OUTLINE PROFILE:

Author:  	Mr. Neal A. Davis <ndavis@mail.utexas.edu>
School:		University of Texas
Course:		Constitutional Law:  The First Amendment
Year:		Spring 1997
Professor:	Prof. David Rabban
Book:		Van Alstyne’s casebook, First Amendment (2nd Ed.)
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 Con Law II:  The First Amendment

Professor David Rabban 

The University of Texas School of Law

Spring, 1997 

By Neal A. Davis

Outline sources:

--Professor Rabban’s class lectures
--Van Alstyne’s casebook, First Amendment (2nd ed.)
--Some outside sources (i.e., Laurence Tribe’s treatise)

Exam issues:

--Dave’s exam is very straight forward—the issues are hardly subtle—which is another way of saying it is somewhat easy and thus the grading curve is really tight.

--The exam is also time-pressured to a certain degree.  There are two questions with two sub-parts to each question, and three hours is given for the exam.  The issues tend to be broad, so lots of writing is necessary.

Other Points:

--This is probably the best outline I have done, and this was in large part because Professor Rabban is such an outstanding teacher.  This outline is intended as a classroom supplement, not as a replacement for attending class.   

--Because there was so much material to cover, I was unable to outline the section on “Access to the Mass Media” and I did not spend a great deal of time outlining “Campaign Finance” (neither of which showed up on his exam).   

“Congress shall make no law
respecting an establishment of religion,
or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble,
and to petition the Government for redress of grievances.”

--First Amendment (1791), U.S. Constitution

AMENDMENT XIV, SECTION 1

No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property,
without due process of law;
nor deny to any person within its jurisdiction
the equal protection of laws.

--Fourteenth Amendment (1868), U.S. Constitution

PART ONE:  FREE SPEECH

I. Background and Methodology (drawn from the Nutshell and cases)

A.	The First Amendment and the States

1.	The language of the First Am. states:  “Congress shall make no law…”  So how does the First Amendment, whose text refers only to the federal government, apply to the states?

a.	Harlan’s dissent in Patterson:  Harlan, in his dissent, argued 
that the First Amendment applies to the states via the “privileges and immunities” and the “due process” clauses.  

1.	Privileges and Immunities (P&I) Clause:  First, Harlan argued that the freedom of speech and the press are “attributes of national citizenship…of the United States,” and if the states abridged or impaired these privileges, then the states would violate the P&I clause of the Fourteenth Am.   

2.	Due Process (DP) Clause:  Second, Harlan argues that he would go further than the P&I clause, and hold that freedom of speech and the press are “part of every man’s liberty,” and if the states impaired or abridged this liberty, then it would violate the DP clause of the Fourteenth Am.

b.  Gitlow v. New York:  Barron v. Baltimore (1833) held that the Bill of Rights (obviously, including the First Am.) only applied to action by the federal government.  But Gitlow (1925) changed this, and held that freedom of speech and the press apply to the states because they are “among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”     

B.	Methodology

1.	There are a variety of different approaches to the First Am.:

a.	“Marketplace of Ideas” Model:  The U.S. Supreme could has most favored the “marketplace of ideas” theory.  Its classical expression can be seen in Holmes’ dissent in Abrams:  “The best test of truth is the power of the thought to get itself accepted in  the competition of the market, and that truth is the only ground upon which men’s wishes can be safely carried out.”  That is, truthwill be accepted by marketplace (the ultimate test).

1.	Critics of the marketplace model argue that:

a.	The assumption that a marketplace of ideas will produce the truth is false.  Successful appeals to our emotions and basic instincts, the ability of demagogues to condition behavior, our natural tendencies to conformity and habit, etc., all challenge the notion that the masses will accept the “truth.”  Think of Hitler’s Germany with his demagoguery about Jews.  

b.	From a democratic theory, it is the idea valued by the majority, false or true (not just the truth), which is the paramount value.

c.	The marketplace is controlled by dominant media and entry to the media is far from free.  The dominant media control not only entry but content, and exclude the participation by the citizenry at large.  Thus, there is a flat-out “failure of the marketplace.”

b.	“Citizen-Critic” Model: This approach emphasizes the value of freedom of expression to self-government in a democratic society.  In the American polity, political sovereignty resides with the people.  If they are to perform their self-governing function, then they must be free both to criticize their government and to receive information concerning its workings.  As Brandeis wrote in Whitney, “Political discussion is a political duty.”  Brennan wrote in New York Times v. Sullivan that the right of people to criticize government without fear of reprisal is “the central meaning of the First Amendment.”

a.	 Criticism:

1.	In an age of mass society, mass media, and big government with resultant voter alienation, it is doubtful that the individual citizen is up to the tasks demanded by the idea of civic virtue. 

c.  “Liberty” Model: Freedom of speech is valued as an end in itself as well as a means.  It is part of a person’s liberty.  Free speech fosters individual self-realization and self-determination without improperly interfering with the legitimate claims of others. 

a.	Criticism:

1.  One cannot choose to protect speech using this rationale any more than one protects other claimed freedom.   

d.  Other Various Models: The marketplace, self-government, and liberty models are the most commonly used justifications for protecting freedom of speech.  But there are lesser-used theories: 

a.	“Safety-Valve” Theory:  Brandeis in Whitney captured the essence of this approach when he warned “that it is hazardous to discourage thought, hope and imagination; that fear bread repression that repression breeds hate; that hate menaces stable government; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies.”

b.	“Tolerance” Theory:  The special value of free speech lies in its ability to promote and teach tolerance.  This view emphasizes self-restraint as the appropriate response even to the ideas we hate.  Thus, if the Nazis marched through a predominantly Jewish suburb of Chicago, the proper response is not prohibition of the march but self-restraint while it takes place.  Through the exercise of tolerance of different viewpoints, we learn how to better participate in a conflict-based society.

c.	“Romantic Tradition”:  The major purpose of the First Am. is to protect the romantics—those who would break out of classical forms: the dissenters, the unorthodox, the outcasts.

d.	“Economics and Public Choice” Theory:  Because the market does not naturally protect information, speech is somewhat vulnerable.  Since the market has no natural inclination to promote speech, it is necessary to provide motivations for individuals to engage in the socially useful action of providing information.  Government must not set up obstacles to that process; it is the responsibility of government not to over-regulate speech or suppress it.  (Note how this is also a response to the “Marketplace of Ideas” Model).

e.	“New Deal for Free Speech” Model:  Cass Sunstein of the University of Chicago advocates that there should be a New Deal for free speech, much like there was a New Deal for economic reasons during the Great Depression.  In other words, there should be restrictions on certain speech (i.e., hate speech, pornography, etc.) for the greater good, just as during the New Deal there were restrictions on the laissez-faire economy.   Dave often refers to Sunstein’s “New Deal for Free Speech” in class.  Many civil libertarians are frightened by this “New Deal” for speech for obvious reasons.

II.	Free Speech Before World War I

A.	Pre-World War I Cases First Am. Cases:  Many First Am. scholars assumed that there were no First Am. cases before World War I and the Espionage Act cases (Shchenk, Frohwerk, and Debs).  But Dave says these scholars were wrong, as Patterson illustrates.  Dave’s specialty is pre-WWI First Am. cases!
 
B.	Patterson v. Colorado (1907):  This is the only pre-WWI case that we read.  D was the editor and publisher of a number of Colorado newspapers.  Colorado had adopted an amendment to the state constitution changing political processes, pursuant to which Democrats were elected in Denver.  But the Colorado state supreme court ruled the amendments invalid, in effect restoring the political mechanism as it had been prior to the amendments.  D’s newspapers published a series of articles and cartoons, condemning the supreme court decision and alleged that the judges invalidated the amendments because they favored corporate interests and the Republican Party.  Because of these articles and cartoons, D was convicted of contempt of common law criminal contempt because his embarrassing the supreme court “obstructed the administration of justice” (judges could not fairly decide cases before the supreme court).  The main issue:  Does the First Am. protect the articles and cartoons that D was convicted for publishing? 

1.  Majority:  Holmes’ majority opinion makes a few major points:
	
	a.  No, and D’s criminal contempt is upheld.  The main purpose of the First Am. is “to prevent all prior restraints upon publications as had been practiced by other government,” and the First Am. does not prevent the subsequent punishment of such publications that are deemed contrary to the public welfare.  

1.  Holmes’ discussion re prior restraints and the First Am. parallels Blackstone’s discussion of prior restraints and English law in his 1769 Commentaries.  Specifically, Blackstone writes how the elimination of licensing in England in 1694 prevented the government from laying any previous restrains upon publications, but the government could subsequently punish the publisher of any publications that were “improper, mischievous, or illegal.”  In England, as in the U.S., publishers were frequently punished, after publication, for the crime of “seditious libel”.  “Seditious libel” is an amorphous open-ended offense extending to almost any criticism of government.

b.  The First Am. prevents prior restrains on publications, no matter if they are true or false.  Similarly, under the law of common law criminal libel, there can be subsequent punishment of publications, no matter if they are true or false, so long as they are deemed contrary to the public welfare.

c.  It is left undecided whether or not the First Am. is applicable to the states via the Fourteenth Am.  Thus, D in this case does not even have a First Am. claim.  But the above analysis re whether or not the criminal contempt conviction violated the First Am. is carried out, arguendo, assuming the First Am. applies to the states via the Fourteenth Am.

2.  Dissent:  Very few dissents pre-WWI free speech cases.  Harlan’s dissent is particularly noteworthy because of how he applies the First Am. to the states:

a.  The First Amendment applies to the states via the “privileges and immunities” and the “due process” clauses:  

1.	Privileges and Immunities (P&I) Clause:  First, Harlan argued that the freedom of speech and the press are “attributes of national citizenship…of the United States,” and if the states abridged or impaired these privileges, then the states would violate the P&I clause of the Fourteenth Am.   

2.  Due Process (DP) Clause:  Second, Harlan argues that he would go further than the P&I clause, and hold that freedom of speech and the press are “part of every man’s liberty,” and if the states impaired or abridged this liberty, then it would violate the DP clause of the Fourteenth Am.    

NOTE: Almost twenty years after Patterson, the U.S. Sup. Ct. in  Gitlow (1925) held that freedom of speech and the press apply to the states because they are “among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”

III.	The Problem of Subversive Advocacy (or criticism of government that goes too far..)

A.	Intro to Cases Dealing with Subversive Advocacy:  Many scholars see Schenck, Frohwerk, and Debs as the origins of First Am. law.  All three of these cases involved prosecutions under the federal Espionage Act of 1917, which prohibited activities disruptive of the war (WWI) effort.  But, in fact, other First Am. cases, such as Patterson, were decided before WWI.  All of the cases below—from Schenck, Frohwerk, and Debs, up through Brandenburg—deal with the dividing line between political advocacy and illegal incitement of criminal acts.  They illustrate the evolution a doctrine dealing with this dividing line.  The evolution of this doctrine is often referred to as:  “The Worthy Tradition” (although it should be noted, contrary to popular opinion, that Holmes’ earliest decisions were not exactly “worthy” in that the tests did not provide a lot of protection for D’s First Am. rights).

B.	Schenck, Frohwerk, and Debs:  

1.  Schenck (1919):  D, the general secretary of the Socialist party (alright!), mailed two draftees a document opposing the draft, calling it “despotism” and urging the draftees not to submit to intimidation (but this urging confined itself to peaceful measures such as a petition to repeal the draft act).  D was charged with three things: conspiracy to violate the Espionage Act of 1917, conspiracy to commit an offense against the U.S. through mail of a matter declared to be non-mailable by Title XII of the Espionage Act, and unlawful use of the mail for the transmission of the leaflets.  The Prosecution argued specifically that the publication and circulation of these leaflets obstructed recruiting and enlisting people into the army.   D was found guilty on all three counts.  Issue:  Does the First Am. protect the leaflets that D was convicted for publishing?     

		a.  Ct’s holding

	1.  No, the First Am. does not protect the leaflets and Ds convictions are upheld.  “The character of every act depends upon the circumstances in which it is done.  The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic.  The question in every case is whether words created a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent…If the act, (speaking, or circulating a paper,) its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone [i.e., that the circulars actually lead to an obstruction of the draft] warrants making the act a crime.”  This is Holmes’ famous “Clear and Present Danger” test, which Schenck established.  
	
	a.  Dave makes a few observations:

1.	The “falsely shouting fire in a theater” metaphor:  This metaphor holds to the extent that it illustrates that speech depends on context and circumstance.  But there are some problems with the metaphor:  It is not clear that D in Schenck falsely said anything and, more importantly, there is a difference between political speech and just shouting “fire!” (there is strong argument that First Am. protects political speech more than non-political speech). 

2.	“Bad Tendency” test v. “Clear and Present Danger” test:  In other opinions, such as Frohwerk and Debs (which were written in the same year as Schenck), Holmes only refers to the “Bad Tendency” test (the natural tendency and reasonable probability that speech would be an obstruction), and does not refer to the “Clear and Present Danger” test as he does in Schenck.  Are there any differences between these two tests?

a.	No Difference Between the Tests:  Despite the difference in the language of the two tests, Dave says Holmes never intended to distinguish between the two tests.   Dave bases this view on a few points:  

1.	In the paragraph cited above from Schenck, Holmes uses “clear and present danger” language along with “tendency” language.  

2.	Furthermore, in the same year that he wrote Schenck, he wrote Frohwerk and Debs and referred to only “bad tendency” test, and this suggests that he really did not see a difference in the tests.  

3.	Finally, if Holmes really meant the “Clear and Present Danger” test to be different from the “Bad Tendency” test—that is, if he really meant for the "Clear and Present Danger" test to have a close connection between the speech and the action—then he would have held differently in Schenck than he did.  The document in Schenck did not explicitly advocate illegal resistance to the draft; it only advocated peaceful measures, such as petitioning to repeal the draft act.  It hardly could be said that this was a "Clear and Present Danger.”

2. The prohibition of laws abridging free speech is not confined to previous restraints (as Patterson held), and extends to social advocacy and to political criticism absent circumstances and words creating a “clear and present danger”.

a.	 Dave says that this portion of the Schenck opinion expands the protection of free speech than the protection provided for in Patterson (where it was held that the First Am. protected only prior restraints to speech).

C.	Masses Publishing Co. v. Patten (Ill. Dist. Ct., 1917):  This is a famous Learned Hand opinion (which Learned Hand later disavowed) when Hand was a federal district court judge.   P, a publishing co., produced a monthly revolutionary journal called “The Masses,” which contained text and cartoons challenging WWI, the draft, etc.  The New York postal service, acting under the direction of the Postmaster General, refused to deliver the journal because it allegedly violated the Espionage Act of 1917 (see text of relevant part of Act in footnotes on p.41-2).  P sought a preliminary injunction against D, the Postmaster of NY, because of his refusal to deliver the journal.  Does not mailing P’s publication violate his free speech rights (Hand never uses the term “First Am.” in this case, only “free speech”)?  

1.	Ct’s holding:

a.	Yes, and the injunction is granted (D must deliver the journal).  Learned Hand very closely examines the language of the statute, and applies it to the fact of this case:

1.	Title I, Sec. 3.  “Whoever, when the US is at war, shall willfully make or convey false reports or false statements with the intent to interfere with the operation or success of the military…shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty…or shall willfully obstruct the recruiting or enlistment service…shall be punished…”  

a.	“Whoever, when the US is at war, shall willfully make or convey false reports or false statements with the intent to interfere with the operation or success of the military”: What P published was not a willfully false statement; P thought it was all true.  So this portion of Act is not applicable.

b.	“…shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty…”:  It is true that “The Masses” would cause mutiny, insubordination, etc., among the troops.  Yet Hand says that “Bad Tendency” test—“cause or attempt to cause insubordination, disloyalty, mutiny or refusal of duty”—would result in excessively limiting freedom of speech, which is so crucial to our democracy.  “To interpret the word ‘cause’ [in the Act] so broadly would, as before, involve necessarily as a consequence the suppression of all hostile criticism, and of all opinion except what encouraged and supported the existing policies, or which fell within the range of temperate argument.”  Hand urged that a distinction must be drawn between legitimate agitation and direct incitement to violent resistance.  Only direct incitement could be punished consistent with the First Am., while legitimate agitation could not.

1.	Dave says under Hand’s formulation, anything short of direct incitement—which is direct (not indirect) counseling to violate the law—is protected free speech.  This is a broad view of free speech.    

2.	Dave also says that Congress arguably had already considered how broadly the effect of the “willfully caused” language of the Act was, and who is Learned Hand to second-guess Congress.

c.   “…or shall willfully obstruct the recruiting or enlistment service…”:  The cartoons and articles simply do not obstruct recruiting or enlistment.  

	2.  Dave’s misc. comments re Masses:

a.	The importance of this case is how Hand’s approach differed from Holmes’.  Hand’s approach focused solely on the content of the language of the speaker (not the surrounding circumstances of the speech) in light of a close textual reading of the Act. Only direct incitement could be punished consistent with the First Am., wile legitimate agitation could not.  Holmes’ "Clear and Present Danger" test focuses on the actual context and circumstances surrounding the speech.  The main significance of Hand’s test is that, unlike the "Clear and Present Danger" test, the likely effects of speech were completely irrelevant.  For example, a person who published a direct call to violate the law could be punished, even if this call was utterly ineffectual (whereas this may not pass "Clear and Present Danger" test).  In short, Hand’s test would punish the harmless inciter.

b.	Hand personally felt that the "Clear and Present Danger" (or “Bad Tendency” test) was too subjective.  He famously pronounced this in a famous letter to Holmes: “Speech that seems like an emergency today might not be an emergency [or fail the ‘Clear and Present Danger’ test] tomorrow.”  

c.	Hand is closely interpreting the Act in Masses, and never once expressly mentions the First Am.  But one could easily argue that his discussion re free speech is in fact a meditation on the First Am. 

d.	Hand’s opinion was unique because it was one of the very few that did not hold D’s liable for violating the Espionage Act and that did not apply the "bad tendency" test.

e.	The Second Circuit Court of Appeals reviewed Hand’s decision and overruled it.  Applying the “Bad Tendency” test, it held for D (the Postmaster).  The Second Circuit also held that speech which indirectly (not just directly) incited violence could be prohibited.  The Second Circuit cited Marc Antony’s famous funeral oration in “Julius Caesar” as evidence of indirect speech inciting violence.  In this oration, Marc pretended to praise Julius Caesar, but his speech had the intended opposite effect—the crowd grew furious at Julius Caesar.  

f.	Hand subsequently abandoned his Masses test.  But many decades later, Brandenburg would incorporate the main aspects of the Masses test (though it would also add aspects of the "Clear and Present Danger" test as well).

D.	Abrams (1919):  Ds, American socialists, were convicted of violating a portion of the Espionage Act, which prohibited urging any curtailment of war production with intent to hinder the U.S. prosecution of WWI.  Specifically, Ds were charged with four counts: (1)  “disloyal scurrilous and abusive language about the form of U.S. government”; (2) “language intended to bring the form U.S. government into contempt, scorn, contumely and disrepute”; (3) “language intended to incite, provoke and encourage resistance to the U.S. in WWI”; (4) and “conspiring when the U.S. was at war with the Imperial German Government…
unlawfully and willfully, by utterance, writing, printing and publication, to urge, incite and advocate curtailment of production of things and products, to wit, ordnance and ammunition, necessary and essential to the prosecution of the war.”  Ds had published two pro-Bolshevik leaflets, which attacked the U.S. production and supplying of arms that might be used against Russia (against whom the U.S. had not declared war); neither leaflet was pro-German, and in fact one was violently against German militarism.  The leaflets urged workers not to make bullets which would be used not only against Germans but Russians as well.  Ds were all convicted. Does the First Am. protect the leaflets that D was convicted for publishing?      

1.	Majority:

a.	No, convictions upheld.  Justice Clarke held that Scheck and Frohwerk made it clear the Espionage Act is not a violation of the First Am.  

b.	Ds had the requisite intent under the Act to interfere with the war effort against Germany.  Their primary purpose may have been only to aid the Russian Revolution, but “men must be held to have intended…the effects which their acts were likely to produce.”   Curtailment of production to protect Russians could not have been accomplished except by also impairing the war effort against Germany, and thus the intent requirement of the Act was satisfied.

2.	Holmes’ Dissent:  Holmes’ dissent, and Brandeis’ concurrence with the dissent, is the first time that both justices dissented in an Espionage Act case.  Why did they dissent?  What did they hold?

a.	An actor does not “intend” a consequence “unless that consequence is the aim of the deed.”  Ds simply had no intent to interfere with the war effort against Germany. 

b.	Holmes says that, as a matter of law, Schenck, Frohwerk, and Debs were rightly decided.  In Abrams, Holmes pretends to apply the same analysis as these three previous cases.  But he now calls the test the "Clear and Imminent Danger" test, which he describes: “The U.S. may constitutionally punish speech that produces or is intended to produce a clear and imminent danger that will bring about forthwith [“soon”] certain substantive evils that the U.S. constitutionally may seek to prevent.  It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned.”  Under this test, Holmes’ held that D’s conviction must be overturned because he was just an “unknown man” who was “surreptitiously publishing a silly leaflet “ that posed no “immediate danger”.  

1.	Dave says this test is different from the "Clear and Present Danger" (or “Bad Tendency”) test of Schenck, Frohwerk, and Debs because it focuses on the proximity between the speech and the act it encourages.  But Dave emphasizes that the test does not go so far as to require “direct incitement.”           

c.	Holmes’ dissent is perhaps best known for its more general words about the value of free speech.  He articulated the “Marketplace of Ideas” theory:  he urged the “free trade in ideas,” and argued that “the best test of truth is the power of the thought to get itself accepted in the competition of the market…”

3.  Dave’s comments:

a.	Why did Holmes vote to overturn D’s convictions?

1.	The war had been going on for a long time, and the threat to domestic security was less than it was during Schenck, Frohwerk, and Debs.

2.	Frohwerk and Debs dealt with American involvement in Germany, while Abrams deals with American involvement in Russia (and thus less of a national security in Abrams).     

3.	Because of Holmes’ new "Clear and Imminent Danger" test.  Zacharia Chafee, famous Harvard Law School professor, was a brilliant First Am. scholar who wrote an article in June, 1919, entitled “Freedom of Speech in Wartime.”  In this article, Chafee argued that with the "Clear and Present Danger" test in Schenck, Holmes had repudiated the “Bad Tendencies” test of Frohwerk and Debs (Dave, for reasons discussed above, thinks this is not a convincing arg. at all).  Chafee argued that the "Clear and Present Danger" test implied a close proximity between the speech and act, whereas the “Bad Tendencies” test did not.  Holmes met with Chafee, and Chafee successfully persuaded Holmes to change his view.  Thus, Holmes ingeniously came up with the "Clear and Imminent Danger" test.

b.  How does Abrams depart from Frohwerk, Debs, and Schenck?  In primarily three ways:
	
1.	Holmes’ emphasis on specific intent of Act in Abrams (whereas in prior 
cases, he took a much more lax view of intent).	

2.	Homes’ emphasis on immediacy between the speech and the act in the "Clear and Imminent Danger" test.

3.	His powerful “marketplace of ideas” argument supporting free speech.

c.  How does Holmes’ "Clear and Imminent Danger" test differ from Hand’s Masses test?

1.	Masses test:  Focuses on the language of the speech only, not circumstances or proximity, to see if it directly incites violence.

2.	"Clear and Imminent Danger" test:  Focuses on proximity between speech and the dangerous consequences.  

E.	Whitney (1927):  Whereas the previous cases dealt with the Espionage Act, this case dealt with the Criminal Syndicalism Act, which forbade the knowing membership in any organization advocating the use of force or violence to effect political change.  D, who did not deny being a member of the Communist Labor Party, was convicted of violating the Crim. Synd. Act, even though she did not agree with the CP’s advocacy of violent means of change, and she had in fact voted for a more temperate plank for the CP.  Does the First Am. protect D’s right to belong in such a group?

1.	Majority

a.	No, and D’s conviction is upheld.  Sanford’s majority applies what is essentially a “Bad Tendencies” test in this case.  He holds that “a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means…[A restriction on speech] may not be declared unconstitutional unless it is an arbitrary or unreasonable attempt to exercise the authority vested in the State…”  

1.	Dave says this “Bad Tendencies” test is consistent with Debs, Frohwerk, and Schenck.

b.	“The state’s determination [to pass an Act that prohibits speech because it allegedly endangers the public peace and the security of the state] is given great weight [by the court].”  Why does the US Sup. Ct. here give more deference—“great weight”--to the Crim Synd Act than it had the Espionage Act.  Because the Espionage Act proscribed acts, not speech; speech became relevant only because the prosecution claimed that the speech constituted an attempt, or conspiracy, to bring about the forbidden act.  But the Crim Synd Act was a statute that directly forbade certain types of speech, and thus was given judicial deference presumably because the legislature contemplated the effect on speech with the Act more than it did with the Espionage Act.

2.	Brandeis’ concurrence (joined by Holmes):  Brandeis’ opinion was cast a concurrence, not a dissent, because Brandeis’ opinion D had not raised the appropriate constitutional claims to the trial level.  But it reads like a dissent, and is one of the most eloquent on free speech.  Holmes joined Brandeis’ concurrence.

a.	The State can only prohibit speech if “the particular restriction proposed is required in order to protect the State from destruction or from serious injury, political economic or moral…A valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State constitutionally may seek to prevent has been settled…In order to support a finding of clear and present danger, it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated…No danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion…Only an emergency can justify repression...The evil apprehended must be relatively serious.”  This is Brandeis’ formulation of the "Clear and Present Danger" test (a test which he says was “unsettled” before this case).  This has since been labeled the “Holmes-Brandeis formulation of the ‘Clear and Present Danger’ test,” since Brandeis formulated the test and Holmes concurred with it.        

1.	Dave makes a few points:

a.	Brandeis’ formulation of the "Clear and Present Danger" test requires not only imminence, but a danger that is serious.  His definition of “imminence” is also stronger than Holmes’ formulation of the "Clear and Present Danger" test in Abrams because it suggests that speech must immediately incite dangerous action.       

b.	Like Learned Hand, Brandeis does not think a “Bad Tendency” test 
alone is sufficient.  He feels like it stifles too much speech. 

b.	Brandeis also eloquently meditates on the importance of free speech in what some 
have called the “safety valve” theory.  An orderly society cannot be maintained merely through fear or enforced silence, for “fear breeds repression…repression breeds hate…and hate menaces stable government.”  On the contrary, “the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies…The fitting remedy for evil counsels is good ones.”  Brandeis then ties the importance of free speech to the importance of a healthy democracy.   

1.	Dave says, unlike Holmes, who uses a “marketplace of ideas” metaphor, Brandeis employs a “democratic” model, where free speech is crucial important to democratic decision-making.  Holmes never tied free speech to democracy.

	      3.  Dave’s comments…

a.  From the time of the Whitney decision in 1927 up until Dennis, the Sup Ct used the Holmes-Brandeis formulation to protect free speech.  This test was used in situations of peaceful picketing, breach of peace, contempt, etc.  In all contexts, the Sup. Ct. protected this speech.  But Dennis changed the test.

b.  Dave says to note (for exam purposes) that, even though Holmes and Brandeis agreed on the same test in Whitney, they have separate rationales for free speech.  Holmes is a big fan of the “Marketplace of Ideas” theory, while Brandeis views free speech as central to the democratic process.

F.	Dennis (1951):  During and immediately following World War II, fears of an international Communist threat became even more pronounced, so in 1940, Congress passed the Smith Act.  Ds were convicted under the Smith Act of conspiring to overthrow the U.S. Government, and of conspiring to reorganize the U.S. Communist Party, which the prosecution claimed was a group that advocated such overthrow.  Does the First Am. protect Ds’ speech? 

1.	Majority

a.	No, Ds’ convictions are upheld because the First Am. does not protect their violation of the Smith Act.  Justice Vinson purports to apply the "Clear and Present Danger" test, which he correctly states has been used for the last few decades, but uses Hand’s interpretation of the test.  “In each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability [of coming about], justifies such invasion of free speech as is necessary to avoid the danger.”  He uses Hand’s approach because “it is as succinct and inclusive as any other we might devise at this time.” 

1.	Dave says:

a.	Applying the Hand interpretation weakens imminence.  How?  The greater the danger, the more the probability that the harm will actually come about is discounted in the formula for curtailing speech.  For example, if witches present a serious danger, then this serious danger would discount imminence in the formula for curtailing the witches’ speech.  Why does the ct. reduce the “imminence” requirement?  Jackson’s concurrence on p. 138-9 suggests that the Communist threat was greater than anything Holmes or Brandeis had to deal with.

b.	The irony here is that Hand had always objected to the subjectivity of the "Clear and Present Danger" test, and yet the Ct. adopts Hand’s approach as an interpretation as the "Clear and Present Danger" test.

c.	Doesn’t this formula really say:  If you’re politically weak, you have free speech, but if you’re politically strong, you have no political speech.  Dave calls this the “cynical legal realist approach.”

2.  Franfurter’s concurrence 

	a.  The test should not be "Clear and Present Danger" test, but a “candid		and informed weighing of the competing interests…”  This balancing test
should be done by Congress, not the judiciary.  Only if Congress acted without any reasonable basis should its determination be reversed.    

3.  Douglas’ dissent

a.	The Dennis "Clear and Present Danger" test is an acceptable test, but the majority misapplied the test in this case.  Applying the test to this case, the threat of communism is greatly overrated and its probability of occurring is small.  Thus, under the "Clear and Present Danger" test, Ds’ conviction should be reversed because the First Am. protects his speech even though it constituted a violation of the statute.  Also, the jury—not the trial court, as the majority held—should decide the issue of clear and present danger. 

G.	Brandenburg (1969): This case represents the modern-day approach to political speech.  D was a leader of an Ohio Ku Klux Klan group.  He was charged with violating Ohio’s Criminal Syndicalism Statute, which (like that of CA., sustained in Whitney) forbade the advocate of crime or violence as a means of accomplishing industrial or political reform.  Did First Am. protect D’s speech?  

1.	Ct’s per curium opinion

a.	The court did not even get to this question, because it struck down the Ohio statute.  In so doing, the Court articulated a test which a statute proscribing speech must meet.  Speech advocating the use of force or crime could only be proscribed where two conditions were satisfied: (1) the advocacy is “directed to inciting or producing imminent lawless action,” AND (2) the advocacy is also “likely to incite or produce such action.”  The Ohio act punished all advocacy of the “duty, necessity or propriety of crime [or] violence…as a means of accomplishing industrial or political reform….”  This language was so broad that it forbade advocacy of the abstract doctrine of violent political change, as well as incitement to imminent unlawful action.  Thus, it was unconstitutional, even though some applications of it might have been constitutional.  

2.	Dave’s comments:

a.	This case expressly overruled Whitney, which had upheld a Criminal Syndicalism statute nearly identical to that struck down in Brandenburg.

b.	The two-part Brandenburg standard combines aspects of both Holmes-Brandeis and Hand tests, in a way that gives “double protection” to speech:

1.	Holmes-Brandeis aspect:  The Holmes “clear and present danger” legacy is reflected in the requirement that the speech be “likely to incite or produce” imminent unlawful action.  Thus the concern with immediate, likely, consequences remains.

2.	Hand aspect:  But Brandenburg also reflects Hand’s insistence in Masses that what should be restricted is only direct advocacy of action, not mere advocacy of abstract doctrine.  This distinction is imposed by the requirement that the speech be “directed” (i.e., “intended”) to “inciting” or “producing” an unlawful response.

The benefit of this approach is that the Hand aspect is a check on the Holmes-Brandeis approach, which is subjective.  The Holmes-Brandeis aspect is a check on Hand’s approach, which does not deal with the “harmless inciter.”

c.	Dennis would have come out differently under Brandenburg because the Communist Party was not likely to incite imminent lawless action (the strong version of the Holmes-Brandeis test that Dennis got rid of).

d.	Because of the combination of the Holmes-Brandeis approach with Hand’s approach, Brandenburg represents the greatest protection for political speech yet established by the U.S. Supreme Court. 

e.	It is not clear to what types of speech, besides political speech, Brandenburg will apply to.  For example, will it cover someone who tells another person, “I will kill you”? This is a very important unresolved point. 

f.	On exam, Dave says apply Brandenburg, since this is the current, binding case.  But, when applying Brandenburg, refer to how to Masses and the Holmes-Brandeis test were incorporated.  Also, if the fact pattern resembles, say, Abrams, point that out, show how the facts would have come out under Abrams, and how they would have come out differently (if they would) under the modern-day Brandenburg test.  You get the idea.  Just don’t go into each one of the tests above and waste a lot of time.

3.  Other commentators…

a. Some commentators have pointed out how the Brandenburg test does not
explicitly take into account the severity of the harm which is threatened (speech must be directed at and lead to some kind of “lawless” action).  Reading the test literally, a speaker who advocated use of nuclear weapons for terrorist purposes, but only after a two-year moratorium, would not be punished (since the harm would be serious but not “imminent”). 

IV.  Prior Restraints (or prior prohibitions on certain types of speech…)

A.	Intro.:  Freedom of expression in Anglo-American law began with freedom of the press.  The vehicle for this press protection was the doctrine of prior restraint; the printed word did not have to be submitted to the King’s censors before it could go forth, as Blackstone described in his Commentaries.  Even the most minimalist understanding of the First Am. conceives it to provide a presumption against prior restraint, as Holmes pointed out in Patterson.  Prior restraint occurs if a law requires judicial approval before something can be published, or before speech or protest can occur.  An example of prior restraint would be an injunction on speech.  A prior restraint prevents a communication from entering the “marketplace of ideas” at all, while subsequent punishment assumes that the communication has entered the market and the question is whether the disseminator of the communication can be punished.  Usually, the sanction for violating a prior restraint is “contempt”.  Generally, any system of prior restraint of expression bears a heavy presumption against its constitutionality.  The government thus carries a heavy burden of justification for the imposition of such a restraint. The two cases below—which treat prior restraints of the press—deal with this burden and illustrate court’s modern-day approach to prior restraints.

B.	New York Times v. U.S. (AKA “The Pentagon Papers Case”) (1971):  The New York Times and the Washington Post began publishing portions of a secret Defense Department study (popularly known as the “Pentagon Papers”) of the US policy in Vietnam.  Daniel Ellsberg leaked this study to the newspapers in an attempt to create enough pressure on the government to end the war.  The government (specifically, the Executive branch) sought an injunction against the two papers to prevent further publication.  The government conceded that the Papers discussed only historical events which transpired prior to 1968, but argued that publication would prolong the War by giving the enemy information useful to it and would embarrass our diplomatic efforts.  Never before had the government sought to enjoin a newspaper from publishing information in the newspaper’s possession.  Was the 2nd Circuit’s granting of the injunctions of prior restraint a violation of the First Am.?

1.	Per curiam opinion:  Yes, and U.S. Sup. Ct. overturned the App. Ct’s decision to grant the injunctions.  The opinion of the Court was a brief per curiam one, and the Court (by a 6-3 vote) determined that the government was not entitled to the injunctions.

a.	A prior restraint of expression has a “heavy presumption against its constitutional validity.”  The government “thus carries a heavy burden of showing justification for the imposition of such a restraint.”  

2.	Summary of nine separate opinions (see below):  Each of the nine members on the Court wrote a separate opinion, and no majority agreed on a precise rationale for the decision.  The opinions fell into basically three broad categories:  Justices Black and Douglas argue that there could never be a prior restraint of the press; Justices Brennan, White, and Stewart contended that there could be prior restraints in extraordinary cases, but that the present case did not qualify; and Justices Burger, Harlan, and Blackmun believed that prior restraint was appropriate here.  (Justice Marshall’s opinion was excluded from the casebook).
 
3.	Black and Douglas concurrence:  These justices take an absolutist view and hold that there could never be a prior restraint of the press.  To hold otherwise, they argue, “would make a shambles of the First Amendment.”

4.	Brennan concurrence: 

a.	Never before has the U.S. sought to enjoin a newspaper from publishing information in its possession.

b.	Indicates that prior restraints are permissible under certain circumstances, but the standard is high.  “Only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order.”  

c.	Mere conjecture of, say, national security is not enough.  There must be proof that publication would lead to an inevitable, direct, and immediate harmful result in order to grant a prior restrain on speech.  Brennan cites info. that could lead to a nuclear holocaust as an ex. of what could be restrained (pretty tough standard!).  

d.	There must be judicial scrutiny of the basis upon which a prior restraint is requested.  

5.	Stewart and White concurrence:  

a.	“I am convinced that the Executive is correct [that there would be a national security threat] with respect to some of the documents involved.  But I cannot say that disclosure of any of the documents will surely result in direct, immediate, and irreparable damage to our nation or its people.”  

1.  Note that the language used here is the same as in Brennan’s test.  Thus, three members of the court—Brennan, Stewart, and White—essentially applied the same test.

b.	An informed and free press enlightens the people, and allows people to perform their duty in a democracy.  Prior restraints interfere with a free press, an informed people, and the democratic process.

c.	It is the Executive’s responsibility to keep confidential information top-secret.  Here, the Executive obviously failed.  The government can use laws to prosecute whoever leaked the info. 

1.	The concurrence suggests that it is hard to sympathize with the Executive’s 
dilemma since the government blew it and allowed confidential info. to leak.  Also note how the concurrence suggests that the remedy for the leaked info is subsequent punishment, not prior restraint.

6.	Dissent:  Three Justices—Harlan, Burger, and Blackmun—dissented.  They all basically 
complain that the Court hastily heard and decided this case (less than one week had elapsed between filing of the case and announcement of the decision). 

7. Dave’s views

a.	From where did the government’s power come to exercise prior restraint in this case?  The government argued that the President, under the Executive Clause, can exercise prior restraint when there are threats to national security.

b.	The government offered no specific evidence that “national security” would have been threatened.  Brennan said the government did not “make its case.”  Black and Douglas referred to “security” as a “broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Am.”

c.	Even though the Government argues the information was confidential and a national security threat, some of the report had already been published.  See Progressive below on this point. 

C.	The Progressive H-bomb case (briefly mentioned in class, but not assigned in reading) (W.D. Wis. 1979):  At least one court has interpreted New York Times v. U.S. to permit an injunction against publication of newsworthy information if a statute authorizes such an injunction, and if the danger is sufficiently compelling.  In U.S. v. Progressive, Inc., a federal district court enjoined a magazine from publishing an article containing technical info. about the H-bomb.  The court felt that these materials could pose a direct threat to national security by possibly allowing a medium-size nation to develop an H-bomb.  This case was not reviewed because, before the appeal could be heard, the government’s attempt to get a permanent injunction against it was dropped, since the info. about the H-bomb had been published elsewhere.  

1.  Brennan, with his “nuclear holocaust” example in the “Pentagon Papers” case, would have probably upheld the prior restraint on the magazine’s article.

D.	Nebraska Press Association v. Stuart (1976):  This case deals with a “gag order”—a pre-trial order prohibiting the press from publishing certain types of info. about a case—which is issued (but almost never upheld on appeal) when a judge thinks that a defendant will not get a fair trial pursuant to his Sixth Am. rights.  D was about to be tried in a small town for a heinous mass murder, which had attracted widespread media attention.  The trial judge, in order to assure D’s ability to select an unprejudiced jury, issued a “gag order” prohibiting the press from reporting any confessions or admissions by D, or any other fact “strongly implicative” of him, until after impaneling the jury.  Did the gag order violate the press’ First Am. rights?

1.	Majority opinion:  Yes, and the restraining order is struck down.  The U.S. Supreme held unanimously that the gag order violated the press First Am. rights.  There was a majority and two concurring opinions.  The majority was written by Burger, with whom four other Justices joined.     

a.	A ban pre-trial publicity is not per se unconstitutional.  Instead, the test that will apply, taken from Dennis, is:  The restraint should be allowed only if the “gravity of the ‘evil,’ discounted by its improbability [of actually being carried out]” is greater than the damage from the impairment of the First Am. rights. Here, the trial judge’s conclusion that pretrial publicity would impair D’s rights was speculative, not certain.  Furthermore, the trial judge should have considered other alternatives for reducing the harmful effect of such publicity (i.e., change of venue, postponement of trial, careful voir dire, etc.).  Finally, the trial judge should have considered whether his gag order would even be effective, in view of the rumors which usually circulate in a sensational case.  On balance, then, it was not sufficiently established that the benefits of the gag order outweighed the impairment of the press’ First Am. rights. 

1.	Dave says it’s strange that majority employs the Dennis test, since Brandenburg superseded Dennis.  The Nebraska Press Association casts doubt on Brandenburg as a binding precedent (but maybe not, since this case deals with prior restraints, and Brandenburg did not).

b.	Powell’s concurrence:

1.	A prior restraint may be issued if it is shown to be necessary to prevent the dissemination of prejudicial publicity that otherwise poses a high likelihood of preventing, directly and irreparably, the impaneling of a fair and impartial jury.  This requires that: (1) there is a clear threat to the fairness of trial, (2) such a  threat is posed by the actual publicity to be restrained, AND (3) no less restrictive alternatives are available.  Here, these have not been sufficiently shown.

c.	Brennan, Stewart, and Marshall concurrence:  

1.	There should be an absolute ban on prior restraints as a method of assuring a fair trial, since other tools (mentioned by the majority) can and must be used for protecting the right to a fair trial.

a.	This view differs from the majority because it would make any restraint on the press unconstitutional per se.  But prior restraints—like for the preservation of national security—are available in certain narrow categories, if they meet the New York Time standard (which is very strict).

NOTE:  What made the order in Nebraska Press a “prior restraint” was not simply that it forbade publishing a certain type of material; it was that the restriction took the form of an order applicable to one particular, specifically-identified factual setting (this particular trial).  Had the legislature made it a crime to publish prejudicial information in advance of any criminal trial, such a statute could not properly be called a prior restraint, and would not necessarily be unconstitutional.    

E.	Seattle Times Co. v. Rhinehart (mentioned in class, but not assigned in reading) (1984):  
This case dealt with discovery in civil cases.  In civil cases, attempts to bar disclosure of trial-related info. may raise First Am. issues.  Typically, the issue arises when the trial judge orders a party not to disclose certain information obtained from the other party through discovery (i.e., depos, interrogs, etc.).  The U.S. Sup. Ct. held in Seattle Times that a “protective order” barring disclosure of discovery materials does not violate the First Am. if it: (1) is supported by a showing of “good cause” (as required by FRCP); (2) relates only to material that has not yet been admitted at trial; AND (3) does not ban disclosure of info. obtained through non-discovery means.

F.	Exam approach:  The tests the court has applied in prior restraint situations have been very
fact specific.  Which test applies will depend on if the fact pattern deals with, say, a prior or restraint of discovery or a prior restrain on the press in a criminal trial, etc.

V.	Tort Law and the First Am. (or the extent to which First Am. limits tort liability in defamation suits…)

A.	Introduction:  These cases deal with the extent that tort law limits free speech rights.  Most of these cases deal with the tort of libel.  Prior to 1964—when the U.S. Sup. Ct. decided New York Times v. Sullivan—the First Am. was generally considered irrelevant to libel law.  Chaplinsky and, for example, upheld group libel laws since libelous utterances were not “within the area of constitutionally protected speech.”  But with the NY Times v. Sullivan, the US Sup Ct reversed course, and held that in certain instances the First Am. did indeed protect libel.

B.	Beauharnais (1951):  D distributed anti-black leaflets in Chicago, calling on the mayor and city “to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods, and persons, by the Negro…If persuasion and the need to prevent the white race from becoming mongrelized by the Negro will not unite us, then the aggressions…rapes, robberies, knives, guns and marijuana of the Negro, surely will.”  D was charged under an Illinois statue. This statute made it a crime to exhibit any public place any publication which “portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion” which “exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy.”  D was convicted, and appeals on the grounds that the statute violated his First Am. free speech rights and that it was overly broad.  Did the statute violate D’s First Am. rights, and was it overly broad?

1.	Majority (in a 5-4 decisions)

a.  No, the First Am. does not protect libel and the statute was not overly broad.  Frankfurter (a German-Jewish émigré), writing for the majority, holds that libelous statements that defame individuals as well as groups are unprotected by the First Am. (although the Illinois statute allowed D to show his statements were true as an affirmative defense to a liable charge—but this is something totally separate from the First Am. issue).  Why is libel unprotected?  Because, like “fighting” words, obscenity, etc., libel inflicts injury or tends to incite an immediate breach of the peace.  Furthermore, libel has such slight social value in terms of revealing truth that any benefit from constitutionally protecting libelous speech is clearly outweighed by the social interest in order and morality.  “There are certain well-defined narrowly limited classes of speech, the prevention and punishment of which have never been though to raise any Constitutional problem.  These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.  It has been well observed that such utterances are no essential part of any exposition of idea, 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 interest in order and morality.  ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument [the Constitution]’.”

1.  Dave says this is the heart of the case.  Incidentally, precisely because of this discussion re the obscene and hate speech, Dave says Beauharnais has gained renewed attention today.  For example, anti-obscenity advocates, such as Catherine MacKinnon and Andrea Dworkin, cite Beauharnais to support their argument that the First Am. does not protect pornography.

b.    Because libelous utterances are not protected by the First Am., it is not necessary to 
	reach the issue raised by D’s appeal that the jury be instructed that, in order to convict, they must find that the publication complained of was likely to produce a “clear and present danger” of a substantial evil.   

c.  The statute is not void for vagueness.

d.	The states can define “libel” however they wish without raising a constitutional issue, so long as the definition is “related to the peace and well-being of the state.”  Here, the Illinois libel law was passed in 1917, at a time when the State was struggling to assimilate new inhabitants, from foreign-born immigrants to blacks looking for work in the North.  In the face of Illinois’ history of extreme racial and religious propaganda, the libel law was clearly related to the peace and well-being of the state.  

e.	“We are warned that the choice open to the Ill. legislature here may be abused, that the law may be discriminatorily enforced; prohibiting libel of a creed or of a racial group, we are told, is but a step from prohibiting libel of a political party.  Every power may be abused, but the possibility of abuse is a poor reason for denying Ill. the power to adopt measures against criminal libels sanctioned by centuries of Anglo-American law.”  Besides, the U.S. Sup. Ct. can strike down any restriction of speech that hides behind the guise of punishing libel.

f.	“It may well be argued, and weightily, that this legislation will not help matters; that tension and on occasion violence between racial and religious groups must be traced to causes more deeply embedded in our society…This being so, it would be out of bounds for the judiciary to deny the legislature a choice of policy, provided it is not unrelated to the problem and not forbidden by some limitation on the State’s power…”

1.	Dave says Frankfurter was hesitant of judicial activism, and deferred to the judgment of the state legislatures (“for better or for worse”), as long as their laws were not wholly irrational.

2.  Douglas’ dissent

a.	Free speech and free press are rights couched in absolute terms in the First Am.  They are not subject to regulation in the manner of factories, slums, apartment houses, production of oil, etc.  Libel should fall under the protection of the First Am.  Yet in recent years the Court has allowed numerous regulations to curtail free speech—such as libelous speech—as long as the legislature regulates this free speech “within reasonable limits”.  This is an ominous and alarming trend.

b.	Because libel is protected by the First Am., the "Clear and Present Danger" test should have applied to D’s speech.  He should have gotten a jury instruction on whether his speech was "Clear and Present Danger”.

c.	“Today a white man stands convicted for protesting in unseemly language against our decisions invalidating restrictive covenants.  Tomorrow a Negro will be haled before a court for denouncing lynch law in heated terms.”

1.  Dave says that Douglas, who is clearly against the Ill. statute, is illustrating how the statute, as applied to a white man in this case by Illinois, may be applied in the future to “unpopular” groups, such as blacks.   

3.  Dave’s Comments 

a.	It is important to put this case in context.  The case was just a few years after WWII—which saw the Nazis’ vicious attacks on Jews—and Frankfurter was a German-Jew.  Many people thought (and Frankfurter probably did, too) that the anti-semitic hate speech in Germany fueled the Holocaust.  This probably played a role in the majority’s decision.

4.  Other Remarks…

a.	Beauharnais was decided prior to New York Times v. Sullivan, which held that the First Am. protected certain instances of libel (i.e., between a government official, who is the plaintiff, and a private party, who is the defendant, and where D lacks knowledge or recklessly disregards that the statement is false).

b.	Cohen—with its discussion of “averting eyes” and the “captive audience”—provided an exception to the notion that “insulting” language is never protected under the First Am.  

c.	In the last few decades, Beauharnais has been discredited.  In the Skokie case (Collin v. Smith), the Court said that hate speech is “indistinguishable in principle from speech that [invites] dispute…induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.  Yet these are among the ‘high’ purposes of the First Am.” 

C.	New York Times v. Sullivan (1964):  This case reversed the Court’s previous view that the First Am. did not protect libel, and held that the First Am. did indeed protect certain kinds of libel.  P, a Montgomery, Alabama police commissioner, sued D (the NY Times) based on a full page fundraising ad that the newspaper ran.  Since he was head of the police department, he said he had standing to sue over the ad since by referring to the police, the ad implicated him.  The ad, which never mentioned Sullivan, contained statements, some inaccurate, critical of police handling of student demonstration in Montgomery.  The libel law of Alabama, like that of most states at the time, provided for strict liability.  That is, a publisher could not avoid liability by showing that he reasonably believed his statement to be true, if it in fact was false.  The only think that could absolve D of liability was to assert an affirmative defense, for which he bore the burden of proof, that what he said was the truth.  Although the factual error in the Times ad were minor (i.e., that Kind had been arrested seven times, rather than the actual four times), and even though there was no showing that the Times ought to have know that the ad prepared by others contained falsehoods, the paper was nonetheless subjected to a $500,000 jury verdict pursuant to the Alabama libel law.  Does the First Am. impose any limits to punishing libel?

1.	Majority

a.	Yes.  Brennan, who wrote the majority opinion, reversed the damage award and established that state defamation rules are limited by First Am. principles.  Brennan, in reversing the damages, relied heavily on the “Citizen-Critic” model:  debate on public issues must be “uninhibited, robust, and wide open,” and may often include “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”  To require critics of official conduct to guarantee the truth of all their factual assertions would lead to self-censorship, rather than free debate.

b.	The Court found that Alabama’s libel rules were similar to that of the original federal Sedition Act of 1798.  The Sedition Act made it a crime publish any “false scandalous and malicious writings” against the federal government with intent to bring it into “contempt or disrepute.”  Although the Act expired before the Supreme Court determined its constitutionality, the view that the Act violated the First Am. had “carried the day in the court of history.”  So, Brennan reasoned, in this case criticism of government public officials could not be curtailed, without violating the First Am.

1.	Dave asks:  What is the relationship between seditious libel and P in this case bringing suit against D?  Just as the government—an official entity—cannot bring a seditious libel action against people for falsely accusing government action, a government official (such as Commissioner Sullivan) cannot bring suit against people.  Why?  Because of the strong interest in protecting private  criticism of government action.  Dave says this is the “key” to this case. 

c.	The Court was not content just to strike down the libel judgment as a disguised ban on criticizing the government.  Instead, it articulated a formal rule, so that future speakers would not have to worry about liability for libel in similar circumstances:  The First Am. prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”—that is, “with knowledge that it was false or with reckless disregard of whether it was false or not.” 

1.	Dave asks:  Why does a democracy depend on false criticism of the government (not just true criticism)?  For primarily two reasons.  As Brennan explains in his opinion, would-be critics of government might still be deterred to speak out because of doubts concerning their ability to prove defamatory statements are true.  Secondly, “erroneous statement is inevitable in free debate, and [it] must be protected if the freedoms of expression are to have ‘breathing space’ that they ‘need to survive’.”  This is a very important point.  

2.	The burden is on P to show that D made the statement with actual malice.  This is a very heavy burden to bear.

2.  Black-Goldberg-Douglas Concurrence:

a.	Malice is an “elusive, abstract concept, hard to prove and hard to disprove,” inviting local jury bias to operate.  The NY Times had an absolute, unconditional constitutional right to publish the advertisement, and there should be no “malice” limitation on this right. 

3.  Dave’s comments

a.	Sullivan does not apply to suits by private figure.  Thus, where P is not a government official, as Sullivan was, then there is a different standard for holding D liable.  See cases below.

b.	How did the First Am. apply here, since the lawsuit was between the private parties?  Because Alabama’s state law of libel affected the alleged free speech of Sullivan, and thus the First Am. was involved via the Fourteenth Am.  See p. 194.

D.	Gertz v. Robert Welch, Inc. (1974):  Where P is not a government official, as Sullivan was in Sullivan, then there is a different standard for holding D liable, and this is what Gertz deals with.  P (Gertz, a prominent civil rights atty) sued D (the publisher of the magazine of the John Birch Society) for statements claiming P had various communist connections.  When a private citizen, not a government official, sues another private citizen for libel, is D’s speech at all by the First Am.?

1.	Majority (in a 5-4 decision)

a.	Yes, but in a different way than it was in Sullivan.  In establishing the standard in Gertz, the Court employed a balancing test:  the free speech interests of D had to be balanced against the competing legitimate state interests in compensating individuals for the harm they suffer from defamatory falsehood (once again, the Sullivan balancing test).  The Gertz Court then came up with the following test:  “So long as they [the states] do not impose liability without fault, the states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injuries to a private individual.”  Thus, in libel actions brought by private citizens, the First Am. does not forbid use of a simple negligence standard.  The states are free to decide whether they wish to establish negligence, recklessness or knowing falsity as the standard (but they may not impose strict liability).
 
b.	The test in this case is not as strict as in Sullivan for primarily two reasons.  First, “public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statement than private individuals [as the P in Gertz] normally enjoy.”  Secondly, public officials, by virtue of being in the public, run “the risk of close public scrutiny,” while private citizens have not relinquished their interest in protecting their reputations.

c.	In terms of damages, if a private citizen shows only negligence on the part of D, rather than recklessness or knowing falsity, then he may not recover presumed or punitive damages, although he can recover actual damages.  Presumed dams are awarded where there is no proof of actual harm, but the jury believes that dams would ordinarily result from such a libelous statement.  Punitive damages are damages to deter future conduct.  Actual damages include “impairment, personal humiliation, and mental anguish and suffering,” not just actual “out of pocket” expenses.

1.	Dave says it is crucial to keep in mind that this rule re dams only applies in a case where P is a private figure and the speech addresses a matter of “public concern.”  If the speech does not address a matter of public concern, then this rule does not apply and Dun & Bradstreet case applies.  Dave adds that it is sometimes very difficult to tell the difference between public and private concern, and he cites as an example Bill Clinton’s affairs with women before he became President.

d.	Justice Powell sets forth two alternative bases for labeling a person a public figure (as opposed to a private citizen).  “In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts” OR “more commonly, an individual injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues."  In holding that Gertz was a private figure, the Court said that, even though Gertz agreed to take a case which he knew would attract substantial publicity, had neither achieved “general fame or notoriety in the community” (so that he was not a public figure for all purposes) nor become a public figure for the limited purposes of the case he took because he had only played a “minimal role” in it.

1.  If it were found that Gertz was a public figure, then the Sullivan standard would apply.

2.  Douglas’ Dissent

a.	Douglas says the First Am. is further eroded with the majority’s holding.  He basically employs the same rhetoric he used in Sullivan.

3.  Brennan’s Dissent

a.	The Sullivan standard should apply to private-person libel actions arising out of events of “public or general interest.”

4.  White’s Dissent

a.  White thought that the majority infringed too much on a state’s decision to define libel when P is a private citizen and there is a matter of “public concern.”  He writes that the majority should not even have stripped the states of their rights to apply strict.

E.	Dun & Bradstreet (1985):  This case deals with recovery for libel when the speech involves a matter of “private concern,” not “public concern”.  D, a credit reporting agency, falsely reported to several subscriber that P, a small corporation, was insolvent.  What recovery is available when speech involves a matter of “private concern”?  

1.	Majority

a.	Powell, writing for the majority, set out the test for when speech involves a matter of private concern:  When a private citizen sues concerning statements that do not involve an issue of public interest, he can recover presumed and punitive damages without a showing that the defendant actual malice—that D recklessly disregarded the truth or knew of the falsity of his statement.  

b.	Powell applied the Gertz balancing test in arriving at the above rule: the free speech interests of D had to be balanced against the competing legitimate state interests in compensating individuals for the harm they suffer from defamatory falsehood.  Speech on matters of purely private concern is of less First Am. value than speech of public concern (which is at the “heart of the First Am.’s protection”).  An individual has a strong interest in being compensated if he suffers from such speech of public concern. 

c.	How does one determine if speech involves public concern?  Powell in the majority says the court should focus on the “context, form, and content” of the speech.  

2.  White’s concurrence  

a.  White renewed his criticism not only of the Gertz rule, but he attacked the balance struck in Sullivan itself.  He writes that false statements of fact about public officials do not serve First Am. interests in the flow of intelligence concerning government.  The Sullivan requirement that actual malice be shown disposes of libel actions (because Ps do not sue due to their “almost impossible” burden of proof) and thus prevents the issue of truth or falsity from ever being decided.  White’s suggests limiting damages (i.e., providing only for actual dams, not punitive or presumed dams) in libel cases, instead of escalating P’s burden of proof to an almost impossible level, as NY Times did.  This would provide ample protection to the press while allowing public officials to go to court and vindicate their reputation.      

3.  Dave’s comments

a.	Many states require malice in order for P to recover actual and punitive dams for speech that involves “private concern.”  This is a stricter standard than Gertz, and states have yet to change their laws to conform to Gertz.

b.	It is sometimes very difficult to tell the difference between public and private concern, and he cites as an example Bill Clinton’s affairs with women before he became President.

F.	Hustler (1988):  The Restatement (Second) of Torts definition of intentional infliction of mental distress (IIMD) is “one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for damages.”  This case deals with the extent to which the First Am. protects “extreme and outrageous conduct” that takes form of expression against public officials and public figures.  Parodying a Campari Liqueur ad, Hustler carried an alleged interview with Rev. Jerry Falwell describing his “first time” as having sex with his mom in an outhouse.  At the bottom of the ad, there was a disclaimer: “ad parody—not to be taken seriously” and the magazine’s table of contents listed the ad as “Fiction; Ad and Personality Parody.”  P (Falwell) sued D (Hustler magazine) for IIMD and libel.  The lower ct held D liable for IIMD of P but did not hold D liable for libel (since no one could reasonably interpret the ad as describing actual facts about P).  Does the First Am. protect “extreme and outrageous conduct” that takes the form of expression against public officials and public figures, and thus does the First Am. prevent an IIMD recovery?

1.	Majority (an 8-0 decision—WOW!)

a.	Yes, to a large degree.  Public officials and public figures may not 
recover for the tort of IIMD because of articles like Hustler’s unless these public officials or public figures show that the publication contains a false statement of fact which was made with “actual malice”—with knowledge that the statement was false or with reckless disregard as to whether or not it was true.  The caricature in the ad parody of P cannot form the basis of an IIMD claim because it was a parody and political parody should generally be protected under the First Am. from libel and IIMD claims.

1.  The Court here is basically applying the Sullivan standard to IIMD.  

		2.  Note that this test applies to public official and figures, not to private citizens.	
Private citizens would probably have a lower standard to prove IIMD.

b.  The rationale for the strict standard above is that, even though “false statements are valueless [and] interfere with the truth-seeking function of the marketplace of ideas,” there must be “breathing space” for publications or there will be a chilling effect on their speech.
 
G.	Exam Summary of Defamation Recovery under New York Times v. Sullivan, Gertz, and Dun & Bradstreet, and Intentional Infliction of Mental Distress under Hustler:

1.  Determining whether a person is private or public: Gertz sets forth two alternative 
bases for labeling a person a public figure (as opposed to a private citizen).  “In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts” OR “more commonly, an individual injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues."

2. Determining whether or not an issue is of private or of public concern:  Dun & Bradstreet holds that the court should focus on the “context [of where speech was made—in a room or in public], form [in which speech was made—oral, written, published, etc.], and content of the speech [did it deal with something of political or social importance, or was it personal].

3.  Sullivan (public figure, public concern):  If there is defamation of a public figure re a matter of public concern, then First Am. precludes recovery to P unless P can show that D acted with “actual malice”—that is, “with knowledge that it was false or with reckless disregard of whether it was false or not.”

4.  Gertz (private figure, public concern):  If there is defamation of a private individual on a matter of public concern, then First Am. allows the libeled person to recover actual damages as long as he can prove falsity.  In order to receive punitive damgs, then he must show that D acted with actual malice.

5.  Dun & Bradstreet (private figure, private concern):  When a private citizen sues concerning statements that do not involve an issue of public interest, he can recover presumed and punitive damages without a showing that the defendant actual malice—that D recklessly disregarded the truth or knew of the falsity of his statement.   

6.  Hustler (recovery for IIMD for public officials—NOT defamation):  Public officials and public (not private) figures may not recover for the tort of IIMD because of articles like Hustler’s unless these public officials or public figures show that the publication contains a false statement of fact which was made with “actual malice”—with knowledge that the statement was false or with reckless disregard as to whether or not it was true.

NOTE:  If a government employee makes the speech, then apply the cases below under the section “Government as Employer.”  

  

VI.  Fighting Words and Offensive Speech 

A.	Introduction:  One of the “unprotected categories” of speech consists of so-called “fighting words.”  The Chaplinsky Court defined “fighting words” as “words which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”  The Cohen Court suggested that “fighting words” are face-to-face, and directed at a person.  They must provoke a violent reaction—more than just provocative.  Finally, fighting words must be intended to provoke.  “Fighting words” receive no First Am. protection because, like other unprotected categories (i.e., defamation, obscenity, etc.) they are not normally part of any “dialogue” or “exposition of ideas.”  When the government seeks to suppress speech threatening violence, the court can employ doctrine such as the two-part Brandenburg test.  But a court can also avoid this completely by simply using the “fighting words” doctrine (and if the words constitute “fighting words,” then they are not protected by the First Am. and the two-part Brandenburg test is not even reached).  Just as in Brandenburg, only speech which is intended to advocate imminent lawless action, and which is in fact likely to result in such action, may be punished, so only those words which are likely to result in violence that cannot be prevented in any other way (i.e., by controlling the crowd) will punishable under the “fighting words” doctrine. 

B.	Chaplinsky (1942):  The “fighting words” doctrine originated in this case.  D was a Jehova’s Witness who called the city marshal a “goddamned racketeer” and “a damned fascist,” and then got into a fight with him on the sidewalk.  D was convicted under a broadly-worded statute, which provided 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…”  The New Hampshire Supreme Court had interpreted the statute to bar only “word likely to cause an average adressee to fight.”  Did the First Am. protect D’s speech?

1.	Ct’s opinion

a.	No, and D’s conviction is upheld since his words were indeed ones which would likely provoke the average person to retaliate.  Among classes of speech that the First Am. does not protect are “fighting words,” since fighting words, like obscenity, libel, etc., have no essential part of any exposition of ideas, and are of such slight social value at revealing truth that any benefit of allowing them to fall under the First Am. is clearly outweighed by the social interest in order and morality.

1.	Dave says the Ct is drawing from Beauharnais here.

b.	The definition of fighting words is:  “Those [words] which by their very utterance inflict injury OR tend to incite an immediate breach of the peace.”  The words must likely provoke the average person to retaliate.  Examples of fighting words include “classical fighting words,” current words equally likely to cause violence, and “other disorderly words, including profanity, obscenity and threats.” 

1.	Observe that this definition has two parts—words that are likely to incite an immediate breach of the peace OR that inflict injury.  Most subsequent ct opinions have only focused on words that likely to incite an immediate breach, not words that inflict injury.   

2.  The Court since Beauharnais has rarely found the “fighting words” doctrine applicable, but the doctrine has not been explicitly overruled and still might apply.

2.  Other comments…

a.  Remember that if something is considered “fighting words,” “pornography,” etc., then it is not protected by the First Am. and the two-part Brandenburg test is never even reached. 

C.	Cohen (1971):  This is the most important case involving the state’s right to ban offensive language (in this case, profane utterance).  D (Cohen) wore a jacket bearing the legend “Fuck the Draft” while walking down a corridor of the L.A. County Courthouse.  D testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of his strong feelings against the Vietnam War and the draft.  D was charged with violating a state statute prohibiting the intentional “disturb[ing] the peace or quiet of any…person [by] offensive conduct.”  Does the First Am. protect D’s right to wear a jacket with offensive language?

1.	Majority Opinion

a.  Yes, and D’s conviction is reversed.  Harlan, writing for the majority in this famous opinion, made a number of holdings.  First, he held that the legend on the jacket was not obscene.  He defined obscenity as “in some significant way, erotic.”  No erotic “psychic stimulation” could reasonably have been expected to result when anybody read the jacket.  

b.  The State claimed D’s message had been “thrust upon unwilling or unsuspecting,” and that the State had the power to protect such “captive audiences” from offensive language.  But Harlan took a narrow view of what constitutes a true “captive audience.”  In order for person to be a captive audience, he must show his “substantial privacy interests are being invaded in an essentially intolerable manner.”  Only will this prevent speech from not falling under the First Am.  The situation here was quite different from that of, say, a person forced to listen to the “raucous emissions of sound trucks blaring outside his residence,” because in this case, those in the courthouse could have “avoided further bombardment of their senses simply by averting their eyes.” 

1.  Is it really realistic that children in the courthouse could avert their eyes?  Would about employees?  Would it make a difference if D had been in a courtroom instead of a hallway (in terms of averting eyes)?

c.	No one at courthouse actually violently reacted to D’s jacket.

1.	Dave says that the Court was weary of the State suppressing speech here because nobody at the courthouse actually violently reacted to D’s jacket.  This would suggest that the CA. statute—which was to prevent disturbing the peace or quiet of a person—was not very applicable in this case.

d.	The State did not meet the test from Chaplinsky.  Fighting words must be addressed to the ordinary citizen and must be inherently likely to provoke a violent reaction from the ordinary citizen.  Here, while D’s displaying of “fuck” was provocative, it was clearly not “directed to the person of the hearer.”  No individual actually or likely to be present could reasonably have regarded the words on D’s jacket as a direct personal insult.  Not is this an instance where D intentionally provoked a given group to hostile reaction.  

e.	Lastly, Harlan rejected the state’s most general claim, that it had the right to ban certain expletives in order to “maintain what [officials] regard as a suitable level of discourse within the body politic.”  He stressed that the First Am. general function is to “remove governmental restraints for the area of public discussion.”  He then pointed to specific reasons why the State could not ban speech like D’s.  First, he said there was no way to distinguish “fuck” from other words, and that the preferable constitutional position was to simply leave matters of “taste and style” to the individual, especially since “one man’s vulgarity is another’s lyric.”  Secondly, this was not simply a situation in which D chose vulgar words to express an idea that could have been equally well expressed by more polite language.  The language he chose conveyed not only an intellectual idea, but also “otherwise inexpressible emotions,” and the First Am. protects this “emotive function” of speech just as much as substance of the ideas.  Third and lastly, government might often ban particular words (i.e., fuck) as a smokescreen for banning the expression of unpopular views (dissent against Vietnam).

2.  Dissent

a.	D’s absurd and immature antic of wearing the “fuck the draft” jacket was mainly conduct and little speech.  

b.	Further, the case is well within Chaplinsky, and thus the “fuck the draft” are “fighting words” that do not fall under the First Am. 

c.	The Court’s agonizing over First Am. values seem misplaced and unnecessary.

3.  Dave’s view

a.	Dave says First Am. scholars overestimate the importance of Cohen.  “If the court came out the other way, it would not make much of a difference to me.  I just do not think not being able to wear a jacket that says ‘fuck the draft’ in a courtroom is a core First Am. issue.  It is peripheral and really would not affect our First Am. rights if the Court had held the opposite that it did.”  Dave say that the Court, by quoting Brandeis’ eloquent writing about the importance of free speech in the concurrence of Whitney, cheapens the importance of the concurrence and the issue involved in Whitney.  To quote Whitney as support for a person’s right to say “fuck the draft” just does a disservice.  Whitney involved articulate political speech; Cohen involves emotional, cheap speech.

b.	Dave says the best response to his above feelings is that the “peripheral” First Am.  issues (such as that involved in Cohen) are just important as the “core” issues (such as that involved in Debs, Abrams, etc.) because they are often more difficult to decide.  Furthermore, there is always the chance that the slippery-slope will apply to the “peripheral” issues.  If the Court says the First Am. does not protect “fuck the draft” jackets, will it next say that no harsh language can be used at any protests?

D.	Collin (AKA “The Skokie Case”) (7th Cir., 1978):  This case dealt with whether or not speech could be banned because it is “offensive” to those who are exposed to it.  D, the Village of Skokie, Illinois (a suburb of Chicago), had a very large Jewish population, including several thousand survivors of the Nazi holocaust.  In 1974, 40,500 of the Village’s 70,000 were Jewish.  P, a member of the American Nazi Party, had planned on marching in Skokie along with his fellow party comrades.  These Nazis believed Jews have “inordinate…political and financial power” in the world and are “in the forefront of the international Communist revolution.”  In 1977, the Village enacted three ordinances to prohibit demonstrations such as the Nazi Party’s.  The first ordinance (ordinance “994”) required that persons seeking to parade or assemble in the village had to obtain liability insurance in the amount of a least $300,000 and property damage insurance in the amount of at least $50,000.  One of the prerequisites for this permit was that the marchers would “not portray criminality, depravity, or lack of virtue in, or incite violence, hatred, abuse, or hostility toward a person or group of persons by reason of reference to religious racial ethnic national or regional affiliation.”  The second ordinance (“995”) prevented “the dissemination of any materials within the Village…which is intended to promote and incite hatred against persons by reason of their race, national origin, or religion.”  Such materials include “publication or display or distribution of posters, signs, handbills, or writings and public display of markings and clothing of symbolic significance.”  The third and final ordinance (“996”) prohibited public demonstrations by members of political parties while wearing “military-style” uniforms.  Violation of these ordinances was prison and/or fines.  P applied for a permit from D, which it denied based on above ordinances.  The permit application stated that the march would last about half an hour, and would involve 30 to 50 demonstrators wearing uniforms, including swastikas, and carrying a party banner with a swastika and placards with statements such as “White Free Speech,” “Free Speech for the White Man,” and “Free Speech for White America.”  The marchers would have a single-file sidewalk march so traffic was not disrupted, and would not have distributed any handbills or literature and would not have given any speeches.  Does the First Am. protect P’s right to demonstrate with his party in the Village?

1.	Ct’s Holding

a.	Yes.  The 7th Cir. App. Ct. first dealt with the ordinance (“995”) preventing “the dissemination of any materials within the Village…which is intended to promote and incite hatred against persons by reason of their race, national origin, or religion.”  This is a content-based ordinance.  

The rule that the First Am. does not protect obscenity only applies to material with “erotic content,” as Cohen held.  Obviously, the materials here were not erotic, and thus fall under the First Am. 

Furthermore, D argues that it does not rely on a fear of responsive violence to justify 995, and does not even suggest that there will be any physical violence if the march were held.  Because of this confession, this case is outside the scope of Brandenburg and any argument based on the fighting words doctrine of Chaplinsky.

1.	If you ask me, I think the lawyers really screwed this one up.  They should have argued that there would be physical violence in response to P’s march.  Dave says it is hard to distinguish Collin from Brandenburg, but one could argue that they are distinguishable because Brandenburg applies to a citizen’s speech against the government (political speech), while the situation in Collin involves speech against other citizens (Jews) and not the government, and thus the non-political speech should be protected less under the First Am. 

D makes essentially five arguments to justify the content restriction of 995.  First, D argues that the content criminalized by 995 is “totally lacking in social content,” and that it consists of “false statements of fact” in which there is “no constitutional value.”  D relies on Gertz as authority.  But we disagree that the ordinance can be said to be limited to “statements of fact,” false or otherwise, since no handbills were distributed and no speeches planned at this parade.  Furthermore, the symbols in question assert the Nazi ideology, which cannot be treated as a mere false “fact.”  Gertz and previous cases made clear that under the First Am., “there is not such thing as a false idea.  However, pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of ideas.” 

D’s second arg. relies on Beauharnais.  In that case, a conviction was upheld under a statute substantially similar to that used in 995.  The U.S. Sup. Ct. held that certain limited classes of speech—such as the lewd and obscene, the profane, the libelous, and “fighting words”—were not protected by the First Am.  In our opinion Beauharnais does not support 995, for two independent reasons.  First, the rationale of the Beauharnais holding is that certain limited classes of speech have a strong tendency to cause violence and disorder.  Here, D admits that it does not rely on a fear of responsive violence to justify 995, and does not even suggest that there will be any physical violence if the march were held.  Thus, Beauharnais does not apply here.  

2.  Dave thinks one of the strange things about the “fighting words” doctrine is that focuses on whether or not the speech has a tendency to cause violence and disorder in the addressee.  Isn’t it weird to base a decision on the non-violence of targets of speech?  This is a criticism of the “fighting words” doctrine—it protects the strong who will not tend to act violent, yet it does not protect the weakest.

Secondly, assuming arguendo that there is group libel even withoyt D’s reference to fears of violence, cases subsequent to Beauharnais, such as New York Times v. Sullivan, Gertz, and Dun & Bradsteet, have gotten rid of the Beauharnais principle that the First Am. does not protect libel.  Thus, even though there is group libel here, Beauharnais does not necessarily cause it to be unprotected by the First Am.  

3.  Dave says one can argue that the Jews in Skokie are private citizens and that the speech deals with an issue of “private concern,” thus allowing the Dun & Bradstreet standard (see above) to apply.  But this would not prevent P’s from speaking, but it would just allow for an easier recovery than NY Times and Gertz.
	
D’s third argument is that there is a policy of fair housing in Skokie, and that P’s dissemination of racially discriminatory material would undercut this policy.  “We reject this discussion without extended discussion,” because the whole purpose of the First Am. is protect speech against such policies.

D’s fourth argument is that the Nazi march, involving as it does the display of uniforms and swastikas, will inflict psychic trauma on the Jewish residents.  Even if there is a good chance that speech will inflict such trauma, it cannot be prohibited until this trauma (IIMD) actually occurs (otherwise, this would be a prior restraint).  Furthermore, there is no principled way of distinguishing between the situation in Skokie from speech that stirs listener to unrest or anger (speech that was explicitly protected in cases like Terminiello).    

4.  Dave says to not, if an IIMD suit is brought after the speech, then Hustler “actual malice” standard for recovery (see above) would kick in, assuming it is shown that the Jews were public officials or public figures.   

D’s fifth and final argument to justify the content restriction of 995 is that the proposed march would be an invasion of the Skokie residents’ homes and would be intensely menacing no matter how peacefully conducted.  In Cohen, the Court held that speech is not protected if it results in a “captive audience,” which occurs when “substantial privacy interests are being invaded [by the speech] in an essentially intolerable manner.”   There is no captive audience here because there is no intrusion into people’s homes (“no sound trucks outside the homes” was the example in Cohen) and the Village residents may, if they wish, simply avoid the Village Hall for thirty minutes on a Sunday afternoon, which no doubt would be their normal course of conduct on a day when the Village Hall was not open in the regular course of business.  

5.  Dave says one can distinguish Cohen from Collin.  In Cohen, the issue was whether a protest against government action (“fuck the draft” jacket) resulted in a captive audience, while here the protest is against a racial minority particularly susceptible to being a “captive audience.”  This assumes, though, that Jews lived along the protest route, but the reality was that the parade route was not very close to the Jews’ homes. 

Based on the above reasons, 995 is struck down as violative of the First Am. and thus cannot be used to deny P’s parade permit.
	
b.	994 gives the Village “officials the power to deny use of a forum in advance of actual expression,” and is a prior restraint.  D did not overcome the heavy burden of showing that this prior restraint was constitutional, and thus cannot use 994 to deny P’s parade permit.

E.	American Booksellers v. Hudnut (7th Cir.) (1986):  This case deals with anti-pornography ordinance in Indianapolis that a couple of extremist feminist legal scholars (Catherine MacKinnon and Andrea Dworkin) drafted.  These extremists felt that “pornography institutionalized the sexuality of male supremacy,” and that studies showed pornography led to sexual abuse.  Under the Indianapolis statute, “pornography” was defined as “the graphic sexually explicit subordination of women, whether in pictures or in words, that also includes on or more of the following: (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 (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.”  P (American Booksellers) challenged the statute.  Did the Indianapolis statute violate the First Am.?

1.	Ct’s holding

a.	Yes.  Judge Easterbrook, writing for the 7th Cir. App., held that the statute violated the First Am because it was not content-neutral.  Under the statute, “speech that ‘subordinates women…is forbidden, no matter how graphic the sexual conduct ,” yet “speech that portrays women in positions of equality is lawful, no matter how graphic the sexual content.  This is thought control.  It establishes an ‘approved’ view of women, of how they may react to sexual encounters, of how the sexes may relate to each other.  Those who espouse the approved view [i.e., treat women equally in pornography] may use sexual images,” yet “those who do not may not.” 

b.	Supporters of the ordinance argue that the way women are portrayed in porno affects society’s view of women and increases discrimination against them.  The court agreed that this may well be true; but this “simply demonstrates the power of pornography as speech.  All these unhappy effects depend on mental intermediation.”  Speech that encourages racial bigotry or anti-semitism also have unhappy effects and depend on mental intermediation, but are protected under the First Am.  Similarly, porno is protected under the First Am. 

c.	Easterbrook relies heavily on a “Marketplace of Ideas” model in upholding porno.  Indianapolis, through its statute, prohibits speech which it has deemed false.  But under the First Am., “there is no such things as a false idea,” and the best test for the truth of speech is its acceptance in the marketplace.

d.	Finally, the proponents of the statute argued porno is “low value” speech, and thus Indianapolis can prohibit it.  But Easterbrook says Indianapolis “left out of its definition any reference to literary, artistic, political or scientific value.”  Great writers such as the cunning linguist, James Joyce, and D.H. Lawrence would fall under the statute.  

2.	Dave’s comments…

a.	“Fighting Words” Doctrine is not applicable here because speech is not face-to-face (no direct addressor-addressee relationship).  

b.  One way to have a const. porno. statute is to simply have a statute preventing the distribution of “hardcore porn” (see the “Obscenity” chapter), and not get into content-based language like, “hardcore porn of women in subservient positions.”
 
F.  R.A.V. (1992):   Groups interested in eliminating discrimination against minorities have argued that an exception should be made for “hate speech” directed against racial minorities, women, homosexuals, etc., and this case deals with whether or not “hate speech” statutes violate the First Am.  D and several other teenagers allegedly burned a homemade cross inside the fenced yard of a black family that lived across the street from D; the incident took place in the middle of the night. D was prosecuted under the St. Paul “Bias-Motivated Crime Ordinance,” which provided that “whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.” D contended  that the ordinance violated the First Amendment in two respects: (1) it was substantially overbroad; and (2) it was impermissibly content-based.  Was the “hate speech” ordinance a violation of D’s First Am. rights?

1.	 Majority Opinion (a bitter 5-4 vote)  

a.	Yes.  Justice Scalia, joined by four other Justices (Rehnquist, 
Kennedy, Souter and Thomas), wrote the opinion for the Court. Scalia concluded that the law was impermissibly content-based, because “it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.”

b. The Minnesota Supreme Court, in construing the ordinance, had concluded that it was intended to apply only to “fighting words,” not to bias speech that would not threaten an immediate breach of the peace.  Scalia believed that he had no choice but to accept the Minnesota court’s construction of the statute (but the problem remained that the statute was impermissibly content-based).  Scalia, because he accepted the Minnesota Supreme Court’s holding that the statute was not overbroad, did not think that the statute was overbroad (since the First Am. does not protect “fighting words” and thus the statute cannot be overbroad).

c.  The Supreme Court has previously held in Chaplinsky and after that the First Am. does not protect “fighting words.”  Nevertheless, even though the government is regulating a supposedly “unprotected” category (i.e., with fighting words), it may not do so in a content-based manner.  Scalia gave two examples of what he considered to be impermissibly content-based regulations of “unprotected” categories: The government may proscribe libel, but it may not make the further content discrimination of proscribing only libel critical of the government. Similarly, a city council may not enact an ordinance prohibiting only those legally obscene works that contain criticism of the city government.

d.  But there is a caveat to the above rule.  Scalia acknowledged that there is an exception to the rule that even unprotected categories enjoy complete freedom from content-based regulation: when “the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists,” and the content discrimination is allowed. Thus the state could choose to prohibit only “the most lascivious displays” of sexual activity, rather than all constitutionally-obscene materials; or, the federal government can (as it does) criminalize only those threats of violence that are directed against the President--each case, the proscribed speech represents the most extreme instance of the reason why the whole category is unprotected in the first place (e.g., it is the “most obscene,” or it is the “most dangerously violent”). 

d.	By Scalia’s standard, the St. Paul ordinance was clearly a violation of 
the First Am.  The ordinance was certainly content-based, because it applied only to fighting words that insult or provoke violence “on the basis of race, color, creed, religion or gender,” but did not cover, for example, political affiliation, union membership or homosexuality.

e.   In fact, Scalia said, the ordinance was not only content-based but “viewpoint based.” That is, where two opposing sides had a confrontation concerning a matter of race or religion, one side could use fighting words while the other could not. “One could hold up a sign saying, for example, that all ‘anti-catholic bigots’ are misbegotten; but not that all ‘papists’ are, for that would insult and provoke violence ‘on the basis of religion.’ ” St. Paul has no authority, Scalia asserted, “to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules.”

f.  Proponents of the ordinance argued that even if it was content-based, it could survive the strict scrutiny given to content-based regulations because it was necessary to serve a compelling state interest. Scalia conceded that the state had a compelling interest in safeguarding the rights of traditionally-disfavored groups, including their right to live in peace where they wish. But he argued that the ordinance was not “necessary” to achieve this state interest, because there were “adequate content-neutral alternatives.” In particular, St. Paul could enact an ordinance prohibiting all fighting words, not merely fighting words motivated by racial, religious or other specifically-enumerated biases. 

2.	White-Blackmun-O’Connor Concurrence (which Stevens joins most of—all below except “b”) 

a.  White’s concurrence reads more like a dissent.  Justice White believed that where a category (i.e., fighting words) is “unprotected,” the states are not prevented from regulating it on the basis of content. “It is inconsistent to hold that the government may proscribe an entire category of speech because the content of that speech is evil ... but that the government may not treat a subset of that category differently without violating the First Amendment; the content of the subset is by definition worthless and undeserving of constitutional protection.”

b. Second, White contended, even if the principle of content-neutrality
should be applicable to unprotected categories (which, of course, White thought that it should not), the rule merely required strict scrutiny, not a total ban. In White’s view, the ordinance here could survive strict scrutiny. Even Scalia conceded that the state’s interest in protecting minority rights was a compelling one. The only issue was whether the ordinance was narrowly drafted to achieve that objective.  White wrote, “A narrowly drawn, content-based ordinance could never pass constitutional muster if the object of that legislation could be accomplished by banning a wider category of speech.” This approach would amount to the abandonment of strict scrutiny review, and would instead turn into a complete prohibition on content-based restrictions--it would always be possible to achieve content-neutrality by banning a wider category of speech. Instead, White argued, the only test that regulation of “unprotected speech” should have to satisfy is that it be “rationally related to a legitimate government interest” (a test imposed, he argued, by the Equal Protection Clause, not the First Amendment). By this standard, the St. Paul ordinance was clearly valid. Stevens did not concur with this particular portion of White’s holding re applying these categories (he hated the three standards of constitutional review), although he agreed with points “a” and “c” .

c.  White asserted that the case should instead have been decided on overbreadth grounds. He interpreted the Minnesota court to have ruled that the ordinance prohibited expression that “by its very utterance” causes “anger, alarm or resentment.” By this interpretation, the ordinance reached not only words tending to incite an immediate breach of the peace (words which may constitutionally be proscribed), but also words and expressive conduct that cause only hurt feelings, offense, or resentment (words and conduct which may not be constitutionally proscribed since they do not lead to an “immediate breach of peace” and do not go so far as to “inflict injury,” like “fighting words” do). Since the ordinance reached both protected and unprotected speech, it was overbroad, and thus invalid.  This is the reason he concurred with the final decision of the majority.  

3.	Stevens’ concurrence 

a.	Stevens argued that correct constitutional doctrine does not forbid content-based regulations anywhere near as broadly as the majority said that it does. “Content-based distinctions, far from being presumptively invalid, are an inevitable and indispensable aspect of a coherent understanding of the First Amendment.” For instance, the line between permissible advocacy and impermissible incitation to crime or violence depends “not merely on the setting in which the speech occurs, but also on exactly what the speaker had to say.”  The majority’s approach, paradoxically, gave fighting words greater protection than was afforded to traditionally-protected categories such as commercial speech. For instance, the Court had previously allowed a city to prohibit political advertisements in its buses while allowing other advertisements, yet the city could not now prohibit fighting words based on race or religion while leaving unregulated fighting words based on, say, union membership or homosexuality. 

1.  Dave says this goes to the heart of the disagreement between the majority and the dissent.  Stevens and White think St. Paul can determine what specific threats (i.e., gender, racial, etc.) are illegal—that is, they think St. Paul can make content-based distinctions—while Scalia does not.

b.	 Stevens agrees with White that the ordinance was overbroad.  But if
it were not overbroad, Stevens would have voted to uphold it on the grounds that it was an “evenhanded” method of banning certain fighting words.  Specifically, it is “evenhanded” in that it bars both sides of an argument from hurling words on the basis of the target’s “race, color, creed, religion or gender,” and does not favor any one side of the debate.

4.	Other comments…

a.  The Court’s approach in R.A.V. will probably invalidate those anti-hate crime statutes that, like St. Paul’s, define certain activities as a new, separate, crime. These statutes typically turn on the offender’s motive for the conduct.  Thus, an epithet, a cross-burning, or act of intimidation becomes criminal if it is committed “on account of” the victim’s race, religion, gender, etc. Since the legislature has chosen to proscribe expression motivated by some types of animus (e.g., race) but not other types of animus (e.g., sexual orientation), these statutes are presumably invalid in the same way that the St. Paul ordinance was invalid, as being non-content neutral.  Similarly, any public university’s speech code that prohibits a student from insulting or harassing another based on race, ethnicity, religion, sexual orientation, or other enumerate factors, will most likely be found unconstitutional for lack of content-neutrality.  

b.  But R.A.V. does not invalidate statutes that approach the hate-speech problem in a quite different way: these statutes punish existing crimes like vandalism and arson more seriously if the prosecution shows that the crime was motivated in part by one of the listed types of bias. An example of such a statute would be punishing D six more years for burning down a house or beating up a person solely because of that person’s (or homeowner’s) race, gender, etc.  The Court found such a “penalty enhancement” statute to be valid in Wisconsin v. Mitchell (see below).  This unanimous decision seems to validate all of the dozens of state and local hate-crime laws of the “penalty enhancement” variety throughout the country.  

G.  Wisconson v. Mitchell (1993):  D, a black teenager, was convicted of aggravated battery, a crime that in Wisconsin ordinarily carries a maximum sentence of two years in prison. However, there was strong evidence that D had selected his victim, V, based on race; for instance, he pointed to V, told his friends, “There goes a white boy; go get him,” then led them in a severe beating of V.  Apparently, D’s anger against the “white boy’ was the result of watching the movie, “Mississippi Burning.”  Under Wisconsin’s statute, the maximum
sentence for aggravated battery was increased to seven years if D “intentionally selects the person against whom the crime is committed because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person.”  Did this “penalty enhancement” statute violate D’s First Am. rights?

1.	Ct’s Holding 

a.	 No.  In an opinion written by Rehnquist, The Court unanimously held 
that this penalty-enhancement scheme did not violate D’s First Amendment rights, and thus upheld the statute.  D argued that since the only reason for the enhanced sentence was his discriminatory motive for selecting his victim, the statute punished his beliefs. Therefore, he argued, the penalty-enhancement statute was no more constitutionally acceptable than the ban on certain “fighting words” struck down in R.A.V.  But the Court rejected this argument. In doing so, the Court relied heavily on the old distinction between speech and conduct. The ordinance struck down in R.A.V. was explicitly directed at expression, whereas the penalty-enhancement statute here was aimed at conduct, and this conduct was
completely unprotected by the First Amendment. (That is, there is no constitutional protection for the act of battery, whatever the actor’s motive.)  

b.  The Court also observed that many other statutes punish a defendant based on his motive for acting. For instance, federal Title VII makes it unlawful for an employer to discriminate against an employee “because of such individual’s race, color, religion, sex, ... ”, yet that statute has
always been found to conform with the First Amendment because the federal statute focuses on conduct, not speech.

1.  But isn’t intentionally picking out someone to beat up based upon their race the same as intentionally choosing someone to fire based upon their race (as Title VII requires)?  This part of the holding is not at all persuasive. 

2.	Dave’s Comments…

a.  What would happen if the state had a statute that automatically increased punishment when vandalism involved “defacing or damaging private property by placing thereon a symbol that exposed another to threats of violence, contempt or hatred on the basis of race, color, creed or religion, including but not limited to a burning cross of Nazi swastika”?
In Vawter (N.J. 1994), the New Jersey Supreme Cout held these add-on penalties different from those in R.A.V. because the enhanced penalty in Vawter was triggered by some kind of expression accompanying, or made a part of, the (enhanced) offense, whereas the statute at issue in R.A.V. did not have a speech element.  The N.J. Supreme Court held the statute unconstitutional because it involved the First Am. and were subject-matter and viewpoint specific.

b.  Dave says the moral of Mitchell is that in R.A.V, the Pros. should have charged D with trespass, not a “hate speech” crime, and focused on D’s conduct as opposed to his speech.  That way, the Pros. could avoid a First Am. issue.     

H.  How to deal with Hate Speech in the Wake of R.A.V. and Mitchell: After
R.A.V. and Mitchell, what can cities and universities do to combat hate speech? Here are some possible approaches:

1.  Enhanced penalties for ordinary crimes: The most attractive approach is for government to enact enhanced penalties for garden-variety crimes where the choice of victim or property is motivated by racial or other specified bias. This approach was, of course, explicitly approved by the Supreme Court in Wisconsin.  Assault, battery, murder, and even trespass could have their penalties enhanced in this way as an anti-bias device. However, where the defendant’s conduct verges on pure speech (e.g., D shouts racial epithets at V), the penalty-enhancement strategy will not work (Vawter is an example of this).

2.  Common-law tort of intentional infliction of emotional distress: Another approach might be to encourage victims of hate speech to bring civil actions based upon the common-law tort of intentional infliction of emotional distress. If the speaker’s purpose is to cause psychic harm to the listener by insulting him on racial or other bias grounds, the prima facie tort is made out. For example, the black family in whose yard the cross was burned in R.A.V. certainly would seem to have a good intentional-infliction-of-emotional-distress claim against the cross-burners.  Collin hinted at this as a possible remedy for really “offensive” and “outrageous” speech.

3.   Content-Neural “Fighting Words” Statute:  As Scalia suggested in his majority opinion to R.A.V., the state could enact an ordinance prohibiting all fighting words, not merely fighting words motivated by racial, religious or other specifically-enumerated biases.

VII.  Political Advocacy and “Symbolic” Dissent

A.	Introduction:  Just as expression may consist of speech accompanied by 
conduct (i.e., a protest march), so expression may sometimes consist solely of non-verbal actions (or symbolic speech).  Symbolism can be a powerful mechanism for communicating ideas.  As Jackson put it in West VA State Bd. Of Educ., symbols are “a short cut from mind to mind.”  Symbolic conduct may convey an emotive significance that spoken words lack.  Draft card or flag burning attract public and media attention in a way that is seldom available to the soap box orator.  The U.S. Sup. Ct. has for a long time been willing to recognize that the First Am. protects certain non-verbal conduct that is symbolic speech.  But the Court has been wary of giving generalized First Am. protection to any act which is an attempt to convey a message since there is a fear that granting such protection would legitimize actions like political assassinations, Patty Hearst-type robberies, or battery (as in Mitchell), etc.  The U.S. Sup. Ct., as will be discussed in depth below, applies essentially two different tests to symbolic speech, depending on the statute prohibiting such symbolic speech.  This is what Prof. Laurence Tribe calls the “two-track analysis” of symbolic speech.  If the statute is content-neutral (as it was in O’Brien), then the O’Brien test will apply.  If the statute is content-based (as it was in Tinker and Johnson), then the Court will review the statute with the more demanding standard of strict scrutiny (“the utmost scrutiny”).  This approach—or “two-track analysis”—is set out most clearly by the Court in Johnson.  

B.	O’Brien (1969):  This case dealt with a content-neutral statute (at least, that is 
what the Court claimed).  D (O’Brien) and several others burned their draft cards on the steps of a federal courthouse, as part of a protest against the war in Vietnam. They were convicted of violating a U.S. Congressional amendment to the draft laws making it a crime to “knowingly destroy [or] mutilate” a draft card.  Some members of Congress had originally urged enactment of the amendment as a way of curbing Vietnam war protest.  Did Congress’ amendment violate D’s First Am. rights?

1.  Maj. Holding 

a.  No.  Warren wrote the majority opinion.  O’Brien contended that the burning was “symbolic speech” protected by the First Amendment. But the Court held that even if this were true, conduct combining “speech” and “non-speech” elements (symbolic conduct) could be regulated if four requirements were met:
(1) the regulation was within the constitutional power of the government; (2) it furthered an “important or substantial governmental interest”;
(3) that interest was “unrelated to the suppression of free expression”; AND 
(4) the “incidental restriction” on First Amendment freedoms was “no greater than is essential to the furtherance” of the governmental interest. The O’Brien Court found that all of these requirements were satisfied, and upheld the regulation.

1.  According to Laurence Tribe, the requirement that the governmental interest be “unrelated to the suppression of free expression” is a somewhat clumsy and conclusory way of saying that if the government is regulating the conduct without regard to the message being communicated, it is content-neutral and the less demanding O’Brien standard applies.  If government is regulating because of some harm associated with the speaker’s message, the law is content-based, O’Brien does not apply, and the regulation is subject to the “utmost scrutiny.”  

b.	The Court analyzed each of the four parts of the test to see if the speech could be restricted.

(1)	“the regulation was within the constitutional power of the government:  Congress clearly has a constitutional right to pass and enact such laws.

(2)	“it furthered an “important or substantial governmental interest”:  The draft law amendment furthered the substantial government interest in “assuring the continuing availability of issued Selective Service certificates.”

(3)	“that interest was “unrelated to the suppression of free expression”:  
“Inquiries into congressional motives or purposes are a hazardous manner…What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are too high for us to eschew guesswork…[The few outspoken Congressmen’s] concern stemmed from an apprehension that unrestrained destruction of cards would disrupt the smooth function of the Selective Service System.”  Thus, the statute on its face is valid.

1.	This is total bullshit.  A strong case could be made the Congress’ motive in enacting the ban on draft card destruction or mutilation was to suppress public dissent.  If so, the statute was not content-neutral, and would have to be analyzed with the “utmost scrutiny.”

(4) “the ‘incidental restriction’ on First Amendment freedoms was ‘no greater than is essential to the furtherance’ of the governmental interest”:	
The amendment effectively furthered the government’s interest.  There was no less restrictive way of accomplishing the objective of a smooth functioning Selective Service System. 

2.  For instance, merely requiring each person to keep the card in his possession, as the pre-1965 law did, would not be enough to prohibit A from destroying B’s draft card.

2.  Harlan’s Concurrence

a.	Harlan writes that the four-part O’Brien test, as he reads it, does not preclude a legitimate First Am. challenge to a statute “in those rare instances when an ‘incidental’ restriction upon expression, imposed by a regulation which furthers an ‘important or substantial’ government interest and satisfies the other O’Brien criteria, in effect entirely prevents the speaker from reaching a significant audience with whom he could not otherwise lawfully communicate.”  Harlan says this is not such a case since D could have conveyed his message in many other ways, such as xeroxing his draft card and burning it. 

1.  On a recent trip to CA., I saw a sign in Kinko’s informing me that it was a federal violation to xerox draft cards.  Would this change Harlan’s holding in this case that D could have conveyed his message in many other ways? 

C.	Tinker (1969):  This is the leading case extending broad First Am. protection 
to student speech in public schools.  In anticipation of such protests against the Vietnam War, a school district adopted a rule that any student wearing an armband would be asked to remove it, and if he refused he would be suspended.  Two days after the adoption of this rule, Ds (three public high school students) wore armbands to school in protest of the war and were suspended.  Ds sought an injunction from being suspended.  Did the school rule violate Ds’ First Am. rights? 

1.	Majority Opinion

a.	Yes.  Wearing armbands for the purposes of expressing certain views is the type of symbolic act that allows Ds to invoke the First Am.  Their wearing of armbands was closely akin to “pure speech,” and was not “actually or potentially disruptive conduct.”

b.	The school authorities acted out of a wish to avoid controversy which might stem from the students’ silent expression of opinion about the War.  But this fear was not a valid reason for banning the expression.  “[Mere] undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”  This fear was also not a valid reason because it caused the rule to be content-based:  the rule was not to prevent any disturbance, just disruption from protests against the War.

c.	The rule is also content-based by the fact that the school did not prohibit the wearing of all political or other controversial symbols.  For example, buttons for national political campaigns, and even the Nazi iron cross symbol, were permitted.

d.	 “It can hardly be argued that either students or teachers shed their 
constitutional rights to freedom of speech or expression at the schoolhouse gate.”  But if the students’ act “materially and substantially interfered with the requirements of appropriate discipline in the operation of the school”
not specifically because of what they wore or their protest of the Vietnam War—then the officials would have been justified in preventing the students’ act.  

1.  If the officials would have been able to show they acted for this reason, then that would have been the equivalent of showing that were content-neutral, and would thus have entitled them to the less stringent O’Brien test.  

2.  What if officials had a rule that just banned all symbols?  Dave says this is still unconstitutional under Tinker, because in order to be banned the symbols must materially and substantially interfere with school. 

e.  Since the school did not show that the armbands materially and substantially interfered with schoolwork, then the injunction is granted and Ds cannot be suspended.

2.	Black’s Dissent

a.  Black—the great First Am. absolutist—is a curmudgeon in his dissent.  He says the record shows that the armbands did disrupt the schoolwork and that the majority’s holding, which is going to begin a “new revolutionary era of permissiveness” (WOW!), invites students to be “ready, able, and willing to defy their teachers on practically all orders…this case subjects all public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students.”

D.  Johnson (1989):  This case deals with flag desecration and whether or not this symbolic expression fell under the protection of the First Am.  The Texas “flag burning” statute in Johnson made it a crime to “intentionally or knowingly desecrate...a state or national flag.”  “Desecrate” was defined to mean “deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.”  D (Johnson) participated in a political demonstration outside the 1984 Republican National Convention in Dallas. At the end of the demonstration, he unfurled an American flag, doused it with kerosene, and set it on fire. While the flag burned, the protestors chanted, “America, the red, white, and blue, we spit on you.” Johnson was charged with violating the desecration statute; at his trial, several witnesses testified that they had been seriously offended by the flag burning, and he was convicted.  Did the Texas “flag burning” statute violate the First Am.?

1.  Majority Holding (5-4)

a.	Yes.  Brennan, who wrote the majority opinion, held that D’s conduct was symbolic, and thus he was able to make a First Am. challenge.

b.	The Court then proceeded to analyze the two separate objectives that
Texas asserted it trying to achieve with the statue:  (1) preventing breaches of the peace; and (2) preserving the flag as a symbol of nationhood and national unity.

1.  Note that the Court here looked at the purpose of the law—not the motives behind the law—and in this sense this case is consistent O’Brien (where the Ct. discussed the purpose of the law—efficiency of running the draft—but refused to get involve in the “hippies-burning-cards-as-a-protest” motive behind the law.

As to objective (1), the majority simply disbelieved that preventing breaches of the peace was what had motivated Texas on these facts (since no disturbance of the peace either actually occurred or was threatened by this particular flag burning).  Specifically, the Court held that the potential for disturbance, or even violence, would be insufficient under the two-prong Brandenberg test, and the “fighting words” doctrine also did not apply because “no reasonable onlooker would have regarded Johnson’s generalized expression of dissatisfaction with U.S. policies as a direct personal insult or an invitation to exchange fisticuffs.”  Besides, TX already had a statute to deal with breaches of the peace, which suggested that the “flag burning” statute did not punish flag desecration in order to keep the peace.  

2.  This seems a little disingenuous.  Of course burning a flag could have a strong tendency to inflict injury or lead to a breach of peace under the ‘fighting words” doctrine.  What if the onlookers were veterans, which may have been very possible?   

As to objective (2), the Court—unlike with breach of peace—finds that protecting the flag as a symbol of national unity is a valid state interest.  The Court then applied the O’Brien test, which the Texas statute failed.  Why?  Because under the third part of the four-part O’Brien test—that [the state] interest was unrelated to the suppression of free expression—the Court held that the TX statute was not content-neutral.  Specifically, the Court held that the statute was content-based because it was not aimed at protecting the physical integrity of the flag in all circumstances, but only at protecting the flag against mistreatment giving serious offense to others.  “If he had burned the flag as a means of disposing of it because it was dirty or torn, he would have not been convicted of flag desecration,” but he would be convicted if he burned the flag and “caused serious offense to others.”  Because the statute was “content-based,” strict scrutiny thus applies.  The Court then wrote, “If there is a bedrock principle underlying the First Amendment, it is
that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Here, Texas’s objective—preserving the flag as a symbol of national unity— may have been worthy, even “compelling.” But the means chosen by Texas to serve that objective were not necessary ones. First, the majority didn’t believe that the nation’s belief in the cherished significance of the flag would be undermined by acts of mutilation; indeed, these acts might produce the opposite result. Second, the government could combat such acts by acts of its own, such as giving the remains of the flag a respectful burial (as one witness to Johnson’s burning did).

2.  Rehnquist’s dissent:

a.  Rehnquist wrote the principal dissent (joined by White and O’Connor). The dissenters thought that a state could prohibit the burning of a flag without violating the First Amendment prohibition on suppression of ideas. “The flag is not simply another ‘idea’ or ‘point of view’ competing for recognition in the market place of ideas.” Also, the dissenters thought that flag burning is so inherently inflammatory that it inevitably threatens a breach of the peace, and thus could be analogized to “fighting words” and deprived of First Amendment protection entirely. 

3.	Dave’s comments…

a.	Why didn’t the Court apply O’Brien to R.A.V. as it did here in Johnson?  This is a good question.  An explanation might be that there is no legit. interest in burning a cross in R.A.V. as there is in a protestor burning a flag.  But Dave says he really does not have an answer, except that Scalia had an agenda in R.A.V. and just did not apply O’Brien.  Dave says this won’t come up on exam.

b.	Dave says Johnson, like Hustler, is an example of the Court extraordinarily protecting free speech.  

E.  Approach to Political Advocacy and “Symbolic Dissent” on the Exam:  If  there is a  
 	question about symbolic speech—not pure speech—then apply the following approach: 

1.	Does the act have an element of speech?  If no, then the act is not speech and not protected under the First Am.  If yes, go to #2.

2. Do various doctrines apply to the symbolic speech (i.e., burning a flag or a draft card) that would prevent it from being protected by the First Amendment?

a.	Chaplinsky:  Obscenity, “fighting words” (but do not forget “captive audience/averting eyes” exception found in Cohen), etc.

b.	Brandenburg two-part test

If the symbolic speech meets the requirements of any of these doctrines, it is not protected by the First Am.  If it does not, go to #3.

3.   Does the symbolic speech occur in an educational context?  If so, Tinker would apply
(but also briefly apply O’Brien in #4, since this test was developed after Tinker and has been applied to symbolic speech).

4. Does the statute prohibiting the speech meet the O’Brien test?  If the third element is lacking—that is, if the regulation is content-based instead of content-neutral—then go to #5 and apply “strict scrutiny” to the statute (like the Tinker and Johnson Courts did).  If the third element is not lacking, and no other elements are lacking, then the statute is upheld under O’Brien and the speech can be prohibited.  

5.  Does the statute withstand “strict scrutiny”?  Most likely not, in which case the speech cannot be constitutionally prohibited.  If so, then the speech can be prohibited.

Johnson is a great model for seeing how the Ct applied the above approach to a statute whose purposes were to prevent symbolic speech and protect a national symbol.  

VIII.	Freedom Not to Speak

A.	Intro:  Just as there is freedom to speak, to associate, and to believe, so also there is freedom not to speak, associate or believe.  The following two cases deal with the extent to which persons may be forced to express and associate, or support the expression or association of, views which they do not hold.
  
B.	Barnette (1943):  This case deals with whether forcing a student to salute the flag violates that student’s First Am. rights.  The West VA Board of Education—in the middle of World War II—passed a resolution ordering that the salute to the flag become “a regular part of the program of activities in the public schools…provided, however, that the refusal to salute the Flag be regarded as an act of insubordination, and shall be dealt with accordingly.”  Failure to salute the flag will result in expulsion, and readmission will be denied until that student decides to salute the flag.  Ps (Jehova’s Witnesses) brought suit asking the federal district court to issue an injunction that would prevent the West VA statute from applying to them because the statute was against their religion (Ps considered the flag as an “image” within the command “Thou shalt not make unto thee any graven image”).  Ps based their suit on free speech and free exercise grounds.  The lawsuit was appealed up to the U.S. Sup. Ct.  The U.S. Sup. Ct. focused on the First Am., not the free exercise, issue:  Does the compulsory salute and pledge violate Ps’ First Am. rights?

1.	Majority opinion

a.	Yes.  Jackson, in one of his most eloquent (and in one of Dave’s favorite) opinions, held that the compulsory salute and pledge violated P’s First Am. rights.

1.  Dave says:  This decision came out in the middle of WWII!  Contrast the bravery of this decision with the cowardice of Holmes in the WWI free speech cases.

b.	Jackson held that there was no doubt that the flag salute is a form of utterance.  Here, the State requires that the individual to communicate 
By word and sign his acceptance of the political ideas it thus bespeaks.  Because it forces the individual to communicate in such a manner, there is a First Am. issue involved.

c.	Jackson explained his principle and holding, “It is now a commonplace that censorship or suppression of expression of opinion is tolerated only when the expression presents a clear and present danger. But here the power of compulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression.”

1.	Obviously, nowadays, the Brandenburg test would apply, but did not during Jackson’s ruling because the case was not decided until the 1950s.  Jackson applied the old Whitney "Clear and Present Danger" test.

d.  Jackson tied the importance of free speech to popular sovereignty.  “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters.  Compulsory unification of opinion achieves only the unanimity of the graveyard…Authority here is to be controlled by public opinion, not public opinion by authority…If there is a fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”  

2.  Frankfurter’s Dissent

a.	Frankfurter defers to the judgment of the West VA legislature.  The four previous times the Court dealt with the compulsory flag salute, the Court held it was not beyond the power of the states to enact such a salute. 

b.	He says the "Clear and Present Danger" test (and the First Am., for that matter) does not even apply here because “saluting the flag” is not a restraint on speech.

1.	Dave says this is just wrong.  

c.	If the Jahova’s witnesses have a problem saluting flag, then they can express their views in public, just like any other citizen.

C.  Abood (1977):  This case deals with union fees, but Dave says it is very important because it applies to analogous situations (bar fees, student fees, etc.).  In this case, there was a Michigan statute which permitted an agency shop arrangement whereby nonunion employees paid service charges in lieu of union fees.  A little background helps.  An “agency shop” is related to exclusive representation.  Exclusive representation means that only one union can represent the work force in a bargaining “unit.”  For ex., one union can represent the Austin Ind. School District teachers.  An election for a union is a “winner take all” election, meaning that if the union gets a majority of votes, it wins the entire election.  Thus, the minority voters lose out and sometimes do not want to support the union they did not vote for.  A union has great responsibilities that cost a lot of money.  In return for representing a “unit,” the union must represent everyone in the union, even those who did not support and did not join that union.  Nevertheless, the unions who did not join the union must still pay union due.  Why?  Because the union represents them, and if an employee did not join a union and consequently would not have to pay union dues, he would get a free ride since he would benefit from the union’s representation.  In this case, Ps, who did not belong to the union but had to pay service fees under the Michigan statute, made two arguments based on the First Am.  First, Ps claimed that it was a violation of their First Am. right to freely associate to pay service fees that were used for the costs of maintaining a collective bargaining system.  Second, Ps claimed that it was a violation of their First Am. right to freely associate to pay fees for union various social activities (i.e., political, economic, religious, etc.) which they did not ideologically agree with.  Does the Michigan statute violate the First Am. rights of employees who object to various activities financed by compulsory service fees?

1.	Majority Opinion

a.	Yes, but only with regard to compulsory fees for union social activities, not with regard to collective bargaining.  The majority deals with each of Ps’ two claims in turn.  

b.	As to Ps’ first claim that it was a First Am. violation to have to pay service fees that were used for the costs of maintaining a collective bargaining system, the Court holds otherwise.  It happens that a union does many things re collective bargaining that non-union members object to.  But the such union activity is justified by the legislative assessment of the important contribution by the union shop to the system of labor relations established by Congress.  The government interest in having labor unions and shops is compelling—labor peace—and this outweighs the individual rights [i.e., First Am. rights) of non-voting members.  Thus, the First Am. does not protect a non-union member’s being forced to pay service fees to collective bargaining.    

c.  As to Ps’ second claim that it was a First Am. violation of their First Am. right to freely associate to pay fees for union various social activities (i.e., political, economic, religious, etc.) which they did not ideologically agree with, the Court agreed.  At the heart of the First Am. is the notion that an individual should be free to believe as he will, and that in a free society one’s beliefs should be shaped by his mind and his conscience rather than coerced by the state.  This strong First Am. right is not outweighed by union spending on social activities (i.e., political candidates, political views, etc.), since these activities have nothing to do with labor piece and thus are not a compelling government interest (unlike collective bargaining).  But a union can spend dues on political candidates, political views, or toward the advancement of other ideological causes unrelated to collective bargaining as long as the employees do not object.

1.  Dave says this means that if union gives money to AFL-CIO, it better make sure it has the consent of all the non-union members. 

2.	Dave’s comments

a.	Even though the Ps in this case were government employees, the same holding would result in a case where union-members were private employees.  

b.	The implications of this case are enormous, and it has been difficult to draw the line between what activities are and are not related to collective bargaining.  For example, a national convention of unions, lobbying the state legislature for union funds to pay for collective bargaining, etc., are related to “collective bargaining” and thus can be paid for by fees from non-union members.  But lobbying expenses for the union (not specifically for the union’s collective bargaining), parties, etc., are not collective bargaining.

c.	What happens if the non-union members dispute their fees being paid for activities unrelated to collective bargaining?  A later case required the union to hire an arbitrator for the dispute and the arbitrator’s results must be made public.

d.  The two cases below, which Dave briefly mentioned in class (but we were not required to read), illustrate the far-reaching impact of Abood.

D.  Keller (briefly mentioned in class, but not assigned in reading) (1990):  This case involved compulsory fees to the state bar.  The U.S. Supreme Court held that the state bar could require lawyers to pay fees since the compelling interest—“regulating the legal profession and improving the quality of legal services”—was a compelling state interest that outweighed individual First Am. rights.  The bar could spend money on things related to this interest, such as disciplining members or proposing new ethical rules.  But the state bar could not spend money on ideological issues not related to this interest, such as gun control or a nuclear weapons freeze.  

F.	Smith (briefly mentioned in class, but not assigned in reading) (P.2
1993):  This case involved mandatory student fees being spent on various approved student political groups (i.e., College Republicans) for their partisan activities.  The CA. Ct. directly applied Abood and Keller.  It held that university can require such mandatory student fees because the compelling interest—the educational benefits to students from such groups—outweighed individual First Am. rights.  But the student fees could not be spent on lobbying the city counsel, etc., since these do not directly relate to the educational benefits of students. 

IX.  The Government as Employer (The extent to which the 
government as an employer can restrict its employees First Am. rights…)

A.  Intro.:  The cases above all dealt with general laws of general application.  These laws forbade certain speech and provided criminal or civil sanctions for such violations as might occur.  In contrast, the kinds of laws and regulations to be considered in this section do not limit what may be published or advocated by people in general.  Rather, these restrictions apply only to a particular group of  people—government employees—and they presume merely to regulate the terms of that employment and the freedom of speech of those employees, and nothing else.  Moreover, any violation of these restrictions generally do not carry any threat or find or imprisonment for the gov. employee; rather, he is just forced to end his relationship with the employer (i.e., he’s fired).  How does the First Am. apply to the government’s restricting its employees speech?  The U.S. Supreme Court has basically taken three approaches:

1.	Right-privilege/Justice Holmes approach:  The government and the individual are treated equally as free agents, mutually competent to determine their own best interests and we measure the terms of their arrangement according to general principles of the common law of contracts.  For example, in McAuliffe, Holmes wrote an opinion concerning a cop who had been fired following some public remarks critical of how the police dept. was run.  “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.  There are few jobs for hire in which the servant does not agree to suspect his constitutional right of free speech, as well as of idleness, by implied terms of the contract.  The servant cannot complain, as he takes the employment on the terms which are offered to him.”  This is yet another example of Holmes’ conservatism when it comes to the First Am.  The “right-privilege” approach was abandoned for the next approach.

2.	Frost & Frost/Justice Sutherland approach:  This approach superseded the “right-privilege” approach.  Under the Frost & Frost approach—contrary of the right-privilege approach—the common law of contracts is essentially irrelevant and cannot be invoked.  Rather, the First Am. disallows government from imposing restrictions on free speech, as much so by contract as by any other advice.  The government can place no restrictions on an employee’s speech.  The rationale here is what government cannot do to anyone directly (because barred by the First Am.), neither can it do directly by offering a “trade” (restrictions on employee’s First Am. rights in exchange for his employment with the government).

3.	Pickering approach:  This approach is somewhere in between the two above approaches.  The First Am. prevents certain government restrictions, while it allows others.  “The problem in any case is to arrive at a balance between the interests of the [government employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”  This is the famous Pickering balancing test.

B.  Pickering (1968):  This case dealt with a government employee’s speech in a public forum about an issue of public concern.  P (a public school teacher) wrote a letter to a newspaper that attacked the School Board’s funding policy for schools.  D (the School Board) fired P in response to his letter, claiming that numerous statements in his letter were false and impugned the “motives, honesty, integrity, truthfulness, responsibility and competence” of the both the Board and the school administration, damaged the reputations of Board members, disrupted faculty discipline, and fomented controversy.  Did the Board’s firing of P because of his speech of “public concern” violate P’s First Am. rights?

1.	Majority holding

a.  Yes.  The theory that government employees shall relinquish their First Am. rights they would otherwise enjoy as citizens to comment on matters of public interest [the “right-privilege” doctrine] has been unequivocally rejected.  Instead, the  government employer can only prohibit an employee from speech on an issue of “public concern” if the employer’s interest outweighs the employee’s in the following test: “The interests of the [government employee], as a citizen, in commenting upon matters of public concern balanced against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”   The Court found that P’s expression involved no impairment of the ability of superiors to maintain discipline nor did it pose any threat of disharmony among co-workers.  P’s employment relationships with D  did not involve “the kind of close working relationship for which it can persuasively be claimed that personal loyalty and confidence are necessary to their [the relationships’] proper functioning.”  Thus, the employer’s interest did not outweigh the employee’s, and P had a constitutional right to say what he said—to the extent it was correct—without being fired.  But the Court pointed out that if P had used “inside info.” or criticized his direct supervisor, then there might be a breach of efficiency and he could be fired.  This is so even if employee’s speech were true.

1.  Dave cites the Secretary of State criticizing the U.S. President as an example of speech that could be prohibited since, even though it is true, it interferes with the efficiency of the President’s foreign policy.

b.  Some of P’s statements were found to be false.  In the event that a government employee’s speech is false AND is about an issue of public concern, then the New York Times v. Sullivan “actual malice” standard will apply.  If this standard is met, then P can be fired and held liable for dams, but if it is not, then he cannot be.  Here, P claimed that the school spent more on athletics than it really had.  The Court held that D had not presented sufficient evidence to show that P had acted with “actual malice” when he made these statements.  Thus, he cannot be dismissed or sued for his statements.      

2.	White’s concurrence in part and dissent in part:  

a.	White agrees that NY Times v. Sullivan “actual malice” standard should govern in a case such as this one where there are false statements..

b.	But he would remand the case to the lower ct. to see if P had made his false statements with “actual malice.”

3.	Dave’s comments

a.	Note that under this case, the employee’s speech can be true and still be prohibited under the Pickering balancing test if the government’s interest outweighs the employee’s (Secretary of State example).

b.	This case only involves expression in a public forum about an issue of public concern.  If the employee’s expression is in a private forum and involves an issue of public concern, then Givhan applies.  If the employee’s speech does not involve an issue of “public concern,” but rather one of “private concern”?  In this event,  Connick would apply.    

C.	U.S. Civil Service v. National Assoc. of Letter Carriers (1973):  Dave assigned this case to show the Pickering test applied and had a opposite result than in the previous case.  In this case, Ps (six fed employees) filed suit, claiming that the Hatch Act violated their First Am. rights because it prevented them from working for political candidates and from running for political office.  This Act restricted the government employees not merely on the job, but also away from work and entirely on their own.  Is the Hatch Act—which prohibits federal employees from taking an active part in political management or in political campaigns—a violation of these employees’ First Am. rights?

1.	Majority opinion

a.	No.  The majority quote the Pickering balancing test above.  The Court held that the government interest in “efficiency” outweighed the employee’s First Am. rights, and thus the Act was upheld.  Specifically, the Court suggested a number of interests in favor of the government’s prohibition on the employee’s speech here.  Government employees should not administer government according to the “will of a political party.”  Further, not only the reality but the appearance to the public that government employees were not political partisans was important.  Finally, it was important that government employees be insulated from pressure to vote a certain way or perform political chores in order to curry favor with their superiors than to act out their own beliefs.

b.	The Act was not overly broad because the regulations promulgated by the Civil Service Commission were sufficiently clear and were not substantially overbroad.      

D.	Givhan (1979):  This case deal’s with a government employee’s speech in a private forum about an issue of public concern.  P (a public school teacher) made some complaints to the Board about racial discrimination.  D (the School Board) did not renew P’s contract.  Was D’s not renewing P’s contract a violation of her First Am. rights?           

1.	Majority Opinion

a.	Rehnquist, writing for the majority, held that even though P was a government employee expressing her speech about an issue of public concern in a private forum, her speech is protected under the First Am.  He cited Pickering as support, suggesting that the Pickering balancing test would apply in this situation.   

1.  If P’s speech was false, then presumably the New York Times v. Sullivan “actual malice” standard would apply as it had in Pickering, since the speech is of public concern.

E.	Connick (1983):  This case involved a government employee’s speech in a private forum about an issue of private concern.   P (an assistant DA) strongly objected to her transfer to prosecute cases is a different section of the criminal court.  She circulated a questionnaire within the office concerning transfer policies, office morale, handling grievances, employee confidence in supervisors, and pressure to work on political campaigns.  D (the DA of New Orleans and Harry Connick Jr’s dad!) terminated her supposedly because of her unwillingness to transfer (not for her speech).  Did D’s firing P violate P’s First Am. rights?

1.	Majority Opinion (5-4)

a.	No.  Writing for the majority, Justice White held that if the expression about an issue is of private concern, then the Pickering balancing test will not even apply, the speech can be constitutionally prohibited, and the employee can be fired.  But that employee’s First Am. rights are not totally absolved.  If the target of the speech—such as the government employer Connick in this case—files a libel suit against the government employee, the employer must still meet the standards for showing that the employee libeled him.  

1.  Dave says the rationale for fashioning this rule is that the Court did not want the federal bench to have a great deal of judicial oversight in cases involving “private concern.”  The Court deferred to the government offices to run their offices efficiently.

b.	Whether speech is of public or private concern is to be determined by the “content, form, and context” of a given statement (note that this test comes from Dun & Bradstreet) and whether or not it involves “any matter of political, social, or other concern to the community.”  The Court applied this test to P’s questionnaire, and held that all of the questions, except one, were of “private concern.”  Why were those questions of “private concern”?  The Court applied the above test and held that P did inform the public that the DA’s Office was not discharging its governmental responsibilities in investigating and prosecuting criminal cases.  Nor did she bring to light actual or potential wrongdoing.  While discipline and morale in the workplace are related to an agency’s efficient performance of it duties, the Myers’ questionnaire is not to evaluate the performance of the office but rather to gather ammunition for another round of controversy with her supervisors.  But one question re “the pressure to work in political campaigns on behalf of office supported candidates” was held to involve a matter of public concern.  The Court—because this was speech of public concern made in a private forum—applied the Pickering balancing test (as it did in Givhan).  The Court found that the questionnaire touched upon public concern “only in the most limited sense,” and that it nevertheless substantially interfered with the efficiency of the office.  Under Pickering, P’s First Am. right to speak on an issue of public concern was outweighed by D’s right to run his office efficiently.      

c.  The majority held that, under Pickering, speech does not have to have allow “events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest.”  He can take action before this occurs.     

2.	Brennan-Marshall-Blackmun-Stevens Dissent

a.  The dissent formulates a different def. of what constitutes “public concern”: “Subject discussed that could reasonably be expected to be of interest to persons seeking to develop informed opinions about the matter.”  The First Am. protected P’s entire questionnaire under this def.
		
b.  The majority incorrectly reads Pickering and allows for a “mere apprehension of an employee’s speech” to justify suppression of that speech.

3.	Dave’s Comments

a.  It was a mistake for the Court not to apply Mt. Healthy here to the question re an issue of public concern (see below).  D claimed he fired P because of her refusal to accept a transfer, but the Court should have examined whether the speech was a “substantial factor” in P’s being fired.

F.	Mt. Healthy City School District Board of Education (1977):  This case deals with “mixed motives”—when the government employee claims that the employer fired him for speech and non-speech reasons.  P (a non-tenured public school teacher who was hired on a contractual basis and who was a president of the Teachers Association) was involved in several incidents.  He argued with a teacher which culminated in the teacher slapping him, and insisted on punishment for that teacher (which resulted in both teachers’ suspension); he got an argument in the school cafeteria about the small amount of food he was served; he called students “sons of bitches”; and he made obscene gestures at two girls who failed to obey him.  The principal of the school at which P worked circulated a memo to various teachers relating to teacher dress and appearance.  P conveyed the substance of the inside memo to a disc jockey on a radio station, who promptly announced the adoption of the dress code.  D (the Board) refused to renew P’s teaching contract, claiming P’s overall “notable lack of tact in handling professional matters” and P’s improperly revealing the memo to the disc jockey.  P sued D, claiming that not renewing his contract based on the radio station incident was a violation of his First Am. rights.  Was not renewing P’s contract, based on speech and non-speech reasons, a violation of P’s First Am. rights? 

1.	Ct’s Holding

a.	No.  Not renewing P’s contract was not a violation of P’s First Am. rights because P’s speech to the radio station was not a substantial factor in his getting fired.  When there are mixed motives—speech and non-speech reasons for an employee being fired—then the following test will apply:  P must show that his constitutionally-protected speech was a “substantial factor” in his being terminated, and then the District Court must determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to P’s termination even in the absence of the protected First Am. conduct.

1.	Although the Court remanded this case to the Tr. Ct. to apply the above test,
it seems clear here that D’s constitutionally-protected speech to the radio station was not a “substantial factor” in his being terminated.  His speech was probably of “public concern,” given the “content, form, and context” and that it involved “a matter of political social, or other concern to the community.  Since it was a public forum, Pickering holds that the Pickering test will apply: The interests of the [government employee], as a citizen, in commenting upon matters of public concern balanced against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.  Here, the government’s interest probably outweighs the employee’s.  Even though there is no evidence in the case to suggest that leaking the letter interfered with the efficiency of the school district, the Pickering Court suggested that using “inside info.” (i.e., a letter) could lead to a breach of efficiency that would allow the government to fire the employee.  Since there is no false speech, NY Times v. Sullivan would not apply.  Now, given that P’s speech is not protected under Pickering, it clearly cannot be a “substantial factor” in his being terminated under Mt. Healthy.  But assuming, arguendo, that his speech is protected under Pickering, he still could not show that his speech was a “substantial factor” in his being fired since plenty of other episodes (i.e., his fighting with another teacher, his cursing at students, etc.) justified his firing.       

2.	Dave’s Comments

a.  Mt. Healthy has been extended to the labor context, where government employees argued that the substantial factor for their termination was their constitutionally-protected right to associate by belonging to a union, not for some other reason.

G.  Approach Government Employees’ Speech on the Exam under Pickering, Givhan, Connick, and Mt. Healthy:

1.	Determine if the speech involved an issue of public concern.  To determine this, it is necessary to look at the “content, form, and context” of a given statement (note that this test comes from Dun & Bradstreet) and whether or not it involves “any matter of political, social, or other concern to the community.”  If under this test the speech did not deal with an issue of “public concern,” then Connick holds that Pickering does not apply and the speech can be prohibited.  If any part of the speech (i.e., a portion of a letter) did involve an issue of public concern, then go to the next question. 

2.	Determine what the forum of expression was:

a.	Public forum (i.e., a newspaper article or park):  Pickering holds that speech made in a public forum that involves an issue of public concern requires that the Pickering balancing test be used. “The interests of the [government employee], as a citizen, in commenting upon matters of public concern balanced against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”  If the government employer’s interest outweighs the employee’s, then the employee’s speech can be prohibited and he can be properly fired, even his speech is true.  As part of this balancing, the court considers factors such as: how much the employee’s speech disrupted the efficiency of the workplace, whether the employee had access to “inside info.” that affected his speech, etc.

b.	Private forum (i.e., a letter to the employer, a questionnaire circulated in the office, etc.):  Givhan holds that in this situation, the Pickering balancing test (quoted above) will still apply even though the forum was private. If the government employer’s interest outweighs the employee’s, then the employee’s speech can be prohibited and he can be properly fired, even his speech is true.       

If the answer is that the government employer’s interest in efficiency outweighs the employee’s, then go to #3 to see if he might be able to attain dams for defamation.  If the answer is that the employer’s interest does not outweigh the employee’s, then go to #3 to see if the employee can still be fired and held liable for dams.   

3.	Was any of employee’s statements dealing with an issue of public 
concern false?  Pickering held that the NY Times “actual malice” standard would apply here.  If this standard is met, then P can be fired and held liable for dams, but if it is not, then he cannot be.  Go to #4, BUT ONLY IF IT APPLIES.

4.	Mixed Motives and Mt. Healthy:  This step only applies when there are mixed motives in P’s being fired—that is, when there are speech and non-speech reasons for P’s being terminated.  If mixed motives are involved, begin with the Mt. Healthy test.  This test is: P must show that his constitutionally-protected speech was a “substantial factor” in his being terminated, and then the District Court must determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to P’s termination even in the absence of the protected First Am. conduct.  If P’s speech was a “substantial factor” in his termination, then apply Pickering (or whatever test  applies) to see if the employee could have still been fired.  

G.	 Rust v. Sullivan (1991):  This is a case that dealt with a federally funded program which explicitly limited the speech of the employees in the program as a condition of employment.  This case (and not the above cases) is only applied if the government restricts the speech of employees as part of a condition of receiving funding.  Thus, this case, unlike Pickering et. al., does not deal with how an employee’s speech affected the efficiency of the workplace.  (Title X grantees/doctors) challenged Title X of the Public Health Service Act (enacted in 1970) on the grounds that its provision—“none of the funds appropriated under this subchapter shall be used in programs where abortion is a method family planning”—violated Ps’ First Am. rights along with the First Am. rights of the patients and staff at a Title X clinic.  Specifically, Ps argue that the Title X provision impermissibly discriminated because it was based on viewpoint, since “all discussion about abortion as a lawful option” was prohibited, while discussion about other family planning options were allowed.  Did the Title X provision violate Ps’ First Am. rights by imposing “viewpoint-discriminatory conditions on government subsidies”?

1. Majority Opinion

a.	No.  Rehnquist, writing for the majority, held that it was not viewpoint discrimination for the government to prohibit certain types of speech (i.e., about abortion) as a condition for receiving federal funding.  Renhquist relied principally on a distinction between a Title X “project” (such as the program) and a Title X “grantee” (the Drs and staff who work in the program).  The government, when appropriating public funds, has the power to establish the limits of the government project.  But this does not require the grantee to totally give up abortion-related speech, since the grantee can continue to speak about abortion, perform abortions, etc., “off the job” (separate and independent from the Title X project).

1.	Dave says that Rehnquist here is essentially adopting the old “right-privilege” approach.  Rehnquist would say his approach is different since the “right-privilege” doctrine precludes speech 24 hrs. a day, while his does not.  This is a difference, true, but to me it’s not very persuasive.  Are Drs really going to counsel abortion at 9:00 P.M. on a Thursday night after expending all of their energy on a long shift at a Title X clinic?  I doubt it.

b.	The Court then goes on to point out that the government cannot always limit speech to projects it funds, and the Court lists some examples.  The government, just because it funds a traditional open forum (i.e., a park), cannot condition funding on certain types of speech in that park.  In a university, where the free expression is fundamental, the government cannot condition funding on prohibition of certain speech.  Then the Court deals with the historic openness between the Dr. and patient in their relationship:  “It could be argued by analogy that traditional relationship such as the Dr./Patient relationship should enjoy protection under the First Am. from government regulation, even when subsidized by the government.  We need not resolve that question here because the Title X program regulations do not significantly impinge on the Dr./Patient relationship” for a few reasons.  First, nothing in the regulations requires a Dr. to represent as his own opinion any opinion that he does hold.  Second, the program does not provide post-conception medical care, and thus the Dr.’s silence with regard to abortion cannot reasonably be thought to mislead a client.  Finally, a Dr. is always free to make clear that advice regarding abortion is simply beyond the scope of the post-conception program. 

1.	Dave says Rehnquist, according to his own logic, would probably find that there could not fund a medical school and condition on funding on prohibiting speech re abortion.

2.	Speech in a university must be related to the function of the situation.  Thus, there can be no in-depth discussion of guns in a literature class. 

3.	Does the majority say profs have more free speech than Drs?  No, because the Dr. may be a prof in a federally-funded med school.

4.	This portion of the opinion is a challenge to ex-UT Law Professor Yudof’s view that a state can restrict speech in a public university if: (1) the state is clear about the purposes of the school (i.e., it is a capitalist university) AND (2) Speech restrictions are relevant to the purpose.

2.  Blackmun-Marshall-Stevens Dissent

a.	“Until today, the Court has never upheld view-point based suppression of speech simply because that suppression was a condition upon the acceptance of public funds.”

b.	The Title X provision is clearly viewpoint discrimination since it allows counseling on a wide range of family planning topics, except abortion.  And government should not be allowed to condition funding on prohibitions of viewpoint.  Clearly, the government could not condition funding on racial discrimination.

c.	The majority is returning to the “right-privilege” doctrine of the olden days.

d.	The Dr./Patient relationship requires that Dr. not be prohibited from speaking about any matters if they are in the best interest of the patient.

3.  Dave’s Comments…

a.  The Pickering balancing test does not apply here because efficiency of the workplace is not an issue.  Besides, it is debatable if abortion counseling even concerns an issue of “public concern.”

X.  The Government’s Management of Public Property (or the extent to which the government can limit free speech on government property)      
            
A.	Intro.:  Just as with the government as employer, the U.S. Supreme Court has taken various approaches to the government as manager of public property.  Holmes’ view on the government as manager of public property in Davis mirrored his view as government as employer:  “For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.  [Just as] the Legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses, so it may take the lesser step of limiting the public use to certain purposes.”  Once again, this is Holmes taking a very narrow view on free speech.  Just as Pickering superseded Holmes’ endorsement of the “rights-privilege” doctrine, Hague superseded Holmes’ view of the government’s management of public property.         

B.	Hague (1939):  This case superseded Holmes’ narrow view of speech on public property.  Ps (members of AFL-CIO) wanted to have a peaceful demonstration in a park to explain the purposes of the National Labor Relations Act.  A New Jersey ordinance required: “No public parades or public assembly in or upon the public streets, highways, public parks or public buildings of Jersey City shall take place or be conducted until a permit shall be obtained from the Director of Public Safety.”  Ps applied for a permit, but the DPS repeatedly denied them.  Did denying Ps the permit to speak on public property violate their First Am. rights?

1.	Majority Opinion

a.	Yes.  “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.  [They have] been a part of the privileges, immunities, rights, and liberties of citizens.  [These] must not, in the guise of a regulation, be abridged or denied…We…hold…the [NJ] ordinance void on its face.  It does not make comfort or convenience [i.e., not blocking traffic] in the use of streets or parks the standard of official action.  It enables the DPS to refuse a permit on the mere opinion that such refusal will prevent ‘riots, disturbances or disorderly assemblage.’”  Ps can hold a meeting without a permit.

1.	Even though the majority applied the First Am. via the P&I clause of the Fourteenth Am., Stone’s approach of applying the DP clause in his concurrence has become the modern-day approach.  (Remember when Harlan in Patterson argued the P&I clause should apply to the First Am.).

2.	This case stands for the proposition that government does not have unlimited authority to limit the use of public property (as Holmes’ claimed).

C.	Perry Education Association (1983):  This case involved whether or not a public school’s limiting the use of its internal mailing system to one union violated the other union’s First Am. rights, and the case has a really great discussion of the different types of public property.  In this case, P (the Perry Local Educator’s Association) sued because in 1977 the Board of Education gave Perry Education Association—the arch-rival teacher’s association of the PLEA—exclusive access to the interschool mail system and teacher mailboxes.  Before this occurred, both PELA and PEA had access to the interschool mail system and mailboxes.  The School Board said they gave only PEA access because PEA, in 1977, won the union election and was certified as the exclusive representative of the teachers (whereas before both unions represented the teachers).  Is the First Am. violated when a union that has been elected by public school teachers as their exclusive bargaining representative is granted access to certain means of communication (i.e., the interschool mail system), while such access is denied to rival union?

1.	Majority Opinion (5-4)

a.	No.  The interschool mail system was a special type of government property—neither a traditional nor a state created forum—and the government can limit this property to its intended purposes.  The Court also held that the restriction on mailing is content-neutral because it depends on the status, not viewpoint of an officially-designated union (like the PEA).

b.	The Court, in reaching its holding, set out three very important categories of property and defined them: a traditional public forum, a state-created public forum, and a property that is neither one of these.

A traditional public forum:  Places historically have been devoted to assembly and debate.  The rights of the state to limit expressive activity in these places are sharply circumscribed.  These places include streets and parks.  For the State to enforce a content-based exclusion, then it must pass strict scrutiny (the State must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end).  Examples of a compelling state interest for content-based regulation of speech would be “fighting words,” discussing national security interests, etc.  For the state to enforce content-neutral regulations—time, place, and manner of expression—then the regs  must pass heightened scrutiny (they must be narrowly tailored to serve a significant government interest) AND leave open ample alternative channels of communication.  An example of such content-neutral regs would be no rally in the street (since this would disrupt traffic), no rally early on weekday mornings (since this could distract morning traffic and lead to traffic jams), no rally while another demonstration is going on (for security reasons), etc.

State-created public forum:  This is public property which has not been traditionally devoted to assembly or debate, but which the state has opened up for use by the public as a place for expressive activity.  Examples include school board meetings, municipal theaters, etc.  If the forum has been generally open to the public, the state cannot create any content-based prohibitions unless it meets the same strict scrutiny test that traditional state forums must meet.  But a state-created forum can be limited to certain groups of the public—as long as the forum was originally created for these limited groups—such as parents of school children only being allowed to attend the school board meeting.  Reasonable time, place, and manner regulations are permissible.  Once a state-created public forum has been created, the state can close the entire forum (another difference between this and a traditional public forum).

1.	Dave says it can sometimes be difficult to distinguish a state forum from a traditional public forum.  What is the “West Mall” on the UT campus?

2.  Madison JOINT School District dealt with a state-created public forum.  The District originally had school board meetings       
open to the general public.  The District then tried to narrow the school board meetings to exclude.  The Sup. Ct. held that this was unconstitutional because the meetings, which were state-create public forums, were originally opened to the general public and cannot be narrowed unless the limitation is content-neutral (time, place, and manner) or, if content-based, there is a compelling interest.  But had the meetings been narrowed to certain groups in the first place (even if content-based), then there would have been no First Am. violation.

Forum neither traditional nor state-created:  This is public property which is not by tradition or designation a forum for public communication.  Examples include jails, military bases, interschool mails, etc.  The state can impose content-neutral regulations—such as time, place, and manner restrictions on speech—and can reserve the forum for its intended purposes (i.e., allow a military base to include only speech about the military).  But the state cannot have content-based restrictions on speech, even in this kind of forum, unless they pass “strict scrutiny.”  Thus, a military base cannot have a content-based restriction such as, “Any speech regarding the Democrats is not allowed,” since this is in no way related to the purpose of the base.

c.	The Court held that the interschool mailing system was neither a traditional nor state-created forum.  There is no indication that the school mailboxes and interschool delivery system are open for use by the general public.  It is true that some outside organizations, such as the YMCA, Cub Scouts, and other civic organizations used the delivery system, this does not transform government prop into a public forum (since the general public must have access).  

d.	The school’s allowing the PEA in 1977 to exclusively use its interschool mailing system does not constitute viewpoint discrimination.  The school gave the PEA and not the PLEA this exclusive use because of its status as the union representing the teachers rather than on that union’s views.  

e.	Giving this exclusive use to the PEA is reasonable because it relates to the intended use of the property.  Use of school mail facilities enables PEA to perform effectively its obligations as exclusive reps of all the teachers and also allows for labor peace.  Since PLEA, unlike PEA, does not have official responsibility in connection with the District, the PLEA need not be entitled to the same rights of access to the interschool mailing system.   

f.	Finally, substantial alternative channels remain open for union-teacher communication to take place.  The PLEA can use bulleting boards, the U.S. mail, etc.

2.  Brennan-Marshall-Powell-Stevens Dissent

a.	Brennan, writing for the dissent, vigorously disputed the majority’s conclusion that the rule was content-neutral.  They argued that an intent to discriminate “can be inferred from the effect of the policy, which is to deny an effective channel of communication to PLEA.”  Because the rule was content-based, it should be struck down under the First Am. 

D.	Adderly (1966):  This case involved a jailhouse, and whether a rule preventing protests in this forum was a violation of the First Am.  Ps (students) protested on a jail driveway, which they blocked, and on an adjacent jail’s premises.  They sang, danced, and clapped against their schoolmates’ arrest.  They were warned that they were trespassing, but refused to leave.  They were arrested and convicted under a Florida trespass statute for “trespass with a malicious and mischievous intent.”  Did this statute violate Ps’ First Am. right to protest on jail grounds?

1.	Majority Opinion (5-4)

a.	No.  There is no First Am. violation because the jail and its surrounding premises are “nonpublic forums” [same category as the interschool mailing system above].  They are nonpublic forums because they serve the limited function of housing prisoners (“security purposes”).  Because they are neither historical or state-created forums, the state can impose content-neutral regulations—such as time, place, and manner restrictions on speech—and can reserve the forum for its intended purposes.  The state cannot have content-based restrictions on speech, even in this kind of forum, unless they pass “strict scrutiny.”  Here, the state had warned Ps to leave the property, which “no less than a private property owner” the state had the right to do, and Ps were arrested because of their refusal to leave, not specifically because of their views or objectives (content-based).  

b.	Ps cited Edwards in support of their First Am. right to protest.  Edwards involved persons demonstrating on the South Carolina State Capitol grounds against the state’s segregation policies.  But that case is distinguishable from this one.

There, the protestors were charged with the South Carolina common-law crime of breach of peace.  That was an indefinite, loose and broad charge, and was thus struck down for being too broad.  Here, the Florida trespass statute is not broad.  It is aimed at conduct of one limited kind—trespassing upon the property of another with a malicious or mischievous intent.  

More importantly, the capitol grounds were a traditional public forum.  But the jails were a non-public forum which have as their goal “security purposes.”

2.	Douglas-Brennan-Fortas-Chief Justice Dissent

a.	The curtilage of a jailhouse—like that of a courthouse or statehouse—is a seat of government, and thus an obvious center for protest.  It is a traditional public forum.  The jailhouse grounds had not been marked with any “no trespassing” sign, and only the sheriff’s fiat transformed Ps’ lawful conduct into an unlawful trespass.  

b.	The majority is simply wrong, and forgetful of Hague, when it reverts back to the old Holmes’ view that the government, like a private property owner, can control what occurs on its property.  There may be some non-public forums—such as the Senate gallery—that can restrict speech.  But narrowly-tailored statutes are required to specifically achieve this.  Some “custodian” of public property (like the sheriff in this case) cannot have the power to capriciously decide who shall be allowed to, and who shall be prevented from, expressing their views.
  
c.	Ps protested with no violence; there was no attempted jail break; no storming the prison; and they did not interfere with people or traffic (despite the majority’s contention that Ps “blocked the driveway”).  Thus, they did not interfere at all with the alleged jailhouse purpose of “security.”

d.	The sheriff tried to argue Ps trespassed, but he clearly prohibited Ps’ speech based on their viewpoint.

3.	Other comments

a.	This case is important because it established “nonpublic forums,” a category of government property that the court later described and used, such as in the Perry case.

E.	Widmar (1981):  This case involved a public university making its facilities available to religious groups.  A state university made its facilities generally available for registered student groups, but refused to allow a student religious group to meet anywhere on the campus.  This refusal was part of a general policy prohibiting the use of university facilities “for purposes of religious worship or religious teaching.”  Ps, members of a religious group, brought suit on First Am. grounds.  Did the university’s policy violate Ps’ First Am. rights?

1.	Majority (we did not read this portion of the opinion, only Stevens’ concurrence)

a.	Yes.  The ban violated the religious group’s First Am. right of free speech and association.  The university is a public forum.  Because the denial of the facilities was content-based, it could be upheld only if shown to pass strict scrutiny (have a “compelling interest” and be narrowly drawn to achieve that interest).  Here, the university, with its argument that it was upholding the separation of church and state, could not make this showing.

2.	Stevens’ Concurrence

a.	Stevens argues that the three categories thus far established—
traditional public forum, state-created public forum, and a non-public forum, along with content-based and content-neutral—are far too complicated.  The university is not a public forum, because it is not open to the public like a street or park is.  Furthermore, there is no “content-neutrality” in a university.  Universities decide (and should be allowed to decide) what books to order, which profs to hire, etc., all of which are non-neutral decisions.  Similarly, a university should decide what its facilities will be used for.  Their decision should not be encumbered by ambiguous judicial terms like, “compelling state interest.”  But this decision must have a valid reason and cannot be solely based on viewpoint [this seems to be a lower standard than “compelling interest”].  In this case, there is no valid reason.  “If school facilities may be used to discuss anticlerical doctrine, it seems to me that comparable use by a group desiring to express a belief in God must also be permitted.  The fact that their expression of faith includes ceremonial conduct is not, in my opinion, a sufficient reason for suppressing their discussion entirely.”

1.  Dave says the purpose of including Stevens’ concurrence is just to illustrate an alternative approach than the majority.  If the issue re government as manager of public property arises, refer in passing to Stevens’ on the exam, and briefly apply the facts to his approach.  But emphasize the traditional, majority approach, best illustrated in Perry.      

2.  If the school had not used the “firewall” justification, but another one (such as not enough time and space to allow religious groups to use rooms), would this meet Stevens’ test?  This seems to be analogous to a library saying it has to make content-based judgments because of its limited financial resources.  

3.	Dave’s Comments

a.	Dave says the purpose of including Stevens’ concurrence is just to illustrate an alternative approach than the majority.  If the issue re government as manager of public property arises, refer in passing to Stevens’ on the exam, and briefly apply the facts to his approach.  But emphasize the traditional, majority approach, best illustrated in Perry.

F.	Exam Approach

1.	First, test if the government is restricting speech on public property.  If so, then cite to Hayne, which overturned Holmes’ traditional view of property.  Then, get on with the real answer and classify the property in the exam question according to the three types of property described in Perry.

2.	After classifying the property—which can sometimes be difficult—see if the government meets the criteria in order to regulate that specific type of property.  

3.	Finally, briefly apply Stevens’ own approach (see above for description of his approach).

XI.	 Access to the Mass Media 

This chapter was not outlined due to time constraints…

XI.	Campaign Finance

A.  Intro.:  In the modern political campaign, speech and the expenditure of money seem inevitably to go hand in hand. Whether money is spent by a private citizen who is contributing to a candidate, by a political action committee which runs advertisements backing or opposing certain candidates, or by a candidate himself, campaign spending has a strong expression component. Yet if corruption and the appearance of corruption are to be curbed, and if the cynical view that the richest candidate generally wins is to be proved wrong, some sorts of limits on campaign spending are probably necessary.  In a series of cases beginning with Buckley in 1976, the U.S. Supreme Court has attempted to work out a line dividing those types of election spending which the states or the federal government may prohibit from those which are constitutionally-protected. While this line is a somewhat blurry one, two basic principles have emerged: (1) contributions made by individuals or groups to individual candidates or to political action committees may be limited, but independent expenditures by individuals, and expenditures by candidates from their own funds, may not be limited; and (2) contributions that are made in support of or in opposition to ballot measures (as opposed to candidacies) may not be limited.

B.  Buckley (1976): The first, and most important, campaign financing case, in which the Supreme Court examined whether or not the Federal Campaign Act of 1971, as amended in 1974 (shortly after Watergate), violated the First Am. of financial contributors.  Dave says Buckley is one of the most poorly written and reasoned cases of the Supreme Court. Of the several provisions of the Act whose constitutionality the Court reviewed in Buckley, two are of concern to us here: (1) the Act’s limitation on individual political contributions to $1,000 to any single candidate per election (with a corollary $25,000 limit on aggregate contributions by any one individual in any year); and (2) its limitations on expenditures, including a $1,000-per-year limit on independent expenditures by individuals and groups on behalf of a “clearly identified” candidate, various limits on expenditures by a candidate from personal or family funds, and various limits on total campaign spending.  Was the Act a violation of contributors’ First Am. rights?

1.	Per curiam opinion

a.	Yes, in part.  In sum, the Court’s per curiam decision sustained the 
contribution limits, but found unconstitutional the limits on independent expenditures by individuals, on expenditures by a candidate from personal or family funds, and on aggregate campaign spending.

b.   The Buckley Court also rejected attempts by the defenders of the Act’s spending limits to portray these as merely “reasonable time, place and manner regulations.”  These spending limitations imposed “direct quantity restrictions on political communication and association,” and thus went beyond mere regulation of time, place and manner.

c.  The Court’s opinion took pains to distinguish the Act from the draft-card-burning prohibition upheld in U.S. v. O’Brien. Recall that the third part of the four-part O’Brien test distinguished between speech-related conduct which is regulated because of harms independent of the message conveyed (a class into which the O’Brien Court found that the ban on draft-card burning fell) and regulations which suppress communications because their content is deemed harmful. The Court in Buckley held that the federal government’s interest in regulating contributions and expenditures “arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful,” making this situation different from that in O’Brien. Because the governmental interest was directed at allegedly harmful content, it was content-based and required “exacting scrutiny.”

d.  The Court then applied its “closest scrutiny” to the contribution limits.
Although these limits placed some quantity restriction on political expression, the restriction was only “marginal.” Since a dollar contribution does not communicate the “underlying basis” for the contributor’s support of the candidate, the amount of “communication” being done by the contributor does not increase as the size of the contribution increases – whatever expression takes place when a contribution is made derives from the “undifferentiated, symbolic act of contributing,” whose symbolism is largely independent of dollar amount. (The Court conceded that contributions may result in political expression if they are spent by a candidate or campaign committee to present views to the voters, but this fact was irrelevant for First Am. purposes, since “[t]he transformation of contributions into political debate involves speech by someone other than the contributors”).  On the other side of the scale, the governmental interest supporting the limits was a powerful one, that of limiting the actuality and appearance of corruption resulting from large individual contributions, which are sometimes made to secure a political quid pro quo from the candidate. No less restrictive alternative would have been adequate; for instance, anti-bribery and disclosure laws could not deal fully with the need to root out all apparent as well as actual opportunity for corruption. Nor was the means-end fit too loose because most large contributors do not seek improper influence, and because a higher limit than $1,000 would still have been low enough to prevent any contributor from exercising improper influence – again, the interest in avoiding even the appearance of impropriety justified a somewhat loose fit.

e.  By contrast, the Court found that the limitations on expenditures by individuals acting independently from candidates imposed “direct and substantial restraints on the quantity of political speech,” and limited political expression “at the core ... of First Amendment freedoms.” For instance, the restrictions would have made it impossible for an individual or association legally to take out a single quarter-page advertisement backing a particular candidate in a big-city news paper.  When viewed with the requisite “exacting scrutiny,” the governmental interest in combating corruption, asserted in support of the limits on expenditures by individuals, was inadequate. First, not all apparent or actual quid pro quo deals would be eliminated, since the limits applied only to expenditures “advocating the election or defeat” of a “clearly identified candidate,” so that ads could be run supporting the candidate’s views (as part of a quid pro quo), without expressly advocating his election. Secondly, the expenditure limits only applied where the expenditures were made totally independently of the candidate and his campaign; spending which was controlled by or coordinated with the campaign was treated as a contribution. Where such complete independence existed, a carefully-orchestrated quid pro qua was less likely, the Court concluded.  The Court rejected another proffered justification for the limits on individuals’ expenditures: the interest in “equalizing the relative ability of individuals and groups to influence the outcome of elections.” The First Am., in the Court’s view, simply does not permit government to “restrict the speech of some elements of our society in order to enhance the relative voices of others.”

f.  The Court also struck down limits on the amount that a candidate may spend from his own personal or family funds. The interest in preventing actual or apparent corruption did not apply to this situation, since obviously a candidate would not bribe himself. And the interest in equalizing the resources of competing candidates was not well served by the spending limit, since a candidate who spent less of his own money than his opponent could nonetheless out spend the latter by raising more money from outside sources. Therefore, no state interest was sufficient to outweigh the candidate’s own “First Amendment right to engage in the discussion of public issues and vigorously and tirelessly advocate his own election.... ”

g.  Finally, the Court struck down limits on what a candidate could spend from all sources combined. Candidates have a First Amendment right to spend as much as they wish to promote their own political views, and the governmental interest in curbing the skyrocketing costs of political campaigns is not sufficient to outweigh that right, the Court held. 

2.	Burger’s Concurring in part and dissenting in part:  Only three Justices joined the majority’s opinion in its entirety.  Five others concurred in part and dissented in part, and one did not participate.  

a.   Justice Burger dissented from the plurality’s upholding of the contribution limits. In his view, contributions, no less than expenditures, were ways of communicating. Contributions were simply a way of “pooling” money, and were thus associational activities comparable to, say, volunteer work;  therefore, freedom of association as well as freedom of speech required that these not be restricted unless there was no less-restrictive satisfactory alternative. In Burger’s view, anti-bribery laws and disclosure requirements could solve the corruption problems inherent in large contributions just as they could in the expenditure context.

3.	White’s concurring in part and dissenting in part

a.	 Justice White, like Justice Burger, saw no principled distinction between expenditures and contributions. But in sharp contrast to Justice Burger’s view, White believed that both the contribution and expenditure limits were valid. He disagreed with the plurality’s equation of money with speech. Also, he would have deferred much more completely to Congress’ superior knowledge of what motivates politicians, and to its conclusion that expenditure limits on both private citizens and candidates are needed to accomplish the goals of preventing bribery and corruption and equalizing “access to the political area.”

4.	Marshall’s concurrence  FILL THESE IN

5.	Rehnquist’s concurring in part and dissenting in part

C.  Exam Approach:  I found Buckley to be a difficult case, and basically referred to the Emmanuel’s for a summary of the case.  Many of us figured the case would never appear on Rabban’s exam, so we did not spend a great deal of time studying for it.  Fortunately, we were correct. 

XII.	Obscenity

A.  Intro.:  Obscenity, like defamation and “fighting words,” was listed in Chaplinsky as being a type of speech unprotected by the First Am. because obscenity’s slight social value is not outweighed by protecting it under the First Am.  But again, as with defamation, the states are no longer completely free to define obscenity however they wish, and to then punish the distribution or sale of the material so defined.  Instead, the Supreme Court has attempted to lay down specific guidelines for what materials may, compatibly with the First Amendment, be punished as “obscene.”  In the first half of the twentieth century, a number of famous books, including Henry Miller’s sublime “kick in the pants of God” entitled Tropic of Cancer, all fell afoul of the obscenity laws.  In determining whether a work was obscene, American courts followed the English case of Regina v. Hicklin.  The Hicklin test was:  Whether the tendency of the material charged as obscenity is to deprave and corrupt those whose minds are open to this kind influence and whose had such matter is likely to fall into.  Note the “bad tendency” element of the Hicklen test.  Such a test could result in an entire work being censored, even though only just a few passages of that work were “obscene” (an example being Walt Whitman’s ode to democracy and youthful male beauty entitled Leaves of Grass).  It was not until 1957 with the Roth case that the U.S. Supreme Court attempted to develop a new definition of obscenity.  But the Court’s various attempts in the past few decades to define “obscenity” has turned out to be specific enough to give legislatures and lower courts reliable guidance about what materials are covered. Therefore, the Supreme Court has remained very much in the business of deciding, case by case, whether given materials meet the Court’s definition.

a.  Roth (1957):  This controversial case attempted to develop a new definition of obscenity different from the Hicklen test.  D (Roth) conducted a business in New York in the publication and sale of books, photos and mags.  He was convicted by a jury of mailing obscene circulars and ads, and an obscene book, in violation of a federal obscenity statute.  This statute held that the material must “tend to stir sexual impulses and lead to sexually impure thoughts.”  Was this federal statute a violation of P’s First Am. rights?  Another D (Alberts), in CA, sold certain materials that were found obscene because they violated a state obscenity statute.  This statute defined obscenity as materials that “have a tendency to deprave or corrupt its readers by exciting lascivious thoughts or arousing lustful desire.”  Does this state statute violate P’s First Am. rights? 

1.	 Majority opinion

a.	No, neither statute violate the First Am.  Brennan, writing for the majority, confirmed what Chaplinsky had suggested—that “obscenity is not within the area of constitutionally protected speech or press.”  But the Court also held that First Amendment concerns limit the acceptable definition of “obscenity” (and the federal statute met this limit).

b.	The Court formulated its own definition of “obscenity”:  Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.  The Court purported to be repeating the definition of obscenity laid down in certain prior lower-court cases. However, the definition seems to have been intended as a minimal constitutional standard; that is, the state could not, consistent with the First Amendment, ban a given item as obscene unless it satisfied Roth definition “obscenity.”

1.  Note the major difference between the Roth test and Hicklen is that Roth test takes into account “the dominant theme of the material taken as a whole,” thus preventing an entire work (i.e., Leaves of Grass) from being banned just because of a few “obscene” passages.  Another major difference is that the “average person” is the standard in Roth, while “the most susceptible person” was the standard in Hicklin.

2.  If a work had some serious social value (e.g., of a literary nature),
but its dominant theme was nonetheless one which “excites lustful thoughts” and is therefore “prurient,” it is simply not clear whether the material could be obscene under Roth (Harlan seems to think it would fail).  

c.	What does “prurient” mean?  The Court defined “prurient” as “material having a tendency to excite lustful thoughts.”  Brennan said this was no different than the ALI def.

1.	But Dave says Brennan is wrong!  On p. 770, the ALI report clearly does not take into account tendency.  Note how the Court’s definition of “prurient” has the Holmesian “bad tendency” element.
   
2.  Warren’s Concurrence:

a.  Although content is relevant with obscenity, the obscene also depends on who is distributing porn (i.e., a commercial vendor) and why they are distributing the porn (i.e., for artistic reasons or to satisfy lust).  Obviously, science and literature, are not obscene.  The Ds were commercial distributors who were selling pornographic material to satisfy the “erotic interest” of their customers.  Clearly, this is “obscene” material and Ds convictions are upheld.   

3.  Harlan’s concurrence in part and dissent in part:   

a.	The majority’s opinion uses a sweeping formula for obscenity, and assumes that something obscene is distinct and “classifiable as poison ivy is among other plants.”  The problem cannot be solved in such a generalized fashion.  The claim that a particular work is pornographic is an individual issue—not for some generalized test—and a reviewing court must determine for itself whether or not that particular work can be suppressed within constitutional limits.  A court’s particularized judgment of a particular material, not a sweeping formula for obscenity, is what should be required when deciding if that material is “pornographic.”

b.  Under the majority’s test and its definition of “prurient interest,” a jury could find that Ulysses (by the cunning linguist and avid consumer of white wine, James Joyce) or the Decameron (which Chaucer did a terrible job of ripping off in Cantebury Tales) were “obscene.”  Clearly, these works are not obscene since they are not “utterly without redeeming social importance,” and whether or not they are obscene should be left for a judge. 

c.  The majority suggests that its test is no different from the ALI formulation.  But this is wrong.  The ALI definition of obscenity rejected any kind of “bad tendency” language.  Under the ALI def., D’s conviction should have clearly been reversed, since the federal statute had “bad tendency” language.  

1.  Even though Harlan does not come right out and propose a test, he does not reject the ALI test either.

d.	Why does Harlan not totally dissent?  Because he defers to the states, since “the domain of sexual morality is pre-eminently a matter of state concern” and the Court “should be slow to interfere with state legislation calculated to protect that morality,” even the state cannot provide solid scientific evidence that there is a connection between porno. and criminal-sexual conduct.  He explains that the dangers of the feds having obscenity laws are much greater than if the states have obscenity laws.  “It seems to me that no overwhelming danger to our freedom to experiment and to gratify our tastes in literature is likely to result from the suppression of a borderline book in one of the States, so long as there is no uniform nation-wide suppression of the book, and so long as other States are free to experiment with the same or bolder books.”  The fact that people in one State cannot read D.H. Lawrence “if not wise or desirable,” at least is more acceptable than an outright federal law prohibiting that author’s book in every state.  Harlan, deferring to the state’s judgment, upholds the CA obscenity statute.  But, because he does not want a uniform federal law, he strikes down the federal obscenity statute (even though the language is similar to the CA statute). 

3.  Douglas-Black dissent:

a.	Justice Douglas, joined by Justice Black, argued that the majority’s test punishes material that provokes “sexual thoughts,” yet “the arousing of sexual thoughts and desires happens everyday in normal life in dozens of ways.”  The maj.’s obscenity test thus gives the censor free range over a vast domain.  

b.	The problem with the maj’s standard is that it provides no nexus between the material prohibited (porno) and the action which the legislature seeks to prohibit (criminal-sexual conduct).  It just focuses on “prurient thoughts.” 

C.	Miller (1973):  Tired of the confusion the Roth standard caused, the Court in this case forged a new definition of obscenity built upon the Roth definition but which also resolved some additional issues.  The Miller test stopped the trend, after Roth, of increasing protection for obscenity, and the test remains the modern-day approach to obscenity.  In this case, D mass mailed brochures advertising for “adult” material.  Included in these brochures were pictures and drawings of men and women in groups of two or more engaging in a variety of sexual activities, with genitals prominently displayed.  D was charged with violating a state obscenity statute.  What is required for an obscenity statute not to violate D’s First Am. rights?

1.	Majority Opinion:

a.	Because of problems with the Roth standard, a new three-part test [the Miller test] shall be used in defining “obscenity”:     

(1)  The “average person, applying contemporary community standards” would find that “the work, taken as a whole, appeals to the prurient interest” [citing Roth];

(2)  The work “depicts or describes, in a patently offensive way, sexual 	conduct specifically defined by the applicable state law,” AND

(3)  The work, taken as a whole, lacks “serious literary, artistic, political, or scientific value.”

Examples of what a state statute could regulate under (2) above include:  “Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or stimulated,” or “Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” 

b. The majority explicitly rejected the argument that what appeals to the “prurient interest” or is “patently offensive” should be determined by reference to a national standard. What counts are the standards of the local community where the prosecution is taking place. Thus “the people of Maine or Mississippi [need not] accept the public depiction of conduct found tolerable in Las Vegas, or in New York City.”

1.  The “local community” standard is a response to Harlan’s concurrence/dissent in Roth re the “deadening uniformity” of federal obscenity laws.

c. At a minimum, prurient, patently offensive descriptions of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Am. protection.  For ex., a medical books for the education of Drs. using graphic illustrations and descriptions of human anatomy are not obscene under this def. 

1.	Miller thus extends the definition of obscenity to include those works which are not “utterly” without social value, but which do not have “serious” value.

2.	This point re medical books is a response to Warren’s concurrence in Roth. 

d.  The states may ban as obscene only depictions or descriptions of “hard core” sexual conduct. Since the states must be specific about what sexual conduct is being banned (in order to satisfy the First Amendment need for “fair notice” of what is forbidden, and in order to avoid a chilling effect on expression), the Court provided several examples of materials which could be banned (see above examples referring to “(2)” part of test for what could constitutionally be labeled “hardcore”).  Thus, no one is subject to prosecution for obscene materials unless these materials depict or describe “hard core” sexual conduct that is specifically defined in the regulating state’s law.
	
2.  Douglas’ Dissent

a.  The Court should not be in the business of defining “obscene.”  If there must be obscenity laws, let the people debate and decide by a constitutional amendment what they want to ban as obscene and what standards they want the legislatures and courts to apply.

XIII.	Commercial Speech

A.	Intro.:  Like libel, obscenity, and other narrow types of speech, most kinds of “commercial speech” were traditionally viewed as being an “unprotected category” totally outside the scope of the First Am.  Instead, the Court applied the Fourteenth Am. to commercial speech. But just as the Court in recent decades had held that the states do not have an unlimited right to ban or regulate speech merely by labeling it “libelous” or “obscene,” so the Court has now given substantial First Am. protection to speech which can described as “commercial.”  Of course, commercial speech is not absolutely protected from any regulation.  For example, time, place, and manner restrictions are allowed, so long as there are ample alternative channels for communication of the information. Also, false or misleading advertising is not protected.
 
B.	Valentine (1942):  A case that represented the traditional view that “purely commercial advertising” was not entitled to any First Am. protection, and thus a town could prohibit such advertising in streets.

C.	Virginia Pharmacy (1976):  This case, almost 35 years after Valentine, abandoned the traditional view and held that even “purely commercial” speech is entitled to First Am. protection.  In this case, a Virginia statute prohibited pharmacists from advertising the price of prescription drugs.  Thus, insofar as a licensed pharmacist may dispense prescription drugs in VA, he cannot commercially advertise the price of his prescription drugs.  Ps (a group of prescription drug consumers) attacked the statute on First Am. grounds, claiming they would benefit if the prohibition were lifted.  Apparently, drug prices varied greatly from pharmacy to pharmacy in the same locality.  Does the First Am. protect purely commercial speech?

1.	Majority Opinion

a.	Yes, and the statute prohibiting ads is struck down.  At issue here is pure commercial speech (not commercial speech with a particularly noteworthy fact, or any editorializing on political or social issues).  It is simply the idea, “I will sell you the X prescription at Y price.”  

b.	Just because speech has money spent on it (as in commercial speech) does not mean that the First Am does not apply.  In Buckley, for ex., it was held that political contributions were protected speech (at least some contributions were).  Thus, the issue of purely commercial speech is a First Am. issue.

c.	Chaplinsky held that certain narrow categories of speech do not receive First Am. protection if they are so removed from any exposition of ideas.  But speech “which does no more than propose a commercial transaction” is not such a narrow category.

d.	Purely commercial speech is not utterly removed from any exposition of ideas because the advertiser, consumer, and society each have an interest in the untrammeled flow of commercial info.

(1)	Advertiser’s interest:  Even though he has an economic interest does not mean that he is disqualified from First Am. protection (labor protests have an economic interest and are protected).

(2)	Consumer’s interest:  The consumer’s interest “may be as keen, if not keener, by far, than his interest in the day’s most urgent political debate.”  Indeed, those who are most hurt by the ban on ads were the poor, the sick, and especially the aged.

(3)	Society’s interest:  Society has a “strong interest in the free flow of info.”  There exists a generalized public interest in info. about the price of goods which merits First Am. protection: “Advertising, however tasteless and excessive it may seem, is nonetheless dissemination of information to who is producing and selling what product, for what reason, and at what price…It is a matter of public interest that [private economic] decisions, in the aggregate, be intelligent and well informed.”

1.	Dave says he does not really by this rhetoric, and has some sympathies with Rehnquist’s dissent.

e.	It is highly paternalistic for the State to ban commercial ads in order to hope to protect the “professional” pharmacist who is driven out by “the low-cost, low-quality service.”

f.	Commercial speech can be regulated in some ways, of course.  For example, time, place, and manner restrictions are allowed, so long as there are ample alternative channels for communication of the information.  Also, false or misleading advertising is not protected.

1.  False or misleading ads have less protection under the First Am. than political speech.  Why?  One reason is because the accuracy of commercial speech is easier to verify.

2.  Rehnquist’s dissent

a.	Rehnquist writes a powerful dissent. He argued that the First Am. was designed to protect discussion of “political, social and other public issues, rather than the decision of a particular individual as to whether to purchase one or another kind of shampoo.”  Just because some people think choosing a brand of shampoo is as important as electing an official does not automatically bring info. about competing shampoos within the protection of the First Am. 

1.  Dave agrees with this point.

b.	The VA legislature, not the Courts, should decide if there should be restrictions on commercial ads.  Clearly, here, the legislature was concerned about drug abuse—a danger to which unregulated ads of prescription drugs and their prices might lead.  (“Pain getting you own?  Insist that your Dr. prescribe Demerol”).	               

D.	Central Hudson (1980):  This case narrowed the First Am. protection that commercial speech was given in Virginia Pharmacy.  It provided a formal four-part test to determine whether or not a given regulation of commercial speech violated the First Am., thus giving the government more power to regulate purely commercial speech beyond just time, manner, place restrictions and false advertising restrictions.  In this case, the New York State Public Service Commission (PSC) banned all “promotional ads” by electric utilities.  The stated purpose of the ban was to conserve energy (because NY had an energy shortage that year), and the PSC claimed that the electric utilities’ ads were designed to promote energy use.  Two years after the energy crisis ended, the PSC, based on comments from the public, continued the ban on ads.  But while it did not allow “promotional ads,” it did allow “information ads” designed to encourage shifts of consumption from peak demand times to periods of low consumption.  The electric utility companies brought suit, claiming they had a First Am. to have promotional ads.  Did the PSC’s band violate the utility companies’ First Am. rights?

1.	Majority opinion

a.	Yes.  It is true that commercial speech now is protect under the First Am., since it serves not only the economic interest of the speaker, but also assists the consumers and furthers the societal interest in the fullest possible dissemination of info.

b.	But a new four-part test will be used for determining whether commercial speech could be regulated:

(1)	Protected speech:  First, courts must determine if the commercial speech is protected under the First Am.  All commercial speech receives at least partial protection except for: (1) speech that is “misleading” and (2) speech which concerns unlawful activity [such as prostitution ads].  If the speech is misleading or concerns unlawful activity, it receives no protection and can be fully regulated by the government.

(2)	Substantial government interest:  Second, the court must ask whether the governmental interest asserted in support of the regulation is “substantial.”  If not, the regulation will be struck down without further inquiry.  If the interest is substantial, the government must still meet the final two parts of the test.

(3)	Interest “directly advanced”:  Third, the court will decide whether the regulation directly advances the governmental interested (i.e., conserving energy) evaluated in part (2).  If it does not, the regulation will be struck down, if It does, it will still have to meet the next and last part of the test.

(4)	Means-end fit:  Finally, the Court will decide whether the regulation is “not more extensive than is necessary” to serve the governmental interest.  If it is more extensive than necessary, the regulation will be struck down.  

c.	The Court then applied the four part test to the facts of the case (see p. 716-18):

(1)	Protected speech:  The utilities’ promotion advertising was clearly protected under the First Am.  The Court rejected the arg that ads by a monopolist had no value; for one thing, even a monopolistic electric utility faces competition from alternative energy sources.

(2)	State interests: The state asserted two interests in support of its ban: Conservation of energy and maintenance of a fair and efficient rate structure (which, the state contended, would have been impaired by an increase in usage, because of the peculiarities of the rate structure.) The Court agreed that each of these interests was substantial.

(3)  Direct link: The Court found that there was a direct link between the ban and
one (but not the other) of the asserted state interests, that of energy conservation.
(The link between promotional advertising and inequitable rates was, by contrast, too speculative to satisfy the “direct link” requirement.)

(4) 	Least-restrictive alternative: With respect to the ban as a way of promoting
energy conservation, part (iv) was not satisfied; the ban was more extensive than
needed to further that interest. For instance, it prevented a utility from promoting
the use of electricity even for those applications (i.e., a heat pump) where it was a more efficient power source than that currently being used.  To narrow its ban, the Commission could attempt to restrict the format and content of the utilities’ advertising.  It might, for example, require that the ads include info. about the relative efficiency and expense of the offered service, both under current conditions and the foreseeable future.  Also, the CPS may preview promotional ads to insure that they will not defeat the conservation policy before releasing the ads (as the CPS has already done with “informational ads”), since traditional prior restraint doctrine may not apply to commercial speech.

2.	Blackmun-Brennan Concurrence

a.	Disagrees with the majority’s approach, but not the result (since he is against the ban).  Blackmun disagrees with the approach because he says the four-part test would not provide adequate protection for truthful, non-misleading, non-coercive commercial speech.  

b.	The problem with the four-part test is that if there is a “direct link” between promotional ads and energy consumption (as the Court has found in this case), and the prohibiting that ad is narrow enough (which the Court did not find here, but made suggestions of how to narrow the ban), then the ad can be banned.  Why?  Because the maj. erroneously claims that ads, reporting truthful info., will increase the consumption of electricity because the audience will find them persuasive.  But these ads, if banned, would deprive consumers of valuable info. about products or services.  Thus, the maj. would uphold a ban of promotional ads on air conditioners, as long as the ban met the four-part test above, even though the info. in that promotional ad was truthful and even though the ad would provide valuable info. to customers.  This is wrong.  Ads should not be banned unless there are time, place, manner restrictions, or there is deception, misinfo., etc. in ads.    

1.	Obviously, Brennan prefers the Virginia Pharmacy approach, with its rationale, to the majority’s approach in Central Hudson.

2.	The Blackmun-Brennan concurrence as basically adopted in the majority’s approach in Liquormart (see below).

3.	Rehnquist Dissent

a.	The lone dissenter, Rehnquist, thought that the majority’s four-part test did not give the government enough power to regulate commercial speech, and that the test gave commercial speech virtually the same kind of protection as non-commercial speech.  He believed that the regulation here was an economic regulation, not  restraint on free speech.  Thus, he deferred to the legislature, in contrast to what he viewed as the majority’s resurrection of the discredited Lochner doctrine. 

E.	Liquormart (1996):  This case is important because it overruled Posadas, which held that a state could ban various gambling ads, drinking ads, etc. on the rationale that if the state could criminalize these activities (i.e., no drinking under the age of 18, no gambling, etc.), then it could take the lesser step of prohibiting ads promoting the activities.  In this case, a state statute prevented in liquor stores from advertising.  P brought suit against this statute, claiming it violated his First Am. rights.  Was this ban on liquor advertising a violation of P’s First Am. rights?

1.	Majority Opinion

a.	Yes.  Upon reflection, Posadas is wrong because it allowed a ban on ads that were truthful, non-misleading speech, and kept these ads from reaching the public for fear that they would gamble more.  We conclude that a state legislature does not have the broad discretion to suppress truthful, non-misleading info. for paternalistic purposes that the Posadas majority was willing to tolerate.

1.	This sounds like Blackmun in his concurrence in Central Hudson!  Has the Court retreated from the majority approach of Central Hudson?  Dave says yes, to the extent that the Court allows truthful, non-misleading info.

b.	We abandon the “greater-includes-the-lesser” argument upheld in Posadas because it is “inconsistent with both logic and well-settled doctrine.”  Specifically, we abandon this argument because sometimes banning speech can be far more intrusive than banning conduct.  As a venerable proverb teaches, it may prove more injurious to teach a man how to fish (speech) than to give a man a fish (conduct). 

c.	Speech restrictions cannot be treated as simply another means that the government may use to achieve prohibiting the conduct.  Thus, if a state does not want liquor, then it should ban liquor.  It should not prohibit commercial speech as an indirect means of regulating liquor consumption.  In other words, the state should regulate the conduct if it has a problem with it, not the speech.

1.	This is very important, Dave says.  Applying this to the Central Hudson case, one could argue that the legislature—instead of banning the utilities’ commercial ads—should have set caps on the amount of energy used by people (that way, the conduct—not the speech—is being regulated, and the speech is not indirectly regulating the conduct).  

d.  Finally, the state argues that it should be able to ban the commercial speech because it pertains to a “vice” activity.  But it is too difficult to know what is and what is not a “vice.”  Are gasoline-fueled cars a vice?  Is alcohol?  Plus, states could just label any commercial speech they desire as a “vice,” and regulate it.    

F.  Dealing with Commercial Speech on the Exam:  Dave says to focus on applying Liquormart, which seems to retreat from Central Hudson and return to Virginia Pharmacy, to the facts.  But also briefly discuss the extent to which Liquormart modifies Central Hudson (again, a return to Virginia Pharmacy and an emphasis on the Blackmun view in Central Hudson).  

PART TWO:  RELIGION

I.  Introduction

A.	Two clauses:  The First Am. contains two different clauses:

1.	Establishment Clause: “Congress shall make no law respecting an establishment of religion.”

2.	Free Exercise Clause: “Congress shall make no law…prohibiting the free exercise” of religion.   

B.	History of the Two Clauses:  At the time the First Am. was ratified, these two clauses modified each other.  That is, it was thought that the free exercise of religion was protected by prohibiting the establishment of religion.  But for primarily two reasons—the large role of government nowadays and a broad concept of what constitutes religion—a tension now exists between the two Clauses.  

C.	Tension between the Clauses:  This tension between the Clauses can create serious conflicts.  For example, an attempt to prevent a violation of the Establishment Clause could result in violating the Free Exercise Clause and vice-versa.

1.	Example:  Take the issue of the federal government spending money to provide chaplains to the armed forces.  This arguably violated the Establishment Clause, since it is government support of religion.  On the other hand, a soldier, if he were, say, fighting or stationed abroad, could argue that if the government stopped funding the chaplains then he would be deprived of his free exercise of religion.

2.	Example:  Take the issue of state financial assistance to private schools, including parochial schools.  If such aid is given, a strong argument can be made that the Establishment Clause is violated, since government is assisting parochial schools in an activity that has a strong religious component.  Yet if such aid is not given, while public schools are given large amounts of assistance, a claim can be made that the Free Exercise Clause is violated, because economic burdens force the students to abandon parochial schools for public ones.

D.	Strict Neutrality:  In Waltz (which we were not required to read), the U.S. Supreme Court famously said that it would attempt to accommodate the two Clauses by a policy of strict neutrality, meaning that the Court’s goal is to “find a neutral course between the two religion clauses, both of which are cast in absolute terms and either of which could clash with each other if taken to the logical extreme.”  The cases that we will read will attempt to achieve this goal of neutrality in resolving the tension between the two clauses.

E.  Religion Clauses and Free Speech:  Obviously, a case can involve the Religion Clauses and an issue of free speech.  Although we only read Stevens’ concurrence, Adderley is an example of such a case.    

II.	The Establishment Clause       

A.	Intro.:  The basic purpose of the Establishment Clause is, in the words of Thomas Jefferson, to erect “a wall of separation between the church and state.”  However, this famous quote is terribly helpful.  Some examples of blatant violations, discussed in Everson:

1.	Neither a state nor the feds may set up an official church.

2.	Government may not “force [or] influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.” 

3.	No one may be “punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.”

4.	Government may not prefer one religion over another.  Also, government may not prefer religion to non-religion.  

5.	Government may not participate in the affairs of religious organizations, and such orgs may not participate in the affairs of government.

B.	Everson (1947):  This case, which dealt with the state’s reimbursing parents of children who went to public schools and parochial schools for busing expenses, is a great illustration of the tension between the two clauses.  In this case, a New Jersey statute authorizes local school districts to make rules and contracts for the transportation of kids to and from school.  One town’s board of education, pursuant to this statute, authorized reimbursement of bus fare to parents who sent their kids to parochial and public schools.  This reimbursement included payment to bus kids to Catholic parochial schools.  These church schools gave their students, in addition to secular education, regular religious instruction conforming the teachings of the Catholic church.  P (a citizen of the county and taxpayer) filed suit, arguing that the N.J. statute and the board of education’s resolution, insofar as they reimbursed parents of kids attending parochial schools, violates the Establishment Clause.  Was the N.J. statute and board of education’s resolution a violation of the Establishment Clause of the First Am.?

1.	Majority Opinion

a.	No.  Black, writing for the majority, first discusses the origin of the religion clauses.  The King of England gave the Brits, when they came over to the U.S., charters to erect religious establishments.  These charters soon became oppressive.  Americans had to pay taxes to pay ministers’ salaries, build and maintain churches, etc.  It was the Americans’ feelings of oppression that led them to ratify the First Am.  They wanted to erect “a wall of separation between the church and State.”

1.  Dave says that ever since Everidge, the Court has relied on Black’s analysis of history re the First Am.  Rutledge’s dissent in this case (see below) reinforces Black’s analysis.  Recent Con Law scholars have pointed out that this analysis is historically inaccurate.  These Con Law scholars argue that the Establishment Clause was only originally intended to prevent a national religion (but states could create their own religion).  This seems consistent with the “Congress shall make no law…” text of the First Am. 

b.	The Establishment Clause at least means that the government may not do the following: 

--Neither a state nor the feds may set up an official church.

--Government may not “force [or] influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.” 

--No one may be “punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.”

--Government may not prefer one religion over another.  Also, government may not prefer religion to non-religion.  

--Government may not participate in the affairs of religious organizations, and such orgs may not participate in the affairs of government.

c.	The N.J. statute must be seen with the foregoing limitations imposed by the First Am.  There is a tension between the Establishment Clause and the Free Exercise Clause.  “N.J. cannot consistently with the Establishment Clause contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church.  On the other hand, other language of the amendment commands that N.J. cannot hamper its citizens [the parents of parochial students] in the free exercise of their religion.”  But “we must be careful…to be sure that we do not inadvertently prohibit N.J. from extending its general state law benefits to all its citizens without regard to their religious belief.”  Because the reimbursement scheme is part of a general program, it does not establish religion and thus does not violate the First Am.  “The state contributes no money to the schools.  It does not support them.  The state does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from school.” 

1.  The Court does not come right out and say if not reimbursing the parents would violate the Free Exercise Clause, but it does suggest that preventing an Establishment Clause violation could very well violate the Free Exercise Clause.

d.	State-paid policemen, who protect parochial-school kids crossing the streets from traffic (just like the cops do with kids at public schools), serve the same purpose as reimbursing parents to bus their kids to parochial schools.  These are general services that provide secular (non-religious) benefits that are completely neutral.  “The First Am. requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary.  State power is no more to be used so as to handicap religions that it is to favor them.”

1.	Dave says the key here is neutrality.  But he doesn’t personally think the statute and ordinance were neutral, and does not think they are analogous to general services like cops and firemen.  He would have struck down the statute and ordinance.

2.  Jackson’s Dissent (Dave loves this dissent—so well-reasoned!)

a.	The majority refers to erecting a wall between religion and the state, but in their holding they knock down this wall.

b.	The Act does not reimburse those who choose any alternative to public school except Catholic Church schools (because all the kids who go to parochial schools got to Catholic schools).  Part of the Catholic Church school is religious indoctrination.  Jackson concludes, “Catholic education is the rock on which the whole structure rests, and to render tax aid to its Church school is indistinguishable to me from rendering the same aid to the Church itself.”

1.  Given the plain language of the Act, Jackson’s conclusion here seems unjustified.

c.	“The prohibition against establishment of religion cannot be circumvented by a subsidy, bonus or reimbursement of expense to individuals for receiving religious instruction and indoctrination.

d.	The majority’s analogy between cops and the reimbursement is false.  When a cop or fireman renders aid, he does not ask, “Is this man or building identified with the Catholic church?”  He protects the man or building—not because it is associated with the Catholic church—but because he is a member of society and the building is property.  But before the state reimburses parents of parochial children for bus fares, it has time to reflect (unlike the cop and fireman) and should ask: Is this reimbursement being given because of religion?

1.	Dave says this is intuitively true.

3.  Rutledge-Frankfurter-Jackson-Burton Dissent (Jackson’s dissent continued here when he concurs with Rutledge)

a.	Writing for the dissent, Rutledge goes into same history of First Am. as majority.  But he goes further:  “The object was broader than separating church in state in this narrow sense.  It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.”    

b.	Paying for the bus fare of parochial children “aids the parents in a substantial way to get the very thing which they are sent to the particular school to secure, namely, religious training and teaching.”  This is establishing religion.

1.	This echoes Jackson’s point in his separate dissent.

c.	“Paying for transportation is no more, nor is it any less essential to education, whether religious or secular, than payment for tuition, for teachers’ salaries, or buildings, equipment and necessary materials.  Nor is it any less directly related, in a [parochial school], to the primary religious objective all those essential items of cost are intended to achieve.”

1.  Clearly, Rutledge is concerned just how far-reaching an impact this decision could have.  If transportation is paid for, why not buildings?  Dave, agreeing with Rutledge, says it is easy to extend the majority’s decision to vouchers and buildings for parochial schools, etc.  This is a very persuasive arg.

C.	County of Allegheny (1989):  This case dealt with whether or not the state putting up holiday displays on public property was a violation of the Establishment Clause of the First Am.  Scalia sarcastically referred to Allegheny as the case where the U.S. Supreme Ct. decided to become “interior decorators.”  Two holiday displays were put up in downtown Pittsburgh.  The first display was a creche (a representation of a Nativity scene) placed on the Grand Staircase of the County Courthouse.  The second was a menorah placed just outside the City-County Building, next to a Christmas tree and a sign saluting liberty.  Were these displays a violation of the Establishment Clause of the First Am.?

1.	Majority opinion

a.	Only partly.  The creche was a violation of the Establishment Clause, but the menorah was not.

b.	The Court applied the famous Lemon test to this case.  Under the Lemon test, a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause must:

(1)	Have a secular (non-religious) purpose;

(2)	Neither advance nor inhibit religion in its principal or primary effect;  AND

(3)	Not foster an excessive entanglement with religion.

The Court reached two different results under this test as to the two displays.

c.	As to the creche, the Court held it  failed the Lemon test and thus violated the Establishment Clause.  Lynch held that a creche display turns on its setting, when applying the Lemon test to it.  The Pittsburgh creche is distinguishable from the creche in Lynch for a number of reasons.  In Lynch, there was a holiday display of a creche.  The creche was put up by the city.  The display comprised a series of figures and objects, each group of which had its own focal point.  Santa’s house and his reindeer were objects of attention separate from the creche, and had their specific visual story to tell.  The “talking” wishing well (“Hello, throw a penny in me”) was a center of attention separate from the creche.  Finally, the creche was put up in a public park.  In sum, this display celebrated Christmas in some manner and form, but not in a way that endorsed the Christian religion because there was significant diffusion of any religious message.

The creche in Pittsburgh, on the other hand, was owned and put up by a private Catholic group.  In addition to the usual figures of Jesus, Joseph, shepherds, wise men, etc., the creche contained a banner proclaiming, “Gloria in Excelsis Deo!” (“Glory to God the Highest”).  The creche stood alone; there were no other nearby significant symbols, such as Santa Claus, reindeer, or “Seasong Greetings” banners, to diffuse the religious message of the creche. Finally, the creche occupied a prominent position on the Grand Staircase of the Courthouse (a prominent building, not just a public park).  This creche fails establishes religion, fails the Lemon test, and thus violates the Establishment Clause.

d.	As to the menorah, the Court held it did not fail the Lemon test and thus did not violate the Establishment Clause.  It is true that the menorah “is a religious symbol—it serves to commemorate the miracle of the oil as described in the Talmud—but the menorah’s message is not exclusively religion.”  Unlike a creche, a menorah has both religious and secular dimensions.  The Court reasoned that the 18 foot-high menorah was near a 45-foot Christmas tree, the tree was primarily secular, and the tree was much bigger than the menorah.  The menorah was also next to a “liberty” sign.   Finally, the menorah was outside of a city building, not inside of a prominent building such as a Courthouse.  All of these symbols taken together as part of a single display outside therefore conveyed the message of celebrating the secular Christmas holiday season, not the message of celebrating the religious significance of Hanukkah.  That is, these symbols taken together diffused any endorsement of a religion.  They do not fail the Lemon test and thus are an Establishment Clause violation.   

2.	Stevens’ concurrence in part and dissent in part

a.  Concurs in part because of holding re the creche.

b.  But dissents because of the maj.’s holding re the menorah.  The 45-foot Christmas tree standing alone might be too “tenuous” to be an Establishment Clause violation.  But standing next to a menorah, the tree does not diffuse the religious message of the menorah.  Instead, the menorah, unquestionably a religious symbol, give religious significance to the Christmas tree.  The overall display thus manifests governmental approval of the Jewish and Christian religions.  They fail the Lemon test and are thus an Establishment Clause violation.      

1.	Dave really likes Stevens’ opinion.  This is the way to go.

3.	Kennedy-Rehnquist-White-Scalia concurrence in part and dissent in part

a.	Kennedy is “content” with the majority applying Lemon, but has some reservations.  The Lemon requirement that the primary effect of the challenged government practice “is one that neither advances nor inhibits religion,” has been treated by the majority too categorically and formalistically.  But the history of the Establishment Clause has never been intended to create a “relentless extirpation of all contact between government and religion.”

b.	Government policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage.  The U.S. Supreme Court cases disclose two limiting principles on the First Am.:

(1)	Government may not coerce anyone to support or participate in any religion or its exercise; AND

(2)	Government may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it in fact “establishes a [state] religion or religious faith, or tends to do so.”  

Examples of a violation of the above two principles are direct compulsion to observance, taxation to supply substantial benefits to a state-established religious faith, etc.  But non-coercive government action within the realm of flexible accommodation or passive acknowledgment of existing symbols does not violate the Establishment Clause.
			
1.  Kennedy loves the phrase “reasonable accommodation.”  Thus, nothing is wrong with “In God We Trust” on money or the pledge “One nation under God.”

4.	Dave’s comments…

a.  Why couldn’t the Court just argue that people could “avert their eyes” and thus are not a captive audience of the religious display?  For a couple of reasons.  First, this exception applies to the “fighting words” doctrine, and applying it the religious context seems to defeat the entire purpose of the religion clauses (although Souter refers to “captive audiences” at a high school benediction in his Lee concurrence).  Secondly, even if it could apply, one could argue it should not because the government’s religious display should be held to a higher standard than a citizen’s political display (i.e., Cohen’s “fuck the draft” jacket).   

D.  Lee (1992): Suppose that a school conducts an official ceremony or ritual outside the classroom, and prayer is part of that ceremony.  At least where school officials can fairly be said to be sponsoring the religious message, a prayer will be found to be a violation of the Establishment Clause.  But Lee also establishes that even a completely non-denominational school prayer will violate the Establishment Clause if it is state-sponsored.  This case involved prayers at public middle-school and high-school graduation ceremonies.  In one instance, a middle-school principal invited a rabbi to deliver  prayer, told him the prayer should be non-sectarian, and gave him a pamphlet (prepared by the National Conference of Christians and Jews) detailing the kinds of prayers that would be appropriate at a public civic occasion. The prayers delivered by the rabbi were indeed non-denominational, and consisted mainly of thanks to God (e.g., “Oh, God, we are grateful to You for having endowed us with the capacity for learning which we have celebrated on this joyous commencement.... Send Your blessings upon the teachers and administrators who helped prepare [the students]”). P was a graduating student who argued that she shouldn’t be required to listen to a prayer as part of her graduation ceremony.  Was this non-denominational school prayer a violation of the Establishment Clause of the First Am.?

1.	Majority Opinion (5-4)

a.	Yes, the prayer  in this context violated the Establishment Clause.  Writing for the majority, Justice Kennedy held that the state here effectively coerced students into participating in, or at least supporting, the prayers. 

1.  Why does Kennedy rule with the majority here when he dissented in the last case?  Can’t there be reasonable accommodation?  No.  For Kennedy, there is an element of coercion here that simply was not present in County of Alleghany. 

b.	The school district had argued that attendance at the commencement ceremony was voluntary, in the sense that P could have received her diploma even without attending. But this argument ignored reality, Kennedy said; “To say each student has a real choice not to attend her high school graduation is formalistic in the extreme.... Everyone knows that in our society and in our culture high school graduation is one of life’s most significant occasions.... The Constitution forbids the State to exact religious conformity from a student as the price of attending her own high school graduation.”  

c.	Nor was it a defense that P was not required to specifically participate in the prayer – the combination of school supervision and peer pressure effectively required her to stand or at least maintain respectful silence, and this was tantamount to requiring her to participate in the religious exercise. 

d.	Finally, the fact that the prayer was non-sectarian was irrelevant; there is no such thing as an “official” or “civic” religion which, because it is non-sectarian, is exempt from the Establishment Clause.  Even though the religion is non-sectarian, it still is a religion.  

e.	The high school principal argued that he acted in good faith in avoiding any state-religion issue, but this good faith argument is not a defense.

f.	While he says he is not going to overturn Lemon, Kennedy applies his coercion test (pretty much ignoring Lemon, as Scalia points out).

2.	Souter’s Concurrence:

a.	Souter addresses two issues:  (1) Whether the Establishment Clause applies to governmental practices that do not favor one religion or denomination over others, and (2) Whether state coercion of religious conformity, over and above state enforcement of religious exercise or belief, is a necessary element of an Establishment Clause violation.

b.	As to the first issue, he says that there is no conclusive evidence in the history of the First Am. that the framers intended support for non-sectarian religion as opposed to no religion at all.  Since there is no conclusive evidence, Souter holds that the Establishment Clause forbids support for religion in general no less than support for one religion or some.  Besides, the Court should not be some “comparative theological board” that distinguishes between “sectarian” religious practices and those that would be sufficient enough to pass Establishment Clause muster.  

c.	As to the second issue, Souter says the state while coercion may sometimes be sufficient to make out an Establishment Clause violation, proof of coercion is not a precondition for an Establishment Clause violation.  

1.	 Kennedy seems to really focus on coercion in this opinion and in Alleghany, but Souter suggests coercion is a sufficient, but not a necessary, element of an Establishment Clause violation.  

d.	Finally, Souter somewhat addresses the dissent’s arg. re religious phrases on money and in the pledge who do not violate the Establishment Clause.  Souter argues these do not violate the Establishment Clause because they are rarely notice, ignored without effort, conveyed over an impersonal medium, and directed at no one in particular.  They “inhabit a pallid zone worlds apart from official prayers delivered to a captive audience of public school students and their families.”

1.  That last sentence sounds like it was lifted out of a Don DeLillo novel (perhaps Mao II)!  Dave says Souter’s point is not altogether convincing.  Is an audience at a school graduation really anymore of a “captive audience” than an audience at a swearing-in ceremony?  

3.  Scalia-Rehnquist-White-Thomas Dissent: 

a.	 The dissenters principally argued that there was no official compulsion here—P was not required to attend the graduation ceremony at all (thus distinguishing the case from the in-classroom prayer cases), and certainly was not required to join in the prayers in any way, merely to accommodate others who wished to pray. 

b.	Also, the dissenters contended, invocations and benedictions at
public ceremonies, such as the prayers here, were part of an old tradition dating back to Jefferson’s inauguration; “The long-standing American tradition of prayer at official ceremonies displays with unmistakable clarity that the Establishment Clause does not forbid the government to accommodate it.”  So why can’t there be a two minute long non-sectarian benediction at the school graduation?  Lighten up! 

1.  Dave says the majority never really addresses this.  But we can infer that Kennedy obviously thinks that his “reasonable accommodation,” discussed in Alleghany within the context of the pledge and money, does not apply in Lee because the coercion exceeds any accomodation.

c.	The majority has effectively replaced the Lemon test with a theory of psycho-coercion.  Now, the Court pretends to be not only experts in interior decoration (which they established in Alleghany) but also experts in psycho-coercion.

4.  Other comments…

a.	How could the problem of prayers at graduation possible be resolved?  A valedictorian could give a religious speech (since the aid of the state is arguably not involved).  

A key aspect of the school district’s difficulty in Lee was that the school principal (state official) invited a rabbi to give a prayer, and gave him instructions about the type of prayer to be used, making the entire prayer in a real sense state-sponsored. If, by contrast, a member of the student body (perhaps the valedictorian) offered a prayer of her own, without significant participation or sponsorship by school officials, this might not be a “state sponsored” prayer and might thus not violate the Establishment Clause.

Suppose the official ceremony or ritual contains mere occasional references to God, which are incidental to the ceremony. In this situation, it seems likely that the majority of the Court would allow the reference, despite its religious content, under Lemon.

E.	Attacking an Establishment Clause Question on the Exam:  

1.	Definition of Establishment Clause and why it applies.

2.	Thomas Jefferson’s famous quote: “a wall of separation between the church and state.”

3.	The modern-day Court’s approach is to apply the three-part Lemon test to see if there is an Establishment Clause violation (that is, to see if the Jeffersonian “wall” has been knocked down).  The government action being challenged must:

(1)	Have a secular (non-religious) purpose;

(2)	Neither advance nor inhibit religion in its principal or primary effect;  AND

(3) Not foster an excessive entanglement with religion.

a.	Displays and Lemon: A creche display turns on its setting.  Taken together, do all the religious symbols sufficiently diffuse any endorsement of religion (be it Christian, Jewish, etc., since Lee held non-sectarianism is still religious)?  The Court looked at the locations of the display, its size, religious messages of or around the display, etc.

b.   Prayer and Lemon:  A non-sectarian prayer is still religious and must pass the Lemon test. 

4.	Because he thinks that the Court has treated Lemon too formalistically and categorically, Kennedy seems to emphasize the “coerciveness” of the government action being challenged and “reasonable accommodation.”  Thus, a creche display in public is not in any way coercive to him, and the government should “reasonably accommodate” it.  But a non-sectarian benediction at a high school graduation is “coercive” and religious, even though non-sectarian.  Souter in his Lee concurrence disagrees that “coercion” is necessary for an Establishment Clause violation, although he says it is sufficient for such a violation.  The Lee dissent pejoratively refers to Kennedy’s approach as a “theory of psycho-coercion”.

5.	Justices who have a more relaxed view of the Establishment Clause, such as Scalia, argue that certain situations (i.e., swearing-in ceremonies, pledges to the flag, “In God We Trust” on currency, etc.) do not violate the Establishment Clause, and never have (all the way back to Jefferson’s inauguration).  These Justices say, “Lighten up!  Don’t attend something like a benediction if it bothers you!”  Souter in his Lee concurrence suggests a response.  Some things do not violate Establishment Clause—such as religious phrases on money or the pledge—but that is because they are rarely noticed, ignored without effort, conveyed over an impersonal medium, and directed at no one  in particular.  Clearly, a high school benediction, for example, is different from these, because it is delivered to a “captive audience.”  Souter’s “captive audience” theory is worth addressing on final, even though it is not really convincing…  

6.	Possible ways to avoid Establishment Clause issue re prayer at public schools (see above).

7.	Apply Free Exercise Clause, or anything else (i.e., “Freedom Not to Speak” section if there is a flag salute/pledge situation), if relevant.  (Dave says anytime there is an Establishment Clause issue, there will be a Free Exercise Clause, maybe strong, maybe weak).  Take the Court’s approach in the various cases if there is a conflict between the Free Exercise Clause and Establishment Clause.  For example, in a situation similar to Lee, point out (as Souter did) that a religious student in the audience at the high school graduation could argue that the Free Exercise Clause is violated if no benediction is given since omitting the prayer would “burden his religious calling.”  But this argument is pretty weak.  Also, if relevant, refer to Scalia’s majority opinion in Smith re states’ ability to make religious exceptions to certain laws (isn’t this an Establishment issue).  Etc.

II.  The Free Exercise Clause

A. Intro:  The First Am. bars government from making any law “prohibiting the free exercise” of religion.  The Free Exercise Clause flatly forbids the outlawing any religious beliefs.  Normally, Free Exercise Clause problems arise when the government, acting in pursuit of non-religious objectives, either: (1) forbids or burdens conduct which happens to dictated by someone’s religious belief (as in Scherbert), or (2) compels or encourages conduct which is forbidden by someone’s religious belief (an issue raised by Ps in the Barnett/flag salute case, but not dealt with in the casebook).  Prior to the 1960s, whatever protection of religious liberty did come from the Court tended to come from the Free Speech rather than Free Exercise Clause.  For instance, in Barnett (1943), a group of Jehovah’s Witnesses attacked regulations requiring students to salute the flag. The Court invalidated the regulations, but on free speech rather than free exercise grounds – the state had no power to “force citizens to confess by word or act” their faith in any particular view of “politics, nationalism, religion or other matter of opinion,” and the right not to be subjected to such compulsion existed whether one’s disagreement came from religion or from other sources.  Since 1960s, the Court has tended to emphasize the Free Exercise Clause rather than the Free Speech clause.
         
B.	Scherbert (1963):  This case dealt with a statute’s unintended effect of
burdening religious beliefs.  P (a Seventh-day Adventist”) was discharged by her employer because she would not work on Saturday, the Sabbath Day of her faith.  She was unable to locate other work which would not require her to work on Saturday.  She filed a claim for unemployment benefits under the South Carolina Unemployment Compensation Act.  That law provides that, to be eligible for benefits, a claimants must be “able to work and…available for work,” but a claimant is ineligible “if he has failed, without good cause, to accept available suitable work.”  D (The Employment Security Commission) found that P’s restriction upon her availability for Saturday caused her to be exempt from employment benefits because she “failed, without good cause, to accept available suitable work.”  Did the denial of P’s claim, because it lacked good cause, violated the Free Exercise Clause?

1.	Majority Opinion

a.	Yes.  The Court first test with whether the disqualification for benefits imposes any burden on the Free Exercise Clause of religion.  There was no direct burden in this case (i.e., the was not an Act that required P to work Saturdays), but there was an indirect burden.  The fact that the burden was indirect was “only the beginning not the end of analysis.”  The Court has consistently held that an indirect burden is just as unconstitutional as a direct burden.  Here, D’s ruling forces P to choose between the precepts of her religion (attending church on Saturday) and forfeiting benefits, on the one hand, or abandoning one of the precepts of her religion in order to accept work, on the other.  This imposition puts the same burden on P as a fine if she did not attend Saturday church.  Plus, the Constitution—unlike some other freedoms—specifically prohibits the feds or state from infringing upon the free exercise of religion.  

b.	South Carolina’s argument that providing compensation benefits is a “privilege,” not a “right,” is irrelevant.  Religion and expression can be infringed by the denial of benefits.  

c.	The S.C. Unemployment Compensation Act’s unconstitutionality is compounded by the fact that S.C. expressly saves the Sunday worshipper, in another statute, from having to make the kind of choice that the Sabbatarian in this case has to make.  That other statute says that if an employee does not work Sundays for religious reasons, he cannot be terminated.  Not so in this case.  If the Sabbatarian does not work Saturdays, she can be terminated.  

d.	Having found that there is a burden on P, the next step is to see if the state can justify this burden by meeting “strict scrutiny”—the state must show that there is a “compelling state interest” for the law and the law was “narrowly tailored” (there were no alternative forms of regulation that would combat such abuses).  The state argues that, if they allow for religious groups to meet the “good faith” requirement of the Act, then lots of people will file fraudulent claims feigning religious objections to Saturday work.  But the state has produced no evidence of this.  Even if the state did, there would be alternative forms of regulation (i.e., fraud-prevention techniques) that could combat such abuses.

1.  Dave says to remember that just because there is a burden on P, that is not the end of the story!  You next step is to apply strict scrutiny to see if the statute meets that scrutiny.  If it does, then no Free Exercise Clause violation.

e.	This case is distinguishable from Braunfeld v Brown.  In Braunfeld, orthodox Jewish merchants argued that a state Sunday closing law violated the Free Exercise Clause.  Specifically, they argued that they could not work on Saturday (for religious beliefs), and that forcing businesses to close on Sunday’s hurt their ability to make a living.  The Court held that that this law did put some burden on Ps.  But it held that the law did not violate the Free Exercise Clause because granting an exemption to Jews (on Sunday) would have undermined the state’s secular purpose—the purpose of assuring a uniform day of rest—which passes “strict scrutiny.” 

In Sherbert, there was more of a burden on the Free Exercise of religion and less of a state interest than in Braunfeld.

f.	Finally, the Court holds that, with its holding, it is not fostering the “establishment” of the Seventh-day Adventist in S.C.  If anything, it accomplishes religious neutrality.  The Adventist can now get his pay if he does not work on Saturday, just like Sunday worshippers can.

1.  Dave says that this is yet another example of the Establishment Clause and Free Exercise Clause conflicting.  Look out for this on the exam, and deal with the issue.  The Court says the proper accommodation is to give more weight the Free Exercise Clause than the Establishment Clause.  Why?  Because the “exercise” issue in this case is much stronger than the “establishment” issue.  It is the difference between the Adventist being forced either to worship or work (“exercise”) versus a few more cents the taxpayer would have to pay in order that the Adventist have Saturday off (“establishment”).  Dave says the Court was right in letting the Free Exercise Clause win the day (is he succumbing to a cost-benefit analysis?!?).

2.	Stewart’s concurrence

a.	The maj. did not adequately deal with the conflict between the Free Exercise Clause and the Establishment Clause.

b.	The maj.’s decision is not consistent with Braunfeld.  There was not a less direct burden on free exercise in that case than in this case. 
The impact on P’s religion in this case is much less onerous than in Braunfeld.  Even upon the unlikely assumption that P could not find suitable non-Saturday employment, she will at worst receive employment compensation for 22 weeks.  But “I agree with the Court’s decision…that the possibility of that denial is enough to infringe on P’s constitutional right to the free exercise of her religion.”  To reach this result, though, the Court must explicitly overrule Braunfeld, which it should do.

1.  Dave agrees with Stewart’s view on Braunfeld (it seems to square with Dave’s cost-benefit approach above).       

3.  Harlan-White Dissent

a.	The S.C. statute was intended to “tide people over…when work was unavailable…not for those who for purely personal reasons were or became unavailable for work.”  P was denied benefits, not for her religious beliefs, but because she was unable to work.

b.	The maj.’s opinion violates the Establishment Clause.  It has singled out religion for financial assistance, while denying such assistance to others whose identical behavior (in this case, not working on Saturdays) is not religiously motivated.   

C.	Yoder (1972):   This case is somewhat similar to Scherbert in the approach the Court takes.  In this case, Wisconson’s statute required that kids go to high school until they are 16.  Ps (Amish) did not want to sent their kids to high school after they were 14, for religious reasons.  Specifically, they believed high school attendance was contrary to the Amish religion and way of life.  Sending their kids to high school would endanger their salvation.  They presented expert scholars in support of their position.  Was this a violation of Ps’ Free Exercise?

1.	Majority Opinion

a.	Yes.  In order for a religious group to invoke the Free Exercise Clause, then:

(1)	Their beliefs must be sincere [they must really think education is bad for their kids or not working on Saturday is sacreligious, etc].  AND
(2)	Their beliefs must be rooted in religion [not philosophy, like Thoreau’s views, or some secular antipathy towards modern society, etc.]    

b.	Here, Ps’ religious beliefs were sincere.  They sincerely believe their views about school, and their beliefs are not just “a way of life” (like Thoreau’s view of society at his time) but also rooted in over 200 years of religion.

1.	Dave says “rooted in religion” is a problematic requirement.  Thoreau’s transcendentalism, for example, has its roots in some Christian religious doctrine, but the Court still does not considerate the movement “rooted in religion.” 

c.	Even though a state statute is general and neutral on its face, if it adversely impacts a religion, then that religion can bring a Free Exercise claim.  The state cannot claim, as here, that the statute just prohibits actions (cannot let kids leave school before they’re 16) and does not apply to religion under the First Am. 

d.	Here, the state statute clearly adversely effects the Amish, who do not want their kids to go to school past junior high.  Since there is a burden on their religion, the next step is to see if the state can justify this burden by meeting “strict scrutiny”—the state must show that there is a “compelling state interest” for the law and the law was “narrowly tailored” (there were no alternative forms of regulation that would combat such abuses).  

e.	The state says that is interest is having all of its citizens be reasonably well-educated, so that they can participate intelligently in the political affairs of the state and become economically self-sufficient.  But “there is nothing in the record to suggest that the Amish qualities of reliability, self-reliance, and dedication to work would fail to find ready markets in today’s society.”  After they leave junior high, the Amish members are informally taught living through farming and other rural activities, and still receive an education of some kind.  Educating the Amish for a year or two after junior high would do little to serve the state’s interest re “markets in today’s society,” since the Amish prepare for a life in a separated agrarian community that is the keystone of Amish life, not for a life in modern society.

1.  This part of Ct’s opinion suggests that if Amish were not so hard-working, peaceful, devout, etc., that the State may have fulfilled its compelling interest.  What if the Amish in this case were the Branch Davidians?  They would have more problems than they already have…

f.	The state has not presented a compelling interest, and because the statute imposes a burden on Ps’ religious views, it violates the Free Exercise Clause.  Ps should be exempted from the statute.  “It should be emphasized that we are not dealing in this case with a way of life and mode of education by a group claiming to have recently discovered some ‘progressive’ or more enlightened process for rearing children in modern life,” since the Amish have sincere religious beliefs going back 200 years.

1. Marxists and Vegetarians: Make sure you send your kids to school!  This ruling does not apply to you! 

2.  Douglas’ Dissent in Part

a.	The majority was wrong to decide the case without determining whether each of the children involved desired to attend high school over the objections of their parents.  The trial court should see if the kids want to go to school, and if they do, the Amish parents’ wishes should be overruled…

b.	What’s the majority’s bullshit distinction between religion and philosophical views?  This is a very tenuous distinction.  Besides, in the past, we have considered conscientious objector claims to fall under “religious training and belief” in the Selective Service Act, even though the objectors may have not been religious.

3.  Other comments…

a.  No one in this case addressed the Establishment Clause  issue—whether the exemption of the Amish to the statute was an establishment of religion—unlike as in Scherbert.  Address both clauses on the final!  

D.	Smith (1990):  This case dealt with a criminal statute that was (yet again!) general and neutral on its face but had adverse impact on a religious group.  Many scholars think that this case overruled the approach taken in Scherbert and Yoder.  In this case, the issue was whether Oregon could criminalize the possession of the drug peyote, and refuse to give an exemption to Native-Americans whose use of the drug is a central part of their religious rites.  Was this a violation of the Free Exercise Clause?

1.	Majority

a.	Scalia, who can write a great dissent but cannot write a majority opinion to save his life, held that the law did not violate the Free Exercise Clause.  First, he pretended that the Supreme Court in Smith was just following many years of legal precedent, and he pretends to stick to this legal precedent, but distinguishes the facts of this case from previous cases (like Yoder).

b.	Scalia argue that this case does not present “such a hybrid situation” as, say, Yoder, because this case does not deal with Ps’ communicative activity or parental right.  It just deals with Ps doing peyote for religious reasons.  

c.  The test Scalia essentially adopts is: “If prohibiting religion is merely the incidental effect of a generally applicable and otherwise valid provision, the First Am. is not offended.”  The effect of the Oregon law was incidental and thus not violative of the First Am. 

c.	We reject the Scherbert test in this context because that test is only limited to employment compensation situations.  It would be a “constitutional anomaly” to have the State meet strict scrutiny with this statute, since allowing a person to not obey the law for religious reasons (as in this case) if the state does not show a compelling interest would allow all kinds of religious believers to violate State law. 

1.  This isn’t true about the limitation of Scherbert.  Yoder applied the same test as Scherbert, and that was not in the “employment compensation” field.

d.	If the Scherbert test were used, it could be used to strike down virtually all areas of law from civil obligations to paying taxes to manslaughter and child neglect laws.

1.  It could be used for this, but most likely these laws would pass strict scrutiny under the Scherbert test (just as O’Connor in this case felt the peyote law passed strict scrutiny).

e.	If Ps want an exemption, they should go to the state legislature.  State legislatures, through the political process, should exempt religions to certain legislation if they choose.  But this should not be left up to the court.

1.  Obviously, these exemptions could create serious Establishment Clause issues.            

2.  O’Connor’s Dissent 

a.	“The First Am. does not distinguish between laws that are generally applicable and laws that target religious practices.”   

b.	 In her dissent, O’Connor thinks Scalia’s “incidental effect” test is incorrect, and she would apply the Scherbert test.  This would be consistent with the past holdings of the Court.  Under Scherbert, the state’s law does burden Ps’ Free Exercise.  Peyote is  a “sacrament” of Native American Church and is vital to Ps’ ability to practice their religion.  The state statute, which is neutral on its face, burdens Ps ability to practice their religion.  Thus, the next step in the Scherbert test is to see if the law meets strict scrutiny.  The law does meet strict scrutiny, since Oregon has a compelling interest in enforcing laws that control the possession and use of controlled substance by its citizens.  Although she thinks it’s a close call, O’Connor says the criminal prohibition is “essential to accomplish” its overriding interest in preventing the physical harm caused by peyote use to everyone, including Native Americans

1.  Dave agrees with O’Connor that the Scherbert test should apply and that Scalia did not persuasively distinguish the previous cases form this case.

c.	A religious exemption would be incompatible with this.

3.  Blackmun’s Dissent

a.	Writing for the dissent, Blackmun says he agrees with O’Connor (and thus disagree with the majority) that Scherbert should apply.

b.	But he holds there is no compelling state interest here.  23 states have exceptions for peyote use among Native Americans, and thus there is no evidence that the religious use of peyote ever harmed anyone.  “The circumscribed ritual context in which Native Americans used peyote is far removed from the irresponsible and unrestricted recreational use of unlawful drugs.”

c.	The values and interests of the Native Americans are congruent with those the State seeks to promote through its drugs laws—self-reliance, familial responsibility, and abstinence from alcohol—much like the situation in Yodel.

d.	The majority argues that if Native Americans were given a peyote exemption, a flood of Free Exercise claims would come from other groups.  But this argument can be made in almost any Free Exercise case.  It’s purely speculative with no support.

e.	The majority and O’Connor’s holding will seriously interfere with Ps’ worship.  This is at odds with a goal of federal policy of protecting the religious freedom of Native Americans.

E.	Religious Freedom Restoration Act of 1993:  This Act was intended to overrule Scalia’s holding in Smith.  On p. 1190, in Sec 3., there is essentially a codification of the Scherbert test.  Is this Act now controlling?  The U.S. Supreme Court is supposed to rule on the constitutionality of the act (I think the Court just found it unconstitutional).

F.	Exam Approach to Free Exercise Questions:

1.	Apply Yoder’s requirements for making a Free Exercise Clause claim in the first place:

a.	Religious beliefs must be sincere, AND

b.	The beliefs must be rooted in religion.

And point out shortcomings of this test—see Douglas’ argument in Yoder.

2.	Apply Scherbert, and explain briefly how this may not be the controlling test in light of Smith.  The Scherbert test is as follows:

a.	Is there a direct or indirect burden on the Free Exercise of religion (see above for def. of burden).  If yes, then go to “b”.  If no, then there is no Free Exercise claim.

b.	Does the state have a “compelling interest” in the law, and is the law “narrowly tailored.”  If yes, then Free Exercise claim fails.  If no, then that religious group is exempted from the statute.

Note that even if there is an exemption, there still can be Establishment Clause issues!  Be sure and discuss these.  If there are Establishment Clause issues, then the Free Exercise Clause must be balanced against the Establishment Clause issues. 

3.	After applying the Scherbert test, then apply the Smith test.  Smith may be the binding test since the case, which was decided a few years ago, rejected the Scherbert test, saying that the Scherbert test was “limited to unemployment and compensation cases.”  O’Connor describes Scalia’s test as follows:

a.	“If prohibiting religion is merely an incidental effect of a generally applicable and otherwise valid provision, then the First Am. is not implicated,” AND
b.	The legislature can be allowed to create religious exemptions for groups if they want to exclude those groups.

Scalia’s definition of “incidental” is not a particularly high standard, since he thought that a state law interfering with Native Americans’ long tradition of ingesting peyote was “incidental” to an anti-drug law.  

Note that the dissents in Smith strongly objected to Scalia’s approach and they applied the Scherbert test.

4.  Finally, briefly apply the Religious Restoration Act (a codification of Scherbert), assuming that Act is constitutional.