I. Regulatory Interests and the Value of Communication

CON LAW IV OUTLINE

SPEECH

I. Regulatory Interests and the Value of Communication A. Speech Inciting Violence or Lawbreaking 1. Assume whatever expression on the exam is speech—better to say everything is speech and the narrowly define the freedom of speech a) Okay to have hierarchy (political, scientific/artistic, obscenity = lowest) 2. During WWI and the years immediately following, the Sup Ct articulated and applied “clear and present danger”. 3. During the 20’s and 30’s the Court did not use this formulation, but instead used reasonableness test—allowed Govt to punish advocacy of illegality as long as it was reasonable to do so. 4. During the 50’s McCarthy era the Court reformulated c&p danger test as a risk formula—depended on gravity of evil compared with likelihood. 5. More recently, Court narrowly defined incitement to protect speech more. Danger has to be imminent! 6. +Schenck (leaflet arguing against the draft. No evidence it caused anyone to actually resist the draft) and +Abrams (Russians with leaflets objecting to sending troops to E Europe. Accused of interfering with war, even though they weren’t): a) clear-and-present danger b) These are wartime cases—so they can find legitimate risk (usually hard to find c&p danger in case specific analysis) c) Both pamphlets—now just a pamphlet would always be protected d) Schenck = Holmes majority—pure case specific analysis e) Holmes dissents in Abrams—says no intent to impede the war, no c&p danger f) In these cases the speaker is advocating lawbreaking 7. +Gitlow (Left wing manifesto) and +Whitney (communist party meeting): the possibility of deference and the relevance of content-based regulation a) Getting some traction for speech (more justices voting pro speech) b) Majority in Gitlow says we shouldn’t wait until the violence has already erupted—it will be too late c) Deference: once legislature defines criminal anarchy by statute, the court says it doesn’t matter than on the facts there is no clear and present danger—it matters that the govt’s law is “reasonable” d) Whitney: collective action is more dangerous than individual action e) Both arise out of splinter factions—legislature singled out content-based area of speech (criminal syndicalism). Courts can’t review (deference) f) Bork: if you have non-peaceful speech, you’re opting out of the system, and you should be unprotected 8. +Dennis (teaching communist books): case-sensitive risk assessments and the sleeper cell problem a) transitional case – don’t use c&p or reasonableness. Instead, ask whether gravity of evil, discounted by improbability, justifies such invasion of free speech as is necessary to avoid the danger b) this case says sleeper cell is so dangerous, the govt does not need to show the danger is imminent or probable! i. Makes imminence and probability irrelevant!!! ii. Plurality says this is c&p danger analysis, but not clear that it is c) case specific risk assessment—moves away from deference, twds c&p danger d) still giving deference in the sense that even though they’re doing a case- specific analysis, they’re fudging a bit to be deferential 9. Emerging speech categories a) The Brandenburg test and its domain –Brandenburg v. OH (1969) (KKK rally) 1) How does the test work? 1. “advocacy directed to” inciting (intent)? 2. “imminent” lawless action? 3. “likely to” incite such action? 2) None of the earlier tests has the intent requirement! 3) Within what domain – any regulation targeting advocacy of lawbreaking? 1. Brandenberg is not really tailored to case-specific situations (ex: sleeper cell terrorists—not really imminent, but there is danger)—in situations like this Dennis could come back in (but we don’t have cases like this) - Hess v. Indiana (“We’ll take the fucking street later”): Ct says doesn’t meet Brandenburg test—even if it happens later today, it’s not imminent enough - NAACP v. Claiborne (boycott of white-owned discriminatory businesses—“if we catch you going in, we’re going to break your damn neck”): Ct says advocacy of violence is not enough b) Fighting words and the Chaplinsky methodology +Chaplinsky v. New Hampshire (“You are a God damned racketeer”) (1942) and the insult 1) Methodology for defining categories: compare Dennis (identification of value v. identification of risk) 2) Definition: e.g., (1) “by their very utterance inflict injury” or (2) “tend to incite an immediate breach of the peace” / “epithets likely to provoke the average person to retaliation” 3) Fighting words doctrine was based on two men in the street, what they would find offensive—now, it’s harder to figure out what that would be since there are so many different kinds of people on the street 4) Court has never upheld fighting words conviction since Chaplinsky. Cf. –Cantwell (1940) (plays record that attacks Catholic religion) – has to be offensive “efforts to persuade” (has to be personalized insult, provocation) – record posed no clear and present menace to public peace and order Cf. –Goading (1972) (antiwar demonstration, says “I’ll kill you.”) – void on its face because it’s overbroad (protects speech beyond fighting words) c) Hostile audiences, from street corners to mass mobilization +Feiner (1951) (speech criticizing president and local officials for civil rights record) (2 officers v. 75+) and the heckler’s veto (police weren’t trying to suppress speech; just trying to keep the peace. Kind of a heckler’s veto, but only option the cops had. But cf. –Edwards (1963) (civil rights protesters marching on SC capitol) (30 v. 200-300). Court distinguished Feiner based on absence of violence or threats of violence on march.; –Cox v. La. (1965) (75 v. 100-300) (tons of police presence = no real danger that violence would erupt, but then no obligation for police presence at all) i. Is there a govt obligation to protect speakers from violence? ii. To prioritize crowd control over speaker silence? 1) No case that says they have obligation to send any officers, but if they do send officers, they have to protect the speaker (catch-22) iii. These cases say that the First Amend requires that the police try to control the audience that is threatening violence and stop the speaker only if crowd control is impossible and a threat to breach of peace imminent. iv. Licensing alternatives?: –Kunz (1951) (can’t deny licenses for speakers in certain areas), –Forsyth (1992) (regulators cannot charge for protection based on how dangerous they think speech is going to be) B. Speech Injuring Reputation 1. –NYT v. Sullivan (1964) (Court says recovery for defamation (libel and slander) is limited by First amendment) a) The regulation and speech at issue – ad criticizing elected commissioner, included false statements b) Theory of value: “the central meaning”? “the very center”? i. Brennan: Central meaning of first amendment is you want to allow criticism of govt c) What value in false statements of fact? i. Communicates what the public thinks is true d) Doctrine and application: what must such plaintiffs prove? i. (1) Plaintff is public official or running for pub office ii. (2) P must prove case with clear and convincing evidence iii. (3) P must prove falsity of statement iv. (4) P must prove actual malice = knowledge that it was false or reckless disregard of whether it’s false or not e) Critique: too strong or too weak? 2. Sullivan’s progeny (hypo: Doe v. Hilton, Hilton v. Doe, Roe v. Doe) a) Plaintiffs are public officials or public figures v. private figures i. compare, e.g., –Curtis Pub. v. Butts (1967) (applies Sullivan to non-public figure – football coach), with +Gertz (1974) (private figures don’t have to meet Sullivan standard) 1) Public figures can protect themselves with self-help 2) Standard is only through examples—no public figure/private figure definition 1. Gertz: public figures have “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” b) Speech is of public concern v. private concern i. compare, e.g., –Sullivan, with +Dun & Bradstreet (1985) 1) Sullivan: public 2) Dun: not public concern (credit report only circulated to 5 people—matters of purely private concern don’t get first amend protection) 1. Don’t have to prove actual malice to collect punitive damages. C. Speech Injuring Feelings 1. Offensive language choices: –Cohen v. California (1971) – fuck the draft a) Court holds that unprotected fighting words occur only if speech is directed to specific person and is likely to provoke violent response b) Cohen’s commitments: i. distinguishing punishment for speech content 1) you can punish for inciting violence, but not just for speech ii. minimizing the categories of unprotected speech 1) need to have another reason to regulate other than simple offensiveness iii. distrusting regulation, testing regulator assertions 1) departure from Whitney and Gitlow iv. slippery slope arguments? 1) Court worries if they eliminate certain class of speech, they’ll start regulating too much 2) You have to protect the ability to shock v. libertarian theme: speaker emotion, taste choice, method choice? 1) There are limits on speaker choice and harm (eg. terrorism) vi. its consequences: audience pain, self-help? 1) They didn’t have to look at it! (but they are captive in a sense—have to be there) c) Cohen is about content, Sullivan is about message (no one is saying stop the draft is an illegitimate message) 2. Emotionally distressing messages: –Hustler v. Falwell (1988) a) Court says recovery for the tort of intentional infliction of emotional distress has to meet Sullivan standard (have to prove actual malice!) b) The regulation and speech at issue i. Fake Campari ad making fun of Falwell c) Why is hate protected here? Speaker interest? Audience interest? i. Audience interest is more important than Falwell’s interest because they’re worried about chilling “political” speech (cartoonists) ii. Intent is necessary, but not sufficient (not enough that they intended to piss him off) d) Should alleged emotional injury ever overcome free speech values? i. Yes, for private figures e) Audience size matters—if it’s big enough, it’s public (like in Hustler), and that’s better (smaller audience = non-public audience, e.g. Dun & Bradstreet) 3. Privacy exposure: is there anything special here? a) Broadcasting “private” phone conversations: –Bartnicki (2001) (illegally recorded teachers’ union convo broadcast on radio) i. Regulation: prohibited intentionally disclosing the contents of an electronic communication with reason to know that the information was obtained by unlawful interception ii. Can’t punish people for broadcasting info obtained unlawfully— makes more sense to punish the person you know is breaking the law iii. Stevens: privacy concerns give way when balanced against public interest b) Broadcasting names of rape victims: –Florida Star (1989) (Court holds no liability for invasion of privacy when there is truthful reporting obtained from public records) i. Regulation: prohibited “publish[ing] . . . in any instrument of mass communication the name, address, or other identifying fact or information of the victim of any sexual offense” ii. Court is super pro-media (makes sense that’s most important since it is the source of political speech) D. Racist Contents 1. Questions of violence and status: +Beauharnais (Sup Ct upheld state law that prohibited publication with racially discriminatory message) (1954) a) “Group libel” – kind of fake (Black dissent says libel is for individuals only) b) Court is more careful about racist content (IL is “scene of racial tension”) i. Goes back to zones of deference—legislature defines anti- discriminatory category, court says this is a reasonable basis c) This is the strongest authority for govt to regulate racist speech, and it has never been overruled. Yet it is questionable whether this is still good law. This is based on the assumption that defamation liability is unlimited by First Amend, which was rejected a decade later in NY Times v. Sullivan. Doubtful that post-Sullivan Ct would allow punishment of individuals for political speech, even if it is racist. 2. The viewpoint discrimination response: –R.A.V. (1992) (ordinance prohibits placing objects on private property including (but not limited to) swastika, burning cross or anything that “arouses anger”) a) Claimant conduct and its relevance i. Turns out all 9 justices could have decided case without discussion of conduct (unlike Beauharnais, not specific to racism) b) Fighting words and the overbreadth rationale (4 votes) i. White – criminalizes not only unprotected expression but expression protected by First Amend c) The viewpoint discrimination rationale (5 votes) i. Scalia – targeted at not all fighting words, but just unpopular viewpoints d) May the City prohibit any subset of the fighting words category? i. Only if it’s viewpoint neutral (like, “the worst kind of fighting words”) – only if it does not draw content-based distinctions among types of speech 1) Problem—if it’s viewpoint neutral, more likely it is overbroad ii. You’re supposed to use strict scrutiny when content based, but only in cases where suppression of ideas as foot 1) Ex: banning all movies with blue eyed actresses is okay —not suppressing ideas (Scalia) e) Note on bias-motivated crimes: +Mitchell (1993) (Upheld state law that imposed greater punishments if it could be proved that a victim was chosen because of his race) i. Higher sentence since it was racially motivated ii. Beating up the white guy = conduct, not speech—okay to punish (distinguish R.A.V.) 1) Rehnquist: law singles out bias-inspired conduct because this conduct is thought to inflict greater societal harm 3. The true threat rejoinder: +/–Virginia v. Black (2003) (VA law prohibits cross burning “with an intent to intimidate.” Says cross burning is prima facie evidence of intent to intimidate. Two cases-one, KKK on isolated farm, one teenagers on black family’s yard.) a) Joint case—one wins, one loses—as applied challenges to cross burning in the field b) The regulation: certain cross burning “with the intent of intimidating any person” + “prima facie evidence” of such intent i. Shot down regulation—said you can’t say cross burning is prima facie evidence of intent to intimidate—have to prove intent ii. As applied: KKK has no intent to intimidate (in a field), but teenagers did have intent (person’s yard)—this was true threat c) What is a “true threat”? i. New area of protection = true threats 1) Cross burning is only true threat if it’s intent to intimidate ii. O’Connor: true threats = “encompass those statements when the speaker means to communicate a serious intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intent to carry out the threat.” d) Any problem with the Virginia statute? Is R.A.V. good law? i. Yes, because these true threats are in the center of the fighting words bullseye—don’t cut across like in R.A.V. e) Holding: cross burning is protected speech and cannot be completely outlawed, but the govt may prohibit it when done in a manner that constitutes a “true threat.” f) Could look at racist content a different way— i. 13th, 14th, 15th amendments ban “racism”—have to apply these to 1st amend ii. “dangerous organization” exception—applies to KKK E. Sexually Explicit Expression 1. Arguments in favor of govt prohibition of obscenity: a) Community should be able to determine its moral environment b) Causes antisocial behavior, particularly violence against women c) Should be considered sex aid, not speech 2. Obscenity under Miller/Slaton a) Early development: Hicklin (1868), Roth (1957), Redrup (1967) i. Hicklin: tendency to deprave to those who are open to it ii. Roth: obscenity is unprotected by 1st Amend. Definition of obscenity is material that appeals to prurient interests (reinstated in Miller) iii. Redrup: case-by-case vote by the court b) The Miller/Slaton reformulation i. +Miller v. California (1973) (unsolicited mass mailings) 1) average person would find that, taken as a whole, the work appeals to the prurient interest (local) 2) sexual conduct depicted in a patently offensive way (local) 3) taken as a whole, lacks serious L.A.P.S. value (national) 1. gives them reason to overrule juries 2. significant that it’s in your home 3. court had read Slaton when they decided this ii. +/?Paris Adult Theatre I v. Slaton (1973) (commercial theaters) 1) state has interest in regulating obscene material in public places 2) extends Miller to more than just home possession 1. even though we have Cohen rule (you can avert your eyes), still can regulate in public 3) court says maybe we can’t limit consensual obscenity in the home 4) the question is not just is it obscene or not, but whether you can watch or not (and where) iii. –Stanley (1969) (home possession) 1) pure privacy—okay to watch porn at home c) Is an “obscenity” category defensible? More so than “racism”? 3. Child pornography a) A new category: +NY v. Ferber (1982) (9-0) i. Ban on selling a “performance which includes sexual conduct by a child less than sixteen years of age” knowing the content thereof, applied to films of boys masturbating ii. Completely outside First amendment protection (like Chaplinsky fighting words) 1) Compelling state interest in protecting minors 2) Distribution of child porn related to sexual abuse 3) No speech value whatsoever iii. Miller modified: considering govt interest in child protection and little speech interest in light of alternatives, (1) needn’t prove prurient to average person, (2) needn’t be patently offensive, (3) not as a whole – though simple child nudity is insufficient b) Virtual child pornography: –Ashcroft v. FSC (2002) (Ct declares unconstitutional the Child Pornography Prevention Act of 1996, which prohibits child porn whether it is based on actual children or computer- generated images)—court says too broad—can’t extend Ferber to porn without actual child actors i. Important note: Govt cannot ban child porn based on its condemnation of the material. Rather, the govt’s interest is limited to protecting children from being used in the making of the material. ii. Compare S harming child actors, with A abusing other kids 1) Ashcroft says it’s about what the speaker is doing to child actors, not about what the audience might do c) Mere possession thereof: +Osborn v. OH (1990) – can’t possess child porn (in contrast to Stanley) – reasoning is it creates a market d) + U.S. v. Williams (no longer pending): knowingly distributing, soliciting, etc. material or purported material “in a manner that reflects the belief, or that is intended to cause another to believe,” that the material is or contains child pornography i. Scalia upheld regulation 4. Other sexually explicit expression: lower value content? a) Nudity as entertainment (and entertainment as protected speech): –Erznoznik (1975) (drive-in movie nudity ban and A self-help)—if this law is about protecting minors it’s overbroad (some nudity is ok, like baby’s butts), but if it’s about distracting motorists it’s underinclusive (lots of things distract motorists). Audience can look away—audience self help is continuing theme throughout content- based analysis. Have to look at govt motivation because it’s content based! –Schad (1981) (live entertainment ban, applied to nude dancing) – court said this is overbroad i. What if such entertainment had been available in the next town? b) Zoning and the secondary effects doctrine i. Sup Ct has indicated that there is a category of sexual speech that does not meet the test for obscenity and thus is protected by the First Amend, but is deemed to be low value speech and thus the govt has latitude to regulate such expression +Young v. American Mini Theatres (1976) (cracking) – zoning adult theaters is ok. City gets to choose whether secondary effects would be more limited by spreading out theaters (“cracking”) or putting them all in red light district (“packing”) – both are ok 1) The regulation: no adult motion picture theater w/i 1000 ft of 2 other regulated uses, or w/i 500 ft of a residential zone 2) The rationale: low-value content? secondary effects? +City of Renton v. Playtime Theatres (1986) (packing) 1) The regulation: no adult motion picture theater w/i 1000 ft of a residential zone, church, park, or school 2) Secondary effects and content neutrality a. Anything that creates secondary effects is content-neutral—aimed at effects, not content 3) Should the theaters’ nonpolitical & commercial character matter? a. Contrast Sullivan—commercial character doesn’t automatically make it a speech value on the boundary b. Here they can just go elsewhere (to another city) 4) Should it matter that the ordinance doesn’t reach 5% of the City? a. Because they allow it somewhere in the city, it’s not totally banned (zoning as opposed to ban), even if it makes it economically unfeasible b. Samaha doesn’t like this—says it’s basically a ban, even if they call it a zone c. Court does not indicate at what point such restrictions are effective preclusions of speech protected by the First amend. 5) Should courts defer to legislative/executive judgment here? a. Yes, unless there’s a reason that the legislature misfires 6) Is there 1st Am value in exposing an unwilling A to speech? Cf. snail mail ad opt outs: +Rowan (1970) (compare Cohen) – it’s okay to have to take the first blow, as long as you can avert your eyes eventually c) Other channeling regulation and the child welfare rationale i. Dial-in telephone indecency ban: –Sable (1989) (dial-a-porn) 1) Court says there is a difference btw broadcast and phone —broadcast comes into your home, and you can’t be forewarned. Here no captive audience. 2) Distinction btw “obscene” and “indecent” – can prohibit obscene speech, but not indecent speech (as here) ii. Broadcast indecency timing: +FCC v. Pacifica (1978) (Carlin 7 dirty words). Court says govt can’t ban all these words, but can ban them from being aired over broascast media 1) Really bad because a) broadcast (comes into home!), b) during the day, and c) kids could hear 2) Audience can always buy Carlin record, so you’re not totally banning the speech iii. Cable tv indecency timing or blocking: –Playboy (2000) (Ct used strict scrutiny to declare unconstitutional a provision of Cable Act regulating sexual speech) 1) This is content based! (Law regulates signal bleed on sexual images, but not any other type.)—first time court applies strict scrutiny to sexually explicit, nonobscene speech. 2) This is more like Sable than Pacifica – you go out and get it 3) There is an alternative—users can block channels 4) Thomas concurrence says maybe this regulation would be okay if it only targeted obscenity (as opposed to “indecency”) iv. Internet indecency: Is the net special? Hurt/help regulators? 1) This far Court has been very protective of the Internet as a medium of communication and has shown a great reluctance to uphold restrictions of content on the Internet –Reno v. ACLU (1997) (Court invalidates key provisions of the CDA, which bars indecent transmissions and patently offensive displays across the internet, with a defense for certain “effective”/listed efforts to block minors) 1) you can choose to look or not (like Sable) and 2) there’s no Miller-like value test. If it only blocked minor access, could come out differently, but would be prohibitively expensive for websites to conform +/?Ashcroft v. ACLU I (2002) (COPA: Court held that the phrase “contemporary community standards” is not unduly vague) –/?Ashcroft v. ACLU II (2004) (COPA again: affirming the preliminary injunction. Said substantial likelihood that law would be declared unconstitutional because content-bases restriction, since it applied only to sexual content over the internet and thus must meet strict scrutiny.) Court says unconst because not least restrictive alternative—filters installed by parents would be more effective. F. Speech Related to Commerce 1. Speech threatening commercial transactions a) Ignoring performer’s right to control publicity: +Zacchini (1977) (human cannonball) i. State has interest in encouraging entertainment ii. Close to a copyright case (more property than first amend) iii. Shows Court’s willingness to allow liability for publications which decrease the commercial value of the speech of others. b) Infringing copyright outside of fair use: +Eldred (2003) (pro-speech?) i. Rejected free speech argument ii. Extends copyright protection c) Disclosing trade secrets: +Genovese (S.D.N.Y. 2005) (criminal case; compare injunctions and employee discharge/damages…) i. Sold Microsoft code over internet for $20 ii. Trade secrets = unprotected speech iii. Speech value encourages MS to create a better Windows—twds more regulation d) Breaking promises by publication: +Cohen v. Cowles (1991) – informant disclosed secrets, newspaper reported his name against their promise i. Court finds for him because of promissory estoppel, not because of speech ii. Rule of general application—can’t opt out for first amend reasons (like taxes) 2. Speech promoting commercial transactions a) The “commercial speech” category –Va. Pharmacy Bd. v. Va. Citizens Consumer Cncl. (1976) – whether pharmacies can advertise drug prices. Court says they can do this—this speech is protected, but LESS (like nudity) b) The level of judicial scrutiny = intermediate scrutiny (test from Central Hudson) i. (1) Lawful? (Not misleading) ii. (2) Substantial govt interest? iii. (3) Regulation advances interest? iv. (4) Reasonably tailored? –Central Hudson Gas v. PSC (1980) (electric utility ads) – court says not reasonably tailored +Florida Bar (1995) (Personal injury lawyer direct mail ban for 30 days) – court held regulation served substantial interest and reasonably tailored because it’s “limited to brief period” c) Should we protect commercial speech? i. Arguments against: 1) Not worthy of protection because it does not directly concern the political process and self-govt ii. Argument for: 1) Robert Post: information function II. Regulatory Character and Its Effect on Judicial Scrutiny A. Defining Speech 1. The test in Spence (1974) – upside down peace sign a) 1) particularized message? b) 2) is there likelihood that audience will understand it? 2. Spence test doesn’t talk about artistic merit (lots of art won’t be particularized message), but we protect it anyway because of its value 3. Adjustments in Hurley (1995) – Irish parade a) Court says doesn’t have to be particularized message to be speech B. Content-Based or Content-Neutral Regulation 1. Introduction to the distinction a) The concept of content discrimination (Torch route hypos *20) i. Only #6 is content-based—it’s about intent—just because it happens to affect one group, it’s not content-based ii. Definition of content-based speech: laws that, by their terms distinguish favored speech from disfavored speech on the basis of the ideas expressed (Turner v. FCC) b) Sources used to find it: (1) text? (2) justification? (3) motive? c) The meaning of strict scrutiny i. real and compelling government interest? ii. regulation is narrowly tailored to serve that interest? 2. Some applications a) Draft card destruction ban: +United States v. O’Brien (1968) i. In what sense is this regulation content neutral? 1) Why people burn draft cards doesn’t matter 2) Govt interest in O’Brien is weak—to remind them to check in with office—but works anyway ii. What kind of judicial scrutiny results? Why? 1) Intermediate scrutiny—O’BRIEN TEST: 1. Regulation is within government powers 2. Furthers a substantial interest 3. Interest unrelated to suppression of free speech 4. Limit of free speech no greater than essential to limit non-speech component (reasonably tailored) iii. Compare +Arcara (1989) (no judicial scrutiny?) – (court upheld court order that closed down adult bookstore that was used as place of prostitution) 1) Regulation aimed only at conduct, not speech 2) Speech just implicated—they could have a regular bookstore b) Flag desecration ban: –Texas v. Johnson (1989) – Ct says not fighting words bc not directed at particular person (like Cohen) i. Is the State targeting speech manner, rather than content? 1) There have to be limits on speaker’s choice of conduct (eg. Flying planes into towers), but how much can we separate manner from content? 2) Not manner because it’s related to the fact that it’s the flag 1. Different from O’Brien because in that they wanted to keep track of people and in this the only justification for the flag is symbolic ii. Is the asserted interest in symbol preservation troubling? 1) Troubling because it’s only state-chosen meaning c) Public nudity ban: +Barnes (1991) (held that govt could completely ban nude dancing—Indiana statute could require that dancers must wear pasties and G-string) and +Pap’s (2000) (city ordinance banning public nudity with clear objective of shutting down nude club) i. Barnes – plurality says it’s speech, but content neutral and therefore they apply O’Brien – says substantial govt in “protecting order and morality” – sounds like secondary effects but only Souter says so 1) Troubling because of absence of purpose for banning nude dancing that is unrelated to suppression of message —looks like they’re banning for moral reasons ii. Pap’s – applies O’Brien and specifically says secondary effects 1) Souter dissents in part and says we should demand evidence of any harm before finding secondary effects C. Content-Neutral Regulation 1. Attenuated burdens on speech: +Arcara (1986) a) Okay to incidentally burden speech if the purpose is something else b) BUT pretextual purpose is not okay 2. Incidental burdens on speech: +O’Brien (1968) a) asserted interest “unrelated to the suppression of free expression” b) regulation furthers an important government interest c) incidental restriction on speech is “no greater than is essential” to the furtherance of the interest (but need not be least restrictive) 3. Regulating time, place, and manner of speech (TPM) a) The modern test: +Ward v. Rock Against Racism (1989) (Court upheld requirement in NYC that any concert using the bandshell in Central Park had to use city sound engineers and equipment.) i. Time, Place & Manner Test: 1) Reasonable regarding time, place and manner 2) Justified without reference to content 3) Narrowly tailored to serve legit govt interest ii. Doesn’t need to be the least restrictive method, just need to show govt interest would be less likely to be achieved with it than without it b) Is the test different from O’Brien? Should it be? i. Not as generous as O’Brien test ii. O’Brien not reached until ask content neutral so this test folds both parts together 4. Impermissible total medium bans (TMB) a) Street/sidewalk leafleting ban: –Schneider (1939) – Court rejected city’s argument that ban was necessary to minimize litter. City must allow speech on its property even if doing so will impose costs on the city! b) Suburban property sign ban: –City of Ladue (1994) i. If the regulation is content neutral, why worry about TMB? ii. If we worry about TMB, why care about content neutrality? c) Government property sign ban: +Taxpayers for Vincent (1984) (upheld ordinance prohibiting posting of signs on public property) – not overbroad d) Modified O’Brien test – is the infringement on speech incidental i. How can we distinguish bad TMB from good TPM? Kind of medium and who usually uses it? Worried about alternative channels D. Government-Friendly Contexts? 1. Speech with government property: Perry’s forum analysis a) Always: +Davis v. Massachusetts (1897) (upheld Boston ordinance that prohibited any public address on publicly owned property without permit from mayor) – government property is like private property and citizens have no rights b) Sometimes: +Perry Education Ass’n (1983) (Court upheld exclusion of rival union from interschool mail system available to teachers’ union). Court identified types of govt property: i. Traditional public forum → streets or parks, intermediate scrutiny (govt cannot enact total medium ban w/o compelling state interest) 1) Government can only regulate if: 1. Regulation is content-neutral unless justified by strict scrutiny 2. Must be reasonable TPM restriction that serves important govt interest and leaves open adequate alternatives for speech 3. Licensing or permit system must serve an important purpose 4. Govt regulation need not use least restrictive alternative, although must be narrowly tailored ii. Limited / Designated public forum → schools, amphitheaters – once the state opens up its use as place for public scrutiny, bound by same standards as traditional public forum – intermediate scrutiny, government can shut it down when they want. (ex: Grant park) 1) Test traditionally is the same once it’s opened up to public, 2) but in Good News Club v. Milford Central School, Thomas said that when a state establishes a limited public forum, the state is not required to and does not allow persons to engage in every type of speech. The State may be justified in reserving its forum for certain groups of the discussion of certain topics. 3) We don’t know if this change will apply in future cases. iii. Nonpublic forum → private property, no scrutiny (jails, military bases) 1) Can prohibit or restrict speech so long as restriction is reasonable and viewpoint neutral c) An application: +AETC v. Forbes (1998) (candidate not allowed in public debate). Court holds that government-owned television broadcasting is non-public forum, editorial discretion, not viewpoint discrimination i. Just because govt owns station and holds debate, it has not created limited public forum. (Not designed as public forum—not designed to be generally available.) d) Private property functioning like public forum? Marsh v. AL (1946) – Company-owned town—Jehovah’s Witness pamphleteer private. They want to say no soliciting in their town. Court says forums can become public by their actions, calling in police makes it take on a public character, but this thinking didn’t last long 2. Speech and association by government employees a) Adverse employment action taken because of speech –Pickering v. Bd. of Ed. (1968) – wrote newspaper letter but acting as a private citizen, not a teacher, encourage whistleblowers. Court looks (1) whether speech was matter of public concern (2) whether he was speaking out as citizen or employee; then applies balancing test. Here court says speech is protected. +Connick v. Myers (1983) (the disgruntled ADA who circulates email.) Court rules against ADA, says speech is not protected by First Amend because it did not involve comment upon matters of public concern. i. Speech on a matter of public concern 1) (legitimate news interest; using employer reasonable belief) ii. delivered in a private citizen capacity iii. triggers deferential interest balancing. b) Evaluation of the doctrine i. Is judicial oversight defensible? See Cohen v. Cowles Media (anonymous source outed) - should the court ever weigh private interests when there is an issue of public concern/ getting the info out there? In this case balance tipped to speaker even though case comes out pro regulation c) Employee association i. Campaign bans: e.g., +U.S. CSC v. Letter Carriers (1973) (congress has power to prevent govt employees from holding party office, working at polls, acting as party paymaster) – uses the Pickering balancing test, goes in favor of government as a facial challenge ii. Partisanship demands: e.g., –Branti v. Finkel (1980) (2 pub defenders fired because they were Republican). Court said their discharge violated first amendment – test for when it’s ok to fire because of political affiliation. In this case party affiliation had no bearing on ability to do the job 1) No policy creation 2) Confidential access to information has no bearing on public concern 3. Speech financed by government a) “Subsidies,” “entitlements,” and the baseline problem: don’t have to build anything, can destroy what you want, but can’t punish people for using things in the way they are supposed to use them because you don’t like what they are saying b) Doctrinal categories and consequences i. Penalties v. Nonsubsidies – not subsidizing is ok, TWR, but penalizing through subsidy is not ok LWV, characterized as a penalty –League of Women Voters (1984) (Ct declares unconstitutional statute that prohibits any noncommercial educational broadcasting station which receives grant from govt from editorializing) – Govt cannot condition funds on a requirement that stations relinquish right to editorialize. It must be narrowly tailored (which is where the possibility of privately funding the editorializing becomes relevant) +Taxation Without Representation (1983) (upheld provision of fed tax law that conditioned tax exempt status on requirement that org not participate in lobbying or partisan political activities). Court says no indication that statute was intended to suppress ideas or that it had has that effect. ii. Viewpoint v. Other discrimination –Rosenberger (1995) (state violated first amend in refusing to provide funds for Christian magazine Wide Awake). Court distinguishes Rust and says that was govt using private speakers transmitting info about its own program, whereas this is viewpoint discrim against student speakers (as opposed to govt speakers) +Rust (1991) (no fed funds unless no abortion counseling). Court says govt can decide what activity to subsidize. Not viewpoint discrim. 1) Can a nonsubsidy ever amount to “suppression” of an idea? Yes in Rosenberger. Government can put out whatever message they want to put out, doctors are acting as agents of the government 2) Toughest point for the majority - if woman came in and said she was pregnant title X doctor must say here are a lot of physicians that will help you have a safe pregnancy - but can’t do same for safe abortion iii. Private speech v. Government’s speech –Rosenberger (1995) (students); –Legal Services Corp (2001) (uncosnst to restrict welfare lawyers receciving fed funds from bringing class action suits on abortion and immigration) +Rust (1991) (doctors) 1) When should subsidized speech be attributed to the govt? When speaker is clearly delivering government’s message – Rust is a case where this is happening (but is important that there are other places to get abortion counseling whereas in LSC welfare recipients had nowhere else to go? iv. Breaking the mold? +U.S. v. American Library Association (2003) (upheld law requiring libraries receiving fed funds to install filters blocking sexually explicit material) – libraries not public forums because are inherently selective in their material – don’t buy porn 1) Rust says that governments are entitled to define the limits of their own programs 2) (Kennedy and Breyer concurrences: Note that an adult could ask for the filter to be turned off – concerned about alternative modes of access) c) The issue of art subsidies: +NEA v. Finley (1998) (court upheld restrictions for fed funded artists for decency etc.) – can look at artistic merit, grant program is inherently content restrictive as opposed to imposing a content restriction on a generally available program (they have to make choices on some basis) i. Would the Court object if Congress killed the NEA program? ii. Cf. -Brooklyn Institute of Arts v. NYC (E.D.N.Y. 1999) – elephant dung case – struck down because is viewpoint discrimination – so viewpoint discrimination matters even after NEA, all about motive and justification 4. Government-held information a) The right to receive information, from a willing speaker –Lamont (1965) (mail opt-in) – rejected because has a chilling effect on political speech; +Kleindienst (1972) (visa denial) – government motivation was legitimate not about viewpoint discrimination, and was an inherently selective program – alien admissions to country Have a right to receive info from willing speaker unless government has non-viewpoint-discriminatory reason to withhold it from you b) A (press) right to access information about government? i. The conventional answer: +Houchins (1978) (plurality) – relies on Saxbe (Court sustained prison regulations that prevented media from interviewing particular prisoners) – restriction ok, no special media access right to prisons ii. “Press” accommodations? +Houchins (1978) (concurrence) 1) Some terms of access that are reasonably applied to members of the public will impede press's right to access to information - need to give press effective access 2) Need more than monthly tours to keep the public informed - remanded 3) What about a blogger? – definition of journalist has changed 4) What if the tours were discontinued? OK as long as other areas not open to public – but could argue that if effective access means informing public then maybe discontinuing not ok iii. Access to court proceedings: –Richmond Newspapers (1980) – criminal trials open as implicit first amendment right Need appearance of justice 1) Limitations on access must be reasonable – if can exclude witnesses then should do that rather than excluding everyone 2) Note on subsequent doctrine. – extended to civil cases 3) Good reason to stop there? c) Alternative means of acquiring information about government i. Unavoidable disclosure by action (e.g., law enforcement) ii. Voluntary official disclosure (e.g., websites) iii. Ordinary law & politics (e.g., FOIA, OIG, legis. oversight) iv. Whistleblowers and formal protection v. Leaks and their distribution (e.g., –Landmark (1978) (Sup Ct held unconst a state statute that created crim liability for divulging or publishing truthful info regarding confidential proceedings of judicial inquiry board) vi. Encouraging leaks? 1) Journalists breaking promises: +Cohen v. Cowles (1991) (newspaper published identity of source who had been promised anonymity) – Court rejected argument that holding paper liable for breach of contract would violate first amendment. 2) Journalists trying to keep promises: +Branzburg (1972) (several cases where reporters refused to appear before grand juries to disclose identities of sources). Court rejected claim that First Amendment creates shield for reporters that immunizes them from having to disclose their sources. 1. Public interest in law enforcement is sufficient to override burden on news gathering (didn’t believe sources would dry up) 3) – NAACP v. Alabama (membership lists) – need a compelling government interest to infringe on the speech rights - public interest in law enforcement overriding here, both grand juries and newspapers promote news access 4) Self help – can bring a motion to quash subpoena E. Other Disfavored Forms of Regulation 1. Substantial overbreadth 2. Intolerable vagueness 3. Prior restraint a) Administrative licensing and discretion – this worries the court i. Standardless licensing of “speech”: –Lakewood (1988) – clear guidelines make the court more easy with admin discretion ii. Alternative methods of distribution iii. Ignoring licensors: explain +Poulos (1953) (Court affirmed conviction for conducting religious service in public park without permit) – Court says defendant cannot challenge denial of license as arbitrary when license is valid on its face and when he proceeded without a license rather than challenge its denial. iv. Procedural safeguards: reconcile . . . –Freedman (1965) (Ct rules unconstitutional a MD law that makes it unlawful to exhibit movie without a license) (required) – must be timely, court is mindful of the fact that the censor’s job makes them likelier to deny speech, this means the burden is on the censor to prove that it should not be shown –/+FW/PBS (1990) (Ct declares unconstitutional a city ordinance that required licensing of ‘sexually oriented businesses’)(moderated) – limit on time and avenue for judicial review, but loosens requirements in Feedman re: burden (maybe because it’s sexually explicit) +Thomas (2002) (denied) – time place manner so Freedman doesn’t control – what matters here is that this is content neutral unlike previous two cases b) Judicial injunctions –Near (1931) (Court said MN law proving for abatement of malicious and scandalous newspaper = prior restraint). No injunction allowed. 1) Would damages be constitutional on these facts? Can only have prior restraint (like injunctions) if obscenity, military recruitment or troop info 2) Damages not ok because need to show malice because is a public official i. The collateral bar rule: +Walker (1967) (court upheld contempt convictions of protesters who had violated court order preventing demonstrations) – have to follow a court issued injunction until the court modifies it – so this might be something special about judicial injunctions c) Fighting the “heavy presumption” against Prior Restraint i. National security: –Pentagon Papers Case (1971) - plurality opinion - Brennan (concurring) says can have prior restraint as long as there is an inevitable, direct and immediate effect on public security 1) What if Congress had authorized an injunction here? 2) What if Congress had authorized jail for the reporters? +U.S. v. Progressive (W.D. Wis. 1979) (injunction to keep magazine from publishing story on bomb making) – disparity of risk, falls into exceptions outlined in Near, nuclear attack big risk ii. Alternatives to PR for preventing leaks? e.g., +Snepp (1980) (govt can insist former CIA official turn over his book for review before publication) – fire people or can ask them to sign agreements limiting speech (like CIA agent agreeing not to speak unless submitted for review) III. Speech-Related Rights A. Loaners 1. An individual right not to convey messages? a) Speaker’s identity: –McIntyre (1995) (law prohibiting distribution of anonymous campaign literature is unconst) – remaining anonymous protected by first amendment, if you burden political speech get strict scrutiny (here forcing putting name means that you may not speak) b) Government’s message: –Barnette (1943) (don’t have to salute flag)— saluting (or not) is form of speech; –Wooley (1977) (don’t have to have “Live free or die” on license plate) c) Purpose of first amendment is to reserve sphere of intellect and spirit from all official control d) This might be like: no longer a right to keep unpopular views private - have to do something that singles you out e) Now have threat of ostracism - unlike McIntyre f) Is the problem more one of indoctrination - convincing message being delivered 2. An individual right not to subsidize messages? Compare –/+Abood (1977) - can levy fees from non-union because they are getting a service, but can’t use it for ideological advocacy unrelated to collective bargaining with +/–Southworth (2000) (rejected First Amend challenge to student fees) – because program is viewpoint neutral, upheld constitutionality. B. Joiners 1. Rights to build expressive associations a) Justification for a First Amendment right to associate? b) The scope of the right i. Is the association “expressive”? +Dallas v. Stanglin (1989) – no first amendment right to social dancing in dance halls ii. Is there a substantial regulatory burden? Is it unjustified? 1) Flat bans: –Brandenburg (1969); Keyishian (1967) ((dicta) These are bans are a certain kind of expressive association – banning being in KKK and banning communist party 2) Revealing membership: –NAACP v. Alabama (1958) (don’t have to disclose membership list) – can’t compel revealing membership unless there is a compelling state interest 3) Conditions on employment: –Keyishian (1967) (law banning public employees from being communists) – can’t do that unless there is specific intent to further illegal goals of organization – can’t punish mere association 2. Rights to restrict membership and messages a) A right to exclude members? i. Is the association “expressive”? ii. Is there a significant effect on expression? Is it unjustified? 1) Compare +Roberts (1984) with –Boy Scouts (2000) ) – expressive v. commercial – look at organization as a whole 1. Roberts (Jaycees want to keep out women) – Court says they can’t—can infringe freedom not to associate for compelling state interest – here anti- discrimination 2. Boy Scouts (Scouts want to keep out gay scoutmaster) – court says they can kick him out— group gets to determine its own expressive message, and forced association undermines expressive message. 2) Compare the O’Brien test (do others have to understand the message? According to Boy Scouts maybe not.) 3) May antidiscrimination laws be applied to employers? – need to be based in places of public accommodation to get under anti-discrimination laws b) A right to exclude messages? i. Most intuitive? +PruneYard (1980) (state can create constitutional right of access to shopping centers). Message unlikely to be seen as coming from proprieter, can require access under first amendment; ii. -Miami Herald (1974) – (Court says right to reply law is unconstitutional as applies to newspapers.) Can’t act like an editor and make them publish things they don’t want to (hard to square with Red Lion—maybe distinction is based on inherent scarcity of broadcast media. iii. Less intuitive? –Hurley (1995) (parade as being a message, seems pretty non specific etc.) editorial power; +FAIR (2006) (Solomon amendment – would think that allowing recruiters would mean that you supported them) too many recruiters to think they are all supported iv. Counterintuitive? +Red Lion (1969) (Court upheld the constitutionality of the fairness doctrine that required broadcast stations to present balanced discussion on public issues.) Court says scarcity of broadcast media justifies interference; +Turner (1994 & 1997) – cable operators have to carry local broadcasts, remove editorial power. Since it’s content-neutral regulation, intermediate scrutiny is appropriate test. “Must carry” rule is substantially related to goal of protecting local broadcast. v. Maybe something special about newspapers and their role in political editorializing 3. Campaign Financing a) Forcing disclosure +Buckley v. Valeo (1976) (spending money is a form of political speech) Court refused to apply O’Brien test. Court draws distinction btw contribution limits (upholds) and expenditure limits (invalidates —less risk of corruption). –Brown v. SWCC (1982) – minor party and a reasonable fear that disclosure will bring retaliation then don’t need to disclose Compare –McIntyre (1995) (anon campaigning) – anonymity promotes speech – but are campaign contributions speech? b) Regulating spending i. Speech interests? 1) none – money is not speech 2) core – money for politics is political speech 3) expenditures (to the message) v. contributions (to the campaign) ii. Regulatory interests? 1) entrenching power 2) equalizing power 3) corruption 4) undue influence 5) appearance thereof 6) stopping shakedowns? c) Regulating spending under Buckley circa 1976 - caps on contributions ok, because just the act of contributing is the speech protected by first amendment – this is a limit on the freedom of association gets strict scrutiny (NAACP v. Alabama) but state interest in appearance of corruption satisfies strict scrutiny. Caps on expenditure limit actual amount of political speech produced i. Bribing or offering bribes to officials for official acts? ii. Campaign contributions (quid) for official acts (quo)? iii. Campaign contributions capped at, e.g., $1,000? iv. Candidate campaign expenditures capped at, e.g., $70,000? v. Indep. expenditures on magic words capped at, e.g., $1,000? vi. Public financing with expenditure caps for prez elections? d) Reactions i. The regulated ii. The regulators 1) prohibiting soft money for parties +McConnell v. FEC (2003) - Prohibit soft money for political parties. Soft money - unrestricted uncapped political money - get out the vote efforts and issue ads Court upheld regulation b/c was just a marginal impact - democratic party bidding off chances to meet with national director 1. Is this equivalent to a candidate contribution cap? 2) limiting corp. & union electioneering communications +McConnell; but cf. –WRTL (2007) - as applied invalid. Using a pac to make advocacy - call rep x and tell him he's a real loser. New regulation said if you identify a federal candidate and talk politics within 60 days of a federal election then you can't use corporate treasury and unions can’t use own treasury to speak 1. Is this equivalent to an expenditure cap? 2. So McConnell was for the regulation but the WRTL wasn't a. But WRTL seems like an independent expenditure because is an issue based ad b. WRTL easy to confine within Buckley framework c. Buckley is like a wounded monster - trying to implement a compromise d. Not at all clear it will stand up e. WRTL is an as applied challenge to the BCRA, but was upheld as a whole in McConnell

RELIGION

I. Free Exercise = Freedom to Believe + Freedom to Act A. Government Singling Out Religion 1. Regulation a) Targeting religious beliefs –Torcaso (1961) (declare belief in God to hold office) – clearly a restriction on free exercise (holding public office is not a privilege) –McDaniel (1978) (ministerial exclusion from office) i. Is belief or conduct targeted? Has it been “prohibit[ed]”? ii. What is the status a proxy for? Reglious targeting or some other kind of special relationship… b) Targeting religious conduct –Church of the Lukumi Babalu Aye v. Hialeah (1993) (city ordinance prohibiting animal sacrifice. Court says unconst because directed at particular sect) - Can look beyond the face of the statute and see who is actually targeted. Court says law is not one of “general applicability” (as required in Smith). Lukumi helps us understand what a religion is - belief in deity, some have organization, some have long standing system of beliefs, tells you what is right and wrong (maybe this excludes law and economics) 2. Subsidies a) Excluding religion from cash grants: +Locke v. Davey (2004) (state of WA can not give scholarships to students training to be ministers) – fact that they are giving money seems to exclude them from using anti- discrimination norm. Court says he can still be a minister. b) Why not adopt an anti-discrimination norm here, too? Because there is not much burden and is a subsidy, don’t need to – look instead to the long tradition of separation B. Other Burdens on Religion 1. Old doctrinal regimes a) Tolerance for indirect burdens: +Braunfeld (1961) (court rejects free exercise objection to Sunday closing laws) – If make it more expensive to practice, but not criminal, then it is ok i. TEST - where “the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden.” b) Attacking substantial burdens: –Sherbert v. Verner (1963) (Strict scrutiny should be used in evaluating laws burdening free exercise. Denial of unemployment benefits to woman fired for not working on Saturdays = unconst.) i. TEST (strict scrutiny) i. Is there a burden on practice of religion ii. If so, is that burden justified by a compelling state interest in area where congress can legislate? ii. In this case no secular objective to justify the burden iii. Rock and a hard place false characterization – this is just a subsidy iv. Does the law’s condition on benefits target religion? v. Regardless, isn’t the condition a refusal to subsidize religion? c) After Sherbert court rarely struck down religious-burdening laws outside of employment contexts (besides compulsory school in court rarely struck down religious-burdening laws outside of employment contexts (besides compulsory school in Yoder) d) Transition: +US v. Lee (1982) (tax system compelling interest—Amish can’t refuse to pay taxes), +Goldman (1986) (interest in uniformity of military compelling—Jewish doctor can’t wear yarmulke prohibited by military dress), +Lyng (1988) (road building compelling—can’t stop for sacred Indian burial ground) – only apply Sherbert in employment cases after these cases (Smith tells us that) 2. The new regime for incidental burdens on religion a) The doctrine of +Employment Division v. Smith (1990) (peyote not ok for religious purposes) – changed free exercise law. Court held that law is constitutional no matter how much it burdens religious practices as long as it doesn’t single out religious behavior for punishment. (Compare Lukumi—directed at particular sect) a. Only exception to this is when freedom of religion overlaps with free speech or freedom of the press (Cantwell, Murdock— Jehovah’s Witnesses soliciting) or right of parents to direct education of children (Yoder) b. Cases of incidental burden in laws of general application almost never free exercise problem c. Smith abandoned strict scrutiny test from Sherbert—neutral laws of general applicability now just have to meet rational basis test. i. But not clear how significant Smith really was—Court rejected all free exercise claims anyway C. Defining Religion 1. Recall last class: Lukumi (1993) & Yoder (1972) 2. Conscientious objector cases: Seeger (1965) (sincere belief that occupies the same space as a religion. Supreme being not determinative - two are essentially the same) & Welsh (1970) (crosses out religious training on draft exemption form) - not about what applicant thinks religion means, but what the court thinks religion means II. Respecting an Establishment of Religion A. Overlapping Consensus Today 1. No total merger between the federal government and religion 2. No federal coercion into attending a church or contributing to it 3. No Official National Church 4. Incorporation against state and local action? B. Competing Principles and Doctrine 1. Separation (complete separation would violate Free Exercise—ex: refusal of govt to provide firefighters to church) 2. Non-coercion 3. Non-endorsement (O’Connor) 4. Anti-sorting 5. Neutrality 6. Judicial restraint III. Case Law and Critique A. Delegating Regulatory Power: –Larkin (1982) 1. Lemon Test a. Lemon v. Kurtzman (1971) – Certain kinds of financial aid to non- public schools struck down. To withstand establishment clause attack must: i. Must have secular legislative purpose ii. Principle or primary effect must not advance or inhibit religion iii. Does not foster excessive government entanglement with religion B. Proselytizing or Endorsing 1. Public schools and the role of “coercion” a) Government-linked prayer i. Scripted prayer: –Engel (1962) –school can’t force State- composed prayer. Rejects the argument that preventing prayer is hostile to religion—should be up to individuals. ii. Bible readings: –Schempp (1963) (Lord’s Prayer not ok) – opt out in school not sufficient (foreshadow worry about coercion in schools?) 1) Why didn’t the opt-outs save these programs? In Barnette opt out saved it 2) Did the programs involve sect discrimination? – yes because singled out monotheism iii. Graduation prayer: –Lee v. Weisman (1992) – kids in schools in a coercive atmosphere 1) Is government coercion necessary? Should it be? i. Blackmun concurrence in Lee: prayers in public school unconstitutional even in absence of coercion ii. Scalia dissent says no coercion, and even if students do feel coerced to stand, it’s acceptable to maintain respect for others b) Beyond prayer and toward “predominant purpose” i. Alabama’s moment of silence: –Wallace (1985) – purpose to reintroduce prayer into public school (not secular) ii. Kentucky’s Ten Commandments posting: –Stone (1980) – no secular reasoning (Rehnquist points out that the court is saying if predominant purpose secular and religious, not okay) iii. Tennessee’s ban on evolution instruction: –Epperson (1968) – aimed at insulating bible from one area where it is under attack iv. Louisiana’s treatment of creation science: –Edwards (1967) - can ask if secular predominant purpose is a sham v. Intelligent design: –Kitzmiller v. Dover (M.D. Pa. 2005) See also –McCreary Cnty v. ACLU (2005) (10 Commandments in county buildings) purpose = advancing religion But cf. +McGowan (1961) (Sunday closing laws) – origin might be religious, but present purpose = uniform day of rest. Doesn’t matter that it’s Sunday. 1) Is government “purpose” a coherent concept? – no 2) Should impermissible purpose be sufficient? – dissents say no, need to look at whether there is also a permissible purpose 2. Note on “predominant purpose” to “advance” religion a) Scalia argues impossible to determine purpose of statute 3. Symbolism outside the schools and the issue of “endorsement” a) Understanding the endorsement test – Lemon test formation – look to McCreary – it is controlling i. government’s purpose or effect ii. endorsing religion v. mere acknowledgement iii. reasonable observer perspective b) Case examples i. Pawtucket’s Christmas display: +Lynch v. Donnelly (1984) – not confined to a single test – Lemon is not controlling, O’Connor says test is excessive entanglement and endorsement ii. Allegheny’s holiday displays: +/–Allegheny County (1989) - creche alone is problematic, menorah ok next to Christmas tree b/c isn’t religious iii. Austin’s 10 Commandments monument: +Van Orden v. Perry (2005) - looked at all 17 statues, looked at the fact that the statue had been in place for a long time iv. McCreary’s 10 Commandments displays: –McCreary County (2005) – Stone v. Graham is controlling – religious reason to put it up, perhaps fact that they kept changing display means they knew they were doing something wrong C. Subsidizing Religion 1. + Everson v. Bd. of Ed. (1948) (allows a state program that provided reimbursement for all parents cost of bus transportation to and from school) (message and result) - Everson holds that religion hasn’t been advanced beyond the baseline we care about – busses are general welfare, can’t become adversary of religion 2. Current doctrinal trends a) Possible factors i. indirect v. direct benefit? - ask who is the immediate recipient of the aid - like taxation, can’t withhold tax refund if you tell them you will give refund to a church ii. restricted to secular use v. unrestricted benefit? – restricted to secular use – just getting to the school, not learning in it iii. generally available v. restricted beneficiaries? - If generally available then is ok iv. private choice v. government directed? b) Case examples +/?Bowen v. Kendrick (1988) (teen pregnancy counseling for all orgs, including religious) – facial challenge rejected, but remanded for as applied – need to see if money going to religious indoctrination in fact. Court applied Lemon test and said that primary purpose was secular an did not advance religion. +Agostini (1997) (public school teachers can provide remedial education on premises of parochial schools) - Was restricted to secular use, was generally available, and some element of private choice because funds would follow kids This means that private schools don’t need to pay for remedial education and this means they are getting a benefit O’Connor: prohibits assistance to parochial schools: (1) if it is used for govt indoctrination in religion (2) if the aid favors some religions over others by defining its recpieints by reference to religion (3) if the aid creates excessive govt entanglement with religion +Zelman v. Simmons-Harris (2002) (school vouchers etc.) - generally available – this is only okay because court looking at the larger frame of the entire education improvement program – makes it more like a secular use program – just trying anything But didn’t force suburban schools to opt in, and they could have. Government could have figured out in advance that 99% of money going to religious schools and parents sending kids to religious schools just to escape public school system D. Accommodating Religion 1. The regulatory roll-back model a) Religious employer exemption from Title VII: +Amos (1987) - law not unconstitutional simply because allows churches to advance religion themselves. When government acts to relieve burdens on religion does not need to provide secular benefits in the package b) Prisoner right to the Sherbert test: +Cutter (2005) – still restricted by safety and order concerns – borderline between establishment and free exercise clause c) Released time from public school: +Zorach v. Clauson (1952) - Zorach says theme that promoting religion is ok - allowing religion to flourish by creating accommodations in public schedule is ok. Has some clarity to it. This undoes the dissents point that ending school day early would not create incentive for going to church (accommodating not encouraging) 2. Then how can we explain the following results? a) Sales tax exemption: –Texas Monthly (1989) – advancing religion over competing non-religion b) Employee right to choose a Sabbath: –Thornton (1985) – sect discrimination because Sabbath religions get benefit c) New school district: –Bd. of Ed. of Kiryas Joel v. Grumet (1994) (Hasidic village wants special ed in parochial schools—court says no) – legislature knowingly drawing lines to give benefit to particular religious sect. General trend had been amalgamation not separation, so making an exception for religion d) Messages: i. SCt is most comfortable when X and Y share benefits. ii. SCt is least comfortable when Y1 but not Y2 gets benefits. iii. SCt has most trouble when all Y gets a benefit, but not X. Some cases suggest a line between “subsidy” (Texas Monthly, not comfortable with this because getting extra money) and “exemption.” (court more comfortable with this – like Amos)