US Sup Ct. 1976 - Law prohibited advertisement of Rx drug prices - does this violate 1st Amendment?

Yes, the law violates 1st amendment - speech does not lose freedom because money is spent or the message is paid for

Consumers have right of free flow of commercial information - one of the key purposes of 1st Am - but can be regulated - false advertisement not OK

Dissent- 1st Am for public information decisions, not $

US Sup - 1980 - Can Gov prohibit commercial speech to advance a substantial Gov Interest ?

No - need the following 4 elements: 1) is it false or deceptive, 2) is Government restriction justified by substantial gov interest, 3) does the law advance that gov interest, 4) is the restriction as narrow as possible to achieve that inter. (basically INTERMEDIATE scrutiny)

Central Hudson was too broad - restrictions were not narrow enough (ceased all advertising for energy) 

US Sup 1996 - Can the Gov prohibit the advertising of alcoholic beverages?

No - ban was to reduce consumption by avoiding price war - no evidence to support this claim - there are reasonable alternatives to achieve this goal. 

Central hudson test still stands.  

Puerto rico ban on gambling advertisement (vice ban) no longer valid. 

US Sup - 2015 - Is restriction of speech that is content based subject to strict scrutiny regardless of justification?

Yes, content restriction was evident because type of sign gets different treatment = strict scrutiny.  

No evidence to treat one type of sign (directional) different than another (political)

Was not narrowly tailored to serve specific interest

Content regulation of speech must be narrowly tailored to meet gov interest

Chicago rule prohibited picketing except for picketing for labor disputes

Was over inclusive b/c restricts all non-labor picketing, also under-inclusive b/c labor picketing is just as likely to be detrimental to residential privacy as non labor picket.  

US Sup - 1968 - Is a law that bans burning (altering, forging, etc) of draft card legal? - YES

Was speech and non-speech - INCIDENTAL limit on non-speech part (RULE for NON content based) is OK if:

1) within constitutional power of gov, 2) furthers the substantial gov interest, 3) gov interests is unrelated to suppression of expression (therefore was NOT content based), 4) incidental restriction is no greater than necessary to further gov interest.  

US Sup Ct - 1989 - Is Flag Burning OK - YES

flag burning was EXPRESSION of speech and not CONDUCT, ergo, Obrien test for non-communicative conduct NOT apply

Therefore STRICT review; political speech highly protected

Dissent - flag special show unity, freedom and respect can express beliefs another way; 

2010 - Is a law that limits "material support" (training, education and other resources) to certain foreign terrorists organizations constitutional - YES

The law does not limit you to express ideas or opinions about these organizations. CONDUCT (material support) limit is Ok per O'brien (same category as Obrien)

Rule was made by congress - they have more information - defer to them - material support can be given by training, education and other means = law OK 

US Sup - 1984 - Can gov limit posting of signs on public property - YES if narrow, neutral, necessary

Necessary (aesthetics, clutter=legitimate)

Neutral (all signs)

Narrow (even though its ALL signs, the signs themselves are the clutter, no other way to stop visual clutter).

Telephone poles are not a protected "public forum" 

Brennan dissent as aesthetics not proven as necessity

US Sup - 1984 - Expressive conduct can be limited in certain areas if it is for substantial government interests

Limits of sleeping in public parks OK

Reasonable content neutral regulations of time, place, and manner of expressive speech OK as long as they are 1) content neutral, 2) narrow (sleeping) 3) necessary for gov interest (preserve parks)

Limitations on signs and speeches on sidewalks next to supreme court are unconstitutional

Public sidewalks are public forum that are available for signs, speeches, etc. 

Sidewalks next to supreme court and congress must also allow signs speeches, etc.

State licence plate request for confederate flag licence plate rejected - rejection was constitutional

Likely to convey that the state of texas endorses message

Can approve plate celebrating TAMU but not one deriding one - therefore can ban a variety of designs.  

Dissent indicated that the message conveyed were political and seen as personal (not as St. of TX) endorsement.  

A public university nondiscriminatory policy requiring Reg Student Orgs (RSO) to accept all comers (regardless of status of belief) is constitutionally reasonable and content neutral.  

Dissent in this case argued that it was not evenly applied as it applied only to Christian society - they did not allow a denier of global warming to an environmental group or a animal experimenter to animal rights group.  

School districts cannot limit access of facilities to religious groups if they already allow other private organizations. 

This does not constitute an establishment of religion clause - 3 Part Lemon Law - if it, 1) has a secular purpose, 2) does not have a primary effect of advancing or limiting religion, 3) does not foster excessive entanglement with religion.  

VA Law Prohibited publication for abortion or miscarriage

Was not constitutional - contained important information in the public interest

Decision requires a fit between the legislatures needs and the means chose to accomplish those ends.  a fit that is not necessarily perfect but reasonable that represent not necessarily the single best disposition but one whose scope is in proportion to the interest serviced.  Get off of page 212 bottom paragraph.  

Narrowly tailored suit analogy - for commercial speech regulation

profits from son of sam book goes to families hurt by son of sam - was stricked down (unanimous) by Sup Court - cannot regulate this aspect of speech - 

Was over inclusive - bc content based and disincentive for publishing (not prohibited, but abriding speech) - and it was a matter of public interest

voter intimidation - 100 feet around polling place - not allowed to display posters, etc. - is this constitional

100 feet restriction is OK - narrow (100 feet only, only on polling days, etc)  restriction for specific govt interest (voting)

Ass. DA fired-did not want to be transferred, questionnaire caused "mini-insurrection"; sued boss for abridged speech.

Public employee's speech on private interest not protected

If speech is of public concern, court must balance employee's interest v. gov int. in doing public duties

Good items:Boss's fitness, performance, harassment

Pickering was teacher, wrote letter to local newspaper re school finances for education v sports, was fired

Teacher cannot be fired for speaking on matters of public importance, but cannot be knowingly or recklessly false 

Ceballos was Dep DA of LA, said search warrant was false, called by defense in court, retaliatory employment actions from boss.  Ceballos sued saying 1st amend protection-lost

Sup Ct. Ruled that Gov. employee speech in official capacity of public work was not protected

Dissent said was too absolute, should be balance between gov interests and individuals interest or other greater concern (justice in legal system)

CA tax exemption for veterans required oath not to overthrow govmnt., refused to sign, still wanted tax break

Oath was unconstitutional - if oath was for public office OK, or to confirm not a criminal is OK - but this oath was contrary to premise that person is innocent beyond the reasonable assumption of guilt

Also offensive to veterans to receive their benes.  

Sullivan at HHS new regulations not allowing fed funds for any abortion related activities - even counseling (speech)

Rust brought suit, Sup Ct Ruled that regulations were OK

Gov can make value based decision on childbirth vs abortn - can make funding decision in public interest - 

does not discriminate speech based on viewpoint, but can limit funding based on viewpoint

Over broad if the restrictions of unprotected speech (obscenity, fight words, defamatn) spill over to free speech

Related to vagueness (speech that is annoying=vague) must be clear - must be real/tangible effect - not hypo

Pub emlpee not allowed to talk partisan politics=over broad

Overbreadth doct. does not apply to commercial speech

NYT published top secret report on Vietnam War (1971)

US Sup Ct. ruled that should not abridge freed. press

Must show heavy burden during wartimes that speech would jeopardize national security (the vietnam report did not meet this burden). 

Dissents were re national security and concerns for other state secrets of ours or our allies

State law prohibiting sale of violent video games to minors is over (only video games) an under exclusive (all minors) 

Not narrowly tailored for legitimate gov interest (did not prove video games-->violence)

Cannot limit expression due to message, ideas, subject content.  

Unprecedented attempt selective based on adult/minor 

Law stating that it was criminal to sell, posses, animal cruelty (crush, dogfight videos) was unconstitutional

Content based restriction-animal cruelty- and was not related to legitimate gov interest

Too vague (what is cruel?) And overbroad (infringes on other aspects of protected speech)

Dissent said should be judged by serious science, lit value

CPPA 1996 law - illegal to apparent depict child porn but not made with children at all - ruled unconstitutional

looked like minors, or computer generated is therefore OK -

the "appears to be children" text is overbroad as it prohibits lawful expression

Miller and Ferber tests still stand - key issue is actual protection of child victim in making the video

Reno vs ACLU

Communication Decency Act (CDA)

CDA Law stating that illegal to send "patently offensive material" via internet to minors is not constitutional

Radio broadcast restrictions OK because historical precedent and regulated by gov. entity; internet is different - not as invasive as radio or TV

CDA law was content based restriction--> STRICT scrut. 

"patently offensive" vague and overbroad

Obscene Telephone messages not allowed (obscene speech not protected), but indecent ones are.  

Law was not narrowly drawn (included indecent and obscene messages)- was not a captive audience like Pacifica radio law

NYC station played Carlin's Filthy Words monologue

FCC can nevertheless restrict speech in broadcasting even if only offensive (obscene never protected)

Pervasive nature of radio. historical precident.

This speech had no redeeming social or political value, the OFFENSIVE words lack literary, political, scientific value 

Child porn that is not obscene under Miller test is still banned

Significant public interest to protect children - permanent record of activity and distribution network must be shut

Miller does not take into account harm to children

Value in allowing child porn is de minimus - no literary, artistic, scientific values

Zoning law restricting adult theaters to be within 1000 feet of church, school is constitutional

"Content neutral" time, place, manner regulations are OK if they serve substantial gov int and not limit alternative avenues of communication 

Gov interests are crime, traffic

Dissent said that this is content based.  

zoning ordinance requires adult theaters to be dispersed by 1000 feet apart is OK

  Was not content neutral, but still OK because is not a significant restriction on the films shown at theater. 

Citywide planning efforts can be significant gov int. 

However, cannot have different rules for different things (church directional posting v political advertising post)

Law stating that its illegal to show movies with nudity in drive in theaters if visible from streets was NOT OK

Even though it was so invasive that someone could not avoid - illegal because content based (nudity too broad). 

Not all nudity offensive-sun tan lotion bare butt

Also underinclusive-movie violence may also stop traffic

Cannot prohibit porn even if it subordinates women in violent or sexually explicit manner. 

Tried to restrict porn as obscene by relating it to violent, submission, humiliation to women

Law did not refer to Miller test for Prurient interest or offensive to standards of the community

Cannot restrict based on content of message - even if offensive, as is racist messages.  

Obscene material has no protection

States may make their own rules re what is obscene

Said there was an link between obscenity and crime (but was not really established)

Was early case and no longer followed but could withstand if challenged.  

Miller Obscene Test:

Work is obscene if 

1. Average person thinks that it is prurient
2. If the work is patently offensive as defined by states AND
3. If work lacks serious literary, artistic, political or scientific value.  

Law that prohibits an act designed to intimidate (burning cross) is NOT constitutional

May only ban cross burning if impending violence is imminent

Cannot limit fighting words based on content

Teenagers burned cross in lawn of black family - local law said cannot have symbols that arouse anger, alarm - struck down because overly broad content based restriction.

Law banned violent words on basis of race, creed, etc. 

  Content restriction must serve legitimate gov purpose

Cannot limit fighting words based on content

Teenagers burned cross in lawn of black family - local law said cannot have symbols that arouse anger, alarm - struck down because overly broad content based restriction.

Law banned violent words on basis of race, creed, etc. 

  Content restriction must serve legitimate gov purpose

Schneider and Kovacs case - pages 281 and 282

284 - Ladoux case - 

Martin vs struthers - 282

Loud and raucous ban on sound trucks OK - TPM reg

Can handout door to door leaflets for Jehovah's witnes

Leaflets - cannot limit political leaflets and allow other leaflets (content neutral); reasonable times, means, place

Ladue case - clutter regulations OK - but must be content neutral - cannot allow some and ban others - was balancing test?

Find out definition of limited public forum - school of university - school is open to studyents and regiageted organizations - not open to all. 

Look a thte differences in restrictions on speech beteween limited vs tradtiional public formu.   

monument in park for crazy eagle fraternity - lord summum - are monuments in gov park public speech or even a public forum?

Permanent public park monument is a form of gov speech, therefore not subject to strict scrutiny - gov speech not regulated

 9-0 against allowing the summum monument - like licence plate decision-

Fairness doctrine-broadcasts are regulated by gov; needs ample time for free and fair competition of opposing views - limited broadcasts frequencies available.  

Twofold duty: 1) fair and adequate coverage of political views, 2) personal attacks require opportunity to respond

Tornillo criticized in editorial at Miami Her; demanded that MH publish his responses, sued under a statue that said paper must do this, LOST-statute is unconstitutional

concern that media venues are controlled by few, but gov can't compel media to publish something-its content based

added costs (ha) and limited space; intrusion into editorial board of media not intended in 1st amend.   

Pruneyard shopping center has policy prohibiting "public expressive activity"-students & pamphlets, asked to leave

Right to exclude v states enforcement of freedom of speech-state enforcement prevails -store's policy loses

Private property open to public-not a "taking" of government to allow expression; no one expects this to represent views of the shopping center. 

Exclusion must be essential to economic value of property, students were peaceful, customers did not mind

CTPCA of 1992 said cable TV systems must devote a portion of channels for local broadcast stations -sued saying gov restriction of 1st amend-

SupCt said Act was OK but said district ct. must re-review based on intermediate scrutiny

Regulations NOT based on content, therefore intermed. scrutiny ok; judiciary should give deference to congress (judges differ on this topic)

JCs only allowed young males, not old or women; one chapter allowed women; charter was revoked; sued

JCs said they have right of free association under 1stAmd

SupCt said the state may prohibit exclusion based on sex

personal freedom of association OK (religion, political OK) , business and organizations do not have this right 

Determine based on size, purpose (pub. service), policies, selectivity-membership is not "intimate relationship"

NJ law violates Boy Scouts 1st Amd right of association; prohibiting homosexuals is OK

Forced inclusion of unwanted person infringes on freedom of association;  

Boy scouts promote values, homosexuality is at odds with their values, viewpoint is therefore entitled

Inclusion of homosexuals significantly burdens goal of BSA

Law schools were restricting military recruiters on campus because of military view of homosexuality; new law said cannot do this or else will lose federal funding

new law is OK- gave schools a choice-did not restrict speech or require involuntary speech; 

no violation of free association-does not require intimate ties with military

Cannot prohibit ritualistic animal sacrifice-Santeria

Was not neutral (ritual sacrifice) and had more than incidental effect (sacrifice was essential to religion)

Prevention of cruelty to animals not compelling; no other compelling interest raised by the state

Also cannot do law that targets a specific religion - this regulation was targeted towards this religion

State cannot force to work on sabbath and cannot deny employment benes for not working on sabbath

7th day adventist; fired for not working saturdays

Gov action (no unemployment benes) resulted in substantial burden in practicing religion - OK if related to religion but not a philosophy (slacker philosophy)

Same for amish education, no need to attend school if religion says only learn to 8th grade then work.  

• Fired after taking peyote as native american religion, did not get unemployment
• Right to believe in religion, but does not necessarily protect to act on beliefs
• Was broad & neutral law (drugs illegal) that state is free to regulate based on higher concern
• Sherbert balancing (substantial burden on religion must be justified by compelling state interest) not valid for criminal or employment law
• Balancing is how they differ from Yoder amish

• Law required birth control coverage, hobby lobby said law infringe on sincere religious beliefs protected by RFRA 1993-done to counter Smith case
• RFRA prevented gov from burdening free excersize of religion unless it was the least restrictive means to serve a compelling state interest
• birth control coverage law was not the least restrictive option to meet gov interest of birth control
• Closely held corps have free association rights

UVA mandated funds - christian document, university refused to give the money.  

University policy was permissible non subsidy issue 

Ct said viewpoint discrimination, therefore not allowed- diff than the abortion case-avoids rust because gov allowed to promote a message, UVA was just dis favoring a topic of discussion.  

HIV/AIDS-no recipient of the funds unless they had policies that condemned sex trafficking or prostitution. 

Can gov have conditions on federal funding based on adoption of certain speech? - NO they cannot.  

Part of the program, then gov can limit/make requirements based on funding preferences (funding only for X not for Y), but if outside of the program (must not talk about X or must say y) then they cannot limit speech

Required to stand and salute flag because it is a unifying activity. 

Stones dissent was 

Barnette then reversed Gobitis and did not require saluting the flag - cannot compel people, even kids, to express what is orthodox of politics, etc. 

See slides

Lemon vs Kurtzman - not sure if still valid - startue must meet 3 part test - 1) have seculate legislatinve purpose, 2) principle effect must neither advance or phohibt religion, m3_) must not foster excessive entaglement b/t gov and religion.  

Emerson v Board of ed. tax funds to reimbufse partnet for public transportsation sending kids to private school. Cts said OK because not going to school but to parents - no different than fire truck protection to christian school. 

Ct blessed the use of state money to be used for scholarships vouchers at private schools, including religion schools.

reasonded that it was not direct funding to religious schools but went to parents - schools has to meet requirement that would not disriminate based on religion, race or ethnicity - or not foster hate speech against these protected classess. 

692-695 - more and more clearer that you cannot have proyer in class - even not minute of scilence - really and attempt to get around prhibition on prayer - 

Lee vs Wiessman - rabbi to do non denominational prayer for graduation - was coercive because those who dont participate get singled out.  

Also seems like school is endoring religion.  

Teachers read aloud that intelligent design statement erquired to e given in evoluition claesss - 

iintelligent design is not science - violated scientific standard for testing - 

irreducible complexity - 

Public funds for bussing kids to private schools OK

Cannot show hostility (or preference) for a religion

Taxpayer money not going directly to religious schools

Not funding transportation for religious schools effectively discourages exercise of religious freedom

Ok for vouchers to go to religious schools - even when most going to private religious schools --> direct funds to religion

Private schools must not discriminate other religions or foster unlawful behavior based on color, creed, religion, etc

Valid secular purpose to improve poor ed to poor kids

Program was neutral to all schools; school choice OK

Engle vs Vitale

Abington v Schempp

Wallace v Jaffree

State officials cannot compel an official state prayer (or scripture reading, or silent prayer, meditation), even if neutral and students have option of being excused/silent

Not allowed because state is supporting religious activity 

One of the key reasons why colonialist left

Also unconstitutional if motivation is to advance religion 

Government cannot fund religious educational schools

Gov cannot sponsor, finance, or be actively involved

Three part test: 1) must have secular legislative purpose, 2) cannot advance or inhibiting religion, OR 3) no excessive gov involvement with religion

(any one violated = unconstitutional)

Excessive involvement is hardest to determine

Stone v Graham

Elk Grove vs Newdow

Edwards vs Alluillard

Posting of 10 commandments in school had no secular legislative purpose - rejected.  

Pledge of allegiance allowed (but technicality re parent not be custodial parent - objected to one nation under god).

Creation science (religious doctrine?) does not need to be taught beside evolution

Prayer at governmental meetings OK - historic practice

Was not originally, not not now, an attempt to establish a religion.  

Prayer does not need to be non denominational - would entangle gov too much to monitor

Schenck sent anti WWI draft literature to people 

Speech created a "clear and present danger" of not supporting the draft (would not stand now).  

Clear and present danger if close to committing a crime

State has power to limit speech that tend to corrupt morals, incite people to crime, or disturb the police peace

State regulations cannot be arbitrary or unreasonable

Do not need to wait until breach of peace are actually forseeable - can act earlier is reasonably foreseeable

States may prohibit speech that represents a clear and present danger of inciting to crime, disturb public peace, or threatening to overthrow gov. 

CA Law that prohibited speech to teach, advocate, aid or abet crimes for the purpose of overthrowing gov represents sig threat to public peace.  

Learned hand said balance test for clear and present danger =gravity of evil with probability of harm

KKK leader - burn cross, derogatory speech, arrested

State can only forbid speech only if it is directed and likely to incite imminent illegal activity without abridging freedom of press

Whitney is overturned - Ohio and whitney rule was overbroad

Clear and present danger not for puny threats

Fighting words not protected by first amendment

Chaplinsky called public officials fascist -arrested - OK

Fighting words are ones that inflict injury or tend to incite immediate breach of the peace, little social value

Feiner made speech to blacks and whites deriding Truman - intented effects were to rise blacks to take arms - police asked him to step down to avoid incitment

Multiple times requested to stop speaking - was arrested - was reasonably forseeable that would breach peace and arrest was appropriate

Fuck the draft shirt - OK to have - did not disrupt peace

Is not obscenity or fighting words or inciting violence

Right to expression is broad and powerful

Beauharnais did leaflets that made offensive statement about blacks - was arrested

Libelous speech against a race is not protected - conviction affirmed.

Decision was based on defamation of a race - but also applies to religion, creed, protected classes

Defamation for public official must show clear and convincing evidence of FALSITY and presence of MALICE

Local police chief, NYT published article asserting harassment of Dr. King was demonstrably false- but no showing of Malice, therefore NYT was OK

Defamation for private citizen does not need Malice - only clear and convincing evidence of falsity 

Nuccio was officer that shot/killed kid - Gertz was lawyer for kids family - Nuccio published article saying Gertz was a communist - he was not a communist.  

States cannot impose liability without fault (no damages) - must show actual damages

With Malice, can also get punitive damages

Teacher union leader was taped threatening school board members.  Vopper was radio show and aired the tapes

Can publish information illegally obtained as long as the publisher has no role in the illegal activity

Cannot punish publication of truthful speech

OK if acted lawfully and a matter of unusual public concern

Wesboro baptist vs military funeral family

Westboro was OK B/C raised matter of public interest and concern.  church was 1000 ft away, was peaceful, 

Political, social, other community concern and legitimate news interests

No IIED because did not see the signs

Speech does not lose protection just because it tends to generate disputes

Nazi protest in jewish town - town did permit to prevent - and prevent political party members wearing military style uniforms

Was overbroad, not content neutral, Nazi ideology is and idea and not a fact - ideas are protected

1st amendment protects unpopular viewpoints