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First Amendment Law Freedom of Expression and Freedom of
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First Amendment Law
First Amendment Law
Freedom of Expression and
Freedom of Religion

FIFTH EDITION

Arthur D. Hellman
PROFESSOR OF LAW EMERITUS
UNIVERSITY OF PITTSBURGH SCHOOL OF LAW

William D. Araiza
STANLEY A. AUGUST PROFESSOR OF LAW
BROOKLYN LAW SCHOOL

Thomas E. Baker
PROFESSOR OF LAW
FLORIDA INTERNATIONAL UNIVERSITY COLLEGE OF LAW

Ashutosh A. Bhagwat
DISTINGUISHED PROFESSOR OF LAW AND
BOOCHEVER AND BIRD ENDOWED CHAIR
UNIVERSITY OF CALIFORNIA, DAVIS SCHOOL OF LAW
Copyright © 2022
Carolina Academic Press, LLC
All Rights Reserved

LCCN: 2021953133
ISBN: 978-1-5310-2426-0
eISBN: 978-1-5310-2427-7

Carolina Academic Press

700 Kent Street
Durham, North Carolina 27701
(919) 489-7486
[Link]

Printed in the United States of America

To Bonnie, Jerry, Roberta and Walter, ADH
To Stephen, WDA
To Jane Marie, TEB
To Shannon, Uma and Declan, AAB
Contents

Table of Cases
Preface to the Fifth Edition
Preface to the First Edition
Acknowledgments
The First Amendment to the Constitution of the United
States

PART ONE
FREEDOM OF EXPRESSION

Chapter 1 · The Problem of Subversive Advocacy

A. First Encounters
Schenck v. United States
Note: Schenck and Its Antecedents
Note: The “Unrevised Holmes” and Baltzer v. United
States
Frohwerk v. United States
Debs v. United States
Note: Frohwerk and Debs
B. The Abrams Case and the Holmes Dissent
Abrams v. United States
Note: The Abrams Dissent and Seditious Libel
C. Learned Hand and the Masses Case
Masses Publishing Co. v. Patten
Note: The Opinion in Masses
 Problem: Protesting a U.S. Military Action
D. Gitlow, Whitney, and the Cases of the Thirties
Gitlow v. New York
Note: Gitlow and Lochner
Whitney v. California
Note: Why Protect Freedom of Speech?
Note: Organizational Advocacy and Individual
Responsibility
E. The Smith Act Prosecutions
Dennis v. United States
Note: Dennis and Revolutionary Speech
Note: Yates, Scales, and Noto
Problem: “Warriors for Earth”
F. Brandenburg v. Ohio and Its Implications
Brandenburg v. Ohio
Note: Brandenburg and Its Antecedents
Hess v. Indiana
Note: The Summary Reversal in Hess
NAACP v. Claiborne Hardware Company
Problem: Injury at a Protest
Problem: Encouraging Participation in a “Jihad”
Problem: Advice to a Street Gang
G. The “True Threat”
Note: Watts, Black, and the “True Threat”
Problem: Anti-Abortion Website
H. A Last Word from Justice Holmes
United States v. Schwimmer
Note: “Freedom for the Thought that We Hate”
Chapter 2 · Unprotected Speech: The Chaplinsky
Exclusions
A. “Fighting Words”
 Chaplinsky v. New Hampshire
Note: Chaplinsky and Its Implications
Note: “Fighting Words” Today
Problems: The “Callahan Epithet” and Other Expletives
B. “The Libelous” — or Otherwise Tortious
1. The Constitutionalization of Defamation
New York Times Co. v. Sullivan
Note: The Holding of New York Times
Note: Proving “Malice”
Note: “Public Officials” and “Official Conduct”
Note: Beyond “Public Officials”
2. “Public Figures” and Private Plaintiffs
Gertz v. Robert Welch, Inc.
Note: Who Is a “Public Figure”?
Note: “Public Figures” in the Lower Courts
Note: Suits by Private Plaintiffs
Note: “Fact” and “Opinion”
3. “Outrage” and Emotional Distress
Snyder v. Phelps
Note: Intentional Infliction of Emotional Distress and the
First Amendment
Problem: An Obsessive Blogger
4. Invasion of Privacy
Problem: A Wrestler and a Sex Tape
C. “The Lewd and Obscene”
1. Initial Development of the Law
Roth v. United States
Alberts v. California
Note: Roth and Its Antecedents
Note: “Ideas” and “Entertainment”
Note: “I Know It When I See It”?
Stanley v. Georgia
 Note: The Implications of Stanley
2. Current Doctrine
Miller v. California
Paris Adult Theatre I v. Slaton
Note: The 1973 “Restatement”
Note: “Community Standards” and the Internet
Chapter 3 · New Candidates for Categorical Exclusion or
Limited Protection
A. Offensive Language and Images
Cohen v. California
Note: The Implications of Cohen
Rosenfeld v. New Jersey
Note: “The Willful Use of Scurrilous Language”
Note: Protecting the Unwilling Audience
Problem: Foul Language in a Neighborhood Park
Problem: The Cursing Canoeist
FCC v. Pacifica Foundation
Note: The Medium and the Message
Problem: The Overexcited Actress
B. Child Pornography
New York v. Ferber
Note: A New Category of Unprotected Speech
Note: Private Possession of Child Pornography
Problem: “Child Pornography” in a Journal
Ashcroft v. Free Speech Coalition
Note: “Virtual Child Pornography”
Note: U.S. v. Williams and “Purported” Child
Pornography
C. Commercial Speech
Virginia State Board of Pharmacy v. Virginia Citizens
Consumer Council, Inc.
 Note: First Amendment Protection for Commercial
Speech
Central Hudson Gas & Electric Corp. v. Public Service
Commission
Note: Commercial Speech as “Low Value” Speech
Note: Identifying Commercial Speech
Problem: “Commercial” Speech and Public Debate
Lorillard Tobacco Co. v. Reilly
Note: The Normalization of Commercial Speech
Problem: Attacking Childhood Obesity
Note: Sorrell and the Continued Ferment over
Commercial Speech
Note: A Return to Lochner?
D. The End of Categorical Balancing
United States v. Stevens
Note: The Implications of Stevens
Brown v. Entertainment Merchants Association
Note: Violence, Interactivity, and the Protection of
Children
United States v. Alvarez
Note: Knowingly False Statements of Fact
Problem: The Stolen Valor Act of 2013
Chapter 4 · Trans-Substantive Doctrines
A. Prior Restraints
Note: An Introduction to Prior Restraints
1. Licensing
Lovell v. City of Griffin
Note: Licensing Schemes and the Freedman
Requirements
2. Injunctions and Other Remedies
Near v. Minnesota
Note: The Decision in Near
 Problem: A Recalcitrant Defamer
New York Times Co. v. United States (The “Pentagon
Papers” Case)
Note: Injunctions against Speech
Note: “The H-Bomb Secret”
Problems: Disclosure of NSA Monitoring
B. Overbreadth and Vagueness
New York v. Ferber
City of Houston v. Hill
Ashcroft v. Free Speech Coalition
Note: The Overbreadth Doctrine
Note: The Vagueness Doctrine
Chapter 5 · Content-Based Regulation
A. The Principle
Police Department of Chicago v. Mosley
Note: “Above All Else . . .”: The Mosley Principle
Note: Speech Near Polling Places
B. Defining Content Discrimination
Reed v. Town of Gilbert
Note: A Narrower View of Content Neutrality?
Problem: Flags on Holidays
Problem: A Panhandling Ordinance
C. Applying Strict Scrutiny
Williams-Yulee v. Florida Bar
Note: How Strict Is “Strict”?
Problem: Nondisclosure of National Security Letters
Chapter 6 · Regulating the “Time, Place, and Manner” of
Protected Speech
A. Early Development of the Doctrine
Lovell v. City of Griffin
Schneider v. New Jersey
 Note: From Lovell to Schneider
Martin v. City of Struthers
Note: Regulating the Manner of Expressive Activity
B. Applications of the Doctrine
Frisby v. Schultz
Ward v. Rock Against Racism
City of Ladue v. Gilleo
Note: Foreclosing Particular Modes of Expression
Note: Narrow Tailoring and “Underinclusiveness”
Problem: Regulating Newsracks
McCullen v. Coakley
Note: Restrictions on Anti-Abortion Speech
Problem: Buffer or Bubble?
Problem: Picketing of Religious Activities
Chapter 7 · Expressive Conduct and Secondary Effects
A. Expressive Conduct
United States v. O'Brien
Note: “Symbolic Speech” and the Tinker Case
Note: “Incidental” Burdens on Expression
Texas v. Johnson
Note: Flag Burning as Protected Speech
Problem: A New Flag Protection Act
B. “Secondary Effects” as a Basis for Regulation
City of Renton v. Playtime Theatres, Inc.
Note: Origins of the “Secondary Effects” Doctrine
Boos v. Barry
Note: The Future of “Secondary Effects”
Problem: Limiting the Hours of Adult Businesses
C. Expression and Conduct: Untangling the Doctrines
City of Erie v. Pap's A.M.
 Note: Expressive Conduct, Secondary Effects, and
Incidental Burdens
Problem: Nudity “for Entertainment Purposes”
Problem: An “Affirmative Action Bake Sale”
Chapter 8 · Speech on Government Property and the Public
Forum Doctrine
A. Foundations of the Doctrine
Hague v. Committee for Industrial Organization
Schneider v. New Jersey
Cantwell v. Connecticut
Note: The Significance of Cantwell
Cox v. New Hampshire
Note: The Law Established by the Foundational Cases
B. Mass Demonstrations and the Problem of the “Hostile
Audience”
Terminiello v. Chicago
Note: Hostile Audiences and Provocative Speakers
Forsyth County v. Nationalist Movement
Note: Fees and Permits for Demonstrations on Public
Property
Problem: Klan Rally and Counter-Rally
C. Access to Nontraditional Forums and Facilities
Note: Competing Approaches to Speech on Public
Property
Lehman v. City of Shaker Heights
Note: Lehman and the Perry Synthesis
Cornelius v. NAACP Legal Defense and Educational
Fund, Inc.
International Society for Krishna Consciousness, Inc. v.
Lee
Lee v. International Society for Krishna Consciousness
Inc.
 Note: Competing Views of the Public Forum
Note: Rosenberger and Viewpoint Discrimination
Note: “Limited” and “Designated” Forums
Note: The “Reasonableness” Requirement
Problem: Display of Controversial Art
Problem: Flags and Banners on Highway Overpasses
D. Speech on Private Property
Note: The Marsh Decision
Note: The Shopping Center Cases
Chapter 9 · Compelled Expression
A. Compelled Speech
West Virginia State Board of Education v. Barnette
Note: Barnette and Its Implications
Problem: A State University Pledge
Wooley v. Maynard
Note: The Barnette Principle
Problem: Navajo Spiritualism on License Plates?
Note: “Trivializing” Barnette?
Note: NIFLA and the Proper Scrutiny Level for Speech
Compulsions
Problem: The Wedding Photographer and the Gay
Couple
Note: Speech, Coercion, and Meaning
B. Compelled Subsidy
Note: Compelled Subsidies and the Winding Road to
Janus
Janus v. American Federation of State, County, and
Municipal Employees, Council 31
Note: Janus and Its Implications
Chapter 10 · Freedom of Association
A. Compelled Disclosure of Association
 NAACP v. Alabama
Note: From NAACP to AFP
Americans for Prosperity Foundation v. Bonta
Note: “Exacting” Scrutiny, Chill, and Americans for
Prosperity
B. Compelled Association
Roberts v. United States Jaycees
Note: Competing Approaches to Freedom of Association
Problem: The New Age Coalition and the Fundamentalist
Note: Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston
Boy Scouts of America v. Dale
Note: Dale and the Precedents
Note: Status and Message
Problem: Exclusion from a Gay Softball League
Preamble
Chapter 11 · Campaign Finance
A. Foundational Principles
Buckley v. Valeo
Note: Buckley and Its Progeny
B. Corporate and Union Political Speech
Note: Corporate and Union Speech, Electoral Integrity,
and the First Amendment
Citizens United v. Federal Election Commission
Note: Questions About Citizens United
Problem: Corporate Contributions to an Independent
Spender
Problem: A State Response to Citizens United?
C. Disclosure Requirements
Note: Disclosure Requirements and the First
Amendment
D. Circumvention of Contribution Limits and Buckley's Limits
 Note: The Anti-Circumvention Idea
Note: McCutcheon and the Limits of the Anti-
Circumvention Rationale
Chapter 12 · Beyond Regulation: The Government as
Employer and Educator
A. First Amendment Rights of Government Employees
Connick v. Myers
Note: Pickering and Its Progeny
Problem: An Activist Clerk
Garcetti v. Ceballos
Note: The Implications of Garcetti
Problem: The Outspoken University Administrator
Note: Testimony as Part of an Employee's “Ordinary”
Work Responsibilities
Problem: The Police Chief versus the Mayor
Note: Patronage Dismissals
B. The First Amendment in the Public Schools
Tinker v. Des Moines Independent School District
Note: The Implications of Tinker
Note: From Tinker to Mahanoy
Problem: Career Guidance and Student Protest
Problem: A Controversial T-Shirt
Mahanoy Area School Dist. v. B. L.
Note: Mahanoy's Unanswered Questions
Problem: Building Bridges — or Burning Them
Problem: Trolling on a Blog
Chapter 13 · Beyond Regulation: Whose Message Is It?
A. Paying the Piper — and Calling the Tune?
Rust v. Sullivan
Note: Rust and Rosenberger
Note: Government Funding of Legal Services
 Agency for International Development v. Alliance for
Open Society International, Inc.
Note: “Inside” the Program — or “Outside”?
B. When Is the Government the Speaker?
Note: The Government Speech Doctrine
Problem: Satirical Anti-Tobacco Advertising
Walker v. Texas Division, Sons of Confederate Veterans,
Inc.
Note: Expanding the Government Speech Doctrine
Matal v. Tam
Problem: “Enhanced Underwriting” by the Ku Klux Klan
Problem: Exclusion from a State's Adopt-a-Highway
Program
Chapter 14 · Freedom of the Press
Note: What Is “The Press,” Anyway?
A. Singling Out the Press
Grosjean v. American Press Co.
Note: Grosjean and the Free-Press Clause
Minneapolis Star v. Minnesota Commissioner of Revenue
Note: Grosjean and Minneapolis Star
Note: Discrimination among Media Categories
Problem: Restrictions on College Newspapers
Problem: Save the Newspapers!
B. Claims of Exemption from Generally Applicable Laws
Branzburg v. Hayes
Note: Justice Powell's “Enigmatic” Concurrence
Note: Journalists' Privilege in the Lower Courts
Note: Legislative and Executive Responses to the Shield
Issue
Note: Branzburg and Access to Prisons
Chapter 15 · Testing the Boundaries of Doctrine
 A. “Hate Speech”
Note: Beauharnais and “Group Libel”
Note: R.A.V. v. City of St. Paul
Note: A Penalty Enhancement Statute
Note: Cross Burning Redux
Note: Cross Burning and the First Amendment
B. Government Programs and Offensive Speech
Matal v. Tam
Note: The Implications of Matal
Note: Iancu v. Brunetti
C. The Internet as the New Public Square?
Note: The Supreme Court and Cyberspace
Packingham v. North Carolina
Note: The Internet as the New Public Forum?
Note: Regulating Social Media
Biden v. Knight First Amendment Institute at Columbia
University
Note: Social Media Platforms as Common Carriers?
Problem: Limiting Deplatforming and Curating
Problem: Posts on a Commissioner's Facebook Page

PART TWO
FREEDOM OF RELIGION

Chapter 16 · The History and Purposes of the Religion

Clauses
A. The Debate Over the Original Understanding
Everson v. Board of Education
Wallace v. Jaffree
Lee v. Weisman
B. History and Tradition
McCreary County v. ACLU
 Van Orden v. Perry
Note: Justice Breyer's Constitutional Distinctions
Problem: Ceremonial Deism
Note: The Incorporation Doctrine
C. Values
William P. Marshall, Truth and the Religion Clauses
Chapter 17 · The Establishment Clause
A. Financial Aid to Religion
1. Basic Principles
Everson v. Board of Education
Note: Two Competing Principles — “No Aid” and “Equal
Aid”
2. The Lemon Test as Modified
Lemon v. Kurtzman
Note: The Lemon Test
Agostini v. Felton
Mitchell v. Helms
3. School Vouchers
Zelman v. Simmons-Harris
Problem: Faith-Based Social Service Providers
B. School Prayer
Engel v. Vitale
School District of Abington Township v. Schempp
Wallace v. Jaffree
Lee v. Weisman
Problem: Drafting a Moment-of-Silence Policy
C. School Curriculum
Edwards v. Aguillard
Problem: Intelligent Design
D. Legislative Prayer
Town of Greece v. Galloway
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