First Amendment Outline

I. Free Speech: A General Overview and Key Concepts

A. Our Speech System & Explanations
i. Consequentialist arg: This approach will lead to the best results in society
ii. Deontological arg: This is a human right that ppl possess.
iii. Marketplace of Ideas/Search for Truth
1. Let all speech enter the marketplace of ideas. Everyone is engaged in the search for truth,
and they can decide what to believe. Outcome will be best when there is open discussion
about all sides.
a. Even if the market doesn’t do a perfect job of rejecting the bad speech, it will do a
better job than the gov’t will bc gov’t might suppress based on viewpoint.
b. It contributes to the search for truth. Even a false statement may make a valuable
contribution to the public debate. NYT v. Sullivan
2. Alternative: No essential part of any exposition of ideas and are of slight social value as a step
to truth. Chaplinsky. Let the majority decide that some speech isn’t worthy of protection or
that some ideas are beyond the market place, e.g., advocating the murder of X ethnic group
or crush videos. As a society, we might want to embrace a value that Nazism is wrong, so all
speech that promotes it is prohibited. Under current doctrine, we can’t do this.
a. The market doesn’t fxn well as to this speech; it distorts the marketplace of ideas. We
know the speech is wrong & doesn’t advance the search for truth, so no need to risk ppl
being deluded by it.
b. This is the argument for campaign finance limits. More isn’t better in that realm bc ppl
can’t possibly take in all the speech and weigh it to make a decision. The ppl w/ the
most money will distort the marketplace.
iv. Slippery slope: Once you limit speech that X group finds offensive, another group will present
offensive speech that they want regulated, etc. No stopping point. U.S. accepts slippery slope arg.

B. Prior Restraints
i. Prior restraint: A restriction justified by the communicative impact of speech if it suppresses speech
before an adequate determination that it is unprotected by the 1st Am.
1. Not all prior restraints are unconst’nal
ii. There’s little difference btwn how prior restraints & subsequent punishments are treated
iii. What sort of speech is restricted? How would this restriction be treated if subsequent punishment?
1. Content based schemes: If you could punish the speech or it would be subject to civil liability
when spoken, you can restrain it beforehand. E.g., permanent injunctions of unprotected
speech may thus be permissible.
a. Exception: Freedman v. Maryland and Times Film Corp. v. Chicago
i. A restraint on the showing of a movie until the movie is screened for obscenity is
const’nal if:
1. The screening procedure assures a prompt final judicial decision on
whether the speech is in fact unprotected
2. The censor promptly institutes the judicial proceedings
3. The censor bears the burden of proving the speech is unprotected
4. The judicial proceedings are adversarial, i.e., would-be speaker is
represented.
2. Excessively Discretionary Schemes: If a gov’t actor has unconstrained discretion to deny or
delay a permit, then the restriction is unconst’nal bc of the danger of content-based denial or
delay.
3. Content-Neutral Schemes: If the restraint is justified by the noncommunicative impact of the
speech, the law is judged under the time, place, and manner standard.
 iv. Any system of prior restraints comes to the court w/ a high presumption of invalidity.
v. Pentagon Papers: Executive branch asked the court to stop NYT from printing info about the war.
The info was likely to do grave damage if published. No law involved; Court decided that 1st also
prohibits Exec & Judicial branches.
C. Overbreadth
i. Even if your speech is unprotected, if the law prohibits speech that is conat’nally protected, it can
be challenged on its face on the grounds of overbreadth.
ii. A law may be challenged on its face on the grounds that it’s substantially overbroad: unconst’nally
restricts a substantial amount of other people’s speech that is protected.
1. Overbreadth must be substantial
a. E.g., Ferber: D argued that the child porn statute was overbroad bc it applies to medical
books & artistic works. Not enough to invalidate bc that is a tiny fraction of the
materials covered by the statute.
2. The courts construe the scope of the law, & it can provide a narrowing construction, e.g., the
ban on “promoting crime” should be read as only covering unprotected incitement
iii. Policy: Chilling effect. We want to make sure that those engaging in const’nal speech know they are
free to speak.

iv. Invalidating a law on the basis of its hypothetical application to situations not before the Court is
“strong medicine” to be applied sparingly and only as a last resort. FCC v. Pacifica

v. E.g., Stevens: Crush videos  C to enact law that punished depictions of animal cruelty, defined as:
a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is
illegal in the state where the creation, sale, or possession takes place. Includes Miller “serious
value” clause. D was prosecuted for dog fighting videos.
1. Alarmingly overbroad bc it covers protected speech and the exceptions don’t exempt enough.
The depicted conduct isn’t req’d to be cruel (“wounded” & “killed” ≠ cruel).
2. Miller clause doesn’t save bc lots of speech won’t have serious value, most won’t fall into one
of the categories (e.g., scientific). Miller didn’t hold that the exceptions clause could be used
as a general precondition to protect other types of speech.
3. Can’t rely on gov’t’s promise to enforce reasonably. Previously said they’d only use to
prosecute videos aimed at prurient interest, but this has nothing to do w/ obscenity.
D. Vagueness
i. Law may be unconst’nally vague if it fails to provide an ascertainable standard of conduct.
1. As a cop, would you know when to arrest, or would you feel like you could enforce as you
wanted.
ii. Three problems w/ vague laws: lack of notice, arbitrary & discriminatory enforcement, chilling
1. Lack of notice: Ppl need to know what conduct is lawful. Don’t want to trap the innocent.
2. Arbitrary & discriminatory enforcement: basic policy matters can’t be delegated to police,
juries, judges on a subjective basis. Leg must decide & clearly articulate what is prohibited.
3. Chilling: Ppl steer far wider of unlawful zone if it’s unclear. Prevents lawful speech.
iii. Clarifying construction: Court can interpret the terms in a way that makes it less vague
1. Court considering vagueness challenge can (1) look to the law as previously construed or (2)
create a clarifying construction so long as the construction isn’t unexpected or unforeseeable.
iv. Miller: Laws don’t need to be perfectly precise, leg needs room to legislate. The language must
convey sufficiently definite warning as to the proscribed conduct when measured by common
understanding and practices.
1. The Miller obscenity test is meant to provide that no one will be prosecuted for obscenity
unless the materials depict or describe patently offensive “hard core” sexual conduct
specifically defined by the regulating state law, as written or construed.
 2. “Patently offensive” isn’t vague because it only applies to sex, i.e., it’s not a free flowing
category that applies to other categories like violence. Anything w/ artistic value isn’t
obscene.
v. Grayned v. City of Rockford: Illegal to make noise that “tends to disturb the peace or good order” of
schools in session in the area. D was protesting race discrimination outside of a high school.
1. Not impermissibly vague bc an allowable meaning can be extrapolated.
a. How to extrapolate: Limited to the words of the law, interpretations the state gave to
analogous statutes, & maybe to some degree, the interpretation of the law given by
those charged w/ enforcing it.
i. Fed court can’t construe and narrow state laws. (?)
b. Ill S.Ct. interpreted “tends to disturb” twice & it req’s imminent threat of violence. And
“tending to disturb the peace” as imminent threat of violence. , Ill S.Ct. would likely
interpret this ordinance to prohibit only actual or imminent interference w/ the peace
or good order of the school.
c. The purpose of the statute provides a standard. Purpose is to protect learning at school.
It prohibits disturbances that are easily measured by their impact on the normal
activities of school.
vi. Smith v. Goguen: “Whoever treats contemptuously a flag of the U.S. is guilty of a misdemeanor.” D
had a flag sown onto the butt of his pants. The statute is impermissibly vague. Doesn’t provide
notice of what kinds of nonceremonial treatment is criminal, and the lack of standard likely leads to
arbitrary & discriminatory enforcement. E.g., a war protestor and a staunch patriot each use a flag
to cover themselves from the rain, only the former is likely to be prosecuted. Leg could easily
define the conduct w/ precision.
1. Concurrence: Statute is vague in some aspects, but it wasn’t vague w/ respect to D. It was
very clearly contemptuous conduct & he knew it.
vii. Reno v. ACLU: Communications Decency Act (CDA) had 2 relevant provisions: (1) prohibited
engaging in speech w/ a minor that is obscene or indecent, (2) prohibited speech that is patently
offensive as measured by contemporary community standards. These two different standards will
lead to uncertainty among speakers.
1. The vagueness is extra concerning for two reasons. (1) it’s a content-based regulation, so
possibility of chilling protected speech, (2) it’s a criminal statute, so increased deterrent
effect.
2. Gov’t argued that it can’t be vague bc it uses one prong of Miller (patently offensive). The
three prongs together work to limit the scope of Miller, one alone doesn’t. Critical req’t of
Miller is that the proscribed material must be specifically defined by law.
viii. Vagueness & overbreadth:
1. P whose speech is clearly proscribed can’t claim law is vague. Even if law is vague, if it’s clear
in its application to you, it won’t be declared vague.
2. Overbroad, but not vague: No person can advocate criminal conduct.
a. Overbroad bc only incitement is proscribable, not advocacy. Not vague bc it’s clear
what’s proscribed.
3. Vague, but not overbroad: No person can engage in speech that the state can const’nally
restrict.
a. Vague bc not clear what speech the law is referring to. Not overbroad bc it only
prohibits speech that’s unprotected.
4. Vagueness & overbreadth often go together.
a. Board of Airport Comm’rs v. Jews for Jesus: LAX banned all “First Amendment activities”
in the airport. Facially overbroad bc it bans even talking and reading, wearing a
campaign button, etc. D’s clarifying construction: Reaches only expressive activity
unrelated to airport-related purposes. This fixes overbreadth, but causes vagueness
problem. Line btwn airport-related speech and nonairport related speech is murky.
 Passing the time by talking to neighbor is ok, but passing the time by distributing
religious or political leaflets likely would be punished.

ix. Vagueness is more of a concern for criminal statutes or regulatory schemes than grants/subsidies
1. NEA v. Finley: Gov’t grants funding to artists if they meet standards of decency. This add’n to
the statute merely adds some imprecision to an already highly subjective selection process. It
has to be highly subjective due to the subject matter (selecting “excellent” art work).

E. Captive Audience: Unwanted Speech to a Particular Person

i. This isn’t currently an exception
ii. Rowan: Gov’t can prohibit speech it otherwise couldn’t to protect ppl at home.
1. Law is const’nal that bans mailing to:
a. a person’s home when
b. the recipient specifically objected to the mailing, and
c. Gov’t has no discretionary power to evaluate the material (§ is limited to material that
the recipient believes to be erotically arousing or sexually provocative), &
d. the ban left the speakers free to communicate to willing listeners in other homes
i. Org for a Better Austin v. Keefe is distinguishable bc it attempted to stop flow of
info to the public, not to one household.
2. A mailer’s right to communicate must stop at the mailbox of an unreceptive addressee.
a. Right to communicate gives way to the basic right to be free from sights, sounds, and
tangible matter we don’t want.
b. A person’s home is his castle. Allowing the unwanted speech to enter is like trespass.
c. No one has a right to press even “good” ideas on an unwilling recipient.
iii. Outside the home, gov’t must show that substantial privacy interests are being invaded in an
essentially intolerable manner.
1. Main response to unwanted speech is to avert your eyes. Though the harm has already been
done by seeing the offensive speech, that’s the risk you take by engaging w/ society.
2. Otherwise, the majority would be able to silence minority.
3. Cohen: If D’s speech was otherwise protected, the fact that some unwilling listeners may have
been briefly exposed can’t justify the fighting words conviction. It wasn’t a captive audience;
they could avert their eyes.
a. D can’t be convicted for fighting words when there is no evidence that persons
powerless to avoid his conduct did in fact object to it.

II. Exceptions from Full Protection

 If a law only restricts speech that falls w/in these exceptions, the restriction is generally const’nal
 Rationale for proscribing categories of speech based on tradition: BOR was designed to restrain transient
majorities from impairing long-recognized personal liberties.
A. Incitement
i. Incitement: Advocating the use of force or violation of the law if the speech is:
1. intended to incite or produce
a. Subjective intent of speaker; must intend imminent lawless action
2. imminent lawless action
a. When spoken, was it likely to produce imminent harm? W/in hrs or days, not some
indefinite future time. Doesn’t matter when or if the harm is actually committed.
3. and is likely to incite or produce such action.
ii. Solicitation: When a person proposes to engage in illegal activity, especially when focused on a
particular piece of contraband, as opposed to the abstract advocacy of illegality.
 1. “Let’s kill people in X ethnic group,” or “I’ll pay you $10K to kill people in X ethnic group” is
unprotected proposal. “All ppl in X ethnic group should be killed” is protected abstract
advocacy.
2. Allowed to say, “I think people should be able to smoke weed in all states.”
iii. Possible exception: Yates & Dennis upheld laws that restricted advocacy of concrete action even
when the action wasn’t imminent. Communist advocacy cases.
iv. It is a context-specific inquiry. No words are per se incitement
1. E.g., “You need to kill the person next you” isn’t incitement if said over the phone and no one
is w/in 30 miles of recipient of the speech; not likely.
v. Very hard to satisfy all the elements; prosecutions are very rarely brought.
vi. Brandenburg: KKK leader convicted for criminal syndicalism (advocating the propriety of crime as a
means of accomplishing reform). The law was substantially overbroad bc it criminalized mere
advocacy in addition to incitement.
vii. Hess: After police forced protestors onto sidewalks, D said “we’ll take the f—ing street later” in the
middle of a crowd during an anti-war rally. Witnesses said he didn’t appear to be speaking to
anyone. Not incitement because it wasn’t likely to produce imminent disorder since it wasn’t
directed at any person or group of ppl.
viii. Williams: Upheld solicitation of child pornography statute that criminalized the knowing solicitation
of any material in a manner that reflects the belief or is intended to cause another to believe that
the material contains a visual depiction of an actual minor engaging in sexually explicit conduct. C
passed this after Ashcroft.
1. Rationale: The statute prohibition tracks Ferber’s definition of proscribable speech: depiction
of actual kids engaged in sexually explicit conduct. Giboney: offers to engage in illegal
transactions are categorically excluded bc they lack social value.
a. Doesn’t matter that it also prohibits solicitation of images that the speaker knows don’t
depict actual kids in sexual conduct (gov’t may ban fraudulent offers), & images that
speaker thinks depicts kids but really don’t (factual impossibility is never a defense to
attempt).

ix. Speech That Interferes with a War Effort: Evolution

1. Espionage Act of 1917 prohibited interference w/ military recruiting and enlistment
2. Sedition Act of 1918 allowed for prosecution of individuals who advocated communism or
espoused anarchic or revolutionary doctrine.
3. Competing interests that must be accommodated: Gov’t’s strong interest in self-preservation
from disruption or destruction of the political & economic system itself, and avoiding action
that abridges freedom of speech and of the press.
Clear and present danger 4. Schenck (1919): During war, speech can be punished when it creates a clear and present
test applies when the law danger that it will bring about the substantive evils that C has a right to prevent. The harm
prohibits an activity but must be identifiable and close at hand. Likelihood of harm resulting doesn’t matter.
makes no reference to any a. D was secretary of Socialist Party & sent leaflets in the mail to drafted men during WWI.
expression that might be “If you don’t assert and support your rights, you’re helping to disparage rights which it
punishable. is the duty of citizens to retain.”
b. The effect of D’s speech was to influence men who had been drafted to obstruct the
war effort. Guilty of violating Espionage Act.
5. Debs (1919): Speech may be punished if the words used had as their natural tendency and
reasonably probably effect to obstruct the recruiting service, and D’s specific intent was to do
so.
a. D was indicted under Espionage Act for obstructing recruiting for speaking Socialist
message that praised socialists who were in prison for encouraging ppl to avoid the
draft. Said he approved anti-war platform.
 b. Jury was warranted in finding that one purpose of the speech (incidental or not) was to
oppose this specific war, and that the natural and intended effect would be to obstruct
recruiting.
6. Abrams (1919): Guilty if speaker knew or had reason to know the likely effects of her acts.
Convicted of violating Espionage Act after throwing 5,000 circulars out of window in NYC.
Purpose was to excite ppl, in the middle of the war, to riot & revolt
a. Holmes dissent (modern doctrine): MR of intent is req’d, knowledge of effect isn’t
enough. D’s goal was to help Russia and stopping U.S. was an indirect and probably
undesired effect. Marketplace of ideas is the sol’n—combat unpopular speech w/
more speech.
i. Proposed rule: Speech should be allowed unless it so imminently threatens
immediate interference w/ the lawful & pressing purposes of the law that an
immediate check is req’d to save the country.
ii. Unless it’s immediately dangerous to not intervene, the sweeping command,
“Congress shall make no law” prevails.
7. Gilbert (1925): Freedom of speech isn’t absolute; it’s subject to restriction & limitation.
Const’n’s guarantee of free speech can’t be used to destroy the Const’nal gov’t.
a. D wasn’t merely advocating policies; he must have had the purpose of discouraging
enlisting.
x. Speech Advocating Crime: Evolution
1. Gitlow (1925): A state may punish speech that endangers the foundations of organized gov’t
and threatens its overthrow by unlawful means. When leg specifically identifies the type of
speech to be prohibited, there’s no room for judicial inquiry.
a. Gov’t can punish the speech when it’s uttered. It doesn’t need to assume the risk of
waiting to act until harm occurs.
b. Different from Schenck clear & present danger where the law prohibited action and it
applied to speech that’s intended to bring about that action. Here, the law itself
prohibits speech that the leg has determined presents a danger of substantive evils
arising.
c. Incorporated free speech & press clauses into 14th
d. Dissent (Holmes): Free speech prevails. A law can punish speech only if it will likely
have an immediate effect & this wasn’t going to.
2. Whitney (1927): State can punish those who abuse the freedom of speech by speaking in a
way that threatens public welfare, tends to incite to crime, disturb the public peace, or
endanger the foundations of organized gov’t and threaten its overthrow by unlawful means.
[Overturned by Brandenburg]
a. By passing the CA Syndicalism Act, CA determined that this speech should be penalized.
That determination deserves great weight.
b. Concurrence (Brandeis) [Foundation in modern law]: To suppress speech, there must be
reasonable ground to believe that serious evil is imminent. If it falls short of clear &
present danger, remedy is more speech, not enforced silence.
i. Clear & present danger doesn’t exist unless the possibility of evil is so imminent
that it may occur before there is opportunity for full discussion
1. Mere advocacy of illegality isn’t enough to deny free speech.
ii. Leg gets to decide when speech would likely lead to clear & present danger, but
such a statute is valid only if certain conditions exist, so the enactment of the
statute can’t serve as sufficient proof that the necessary facts exist. Judiciary
decides if it was clear & present danger.
iii. Speech can be extremely harmful, but we still need to protect it.

B. Libel and Defamation (False Statements)

 i. Truth is a complete defense. If the statement is true, case is over and speaker wins.
ii. At CL, libel & defamation were totally accepted torts. 1st Am didn’t place a limit on P’s ability to sue.
iii. False statements aren’t worthy of const’nal protection (Chaplinsky), but they’re inevitable.
iv. False statements are unprotected if:
MR req’d for Actual malice (K/R) Negligence Negligence
statement to be
unprotected:
Topic: Public concern Public concern Private concern
Said about: Public figure/official Private figure Public or private figure
S.Ct. case NYT v. Sullivan Gertz Dun & Bradstreet
Damages Punitive, presumed Actual malice: Punitive, Punitive, presumed
available: (no showing of econ presumed
harm req’d) Negligence: Compensatory
Burden of proof P must prove false P must prove false D must prove true

1. Key Terms:
2. Actual malice: Speaker knows the statement is false or is reckless about falsehood, i.e.,
conscious of a high probability that the statements are false but publishes them nonetheless.
a. Reckless disregard of the facts: publishing while entertaining serious doubts as to the
truth of the publication.
b. Purposeful avoidance of the truth—a deliberate decision not to acquire knowledge of
facts that might confirm the probable falsity of the charges—constitutes actual malice.

3. Public figures/officials:
a. Gov’t officials are generally included, but low-level gov’t employees aren’t.
i. Test: Whether the position in gov’t has such apparent importance that the public
has an independent interest in the qualifications & performance of the person who
holds it, beyond the general public interest in the qualifications & performance of
all gov’t employees. Would the position invite public scrutiny and discussion of the
person holding it?
ii. Receiving salary from gov’t isn’t enough, otherwise all gov’t officials would be
public figures. But the janitor at the police station ≠ pub fig
b. Two types of public figures: [Gertz] (injected yourself into public arena)
i. For all purposes and in all contexts:
1. Have assumed an influential role in ordering society or
a. Mere involvement in community affairs isn’t enough
2. Achieved pervasive fame or notoriety
ii. For a limited range of issues:
1. Voluntarily injected themselves or been drawn into a public controversy.
2. The controversy must have been of some substantial public importance,
beyond just “of public concern.” E.g., high profile divorce case doesn’t
qualify or minor low-profile crim prosecution
iii. In Gertz, P wasn’t a public figure. He didn’t thrust himself into the vortex of the
public issue of the police shooting, nor did he engage the public’s attn. in an
attempt to influence its outcome. He played a minimal role which related solely to
his representation of a private client. Not involved in the crim case, which was the
public issue.
c. Rationale for lower MR req’t for false statements about private individuals:
i. Gertz: P was a lawyer who represented V of a police shooting in a civil case.
Newspaper published story about him & it had false statements.
 1. More vulnerable to injury: first defense is self-help in the form of spreading
truth. Public figures/officials have better access to channels to do this.
2. More deserving of recovery: the instances of truly involuntary public figures
is exceedingly rare. Choosing to seek public office or a public issue runs the
risk of closer public scrutiny. Invite attn.

4. Of Public Concern:
a. Limit isn’t very clear. Make arguments on both side. Court errs on side of finding it a
matter of public concern.
i. Judges/juries often reason that it must be public concern since someone went to
the effort of writing this.
b. If you’re accusing someone of a crime, strong case for public concern.
c. Anything that might touch on fitness for office, even if from the distant past.
i. Dishonesty, malfeasance, and improper motivation are extremely pertinent even if
these characters affect the official’s private character.
d. Florida Star: reference to a particular person (such as a rape V) in an article that deals
w/ broad questions (such as crime) is a public concern.
e. Snyder: Picketing at a military member’s funeral about the military’s treatment of gays
is a matter of public concern.
i. The messages may fall short of refined social or political commentary, but the
issues they highlight—the political and moral conduct of the U.S. and its citizens,
the fate of our Nation, homosexuality in the military, and scandals involving the
Catholic clergy—are matters of public import.
ii. The overall thrust and dominant theme of the demonstration spoke to broader
public issues—doesn’t matter that a few signs were targeted to Snyders, e.g.,
“You’re going to hell” and “God hates you.”
iii. No previous connection btwn WBC & Snyders that might suggest the attack was
about a private matter.
iv. Connick wasn’t public concern. ADA sent around a survey that might be on an
interest of public concern, but ADA’s purpose was to get ammunition for fight w/
D, not to inform the public).
f. Dun & Bradstreet: Whether speech is a matter of public concern must be determined
by the expression’s content, form, & context as revealed by the whole record. Form &
context should show that it’s a matter of private concern
i. D&B’s credit report is of purely private interest to D&B and its audience of 5
subscribers. It warrants no special protection when the speech is wholly false and
clearly damaging. Chill from lawsuit is unlikely bc market forces already discourage
false statements.
g. Rationale for less protection for false statements about private concern:
i. Restricting it doesn’t pose a threat to free & robust debate of public issues; no
pot’l interference w/ a meaningful dialogue of ideas concerning self gov’t; no
threat of liability  chilling.

5. Discussion of public issues doesn’t lose protection when some statements are false
a. NYT v. Sullivan: P was Commissioner of Public Affairs, supervisor of police. NYT
published an ad that described actions taken by the police in Alabama. P said “police”
& “arrested” referred to him as Commissioner. Ad contained some small inaccuracies,
e.g., students expelled for sit-in at lunch counter, not for leading a demonstration at the
Capitol. NYT didn’t check accuracy.
i. NYT wins bc no proof that they published the ad w/ knowledge or recklessness
that some statements were false.
 ii. State action: State court enforcing the libel law.
b. Profound nat’l commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open.
c. Gov’t officials are to be treated as men of fortitude, able to thrive in a hardy climate.
d. Elections are the essence of free & responsible gov’t. For elections to work, voters need
to know about candidates.
e. Garrison v. Louisiana: But some libel liability remains because the use of the known lie
as a tool is at odds w/ the premises of democratic gov’t and orderly manner. Calculated
falsehoods are in the class of utterances that “are no essential part of any exposition of
ideas….” Chaplinsky.

v. Policy Explanations for the Existence of the Exception

1. Cause harm:
a. To subjects, e.g., libel can cause reputational harm. Individuals have a right to the
protection of their good name.
b. To listeners and to society, e.g., hinder the search for truth
c. To quality of public participation in public affairs, e.g., victims of the false speech are
driven away from civic affairs and others are deterred.
2. Less valuable bc they are less likely to contribute to the search for truth and to effective self-
gov’t.

vi. Policy explanations for the limits on the exception: Risk of chilling true statements
a. Some false statements of fact are inevitable in free debate, so 1st Am req’s that some
falsehood be protected in order to protect speech that matters. NYT
vii. Basic Theoretical Principles
1. There’s no const’nal value in false statements of fact. Gertz
2. Under 1st Am, no such thing as a false idea. True ideas, not lawsuits, correct false ideas
viii. When can false statements can be restricted
1. Some false statements can’t be punished even if they’re deliberate lies.
a. Knowing falsehoods that don’t fit into one of the established exceptions from
protection are presumptively protected, but only under intermediate scrutiny. Alvarez
(concurrence) (plurality said laws that restrict are subject to S.S. bc this speech is
protected by 1st).
b. Law can’t punish deliberate lies about the gov’t, so long as no particular person is
defamed. NYT v. Sullivan
c. False statements about philosophy, religion, history, the social sciences, the arts, and
the like are fully protected.
2. Liability may be imposed only on statements of fact, not opinions. Gertz
a. Context-specific inquiry; no magic words. What factual assertions are explicitly or
implicitly made by the statement? Was speaker trying to make a factual claim, or just
stating their opinion?
b. E.g., “I think X is cheating on his wife” is likely a statement of fact. “X’s wife should
divorce him” is likely an opinion when standing alone, but if it is said after the speaker
says “women shouldn’t stay w/ husbands who cheat,” it becomes a factual assertion (X
was cheating).
c. Some statements that appear to be factual may be opinion in context, e.g., parody and
other obvious forms of fiction. “X is a blackmailer” could be opinion if speaker is saying
that what X did is morally tantamount to blackmail, not that X actually committed
blackmail.

ix. Alvarez: “False statements” is not a category of unprotected speech.

 1. Permitting gov’t, based on interest in truthful discourse alone, to criminalize this speech (D
falsely claimed he won a Medal of Honor) would let gov’t make a list of subjects about which
false statements are punishable. No limiting principle. Pot’l to chill speech. It’s protected
speech  S.S. applies to laws that restrict it.
2. Concurrence: Intermediate scrutiny should apply when a statute adversely affects const’nally
protected interests but warrants neither S.S. nor rat’l basis.
a. Regulation of false statements that are easily verifiable are less dangerous than
statements about philosophy, religion, history, social sciences, & the arts
b. But there is a risk that the gov’t might use its power to criminalize false statements to
selectively punish statements it disagrees w/.
c. Lack of limiting features is a problem. Libel & defamation are narrower bc they apply
only when specific harms are inflicted on identifiable victims. This law applies even
when someone lies to family members in private where harm is unlikely to occur.
3. Dissent: Lies about obtaining Medal of Honor have no value & proscribing them doesn’t chill
any valuable speech. Long line of cases shows 1st doesn’t protect false factual statements
that inflict real harm and serve no legit interest.
a. Before and after 1st was adopted, laws prohibiting false factual statements were
allowed: fraud, perjury, defamation, IIED, false-light invasion of privacy
b. Laws prohibiting things like saying you were high school valedictorian are objectionable
bc of misuse of the criminal law, not suppression of speech. Same as objection to a law
that criminalized eating potato chips at the ceremony. Safeguard is democracy, not 1st
Am. Not every foolish law is unconst’nal.
C. Obscenity
i. Narrow exception bc contemporary community standards have devolved.
1. Can’t get a conviction for purchasing porn in suburban Provo, UT
ii. Rationale: It will make the viewers into worse ppl.
iii. Miller test. Speech is unprotected if:
1. [a] The average person, [b] applying contemporary community standards, would find that the
work, [c] taken as a whole, [d] appeals to the prurient interest, and
2. The work depicts or describes, [a] in a patently offensive way under [b] contemporary
community standards, [c] sexual conduct specifically defined by the applicable state law, and
3. The work, [a] taken as a whole, [b] lacks serious [c] literary, artistic, political, or scientific
value.
iv. Appeals to the prurient interest: appealing to a shameful or morbid interest in sex. Doesn’t apply to
speech appealing to “normal” interest in sex.
1. Sexual component is req’d. Stevens and Brown. Interest in violence isn’t enough.
a. Stevens: Statute punished depictions of animal cruelty. Inspired by crush videos. The
crush videos appealed to ppl w/ a specific sexual fetish. It covers way more than just
crush videos, e.g., hunting photos in DC, which don’t appeal to prurient interest.
v. If statute covers excretory conduct or other indecent conduct in addition to obscene material, you
need to argue that the add’l conduct can be regulated under S.S. since it is protected speech.
vi. Serious value: Whether a reasonable person would find serious value
vii. D can be punished only if he knows the contents of the material. Reasonable ignorance is a
defense. Smith v. CA
viii. Private possession of obscene materials at home may not be outlawed.
ix. The gov’t may also bar ppl from: (Ginsburg + Miller)
1. Selling to customers whom they know to be (or perhaps should know to be) minors works
that fit a “obscene as to minors” test:
a. Avg person, applying contemporary community standards, would find the work, taken
as a whole and w/ respect to minors, is designed to appeal to, or is designed to pander
to, the prurient interest;
 b. The work depicts or describes, in a manner patently offensive w/ respect to minors,
sexual conduct specifically defined by applicable state law; and
c. The work taken as a whole, lacks serious literary, artistic, political, or scientific value for
minors.
x. No req’t that the gov’t prohibit obscenity. Just that it isn’t protected, so if gov’t wants to, it may
prohibit it.
xi. Policy explanation for the exception:
1. Exposure to obscenity will slowly change a consumer’s attitudes &  behavior for the worse.
2. By definition it lacks any serious value, so controlling obscenity is distinct from controlling
reason & intellect.
3. Obscenity laws have a long tradition dating back to the time the 1st Am was drafted.
a. Roth: At time of founding, sexual material was treated as not protected.
4. Rigorous empirical evidence isn’t needed when we’re just trying to figure out if something is
included in 1A protection. Sufficient to say that the sum of experience affords ample basis for
leg to conclude that exposure leads to a slow degradation. Leg can act upon unprovable
assumptions unless the law plainly impinges upon rights protected by the Const’n. Different
standard for empirical evidence than in S.S.
5. Obscenity laws are justified by state interest in protecting kids & unconsenting adults. Paris
Adult Theatre.
a. Kids: lack full capacity to make individual choice
b. Adults: exposure to obscene material w/out consent = to physical assault

D. Speech Integral to Unlawful Conduct

i. When speech tends to cause, attempts to cause, or makes a threat to cause some illegal conduct
ii. The scope of the restriction must be narrowly defined in order to protect speech that persuades ppl
who won’t engage in illegal conduct
iii. Child pornography: speech is unprotected if:
1. It “visually depicts” children below the age of minority
2. Performing sexual acts or lewdly exhibiting their genitals
3. Subsidiary rules:
a. MR req’d: K or N (Mistake of fact is a defense)
b. Private possession of child porn may be outlawed
4. Policy reasons for exception: (1) children are harmed in the production—engaging in the acts
& having the porn in their permanent record, (2) distributing and possessing is an “integral
part” of criminal activity, (3) child porn has de minimis expressive value.
a. The concern is the harm to the children being filmed, not that viewers will become child
molesters. Punishable even if it’s made & never shown to anyone.

iv. States are entitled to greater leeway in the regulation of child porn than obscenity.
1. If any of the material contains child porn, it is unprotected speech. Miller test bears no
connection to the issue of whether a child has been harmed; makes no difference to the kid
whether the material has substantial value.
v. New York v. Ferber. Law: felony to promote a sexual performance by a child when, knowing the
character and content thereof, he produces or promotes any performance which includes sexual
conduct by a child less than 16 yrs old. D sold 2 films of child porn.

vi. Child porn is proscribable bc of how it is made, not what it communicates.

1. When the speech is nether obscene nor the product of sexual abuse, it doesn’t fall into
exception to 1st
2. Ashcroft v. Free Speech Coalition. Law: Prohibits any visual depiction of a minor engaged in
sexually explicit conduct (covers “virtual child porn”). Doesn’t need to appeal to prurient
 interest or be patently offensive (measured by community standards). Aff D to non-
possession charge: D can prove that kids weren’t involved in production.
a. Distinguishable from Ferber: It prohibits speech that records no crime and creates no
Vs. Virtual child porn isn’t intrinsically related to the abuse of children.
b. Doesn’t matter that virtual child porn might be used to seduce children.
i. If adults have a right to hear speech, it can’t be silenced completely in an attempt
to shield kids from it.
c. Doesn’t matter that virtual child porn whets the appetites of pedophiles and
encourages them to engage in illegal conduct.
i. The mere tendency of speech to encourage unlawful acts isn’t sufficient reason for
banning it. Must meet Brandenburg.
ii. Gov’t has burden of proving that this would actually happen.
d. Arg: Virtual child porn is indistinguishable from real porn, and thus prohibiting both is
necessary to eliminate the latter.
i. Gov’t can’t suppress lawful speech as the means to suppress unlawful speech.
ii. The Aff D doesn’t save the statue bc it leaves unprotected a substantial amount of
speech not tied to the Gov’t’s interest in prosecuting only depictions of real kids
(Aff D applies only to distribution, not possession).
e. The desire to shape ppl’s private thoughts is insufficient gov’t interest.

vii. Speech doesn’t become unprotected merely bc it depicts harmful conduct & has de minimis
value. Ferber is a narrow category—extends to child porn only. Stevens
1. Crush videos & depictions of animals fighting might be an integral part of conduct that
violates a law (court doesn’t decide), but the statute extends to way more depictions that are
protected than these.
2. Alito: This is like Ferber & should be proscribable. (1) underlying conduct is criminal in every
state, (2) only way to prevent the conduct is to punish the speech, (3) the harm far outweighs
any value, and statute even includes Miller exception that Ferber didn’t.
a. Leg decided that child porn was wrong & court deferred. We shouldn’t second guess
the leg judgment about the importance of preventing cruelty to animals.
viii. Speech may be restrained when it is an essential and inseparable part of a grave offense
1. Giboney. (Pre-Brandenburg). Law criminalized any agreement to restrain trade. Ice sellers
union picketed an ice provider, Empire, who was selling to non-union members. Immediate
purpose of picket was to compel Empire to restrain trade (stop selling to non-union
members), which is a crime.
a. An injunction is const’nal bc it did no more than stop an offense against state law.
2. This is a very narrow exception!
a. E.g., Publishing unlawfully obtained gov’t secrets is protected by 1st even though
publishing the info  more stealing of the secrets. Bartnicki.
b. Only applies to child porn

E. Fighting Words
i. Speech is unprotected “fighting words” if it:
1. Tends to incite an immediate breach of the peace by provoking a fight
2. Is a personally abusive epithet which, when addressed to the ordinary citizen, is, as a matter
of common knowledge, inherently likely to provoke violent reaction, and
3. Is directed to the person of the hearer, & is likely to be seen as a direct personal insult
4. Possible limitation: Chaplinsky suggests that this exception might be limited to speech that is
“no essential part of any exposition of ideas, and are of slight social value as a step to truth”—
perhaps only epithets or vulgarities.
 a. But see Texas v. Johnson (not relying on this limitation), , it’s possible that political
statements such as flag burning might under the right circs constitute fighting words,
too.

ii. Chaplinsky v. New Hampshire: Only case to ever find fighting words!
1. D said to a cop, “You are a God damned racketeer and a fascist and the whole government is
fascist.” Statute: “Addressing any offensive, derisive or annoying word to any person in any
public place, or calling him by any offensive or derisive name.” Statute is const’nal bc it only
prohibits unprotected fighting words.
2. D’s statements were likely to provoke the avg person to retaliate & cause breach of peace
3. A case shouldn’t rest on fighting words exception.

iii. Cohen: D wore a jacket that said “F*** the draft” in a courthouse corridor. Wore it to inform the
public about the depth of his feelings against the Vietnam war and the draft.
1. Not fighting words bc it wasn’t directed to the person of the hearer. No one could reasonably
have regarded the words as a direct personal insult.
a. It’s an objective standard. Can’t suppress speech bc some particularly violent/easily
provoked ppl might react.
b. Can’t punish speech to maintain suitable level of discourse w/in the body politic; speech
is protected regardless of its value, so long as the means are peaceful.
c. Words are often chosen as much for their emotive as their cognitive force. Banning
certain words can be used to ban the expression of unpopular views.

iv. If there’s a bedrock principle of the 1st Am, it’s that the gov’t may not prohibit the expression of an
idea simply bc society finds the idea itself offensive or disagreeable. Marketplace of ideas is the
proper response.
1. Texas v. Johnson: Flag burning doesn’t fall into incitement or fighting words exception.
a. Not incitement: Flag burning isn’t advocating any unlawful conduct. He’s just burning
the flag. Immediate violent rxn isn’t the incitement test.
i. Allowing TX to punish merely bc there’s the pot’l for breach of the peace when
someone burns the flag would eviscerate Brandenburg holding.
b. Not fighting words: No reasonable onlooker would regard D’s generalized expression of
dissatisfaction w/ Fed Gov’t as a direct personal insult or invitation to fight.
c. We don’t allow heckler’s veto. Heckler’s veto is when gov’t says, “what you’re about to
say will be so upsetting to this crowd that a riot will occur, so you can’t say it.” Gov’t
has to spend extra money on crowd control.
2. Speech that  violent rxn might be more worthy of protection bc 1st is about protecting
speech that stirs ppl to anger.
v. Policy explanations for the exception:
1. The risk of immediate violence is the perceived harm that justifies suppression of speech.
Focus is on preventing fights, not hurt feelings.
2. The exception doesn’t really seriously restrain speech bc fighting words are no essential part
of any exposition of ideas. Same ideas can be conveyed in less provoking manner.
vi. Policy counter-arguments:
1. Why should we let the risk of immediate fight justify suppressing speech when we don’t let
the risk of later, but more severe, violence justify it?
a. Why should a person’s rights be restricted bc of the risk of misbehavior by others?
F. Threats
i. Threats of violence or illegal conduct are unprotected unless it is obvious hyperbole.
1. Pretty narrow exception from protection. You can threaten all sorts of bad consequences,
e.g., we will hate you, we won’t be friends with you.
 ii. True threat: Encompasses those statements where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence to a particular individual or group of
individuals. Virginia v. Black
1. Intimidation is a type of true threat. Id.
iii. True threats of violence, illegal firing, & likely other criminal or tortious conduct are unprotected
1. Not punishable if reasonable person would understand them as obvious hyperbole. Watts.
Watts had said “If they ever make me carry a rifle the first man I want to get in my sights is
L.B.J.”
iv. Threats of social ostracism, lawful boycott, or future speech that would produce ostracism or
boycott, are protected. NAACP v. Claiborne. Even some speech that intentionally makes people
fear violence is sometimes protected (though Claiborne is the only case on this).
1. Claiborne: D organized a boycott of white-owned businesses & threatened blacks to not shop
there. Business owners sued for economic damages, S.Ct. said unconst’nal.

G. Offensive Speech Over Broadcast Radio and Television

i. FCC v. Pacifica Foundation: Monologue on patently offensive words dealing w/ sex & excretion
[indecency]. If the speech is vulgar, offensive, and shocking, it’s not entitled to absolute const’nal
protection under all circs. Court must consider context. Speech outside of the home is offered
greater protection, ppl can avert their eyes.
ii. The gov’t may restrain vulgarity (likely nudity also) [indecency]:
1. On broadcast radio
2. When the speech is offensive bc of its form and not bc of the opinions or viewpoints that it
expresses.
iii. Distinguishable from Cohen: This restriction came in response to a complaint, and it’s likely to
offend listeners. No evidence of complaint in Cohen.
iv. Each medium of expression presents special 1st Am problems.
1. Broadcasting is generally given the most limited 1st Am protection
a. It has a uniquely pervasive presence in lives. Confronts the citizens in privacy of their
home (like Rowan). Audience tunes in & out, so warnings don’t work. Telling audience
to turn it off to avoid further offense is like saying someone should run away from after
an assault. Damage has been done.
b. It’s uniquely accessible to kids. Adults can still access the speech in other places
i. This arg doesn’t work in any other medium!!
v. Doesn’t apply to:
1. Internet: Reno v. ACLU,
a. Internet is meaningfully different from broadcast radio. On the internet, ppl are rarely
exposed to sexually explicit conduct by accident.
2. Dial-a-porn: Sable Communications, or
3. Cable TV: Turner Broadcasting Systems.

H. Abusive Words
i. Speech might be unprotected if:
1. It inflicts injury by its very utterance
2. Limit: Cohen, Texas v. Johnson, Snyder v. Phelps: some very offensive speech is protected.
Argue by analogy.
a. Can argue based on Chaplinsky that this category is limited only to low-value speech—
just personal insults and no essential part of the exposition of ideas.
3. Many commentators and some courts believe that this doctrine is no longer good law, but the
Court has neither overruled it nor reaffirmed it.
4. Snyder v. Phelps: Westboro Baptist Church members protested at military member’s funeral.
Held signs, “America is Doomed,” “Thank God for Dead Soldiers,” “God Hates Fags,” for about
 30 min before the funeral. Funeral procession passed w/in 200 to 300 ft of the picket site.
Snyder, soldier’s dad, could see the tops of the signs, but didn’t see what was on them until
he watched the news that night. Sued for IIED.
a. Holding: The picketing is certainly hurtful and its contribution to public discourse may
be negligible, but WBC addressed matters of public import on public property, in a
peaceful manner, in full compliance w/ guidance of local officials
i. America has chosen to protect even hurtful speech on public issues to ensure that
we don’t stifle public debate. That choice requires that WBC be shielded from tort
liability for picketing.
b. If the speech is on a matter of public concern, IIED doesn’t apply.

I. Diminished Protection: Commercial Advertising [spend more time on!]

i. Someone pays money to get speech in front of you to persuade you to buy something.
1. Speech that proposes a commercial transaction
ii. Own weird category. Different rules.
iii. RULE:
1. Commercial advertising can be punished if it is:
a. False (no MR req’t)
b. Misleading (misleading political speech generally can’t be).
i. Courts scrutinize w/ some care claims that a particular kind of speech is inherently
misleading
ii. Actual or inherently misleading ads may be prohibited entirely, but gov’t can’t
place an absolute prohibition on certain types of pot’lly misleading info if the info
also may be presented in a way that isn’t deceptive.
iii. The gov’t may req disclosures aimed at keeping consumers from being misled,
even if such disclosures couldn’t be req’d for political speech.
c. Concerns unlawful activities (even if Brandenburg isn’t met).

2. Other commercial advertising may be restricted if:

a. The restriction is justified by a substantial gov’t interest
i. Substantial interests: preventing undue pressure on the customer (Ohralik),
promoting energy conservation & ensuring that utility rates are fair & efficient
(Central Hudson Gas & Elec.)
ii. Not a substantial interest: Preventing offense to readers & listeners (Bolger)
b. It directly advances this interest
i. Unconst’nal if it provides only ineffective or remote support for the gov’t’s
purpose (Central Hudson)
ii. Gov’t has burden of proving that the law will significantly accomplish the goal
1. Scientific evidence isn’t req’d—common-sense evidence may be enough
iii. Impermissible to try to advance this interest by shielding customers from info that
might lead them to make unwise choices.
c. It isn’t more extensive than is necessary to serve that interest.
i. There must be a “reasonable fit” btwn the restriction and the interest.
1. Gov’t can restrict some speech that doesn’t implicate the interest, but not
too much speech.
2. The availability of less restrictive alternatives doesn’t necessarily show the
law is unconst’nal, but it cuts against its validity.
ii. Depends on how easy it is to define in advance how harmful the speech is.
1. Prophylactic rules that suppress some speech that may ultimately prove
harmless are allowed when it’s hard to define in advance which speech is
harmful. Ohralik
 2. Prophylactic rules aren’t allowed when the harmful speech is identifiable up
front. Central Hudson
3. AKA: Four-part analysis:
a. For commercial speech to be protected, it must concern lawful activity and not be
misleading
b. Gov’t interest must be substantial
c. If both are true, the regulation must directly advance the interest, and it must not be more
extensive than is necessary to serve that interest.
i. Board of Trustees v. Fox (later case, modification to the directly advance prong)
1. There must be a reasonable fit btwn the ends and the means. The scope must
be in proportion to the interests served. Not least restrictive means, but a
means narrowly tailored. State must affirmatively establish the reasonable fit

iv. The overbreadth doctrine doesn’t apply when the law is only overbroad as to commercial
advertising. It is hardy enough, that chill isn’t a concern.
1. Question is whether other speech, which the challenger argues is improperly prohibited, is
commercial advertising.
2. If your speech was properly prohibited, you can’t claim overbreadth if the impermissibly
covered speech is only commercial advertising.
a. E.g., Law bans all commercial advertisements for alcohol. You’re prosecuted under the
law for publishing a false ad about alcohol. If you claim the law is overbroad, you’ll lose.
Your speech is unprotected; though the law probably impermissibly restricts some
other ppl’s speech since many commercial ads for alc are protected, the speech is
commercial advertising.

v. Policy reasons for lower protection given to consumer advertising:

1. Necessary to protect consumers, less important to debate on political or social issues, less central
to ppl’s abilities to express themselves, less likely to chill bc hardy, politicians have less incentive
to restrict in this speech in self-serving ways.
vi. Policy reasons for granting at least some protection:
1. Communicates important info, often related to political or social issues, it’s speech, hard to draw
line btwn commercial and noncommercial speech.
a. VA State Bd of Pharmacy: We have a free enterprise economy, so the allocation of our
resources are made through private economic decisions; ppl need to be informed.

vii. A state can’t completely suppress the dissemination of concededly truthful info about entirely
lawful activity, fearful of that info’s effect upon its disseminators and its recipients.
1. State is allowed to ensure that the stream of commercial info flow cleanly & freely
viii. VA State Bd. of Pharmacy: Punishes pharmacists who advertise the prices for prescription drugs.
1. Alternative to the paternalistic approach: assume the best means of informing ppl is to open
the channels of communication instead of closing them.
2. Commercial speech is more objective (truth is easily verified by the speaker) and hardy (ads
play a crucial role in sales, so unlikely to be chilled).

ix. Central Hudson Gas & Electric: City prohibited electric companies from publishing ads that are
intended to stimulate the purchase of utility services.
1. This is unconst’nal bc it suppresses speech that in no way impairs the state’s interest in
energy conservation. It’s paternalistic; correct result is to let ppl have access to open
channels of communication.
a. N.Y. has an interest in promoting energy conservation & the reg would directly further
that interest, but it is more extensive than necessary since it restricts all promotional
advertising regardless of whether it actually increases energy use.
 x. Ohralik: Law punishes lawyers who solicit clients in person in circs likely to pose dangers that the
state has a right to prevent. D interviewed 2 girls after they were in accident & pressured them to
hire him.
1. Law is const’nal bc it may regulate under circs likely to pose dangers that the state has a right
to prevent. State doesn’t have to show actual harm or injury to the solicited clients.
xi. Sorrell: Banned the sale of prescriber-identifiable data for marketing or promoting a prescription
drug w/out consent of the prescriber.
1. This imposes content and speaker based burdens on protected expression, so it is subject to
heightened scrutiny. Heightened scrutiny is req’d whenever gov’t creates a regulation of
speech bc of disagreement w/ the message it conveys. Commercial speech is no exception.
2. Unconst’nal bc there are other means available to advance the interest in protecting medical
privacy: Dr can refuse to speak to sellers.
3. Fear of ppl making bad decisions can’t justify suppression

III. Strict Scrutiny

 State must identify an “actual problem” in need of solving, and the curtailment of free speech
must be actually necessary to the sol’n. Brown v. EMA
o It is rare that a regulation restricting speech bc of its content will ever be permissible.
A. Compelling gov’t interest: Is the gov’t concern at stake important enough to justify restricting speech?
i. Not compelling interests:
1. Avoiding offense, restricting bad ideas (Cohen: gov’t doesn’t have interest in shielding ppl)
2. Equalizing the ability of individuals & groups to influence outcome of elections (Buckley)
3. Reducing costs of political campaigns (Id.)
4. Protecting party unity during a primary (Eu)
5. Producing a society free of biases against certain groups (Hurley)
ii. Compelling interests:
1. Combatting terrorism (Holder v. Humanitarian Law Project)
2. Protecting the psychological well-being of minors, including shielding them from literature that
isn’t obscene by adult standards (Sable)
a. But law is impermissibly tailored if it infringes too much on adults’ right to the material
(Butler v. Michigan)
3. Maintaining a stable political system (Eu), protecting integrity of judicial system (Williams-Yulee)
4. Protecting the basic human rights of members of groups that have historically been subjected to
discrimination to live in peace where they wish. (R.A.V.)
5. Eliminating discrimination & assuring equal access to publicly available goods & services. Roberts
iii. Underinclusiveness may indicate that an interest isn’t compelling
iv. An asserted interest itself might be impermissibly underinclusive
1. Underinclusive law: banning abortion picketing when the interest is preventing obstruction of
sidewalks. Other types of picketing obstruct sidewalk too.
2. Underinclusive interest: preventing obstruction of sidewalks by anti-abortion protesters. The law
isn’t underinclusive bc it covers the interest, but the interest is underinclusive bc gov’t can’t
explain why labor protestors are less damaging.
v. When deciding if an interest is compelling, argue by counterexample:
1. If this interest were compelling, then look at the restrictions that would be allowed; but these
restrictions are clearly unconst’nal, so the interest can’t be compelling.

B. Narrow Tailoring: As a factual matter, do the means satisfy all the following elements
i. If the interest is really that important, gov’t should be willing to do w/e it takes.
1. The posited alternative could be completely unrealistic, e.g., a 90% fed income tax—something
that no leg would ever pass.

ii. Advancement of the interest:

 1. Amount of empirical evidence needed to prove this will vary depending on plausibility or novelty
of the justification.
2. Gov’t doesn’t have a compelling interest in each marginal percentage point by which its goals are
advanced; even if reg furthers goals somewhat, might not be enough to justify reg. Brown

iii. Not overinclusive:

1. If the gov’t can serve the interest while burdening less speech it should do so. A law is
overinclusive only if it covers speech that can be practically identified as not implicating the
interest, and that can therefore be excluded from coverage. Other def (less common):
overinclusive whenever it covers some speech that doesn’t materially implicate the interest.
a. Ex: Law bans all leafletting bc of a concern of them being thrown on the ground. Not all
leaflets will be thrown on the ground, so the law is overinclusive under the less common
def. But bc there’s no way of knowing which leaflets will be thrown on the ground, it’s not
overinclusive under more common definition.
b. Different from overbreadth, which has to do w/ standing to sue.

iv. Least restrictive alternative:

1. Among available, effective alternatives. If the alternative is pretty close in effectiveness, it should
be enough.

v. Not underinclusive:
1. It can’t fail to restrict a significant amount of speech that harms the gov’t interest to about the
same degree as does the restricted speech.
2. If the interest is really that compelling, it must be compelling across the board.
a. S.S. req’s gov’t to apply the law to all speech that implicates its interest. Forcing it to cover
more speech often results in the gov’t dropping the law, so all speech is free.
3. May suggest that the state interest isn’t that important. Or that real intention was different, i.e.,
desire to favor a particular speaker or viewpoint (Brown).
4. If underinclusion is sufficiently great, may reveal that a law does not actually advance a compelling
interest. Williams-Yulee; Florida Star
5. May show content discrimination beyond that justified by the compelling interest
6. E.g., Carey v. Brown: bar on nonlabor residential picketing wasn’t narrowly tailored to the interest
in preserving residential privacy bc labor picketing and nonlabor picketing were = intrusive.
a. But see Williams-Yulee: A law may target the speech most likely to undermine the gov’t’s
interest. Gov’t doesn’t need to address all aspects of a problem in one fell swoop;
policymakers can focus on their most pressing concerns.

vi. Low burden on speech:

1. Can be unconst’nal due to amount of speech that’s prohibited by the law, even if there’s a
compelling interest and it’s the least restrictive means of advancing.
2. E.g., Holder v. Humanitarian Law Project stressed that the law banned only speech coordinated w/
foreign terrorists, and allowed for independent advocacy. Banning both might be too broad to be
const’nal.

vii. Permissible tailoring (proper):

1. Can’t be impermissible way of accomplishing a compelling interest.
a. Can be improper if it is too restrictive, or premised on a rationale that’s inconsistent w/ the
Court’s view of the 1st Am.
2. E.g., Bans on abstract advocacy of violence bc this would go against Brandenburg; only those
restrictions allowed by Brandenburg are “permissibly tailored.” Brandenberg has resolved the
permissible tailoring question.

C. Content Discrimination
  Problem w/ content discrimination is that it raises the possibility that the gov’t may effectively
drive certain ideas or view points from the marketplace. Put thumb on the scale.
o Content neutral: No discussion above 50 decibels
o Content based: No discussion of politics, no nudity.
o Viewpoint based: No discussion in support of Republicans, no racist speech.
 Being pro politics or nudity isn’t a viewpoint. Like if someone tried to say they are
pro decibels over 100. That doesn’t transform a content based distinction into a
viewpoint based distinction.
 To allow the gov’t the choice of permissible subjects for public debate would be to allow gov’t to
have control over the search for truth. Reed
i. Not content neutral if:
1. It facially discriminates based on content
a. Applies based on discussion of a topic, idea, or message
b. Regulates based on subject matter, even if it doesn’t discriminate among viewpoints.
i. E.g., A law banning the use of sound trucks for political speech—and only political
speech—is content based even if it applies to democrat, republican, libertarian,
etc. political speech. Sound trucks are ok if they apply to non-political speech, but
not political.
c. It is applied to speech based on its content (enforcing the law req’s content discrim)
2. Not facially content based, but: (Reed & Gilbert)
a. It can’t be justified w/out reference to the content of the regulated speech or
b. Was adopted bc of disagreement w/ the message the speech conveys
c. Legislators’ intent doesn’t matter. O’Brien
d. Squaring O’Brien w/ Reed & Gilbert: O’Brien says we don’t try to figure out actual
motive. Apparent motive matters. Not giving leg a lie detector test, but court can try to
figure out what seems to have motivated the legislature based on what we know about
the background of the legislation.

ii. Content Discrimination When Speech Is Not Within an Exception

1. Subject to strict scrutiny
a. Purpose of SS: To ensure that speech is restricted no further than necessary to achieve
the goal. Assure that legit speech isn’t chilled or punished.
2. Carey v. Brown: Statute banned picketing outside of residences, but exempts labor picketing
outside of a place of employment. Ds were convicted for picketing outside of Mayor’s house
about politics (non-labor).
a. Content discrimination: gives preferential treatment to expression of views on labor
b. Fails SS: Over & underinclusive. Over: covers all nonlabor picketing, even when it
doesn’t implicate interest in neighborhood peace. Under: doesn’t cover any peaceful
labor picketing, even if it does implicate the interest.
i. Leg prob thought residential privacy is a compelling interest, but it can be
overcome in the one instance of labor picketing bc that’s important.
c. Public interest picketing has always been on the highest rung of 1st Am values
3. Ashcroft v. ACLU (II): Prohibits posting online, for commercial purposes, content that is
harmful to minors. Used Miller test + “for minors.” Aff D: D can prove he restricted access to
minors by req’ing credit card or adult ID #, accepting a digital certificate that verifies age.
a. Content discrimination: Restricts indecent conduct; adults have right to access
i. Making const’nal speech harder to access  S.S.
b. Proper SS analysis: Court should ask whether the challenged regulation is the least
restrictive means among available, effective alternatives.
i. Do not begin w/ the status quo and ask whether the challenged law has some add’l
ability to achieve C’s legit interest—any reg would survive.
 ii. Breyer’s approach (rejected): Compare (a) a status quo that includes filtering
software with (b) a change in that status quo that adds to it an age-verification
screen req’t. Given filtering software, does the problem remain significant?
c. This law fails bc there are plausible, less restrictive alternatives.
i. Filtering software is available & less restrictive. Gov’t failed to prove that it’s less
effective.
4. Brown v. Entertainment Merch Ass’n: CA law prohibits selling violent video games to kids
unless they have parental permission.
a. Content discrimination: Restricts violent video games, but not other kinds.
b. Fails SS: No empirical evidence that playing violent video games causes minors to act
aggressively, just correlation research. (playing games  explode, not explore). Bc
there’s no history of proscribing violent speech, it’s subject to S.S. which req’s a direct
causal link.
i. Underinclusive bc other forms of media can lead to violence, but not covered. Also
underinclusive bc kids can still access if a parent says it’s ok.
ii. Overinclusive to state’s interest in aiding parental authority bc not all parents care
if kids have these games.
c. Perhaps violent video games present a serious problem, but there are all sorts of
“problems” that can’t be addressed by gov’tal restriction of free expression.
i. E.g., Nat’l Socialist Party v. Skokie, Texas v. Johnson
5. Holder v. Humanitarian Law Project: Fed crime to knowingly provide material support to a
terrorist group. Ok to provide independent advocacy for the group, not ok to coordinate
speech w/ terrorists. P wants to train terrorist group in humanitarian efforts.
a. The statute is const’nal; carefully drawn to cover only a narrow category of speech.
i. Gov’t’s interest in combatting terrorism is an urgent objective of the highest order.
ii. C made specific findings that any support to terrorists would further terrorist
activities. C & Exec are entitled to deference in judgment that it’s not possible to
distinguish material support for group’s violent and its nonviolent activities.
1. Court lacks competence in collecting evidence & drawing factual inferences
in this realm.
2. C has greater leeway in international relations than domestic.
6. Reed v. Town of Gilbert: Town prohibits display of outdoor signs w/out a permit. 23
categories of signs are exempted. (1) ideological signs have no time limit, can be 20 ft, (2)
political signs can be around time of election & 32 ft, (3) temporary directional signs can be
posted 12 hrs before an event & 6 ft. Church didn’t follow limits for directional signs.
a. The law is content based on its face, so subject to S.S. & fails bc it’s hopelessly
underinclusive.
b. The restriction that applies to a sign depends entirely on the communicative content of
the sign.
i. Signs w/ an ideological message are given greater preference than ones for a
political candidate, which are greater than one advertising an assembly of ppl.
c. The town had ample content-neutral options available to resolve problems w/ safety &
aesthetics.
i. It could regulate based on size, building materials, lighting, portability, etc.
d. Kagan concurrance: The concern behind content based regs is that gov’t will skew the
public debate of ideas. When the risk is inconsequential, s.s. is unwarranted.

iii. Content Discrimination Within the Exceptions to Protection

1. A restriction on unprotected speech or commercial advertising must pass S.S. if it includes a
content discrimination in addition to the one that makes the speech unprotected. Ex:
a. Restriction on obscenity that includes offensive political messages
 b. Threats against the Pres that mention his policy on aid to inner cities
c. Commercial advertising that depicts men in a demeaning fashion
2. Exceptions:
a. Particular virulence (worst of the worst): It’s ok to limit the scope of the regulation to
speech that is especially problematic w/in the proscribable category—discriminate based on
reason why the exception exists. The core of the exception.
i. Limit obscenity that is the most patently offensive in its prurience.
ii. Threats of violence against the President (threats have special force when against
President)
iii. Regulate price advertising in one industry bc risk of fraud (characteristics of
commercial speech that justifies lesser protection) is greatest there.
iv. Virginia v. Black: Imposing special penalties for cross burning w/ intent to intimidate bc
burning a cross is a particularly virulent form of intimidation; extra threatening
v. RAV: Doesn’t fit this category. Fighting words is about mode of expression; would
need to single out based on fighting words communicated in especially threatening
manner.
b. Secondary effects: The subclass happens to be associated w/ particular secondary effects of
the speech, so that the reg is justified w/out reference to the content of the speech.
i. The offensiveness and persuasiveness of speech, and effects that flow from them,
aren’t secondary effects.
ii. Ex: Regulation of adult bookstores, not bc of obscenity, but bc they are magnets for
prostitution. Those activities just happen to be associated w/ adult bookstores, but leg
is only worried about the harm from prostitution.
c. A generally applicable law that is directed at conduct, but applies to both speech & conduct
doesn’t need to pass S.S. when a content-based subcategory of speech is incidentally swept
up w/in the reach of the statute.
i. Ex: Title VII prohibits sexual discrimination in employment practices. Fighting words
that are sexually derogatory (sub category) may be caught up in the reg.
d. The nature of the content discrimination is such that there’s no realistic possibility that
official suppression of ideas is afoot.
i. Ex: State prohibiting only those movies w/ blue-eyed actresses.
3. The proscribable categories aren’t categories of speech totally invisible to the 1st Am; can’t be
made vehicles for content discrimination unrelated to the proscribable content.
a. Power to proscribe on the basis of one content element, e.g., obscenity, doesn’t entail the
power to proscribe on the basis of other content elements, e.g., gender.
4. R.A.V. v. City of St. Paul: Law banned hate speech that arouses anger or fear in others on the basis
of race, color, creed, religion, or gender. D burned a cross on a back family’s lawn. MN S.Ct.
construed the law to reach only expressions that = “fighting words” w/in Chaplinsky.
a. Unconst’nal viewpoint discrimination. (prohibits sign that says all Jews are bastards, but not
a sign that says all anti-Semites are bastards). Gov’t can’t license one side of debate.
i. Fighting words do have some ideas. The exception exists bc of mode of
communication, but content discrim makes it look like regulating based on ideas.
b. Not exception 1: This is based on the message, not the mode of communication
c. Not exception 2: Directed at listener’s rxn to the speech which is primary effect
d. Fails S.S.: Ensuring basic human rights of members of groups that have historically been
subject to discrimination is a compelling interest, but not narrowly tailored.
i. This would advance the interest, but it’s not necessary bc content neutral alternatives
exist.
e. Failed arg (White concurrence): If gov’t can proscribe the entire category, then it can
proscribe a subset. Either way it covers only proscribable content.
5. Virginia v. Black: Statute bans burning cross on another’s lawn w/ intent to intimidate. Burning
the cross is prima facie evidence of an intent to intimidate.
 a. This is const’nal bc it fits into exception 1. Burning a cross is a particularly virulent form of
intimidation in light of cross burning’s long and pernicious history as a signal of impending
violence.
1. Different from R.A.V. bc not based on viewpoint, based on most intimidating
form of threats. Threat exception exists to prevent speech that intimidates.
2. This isn’t going after white supremacy, just cross burning.
ii. Unconst’nal to say it’s prima facie evidence of intent bc some cross burning won’t be a
threat. Ex: Burning a cross at a political rally would likely be protected.

iv. Content-Neutral Restrictions

1. Do you have to know English to understand the law, enforce it, or know its purpose?
a. No more than 90 decibels after 9 pm is content neutral. Someone who knows no
English can go around w/ a decibel reader & enforce the law; it doesn’t matter what the
content of the speech is.
b. If you do need to know English, it’s content, and possibly viewpoint, based.
2. Gov’t has considerable, but not unlimited, authority to restrict speech & symbolic expression
based on their noncommunicative impact.
a. Speech has a noncommunicative component that can cause harms independently of
what the speech expresses.
b. E.g., Loud speech in the middle of the night wakes ppl up. Leaflets can end up littered
on the ground. A parade can tie up traffic.
i. Communicative impact is the harms that flow from what the speech
communicated, e.g., speech persuading ppl to do bad things, injures reputation.
c. Particularly true w/ symbolic expression, which often triggers laws that don’t even
mention speech, e.g., burning a draft card destroys a gov’t document, burning a flag
could start a fire.
3. A facially content- neutral law doesn’t become content based simply bc it disproportionately
affects speech on certain topics.
a. The question is whether the law is justified w/out reference to the content of the
regulated speech. An incidental effect on some speakers or messages isn’t enough.
b. E.g., McCullen: Buffer zone outside of abortion clinics was content neutral even though
it had the inevitable effect of restricting abortion related speech more than speech on
other subjects. All speech outside of abortion clinics is banned, regardless of content.
Purpose is public safety at abortion clinics.
4. Holder v. Humanitarian Law Project: Law criminalizes providing material support to terrorist
org when it’s designed to impart a specific skill, as opposed to general knowledge.
a. This discriminates based on content. Communicating general knowledge is ok, but
communicating specific skills isn’t.

5. A content neutral speech restriction must be narrowly tailored to serve a significant gov’t
interest & must leave open ample alternative channels of communication.
a. Restrictions on the time, place, or manner of speech (and conduct restrictions applied
to expressive conduct) [content neutral] are permissible if they:
b. Are content neutral
i. The law must be justified w/out reference to the content of the regulated speech
or the communicative impact of the symbolic expression.
ii. Focus is text & structure of the law, not legislators’ supposed motive. O’Brien
c. Serve a substantial gov’t interest
i. Preserving residential privacy, Frisby, preventing excessive noise, preventing tie-
ups in car traffic or pedestrian traffic in crowded areas, etc.
d. Are narrowly tailored to serve this interest
 i. It must advance the gov’t interest
1. Removing the restriction or exempting the challenger’s conduct & conduct
like it would materially interfere w/ the gov’t interest. Turner Broadcasting
ii. May not be overinclusive
1. The law can’t burden a substantial amount of speech that doesn’t implicate
the gov’t interest
iii. The burden imposed on speech can’t be disproportionate to the degree to which
the speech implicates the interest.
1. Convenience & efficiency can’t justify abridging 1st Am rights
a. Schneider: City banned all distribution of literature to the public in the
streets & all door-to-door solicitation unless you have a permit.
Purpose of former: reduce littering, of latter: prevent fraud & trespass.
Each purpose is insufficient to justify the restrictions. Gov’t can
prohibit littering, & fraud & trespass directly. It may be less effective,
but these are too restrictive.
2. McCullen v. Coakley: MA had a law that created a 35-foot buffer zone
around the entrance to any place other than hospitals that perform
abortions. Ps don’t protest, but engage in conversations to persuade
women to not get abortions. Their approach relies upon intimate, pleasant
conversations.
a. Interest in ensuring public safety outside abortion clinics, preventing
harassment & intimidation of patients & staff, combatting deliberate
obstruction of clinic entrances are substantial interests.
b. Not narrowly tailored. Less restrictive alternatives are available:
injunctions against illegal conduct, punishing ppl who harass,
intimidate, etc. Buffer zone is easier, but gov’t can’t sacrifice speech
for efficiency. Overinclusive bc it unnecessarily sweeps in innocent
individuals and their speech.
c. Existence of ample alternative channels not considered bc not
narrowly tailored.
3. Prophylactic laws targeting the speech instead of the problematic
consequences are ok if the problematic speech is difficult to detect bc less
restrictive means will be inadequate.
a. Burson v. Freeman: A 100-ft buffer zone outside a polling place on
election day was const’nal bc voter intimidation & election fraud are
difficult to detect. Law enforcement officers are barred from the
vicinity of polls too to avoid any appearance of coercion bc many acts
of interference would go undetected.
b. This wasn’t the case in Schneider or McCullen
i. McCullen: P failed to show that the laws on the books in MA are
inadequate to address the problem. Obstruction of clinics &
harassment of patients are anything but subtle.
iv. Not the same as narrow tailoring in S.S. (gov’t wins ~50% of the time)
1. Doesn’t have to be least restrictive means. Ward
2. Doesn’t matter if it’s underinclusive. Taxpayers for Vincent
e. Leave open alternate channels
i. Grounds for rejecting an alternative channel:
1. Too expensive
a. E.g., Gilleo: Residential signs are and unusually cheap & convenient
form of communication.
2. Unlikely to reach pretty much the same audience
 a. E.g., id: signs can easily reach neighbors, an audience that couldn’t be
reached nearly as well by other means.
3. Likely to implicitly carry a significantly different message from the one that
the speaker prefers
a. E.g., id: Displaying a sign from one’s own residence often carries a
message quite distinct from placing the same sign someplace else
ii. This prong hasn’t been extended to restrictions on expressive conduct.
1. But it maybe implicitly there, but almost always met. The alternative
channel is speech that communicates pretty much the same message.
iii. Theory: The restriction doesn’t really ban speech, only reroutes it.
1. If the law substantially burdens speech (by not leaving open ample
alternative channels) then the time/place/manner analysis doesn’t apply
and the law must pass S.S.
2. If law imposes a less-than-substantial burden (by closing only 1 channel but
leaving open ample alternatives) then it must pass intermediate scrutiny—
substantial interest & not more restrictive than necessary.

f. Challengers of content-neutral speech restrictions usually bring facial challenges.

g. Frisby v. Schultz: City ordinance prohibited picketing outside of residential homes.
i. Preserving the sanctity of the home/residential privacy is a compelling gov’t
interest. (Special right to avoid intrusions in the home: Rowan & Pacifica).
Laws that foreclose an
entire medium of
ii. Even though it is a complete ban of a medium of expression (picketing), it isn’t
expression are overinclusive bc every instance of residential picketing implicates the substantial
particularly concerning. interest.
Gilleo 1. Different from Keefe bc the speech here is directed at the household, not
the public.
But they are ok if all the
expression in that
2. Even a single picketer can invade residential privacy: few of us would feel
medium implicates the comfortable knowing that a stranger lurks outside our home.
gov’t’s interest. Frisby iii. Alternative channels: Protestors are still allowed in residential neighborhoods.
They can march through, go door-to-door, etc.
iv. Dissent: City can regulate to an extent, but it prohibiting in every instance is
overbroad bc at some point the picketing no longer implicates the gov’t’s interest.
A single picketer doesn’t implicate the interest. Picketing is directed at both the
public & the residents.
h. City of Ladue v. Gilleo: Law prohibits signs in residential areas. Purpose is to minimize
visual clutter. Gilleo put 8.5x11 sign in her home stating, “Peace in gulf.”
i. Interest is valid, but not compelling
ii. There are less restrictive alternatives.
iii. There aren’t adequate substitute channels for this important medium of speech
1. This is an unusually cheap and convenient form of communication.
2. Placing a message on your home changes the message; it provides info
about the identity of the speaker.
3. These signs are intended to reach neighbors, an audience that couldn’t be
reached nearly as well by other means.

IV. Symbolic Expression

A. The use of symbolism that communicates a message w/out words, such as waving a flag, burning a flag,
burning a cross, wearing a black armband, and wearing a uniform.
B. Symbolic expression is protected if: intend to convey message + likely to do so on its own.
i. The expression intends to convey a particularized message,
 1. “Particularized message” isn’t strictly construed. Just focus on whether there was intent to
convey a message. E.g., flag burning doesn’t convey a specific message, but unhappiness w/
U.S. generally.
ii. The likelihood is great that the message would be understood by those who viewed it,
iii. The message is created by the conduct itself, not by explanatory speech accompanying it.
iv. OR: It is w/in a traditionally protected genre, such as painting, music, poetry, or parade

C. No less restrictable than verbal expression, can be restricted if:

i. Like verbal expression, it falls w/in an exception to free speech protection, e.g., obscenity.
ii. If the restriction is applied for reasons unrelated to the communicative impact of the expression.

iii. If speech + conduct  1st Am protection, way too much conduct would be protected, e.g., someone
could say he intends to express his disapproval of IRS by refusing to pay his income taxes, then court
would have to decide whether tax code violates 1st

iv. Texas v. Johnson: D’s burning the flag was conduct sufficiently imbued w/ elements of communication
to implicate 1st
1. The expressive, overtly political nature of this conduct was both intentional and overwhelmingly
apparent.
D. Rumsfield v. FAIR: Act req’d law schools to let military recruit on campus if it received fed funding. Law
school wants to restrict military recruiting on campus bc they object to the policy Congress has adopted
barring homosexuals from the military.
i. Denying military recruiters access to the campus isn’t inherently expressive. An observer who sees
the school treating military recruiters differently than other recruiters has no way of knowing why
(disapproval, rooms are full at the law school, etc.). Speech is needed to explain the conduct.
ii. It regulates conduct, not speech. It affects what they must do—afford equal access to military
recruiters—not what they may or may not say.

E. Restrictions on Expressive Conduct

i. Is the regulated conduct expressive?
1. No: it’s not protected
ii. Is the law content neutral, i.e., justified w/out reference to the communicative impact of the
expression?
1. No  Strict scrutiny
a. A law directed at the communicative nature of conduct must, like a law directed at
speech, be justified by the substantive showing of need that the 1st Am req’s.
b. A law can’t proscribe conduct bc it has expressive elements.
i. A law can’t be justified by the emotive impact of speech on its audience
ii. As the gov’t, never justify a regulation by the content of the speech

2. Yes  O’Brien standard

a. Law is justified if it prohibits conduct, not speech & incidentally burdens expression
b. Gov’t has a substantial gov’tal interest that’s unrelated to the suppression of speech, &
c. The incidental restriction on speech must be no greater than is essential to the
furtherance of that interest. (narrow tailoring)

iii. Symbolic expression claimants often bring as applied challenges

iv. O’Brien: O’Brien burned his draft card & was prosecuted under law that prohibited knowing
destruction of draft card. The law is const’nal.
1. Protecting the administration of the draft system by guaranteeing the availability of draft
cards is a substantial interest.
 2. There is no more precise and narrowly tailored means of achieving this interest.
3. Harlan concurrence: Speaker may prevail if he proves the law leaves him w/ no alternative
channels. Not the case here; O’Brien could have conveyed his message in many ways other
than burning the draft card.
v. The validity of the regulation doesn’t need to be judged solely by reference to the expressive
conduct in the present case.
vi. Clark v. Community for Creative Non-Violence: Group wanted to stage a demonstration at the nat’l
mall using real homeless ppl sleeping in tents to raise awareness of the homelessness problem.
Nat’l parks only let ppl sleep in designated camping parks (nat’l mall isn’t one of them).
1. Gov’t has a substantial interest in maintaining the nat’l parks
2. The prohibition is narrowly focused on the interest in maintaining the parks. The parks would
be more exposed to harm w/out the sleeping prohibition than w/ it.
3. The plight of the homeless could be communicated in other ways.
4. If this group is allowed to sleep, others would request an exemption to do so also.
vii. Texas v. Johnson: Flag burning law. The state’s interest is related to expression: preserving the flag
as a symbol of nationhood. These concerns blossom only when a person’s treatment of the flag
communicates some message. Burning an old flag to respectfully dispose of it is ok, but burning it
as defiance to U.S. isn’t. This is subject to S.S. & fails.

V. Special Burdens on Free Speech

A. Forced Association
i. To speak effectively, ppl need to organize into groups. The 1st Am implicitly protects ppl’s right to
associate w/ each other for expressive purposes.
ii. Substantial burdens on expressive ass’n are generally subject to strict scrutiny
1. Types of substantial burdens:
a. Req’t that expressive ass’n accept unwanted members or voters. Boy Scouts, Jones
i. Compare & contrast Boy Scouts & Roberts to determine if it’s a substantial burden
ii. Sometimes covers choice of members, doesn’t cover less important choices (like
which recruiters can use office space, see Rumsfeld v. FAIR).
iii. Boy Scouts didn’t consider the compelling interest arg, which suggests substantial
burden on expressive ass’n may be per se invalid.
b. Total prohibitions on expressive ass’n w/ a particular kind of group, or liability for
joining a group
c. Limits on contributing money or other goods/services to an expressive group.
d. Mandated disclosure of org’s members & contributors. (subject to less than S.S.)
e. Forced contribution of money to a group.
iii. A corollary of the right to associate is the right not to associate (otherwise it’s an empty
guarantee).
1. CA Democratic Party v. Jones: CA used to have a closed primary system then passed a prop
that allowed ppl to vote for any candidate during the primary. All parties sued and claimed
this violated their 1st Am right to ass’n.
a. The law is subject to S.S. bc it places a heavy burden on a political party’s ass’nal
freedom.
b. Fails S.S. bc CA has no compelling interest in the law. Even if the interests were
compelling, there are less restrictive alternatives.
i. Proffered interests: producing representative candidates, expanding candidate
debate, giving independents a chance to participate in primary, promoting
fairness, giving voters greater choice, increasing voter participation, privacy.
ii. Less restrictive alternative: State can do a nonpartisan blanket primary: Have the
party nominate candidates, then each voter, regardless of party, can vote for any
candidate. Top 2 get the nomination.
 c. The open primary forces political parties to associate w/ those who, at best, have
refused to affiliate w/ the party, and, at worst, have expressly affiliated w/ a rival.
i. Right to exclude is particularly important in the selection of candidates bc the
nominee becomes the party’s ambassador.
ii. Open primary makes it possible that outsiders will be able to hijack the party.
d. Stevens dissent: 1A interest is weak & state interest is strong. It’s not the Repub party
primary, it’s CA’s primary.

iv. Two types of expressive ass’ns:

1. Intimate ass’n: Personal affiliations. A substantial measure of sanctuary from unjustified
interference by the State is req’d due to BoR’s design to secure individual liberty.
a. Qualities: relative smallness, high degree of selectivity in decisions to begin & maintain
the affiliation, & seclusion from others in critical aspects of the relationship.
b. Factors: size, purpose, policies, selectivity, congeniality.
c. Ex: Those relationships that attend the creation & sustenance of a family—marriage,
child birth, raising and education of kids, and cohabitation w/ one’s relatives.
d. Ex: Const’n offers protections for selecting your spouse, but not the same for selecting
your employees.
2. Expressive ass’n: Protecting the group is necessary to protect speech. Right to engage in
activities protected by the 1st  right to associate w/ others in pursuit of a wide variety of
political, social, economic, religious, and cultural ends. Includes freedom not to associate.
3. Not an absolute right. Law must pass S.S.: compelling state interests unrelated to the
suppression of ideas, that can’t be achieved through means significantly less restrictive

4. Roberts v. Jaycees: Junior Chamber of Commerce group. Women can be “associate

members,” but can’t vote. State determined that the group violated antidiscrimination law.
Purpose of group is to promote the interests of young men.
a. Not an intimate ass’n (way too big & not selective).
b. It is an expressive ass’n. A not insubstantial part of the Jaycee’s activities constitutes
protected expression on political, econ, cultural, and social affairs. The org has taken
public positions on a number of diverse issues.
c. But the state has a compelling interest: historical commitment to eliminating
discrimination & assuring its citizens equal access to publicly available goods & services.
And the law advances those interests through the least restrictive means available.
d. There’s no evidence that allowing women to vote will change the group’s message
i. Org relies on stereotypes to say that women might support different things
ii. Org already allows women to share the group’s views and philosophy and to
participate in many of the activities.
e. O’Connor (Concurring):
i. Protection offered to ass’ns depends on whether the group is an expressive ass’n
or commercial ass’n.
1. Expressive ass’ns have Cons’tnal protection of both the content of its
message & the choice of its members.
a. Reason for the right: Formation of an expressive ass’n = creation of a
voice, & the selection of members defines of that voice.
2. Commercial ass’ns have minimal const’nal protection (rat’l basis).
a. Ex: shopkeeper has no const’nal right to deal only w/ ppl of 1 sex
3. State regulations on ass’n (membership selection) will only silence a
collective voice that would otherwise be heard in the context of expressive
ass’ns—groups that are predominantly engaged in protected expression.
Their voice will be affected, changed, diluted, or silenced.
 ii. Jaycees is, first and foremost, a commercial organization (teaches how to sell).
State has a legit interest in its anti-discrim law, so const’nal.
5. Forced ass’n is a problem when the presence of that person affects in a significant way the
group’s ability to advocate public or private viewpoints.
a. Group must be involved in some form of expression, whether public or private
i. Disseminating a certain message doesn’t have to be the purpose of the ass’n
b. Next, determine what the group’s view is on the topic.
i. Deference given
ii. Doesn’t req every member to agree on the issue
iii. Enough if group takes an official position
c. Finally, does the forced intruder significantly burden that view?
i. Deference given
ii. If the message is central to your org, you can exclude (at least when forced
intruder is a leader or spokesperson). All 9 justices agree.
6. Boy Scouts v. Dale: Dale was asst. troop leader. He came out as gay in college, was featured
in a newspaper story about being gay, leader in gay clubs. Kicked out of boy scouts. Sued
under state anti-discrimination law.
a. Boy Scouts are involved in expressive activity bc they seek to transmit a system of
values. The general mission is clear: instill values in young boys.
b. Boy Scouts’ view of homosexuality?
i. Scout’s oath: clean & morally straight. Boy Scouts say this means they don’t want
to teach boys that homosexual conduct is a legit form of behavior. Opposition to
homosexuality is part of BS’s expressive message.
c. Does the forced intruder significantly burden that view?
i. Letting Dale be a leader would force the org to send a message that it accepts
homosexual conduct as a legit form of behavior.
d. The state interests don’t justify such a substantial burden on the org’s right to oppose
or disfavor homosexual conduct.
e. Stevens dissent: The law doesn’t impose a substantial burden bc boy scouts’ message is
so weak. Inappropriate to defer to the group bc it allows them to simply adopt a policy
post-hoc. Group must show that it has adopted and advocated an unequivocal position
inconsistent w/ the forced intruder.
i. The KKK wouldn’t be forced to let blacks or Jews join. Letting them join is clearly
against KKK’s message.

7. Fleeting ass’ns don’t violate the group’s right to associate

a. Rumsfeld v. FAIR: Law req’s law schools to let military recruit on campus & get same
treatment as other employers.
i. Fails at step 3.
1. Law schools are expressive—students & professors are free to associate to
voice their disapproval of the military’s message.
2. School has a view on the topic: it opposes the war, but it’s not central.
3. Letting recruiters come doesn’t impose a substantial burden. Recruiters’
mere presence for a short period doesn’t violate law school’s ass’n right bc
the recruiters are outsiders; they aren’t seeking to join the ass’n.
8. Ex: Ollie’s BBQ can probably refuse to hire blacks if they’re super outspoken about being
racist. Boy Scouts. But Ollie’s can’t refuse to serve blacks bc black customers don’t become
part of the ass’n—it’s too fleeting. Rumsfeld
9. The freedom of expressive ass’n also prohibits laws that don’t directly interfere w/ an org’s
membership, but make group membership less attractive. Rumsfeld v. FAIR
 a. This raises the same 1st Am concerns about affecting the group’s ability to express its
message.
b. E.g., Brown v. Socialist Workers Campaign Comm.: Unconst’nal to req disclosure of
membership list for groups seeking anonymity.
c. Or impose penalties or w/hold benefits based on membership in a disfavored group.
d. The law in Rumsfeld is different bc nothing about the law affects composition of the
group by making group membership less desirable. Students & faculty are still free to
associate to voice opposition to war.

B. Restrictions on Speech-Related Spending & Contributions

i. Spending money on speech is const’nally protected
1. Restrictions on spending money to speak diminish ppl’s ability to speak effectively.
2. Money isn’t speech, but it enables speech
ii. Key distinction:
1. Contributions: Can be limited. You give to the campaign, and they spend your money
2. Expenditures: Subject to S.S. You spend your money directly for the candidate
3. Ex: You have $10 million dollars that you want to use to support your candidate.
Contribution: You give it to her campaign. Expenditure: You use it to buy ads on your own.
4. Rationale: Contributions are much more likely to involve quid pro quo than expenditures are
a. Once contributions are limited, it’s important to allow expenditures bc they’re the
alternative avenue to express political speech. Otherwise the limit is too great.

iii. Contributions made by individuals or groups to individual candidates, PACs, or political parties, may
be limited in dollar amount, so long as the limits aren’t so low as to substantially interfere w/
candidates’ and parties’ ability to run a competitive election campaign.
1. Subject to heightened scrutiny—btwn intermediate & S.S. Preventing corruption &
appearance of corruption are strong gov’t interests & limiting $ is narrowly tailored.
a. Buckley: $1,000 limit on individual contributions to candidates is const’nal.
2. Limits that are too low can harm the electoral process by preventing challengers from
mounting effective campaigns against incumbent officeholders, which reduces democratic
accountability.
a. Randall v. Sorrell: Restrictions that are too low—such as $400 limit on contributions—
are unconst’nal.
iv. Limits on independent expenditures by individuals, corporations, or unions are subject to S.S. &
usually fail.
1. They are content-based restrictions on ppl’s spending of money to speak. They’re speaking
on their own, e.g., buying a commercial to promote a candidate they like.
2. All justices agree that nonprofit ideological corps (1) that are formed for the express purpose
of promoting political ideas, & can’t engage in business activities, (2) that have no
shareholders or others that have a claim to its earnings, and (3) that weren’t established by a
business corp or labor union, and have a policy not to accept contributions from such entities,
should be protected. These are called MCFL corps.
v. Limits on expenditures by candidates from their own funds are unconst’nal unless they pass S.S.

vi. Buckley: Limited individual contributions to $1,000 to any single candidate per election. Limited
independent expenditures to $1,000 per year on behalf of a clearly identified candidate. Also
limited spending by a candidate, and total campaign spending.
1. Contribution limit is const’nal
a. The restriction is marginal. A contribution is a symbolic act of support that is
independent of the dollar amount. It’s a general expression of support for the
candidate & his views, but it doesn’t communicate the basis for his support.
 b. No evidence that the limit will have a dramatic adverse effect on the funding of
campaigns and political ass’ns.
c. The contributor is still free to discuss candidates & issues and to join associations.
d. It does limit ass’nal rights, but those rights may be limited if the gov’t demonstrates a
sufficiently important interest & employs means closely drawn to avoid unnecessary
abridgment of associational freedoms.
i. Preventing corruption & appearance of corruption (quid pro quo) is strong interest
& no less restrictive alternative. Anti-bribery laws don’t help w/ appearance.
2. Limits on independent expenditures by individs, expenditures by candidates, and aggregate
campaign spending are unconst’nal
a. Independent expenditures limits impose a direct & substantial restraint on the quantity
of political speech & unconst’nally limit political expression at the core of 1A.
i. The limit would make it illegal to take out a ¼ page ad in a big-city newspaper.
ii. State interest insufficient: combating corruption is inadequate bc
1. It wouldn’t eliminate quid pro quos bc it only applies to ads tied to a clearly
identified candidate—ppl could place ads about a candidate’s views. Easy
to indirectly advocate for a candidate. Not effective at furthering interest.
a. The law was construed to apply only to expenditures to a clearly
identified candidate bc as written (expenditures relative to a
candidate) would be unconst’nally vague.
2. Quid pro quo is less likely bc these contributions are made totally
independently of the candidate.
b. Candidate’s expenditures are unconst’nal bc interest in preventing actual or apparent
corruption doesn’t apply since a candidate wouldn’t bribe himself. And not effective at
promoting financial equality bc fundraising allows a candidate to spend more.
3. Limits on total campaign spending is unconst’nal bc candidates have a 1A right to spend as
much as they wish to promote their political views. Gov’t interest in curbing skyroting costs
of campaigning isn’t sufficient to outweigh it.
vii. Citizens United: Restriction on independent expenditures on candidates by corporations & unions is
unconst’nal. The political process req’s free flow of info. Ppl should be exposed to all info so they
can debate it & consider it to reach best result.
1. Anti-distortion rationale (corps have tons of money  an unfair impact on political speech)
fails. Buckley said gov’t doesn’t have an interest in equalizing the relative ability of individuals
to influence the outcome of elections.
2. Corruption rationale fails. Independent expenditures may lead to ingratiation & access to
candidates, but that doesn’t lead to appearance of corruption. The appearance of corruption
won’t cause the electorate to lose faith in democracy.
3. Original meaning: 1A protects speech, not speakers, no reason to distinguish btwn speakers
a. Press extends to every sort of publication which affords a vehicle of info & opinion.
b. Press clause is mere surplusage.
c. Stevens: Press applies only to institutionalized media industry.
viii. Arg for why all campaign finance laws are all unconst’nal (neither contributions nor expenditures
can be limited): Marketplace of ideas and political speech is the heart of the protection.
1. It is wholly foreign to 1st Am to say that gov’t may restrict speech of some groups in order to
enhance the relative voice of others. That is an illegitimate interest.
ix. Arg for why they’re all const’nal (both can be limited): Gov’t has an affirmative responsibility to
protect free speech. The interest is the marketplace of ideas, but there’s the countervailing interest
in making sure all voices can be heard.
1. It’s necessary to silence some voices to make the voters hear the voice of others. The rich are
able to drown others out.
 2. Red Lion v. FCC: High water mark. For broadcast TV, there’s an interest in ppl being exposed
to broad range of info. This hasn’t been adopted for other forms of media/communication.
3. This is totally rejected! Any kind of balance is wholly foreign.
x. Central argument is whether the eliminating the appearance of corruption is a compelling interest.

C. Speech Compulsions
 Where the dissemination of ideas is concerned, it’s safer to assume that the ppl are smart enough
to get the info they need than to assume that the gov’t is wise or impartial enough to make the
judgment for them. Riley (Scalia, concurring)
 A speaker has the autonomy to choose the content of his own message
 Marketplace of ideas isn’t the rationale for protection here—compulsions add to the marketplace.
o This is rooted in self-expression—right to express your true self.
 Approach:
1) Does it fit the dictionary definition of speech compulsion, i.e., is the gov’t forcing someone to
say something?
2) Is it a speech compulsion w/in the 1st Am?
a. Is the message attributed to the speaker?
b. Is it going to alter speaker’s message?
c. Is it connected w/ the speaker enough that ppl will attribute it to her?
 Relevant factor: Is the gov’t dictating the content of speech?

i. Compelling ppl to say, write, display, or fund things might lead to 3 different kinds of objections:
1. Changes the speaker’s own message
a. When a speech compulsion interferes w/ the speaker’s own message, it is
presumptively unconst’nal.
b. The content of speech the speaker has said in the past triggers the compulsion.
i. Because you said X, you now have to say Y.
c. The compulsion interferes w/ a speaker’s ability to create its own coherent speech
product
i. Coherent speech product is something w/ a common theme or a common editorial
voice rather than just individual, unrelated segments that happen to be
transmitted together for individual selection by members of the audience.
ii. Mandating speech that a speaker would not otherwise make necessarily alters the
content of the speech. Riley
d. The compulsion makes the burdened party feel pressure to respond, if only to disavow
any connection w/ the message that it’s compelled to carry.

e. Tornillo v. Miami Herald: FL statute req’s newspapers that publish criticism about a
political candidate to publish a reply chosen by the candidate & paid for by the paper.
i. This exacts a penalty based on the content (newspaper has to pay based on the
content of what it publishes. If they say “FL is great,” no penalty. But “Tornillo is a
bad person,” then they have to publish a response).
ii. Intrudes on editorial fxn. Newspaper is more than a receptacle or conduit for
news, comment, and advertising. Req’ing the newspaper to include an article will
change the content of the newspaper bc the newspaper (1) now includes an extra
article, and (2) now excludes w/e had to be removed to make space for the article.
1. Even if it doesn’t cause newspaper to incur extra costs, this makes it
unconst’nal.
2. Internet sites wouldn’t incur extra costs from an analogous statute, but this
would still be uncost’nal bc websites have editorial fxn.
iii. May deter the newspaper from publishing criticism since it triggers response reqt.
f. Speaker has a right to exclude things from his message. No difference btwn compelled
statements of opinion & compelled statements of fact (both change message).
g. Riley: Statute req’s professional fundraisers to disclose to pot’l donors the percent of
charitable contributions collected during the previous 12 months that were actually
given over to charity. The fundraisers are req’d to disclose pure facts; adding factual
info to the marketplace.
i. This is a content-based regulation of speech. Subject to S.S. and fails.
ii. This isn’t a commercial speech regulation bc the commercial speech is inextricably
intertwined w/ informative and persuasive speech.
1. When the component parts of a single speech are inextricably intertwined,
court can’t parcel out the speech and apply one test to one phrase and
another test to another phrase.
2. State claimed its interest is informing public how $ is spent. This isn’t
compelling. State presumes the money collected, but not given to the
charity doesn’t benefit the charity, but the charity benefits from the
advocacy & dissemination of info. There are more narrowly tailored
options: state already has this info so it can publish it. Doesn’t matter that
it’s less effective.

h. Compelled access to another’s property is unconst’nal if it makes speaker feel

compelled to respond to the speech.
i. Pacific Gas & Electric: PG&E includes a newsletter in its monthly billing envelope.
CA decided the envelope was the property of the customers, so it req’s PG&E to let
an advocacy group use the envelope to spread its message 4 times per year. This
is a viewpoint based regulation: access to the envelope is limited to speakers who
disagree w/ PG&E’s views.
1. Different from Tornillo bc PG&E didn’t have to put the speech in its
newsletter, but it is still req’d to carry speech it disagrees w/.
2. Forced to appear to agree w/ the compelled message or respond.
3. The state can’t advance some views by burdening others (goes to tailoring)
4. Dissent args:
a. Rehnquist: Negative free speech rights (right to be silent/avoid
compelled speech) exist to protect individuals’ self-expression. Corps
don’t have a self. Newspapers are special bc they’ve always been in
speech/info transmission. But shouldn’t extend to corps.
b. Stevens: This is like disclosure req’ts, which gov’t is allowed to impose
on PG&E since it’s a public utility. It’s just a small step to say that the
gov’t can also req PG&E to act as a conduit for public interest group’s
message that’s closely related to info in envelope.

ii. PruneYard Shopping Center:

1. No concern that access would affect the shopping center owner’s right to
speak. Not content based regulation, forum was public in nature.
2. Different from PG&E: (1) Degree of intrusiveness; PG&E never opened its
envelope up to use by the public. (2) shopping center is like a traditional
public forum (check), but PG&E’s envelope is its own forum.

i. Gov’t can take steps to ensure that private interests don’t restrict, through physical
control of a critical pathway of communication, the free flow of info & ideas.
 i. Turner Broadcasting: Act req’s cable operators to carry the signals of a specified #
of local broadcast TV stations.
1. Different from Tornillo & PG&E: The must carry rule is content neutral in its
application, so it exacts no content based penalty (nothing cable operator
says activates the regulation). They don’t force cable operators to alter
their own message to respond.
2. Cable is merely a conduit by which others speak. It just owns the pipe. Low
chance of someone thinking cable operator really likes/agrees w/ the
channels they carry.
3. Cable operator exercises tons of control over TV programming. It is a
gatekeeper that can stop the subscriber from receiving any other channels.
With newspaper, ppl can still receive news from other sources.
4. Red Lion: Gov’t has an affirmative interest in opening up broadcasting to
wide views.

j. Speech doesn’t have to be in a narrow, succinctly articulable message to be protected

i. Hurley: Irish parade in Boston. They were very indiscriminate about who could
participate. Denied KKK group & anti-busing, but only common theme among the
participants is their public involvement in the parade. It denied GLIB & GLIB
claimed this violated MA public accommodation law.
1. The parade chose to exclude a message it didn’t like from the
communication it chose to make. It has a right to exclude. Public
accommodation law is unconst’nal as applied.
2. The parade is like a newspaper (Tornillo), not like a cable operator (Turner
Broadcasting)
a. GLIB’s participation would be perceived as resulting from Parade’s
approval. Exercise of editorial control
b. Not like separate channels on TV. Each parade unit contributes
something to a common theme. Parade can’t make disclaimers in
between units it disapproves of (would be weird).
c. Gov’t’s intervention in Turner Broadcasting wasn’t alteration of
speech, but survival of speakers. No speech will be destroyed in the
absence of the regulation here. GLIB could have own parade. The
broadcast channels would have no way to air their content if not for
the regulation.
3. The gov’t interests aren’t legit: (1) force ppl to accept speech of all content
whether you agree or disagree w/ it. (2) produce society free of bias.
Impermissible interest bc it can’t be tailored.

2. “Pure speech compulsion”

 Speech compulsions that don’t pressure a speaker to change the content of its
message, but purely compels speech (don’t let you be silent).
i. Interfere w/ “freedom of speech” in the sense of freedom to choose what to say,
but doesn’t affect a speaker’s own message. Compulsion doesn’t deter you from
expressing your own views.

a. A compulsion to say things orally, Barnette, or to display words on one’s car, Wooley, is
presumptively unconst’nal. See Rumsfeld.
i. Gov’t may not invade the sphere of intellect & spirit which it is the purpose of
the 1st Am to reserve from all official control
ii. Barnette: Mandatory flag salute. Jehovah’s Witness was opposed.
 1. Public opinion controls authority, not other way around.
2. If there’s a fixed star in our const’nal constellation, it’s that no official can
prescribe what shall be orthodox in politics, nat’lism, religion, or other
matters of public opinion or force citizens to voice support by word or act.
3. This is more than just having someone learn something in class, it is having
them affirm a set of beliefs.
iii. Wooley v. Maynard: NH had license plate that said “Live Free or Die.”
4. Fails S.S. NH offered 2 interests: (1) facilitating identification of cars, and (2)
promoting appreciation of history, individualism, and state pride.
a. 1 fails bc there are more narrowly tailored options available.
b. 2 fails bc it’s a viewpoint regulation; not ideologically neutral.
Individual’s interest in not being a courier for the state’s ideological
message prevails.
5. Different from In God We Trust on currency bc that’s passed from hand to
hand; not associated w/ the person possessing the money.
6. Rehnquist dissent: There is no affirmation of belief. Different from
Barnette. P could easily place a sticker on car to say he disagrees.
b. Req’ts that you say certain things to the gov’t (e.g., file tax returns, testify in court)
might be presumptively const’nal. Routine, and S.Ct. has never suggested that they’re
impermissible. No S.Ct. holding.

c. Compulsions to allow ppl to speak on your business property is seemingly const’nal.

iv. PruneYard: Shopping center doesn’t allow public expressive activities on its prop.
Group tried to solicit support for their cause, PruneYard kicked them out. CA S.Ct.
ordered them to allow ppl to engage in expressive activities on the prop.
7. Distinguishable from Wooley v. Maynard in 3 ways:
a. The mall is open to the public. Views expressed by the public will not
likely be identified w/ those of the owner. (empirical claim)
b. No specific message is dictated. No danger of gov’tal discrimination
for or against a particular message.
c. Mall can expressly disavow any connection w/ the message by simply
posting signs in the area where the speakers stand.
8. Barnette is inapposite bc mall isn’t compelled to affirm any belief.
9. Powell concurrence: This could invade a property owner’s right to speak or
not to speak in some circs. Ppl might think the messages are an owner’s if
it’s on a bulletin board, entrance area, or lobby of a hotel, freestanding
store, etc. The message might be morally repugnant to the owner.
a. That wasn’t the case here, so const’nal.
b. But don’t interpret the decision as blanket approval for state efforts to
transform privately owned commercial prop into public forums.

d. Speech compulsions incidental to regulation of conduct (e.g., compulsion to distribute

e-mails).
i. Rumsfeld: Statute forces law schools to let military recruit on campus if they let
other employers recruit & it must provide recruiting assistance.
1. Doesn’t implicate compelled speech doctrine bc accommodating the
military’s message doesn’t affect the law schools’ speech; law schools
aren’t speaking when they host interviews and recruiting services.
 2. This is like PruneYard. Nothing restricts what law schools can say about
military policies. And law students can appreciate the difference btwn
speech a school sponsors & speech the school permits bc it has to.

3. Interfering w/ person’s freedom of expressive ass’n

a. Forced contribution of money to be used for speech req’s P to associate w/ the
message in the sense of paying for it.
b. Presumptively unconst’nal, but 3 major exceptions:
i. When the law passes strict scrutiny.
1. Preventing strikes & regulating lawyers can justify. Abood; Keller.
a. These interests only justify using these funds for speech “germane” to
these interests (e.g., collective bargaining or attorney discipline), not
for advocacy of broader political causes.
ii. When the forced contribution is to a (i) university-based body such as student
gov’t (ii) so long as the collected money will be spent in a viewpoint-neutral way.
iii. When the forced contribution is to the gov’t, via taxes that fund the gov’t’s own
speech.
ii. Level of scrutiny: Presumptively unconst’nal  The gov’t is as constrained in compelling speech as
it is in prohibiting speech.
1. Speech compulsions must face strict scrutiny
2. When compulsion is in commercial advertising, same level of scrutiny applies as when gov’t
restricts commercial speech. (reasonably related to substantial interest).
3. Gov’t as landlord/employer/subsidizer/etc. applies.

VI. Government Acting in Special Capacities

A. Gov’t as employer
i. The gov’t can’t fire, demote, or otherwise significantly discipline an employee based on the
employee’s speech if:
1. The speech is on a matter of public concern,
2. The speech is not said by the employee as part of the employee’s job duties, and
a. If you are making the statements as part of your official duties, no 1A protection, no
Pickering balance. Gov’t can restrict. Garcetti v. Ceballos
3. The damage caused by the speech to the efficiency of the gov’t agency’s operation doesn’t
outweigh the value of the speech to the employee and the public.
a. Pickering balance: Damage to operation of agency v. value to employee & public
4. AKA Gov’t can do whatever it wants if the speech (1) is on a matter of private concern, (2) the
speech is said as part of the employee’s duties, or (3) the gov’t prevails on the Pickering
balance.
5. Public concern:
a. Determined by the content, form, and context of a given statement
b. Not a matter of public concern:
i. Speech aimed at gathering ammunition for controversy w superiors
ii. A police officer’s pornographic website. The videos and website were linked to the
police dept website and were designed to exploit his employer’s image. He was
identified as a cop & the website sold the police dept’s official uniforms.
c. On a matter of public concern: [valuable info to ppl]
i. Discussing w/ coworkers unlawful pressure to work in political campaigns
ii. Speech to the public at large is more likely to be seen as on a matter of public
concern than speech to one’s coworkers would be.
1. But speech even to 1 person might suffice depending on the content
 iii. Speaker’s motive might be central to the inquiry.
iv. Complaining to one’s boss about alleged discrimination by the employer, when this
isn’t tied to a personal employment dispute
v. Writing a letter to a newspaper about the allocation of gov’t agency funds among
various depts.
vi. Testifying before the legislature about whether a college should get 4-yr status
vii. Publicizing a principle’s memorandum about teacher dress & appearance
viii. Saying to a coworker friend that you wish the Pres had been assassinated
d. Connick v. Myers: Myers was an ADA, she going to get transferred & she was upset
about it. She distributed a questionnaire to fellow ADAs, then she was fired bc of her
refusal to transfer & the questionnaire was insubordination.
i. Myers was speaking not as a citizen upon matters of public concern, but as an
employee upon matters of only personal interest. She was gathering ammunition
for the controversy, not seeking to inform the public about the workings of the
DAs office. The one matter of public concern: working on political campaigns was
outweighed by the efficiency interest.
6. Pickering Balance: value v. efficiency
a. Value: How much will this speech help the public?
b. Efficiency: How disruptive would the speech be in this office? Some speech would
disrupt any office, e.g., racial epithets. An office w/ lots of easily offended ppl will have
a stronger efficiency arg.
i. Not clear what level of disruption is req’d. Probably more than 1 person being
disturbed or bothered, but no guideposts.
ii. Courts should consider the degree to which speech:
1. Interferes w/ close working relationships,
2. Disrupts the office,
3. Takes up work time,
4. Threatens the employer’s authority,
5. Violates an explicit work rule
c. Gov’t doesn’t have to wait for events to unfold to determine if it’s disruptive before it
can act.
i. Gov’t’s arg is that it’s running a workplace and the speech is really going to
interfere w/ it.
ii. When close working relationships are essential to fulfilling public responsibilities,
gov’t gets a wide degree of deference in its judgment that the speech will
interfere.
d. The more the speech is on a matter of public concern, the more gov’t must show to win
e. Employee speech which transpires entirely on the employee’s own time & in non-work
areas of the office might lead to a different conclusion.
f. In weighing the state’s interest, some attn. must be paid to the responsibilities of the
employee w/in the agency. Lack of public contact decreases state’s interest.
i. A speaker may be low enough on the totem pole that the speech won’t threaten
the efficiency of the office.
ii. Rankin v. McPherson: Clerical employee in police dept’s office was talking to a
coworker and said that she wished Reagan had been assassinated after hearing
about the failed attempt on the radio. Someone overheard her and was upset.
She admitted saying it, but said she didn’t mean anything by it, then she was fired.
1. This was a matter of public concern and the harm caused by it wasn’t very
great given her position in the office, the fxn of the agency, and the nature
of the statement. Her 1A rights prevail over the gov’t’s interest.
 a. One off-hand remark won’t impact the workplace, but maybe a
pattern of statements/deeply held beliefs could.
2. She had no public access, so no threat of discrediting the office. Firing her
wasn’t based on any assessment by the gov’t that the remark demonstrated
a character trait that made her unfit to perform her work.
3. Powell concurrence: Pickering wasn’t needed bc this was one off-hand
remark
4. Scalia dissent: State interest should prevail. State is able to maintain a
public image consistent w/ the office’s law enforcement duties.

ii. The gov’t may not discriminate in employment or contracting based on the employee’s
membership in an expressive ass’n.
1. But if party affiliation is an appropriate req’t for the effective performance of the public office,
gov’t may discriminate due to the interest in employee’s political loyalty.

B. Gov’t as postmaster
i. For content-based restrictions, same as gov’t-as-sovereign (normal rules all semester)
1. The gov’t has no extra authority to regulate the content of speech by virtue of its role as
postmaster.
ii. For content-neutral restrictions, the gov’t probably has nearly unlimited authority to set rates,
restrict package sizes, and so on.
iii. Gov’t doesn’t have to have a post office, but once it creates one, it can’t have content based regs
iv. Gov’t monopoly. No one else can use the mailbox.
v. The post office is a traditional public form. [In notes, but check…?]

C. Gov’t as Landlord/Subsidizer/Speaker
i. When ppl try to speak on gov’t property, step 1: classify the forum
1. Traditional public forum
a. Streets, sidewalks & parks—immemorially been held in trust for the use of the public, &
time out of mind, have been used for purposes of assembly, communicating thoughts
btwn citizens, & discussing public questions. Gov’t property that has traditionally been
available for public expression.
b. Strict scrutiny applies to content-based regulation, and intermediate for content-
neutral (time, place, & manner restrictions).

2. Designated public forum

a. Gov’t prop that has been intentionally opened for the purpose of being a public forum.
i. Gov’t buys a building and opens it up for any speech use.
b. Strict scrutiny applies to content-based regulation, and intermediate for content-
neutral (time, place, & manner restrictions).

3. Limited public forum

a. Limited to use by certain groups or dedicated to the discussion of certain subjects. Gov’t
has limits from the outset about allowable speech.
b. Reasonable & viewpoint neutral restrictions are permitted.
i. A reasonable restriction is consistent w/ gov’t’s legit interest in preserving the
property for the use to which it is lawfully dedicated.
1. Reasonableness is assessed in light of the purpose of the forum & all the
surrounding circumstances. Including any special characteristics of the
environment, e.g., if it’s a school (Christian Legal Soc’y).
 a. ISKON: Not whether reg is consistent w/ use as an airport, but use as
an airport that has restaurants & shops (multipurpose environment
that gov’t deliberately created).
2. Assessing reasonableness gets no deference, but court maybe gives
appropriate regard for gov’t’s judgment depending on the circs, e.g.,
education (school admin).
ii. Content based discrimination is ok if it preserves the purposes of the forum.
1. But can’t bake an unreasonable content based restriction in from the outset
iii. The gov’t doesn’t need to show conclusive proof that the speech would interfere
w/ the gov’t’s activities, but there must be some evidence of this.
1. Somewhat more demanding than rat’l basis test.
a. Gov’t doesn’t get total deference
2. A restriction is reasonable if the P’s speech + speech of other similarly
situated groups would interfere in some measure w/ the state’s interest.
iv. All restrictions (i.e., ones baked in from the start & ones gov’t creates later) must
be reasonable in light of the purpose served by the forum. But it is much easier for
the gov’t to add new restrictions if it has a lot baked in from the start.
1. Gov’t can recast a forum by closing it down & restarting it w/ new
restrictions.
a. But some restrictions will always be unreasonable in light of the
purpose of the forum, e.g., you can’t discuss politics in an airport. Or
forum that is for “safe speaking” only and prohibits pro-Trump speech.
That’s viewpoint based, so not allowed.
2. Smartest thing to do is to put a lot of restrictions in from the start. But
gov’t can also add them if they’re reasonable in light of the purpose of the
forum.
3. There needs to be some facts to support the existence of the limits.

c. If gov’t acts indiscriminately, it’s a limited public forum, not gov’t speech.
d. Rosenberger v. Rector: UVA reimburses student groups for newspapers run by student
groups unless the newspaper primarily promotes or manifests a belief in or about a
deity. Students who published a Christian newspaper were denied funding & sued.
i. This is a viewpoint based restriction; it doesn’t allow ppl to come from the
viewpoint of a deity. It’d be content based if UVA said no speech on religious
subject matter.
1. It’s content based to say newspaper can’t have religion as a subject matter,
but it’s viewpoint based to say newspaper can’t promote or manifest a
belief in a deity.
ii. Once gov’t opens up a forum for private speakers to use, it can’t discriminate
based on viewpoint.
e. Christian Legal Society v. Martinez: Hastings has a policy that says all registered
student groups must allow any student to join or seek a leadership position, regardless
of status or belief. Parties stipulated that this limit was baked in from the start.
Therefore, it’s just held to reasonable standard.
i. The justifications for the law make it a reasonable restriction in light of the forum’s
purpose. The policy is viewpoint neutral (it req’s all groups to accept all comers).
1. The student groups receive funding from all students, so the restriction
ensures that no student has to fund a group that she couldn’t join.
2. It polices the nondiscrimination policy of the University & CA
3. Encourages tolerance, cooperation, and learning
4. It also helps that ample alternative channels are available
 ii. Stevens concurring: This is just disparate impact, not viewpoint discrim. CLS’s
viewpoint just happens to lead to discrimination, but it’s an evenhanded policy.
iii. Alito dissent: (he ignores the stipulation)
1. Once gov’t opens a limited forum, it must respect the limits it set.
a. Hastings has set 2 limits: Members must be students, and
noncommercial. The purpose of the forum is to promote diversity of
viewpoints among—not within—registered groups. The accept all
comers isn’t reasonable in light of the purpose of the forum. It’s
viewpoint based
iv. Note: Hurley was in a traditional public forum.

4. Nonpublic forum
a. Gov’t opens a forum and picks only some speakers to speak, but not on behalf of gov’t.
b. All other gov’t-owned property that’s open to a defined group of non-gov’t speakers,
but not for the purpose of promoting private speech. A place where gov’t is conducting
some business that’s only open to some selected nongov’t speakers.
i. E.g., open for the purpose of flying from one city to another.
ii. E.g., public broadcasting station holding a debate among the leading candidates
for public office. Or Gov’t TV or radio stations.
1. Open to the broadcasters gov’t chooses. Public doesn’t have a right to get a
radio time slot.
2. Gov’t chooses who gets to participate in the debate. The candidates aren’t
speaking on behalf of the gov’t.
c. Reasonable & viewpoint neutral restrictions are permitted.
i. Gov’t’s interest may be even broader in military bases & prisons

d. ISKON v. Lee: Krishna religious org went to JFK airport to pass out religious literature &
solicit funds. Gov’t passed reg that forbids solicitation of $ or distribution of lit in
terminals
i. Not a traditional public forum bc it is new. Not immemorially time out of mind
held in the public trust and used for purposes of expressive activity.
ii. Not a designated public forum; the litigation evidences the gov’t’s objection
iii. An airport terminal is a nonpublic forum: it’s primary purpose isn’t promoting
speech, but flight and commercial enterprise. Regulations must be reasonable
1. Banning leafletting is unreasonable
a. This isn’t just an airport, but a multipurpose environment (shops &
restaurants) that the gov’t has deliberately created.
b. Gov’t has been unable to explain why peaceful leafletting is
incompatible w/ the multipurpose environment of the airport.
2. Banning solicitation is reasonable.
a. Soliciting in terminals inconveniences passengers and burdens airport
officials.
iv. Kennedy (dissent): A public forum should be a place where speech is appropriate &
compatible w/ the uses that the prop has been opened for; it shouldn’t be frozen
in time. This is a public forum.
v. Rehnquist (dissent about leafletting): The cumulative impact leads to congestion

5. Quality-based funding program

a. Gov’t creates a program to encourage private speech, but the program allocates scarce
resources on the basis of some judgment of “quality” (e.g., Finely) rather than
“indiscriminately” to an entire class (e.g., Rosenberger).
 i. Invidious viewpoint discrimination is impermissible, but gov’t may selectively fund
a program to encourage certain activities it believes to be in the public interest.
1. A preference for decency and respect isn’t invidious viewpoint
discrimination, but an attempt to suppress dangerous ideas probably is.
b. It’s not enough for P to argue that the considerations are vague enough for gov’t to
discriminate based on viewpoint, at least if there are many permissible (nonviewpoint-
based) ways for the considerations to be carried out.
i. NEA v. Finley: Nat’l Endowment of the Arts grants funds to artists. When making
funding decisions, the NEA takes into consideration general standards of decency
and respect for the diverse values & beliefs of the American people. After being
denied funding, P sued, claimed it was viewpoint based and vague.
1. This is a competitive process. Funding one activity that’s believed to be in
the public interest, to the exclusion of another, ≠ viewpoint discrimination.
2. It would be viewpoint discrim if the considerations, in practice, effectively
precluded or punished the expression of particular views.
3. Scalia concurrence: This is viewpoint based, but it isn’t an abridgment of
speech bc it’s merely not giving a benefit. No coercive effect. Gov’t can
make viewpoint based restrictions when it’s giving away money.
4. Souter dissent: This is quintessentially viewpoint based—it req’s
discrimination on the basis of conformity w/ mainstream mores.
c. A state subsidy provides only indirect pressure to modify its membership policies.
(carrot v. stick)
i. CLS v. Martinez: CLS is free to associate w/ whomever it wants if it foregoes the
benefits of official recognition by the university. Different from Dale & Roberts
where the regulations compelled the group to include unwanted members.

6. Not a forum at all—place for gov’t speech

a. Gov’t property or gov’t funding program that isn’t about speech (e.g., Pentagon) or that
the gov’t uses to speak through its employees or other agents (e.g., gov’t owned TV
channel or announcement board in gov’t building).
i. Most gov’t buildings. Workplace, not a forum. Gov’t has ability to shut down
speech, like ppl getting to kick ppl out of your house.
1. No one has a right to go into DOE & use their computers to write dueling
memos. Gov’t is allowed to say it doesn’t like your view & keep you out—it
didn’t hire you to work at the DOE.
ii. A university selecting a commencement speaker, a public institution selecting
speakers for a lecture series, or a public school prescribing its curriculum.
iii. It can be gov’t speech even if gov’t makes a profit. (Walker)
b. 1st doesn’t apply. No First Am scrutiny bc this isn’t a place for private speech.
i. Here, the gov’t acting as speaker may decide what speech to allow.
ii. Viewpoint based rules are ok! Gov’t can promote its own viewpoint.
iii. Political process, not marketplace of ideas provides the check.

c. Walker v. Confederate Veterans: TX lets groups design their own license plates that
others can buy through the DMV. TX rejected confederate group’s plate.
i. Summum test: History, observers’ interpretation—whether it seems the property
owner (gov’t) is expressing a message, amount of gov’t control.
1. History of license plates shows they communicate messages from the state
2. The license plate designs are closely identified in the public mind w/ the
state; they’re essentially gov’t IDs.
 3. TX maintains direct control over the messages conveyed on its plates. It’s
rejected some other proposals.
ii. Alito dissent: This is a limited public forum. TX is indiscriminate about the private
speech it allows in the forum it created.
1. Majority’s view of gov’t speech is too capacious
2. This is viewpoint discrimination: TX has created little billboards and opened
it up to ppl, then rejects one message bc it thought it would offend ppl.
3. This isn’t selective at all—totally indiscriminating. They have rejected
designs in the past based on readability & reflectivity.
a. They let OSU & Notre Dame plates—no one would think TX supports
the rival schools.

7. The forum classification is most important if the law is content-based, but viewpoint neutral
a. In a traditional or designated public forum  S.S.
b. In a limited/nonpublic forum  reasonableness
c. In gov’t speech  anything is fine/no 1A scrutiny.

ii. Gov’t as subsidizer trying to control privately funded speech (gov’t spending money to get its
message out)
1. Defining the limits of the federally funded program is ok, but defining the recipients isn’t.
Latter uses the funds to leverage control over the organization’s speech outside of the
program.
2. Rust v. Sullivan: Gov’t provides funds for family planning, but the money can’t be used for
abortion, only preventative family planning services.
a. The program is designed to encourage family planning, not to provide prenatal care.
Abortion counseling is outside the scope of the project.
b. This isn’t viewpoint based discrimination. Gov’t has merely chosen to fund one program
to the exclusion of the other.
i. If it were viewpoint discrimination for gov’t to fund a program dedicated to
advancing certain permissible goals, bc the program necessarily discourages
alternative goals, numerous gov’t programs would be const’nally suspect.
c. The gov’t may selectively fund a program to encourage certain activities it believes to
be in the public interest, w/out at the same time funding an alt program.
d. Blackman dissent: This is clearly viewpoint discrimination. It targets programs that
advocate for abortion.
3. Regan v. Taxation w/ Representation: Req’t that non-profits filing for 501(c)(3) status don’t
engage in lobbying. C had merely chosen not to subsidize lobbying. The nonprofit could still
engage in lobbying in its 501(c)(4) capacity w/ separate funds. Not unduly burdensome.
4. Gov’t can’t demand that the funding recipients adopt the gov’t’s view as their own; that
affects protected conduct outside the scope of the federally funded program.
a. Agency for Int’l Development: Congress passed an act that was meant to combat AIDS
No leveraging around the world by funding NGOs. Two limits on the funding: (1) no funds can be used
to promote sex trafficking, and (2) the org must have a policy explicitly opposing
prostitution & sex trafficking.
i. This condition is an on-going req’t (will be kicked out at any time if it’s violated). C
has expressed its purpose to eradicate prostitution, and it wants recipients to
adopt the same stance.
ii. The req’t goes beyond preventing the recipients from using private funds in a way
that would undermine the program. It req’s them to pledge allegiance to the
gov’t’s policy of eradicating prostitution.
 1. Barnette: gov’t can’t prescribe what shall be orthodox in politics,
nationalism, religion, or other matters.
iii. Scalia dissent: This whole line of cases is wrong. The condition is nothing more
than a means of selecting suitable agents to implement the gov’t’s chosen strategy
to eradicate HIV/AIDS. That’s perfectly permissible.
1. League of women’s Voters is different bc the condition wasn’t in line w/ the
permissible goal of the program.
2. Once we say gov’t can have ideological programs, we have to say it can
have ideological conditions. A fed program doesn’t abridge 1A
3. Gov’t is free to engage in ideological discrim when it speaks.
a. It gets to say, “Say no to drugs” w/out having to fund “say yes to
drugs.”
b. FCC v. League of Women Voters: Condition on federal financial assistance to
noncommercial broadcast TV & radio stations that prohibited all editorializing, including
w/ private funds. No alternative way for the station to engage in editorializing. The
condition leveraged the funding to regulate the stations’ speech

iii. Gov’t can use private agents to deliver its own speech, i.e., gov’t pays the agents to deliver the
gov’t’s message, and can condition that payment on the agent’s willingness to waive her otherwise-
protected right to free expression.
1. E.g., Gov’t can pay lecturers to give talks about “say no to drugs”. It can condition the
payment on the lecturers not telling ppl to do drugs.
2. Gov’t can speak through private parties. It can have 1st lady say “say no to drugs,” or it can
fund a TV ad saying that.

VII. Religion Clauses

A. Overview
i. No religious Decisions Principle: Gov’t can’t make decisions about whether a religious doctrine:
1. Makes sense
2. Is internally consistent
3. Is true
4. Is central to a particular religion, or
5. Is consistent w/ the orthodox tenets of a group’s faith (gov’t can’t interpret religious doctrine)
a. Thomas v. Review Bd: Doesn’t matter if someone has different beliefs than ppl w/ same
religion.
b. Someone can be a religion of one. Court will accept it if you sincerely believe that your
religion compels you to do X, even if no one else in your religion thinks that.
c. What is religion?
i. Seeger: Sincere & meaningful belief which occupies in the life of its possessor a
place parallel to that filled by the God of those admittedly qualifying for the
exemption is a religious belief.
ii. Welsh: Conscientious objector statute. Statute exempts those who by reason of
religious training & belief are conscientiously opposed to participation in war.
Doesn’t include essentially political, sociological, or philosophical views or a merely
personal moral code. Welsh was opposed, but not bc of religion.
1. Exemption must apply to all those whose consciences, spurred by deeply
held moral, ethical, or religious beliefs, would give them no rest or peace if
they allowed themselves to become a part of an instrument of war.
6. BUT gov’t may determine if objector in fact sincerely believes what she claims to believe.
a. Is this really what you believe?
b. Since we don’t have a real def of religion, sincerity is key gate keeper.
 B. The Nondiscrimination Principle (Free Exercise and Establishment)
i. Gov’t can’t prosecute or burden someone for their religious beliefs. Or discrimination against
religious conduct.
1. Exception: In gov’t funding programs, the gov’t is sometimes req’d to exclude religious
institutions or uses from certain evenhanded funding programs, & is sometimes at least
allowed to exclude such religious institutions or uses, see Locke v. Davey.
ii. Gov’t may not discriminate against religious practices, among religions, and against nonreligious ppl
and nonreligious practices.
iii. S.S. is applied
1. Compelling gov’t interest
2. Narrowly tailored
a. Advance the interest, no overinclusiveness, least restrictive alternative, no
underinclusiveness.
iv. Lukumi: City of Hialeh prohibited animal sacrifice. It applied to virtually no conduct other than
conduct by Santeria religious ppl. Gov’t can’t impose burdens in a selective manner. Subject to S.S.
and failed. Severely underinclusive.
1. If Gov’t wants to prohibit it, it needs to prohibit all animal killing.

v. Establishment Clause: No Discrimination Among Religions

1. No discrimination based on religious affiliation, unless it passes strict scrutiny. Larson v.
Valente
2. No discrimination against idiosyncratic religious beliefs.
a. What matters is whether the claimant’s religious beliefs are sincere, not whether they
are widely held.

vi. EC/FEC: No Discrimination Against the Irreligious

1. Discrimination based on the absence of religiosity or the absence of belief in a deity is
presumptively unconst’nal. Torcaso v. Watkins
a. Exception for some const’nally compelled religious exemptions from gen app laws
b. Case law is mixed w/ regards to statutorily created religious exemptions
i. Cutter & Amos: Statutory exemption that benefitted only religious groups. Amos:
If a statute imposes a Allowing religious employers to be exempt from Title VII isn’t an establishment of
burden and gov’t lifts the religion bc it is merely alleviating interference caused by the gov’t.
burden by granting an 1. Const’nal if they:
exception for religions, a. Alleviate a gov’t-created burdens on private religious exercise
it’s not an establishment. i. If no statutory burden on religion in first place, gov’t can’t give
religion special benefit.
b. Req courts to take adequate account of the burdens a requested
accommodation may impose on nonbeneficiaries, and
c. Are administered neutrally among different faiths.
ii. Gov’t can’t compel ppl to act in the name of any religion
iii. Bullock & Caldor: statutory exemptions for only religious groups unconst’nal.
Caldor: CT law says no one can be req’d to work on her Sabbath day. This violates
EC bc it creates an absolute & unqualified right not to work for religious reasons,
and thus, favors religion over other interests.
1. Religious-only exemptions are unconst’nal if they:
a. Substantially burden nonbeneficiaries,
b. Aren’t designed to alleviate substantial burdens on religious practice
c. And constitute preferences for the dissemination of religious ideas.
 vii. There is some play in the joints btwn the EC & FEC.
1. Locke v. Davey: WA had a scholarship program, but said it can’t be used by ppl studying
theology. WA state const’n prohibits any tax dollars going to support clergy. Can be used to
attend a religious university if you study a secular major, and can be used if you take some
religious classes. Does it violate FEC for WA to deny funding theology majors?
a. It would be const’nal for WA to either fund theology majors through this program (not a
EC violation), or to refuse to fund them (not a FEC violation). Subject to mere rat’l basis
bc it doesn’t violate FEC, and it survives. Imposes a very light burden & no animus.
b. Different from Lukumi bc it’s not stopping anyone from pursuing Theology study.
Merely choosing not to fund it. Much milder—no crim or civil sanctions. The facial
distinction is ok bc of EC concerns.

C. Debate About Original Meaning

i. Text:
1. EC prohibits establishing religion, not “a religion”
2. FEC rejected clause that said “right of conscience”
ii. Original meaning:
1. Madison’s memorial & remonstrance:
a. Religion needs to be protected from gov’t. Gov’t perverts religion.
i. Baptists were strongest supporters of separation of church & state. Baptist
ministers were jailed in VA.
b. Slippery slope arg is powerful here: Even small encroachments towards establishing a
religion are bad. Even if just 3 cents are taxed, it’s a problem.
2. Jefferson:
a. Marketplace of ideas. Let all religions in and truth will prevail.
3. Engel v. Vitale: NY school prayer (students don’t have to participate, but said aloud. Very
banal prayer—nondenominational).
a. This is a practice wholly inconsistent w/ the EC. NY officially approved religion.
b. The colonists escaped England in part bc of forced prayers & forced religion.
c. Rationale underlying the purposes of the EC:
i. Union of gov’t and religion tends to destroy gov’t and to degrade religion
1. Gov’t hurt bc those w/ differing beliefs hate & disrespect it
2. Religion hurt bc ppl lose respect when it relies on gov’t for support
ii. Gov’tally established religions & religious persecutions go hand in hand.
d. Religion is too personal, sacred, & holy to permit its unhallowed perversion by a civil
4. Marsh v. Chambers: Legislative prayer in Nebraska. Same guy has served as chaplain for 16
yrs. He’s selected by the legislative council. Nebraska has had leg prayers since b4 statehood.
a. Historical custom shows that this is const’nal.
i. Unambiguous & unbroken history for 200+ yrs—First Continental Congress & the
First Congress framed the BoR. Their actions reveal their intent & understanding
of what was permitted.
1. It has become part of the fabric of our society
2. It’s simply a tolerable acknowledgement of the beliefs widely held among
the ppl of the country. Not forcing anything on anyone.
b. Would be unconst’nal if leg prayer was used to proselytize or advance any one, or to
disparage any other, faith or belief. Otherwise content of prayer doesn’t matter.
c. Chaplain’s long tenure is fine, unless evidence that his reappointment stemmed from an
impermissible motive (promoting Presbyterianism). His compensation is fine.
d. Brennan dissent: Just bc leg does something, doesn’t mean they think it’s const’nal.
Purpose of EC is guaranteeing the right of conscience, keep state from interfering w/
religious autonomy, prevent trivialization of religion, keep religion out of political battle.
 5. Leg prayer is ok when it’s meant to lend gravity to the occasion & reflect values long part of
the Nation’s heritage.
a. Prayer that’s solemn and respectful in tone, that invites lawmakers to reflect upon
shared ideals & common ends before they embark on the fractious business of
governing, serves that function.
b. Unconst’nal only if: pattern of prayers that over time denigrate, proselytize, or betray
an impermissible gov’t purpose. Otherwise, a challenge based on the content of the
prayer is unlikely to succeed.
c. Town of Greece v. Galloway: Town council had prayers before meetings that were
often Christian, but that was due to the selection method: picked ppl from phone book
& most religious leaders in the town were Christian.
i. There were 2 disparaging remarks, but that’s not enough to be a pattern.
ii. That it was nearly all Christian is ok bc it doesn’t reflect an aversion or bias on part
of town leaders.
1. So long as the town maintains a policy of nondiscrimination, the Const’n
doesn’t req it to search beyond its borders for non-Christian prayer givers in
an effort to achieve religious balancing. Can’t play w/ city lines.
a. Ok to limit prayer givers to ppl in your city.
iii. Kagan dissent:
1. Pluralism & inclusion in a town hall can satisfy req’t of neutrality; it doesn’t
have to be religious-free zone. But the invocations here were sectarian in
content. It was promoting some doctrines/sects over others.
2. It’s const’nal to speak in religious non-sectarian terms to solemnize the
meeting
iv. All agree Marsh is correct/good law.
6. Stevens (dissenting in Van Orden):
a. Majority says that we can look to how original congress acted as an interpretive tool; if
they allowed something, it must be const’nal. But we don’t use this as an interpretive
tool anywhere else, e.g., Alien & Sedition Act for 1st or segregation laws for 14th.
b. The original meaning of religion clauses was only Christian, not monotheism.
c. Coercion test wouldn’t prevent the problems that the Est Clause was concerned about:
explicit state endorsement.
d. The meaning of the Const’n should be expounded by keeping 1 eye towards history &
the other fixed on its democratic aspirations.
7. Scalia, Thomas, Rehnquist (dissenting in McCreary)
a. The original meaning of the Est Clause lets gov’t make religious statements that endorse
monotheism.
i. U.S. was never a secular country. Framers passed laws that allowed for religion.
b. Neutrality means different things in different circs
i. Gov’t can’t favor one religion over another is a valid principle where FE of religion
or public aid or assistance is at issue. [gov’t speech diff from giving $ to religion]
1. But not as much when public acknowledgment of religion is at issue.
Nation’s historical practice clearly shows that the EC permits favoring
monotheism.
c. Competing interests: society benefits from public acknowledgment of religion, but
minority feels excluded.

D. Establishment Clause
i. Total separation (extreme about anti-religion)
1. Gov’t can spend no money advancing religion, no religious displays, totally separate spheres.
2. Advantage: Bright line rule
 3. Problem: God is removed from currency, etc. which might manifest hostility to religion
ii. No Primary Religious Purpose Principle
1. Bars gov’t actions that have a primary purpose of advancing religion.
a. The desire to implement majority’s views related to secular topics (e.g., civil rights,
abortion funding, polygamy, etc.) isn’t seen as a religious purpose, even when the moral
views are derived from religion.
b. Accommodating religious objectors by exempting them from generally applicable laws
is a permissible purpose.
2. McCreary: (KY 10 Commandments display in a courthouse.) Acting w/ primary purpose of
advancing religion violates the principle of neutrality. It’s ok to have a religious purpose, but a
secular purpose must be primary.
iii. No Coercion
1. Gov’t can’t coerce ppl to support or participate in religion or its exercise.
2. Only two limiting principles: Gov’t can’t coerce ppl to participate in religion & can’t give such
big benefits that it equals establishing a religion.
a. Endorsement doesn’t matter. As long as you’re not forced to participate, it doesn’t
matter how it makes you feel.
i. A cross is ok as long as you’re allowed to walk right past.
3. Gov’t can have religious displays in gov’t buildings as long as you aren’t coercing anyone
4. Step 1: Coerced to do something? Step 2: The thing you’re coerced to do is religious.
5. Indirect coercion is a violation just as much as direct coercion is. Minors can’t be put to the
choice of participating (standing & staying silent) or protesting.
a. It’s a fact sensitive inquiry that considers both the setting in which the prayer arises and
the audience to whom it’s directed.
6. Offense ≠ coercion
7. Lee v. Weisman: Public school invited clergy to give a prayer at graduation (basically
mandatory to go bc big deal). Jewish rabbi gave a short (~2 min) nonsectarian prayer,
everyone stood for it. Student sued.
a. Scalia dissent: coercion refers to acts backed by threat of penalty only. Declaring this to
be unconst’nal lets the nonbeliever dominate. E.g., mandatory church attendance
8. Town of Greece v. Galloway: Prayer before town board meeting. P is member of the public
who claims there’s pressure to conform bc the public addresses the board after the prayer &
seeks a favorable ruling. Pressure to participate to please the board members.
a. This isn’t coercive; citizens aren’t compelled to participate. No indication that public
was dissuaded from leaving the meeting during the prayer or treated differently for not
participating, or unable to protest later.
b. Setting: reasonable observer would know about tradition of legislative prayer.
c. Audience: The lawmakers (primarily)
iv. No Endorsement
1. Extension of non-discrimination reasoning. It prohibits gov’t from speaking in ways that
endorse one religion or religion generally.
2. Neutrality (middle approach)
a. Gov’t has to be neutral towards religion.
b. Contextual analysis. Mushy bc it’s a standard, not bright line rule.
i. Nativity scene is endorsement, but a Christmas tree next to a Menorah isn’t.
c. Endorsement of religion is a problem—gov’t seeming to endorse religion or a religious
practice.
i. Would a reasonable observer view it as disapproval of her religious choices?
3. Gov’t endorsement of religion hurts religious free exercise; groups fight to be the one
approved by Gov’t, which leads to strife. Slippery slope towards persecution of religion.
a. Engel: NY prayer that was said to all school kids out loud in the morning is unconst’nal
 i. EC is violated by laws which establish an official religion whether those laws
operate directly to coerce or not.
ii. When gov’t power, prestige, and financial support is placed behind a religious
belief, the indirect coercive pressure to conform is plain.

v. 10 Commandments Cases
1. McCreary: A standalone display in a courthouse. Later joined by other monuments.
a. Unconst’nal (5-4)
2. Van Orden: Park near TX state capitol that had many monuments. Order of Eagles donated
10 commandments display.
a. Const’nal (5-4, but Breyer wrote a concurrence in the judgment to get the 5th vote).

3. Endorsement test  both are unconst’nal (Souter, Stevens, O’Connor, Ginsburg)

a. Framers understood Est Clause as mandating gov’t neutrality; endorsement test
properly implements neutrality.
b. Display of religious imagery is ok in a museum, but that’s not what either of these are.
Anyone would take either of these as an individual exhibit of 10 commandments.
c. Neutrality reqs that any citizen should be able to visit the civic home w/out having to
confront religious expressions clearly meant to convey an official religious position that
may be at odds w/ his own religion.
d. These displays  discord; look at how many cases are flooding the courts.
e. O’Connor: Why trade a system that’s served us so well for one that’s served others so
poorly?
i. Response: EC jurisprudence (i.e., “our system”) is only about 50 yrs old. School
prayer, etc. was allowed before then.
f. Purpose and effect are separate req’ts.
i. Endorsing effect on you: make you feel like your views are disfavored by gov’t
ii. Purpose behind the law made your religion disfavored.
1. Purpose ≠ motive
a. It’s determined from reasonable objective indicia (apparent purpose).
Even if it isn’t what was really in leg’s heart. Purpose that was
apparent to the reasonable observer.
i. Give some deference to the stated purpose, but don’t defer if it
seems like a sham.
2. Even if it doesn’t have an endorsing effect. The impermissible purpose is
enough to make it unconst’nal.
3. Same exact display can be const’nal in one place, but unconst’nal in another
depending on the purpose.
4. To be const’nal, the gov’t has to say its purpose is display of historic laws.
5. Scalia response: The reasonable observer would have no idea about the
secret purpose to endorse religion. They don’t follow leg history, etc.

4. Tradition based arg like Marsh  both are const’nal (Rehnquist, Scalia, Kennedy, Thomas)
a. Est clause doesn’t bar any and all gov’t preference for religion over irreligious
b. Analysis is driven by the nature of the monument and our nation’s history (not Lemon)
c. 10 Commandments are in tons of fed buildings. They bespeak the rich American
tradition of religious acknowledgements. They’ve been accepted long enough that we
shouldn’t see them as violating EC.
d. Simply having religious content or promoting a religious message consistent w/ religious
doctrine doesn’t run afoul of the EC.
i. Limit:
 1. Stone v. Graham: KY public school req’d posting 10 commandments in
every room. Bought w/ private funds. Improper & plainly religious purpose.
School context & kids key. It looks like gov’t is saying it thinks 10 commdts
are important.
2. Edward v. Aguliar: Statute req’d teaching creationism alongside evolution.
Preeminent purpose was religious. Purpose is to inject religion into the
classroom & that’s impermissible.
5. Divisiveness  McCreary is unconst’nal, Van Orden is const’nal (Breyer)
a. EC was aimed at preventing divisiveness (to which endorsement is relevant), so the risk
of divisiveness should be the touchstone.
b. VO was around for 40 yrs and was unchallenged until now. Very important bc it shows
it wasn’t divisive.
c. EC doesn’t req total neutrality (that can result in hostility to religion) & separation isn’t
the proper test either.
i. The proper test is legal judgment: reflect & remain faithful to the underlying
purpose of the clauses, & take account of context and consequences measured in
light of that purpose.
1. VO is const’nal bc it was donated by private secular org, that tried to find
nonsectarian text—focused on ethics, distance btwn state involvement, the
setting doesn’t lend itself to meditation or other religious activity.

vi. Facially Evenhanded Funding Programs and Religious Institutions

1. State power can’t be used to handicap or to favor religions.
a. Everson (bus reimbursement) NJ can’t hamper its citizens in their FE of their religion—
can’t exclude ppl on the basis of religion from receiving public welfare laws.
i. Dissent: This isn’t a public welfare law. Anything beyond fire and police protection
is gov’t aid. 1A forbids support, not protection from interference or destruction.
b. Souter’s dissent in Mitchell: Evenhandedness means such universality of distribution
that it makes no sense to think of the benefit as going to any discrete group.
i. Three lines of inquiry in school aid cases:
1. 2 types of recipients heighten EC concerns: Pervasively religious schools and
primary & secondary schools (indoctrination of kids).
2. Method of distributing: directness or indirectness
3. Characteristics of the aid itself:
a. Unconst’nal: aid w/ religious content, aid that can be diverted to
religious education, supplanting an item of traditional expense
b. Const’nal: merely supplementing
2. Evenhanded “private choice” funding programs are generally permissible even when the
funds end up being used for religious purposes.
a. Private choice: Funds are given to individuals who give to institutions of their choice
i. When determining whether true choice exists, it’s necessary to look at all the
educational options, not just the private schools or the result of the funding
distribution. Zelman
1. A nonreligious school is a genuine option if it is an adequate substitute for
religious schools in the eyes of the parents.
b. Endorsement: Not seen by observer as gov’t support; any aid is wholly dependent on
student’s private choice. The incidental advancement of religion is reasonably
attributable to the individual, not the gov’t.
c. Zelman: OH school voucher program. Voucher can be spent on public or private school
of parent’s choosing. Gov’t gives the money to the parent, who gives it to the school.
96% of kids in the voucher program are at religious schools. Cleveland also has magnet
 & community schools. School can’t receive aid if it teaches hatred or advocates
lawlessness.
i. This is an entirely neutral private choice program.
ii. The reasonable observer (for endorsement test) must be assumed to know the
history & context of the gov’t program. Here, it’s a complex program that also
includes the magnet & community schools.
iii. Souter dissenting: Only schools in the program should be considered. For most
kids in the program, the only option is religious school (not true choice).
iv. Breyer dissenting: This will lead to strife & entanglement. Religious education is at
the core of religious belief; school vouchers are more divisive.
d. Witters: Highly attenuated link btwn gov’t spending & religious org receiving the
money. WA law provides funding for blind students, P wanted to attend a Christian
college & was denied funding.
i. Any money going to religious schools is the result of genuinely independent private
choices of aid recipients. It creates no financial incentive for students to go to
religious schools.
e. Rosenberger: UVA reimburses student groups for publishing newspapers. This is
private speech endorsing religion, so it doesn’t violate EC. UVA has disassociated itself
from the private speech.
i. A public uni can grant access to its facilities on a religion-neutral basis. This is just
having someone else run the computer facility.
ii. Any benefit to religion is incidental to the gov’t provision of secular services for
secular purposes on a religion-neutral basis.
iii. O’Connor concurring: This isn’t endorsement of religion. Independent: Reader
won’t think Wide Awake = gov’t speaking. Funds go only to printing (Wide Awake
can’t use for other purposes). Perception of endorsement is unlikely since there
are 15 other magazines w/ diverse viewpoints.
1. Harder case if religious speech threatens to dominate the forum.
iv. Souter dissenting: Evenhandedness isn’t enough when gov’t aid ultimately benefits
religion. No independent actor breaks the chain; gov’t pays Wide Awake (Christian
group) to print its newspaper. The public university meeting room cases are
limited to when gov’t creates a limited public forum & excludes speakers w/
religious message.
3. Evenhanded “direct aid” programs are const’nal req. some assurance that the funds won’t
be used for religious purposes (diversion). Must supplement, not supplant.
a. Direct aid: Benefits are given directly to religious institutions
b. Endorsement: Reasonable observer would see it as gov’t support for religion
i. A per-capita school aid program is like direct aid. Reasonable observer won’t think
the gov’t’s endorsement of religion is merely a result of the students who choose
to attend.
c. Supplanting would be if school was going to spend $5K on secular material, but now w/
the funds, it will spend that $5K elsewhere, maybe on religious purposes.
d. Giving schools secular equipment, such as secular books, is const’nal
i. Mitchell: Gov’t gives secular materials to schools on a per-capita basis. (Direct aid,
but not direct $). There are safeguards to prevent against diversion, so const’nal.
1. Souter dissent: A substantial risk of diversion suffices to invalidate the
program.
ii. Allen: Giving secular textbooks to students in private schools is const’nal.
e. Walz: Tax exemption for real prop owned by churches for religious worship is const’nal.
i. Slippery slope arg failed bc tax exemptions for churches have existed for 200 yrs
ii. Exemption is different from gov’t payment/aid
 f. Funding new buildings in all universities is forbidden if it lets the university use the
building for religious purposes. (Tilton)
g. Assuring $ won’t be used for religious purpose can violate EC (excessive entanglement)
i. Lemon: RI supplements salaries of teachers of secular subjects in private schools
by paying the teacher < 15% of his salary. The teacher has to agree to not teach a
course on religion. Catholic schools involve substantial religious activity &
purpose; religious teachers will have a hard time being religious neutral.
1. Slippery slope arg works bc no long history of donating to religious schools
2. Three req’ts: (1) secular purpose, (2) primary effect neither advances nor
inhibits religion, (3) no excessive entanglement.

VIII. Free Exercise Clause: Compelled Exemptions

A. FEC only compels exemptions in limited circumstances:
i. Const’n doesn’t mandate exemptions from neutral & generally applicable laws. Smith
ii. Exceptions:
1. The state has a system of individualized exemptions. Sherbert, Lukumi
When 2. Hybrid situations: FEC & a second Const’nal claim (split on whether the 2nd claim has to be
exemptions winning or just colorable).
are req’d:
3. Ministerial exception: Churches have the right to select their clergy (& likely other employees
who play roles in spreading church doctrine, w/out regard to anti-discrimination laws)
a. Title VII lets churches discriminate based on religion. And considers sex, religion, and
nat’l origin to sometimes = BFOQs.
i. An exemption isn’t necessary when these exceptions apply.
b. Hosanna-Tabor: P was a “called teacher” at a Lutheran school. Took time off for illness,
the congregation voted to pay her med expenses if she resigned. She refused &
threatened to sue. They fired her bc Lutheran teaching says conflicts must be resolved
internally, not through the courts. ADA prohibits firing for disabilities.
i. Religion clauses bar gov’t from interfering w/ the decision of a religious group to
fire one of its ministers.
1. EC prevents gov’t from appointing ministers
2. FEC prevents gov’t from interfering w/ the freedom of religious groups to
select their own (right to shape its faith & mission through its selection of
ministers).
3. Rationale: Interferes w/ internal governance of the church, deprives the
church of control over the selection of those who will personify its beliefs.
a. This differs from Smith bc this is regulation of internal church
decisions. Smith was outward physical acts.
4. Applies only to suits by or on behalf of the ministers.
ii. Not a rigid formula of who fits into the exception.
1. P fits bc of her formal title of minister, the substance reflected in that title
(went through tons of religious training, her job duties reflected), her use of
the title, and the job duties (a role in conveying the Church’s message &
carrying out its mission).
2. Alito concurrence: Title is relevant, but neither necessary nor sufficient.
a. Proper test: The function of the employee. Ministerial exception
applies to any employee who leads a religious organization, conducts
worship services or important ceremonies, or serves as a messenger or
teacher of its faith.
b. Rationale: Religious groups must be free to choose personnel who are
essential to the performance of the religion’s key religious activities.
 But it can’t be too capacious or it could swallow Smith; churches could
call everyone a Minister.
3. Thomas: Whoever the institution sincerely believes is a minister.
iii. It doesn’t matter if reason given for firing is pretextual. If church says it fired for a
religious reason, it’s done.
1. Religious reason doesn’t have to be the sole reason for the firing, but it
must be a reason for the termination.

iii. Exemption regimes

1. Does the gov’t action impose a substantial burden on your religious exercise?
a. My understanding of my religion is that following the law would make me act
inconsistent to my religion.
b. RLUIPA/RFRA: Religious exercise is any exercise of religion, whether or not compelled
by or central to a central system of religious belief.
i. Sincerity of belief is doing all the work. The belief doesn’t have to be central or
long standing.
2. Compelling interest
3. Narrowly tailored
iv. The Fed RFRA compels religious exemptions from fed laws that impose a substantial burden on
religion, unless the gov’t action passes strict scrutiny.
1. Hobby Lobby: Owners believe 4 of the contraceptive methods mandated by HHS are
abortifacients (HHS doesn’t dispute) & their sincere religious belief is that abortion is sin.
They have self-funded insurance, so they have a fund of money that goes to employee health
care. Employees determine how to spend money, etc. Independent decision maker.
a. RFRA applies to for-profit closely held corporations
b. Court merely decides if the line drawn by P is an honest conviction, not whether it’s
reasonable. (no distinction btwn factual allegations & legal conclusions).
i. Maybe different if clearly wrong false factual claim (we’re opposed to abortion,
we can’t fund condoms). The factual claim was real here, so unclear.
ii. Even if it were a small fine instead of millions, P could claim inverse of Madison’s 3
pence: once it’s forced to pay anything to follow its beliefs, it violates FEC.
c. RFRA did more than merely reinstate pre-Smith law. It req’s real S.S. (what text says).
i. Lee (surrendering some religion when you enter commerce) isn’t dispositive since
RFRA extends beyond pre-Smith.
ii. Gov’t must demonstrate that the compelling interest test is satisfied through
application of the law to the person—the particular claimant who’s being
burdened.
iii. Least restrictive means is strict (gov’t paying is an option).
v. RLUIPA compels exemptions from state and local land use laws & decisions involving inmates in
prisons that get fed funds, unless it passes strict scrutiny.
1. The state & local laws are also subject to the state’s RFRA or interpretation of the Const’n if
it’s interpreted to compel exemptions.
vi. Strict scrutiny
1. Compelling interest in denying the exemption. (how important is the gov’t concern at stake)
a. Maintaining a fair system of determining who is compelled to serve in the military when
not all serve. Gillette (guy opposed to unjust wars).
b. Maintaining a sound tax system free of myriad exceptions.
i. Lee (Amish employer trying to get out of Social Security taxes). Tax system
wouldn’t be able to fxn if religious ppl were allowed to challenge the tax system bc
tax payments were spent in a manner that violates their religious belief.
 1. Congress has granted religious exemptions for self-employed Amish from
the social security system; that is sufficient.
2. People must yield some of their beliefs when they choose to participate in
society.
c. Eradicating racial discrimination in education.
i. Bob Jones Univ.: Private Christian University doesn’t allow interracial dating or
marriage. They’re denied IRS tax exemption bc gov’t considers this to be racial
discrimination.
d. Providing an equal opportunity to participate in the workforce w/out regard to race.
Hobby Lobby
e. Protecting kids from the crippling effects of child employment. Prince (Jehovah’s
Witnesses preaching on sidewalks w/ Aunt). State’s authority over kids’ activities is
broader than over adults.
i. The gov’t may not have had a compelling interest in these kids specifically not
engaging in “employment” bc no way they were harmed. But gov’t hardly ever has
a compelling interest in you. This rationale would lead to exemptions for everyone
and that would def threaten the gov’t’s interest.
f. Preventing fraud and abuse in the welfare system. Bowen v. Roy
g. Preserving prison security. Holt v. Hobbs
h. Not a compelling interest:
i. Req’ing kids to have 2 yrs of high school education from age 14–16. Yoder
1. State’s response: lines are always arbitrary on the margins. Could just keep
dropping it lower.
ii. Keeping unemployment system solvent and working. Sherbert

2. Least restrictive means: is denying the exemption necessary to serve the interest
a. If granting the exemption wouldn’t materially undermine the interest, the denial
wouldn’t be the least restrictive means of serving the interest
i. Sherbert: No evidence that ppl would fake a religious belief in Saturday Sabbath to
get unemployment money, so granting an exemption won’t undermine interest.
ii. Yoder: State has duty to educate kids, and educating kids is important, but no
evidence that the exemption would undermine the interest. Strong emphasis on
Amish being good citizens.
1. Douglas dissent: All religions should be treated the same, regardless of the
criminal records of their citizens.
b. Availability of less restrictive alternatives makes it unconst’nal to deny exemption
i. Hobby Lobby: Gov’t could’ve assured that all employees had access to
contraceptives by either (i) paying for them itself, or (ii) ordering insurance
companies to pay.
c. But if the only alternatives are too likely to lead to erroneous decisions, be ineffective,
or jeopardize other compelling gov’t interests, then those alternatives might not count.
i. Gillette: D was drafted & refused to go bc he claimed conscientious objector status
based on his objection to the Vietnam war, not war in general. Based on secular
beliefs.
1. It would be way too hard for the gov’t to administer an exemption system
based on “justness of war” system. Easy to prove if someone is opposed to
all war, but hard to prove sincerity if someone says opposed to unjust wars.

3. No underinclusiveness: failure to cover pretty much all the conduct that jeopardizes the
interest.
IX. Misc.
A. A condition placed on funding is const’nal if the regulation could be imposed directly.
B. State const’ns can: (1) adopt all fed const’n cases & interpretations; (2) be less protective, which makes
it meaningless bc fed const’n standards must be satisfied; or (3) be more protective, which makes it
relevant bc then it must be satisfied.
C. Free speech & criminal laws
i. Free speech comes into play only when speech is part of what is being punished; not just evidence
of a person’s mental state (MR).
1. Not a free speech issue for law to increase punishment when an assault is motivated by racial
animus.
D. When the component parts of a single speech are inextricably intertwined, court can’t parcel out the
speech and apply one test to one phrase and another test to another phrase.
i. Riley: Regulation on professional fundraisers. Some of the fundraisers’ speech was commercial, but
some was informative and persuasive.
E. PruneYard: Gov’t said it was const’nal to allow the public to speak on private shopping center’s
property; didn’t amount to compelled speech.
i. Powell’s concurrence: This isn’t blanket approval for turning private prop into public forum.
F. If something is a proposed/adopted amendment to the Const’n, it cannot be unconst’nal.
i. Argue about notions of equality, marketplace of ideas, self-expression.