for critisizing her supervisors, the dept, and their
policies at the hospital at which she worked, during her dinner break.
HELD: Reasonableness test: Doesn’t require proof beyond a reasonable
doubt in civil cases here First Amendment interests are at stake.
-Even if the statements were on a matter of public concern, the
potential disruptiveness of the speech as reposrted was enough to
outweigh whatever First Amendment value it might have had.
RULE: The govts interest in achieving its goals as effectively &
efficiently as possible is elevated from a relatively subordinate
interest when it acts as sovereign to a significant one when it acts as
an employer. The govt can’t restrict the speech of the public at large
just in the name of efficiency. Where the govt is employing someone for
the very purpose of achieving its goals, such restrictions may well be
-A public employer who reasonably believes a 3rd pty report than an
employee engaged in constitutionally unprotected speech may punish the
employee in reliance on that report, even if it turns out that the
employee’s actual remarks were constitutionally protected. The public
employer must not only reasonably investigate the 4rd pty report, but
must actually believe it
THE CONSTITUTION AND RELIGION: “ESTABLISHMENT AND FREE EXERCISE:
ESTABLISHMENT, THE SEPARATION OF CHURCH & STATE:
FINANCIAL AID TO RELIGIOUS INSTITUTIONS:
EVERSON v. BOARD OF EDUCATION:
NJ Stat authorized school districts to make rules & contracts to
transport children to & from school, including the transportation of
school children to & from school other than a public school, except such
school as is operated for profit.
-Law allowed local school board to adopt a resolutio authorizing
reimbursement to parents for money spent to transport their children on
HELD: Must not strike down the NJ law if it is w/in the State’s
consitutional power even though it approaches the verge of that power.
We cannot say that the First Amendment prohibits NJ from spending tax-
raised funds to pay the bus fares of parochial school pupils as a part
of a general program under which it pays the fares of pupils attending
public & other schools.
-The Amendment requires the state to be a neutral in its relations
w/groups of religious believers & non-believers; it doesn’ require the
state to be their adversary.
-The legislation here does no more than provide a general program to
help parents get their children, regardless of their religion, safely &
expeditiously to & from accredited schools.
BOARD OF EDUCATION v. ALLEN:
HELD: A state may lend books to parochial school students w/o violating
the establishment clause.
RULE: To survive an establishment clause challenge, an activity must
have a secular legislative purpose and a primary effect that neither
advances nor inhibits religion.
WALZ v. TAX COMMISSION:
HELD: Ct upheld property tax exemptions for religious organizations.
TEST: OLD TEST (Purpose & Effect Test): To survive an establishment
clause challenge, an activity must have a secular legislative purpose &
a primary effect that neither advances nor inhibits religion.
ENTAGLEMENT TEST (added to old test): The challenged program must not
foster “excessive government entaglement w/religion.
WOLMAN v. WALTER:
HELD: States can’t constitutionally lend maps, magazines, tranparencies,
tape recorders, and other instructional materials to parochial school
students, despite the ALLEN holding which held that lending books to
such students is permissible.
States can’t provide transportation for parochial school students to
take field trips, despite the EVERSON holding that states can provide
such students w/transportation to & from school.
MUELLER v. ALLEN:
Minnesota allows taxpayers to deduct certain expenses incurred in
providing the education of their kids (for tax purposes). Deduct from
gross income actual expenses incurred for “tuition, textbooks and
transportaion for the education of their dependents attending elementary
or secondary schools. (for public & non public schools)
ISSUE: Whether Minnesota’s tax deduction bears greater resemblance to
those types of assistance to parochial schools we have approved, or to
those we have struck down?
HELD: The Establishment Clause was not offended by this arrangement.
Aff’d. Uphled a form of financial aid to parents of parochial school
students (tax deductions) despite its rejection of a similar tye of aid
(tuition rebates & tax deductions) in NYQUIST.
-The provision here bears less resemblance to the arrangement struck
down in Nyquist than it does to assistance programs upheld in our prior
decisions & those discussed w/approval in Nyquist.
-Minnesota could conclude that there is a strong public interest in
assuring the continued financial health of private schools, both
sectarian and nonsectarian.
-By channeling whatever assistance it may provide to parochial schools
through individual parents, Minnesota has reduced the Establishment
Clause objections to which its action is subject.
-Here, aid to arochial schools is available only as a result of
decisions of individual parents no imprimatur of State approval can be
deemed to have been conferred on any particular religion, or on
-THE MINNESOTA TAX DEDUCTION FOR EDUCATIONAL EXPENSES SATISFIES THE
PRIMARY EFFECT INQUIRY OF OUR ESTABLISHMENT CLAUSE CASES. THE MINNESOTA
STATUTE DOESN’T EXCESSIVELY ENTAGLE THE STATE IN RELIGION.
RULE: Legislatures have broad latitude in creating classifications &
distinctions in tax statutes.
-A program that neutrally provides state assistance to a broad
spectrum of citizens is not readily subject to challenge under the
TILTON v. RICHARDSON:
HELD: Upheld federal construction gants to church-related colleges. The
funds had to be used for facilities devoted exclusively to secular
-College students are less impressionable and less susceptible to
GRAND RAPIDS SCHOOL DISTRICT v. BALL:
Public school teachers offered supplementary classes such as remedial
reading in classrooms. The second program, parochial school employees
rec’s additional pay from the public school system to conduct “community
education” classes such as arts & crafts after school hours in the
parochial school buildings.
HELD: Ct was concerned that the religious message the teachers are
expected to convey during the regular schoolday will infuse the
supposedly secular classes they teach after school.
-Ct struck down 2 programs, the Shared Time and Community Education
Programs of the City.
RULE: Teachers in a religious atmosphere may well subtly or overtly
conform their instruction to the environment in which they teach, while
students will perceive the instruction in the context of the dominantly
religious message of the institution, thus reinforcing the
-Government promotes religion as effectively when it fosters a close
indentification of its powers w/those of any or all religious
denominations as when it attempts to inculcate specific religious
doctrines. …This effect, the symbolic union of govt & religion in one
sectarian enterprise—is an impermissible effect under the
ZOBREST v. CATALINA FOOTHILLS SCHOOL DISTRICT:
Act: schools were required to have classroom sign language interpreters
for hearing impaired students.
HELD: Upheld challenge to the use of governmentally funded sign
language interpreters for deaf students in parochial schoool classrooms.
-The Act doesn’t distinquish b/t public & private or sectarian &
nonsectarian schools and thus creates no financial incentive for parents
to choose a sectarian school, an interpreter’s presence there can’t be
attributed to state decisionmaking.
-The Establishment Clause lays down no absolute bar to the placing
of a public employee in sectarian schools. The sign-language
interpreter will neiter add to nor subtract from a pervasively sectarian
environment freely chosen by the parents, the provision of such
assistance isn’t barred by the Establishment Clause.
RULE: Government programs that neutrally provide benefits to a broad
class of citizens defined w/o reference to religion are not readily
subject to an Establishment Clause challenge just b/c sectarian
institutions may also receive an attenuated financial benefit.
WITTERS v. WASHINGTON DEPT OF SERVICES FOR BLIND:
HELD: The Effect Prong of the Lemon test wan’t vilated by a law
authorizing payment to a visually handicapped person for vocational
rehabilitation services, where the recipient sought to use the gunds to
pay his tuition at a Christian college in order to prepare himself a
career as a pastor, missionary, or youth director.
-The aid program provided no financial incentive for students to
undertake sectarian education and didn’t tend to provide greater or
broader benefits for recipients who apply their aid to religious
-There was no showing that any significant portion of the aid
expended under the Waashington program as a whole will end up flowing to
LARKIN v. GRENDEL’S DEN, INC:
HELD: Ct struck down a Massachusettes law that gave churches & schools
the power to veto the issuance of liquor lecenses to restraunts w/in 500
ft of the church or school buildings.
-The delegation of a veto power to churches had the effect of
advancing religion, impermissible under the Lemon standards. The mere
appearance of a joint exercise of legislative authority by Church &
State provides a significant symbolic benefit to religion int he minds
of some. Under the Entanglement prong of the Lemon test, the Law
enmeshes churches in the exercise of substantial governmmental powers
contrary to our consistent interpretation of the Establishment Clause.
INTRUSION OF RELIGION INTO GOVERNMENTAL ACTIVITIES:
BOWEN v. KENDRICK:
Challenge to the Adolescent Family Life Act of 1982 wich authorized the
federal grants to public and nonpublic organizations, including
organizations w/ties to religious denominations, for counseling services
& research in the area of premarital adolescent sexual relations and
HELD: Ct rejected an on the face attack on the Act and remanded the as-
applied challenge for further proceedings. 3-Part Lemon Test was
applied & the Ct held that the Act on its face didn’t violate the
1. Purpose: The problem of teenage pregnancy constituted a valid
2. Effect: Ct found issue difficult. 2 problems: the specific
mention of religious orgs in law itself, and that the law permitted
religious orgs in law.
a. Any effect of advancing religion was incidental & remote.
***Ct did not find a violation of the excessive entaglement prong of
Lemon, there was no reason to fear that monitoring involved here would
cause government to intrude unduly into the day to day operations of the
religiously affiliated grantees.
RULE: Ct has never held that religious institutions are disabled by the
First Amendment from participating in publicly sponsored social welfare
-When aid goes to religiously affiliated institutions that are not
pervasively sectarian it would not presume that it will be used in a way
that would have the rimary effect of advancing religion.
BOARD OF EDUCATION v. KIRYAS JOEL:
NY law allowed a particular community of highly religious Hasidic Jews
to create its own school district in order to avoid having the
community’s special needs children attend the local public schools.
HELD: This plan involved a violation of the principle that a State may
not delegate its civic authority to a group chosen according to a
religious criterion. State may not deliberately delegate discretionary
power to an individual, institution, or community on the ground of
RULE/REAS: Where fusion is an issue, the difference lies int he
distinction b/t a govts purposeful delegation on the basis of religion
and a delegation on principles neutral to religion, to individuals whose
religious identities are incidental to their receipt of civil authority.
-A purpose of designing the district for a particular religious group,
is too close a parallel to permit the law to stand.
-State’s solution affirmatively supports a religious sect’s interest
in segregating itself and preventing its children from associating with
their neighbors. Affirmative state action in aid of segregation is
fairly characterized as establishing, rather than merely accomodating,
ZORACH v. CLAUSON:
NYC program permitted released time programs for students to go to
religious centers w/request of parents. Teachers had to check up on
HELD: When the state encourages religious instruction or cooperates
w/religious authorities by adjusting the schedule of public events to
sectarian needs, it follows the best of our traditions.
-Government may not coerce anyone to attend church, to observe a
religious hoiday, or to take religious instruction. It can close its
doors or suspend its operations as to those who want to repair to their
religious sanctuary for worship or instruction. The Constitutional
standard is the separation of Church and State. The problem is one of
SCHOOL PRAYER CASES:
ENGEL v. VITALE:
NY prepared a non-denominational prayer for use in public schools to
recited daily by each class.
HELD: The practice was wholly inconsistent w/the Establishment Clause.
The practice was clearly a religious activity and the establishment
clause must at least mean that it is no part of the business of govt to
compose official prayers for any group of the American people to recite
as a part of a religious program carried on by government.
ISSUE: Whether the Govt can constitutionally finance a religious
RULE/REAS: The Establishment Clause doesn’t depend upon any showing of
direct governmental compulstion and is violated by the enactment of laws
which establish an official religion whether those laws operate directly
to coerce nonobserving individuals or not.
-Establishment Clause: most immediate purpose rested on the belief
that a union of governmental and religion tends to destroy govt and to
degrade religion. Another purpose rested on an awareness of the
historical fact that governmentally established religions and religious
persecutions go hand in hand.
ABINGTON SCHOOL DISTRICT v. SCHEMPP:
Penn law provided “At least ten verses from the Bible shall be read, w/o
coment, at the opening of each public school on each school day. Any
child shall be excused from such Bible reading or attending the readon
upon the written request of his parent of guardian.
HELD: The establishment clause prohibits state laws and practices
requiring the selection and reading at the opening of the school day of
verses from the Holy Bible and the recitation of the Lord’s Prayer by
the students in unison.
-It is no defense to urge that the religious practices here may be
relatively minor encroachments to urge that the religious practices here
may be relatively minor encroachments on the First Amendment. The
Breach of Neutrality.
-These were religous exercises required by the State in violation of
the command of the First Amendment that the government maintain strict
neutrality, neither aiding nor opposing religion.
TEST: What are the purposes and the primary effect of the enactment?
-If either is the advancement or inhibition of religion, then the
enactment exceeds the scope of legislative power as circumscribed by the
Const. That is to say that to withstand the strictures of the
Establishment Clause there must be a secular legislative purpose and a
primary effect that neither advances nor inhibits religion.
J. DOUGLAS; CONCURRING: What the Framers meant to foreclose are
involvements of religious w/secular institutions which a) serve the
essentially religious activities of religious institutions; b) employ
the organs of government for essentially religious purposes; or c) use
essentially religious means to serve governmental ends.
WALLACE v. JAFFREE:
Alabama authorized schools to set asisde one minute at the start of each
day for meditation or voluntary prayer.
HELD: The law was not motivated by any clearly secular purpose, the
statute had no secular purpose.
-The addition of “or voluntary prayer” indicates that the State
intended to characterize prayer as a favored practice. Such an
endorsement is not consistent w/the established principle that the
Government must pursue a course of complete neutrality toward religion.
ISSUE: Whether the State has conveyed or attempted to convey the message
that children should use the moment of silence for prayer.
Lemon 10: The Lemon test and the confusions: the Framers intended the
establishment clause merely to prohibit the designation of any church as
a national one and to stop the government from asserting a preference
for one religious denomination or sect over others.
LAMB’S CHAPEL v. CENTER MORICHES:
Lemon 12: In a public forum, even one by designation, the endorsement
test is attenuated if the assistance is equal to all who use the forum.
School district’s prohibition on after-hours use of school facilities by
a religious groups or for religious purposes.
HELD: The Court rejected the argument that the exclusion was a
permissible content-based restriction on speech b/c the restrictio was
mandated by the establishment clause.
-Permitting District property to be used to exhibit the film involved
in this case would not have been an establishment of religion under the
3part test articulated in Lemon.
EDWARDS v. AGUILLARD:
Creationism Act forbids the teaching of the theory of evolution oin
public schools unless accompanied by instruction in creation science.
If either was taught, then the other must be taught.
HELD: The Creationism Act violated the Establishment Clause either b/c
it prohibited the teaching of evolution or b/c it required the teaching
of creation science. Struck down law.
-The Act doesn’t serve to protect academic freedom, but has a
distinctly different purpose of discrediting evolution by
cournterbalancing its teaching at every turn w/the teaching creationism.
ISSUE: Whether Louisiana’s Balanced Treatment for Creation-Sciences and
Evolutions-Science in Public School Instruction Act (Creationism Act)
is facially invalid as violative of the Establishment Clause?
LEE v. WEISMAN:
J. SCALIA: Element of coercion is not a factor in determing whether
Establishment Clause was violated, if the coercion is psychological.
Lemon XI (11)
ROSENBERGER v. UNIV OF VIRGINIA:
Diff b/t this and Lamb’s Chapel:
O’Connor Lemon 13: In a public forum, direct assistance to a sectarian
group is not endorsement if there is a) an explicit disclaimer by State,
b) if the dispersement of the funds doesn’t go to the sectarian
institution, but rather the vendor who provides good to institution, c)
if forum is free and open public forum, then diff views and diversity
for public forum is free exchange of ideas d) dissenting students are
allowed to opt-out of the forum,
-if have a-d, then don’t have the endorsement defect, and therefore no
Plurality said it was a content-based distinction, it was a public
forum…couldn’t discrim, and can’t violate the Establishment Clause.
CAPITOL SQUARE v. PINETTE:
KKK wanted to put sign on Capitol Square, a private entity, on public
ISSUE: Whether a content-based limitation on speech was required or
permitted by the Estaablishment Clause.
Lemon 14: endorsement doesn’t exist when public persons are allowed to
used private property, in public forum, even if there is the appearance
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