FIRST

AMENDMENT
COURSE OUTLINE
Professor Kevin Francis O’Neill
Law 680—Section 61
Spring Semester 2024
Cleveland State University College of Law

NOTE TO STUDENTS:
Throughout this Outline, new developments in the case law appear in red font.

* * *

© 2024 Kevin Francis O’Neill

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 TABLE OF CONTENTS
PAGE SECTION TOPIC
003 I Introduction to Freedom of Expression
003 I(A) The Text: Implications of the Wording of the Speech Clause
005 I(B) Theory: Philosophical Justifications for Protecting Speech
007 I(C) Historical Development of Speech Protections
020 II Content-Based Restrictions on Speech
020 II(A) Speech That “Causes” Unlawful Conduct: Brandenburg
050 II(B) Speech That Provokes a Hostile Audience Reaction
061 II(C) Classified Information: Gag Orders on Press Coverage
069 III Overbreadth, Vagueness, and Prior Restraint
069 III(A) Overbreadth
076 III(B) Vagueness
078 III(C) Prior Restraint
087 IV “Low” Value Speech
090 IV(A) Defamatory Statements
102 IV(B) Threats
108 IV(C) Commercial Advertising
112 IV(D) Obscenity and Child Pornography
122 IV(E) Reluctance to Create New Categories of Unprotected Speech
126 IV(F) Lewd/Profane/Indecent Speech (Including “Secondary Effects”)
143 IV(G) Hate Speech
155 V Time, Place, and Manner Restrictions: Doctrinal Introduction
169 V(A) General Principles of Time/Place/Manner Regulation
172 V(B) The Public Forum: Doctrinal Introduction
179 V(B)(1) The Public Forum: Streets and Parks
184 V(B)(2) The Public Forum: Other Publicly Owned Property
193 V(B)(3) Unequal Access and the Problem of Content Neutrality
206 V(B)(4) Government Speech
213 V(B)(5) Government-Funded Speech
219 V(C) Symbolic Conduct
225 V(D) Political Solicitation, Contribution, and Expenditure
226 VI Additional Problems
226 VI(A) The Speech Rights of Students
239 VI(B) The Speech Rights of Public Employees
245 VI(C) Compelled Affirmation, Expression, and Association
254 VI(D) Compelled Disclosure of Expression, Belief, and Association
260 VII Introduction to the Religion Clauses
271 VIII The Establishment Clause
285 IX The Free Exercise Clause
301 X The Press Clause
309 XI Freedom of Association

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 313 Appendix Police Power to Disperse and Arrest Demonstrators

* * *

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press, or the right of the people
peaceably to assemble, and to petition the Government for a redress
of grievances.

U.S. CONST. amend. I (1791).

* * *

I.
INTRODUCTION TO
FREEDOM OF EXPRESSION

A. The Text: Implications of the Wording of the Speech Clause

1. In sweeping fashion, the First Amendment provides that

“Congress shall make no law ... abridging the freedom of
speech.”

2. The wording of this famous text raises three distinct

questions about the scope of expressive freedom:

a. Is it only the government—or, more narrowly, the

federal government—that is restrained in regulating
speech?

b. Are the protections for free expression absolute or

merely qualified?

c. Does “freedom of speech” extend beyond the spoken

or written word to embrace nonverbal forms of
expression?

3. Is it only the government—or, more narrowly, the federal

government—that is restrained in regulating speech?

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 a. The First Amendment—in fact, the whole Bill of
Rights—is an express restraint on the powers of
government.

b. Accordingly, the First Amendment serves only to

restrain governmental restrictions on expression.

c. Speech regulations imposed by private actors are

beyond the Amendment’s reach. Lloyd Corp. v.
Tanner, 407 U.S. 551, 567 (1972).

d. Private speech regulations will fall within the First

Amendment’s reach only if they are deemed state
action. Lebron v. National Railroad Passenger Corp.,
513 U.S. 374, 378 (1995).

e. Though the Amendment refers only to the federal

government (“Congress shall make no law...”), it
applies as well to the States via the 14th
Amendment. Gitlow v. New York, 268 U.S. 652, 666
(1925).

4. Are the protections for free expression absolute or merely

qualified?

a. The Amendment’s sweeping prohibition (“Congress

shall make no law...”), suggests that it affords
absolute protection for expressive freedom.

b. But the Supreme Court has never embraced such a

view.

c. Even Justice Hugo Black, who declared that “no law

means no law,” New York Times Co. v. United States,
403 U.S. 713, 717-18 (1971) (concurring opinion),
retreated on many occasions from an absolutist
position.

d. As this course will show, First Amendment

jurisprudence reflects a consistent belief that speech
claims must be weighed against, and do not
necessarily trump, the regulatory interests of
government.

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 e. Though free expression is accorded great weight in
many contexts, it is never regarded as an absolute.

5. Does “freedom of speech” extend beyond the spoken or

written word to embrace nonverbal forms of expression?

a. By referring to “freedom of speech,” the Amendment

raises questions about the range of expressive
activity that it protects.

b. The Supreme Court has long employed an expansive

reading of “speech,” extending protection not only to
oral utterances but to the written word as well—
whether printed in a newspaper, held aloft on a sign,
sewn onto a jacket, or transmitted through
cyberspace.

c. Protected “speech” likewise includes marching and

parading, demonstrating and picketing,
pamphleteering and prosely-tizing.

d. It extends beyond books and newsprint to radio and

television, photos and films, music and art.

e. Even further, the freedom of “speech” extends to

nonverbal symbolic expression, such as flag-burning
and cross-burning, armbands and sit-ins.

B. Underlying Theory: The Philosophical Justifications for

Protecting Speech

1. What are the reasons for protecting speech? Scholars

have identified, and Supreme Court decisions fitfully
reflect, three distinct justifications:

a. a search-for-truth rationale, which holds that

knowledge is best obtained through the clash of rival
viewpoints in an unrestricted “marketplace of
ideas”;

b. a self-governance rationale, which holds that

responsive government and enlightened public
policy are best achieved through unfettered political
debate; and

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 c. a self-fulfillment rationale, which holds that
expressive freedom is a necessary aspect of
individual dignity, autonomy, and self-realization.

2. The Search-for-Truth Rationale

a. Underlying authorities:

1. JOHN STUART MILL, ON LIBERTY (1859)

2. Thomas Jefferson (first and second inaugural

addresses)

3. Abrams v. United States, 250 U.S. 616, 630

(1919) (Holmes, J., dissenting).

4. Whitney v. California, 274 U.S. 357, 375-77

(1927) (Brandeis, J., concurring).

5. Terminiello v. City of Chicago, 337 U.S. 1, 4-5

(1949) (Douglas, J., writing for the Court).

6. Cantwell v. Connecticut, 310 U.S. 296, 310

(1940) (Roberts, J., writing for the Court).

b. This rationale is based upon the notion that good

ideas will prevail over bad ideas when juxtaposed in
the marketplace of public opinion.

c. Such a view leaves the government largely powerless

to restrict access to that market; rather than acting
as a content-conscious gatekeeper, the state must
acquiesce in “the dissemination of noxious doctrine”
[Whitney], even in “the expression of opinions that
we loathe and believe to be fraught with death”
[Abrams].

d. Since the clash of competing viewpoints is the path

to truth [Terminiello], “the fitting remedy for evil
counsels is good ones” [Whitney]. Fallacies are to be
exposed through “more speech, not enforced
silence” [Whitney].

e. This search-for-truth rationale supports a prominent

feature of First Amendment jurisprudence: the

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 Supreme Court’s hostility to content-based
regulation [Cantwell].

3. The Self-Governance Rationale

a. This rationale holds that unfettered political debate

is essential to achieving responsive government and
enlightened public policy.

b. Supreme Court decisions evince great respect for

this rationale (e.g., Cohen v. California, 403 U.S. 15,
24 (1971)), and consistently describe political
speech as occupying “the core” of First Amendment
protection (e.g., McIntyre v. Ohio Elections
Commission, 514 U.S. 334, 346 (1995)).

c. The self-governance rationale has four distinct

themes:

1. Democratic self-rule entails a process of

collective decisionmaking that requires an
informed citizenry; this deliberative process
functions best in an atmosphere of unfiltered
debate, where the body politic is exposed to
every perspective on a given issue [Alexander
Meikle-john].

2. Unfettered discourse on public affairs prevents

the entrenchment of government power and
clears the path to political change [John Hart
Ely].

3. Unrestricted speech serves as a check on the

abuse of power by public officials [Vincent
Blasi].

4. Fourth and finally, free speech promotes

political stability by affording a safety valve for
dissent [Thomas I. Emerson].

4. The Self-Fulfillment Rationale

a. Though it supplies a strong basis for protecting

speech on public affairs, the self-governance

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 rationale offers only meager support for protecting
art and literature.

b. Creative expression is embraced, however, by the

last of the principal justifications for protecting
speech: a self-fulfillment rationale, which holds that
expressive freedom is a necessary aspect of
individual dignity, autonomy, and self-realization.

c. Under this rationale, it is not just political speech

but all forms of self-expression that warrant
constitutional protection.

d. Broad intellectual freedom—to communicate, to

inquire, to create—is a concomitant to political
freedom and a precondition to realizing one’s full
human potential.

C. Historical Development of Speech Protections—from Tudor

England to the Present (with a Primary Focus on the
Regulation of Seditious Speech)

1. The Long Perspective of History

a. It is impossible to appreciate the speech protection

that exists today without reference to its historical
evolution.

b. Though Supreme Court decisions sometimes invoke

the Framers and their English antecedents, existing
law affords a degree of expressive freedom that far
surpasses what prevailed throughout most of our
history.

c. Legal protection for speech remained almost

nonexistent from Tudor England through World War
I. THOMAS L. TEDFORD, FREEDOM OF SPEECH IN THE
UNITED STATES 11-59 (1985); NAT HENTOFF, THE FIRST
FREEDOM 55-130 (1980).

d. The extent of official suppression during those four

centuries and the dramatic upsurge in speech
protection over the past century are most vividly
exemplified in the shifting treatment of seditious
expression.

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 e. Thus, in tracing the growth of expressive freedom, I
will focus here on the regulation of seditious speech
—in an accelerated tour of history from the advent of
the printing press to the present day.

2. How and Why Political Dissent Was Punished

a. Statutes criminalizing utterances critical of the

government date in England from the 13th century.
1275, 3 Edward I, stat. 1, cap. 34. See LEONARD W.
LEVY, EMERGENCE OF A FREE PRESS 5-6 (1985); 2 JOHN
REEVES, HISTORY OF THE ENGLISH LAW 129 (Dublin,
White 1787).

b. The invention of printing in the 15th century

magnified the danger of such opinions, and led to
harsher and more pervasive controls on seditious
speech. LEVY at 6-7; HENTOFF at 58-59; DONALD
THOMAS, A LONG TIME BURNING 8-9 (1969).

c. In 1579, the right hand of an author was chopped off

as punishment for his written attack on the proposed
marriage between Queen Elizabeth and the Duke of
Anjou. FREDRICK SEATON SIEBERT, FREEDOM OF THE
PRESS IN ENGLAND 91-92 (1965); ANNE LYON HAIGHT &
CHANDLER B. GRANNIS, BANNED BOOKS 15 (4th ed.
1978).

d. In 1603, at the end of Elizabeth’s reign, a printer

was hanged, drawn, and quartered for publishing a
book that opposed the ascension of James I to the
throne. HAIGHT & GRANNIS at 15; HENTOFF at 57.

e. And in 1683, Algernon Sidney was beheaded for

suggesting—in an unpublished treatise discovered in
his study—that the king was accountable to the
people. The King v. Sidney, 9 Cobbett’s State Trials
817 (K.B. 1683).

f. Such punishment was justified on two

complementary grounds: that affairs of state were no
business of the people, and that self-preservation
required the government to suppress any voice of
dissent. 8 SIR WILLIAM HOLDSWORTH, A HISTORY OF

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 ENGLISH LAW 337-38 (London, Methuen 1937); 2 SIR
JAMES FITZJAMES STEPHEN, A HISTORY OF THE CRIMINAL
LAW OF ENGLAND 299-300 (London, MacMillan 1883).

g. In 1620, for example, James I issued a “Proclamation

against excesse of Lavish and Licentious Speech of
matters of State,” in which the king asserted that
political issues “are no Theames, or subjects fit for
vulgar persons, or common meetings.” TEDFORD at
13; LEVY at 4.

h. Presiding over a seditious libel trial in 1704, Chief

Justice Holt instructed the jury: “If [speakers]
should not be called to account for possessing the
people with an ill opinion of the government, no
government can subsist. For it is very necessary for
all governments that the people should have a good
opinion of it.” The Queen v. Tutchin, 14 Howell’s
State Trials 1095, 1128 (Q.B. 1704).

3. In suppressing dissent, the English crown and Parliament

employed three principal devices: the doctrine of
constructive treason, the licensing of the press, and the
law of seditious libel. William T. Mayton, Seditious Libel
and the Lost Guarantee of a Freedom of Expression, 84
COLUMBIA L. REV. 91, 97-98 (1984).

a. The Doctrine of Constructive Treason

1. The Statute of Treasons, enacted in 1350, made

it a crime to “compass or imagine” the king’s
death. 1350, 25 Edward III, stat. 5, cap. 2.

2. Conviction under this statute required some

overt act—“provid[ing] weapons, powder,
harness, poison, or send[ing] letters for the
execution thereof”—as a step toward toppling
the king. 1 SIR MATTHEW HALE, THE HISTORY OF
THE PLEAS OF THE CROWN *109 (London, Nutt &
Gosling 1736).

3. Expressing a dissident opinion did not violate

the statute. Pine’s Case, 79 Eng. Rep. 703, 711
(K.B. 1629).

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 4. But starting with the reign of Henry VIII and
continuing late into the 17th century, the
definition of treason was extended (both by
statute and judicial decree) to embrace mere
utterances critical of the government. SIEBERT
at 265-68; IRVING BRANT, THE BILL OF RIGHTS 26-
27 (1965); 4 REEVES at 273-74; Philip
Hamburger, The Devel-opment of the Law of
Seditious Libel and the Control of the Press, 37
STANFORD L. REV. 661, 666-67 (1985).

5. This dramatic departure from the medieval

definition, authorizing conviction and death for
a purely verbal crime, became known as
“constructive” treason. LEVY at 122-23; SIEBERT
at 266; 8 HOLDSWORTH at 307-17; Mayton at 99-
100.

6. A notorious example is the prosecution of John

Twyn, who was tried in 1663 for publishing a
book that postulated a right of revolution on
the ground that the king was accountable to
the people. The King v. Twyn, 6 Cobbett’s State
Trials 513 (K.B. 1663).

7. Twyn was sentenced to be hanged, cut down

while still alive, and then emasculated,
disemboweled, quartered, and beheaded—the
standard punishment for treason. Id. at 536;
LEVY at 9.

8. After executing a teenager in 1720 for printing

a dissident pamphlet, The King v. Matthews, 15
Howell’s State Trials 1323 (K.B. 1719), the
crown finally abandoned the use of constructive
treason.

9. By then, Parliament had imposed procedural

obstacles to such prosecutions, and juries,
viewing the death penalty as too drastic a
punishment, had grown reluctant to convict.
SIEBERT at 269.

b. The Licensing of the Press

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1. In addition to constructive treason, the English
government employed a second method in
controlling the spread of dangerous ideas: the
licensing of the press. HENTOFF at 58-60;
SIEBERT at 41-87, 141-46, 186-91; BRANT at 98-
100; Hamburger at 671-91, 714-17.

2. Spurred by the invention of printing in the late

15th century, the English crown asserted the
power to impose editorial control over all
printed matter. SIEBERT at 47-63; Hamburger at
672; Mayton at 106.

3. Established initially as a right of royal

prerogative and later perpetuated by statute,
this licensing system criminalized the
publication of any work that had not received
advance approval by agents of the crown.
SIEBERT at 61-62, 68-70, 82-87.

4. From the mid 16th to the late 17th century, the

system served as a powerful clamp on dissent:
It afforded the crown prepublication censorship
and easy prosecution of offenders, since a
defendant’s guilt turned solely on whether he
had published without a license. Hamburger at
673, 690.

5. The penalties for unlicensed printing included

confiscation of all goods and chattels, fine and
imprisonment at the will of the crown, and the
posting of bonds to be forfeited upon further
misbehavior. SIEBERT at 49.

6. These penalties were designed in part to exert

so much pressure upon printers that they could
be tempted to assist the crown, disclosing the
whereabouts of dissident authors. HENTOFF at
59.

7. Licensing finally ceased in 1694, SIEBERT at

260-63, but not from any nascent commitment
to free speech. Instead, as the number of
printers and presses grew, the system became

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 unwieldy, ineffective, and conducive to bribery.
Id. at 263; Hamburger at 714-717.

8. By 1769, with licensing a thing of the past, Sir

William Blackstone (pronounced “BLACK-
STUNN”) observed: “The liberty of the press is
indeed essential to the nature of a free
state[—]but this consists in laying no previous
restraints upon publications, and not in
freedom from censure for criminal matter when
published.” 4 SIR WILLIAM BLACKSTONE,
COMMENTARIES ON THE LAWS OF ENGLAND *151-52
(London, Strahan & Cadell 1783).

9. Freedom from prior restraint was cold comfort

for authors and printers, because post-
publication punish-ment (even with the demise
of constructive treason) could be so easily
effected through yet another device: the
doctrine of seditious libel. LEVY at 12-13.

c. The Law of Seditious Libel

1. Closely akin to constructive treason, and

featuring penalties nearly as severe (e.g.,
whipping, branding the forehead, or cutting off
the ears), the doctrine of seditious libel was
broad enough to criminalize any comment
critical of the government. LEVY at 8.

2. Born in the Star Chamber in 1606, De Libellis

Famosis, 77 Eng. Rep. 250 (Star Chamber
1606), the doctrine did not die when that
tribunal was abolished in 1641. Mayton at 102,
106-07.

3. Through the intervention of Charles II, who

prevailed upon “the twelve high judges of
England” to avert the doctrine’s demise, BRANT
at 128, seditious libel was declared in 1680 a
common law offense, and thus within the
jurisdiction of the King’s Bench. The King v.
Harris, 7 Cobbett’s State Trials 925, 929-30
(K.B. 1680) (Scroggs, L.C.J.).

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4. After 1689, concomitant prosecutions were
carried out by Parliament itself, as both the
Lords and the Commons vigorously pursued any
publication critical of their actions. LEVY at 14.

5. As a creature of the Star Chamber, seditious

libel was not initially subject to the procedural
restrictions that prevailed in the common law
courts: indictment and trial by jury. Mayton at
104 & n.76; 2 HALE at *151, *259-61; 4 REEVES
at 149; ALBERT THOMAS CARTER, A HISTORY OF
ENGLISH LEGAL INSTITUTIONS 142-44 (London,
Butterworth 1902).

6. In the Star Chamber, “no jury of Englishmen

stood between the state and its victim.” Mayton
at 105.

7. The tribunal functioned as an arm of the

crown; its members served at the king’s
pleasure, and many of them sat on the king’s
Privy Council. 4 REEVES at 150-51; 5
HOLDSWORTH at 155; CARTER at 131-39; Mayton
at 105.

8. Star Chamber procedures, which included

torture to extract confessions, made for easy
prosecutions. 5 HOLDSWORTH at 165, 184-85;
Mayton at 105; L.A. PARRY, THE HISTORY OF
TORTURE IN ENGLAND 4-12 (1975).

9. When the Star Chamber was abolished and

seditious libel actions moved to the common
law courts, the crown pushed for procedural
innovations that would limit the power of juries
to acquit. Mayton at 107; Ham-burger at 757-
58.

10. One such method was to bypass the grand jury,

authorizing the attorney general to proceed on
information rather than indictment. LEVY at 11.

11. Another method, even more significant, was to

limit the range of issues that juries were
permitted to decide. Mayton at 107.

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 12. At the crown’s behest, 2 STEPHEN at 311-13,
Chief Justice Scroggs (in 1680) established that
juries in seditious libel prosecutions were
permitted to decide only one issue: whether the
defendant had actually published the remark.
The King v. Harris, 7 Cobbett’s State Trials
925, 929-30 (K.B. 1680) (Scroggs, L.C.J.).

13. The judges reserved to themselves, as a

question of law, whether the remark
constituted seditious libel. LEVY at 11-12; 8
HOLDSWORTH at 342-45; Mayton at 107; Irving
Brant, Seditious Libel: Myth and Reality, 39
N.Y.U. L. REV. 1, 13 (1964) [hereinafter
Seditious Libel].

14. Truth was no defense, LEVY at 12, and malicious

intent to cause sedition need not be proved, 2
STEPHEN at 312; SIEBERT at 273; Seditious Libel
at 13.

15. In this way, the King’s Bench perpetuated the

crown’s prerogative power over seditious libel,
much in the tradition of the Star Chamber.
Seditious Libel at 12; Mayton at 107-08.

16. As a result, “a man might be arrested on a

general warrant, prosecuted on an information
without the consent of a grand jury, and
convicted for his political opinions by judges
appointed by the government he had aspersed.”
LEVY at 12.

4. The American Pre-Revolutionary Experience

a. In contrast to the hundreds of seditious libel trials

conducted in England during the 17th and 18th
centuries, the number in pre-revolutionary America
was insignificant, probably not more than half a
dozen. LEVY at 17.

b. Among these, the most famous was the trial of John

Peter Zenger in 1735. WILLIAM LOWELL PUTNAM, JOHN
PETER ZENGER AND THE FUNDAMENTAL FREEDOM (1997);

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 LIVINGSTON RUTHERFURD, JOHN PETER ZENGER, HIS
PRESS, HIS TRIAL (Chelsea House 1981) (1904).

c. Zenger, a printer, was prosecuted for publishing a

series of attacks on the British colonial governor of
New York. PUTNAM at 57-59; RODNEY A. SMOLLA,
SMOLLA & ZIMMER ON FREEDOM OF SPEECH: A TREATISE
ON THE FIRST AMENDMENT § 1:3 (March 2021 Update).

d. Andrew Hamilton, Zenger’s lawyer, argued for a

departure from the English common law in three
respects:

(1) Truth should be a defense.

(2) The government should be required to prove

more than mere publication; it should be
required to prove that the defendant published
the remark with a malicious or seditious intent.

(3) And the seditious nature of the utterance

should be a jury question, not a question of law
reserved to the judge.

SMOLLA § 1:4 at n.6; LEVY at 41-43; HENTOFF at 64-67.

e. The chief justice repudiated Hamilton’s arguments

as inconsistent with prevailing law, RUTHERFURD at
87-88, but the jury found them compelling and, after
deliberating for only a few minutes, returned a
general verdict of not guilty—prompting shouts of
celebration in the crowded courtroom, LEVY at 41-44;
HENTOFF at 64-67; TEDFORD at 36.

f. The Zenger trial was the last of its kind under the
royal judges; on the Revolution’s eve, grand juries
thwarted such prosecutions by refusing to indict.
LEVY at 17.

g. But this does not mean that political dissent went

unpunished. Imitating Parliament, the colonial
assemblies took to prosecuting and imprisoning
those who spoke out against them. LEVY at 17-18.

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 h. Even after the Revolution, seditious libel remained a
powerful tool for suppressing dissent—but now it
was used by the States to punish loyalist expression.
FORREST MCDONALD, NOVUS ORDO SECLORUM: THE
INTELLECTUAL ORIGINS OF THE CONSTITUTION 45-46
(1985); LEVY at 173-85.

5. Adoption of the First Amendment in 1791—Discerning Its

Original Meaning Through the Mists of Time

a. In the 18th century, “the” liberty of speech and

“the” liberty of the press had narrower meanings
than today: the former specified a purely
parliamentary privilege that attached only to
legislative debates, while the latter, famously
articulated by Blackstone, was confined to freedom
from the prior restraint of a licensor. MCDONALD at
46-47; LEVY at 3; TEDFORD at 13; 4 BLACKSTONE at
*151-52.

b. Thus, was Zechariah Chafee Jr. correct when he

asserted (in FREE SPEECH IN THE UNITED STATES 18-20
(1941)) that it was the intent of the American
Revolution and the Framers of the First Amendment
to abolish the common law of seditious libel? It
would seem not.

c. How can one explain the Sedition Act of 1798—which

criminalized any criticism of Congress or the
President? JAMES MORTON SMITH, FREEDOM’S FETTERS:
THE ALIEN AND SEDITION LAWS AND AMERICAN CIVIL
LIBERTIES 94-95 (1956); GEOFFREY R. STONE, PERILOUS
TIMES: FREE SPEECH IN WARTIME FROM THE SEDITION
ACT OF 1798 TO THE WAR ON TERRORISM 12 (2004).

d. The very existence of the Sedition Act “suggests that

the generation that framed the First Amendment did
not consider ... seditious libel [prosecutions] to be
an abridgment of freedom of speech or press.”
LEONARD LEVY, ORIGINAL INTENT AND THE FRAMERS’
CONSTITUTION 210 (1988) [hereinafter ORIGINAL
INTENT].

e. Many of the same men who forged the Constitution

(like Alexander Hamilton and William Paterson)

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 supported the Sedition Act and favored a
Blackstonian view of press freedom. SMITH at 152-
55; ORIGINAL INTENT at 219; RON CHERNOW,
ALEXANDER HAMILTON 572 (2004); David A. Anderson,
The Origins of the Press Clause, 30 UCLA L. REV.
455, 517 (1983); JOHN E. O’CONNOR, WILLIAM
PATERSON: LAWYER AND STATESMAN 182 (1979).

f. George Washington agreed with them. WENDELL

BIRD, CRIMINAL DISSENT: PROSECUTIONS UNDER THE
ALIEN AND SEDITION ACTS OF 1798, at 3 (2020).

g. And the two most famous repudiators of the Sedition

Act—James Madison and Thomas Jefferson—behaved
at times in ways that evince a similarly
circumscribed view of free speech.

(1) In several legislative debates, Madison stood by

in silence as his political allies argued that
liberty of the press merely meant the absence
of a licensing act. LEVY at 321; 3 THE DEBATES IN
THE SEVERAL STATE CONVENTIONS ON THE
ADOPTION OF THE FEDERAL CONSTITUTION 247
(Jonathan Elliot ed., Philadelphia, Lippincott
1836) [hereinafter ELLIOT’S DEBATES]; Anderson
at 530.

(2) Though he pardoned political allies who were

prosecuted under the Sedition Act, Jefferson
proved all too willing as president to seek
seditious libel prosecutions of his own political
antagonists. LEONARD W. LEVY, JEFFERSON AND
CIVIL LIBERTIES: THE DARKER SIDE 58-61, 163
(1963).

h. One modern scholar emphatically rejects the idea

that Blackstone’s narrow view of speech and press
freedom was universally held by the generation that
framed the First Amendment. Professor Wendell
Bird asserts that some Federalists and most
Republicans held a broad view of expressive freedom
and regarded the Sedition Act as outrageously
unconstitutional. WENDELL BIRD, CRIMINAL DISSENT:
PROSECUTIONS UNDER THE ALIEN AND SEDITION ACTS OF
1798, at 5-6, 8 (2020). Professor Bird concludes that,

18
 under the leadership of President John Adams, the
Federalist Party “designed” the Sedition Act “to
attack and eliminate the political opposition”—
namely, the Republican Party of Thomas Jefferson
and James Madison. Id. at 360. Spearheaded by
Secretary of State Timothy Pickering, the Adams
administration launched 51 prosecutions under the
Sedition Act, most of them aimed at silencing and
punishing Republican newspaper editors who had
criticized President Adams and his administration.
Id. at 361.

i. Nevertheless, the Sedition Act survived

constitutional challenges in federal court. United
States v. Callender, 25 F. Cas. 239, 257 (C.C.D. Va.
1800); Lyon’s Case, 15 F. Cas. 1183, 1185 (C.C.D. Vt.
1798).

j. Even if the long shadow of the Sedition Act can be

ignored, the freedom of speech envisioned by the
Framers was further marginalized by their prevailing
concerns about federalism:

(1) From Jefferson’s correspondence: “While we

deny that Congress have a right to control the
freedom of the press, we have ever asserted the
right of the States, and their exclusive right, to
do so.” 11 THE WRITINGS OF THOMAS JEFFERSON
51 (Andrew A. Lipscomb ed., 1905).

(2) When the Bill of Rights was adopted, “it was

universally agreed that [the first] eight
amendments limited only the Federal
Government,” not the States. ANTHONY LEWIS,
GIDEON’S TRUMPET 93 (1964). James Madison
drafted a proposed amendment that would have
barred the States from infringing the freedoms
of speech and press—but the Senate rejected it.
Id. So, as adopted, the original Bill of Rights
limited only federal action. Id.

(3) Not long after, the Supreme Court confirmed

that the Bill of Rights did not restrict the
States. Barron v. Baltimore, 32 U.S. (7 Pet.)
243 (1833).

19
 (4) It was not until 1925 that the First Amendment
was deemed to reach the States—through the
conduit of the Fourteenth Amendment’s Due
Process Clause. Gitlow v. New York, 268 U.S.
652, 666 (1925).

6. Punishment of Anti-Slavery Speech in the Pre-Civil-War

South

a. In the pre-Civil-War South, state legislatures

enacted ferocious punishments for anti-slavery
speech.

b. An 1849 Virginia law imposed a one-year jail term

and a $500 fine for saying or writing “that owners
have no right in the property of slaves.” RUSSEL B.
NYE, FETTERED FREEDOM: CIVIL LIBERTIES AND THE
SLAVERY CONTROVERSY 175 (1963).

c. In North Carolina, the punishment for this speech

crime was a lashing and one year in jail for the first
offense, death for the second offense. NYE at 156.

d. In Louisiana, the penalty for conversation “having a

tendency to promote discontent among free colored
people, or insubordination among slaves,” ranged
from 21 years at hard labor to death. NYE at 175-76.

7. Lincoln’s Disregard of the First Amendment as President

a. His military round-up, in the Maryland State Capitol,

of legislators favoring secession from the Union.
JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM: THE
CIVIL WAR ERA 289 (1988).

b. His expulsion, behind Confederate lines, of Ohio

gubernatorial candidate Clement Vallandigham, who
urged a peace treaty with the South and actively
campaigned on an anti-war platform. 2 SHELBY
FOOTE, THE CIVIL WAR: A NARRATIVE—FREDERICKSBURG
TO MERIDIAN 630-35 (1963); MCPHERSON at 596-97.

8. Developments in the 20th Century

20
a. Throughout the 20th century, government officials
sought to punish such provocative sentiments as:

(1) opposition to U.S. involvement in World War I

(Debs v. United States, 249 U.S. 211 (1919));

(2) calls for “class struggle” (Fiske v. Kansas, 274

U.S. 380 (1927)) and “revolutionary mass
action” (Gitlow v. New York, 268 U.S. 652
(1925));

(3) Communist Party membership (Scales v. United

States, 367 U.S. 203 (1961); Dennis v. United
States, 341 U.S. 494 (1951); De Jonge v.
Oregon, 299 U.S. 352 (1937));

(4) waving a red flag (Stromberg v. California, 283

U.S. 359 (1931)); and

(5) burning the American flag (Texas v. Johnson,

491 U.S. 397 (1989); Street v. New York, 394
U.S. 576 (1969)).

b. In response to these prosecutions, the Supreme

Court developed a constitutional standard that,
starting with the “clear and present danger” test in
Schenck v. United States, 249 U.S. 47, 52 (1919),
and culminating in Brandenburg v. Ohio, 395 U.S.
444, 447 (1969), grew ever more protective of
speech.

c. While originally permitting punishment for mere

opposition to government policies (Debs), the Court
subsequently rejected criminal liability even for
speech that had a “dangerous tendency” to start an
insurrection (Herndon v. Lowry, 301 U.S. 242, 262
(1937)).

d. Finally, in Brandenburg, the Court established an

even more protective standard, permitting
punishment only for incitement that is both intended
and likely to produce “imminent lawless action.” 395
U.S. at 447.

21
 e. Thus, the Court has ruled that Julian Bond could not
be denied a seat in the Georgia House of
Representatives for expressing “sympathy with, and
support [for] the men in this country who are
unwilling to respond to the military draft” (Bond v.
Floyd, 385 U.S. 116, 120 (1966));

f. that an anti-war activist could not be prosecuted for

saying “[i]f they ever make me carry a rifle the first
man I want to get in my sights is L.B.J.” (Watts v.
United States, 394 U.S. 705, 706 (1969)); and

g. that a campus anti-war protester who joined other

demon-strators in blocking a street could not be
punished for declaring, after police had dispersed
the crowd, “We’ll take the fucking street later” (Hess
v. Indiana, 414 U.S. 105, 106-07 (1973)).

h. Bearing in mind that Algernon Sidney was beheaded

in 1683 merely for suggesting that the king was
accountable to the people (The King v. Sidney, 9
Cobbett’s State Trials 817 (K.B. 1683)), these
decisions indicate just how far our law has evolved in
affording protection for dissident speech.

* * *

II.
CONTENT-BASED RESTRICTIONS ON SPEECH:
DANGEROUS IDEAS AND INFORMATION

A. Speech That “Causes” Unlawful Conduct

1. The Historical Setting:

a. Declaring it “preposterous” to assert a First

Amendment right to criticize the government during
wartime, the New York Times published an editorial
on July 4, 1917 castigating those who opposed U.S.
involvement in World War I. “Jails are waiting for
them,” warned the Times. SAMUEL WALKER, IN
DEFENSE OF AMERICAN LIBERTIES 11 (1990).

22
b. Because the most vocal of the war critics were
socialists, anarchists, labor radicals, and recent
immigrants, the public saw free speech as a cloak for
everything “un-American.” WALKER at 12.

c. President Woodrow Wilson led the attack on free

speech. The “authority to exercise censorship is
absolutely necessary to the public safety,” he
announced. He told Max Eastman, editor of The
Masses, that once the people had spoken, through a
congressional declaration of war, there was no
longer room for dissent. Id. at 12.

d. What explains this sharp intolerance for dissent?

What explains the government’s ready willingness to
punish any opposition to the war?

(1) Historically, our government had always shown

a low tolerance for dissent. Take, for example,

(a) the Sedition Act of 1798 (the Act’s

principal purpose was to suppress the
Republican, Anti-Federalist press, whose
pages were scrutinized every day by
Secretary of State Timothy Pickering in
search of offending material, JOHN C.
MILLER, CRISIS IN FREEDOM: THE ALIEN AND
SEDITION ACTS 88 (1952));

(b) Southern punishment of anti-slavery

speech (NYE at 156, 175-76); and

(c) Lincoln’s crackdown on those who

opposed the Civil War (e.g., the
banishment of Clement Vallandigham, 2
FOOTE at 630-35).

(2) But the years leading up to World War I were

especially tumultuous, filled with great social
upheaval that must have terrified government
officials.

(3) Two American Presidents—James A. Garfield

(1882) and William McKinley (1901)—were
assassinated in a span of 19 years.

23
(4) McKinley’s assassin, an anarchist, used his
dying speech to declare: “I killed the President
because he was an enemy of the good people—
of the working people. I’m not sorry for my
crime.” FREDERICK DRIMMER, UNTIL YOU ARE
DEAD: THE BOOK OF EXECUTIONS IN AMERICA 194-
95 (1990).

(5) Anarchists—who advocated revolution by the

working class—were blamed for the Haymarket
Riot in Chicago (1886), where a bomb was
hurled at police who attempted to break up a
protest rally. CORINNE JACKER, THE BLACK FLAG
OF ANARCHY: ANTISTATISM IN THE UNITED STATES
100-16 (1968); PAUL AVRICH, THE HAYMARKET
TRAGEDY 181-214 (1984); MARTHA SOLOMON,
EMMA GOLDMAN 6-7 (1987).

(6) After the Haymarket defendants had been

hanged en masse, Johann Most, a prominent
anarchist editor, was prosecuted for delivering
a speech in which he urged his audience to
“arm yourself, as the day of revolution is not
far off; and when it comes, see that you are
ready to resist and kill those hirelings of
capitalists” who, in his opinion, were
responsible for the executions in Chicago.
David M. Rabban, The First Amendment in Its
Forgotten Years, 90 YALE L.J. 514, 543 (1981).
Accord FREDERIC TRAUT-MANN, THE VOICE OF
TERROR: A BIOGRAPHY OF JOHANN MOST 149-56
(1980); MAX NOMAD, APOSTLES OF REVOLUTION
289 (1939).

(7) In his passionate public speeches, Most

expressly advocated the use of violence against
capitalists—“money kings, railroad magnates,
coal barons, and factory lords.” SOLOMON at 6.
In 1885, to advance the anarchist cause, Most
wrote and published a pamphlet, The Science
of Revolutionary Warfare, explaining how to
make and use bombs and other terrorist
devices. TRAUTMANN at xxii; SOLOMON at 6;
NOMAD at 286.

24
(8) With diagrams and detailed instructions, Most
explained how to prepare gunpowder; concoct,
store, and administer poisons; handle guns,
knives, detonating gas, and dynamite; and wrap
and dispatch his own original invention, the
letter bomb. TRAUTMANN at 100.

(9) Equally as radical as the anarchists—and

equally dis-concerting to the government, I’m
sure—were the so-called “Wobblies,” members
of a radical labor group known as the Industrial
Workers of the World (IWW). ROBERT K.
MURRAY, RED SCARE: A STUDY IN NATIONAL
HYSTERIA, 1919-1920, at 26-31 (1964)
(sketching the IWW’s ideology and tactics).

(10) The IWW explicitly advocated the revolutionary

over-throw of capitalism, rejecting the more
moderate, conciliatory approach to trade
unionism promoted by its rival, the American
Federation of Labor (AFL). WILLIAM PRESTON,
ALIENS AND DISSENTERS: FEDERAL SUPPRESSION OF
RADICALS, 1903-1933, at 40 (1994).

(11) The preamble to the IWW constitution denied

any commonality of interests between the
“working class” and the “employing class.”
David M. Rabban, IWW Free Speech Fights, 80
VIRGINIA L. REV. 1055, 1064 (1994) [here-
inafter Free Speech Fights].

(12) “It maintained in classic Marxist language that

‘[b]etween these two classes a struggle must go
on until the workers of the world organize as a
class, take possession of the earth and the
machinery of produc-tion, and abolish the wage
system.’” Id. at 1064.

(13) The IWW stressed “direct action” by workers as

the key tactic in the struggle against
capitalism. Id. at 1065.

(14) “Direct action” came to include spontaneous

strikes and slowdowns in the workplace, as well

25
 as various forms of mass activity, such as
picket lines, parades, demonstrations, and
soapbox speeches on downtown street corners
in which Wobblies would express their radical
ideology in deliberately provocative language.
Id. at 1056, 1065.

(15) Between 1909 and 1913, government officials

in 21 different cities sought to suppress these
soapbox speeches by IWW members. Id. at
1068. Accord ERIC FONER, THE STORY OF
AMERICAN FREEDOM 164 (1998).

(16) These so-called “free speech fights” produced

mass arrests of IWW members, and those
arrests, in turn, prompted the Wobblies to
engage in widespread use of civil disobedience.
Free Speech Fights at 1062.

(17) Officials responded by closing local halls to

prevent gatherings by the Wobblies,
confiscating newspapers sympathetic to IWW
policies, and arresting people selling those
newspapers. Id. at 1071.

(18) On September 5, 1917, the U.S. Justice

Department staged a coordinated series of
raids on every IWW office in the country,
making hundreds of arrests. WALKER at 25;
FONER at 177; PRESTON at 118-19; MURRAY at
30-31.

(19) Eventually, 169 of the IWW’s top leaders,

including William “Big Bill” Haywood, were
indicted under the Espionage Act. Haywood and
13 others received jail terms of 20 years each.
WALKER at 25-26; MURRAY at 30-31; JULIAN F.
JAFFE, CRUSADE AGAINST RADICALISM: NEW YORK
DURING THE RED SCARE 65-66 (1972).

(20) There was another feature of social upheaval in

America at this time: efforts by feminists to
obtain the vote and to obtain some semblance
of reproductive freedom. Their speech likewise
met with official suppression. (Recall that it

26
 was not until 1920, with the ratification of the
19th Amendment, that women finally received
the vote.)

(21) Beginning in 1912, early feminist Margaret

Sanger became an activist on behalf of birth
control. David M. Rabban, The Free Speech
League, the ACLU, and Changing Conceptions
of Free Speech in American History, 45
STANFORD L. REV. 47, 91 (1992) [hereinafter
Changing Conceptions].

(22) Her birth control lectures were banned in

Boston, and were twice shut down by New York
City police. See generally ELLEN CHESLER,
WOMAN OF VALOR: MARGARET SANGER AND THE
BIRTH CONTROL MOVEMENT IN AMERICA (1992)
(providing a detailed account of Sanger’s
career); LAWRENCE LADER, THE MARGARET SANGER
STORY AND THE FIGHT FOR BIRTH CONTROL (1975)
(same); DAVID M. KEN-NEDY, BIRTH CONTROL IN
AMERICA: THE CAREER OF MARGARET SANGER
(1970) (same).

(23) Invoking the Comstock Act, which prohibits the

inter-state mailing of “obscene” materials, the
federal government sought to censor her
writings, including:

(a) a column about gonorrhea and syphilis

from a series entitled “What Every Girl
Should Know” that she wrote for The Call,
a popular Socialist daily in New York;

(b) a pamphlet on birth control, Family

Limitations, that she authored for
uneducated women; and

(c) Woman Rebel, a magazine she founded in

1914 that was “‘dedicated to the interests
of working women.’”

FONER at 167-68; Changing Conceptions at 92.

27
(24) Sanger and her husband were indicted and
prosecuted under the Comstock Act—

(a) she for authoring various issues of

Woman Rebel, id. at 92;

(b) and he for distributing copies of Family

Limita-tions, id. at 57-58.

(25) Other prominent birth control advocates from

this time period include the anarchist Emma
Goldman, and Mary Ware Dennett, whose
pamphlet, The Sex Side of Life, which offered
elementary instruction on sex education, was
declared obscene by the U.S. Postal Service in
1922. WALKER at 84-85; FONER at 167.

(26) Women were suppressed not only in their quest

for reproductive freedom, but in their fight for
the right to vote. DORIS STEVENS, JAILED FOR
FREEDOM: AMERICAN WOMEN WIN THE VOTE 205
(Carol O’Hare ed., 1995).

(27) Under the leadership of Alice Paul, the National

Woman’s Party picketed the White House
almost continuously from January 10, 1917
until March 19, 1919, the day that President
Woodrow Wilson called a special session of
Congress that approved the 19th Amendment
and sent it to the States for ratification.
ELIZABETH GURLEY FLYNN, THE REBEL GIRL 278
(1955); INEZ HAYNES GILLMORE, UP HILL WITH
BANNERS FLYING 202-03 (1964); FONER at 171-
72.

(28) Alice Paul and her followers were the first

protesters ever to picket the White House.
MARY WALTON, A WOMAN’S CRUSADE: ALICE PAUL
AND THE BATTLE FOR THE BALLOT 149 (2010).

(29) During their two years of picketing, these

suffragists faced considerable public hostility.
On several occasions police looked on while the
women were beaten, and their banners were
destroyed, by hostile onlookers. WALTON at 188-

28
 89; FLYNN at 278. The government tried to
discourage this picketing by arresting and
jailing the suffragists, who received 30-day and
60-day sentences; their leaders were locked up
for seven months. WALTON at 193. Looking back
over that two-year span of protest, “some 2,000
women had picketed, 500 had been arrested,
and 168 served jail time.” WALTON at 234.

(30) Their leader, Alice Paul, was arrested on

October 20, 1917 while picketing in front of the
White House. While in jail, she staged a hunger
strike. Prison officials responded by force-
feeding her, preventing her from sleeping at
night, and subjecting her to interrogation by
psychiatrists who threatened to commit her to
an insane asylum. CHRISTINE A. LUNARDINI, FROM
EQUAL SUFFRAGE TO EQUAL RIGHTS: ALICE PAUL
AND THE NATIONAL WOMAN’S PARTY 132-33
(1986).

(31) This was the atmosphere of social upheaval and

government censorship in which the country
was plunged around the time of World War I.

e. The American Socialist Party was the center of

organized opposition to the war. In 1917, the
Socialists were by no means an insignificant group;
quite to the contrary, their anti-war message was
supported by a substantial percentage of Americans.
Over 1200 Socialists held state and local political
office. The party garnered six percent of the national
vote in the 1912 presidential campaign, and twenty-
two percent of the vote in New York City’s mayoral
election of 1917. WALKER at 13; MURRAY at 19-26.

f. Another significant anti-war group was the No

Conscription League, formed by anarchists Emma
Goldman and Alexander Berkman. The League’s first
public rally drew a boisterous crowd of eight
thousand. After two more large rallies, the
government indicted Goldman and Berkman under
the Espionage Act for obstructing the draft. They
were eventually convicted, imprisoned, and deported
to the Soviet Union. WALKER at 13-14; MURRAY at

29
 206-07; SOLOMON at 29-30; RICHARD DRINNON, REBEL
IN PARADISE 186-89, 194-95, 221-22 (1961); MARIAN J.
MORTON, EMMA GOLDMAN AND THE AMERICAN LEFT:
NOWHERE AT HOME 85-86 (1992).

g. From the White House, President Wilson warned

that “disloyalty” would be met with “a firm hand of
stern repression.” Former President Theodore
Roosevelt attacked pacifists as “a whole raft of
sexless creatures.” WALKER at 13.

h. The principal tools employed by the government in

suppressing anti-war dissent were (WALKER at 14;
FONER at 177; MURRAY at 13-14):

(1) the Espionage Act of 1917, which criminalized

the obstruction of recruitment and enlistment
and was construed by the courts to reach anti-
war speech;

(2) the Sedition Act of 1918, which directly

criminalized “disloyal” expression (and was
broad enough to reach, according to the U.S.
Attorney General, even “casual or impulsive
[anti-war] utterances,” JULIAN F. JAFFE, CRUSADE
AGAINST RADICALISM: NEW YORK DURING THE RED
SCARE 54-55 (1972));

(3) the use of immigration laws to deport aliens

who became labor leaders or who joined
anarchist organizations; and

(4) U.S. Postal Service bans on the circulation of

any publication critical of the war—a ban that
effectively silenced the anti-war and Socialist
press (including The Masses, a prominent anti-
war magazine).

i. Under the Espionage and Sedition Acts, the

government prosecuted more than two thousand
individuals for opposing the war, and over one
thousand were convicted—including Eugene Debs, a
founding member of the IWW and the leader of the
Socialist Party. Debs received a ten-year jail

30
 sentence for giving an anti-war speech. FONER at
177.

j. Even innocuous statements by obscure individuals

were punished under the Espionage and Sedition
Acts. Clarence Waldron, a Pentecostal minister in
Windsor, Vermont, was prosecuted for telling his
Bible class that “a Christian can take no part in the
war” and “Don’t shed your precious blood for your
country.” The jury found that his words showed an
intent to “cause insubordination, disloyalty, or
refusal of duty.” He was convicted and sentenced to
15 years in prison. CLEMENS P. WORK, DARKEST
BEFORE DAWN: SEDITION AND FREE SPEECH IN THE
AMERICAN WEST 109 (2005).

2. Three Cases, Three Tests:

— Shaffer v. United States, 255 F. 886 (9th Cir. 1919);

— Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y.

1917); and

— Schenck v. United States, 249 U.S. 47 (1919).

a. In these cases, each court propounded a different

test for gauging the constitutionality of laws
criminalizing illegal advocacy. What were those
three tests?

(1) Shaffer: the “bad tendency” test;

(2) Masses: the “express incitement” test; and

(3) Schenck: the “clear and present danger” test.

b. Of these three tests, it was the third—the “clear and

present danger” test—that prevailed. And it
remained the controlling standard until 1969, when
it was jettisoned by the Supreme Court in
Brandenburg v. Ohio, 395 U.S. 444 (1969).

c. Let’s take a closer look at those three cases:

31
(1) In Shaffer, the Ninth Circuit upheld the
Espionage Act conviction of a defendant who
had mailed a book, THE FINISHED MYSTERY, that
contained certain “treasonable, disloyal, and
seditious utterances” in opposition to U.S.
involvement in World War I. 255 F. at 886.

(a) Among the statements urged by the

government to be criminal were the
assertions that “patriotism” is a
murderous “delusion,” that “it has yet to
be proved that Germany has any intention
or desire of attacking us,” that “[t]he war
itself is wrong,” that its prosecution would
be “a crime,” and that the issues involved
in the conflict were not worth the life of a
single sailor or soldier. Id. at 886.

(b) “It is true that disapproval of war and the

advocacy of peace are not crimes under
the Espionage Act,” conceded the court,
“but the issue here is ... whether the
natural and probable tendency and effect
of the [above-quoted words] are such as
are calculated to produce the result
condemned by the statute.” Id. at 887.

(c) Making plain the great breadth of this

test, the court concluded, “It is sufficient
if the words used and disseminated are
adapted to produce the result condemned
by the statute.” Id. at 888.

(d) Applying this “bad tendency” test to the

facts at hand, the court concluded that
the defendant’s conviction should be
sustained, since: “To teach that patriotism
is murder and the spirit of the devil, and
that the war against Germany was wrong
and its prosecution a crime, is to weaken
patriotism and the purpose to enlist or to
render military service in the war.” Id. at
888.

32
(2) Far more speech-protective than “bad
tendency” was the “express incitement” test
propounded by Learned Hand in Masses
(granting an injunction forbidding the
Postmaster from blocking the mailing of the
August 1917 issue of The Masses, a
revolutionary journal critical of the war).

(a) In announcing this test, Judge Hand

observed:

“Political agitation, by the passions it

arouses or the convictions it engenders,
may in fact stimulate men to the violation
of law. Detestation of existing policies is
easily transformed into forcible resistance
of the authority which puts them in
execution, and it would be folly to
disregard the causal relation between the
two. Yet to assimilate agitation, legitimate
as such, with direct incite-ment to violent
resistance, is to disregard the tolerance of
all methods of political agitation which in
normal times is a safeguard of free
government .... If one stops short of
urging upon others that it is their duty or
their interest to resist the law, it seems to
me one should not be held to have
attempted to cause its violation.” 244 F. at
540.

(b) Judge Hand’s test was more protective of

free speech because it “focused on the
words actually spoken” by the defendant;
the other tests “focused on predictions
about the likely effects of speech,” freeing
judges and juries to exaggerate the
potential harm of unpopular ideas.
THOMAS HEALY, THE GREAT DISSENT 114
(2013) (emphasis added).

(3) In Schenck (authored by Justice Holmes), the

Supreme Court upheld the Espionage Act
conviction of the Socialist Party General
Secretary who, in opposition to U.S.

33
 involvement in World War I, mailed anti-war
and anti-draft leaflets to draft-age men.
Through its adoption in Schenck, the “clear
and present danger” test effectively replaced
“bad tendency” and “express incitement” as the
prevailing standard for deciding illegal
advocacy cases.

d. But as APPLIED in ...

Frohwerk v. United States, 249 U.S. 204 (1919)

(authored by Justice Holmes) (sustaining Espionage
Act conviction and ten-year jail sentence for
preparing and publishing anti-war articles in
Missouri’s German-language newspaper), and

Debs v. United States, 249 U.S. 211 (1919) (authored

by Justice Holmes) (upholding Espionage Act
conviction and ten-year jail sentence based on the
anti-war sentiments expressed in a public speech by
the defendant, a national leader of the American
Socialist Party; though his remarks did not directly
oppose U.S. involvement in World War I, he did
express a general abhorrence of war and praised
individuals who had resisted or obstructed the draft;
toward the end of his remarks, Debs told his
audience, id. at 214, that “you need to know that you
are fit for something better than slavery and cannon
fodder”),

... the “clear and present danger” test FUNCTIONED

much like the “bad tendency” test. This can be seen
in:

(1) the famous language from Frohwerk, 249 U.S.

at 209 (sustaining a ten-year jail sentence for
publishing anti-war sentiments because the
newspaper was circulated “in quarters where a
little breath [might] be enough to kindle a
flame”); and

(2) the result in Debs (criminalizing the mere

abstract exposition of an anti-war philosophy).

34
3. Many scholars believe that Justice Oliver Wendell Holmes,
Jr. underwent a transformation in his thinking about free
speech during the summer of 1919. The same man who
sent Eugene Debs to prison in the spring took a very
different position in the autumn, urging protection even
for “opinions that we loathe and believe to be fraught with
death.” Abrams v. United States, 250 U.S. 616, 630 (1919)
(Holmes, J., dissenting). What happened to Holmes? It
appears that his views on free speech were reformulated
in the summer of 1919 through interactions with Learned
Hand, Zechariah Chafee, and Harold Laski. See THOMAS
HEALY, THE GREAT DISSENT: HOW OLIVER WENDELL HOLMES
CHANGED HIS MIND—AND CHANGED THE HISTORY OF FREE
SPEECH IN AMERICA 201, 343 (2013).

4. The Abrams Dissent:

a. In Abrams v. United States, 250 U.S. 616 (1919), the

Supreme Court sustained the Sedition Act
convictions of six defendants who distributed leaflets
on the streets of New York City opposing U.S.
military intervention in Russia to help overthrow the
Bolshevik Revolution. The leaflets denounced the
intervention, advocated solidarity with Russian
workers, and urged curtailment of the production of
ordnance and ammunition to be used in the
incursion. A 7-2 majority upheld these convictions—
even though the leaflets could not be linked very
easily to the German war effort and the U.S. was not
officially at war with Russia—under Schenck and
Frohwerk.

b. In his famous Abrams dissent, Holmes tacitly revises

his “clear and present danger” test, making it far
more protective of speech by adding the element of
“imminent” harm. 250 U.S. at 630-31 (Holmes, J.,
dissenting).

c. Here are sown the seeds of modern First Amendment

jurisprudence:

(1) He advances the “marketplace of ideas” theory

(250 U.S. at 630):

35
 “[W]hen men have realized that time has upset
many fighting faiths, they may come to [see]
that the ultimate good desired is better
reached by free trade in ideas—that the best
test of truth is the power of the thought to get
itself accepted in the competition of the
market, and that truth is the only ground upon
which their wishes safely can be carried out.
That at any rate is the theory of our
Constitution.”

(2) He urges protection even for “opinions that we

loathe and believe to be fraught with death”
(id. at 630):

“[Under the First Amendment,] we should be

eternally vigilant against attempts to check the
expression of opinions that we loathe and
believe to be fraught with death, unless they so
imminently threaten immediate interference
with the lawful and pressing purposes of the
law that an immediate check is required to save
the country.”

5. The “Red Scare” (1919-1921)

a. World War I ended in November 1918.

b. The following year was one of the most violent in

American history, marked by an unprecedented wave
of strikes, race riots, and terrorist bombings.
WALKER at 42. This time period, from 1919 to 1921,
is known as “the Red Scare.” It was caused by
inflation-produced labor disturbances, fear of a
domestic Bolshevik Revolution, and nativist
antagonism toward new immigrants from southern
and eastern Europe. JULIAN F. JAFFE, CRUSADE AGAINST
RADICALISM: NEW YORK DURING THE RED SCARE 3-6
(1972).

c. Postwar economic dislocation produced more strikes

than there had been in any previous year, with major
walkouts in the steel and coal industries, a general
strike in Seattle, and a police strike in Boston. The
Seattle and Boston strikes terrified millions of

36
 Americans, who saw law and order collapsing.
WALKER at 42. In 1919 alone there were 3,600 strikes
in the United States involving more than four million
workers. JAFFE at 3. The American press reacted
hysterically to the strikes, ascribing them to
Communist orchestration. MURRAY at 64-65.

d. Race riots exploded in Washington, D.C., Chicago,

Knoxville, and Omaha, producing more than 40
deaths. The Chicago riot paralyzed the city for a
week, and federal troops were called out to restore
order in Omaha. The riots were attributed in part to
Communist propaganda and revolutionary ideology.
MURRAY at 178-80; WALKER at 42.

e. The formation of the first American Communist

parties and a series of terrorist bombings inflamed
public fears of a Bolshevik revolution. MURRAY at 15-
17. The bombings began after the collapse of the
Seattle strike when Mayor Ole Hanson received a
bomb in the mail. The next day, another bomb
exploded at the home of former Georgia Senator
Thomas Hardwick, injuring his maid. MURRAY at 69-
70; WALKER at 42.

f. When a New York postal clerk heard the news, he

remembered some suspicious packages and,
rechecking, found 34 bombs addressed to prominent
Americans: John D. Rockefeller, J.P. Morgan, Justice
Oliver Wendell Holmes Jr., Attorney General A.
Mitchell Palmer, and Postmaster General Albert
Burleson. On June 2, bombs exploded in eight cities,
one killing its deliverer on the doorstep of Attorney
General Palmer’s house. MURRAY at 70-71, 78-79;
JAFFE at 87-88; WALKER at 42.

g. The bombings spurred a new government crackdown

on suspected radicals. Under heavy pressure from
Congress and with an eye to the Democratic
presidential nomination, Palmer moved swiftly. He
instructed J. Edgar Hoover to create the General
Intelligence Division of the Justice Department.
Hoover systematized the existing files, added new
ones, and soon had records on 200,000 people. The
files included virtually anyone who had ever

37
 criticized the government. MURRAY at 193-94; JAFFE
at 176-77; WALKER at 42.

h. Many state legislatures institutionalized the attack

on political dissent with a series of criminal
syndicalism and “red flag” laws. MURRAY at 233-34.
By 1921, 33 states had outlawed the possession or
display of red or black flags—the symbols,
respectively, of communism and anarchism. FONER at
178; WALKER at 43.

i. Thirty-five states passed criminal syndicalism,

criminal anarchy, or sedition laws. MURRAY at 233-
34. California’s criminal syndicalism statute
outlawed “advocating, teaching or aiding and
abetting the commission of crime, sabotage ... or
unlawful acts of force or violence ... as a means of
accomplish-ing a change in industrial ownership or
control, or effecting any political change.” WALKER at
43; FONER at 178.

j. Between 1919 and 1921, over 500 people were

arrested in California under the new law; another
thousand suspected radicals were arrested in other
states. Prosecutions went even farther than the
Supreme Court’s “clear and present danger” test;
many were based on mere membership in a radical
group. WALKER at 43.

k. The arrests of two Communists in November 1919—

Benjamin Gitlow in New York and Charlotte Whitney
in California—eventually reached the Supreme Court
as major First Amendment cases. Id. at 43.

l. From November 1919 through January 1920, the

Bureau of Investigation conducted a series of mass
arrests known as the “Palmer Raids.” One such raid,
conducted simultaneously in 12 different cities,
targeted the Union of Russian Workers and
produced 300 arrests. PRESTON at 216; WALKER at 43;
MURRAY at 196-97; JAFFE at 179-80.

m. On the night of January 2, 1920, the Justice

Department conducted simultaneous raids in 33
cities, arresting over 4,000 people—based on only

38
 the slightest suspicion of a Russian heritage or
leftist political outlook. PRESTON at 220-21; WALKER
at 44; JAFFE at 188-89; MURRAY at 213. The
Washington Post expressed its approval: “There is no
time to waste on hair-splitting over infringement of
liberty.” WALKER at 44.

n. Five days later, the Red Scare reached its climax

when the New York legislature refused to seat five
Socialists elected to the lower house, with the
speaker of the assembly denouncing the Socialist
platform as “absolutely inimical to the best interests
of the State of New York.” JAFFE at 145; MURRAY at
236; WALKER at 44. The drive to purify legislatures
had begun two months earlier when Congress
refused to seat Socialist Party leader Victor Berger,
and when he was reelected, he was denied his seat
again. MURRAY at 226-29; WALKER at 44.

6. Gitlow v. New York, 268 U.S. 652 (1925)

a. Sustaining the conviction of Defendant Benjamin

Gitlow, a founder of the American Communist Party,
under New York’s Criminal Anarchy Law, for writing
and disseminating a pamphlet, The Left Wing
Manifesto, that advocated revolution in the abstract
(stressing the need for “revolutionary mass action”)
but fell short of urging any specific, immediate
illegal action.

b. Note that Gitlow is another “big fish,” like Debs

(presidential candidate for the Socialists) and
Schenck (Socialist Party General Secretary).

c. Gitlow’s Significance:

(1) For the majority’s holding (id. at 666) that the

First Amendment applies to the States via the
Fourteenth Amendment’s Due Process Clause—
a huge victory for free speech, but cold comfort
for Mr. Gitlow, who went off to jail nonetheless.

(2) For Holmes’s famous dissent (“Every idea is an

incite-ment.”) (id. at 673):

39
 “It is said that this manifesto was more than a
theory, that it was an incitement. Every idea is
an incitement. It offers itself for belief and if
believed it is acted on unless some other belief
outweighs it or some failure of energy stifles
the movement at its birth. The only difference
between the expression of an opinion and an
incitement in the narrower sense is the
speaker’s enthusiasm for the result. Eloquence
may set fire to reason. But whatever may be
thought of the redundant discourse before us it
had no chance of starting a present
conflagration. If in the long run the beliefs
expressed in proletarian dictatorship are
destined to be accepted by the dominant forces
of the community, the only meaning of free
speech is that they should be given their
chance and have their way.”

d. In his dissent (id. at 673), Holmes stresses the need

for imminent harm under his articulation of the
“clear and present danger” test. The defendant’s
pamphlet, he asserts, lacked the call for an
immediate violation of law that might have made
this a close case.

e. In an approach that prefigures the 1969

Brandenburg test, Holmes focuses not only on
whether the defendant called for an immediate
revolt, but also on whether his exhortation was
LIKELY to trigger a revolt: “If the publication of this
document had been laid as an attempt to induce an
uprising against government at once and not at
some indefinite time in the future it would have
presented a different question. [Then the issue
would have been] whether there was any danger that
the publication could produce any result, or in other
words, whether it was not futile and too remote from
possible consequences. [But] it is manifest that
there was no present danger of an attempt to
overthrow the government by force on the part of the
admittedly small minority who shared the
defendant’s views.” Id. at 673 (emphasis added).

7. Whitney v. California, 274 U.S. 357 (1927)

40
a. Unanimously sustaining the California Criminal
Syndicalism Act conviction of a woman who merely
attended the conven-tion of, and sought to help
organize, a new political party: the California branch
of the Communist Labor Party.

b. Whitney is significant for the famous concurring

opinion by Justice Louis Brandeis, in which:

(1) Brandeis observed that the remedy for

“noxious” ideas is NOT to suppress them but to
repudiate them with MORE speech: “the fitting
remedy for evil counsels is good ones” (id. at
375); and “the remedy to be applied is more
speech, not enforced silence” (id. at 377).

(2) Brandeis synthesized the self-governance and

search-for-truth rationales as a powerful
philosophical justifica-tion for broadly
construing the First Amendment (id. at 375):

“Those who won our independence believed

that the final end of the state was to make men
free to develop their faculties, and that in its
government the deliberative forces should
prevail over the arbitrary. They valued liberty
both as an end and as a means. They believed
liberty to be the secret of happiness and
courage to be the secret of liberty. They
believed that freedom to think as you will and
to speak as you think are means indispensable
to the discovery and spread of political truth;
that without free speech and assembly
discussion would be futile; that with them,
discussion affords ordinarily adequate
protection against the dissemination of noxious
doctrine; that the greatest menace to freedom
is an inert people; that public discussion is a
political duty; and that this should be a
fundamental principle of the American
government.”

(3) Brandeis argued that free speech promotes

political stability by affording a safety valve for

41
 dissent, and he cautioned that widespread
suppression of speech can destabilize society
(id. at 375):

“[The Framers] recognized the risks to which

all human institutions are subject. But they
knew that order cannot be secured merely
through fear of punishment for its infraction;
that it is hazardous to discourage thought,
hope and imagination; that fear breeds
repression; that repression breeds hate; that
hate menaces stable government; that the path
of safety lies in the opportunity to discuss
freely supposed grievances and proposed
remedies; and that the fitting remedy for evil
counsels is good ones.”

(4) Finally, Brandeis revised and made more

speech-protective the “clear and present
danger” test—ratcheting up the requirement of
imminent danger and adding the requirement
that the potential harm posed by the speech
must rise to the level of “serious evil” (id. at
376):

“Fear of serious injury cannot alone justify

suppression of free speech and assembly. Men
feared witches and burnt women. It is the
function of speech to free men from the
bondage of irrational fears. To justify
suppression of free speech there must be
reasonable ground to fear that serious evil will
result if free speech is practiced. There must be
reasonable ground to believe that the danger
apprehended is imminent. There must be
reasonable ground to believe that the evil to be
prevented is a serious one.”

8. Gradually, But Only Briefly (1927-1937), the Supreme

Court Relaxes Its Grip on Subversive Organizations: Fiske,
Stromberg, DeJonge, and Herndon

a. Fiske v. Kansas, 274 U.S. 380 (1927)

42
 (1) Refusing to criminalize mere membership in an
organization, the Industrial Workers of the
World (IWW), whose ultimate goal was the
revolt of the working class.

(2) Overturning the criminal syndicalism

conviction of an IWW organizer—for
insufficient evidence—where the government’s
only proof was defendant’s possession of the
preamble to the IWW constitution, which
advocated the need for class struggle between
“the working class and the employing class,”
resulting in workers “tak[ing] possession of the
earth and the machinery of production.” Id. at
382-83.

b. Stromberg v. California, 283 U.S. 359 (1931)

(1) Overturning the conviction of a Youth

Communist League member by striking down a
statute that criminalized the display of any “red
flag, banner, or badge ... [employed] as a sign,
symbol, or emblem of opposition to organized
government.” Id. at 361.

(2) The Court explained that the law might be

construed to prohibit “peaceful and orderly
opposition to government by legal means” and
thus curtail “the opportunity for free political
discussion.” Id. at 369.

(3) Stromberg was a milestone in First Amendment

history: It was the first time, since the
Amendment’s ratification in 1791, that the
Court had ever invoked the Speech Clause to
strike down a statute.

c. DeJonge v. Oregon, 299 U.S. 353 (1937)

(1) Refusing to criminalize mere membership in an

organization, the Communist Party, whose
ultimate goal was the overthrow of democratic
government.

43
 (2) Reversing the criminal syndicalism conviction
of a defendant who had merely assisted in the
conduct of a public meeting, held under the
auspices of the Communist Party, to support a
longshoremen’s strike.

(3) Since none of the speakers at this meeting had

advocated violence, the prosecution had been
based entirely on the defendant’s Communist
Party member-ship.

d. Herndon v. Lowry, 301 U.S. 242 (1937)

(1) Likewise refusing to criminalize mere

membership in, or solicitation of new members
for, the Communist Party.

(2) Overturning the conviction of Angelo Herndon,

a black man who acted as a Communist Party
organizer in Georgia. Due to his position in the
Communist Party, Herndon was convicted of
attempting to incite an insurrection—because
the Party advocated “self-determination” for
areas in the South with predominantly black
populations. But there was no evidence that
Herndon had personally advocated this
program or urged it upon anyone he tried to
enlist in the Party. ANTHONY LEWIS, FREEDOM
FOR THE THOUGHT THAT WE HATE 110 (2005).

(3) The only evidence against him were the

pamphlets found in his possession—which
demanded federal unemployment insurance,
social security, emergency relief for farmers,
and equal rights for blacks, but contained no
references to violent revolution.

(4) Writing for a 5-4 majority, Justice Owen J.

Roberts declared that Herndon's “membership
in the Communist Party and his solicitation of a
few members wholly fail to establish an attempt
to incite others to insurrection. ... In these
circumstances, to make membership in the
party and solicitation of members for that party
a criminal offense, punishable by death, in the

44
 discretion of a jury, is an unwarranted invasion
of the right of freedom of speech.” 301 U.S. at
261.

9. McCarthyism (1950-1954)

a. “I have here in my hand a list of 205 [government

employees] known to the Secretary of State as being
members of the Communist Party and who
nevertheless are still working and shaping the policy
of the State Department.” With this speech on
February 9, 1950, Wisconsin Senator Joseph
McCarthy stepped onto the national stage. WALKER
at 197.

b. Events in the spring of 1950 brought the cold war to

a new peak. On June 25, North Korean troops
invaded South Korea, and so the cold war became a
shooting war. On July 17, the FBI arrested Julius and
Ethel Rosenberg for stealing nuclear bomb secrets
for the Soviet Union. Russia had exploded its first
bomb the previous September, and the confession of
British scientist Klaus Fuchs confirmed the existence
of an American spy ring. The sequence of events
inflamed public fear of Communist spies. Congress
responded by enacting the Subversive Activities
Control Act of 1950, which virtually outlawed the
Communist Party. Id. at 197.

c. Popularly known as the McCarran Act, it required

Communist and “Communist-action” organizations
to register with the new Subversive Activities Control
Board (SACB) and to disclose their officers, finances,
and membership. In addition, their mail had to carry
the label “Communist organization.” Individual
members were ineligible for passports, were barred
from government employment, and were required to
register with the SACB—which raised a Fifth
Amendment issue, as registration would expose the
individual to penalties under this and other laws. Id.
at 198.

d. Finally, the McCarran Act authorized American

concentration camps. The emergency detention
section empowered the president to declare an

45
 internal security emergency in case of invasion,
declaration of war, or domestic insurrection, after
which the attorney general could detain any person
for whom there was “reasonable ground to believe
that such person probably will engage in, or
probably will conspire with others to engage in, acts
of espionage or sabotage.” This section was
sponsored by liberal senators Hubert Humphrey and
Estes Kefauver, who were anxious to prove their anti-
Communist credentials. Id. at 198.

e. The McCarran Act never achieved its stated goals.

Predictably, the Communist Party did not register
voluntarily, so the attorney general directed the
SACB to compel it to do so—prompting complex
litigation that was not resolved by the Supreme
Court until 1961. Id. at 199.

f. Frustrated by the failure of the McCarran Act,

Congress passed the even more repressive
Communist Control Act of 1954. Declaring that the
Communist Party was “in fact an instrumentality of a
conspiracy to overthrow the Government of the
United States,” the Act expressly “outlawed”
domestic Communist organizations. Id. at 199.

g. Federal and state legislatures formed Un-American

Activities Committees, which subpoenaed witnesses
to inquire about their political beliefs and
affiliations. Witnesses who invoked the Fifth
Amendment were jailed for contempt and/or faced
immediate firing by their employers. Loyalty oaths
came to be required for teaching licenses and
membership in the American Bar Association. Public
school teachers who refused to sign a loyalty oath or
invoked the Fifth Amendment lost their jobs.
RICHARD M. FRIED, NIGHTMARE IN RED: THE MCCARTHY
ERA IN PERSPECTIVE 4, 68-78, 99-103, 105-11 (1990);
CEDRIC BELFRAGE, THE AMERICAN INQUISITION, 1945-
1960: A PROFILE OF THE MCCARTHY ERA 186, 211, 222-
23 (1973).

h. A mania for loyalty oaths swept the country. Fifteen

states enacted loyalty oaths for public employees in
1949 alone. Four years later there were oaths in 39

46
 states, the federal government, and many local
governments. Most resembled the 1947 Taft-Hartley
Act, which required labor union officials to swear, “I
am not a member of the Communist Party or
affiliated with such party,” and “I do not believe in,
and I am not a member of nor do I support any
organization that believes in or teaches the
overthrow of the United States government by force
or by any illegal or unconstitutional methods.”
WALKER at 188.

i. Senator McCarthy finally fell from grace when, on

March 9, 1954, CBS journalist Edward R. Murrow
broadcast a documentary that challenged his
methods and called into question whether he was
harming the country. The program galvanized the
nation, giving confidence to those who had been
afraid to speak out against McCarthy. Three years
later, McCarthy was dead, having been investigated
and censured by the Senate. Id. at 212.

10. Dennis and the War on Communism

a. Dennis v. United States, 341 U.S. 494 (1951),

upholds the Smith Act convictions of the national
leaders of the Communist Party. The trial lasted nine
months and yielded a record of 16,000 pages.

b. Note the charge in Dennis: the Defendants were

charged NOT with advocating, but with conspiring to
advocate, the over-throw of government. It would
seem that conspiring to advocate a revolution is one
step removed from actually advocating it. That
distinction did not trouble the Court.

c. The Significance of Dennis: Even in purporting to

adopt the Holmes-Brandeis formulation, this case
adopts a watered-down version of the “clear and
present danger” test, paving the way, it seemed, for
punishing mere membership in the Communist
Party.

d. The jury found—and the appellate court deemed the

record amply to demonstrate—that the Defendants
“intended to initiate a violent revolution whenever

47
 the propitious occasion appeared.” 341 U.S. at 497.
On these facts, the Holmes-Brandeis test would
never support a conviction, because there is no
suggestion of an imminent revolt.

e. Chief Justice Vinson’s watered-down version of

“clear and present danger” rejects the type of
imminence requirement that later appeared in
Brandenburg.

f. For Vinson, the fact that Defendants made no

attempt to overthrow the government does not
matter; they were well-organized and possibly in
position to make such an attempt. That is enough.
Courts should not have to consider the “immediacy”
of such an attempt or its “probability of success.” Id.
at 509.

g. Vinson asserts that the clear and present danger test

“cannot mean that before the Government may act,
it must wait until the putsch is about to be executed,
the plans have been laid, and the signal is awaited.”
Id. at 509. These circumstances likely DO fall within
Brandenburg’s imminence requirement, since they
describe a revolt that is ready to proceed RIGHT
NOW. But then Vinson goes on to assert that mere
indoctrination can be criminalized: “If Government
is aware that a group aiming at its overthrow is
attempting to indoctrinate its members and commit
them to a course whereby they will strike when the
leaders feel the circumstances permit, action by the
Government is required.” Id. at 509. Indoctrination
happens long before any imminent law-breaking, so
this statement is inconsistent with Brandenburg,
which the Court handed down 18 years later. (The
“putsch” quotation sometimes appears in modern
First Amendment decisions, even though Dennis is
no longer good law, probably because the quote can
be reconciled with the Brandenburg test.)

h. Black, in dissent, foresees a calmer time when the

damage done by this case to the First Amendment
will be rectified.

48
i. Douglas, in dissent, observes that a conviction for
teaching the techniques of sabotage and
assassination might be appro-priate, but the record
here has no such evidence. Defendants merely
taught Marxist-Leninist doctrine—from books that
lawfully remain on American library shelves. How,
then, can we criminalize the use of those books?

j. Evoking the Brandeis concurrence in Whitney—

which stressed that the defendant’s speech must
pose an imminent danger of harm that rises to the
level of “serious evil,” 274 U.S. at 376—Douglas
asserts that Communism poses no threat in this
country; its ideas are rejected. How, then, do these
ideas pose a “clear and present danger,” warranting
their punishment? Dennis, 341 U.S. at 588 (Douglas,
J., dissenting).

k. Yates v. United States, 354 U.S. 298 (1957),

drastically limited the Smith Act by overturning the
convictions of the “second tier” of the Communist
Party leadership.

l. Writing for the Court in Yates, Justice Harlan drew a

sharp distinction between advocacy leading to
government over-throw and teaching a course of
action as an “abstract doctrine.”

m. Though Yates did not overturn Dennis, it halted

further Smith Act prosecutions. In effect, Harlan
REWRITES Dennis even while purporting to follow it
and to construe the statutory text of the Smith Act.

n. Harlan’s opinion comes close to the notion that

advocacy of ideas, in the absence of direct
incitement, is protected by the First Amendment. He
stresses that a conviction cannot be based on speech
that urges followers to believe something; it must
urge them to do something.

o. Congressional conservatives were outraged by the

Yates result. WALKER at 243.

p. Indiana Senator William Jenner introduced a

sweeping “court-stripping” bill to overturn Yates. It

49
 would bar the Supreme Court from hearing appeals
in all cases involving congressional investigating
committees, the federal loyalty program, state anti-
subversive laws, and the acts of state courts, school
boards, and bar admission controversies involving
alleged subversives. Id. at 243.

q. The key player in Congress was Senate Majority

Leader Lyndon B. Johnson. Because of his
presidential aspirations, he shifted loyalty from the
southern bloc to the northern liberal Democrats,
steering the 1957 Civil Rights Act through Congress
and helping to defeat the court-stripping bills.
WALKER at 243-44; ROBERT A. CARO, MASTER OF THE
SENATE 832, 1030-33 (2002).

r. Scales v. United States, 367 U.S. 203 (1961), further

limited the Smith Act by precluding prosecution for
mere membership in a subversive group—requiring
“active,” “knowing” participation in illegal ends.

s. Thus, Scales effectively undercut the continued

vitality of Whitney to the extent that Whitney
compromised association-al rights regarding mere
membership in subversive organiza-tions.

t. Noto v. United States, 367 U.S. 290 (1961) (reversing

conviction for membership in the Communist Party
where evidence did not establish that the Party had
engaged in illegal advocacy); id. at 297-98 (“[T]he
mere abstract teaching ... of the moral propriety or
even moral necessity for a resort to force and
violence, is not the same as preparing a group for
violent action and steeling it to such action.”).

11. Four Points on the Spectrum of Illegal Advocacy

a. The FACTS in the foregoing cases may be placed at

four discrete points along a “spectrum” of illegal
advocacy, moving from a REMOTE threat of harm
toward an IMMINENT threat of harm:

(1) The defendant criticizes government policy, but

does not expressly urge disobedience (e.g.,
Debs).

50
 (2) The defendant urges her audience to accept the
principle that commission of unlawful acts may
be moral or necessary to achieve political goals
(e.g., Schenck, Noto).

(3) The defendant expressly advocates unlawful

acts at some indefinite point in the future (e.g.,
Gitlow, Dennis).

(4) The defendant expressly advocates, right NOW,

the commission of achievable unlawful acts
(e.g., O’Neill, brandishing sticks of dynamite on
the front steps of the R.I.T.A. office, exhorts his
followers to blow up the building right now).

12. The Road to Brandenburg

a. Kingsley International Pictures Corp. v. Regents of

New York, 360 U.S. 684 (1959): holding that N.Y.
cannot withhold an exhibition license to the film of
Lady Chatterley’s Lover just because its “theme” is
that adultery is “proper behavior.”

b. Bond v. Floyd, 385 U.S. 116 (1966): holding that

Julian Bond could not be denied his duly-elected seat
in the Georgia House of Representatives merely for
expressing solidarity with opponents of the Vietnam
War and draft.

13. Key Points About Brandenburg v. Ohio, 395 U.S. 444

(1969) (over-turning a Ku Klux Klansman’s conviction
under Ohio’s Criminal Syndicalism Act where defendant
was videotaped at a cross-burning Klan rally giving a
speech in which he declared (id. at 446): “If our
[government] continues to suppress the white, Caucasian
race, it’s possible that there might have to be some
revengence [sic] taken.”).

a. Let’s reiterate Brandenburg’s newly-minted test (id.

at 447): Advocacy of illegal conduct may be
criminalized only when:

(1) it is DIRECTED to inciting or producing

51
 (2) and is LIKELY to incite or produce

(3) IMMINENT lawless action.

b. Brandenburg’s “unknown” author (Justice Abe

Fortas wrote the per curiam opinion) purports to be
stating settled law. But Brandenburg was something
utterly new; it was a departure from settled law—
easily the most speech-protective test ever devised,
and seems implicitly to overrule Schenck, Frohwerk,
Debs, Abrams, Gitlow, and Dennis.

(1) Note, however, that only Whitney is expressly

overruled in Brandenburg.

c. Subsequent decisions—e.g., Hess v. Indiana, 414 U.S.

105 (1973), and NAACP v. Claiborne Hardware Co.,
458 U.S. 886 (1982)—confirm that Brandenburg was
meant to redefine the law.

d. Finally, Brandenburg NEVER MENTIONS “clear and

present danger.” What does this mean?

(1) Given the Court’s preoccupation with those

words during the preceding 50 years, this
omission CANNOT have been inadvertent.

(2) From the initial dictum in Schenck to the

bewildering range of opinions in Dennis, the
words took on a life of their own and became a
verbal trap—requiring the Court constantly to
redefine the phrase.

(3) In Brandenburg, the “clear and present

danger” test is JETTISONED.

14. Finer Points in Applying Brandenburg

a. When applying Brandenburg’s DIRECTED-to-inciting

require-ment, remember that exaggeration or
hyperbole in the speaker’s statement may indicate
that she is not seriously trying to persuade her
listeners to violate the law. If her words, taken
literally, seem far-fetched, then it is less likely that
they will satisfy this prong of the test.

52
 b. When applying the LIKELY-to-incite prong, bear this
in mind: If the speaker is asking her listeners to do
something so complex or dangerous that they will
not likely undertake it without additional
information, special tools, or further persuasion,
then Brandenburg’s LIKELY-to-incite prong is
probably not satisfied.

15. Rice v. Paladin Enterprises, 128 F.3d 233 (4th Cir. 1997)

a. Background

(1) A publisher distributes a book, entitled HIT

MAN, that extols the lifestyle of contract
murderers and offers detailed instructions on
how to commit a contract murder.

(2) The book explains, for example, how to make a

silencer, how to break into a home, how to
shoot a victim to ensure he is dead, and how to
dispose of the weapon.

(3) Following these instructions precisely, X kills V

in a contract murder.

(4) Thereafter, V’s survivors sue the publisher of

HIT MAN for damages.

b. Questions

(1) Should Brandenburg govern this situation?

(2) Can the publisher be held liable consistent with

the First Amendment?

c. Outcome

(1) The Fourth Circuit sided with the victim’s

family, ruling that Brandenburg affords no
protection for a murder manual of this sort,
and that the publisher could be held liable for
money damages without any offense to the First
Amendment.

53
 (2) “[T]his book,” held the court, “constitutes the
archetypal example of speech which, because it
methodically and comprehensively prepares
and steels its audience to specific criminal
conduct through exhaustively detailed
instructions on the planning, commission, and
conceal-ment of criminal conduct, finds no
preserve in the First Amendment.” 128 F.3d at
256.

d. Whether or not you agree with this result, the Fourth

Circuit’s analysis is deeply flawed:

(1) It views Brandenburg as a SHIELD that affords

“heightened” protection for “abstract
advocacy,” id. at 255.

(2) As we’ve seen, this is wrong. Brandenburg is

not a shield; it narrowly defines an
UNPROTECTED category of speech: advocacy of
imminent lawless conduct.

(3) After misidentifying Brandenburg as a shield,

the court goes out of its way to minimize the
breadth of that shield, using selective
quotation to conclude that Brandenburg
protects ONLY “‘the mere abstract teaching ...
of the moral propriety or ... moral necessity’ for
resort to lawlessness,” id. at 263-64 (citations
omitted).

e. This interpretation of Brandenburg is wrong for two

reasons:

(1) It completely ignores Brandenburg’s stress on

“incite-ment to imminent lawless action.” 395
U.S. at 447 (em-phasis added).

(2) Its assertion that only “abstract teaching[s]”

are afforded protection is flatly contradicted by
Supreme Court cases applying Brandenburg—
cases in which the Court extended protection to
statements that were hardly “abstract,” e.g.,

54
 (a) Hess v. Indiana, 414 U.S. 105, 107 (1973)
(“We’ll take the fucking street later!”);
and

(b) NAACP v. Claiborne Hardware Co., 458

U.S. 886, 902 (1982) (“If we catch any of
you going in any of them racist stores,
we’re gonna break your damn neck.”).

(3) In each case, the Supreme Court held that

defendant’s speech did not fall within the
punishable boundaries of Brandenburg because
it called not for imminent lawless action but
illegal conduct down the road.

f. This brings us back to the difficult analytical

question in the HIT MAN case:

How do we apply Brandenburg’s requirement of

IMMINENT lawless action to a BOOK that is simply
sitting on a shelf waiting to be read? Can a BOOK
ever present an “imminent” threat of harm?

g. If you’d like to read Hit Man (please don’t use it to

kill anyone), you’ll find it on the Web. As recently as
December 15, 2023, I found it posted at:

http://thehomegunsmith.com/hitman.shtml

* * *

B. Speech That Provokes a Hostile Audience Reaction

1. Terminiello v. City of Chicago, 337 U.S. 1 (1949)

a. The Supreme Court here reversed a breach-of-the-

peace conviction of a widely vilified speaker whose
anti-Semitic and racially inflammatory speech
produced a near riot.

b. Calling his antagonists “‘slimy scum,’ ‘snakes,’ [and]

‘bedbugs,’” 337 U.S. at 26, the defendant delivered a

55
 venomous speech to an auditorium packed with 800
supporters, id. at 3, while outside, straining against
a cordon of police, “‘a surging, howling mob’” of one
thousand people “‘hurl[ed] epithets at those who
would enter and tried to tear their clothes off,’” id.
at 16.

c. At trial, the defendant’s conviction followed a jury

instruction that authorized punishment for speech
that “‘stirs the public to anger, invites dispute,
brings about a condition of unrest, or creates a
disturbance.’” Id. at 3.

d. In one of the most famous passages in all of First

Amendment law, Justice Douglas, writing for the
Court, held that this jury instruction offended the
Constitution—because “a function of free speech
under our system of government is to invite
dispute.” Id. at 4 (emphasis added).

e. Here is that famous passage in full. Justice Douglas

wrote (id. at 4-5) (emphasis added) (citations
omitted):

“Accordingly a function of free speech under our

system of government is to invite dispute. It may
indeed best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger.
Speech is often provocative and challenging. It may
strike at prejudices and preconceptions and have
profound unsettling effects as it presses for
acceptance of an idea. That is why freedom of
speech, though not absolute, is nevertheless
protected against censorship or punishment, unless
shown likely to produce a clear and present danger
of a serious substantive evil that rises far above
public inconvenience, annoyance, or unrest. There is
no room under our Constitution for a more
restrictive view. For the alternative would lead to
standardization of ideas either by legislatures,
courts, or dominant political or community groups.”

2. Cantwell v. Connecticut, 310 U.S. 296 (1940)

56
 a. Setting aside breach-of-the-peace conviction of
defendant, a Jehovah’s Witness, who, in the course of
his sidewalk proselytizing, incensed passers-by in
playing a phonograph record that expressed
virulently anti-Catholic sentiments.

b. Holding that defendant, whose conduct was neither

truculent nor abusive, could not be convicted for
breaching the peace based on the hostile reaction of
his audience to the sentiments he was
disseminating.

c. Observing that sharp differences arise in religion

and politics—and that, in an effort to persuade,
speakers sometimes resort to exaggeration and
vilification. But these excesses must be tolerated to
vouchsafe our liberty of expression.

3. In Texas v. Johnson, 491 U.S. 397 (1989), the Supreme

Court declared: “If there is a bedrock principle underlying
the First Amendment, it is that the government may not
prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable.” Id. at 414.

4. There is an important difference between the illegal

advocacy cases (the Brandenburg line of precedent) and
the hostile audience cases:

a. In the illegal advocacy cases, the speech is

suppressed because it may successfully persuade the
audience to break the law.

b. In the hostile audience cases, the speech is punished

because it ENRAGES the audience; the speech is
punished not because it persuades, but because it
provokes.

c. And there is one more important difference: In the

illegal advocacy cases, the audience OBEYS the
speaker, breaking the law in compliance with her
exhortations. In the hostile audience situation, the
audience REBELS against the speaker, attacking her
and destroying property in angry reaction to her
ideas.

57
5. Feiner v. New York, 340 U.S. 315 (1951)

a. Upholding the disorderly conduct conviction of a

college student who, standing atop a soapbox and
using a loudspeaker, delivered a street-corner
harangue to a crowd of 80 people in which he made
derogatory remarks about President Truman, the
American Legion, and the Mayor of Syracuse, and
attempted to inflame the blacks in the audience
against the whites.

b. Holding that the conviction could be sustained based

on the trial court’s findings that defendant
encouraged his audience to become racially divided
into hostile camps, that the gathering crowd was
interfering with traffic, and that defendant
repeatedly refused police requests to cease talking.

c. Feiner stands alone among the Supreme Court’s

hostile audience precedents in upholding the
punishment of an unpopular speaker.

d. But it is doubtful that Feiner is still good law as to

the hostile audience doctrine. Though never
overruled, Feiner was certainly marginalized by the
Supreme Court’s subsequent hostile audience
decisions in the Civil Rights Trilogy: Edwards v.
South Carolina, 372 U.S. 229 (1963), Cox v.
Louisiana, 379 U.S. 536 (1965), and Gregory v. City
of Chicago, 394 U.S. 111 (1969), where the Court
overturned the convictions of equally unpopular
speakers who prompted equally hostile reactions by
equally sizable crowds.

e. More important, Feiner is really an incitement case,

not a hostile audience case, because the speaker was
exhorting the blacks in the audience to attack the
whites (he was “endeavoring to arouse the Negro
people against the whites,” Feiner, 340 U.S. at 317).
Edwards distinguished Feiner on this basis. Edwards,
372 U.S. at 236. And the majority opinion in Feiner
repeatedly refers to incitement. Feiner, 340 U.S. at
321 (“[H]ere the speaker passes the bounds of
argument or persuasion and undertakes incitement
to riot.”); id. at 320 (“No one would have the

58
 hardihood to suggest that the principle of freedom
of speech sanctions incitement to riot.”).

f. Today, Feiner’s chief significance may be found in

the eloquent dissenting opinions of Justice Black
and Justice Douglas. These dissents have exerted a
powerful influence on the CURRENT state of the
hostile audience doctrine.

g. Both dissents stress that audience unrest is to be

expected at any outdoor speech where controversial
topics are discussed, so police cannot silence the
speaker at the first sign of audience agitation, anger,
or heckling. See 340 U.S. at 325-26 (Black, J.,
dissenting) (“As to the existence of a dangerous
situation on the street corner, it seems farfetched to
suggest that the ‘facts’ show any imminent threat of
riot or un-controllable disorder. It is neither unusual
nor unexpected that some people at public street
meetings mutter, mill about, push, shove, or
disagree, even violently, with the speaker. Indeed, it
is rare where controversial topics are discussed that
an outdoor crowd does not do some or all of these
things.”).

h. And both dissents assert that in a hostile audience

situation the police have an affirmative duty to
protect the unpopular speaker.

i. Such a duty—though never expressly adopted or

rejected by a Supreme Court majority—HAS been
consistently recognized by the lower federal courts.
See, e.g., Bible Believers v. Wayne County, 805 F.3d
228 (6th Cir. 2015) (en banc) (hostile audience case
in which self-described Christian evangelists
triggered an angry reaction by large groups of
Muslims at an Arab culture festival when they
asserted that Mohammed was a false prophet and
child molester; court holds that police officers failed
to satisfy their duty to protect the evangelists).

j. Why is Feiner usually identified as a hostile audience

case and not an incitement case? Because the
majority opinion specifically uses the term “hostile
audience” in conceding that mere “murmurings” in

59
 the crowd do not justify silencing a controversial
speaker. Id. at 320. And because one member of the
crowd specifically threatened to haul the speaker off
the platform. Id. at 330-31 (Douglas, J., dissenting).
But right after acknowledging that “the ordinary
murmurings ... of a hostile audience” do not justify
“the suppression of unpopular views,” the majority
opinion stresses that “we are not faced here with
such a situation.” Id. at 320-21. What situation are
we faced with? The majority opinion replies that
police are not “powerless to prevent a breach of the
peace” when “as here the speaker passes the bounds
of argument or persuasion and undertakes
incitement to riot.” Id. at 321 (emphasis added).
Thus, a close reading of the opinion suggests that
the majority itself regarded Feiner as an incitement
case, not a hostile audience case.

6. Edwards v. South Carolina, 372 U.S. 229 (1963), set aside

breach-of-the-peace convictions of 187 civil rights
protesters who, after marching peacefully on a sidewalk
around the South Carolina State House grounds, refused a
police order to disperse and, after 15 minutes of singing
and speechmaking, were arrested. This demonstration—in
which marchers carried placards reading “Down with
Segregation,” “I Am Proud to be a Negro,” and similar
messages—produced a tense crowd of 200 to 300
onlookers. The Court held that the state cannot
criminalize “the peaceful expression of unpopular views.”
379 U.S. at 237.

7. Cox v. Louisiana, 379 U.S. 536 (1965), set aside the

breach-of-the-peace conviction of a civil rights activist
who led a peaceful march by 2000 students to a
courthouse where, with songs, prayers, and speeches, they
protested the arrest and incarceration of fellow activists,
who were being held in the adjacent jail. Urging his
charges to dine at nearby segregated lunch counters, the
defendant prompted some “muttering” and “grumbling”
among the 100 to 300 white onlookers positioned across
the street. The demonstration ended in chaos when police
fired tear gas at the students after defendant refused a
dispersal order. The Court struck down—on overbreadth
grounds—Louisiana’s breach-of-the-peace statute, which

60
 “would allow persons to be punished merely for peacefully
expressing unpopular views.” 379 U.S. at 551.

8. Gregory v. City of Chicago, 394 U.S. 111 (1969),

overturned the disorderly conduct convictions of 85 civil
rights protesters whose march to and picketing before the
mayor’s residence produced a hostile reaction by 1000
onlookers. The Court held that the First Amendment
barred the protesters’ convictions where, pelted by rocks
and eggs, they remained peaceful throughout their
demon-stration and were arrested only after refusing a
police dispersal demand prompted solely by the
onlookers’ unruliness.

9. The Utility of the Heckler’s Veto Doctrine

a. The underlying rationale of the hostile audience

cases is to prevent a “heckler’s veto” of minority
opinions.

b. The idea here is to give minority viewpoints a chance

to enter the marketplace of ideas and gain
adherents.

c. This principle is traceable to James Madison’s idea

that we need a Bill of Rights to prevent the tyranny
of the majority. 2 THE BILL OF RIGHTS: A
DOCUMENTARY HISTORY 1029 (Bernard Schwartz ed.,
1971) (remarks of June 8, 1789, House of
Representatives).

d. In operation, the principle is by no means confined

to protecting only marginal or patently untenable
viewpoints.

e. Indeed, many ideas that are now popularly held

were, at one time, maintained by only a minority of
citizens. For example:

(1) Giving women the vote.

(2) Opposing government bans on the use of

contraception (recall Margaret Sanger, who
was arrested in 1912 for giving a lecture on
birth control).

61
 (3) Opposing racial segregation.

f. Thus, don’t be misled by the marginal nature of the

speech we usually see in the hostile audience cases—
e.g., Terminiello, Cantwell, and Skokie (involving
virulently racist, anti-Semitic, or anti-Catholic
sentiments).

g. There are equally important hostile audience cases

where the unpopular viewpoints that received
protection went on to win a majority of adherents.
For example:

(1) Racial Equality (Edwards, Cox, Gregory, and Dr.

Martin Luther King, Jr. Movement, Inc. v. City
of Chicago, 419 F. Supp. 667 (N.D. Ill. 1976));
and

(2) Opposition to the Vietnam War (Hurwitt v. City

of Oakland, 247 F. Supp. 995 (N.D. Cal. 1965)
(enjoining city officials from prohibiting a
parade intended to protest U.S. military
intervention in Vietnam—even though
plaintiffs’ previous marches had been disrupted
by angry spectators, including the Hell’s
Angels, who hurled tear gas bombs, broke
through a police cordon, ripped banners, and
disabled loudspeakers—where plaintiffs and
their followers had always remained
nonviolent)).

10. How Do We Analyze a Hostile Audience Case?

a. We know that Brandenburg is the test for illegal

advocacy cases.

b. It is certainly NOT the test for hostile audience

cases.

c. Brandenburg is ill-suited to the hostile audience

scenario because it focuses on whether the speech is
intended and likely to prompt others to violate the
law. It focuses on whether the speaker is trying to
EXHORT or PERSUADE her listeners to violate the

62
 law. This is completely different from the hostile
audience situation, in which the speaker’s
controversial message so inflames the audience that
they want to attack HER.

d. In the hostile audience context, we need an approach

that directly inquires whether it was the speaker’s
IDEA or OPINION that prompted audience unrest—
an approach that will not allow punishment for the
expression of unpopular views.

e. Such a perspective is eloquently expressed in

Terminiello.

f. Unfortunately, some lawyers and judges have

BLURRED the hostile audience and illegal advocacy
precedents.

g. Part of the confusion likely comes from the fact that

Terminiello, the fountainhead of the hostile
audience cases, awkwardly includes a reference to
“clear and present danger”—words that were
associated for nearly 50 years with the illegal
advocacy cases. The presence of those words in a
hostile audience case may well have caused a
blurring of the hostile audience and illegal advocacy
precedents. But make no mistake, those lines of
precedent are completely separate and distinct.

h. Terminiello’s reference to “clear and present

danger” comes in the most famous passage of that
opinion, 337 U.S. at 4-5 (emphasis added) (citations
omitted):

“[A] function of free speech under our system of

government is to invite dispute. It may indeed best
serve its high purpose when it induces a condition of
unrest, creates dissatisfaction with conditions as
they are, or even stirs people to anger. Speech is
often provocative and challenging. It may strike at
prejudices and preconceptions and have profound
unsettling effects as it presses for acceptance of an
idea. That is why freedom of speech, though not
absolute, is nevertheless protected against
censorship or punishment, unless shown likely to

63
 produce a clear and present danger of a serious
substantive evil that rises far above public
inconvenience, annoyance, or unrest.”

i. Terminiello is still good law, notwithstanding its

outdated use of the words “clear and present
danger.” When applying Terminiello and its progeny,
do NOT use the “clear and present danger” TEST
that Brandenburg discarded. Instead, use
Terminiello for the basic proposition that a speaker
may not be punished for expressing opinions or
ideas that inspire an angry crowd reaction.
(Remember: Terminiello was written in 1949—20
years BEFORE Brandenburg got rid of the “clear and
present danger” test.)

j. When examined in its proper context, Terminiello’s

reference to “clear and present danger” narrowly
pertains only to a hostile crowd reaction that is
uncontrollable under the circumstances.

k. Summing Up the Hostile Audience Cases: Ultimately,

the hostile audience cases permit the following
conclusions. Terminiello and its progeny make clear
that a speaker cannot be punished for an angry
reaction to her ideas—even, per Cantwell, if she
resorts to exaggeration or vilification in pressing her
beliefs. Though dictum in Cantwell suggests that
speech rights may necessarily be suspended in the
face of an ongoing and uncontrollable crowd
reaction, the police have an affirmative duty to
protect the unpopular speaker. This means that
police should arrest or disperse audience members
who are bent on violence. Only as a last resort
should police take the unpopular speaker into
protective custody.

11. The Current State of the Hostile Audience Doctrine:

Guidance on the Duty to Protect

a. The Sixth Circuit, sitting en banc, recently issued a

decision that lays out the current state of the hostile
audience doctrine and provides detailed guidance on
the police duty to protect the unpopular speaker.

64
b. Bible Believers v. Wayne County, 805 F.3d 228 (6th
Cir. 2015) (en banc) (hostile audience case in which
self-described Christian evangelists insulted large
groups of Muslims at an Arab culture festival,
proclaiming Mohammed a false prophet and child
molester, and asserting that Muslims will be damned
to hell if they fail to repent by rejecting Islam—this
message triggered an angry reaction by large
numbers of Muslim adolescents, who hurled eggs,
plastic bottles, and other debris at the evangelists
until law enforcement officers, who did little to
protect the evangelists, forced them to leave under
threat of arrest) (court holds that the officers
effectuated a heckler’s veto by compelling the
evangelists to leave; moreover, held the court, the
officers failed to satisfy their duty to protect the
evangelists from the lawless behavior of the rioters—
the First Amendment does not allow the government
to silence an unpopular speaker as a convenient
alternative to quelling a hostile audience).

c. Summing up existing precedent, the Bible Believers

court states: (1) police have a duty to protect the
unpopular speaker in a hostile audience situation;
(2) police may not remove the speaker due to safety
concerns until first making bona fide efforts to
protect the speaker by other, less restrictive means;
and (3) removing the speaker is a last resort, to be
used only when defending the speaker would
unreasonably subject officers to violent retaliation
and physical injury. 805 F.3d at 255.

d. The court holds that the officers in this case failed to

satisfy their duty to protect because they made
almost no effort to quell the adolescents’ lawless
behavior, and because the youths ceased hurling
projectiles on each of the rare occasions when an
officer did appear on the scene, demonstrating that
the crowd was not so uncontrollable as to justify
expelling the evangelists. Id. at 253-54.

e. When a peaceful speaker is confronted by a hostile

crowd, “the state may not silence the speaker as an
expedient alternative to containing or snuffing out

65
 the lawless behavior of the rioting individuals.” Id. at
252.

f. “Nor can an officer sit idly on the sidelines—

watching as the crowd imposes, through violence, a
tyrannical majoritarian rule—only later to claim that
the speaker’s removal was necessary for his or her
own protection.” Id. at 253.

g. “However, the Constitution does not require that the

officer go down with the speaker. If, in protecting
the speaker or attempting to quash the lawless
behavior, the officer must retreat due to risk of
injury, then retreat would be warranted.” Id. at 253
(citations and internal quotation marks omitted).

h. “The police may go against the hecklers, cordon off

the speakers, or attempt to disperse the entire crowd
if that becomes necessary. Moreover, they may take
any appropriate action to maintain law and order
that does not destroy the right to free speech by
indefinitely silencing the speaker.” Id. at 253.

12. FIGHTING WORDS: Chaplinsky v. New Hampshire, 315

U.S. 568 (1942) (recognizing, as a category of unprotected
speech, those “fighting words” that “by their very
utterance inflict injury or tend to incite an immediate
breach of the peace,” id. at 572, and upholding
defendant’s conviction—under a statute that, saved by the
narrowing construction of state courts, punished no more
than “fighting words”—where defendant called city
marshal “a God damned racketeer” and “a damned
Fascist,” id. at 569).

a. This case is significant for two reasons:

(1) recognizing the “fighting words” doctrine; and

(2) inaugurating the Court’s modern approach to

content-based restrictions on speech—
identifying certain “low value” categories of
speech (obscenity, defamation, and “fighting
words”) that do not enjoy the First
Amendment’s protection.

66
 b. Note the increasingly marginal role that the
“fighting words” doctrine has played in First
Amendment jurisprudence.

c. Chaplinsky is the first AND LAST decision in which

the Supreme Court has affirmed a “fighting words”
conviction.

d. In the wake of Cohen v. California, 403 U.S. 15

(1971) (the famous “Fuck the Draft” case), the
unprotected category of “fighting words” is now
confined to unambiguous invitations to brawl—
specifically directed by one individual to another.
The unprotected category of “fighting words” does
NOT extend to the situation in which one person
insults an entire group of people or makes
provocative statements to a crowd, not to an
individual.

13. Skokie

a. Village of Skokie v. National Socialist Party of

America, 51 Ill. App. 3d 279, 366 N.E.2d 347 (1977)
(declining to enjoin a group of Nazis from marching
through an Illinois suburb populated by hundreds of
Holocaust survivors);

b. id. at 287, 366 N.E.2d at 353 (even though the

government put on evidence showing that “if the
defendants ever appear in Skokie to demonstrate,
there ... is a virtual certainty that thousands of irate
Jewish citizens [will] physically attack [them],” the
court holds that the possible presence of a hostile
and violent audience is an impermissible
consideration in granting an injunction or
withholding a permit);

c. aff’d in part, rev’d in part, 69 Ill. 2d 605, 373 N.E.2d

21 (1978) (holding that appellate panel correctly
refused to enjoin the Nazi march but erred in
barring the Nazis from wearing their uniforms).

14. Snyder v. Phelps, 131 S. Ct. 1207 (2011)

67
a. Snyder v. Phelps is a TORT suit. What is a tort suit
doing in the midst of these hostile audience
prosecutions? Your authors introduce the case as
follows: “Suppose the Nazis had just marched in
Skokie. Could individual residents who were shocked
and outraged by their conduct have sued them for
damages for the intentional infliction of emotional
distress? Consider Snyder.”

b. In Snyder the Supreme Court rejected tort claims,

and overturned a $10 million jury verdict, against
the Westboro Baptist Church, a fundamentalist
congregation that pickets military funerals in the
belief that God hates and punishes the United States
for its tolerance of homosexuality, particularly in the
armed forces.

c. The bereaved father of a young soldier killed in Iraq

sued the church for intentional infliction of
emotional distress and other torts after church
members picketed the soldier’s funeral with placards
asserting, “God Hates the USA,” “Thank God for
9/11,” “Thank God for Dead Soldiers,” “God Hates
Fags,” “You’re Going to Hell,” and “Fags Doom
Nations.”

d. Chief Justice Roberts, writing for an 8-to-1 majority,

held that Westboro’s speech was entitled to special
First Amendment protection, and thereby trumped
the plaintiff’s tort claims, because it dealt with
matters of public concern and was communicated in
a public place, in full compliance with police
directives on how, where, and when the picketing
could be staged. 131 S. Ct. at 1218-19.

e. The picketers were confined to a 10-by-25-foot plot

of public land behind a temporary fence,
approximately 1,000 feet from the church where the
funeral was held; their signs were not visible to the
mourners, and they did not follow the funeral
procession to the cemetery; plaintiff did not see what
was written on their signs until later that night,
when he watched a news broadcast covering the
event. Id. at 1213-14.

68
 f. Chief Justice Roberts concluded his majority opinion
by observing: “Speech is powerful. It can stir people
to action, move them to tears of both joy and sorrow,
and—as it did here—inflict great pain. On the facts
before us, we cannot react to that pain by punishing
the speaker. As a Nation we have chosen a different
course—to protect even hurtful speech on public
issues to ensure that we do not stifle public debate.
That choice requires that we shield Westboro from
tort liability for its picketing in this case.” Id. at
1220.

* * *

C. Classified Information

1. Gag Orders on Press Coverage

a. Nebraska Press Association v. Stuart, 427 U.S. 539

(1976)

(1) Unanimously striking down a gag order on

press coverage of a rape-plus-murder trial.

(2) The injunction, issued by the trial judge, barred

newspapers and broadcasters from reporting
any confession by, or inculpatory information
about, the accused—including testimony
adduced in open court.

(3) In issuing this injunction, the judge was trying

to ensure that the defendant would receive a
fair trial. When the case reached the Supreme
Court, most of the Justices were convinced that
such a sweeping gag order on press coverage
would never be necessary to ensure a fair
criminal trial; lesser measures—like delaying
the trial, changing its venue, or placing special
emphasis on jury selection—would protect the
defendant without any threat to the First
Amendment. BOB WOODWARD, THE BRETHREN
510-11 (1979) (2005 paperback edition).

(4) Three Justices (Brennan, Marshall, and

Stewart) voted for an absolute ban on all press

69
 coverage gag orders issued to ensure a fair
trial. 427 U.S. at 572-73. A fourth Justice
(White) expressed “grave doubt” whether such
a prior restraint would ever be justified. Id. at
570.

(5) The majority opinion, by Chief Justice Burger,

did not take an absolutist position, but
observed, “Any prior restraint comes to this
Court with a ‘heavy presumption’ against its
constitutional validity,” id. at 558, and assert-
ed, “[P]rior restraints on speech and
publication are the most serious and the least
tolerable infringement on First Amendment
rights,” id. at 559.

(6) The test: “[Whether] the gravity of the ‘evil’

[posed by publication], discounted by its
improbability, justifies such invasion of free
speech as is necessary to avoid the danger.” Id.
at 562. In other words, we must balance the
answers to two questions: How great is the
harm posed by publication? How speculative is
the proof of that harm?

b. Pentagon Papers: New York Times Co. v. United

States, 403 U.S. 713 (1971)

(1) Striking down injunctions that barred the New

York Times and Washington Post from
publishing excerpts from the “Pentagon
Papers,” a top secret Defense Department study
of the history of the Vietnam War.

(2) How great was the harm posed by this

publication? How speculative was the proof of
that harm? Neither question is satisfactorily
answered in this case:

(a) partly because the Papers themselves

were so voluminous (47 volumes);

(b) partly because some of the Justices

believed that this prior restraint was such
an outrageous offense to the First

70
 Amendment that delaying the proceedings
long enough to read all 47 volumes would
only compound the constitutional
violation;

(c) partly because the government and the

news-papers gave sharply conflicting
accounts of what the Papers contained—
the government arguing that their
disclosure would jeopardize the safety of
U.S. troops and the vitality of sensitive
diplomatic negotiations (this turned out
to be FALSE), the newspapers arguing
that the Papers were largely a candid
history of the War that revealed the extent
to which the government had lied to the
American people about its conduct of the
War (this turned out to be TRUE).

(3) But the Vietnam War was very much ongoing at

the time of this case—making the disclosure of
the Papers far from a moot point.

(a) The case was briefed and argued in June-

July 1971; Saigon did not fall until April
30, 1975.

(b) When the case was argued in the Supreme

Court, there were well over 160,000
American military personnel in South
Vietnam.

(c) Much bloody fighting was still to come: In

1972, North Vietnamese forces captured
Quang Tri province, President Nixon
ordered the mining of Haiphong and other
North Vietnamese ports, and the U.S.
undertook a massive bombing of the
North.

(d) It wasn’t until January 27, 1973 that a

peace accord was announced. In August
1973, Congress finally proscribed further
U.S. military activity in Indochina.

71
(4) What propositions ARE clear from this case, if
any?

(a) The per curiam opinion makes clear that

flat, pre-publication gag orders are
presumptively uncon-stitutional.

(b) It also makes clear that the government

bears the “heavy” burden of establishing
that such a restraint is justified.

(c) Why is this so? Because prior restraints

on publication violated even the narrow
common law conception of press freedom
that prevailed in the 18th century. In
1769, Sir William Blackstone wrote that
“[t]he liberty of the press ... consists in
laying no previous restraints upon
publications.” 4 SIR WILLIAM BLACKSTONE,
COMMENTARIES ON THE LAWS OF ENGLAND
*151-52 (London, Strahan & Cadell 1783)
(emphasis in original).

(d) This is why some of the Justices (e.g.,

Black and Douglas) were so incensed by
these injunctions, asserting that every
moment of their continuance “amounts to
a flagrant, indefensible, and continuing
violation of the First Amendment.” 403
U.S. at 715 (Black, J., concurring, joined
by Douglas, J.).

(5) Did the Court play fast and loose with national
security?

(a) It may depend on who defines “national

security.”

(b) Certainly if the media wanted to disclose

the details of troop movements (which, in
this day and age, would be instantly
available to TV viewers throughout the
world on CNN, not to mention the
Internet), this would justify a prior
restraint on publication.

72
(c) But this has been the law since 1931 in
Near v. Minnesota, 283 U.S. 697 (1931),
where the Court observed that no one
“would question but that the government
might prevent ... the publication of the
sailing dates of transports or the number
and location of troops.” Id. at 716.

(d) Even the Pentagon Papers concurrence of

Justice Brennan concedes as much—
though Brennan evinces a willingness to
enjoin little else: “[O]nly governmental
allegation and proof that publica-tion
must inevitably, directly, and immediately
cause the occurrence of an event kindred
to imperiling the safety of a transport
already at sea can support even the
issuance of an interim restraining order.”
403 U.S. at 726-27 (Brennan, J.,
concurring).

(e) The problem with governmental claims of

“national security” is that they are not
always made in good faith.

(f) In February 1999—after 25 years of

litigation—certain “national security” tape
recordings of Richard Nixon were finally
released.

(g) And what matters of “national security,”

requiring their tight control all these
years, did they reveal? That Nixon was
willing to give an ambassadorship to a
certain individual—but only if he gave the
Republican Party $250,000.

(h) Thus, broad and unsubstantiated claims

of “national security” should not
automatically serve to justify a prior
restraint on publication.

(i) As for the Pentagon Papers themselves,

they revealed not so much current

73
 information as historical facts—facts that
were deeply unflatter-ing to the Executive
Branch because they showed the great
extent to which our leaders lied to the
American people and kept them in the
dark about the conduct of the war.

(j) This is why Justice Black concluded:

“Both the history and the language of the
First Amendment support the view that
the press must be left free to publish
news, whatever the source, without
censorship, injunctions, or prior
restraints. In the First Amendment the
Founding Fathers gave the free press the
protection it must have to fulfill its
essential role in our democracy. The press
was to serve the governed, not the
governors....The press was protected so
that it could bare the secrets of
government and inform the people. Only a
free and unrestrained press can effectively
expose deception in government.” 403
U.S. at 716-17 (Black, J., concurring,
joined by Douglas, J.).

c. United States v. The Progressive, Inc., 467 F. Supp.

990 (W.D. Wis. 1979)

(1) GRANTING preliminary injunction against

magazine that sought to discredit the
government’s system of classification and
secrecy by publishing an article revealing that
much of the information necessary for
constructing an H-Bomb was already contained
in publicly available literature.

(2) Apply to these facts the test from Nebraska

Press: How great is the harm? How speculative
is the proof of that harm?

(3) Here, the court is strongly influenced by the

prospective harm: “[The information at issue
deals] with the most destructive weapon in the
history of mankind,” and an erroneous decision

74
 against the government could “involve human
life itself and on such an awesome scale.” 467
F. Supp. at 995.

(4) Given these facts, the “disparity of risk” made

the injunction warranted. Id. at 995.

(5) Note, too, how the court distinguishes

Pentagon Papers, asserting that the
information disclosed in that case was largely
historical, most of it relating to events between
3 and 20 years old, and most of the
government’s “national security” arguments
pertained more to information that was
embarrassing to the government, not
threatening to the public safety. Id. at 994.

d. Here is a recent case that provides excellent

guidance on the standards governing judicial gag
orders. It is especially good at extracting guidelines
from Nebraska Press on how to analyze a gag order
governing the lawyers, parties, and witnesses in a
pending lawsuit:

In re Murphy-Brown, LLC, 907 F.3d 788 (4th Cir.

2018) (striking down, under strict scrutiny, a judicial
gag order covering more than 20 related lawsuits
asserting nuisance claims against the hog farming
industry in North Carolina; the gag order barred all
of the parties, all of their lawyers, all of their
represen-tatives and agents, and all potential
witnesses from making statements that might
interfere with a fair trial).

(1) The court begins its analysis by observing:

“Even among First Amendment claims, gag
orders warrant a most rigorous form of review
because they rest at the intersection of two
disfavored forms of expressive limitations:
prior restraints and content-based restric-
tions.” 907 F.3d at 796-97.

(2) As prior restraints, gag orders bear a heavy

presumption against their constitutional
validity. Likewise, gag orders are presumptively

75
 unconstitutional because they are content
based. Id. at 797.

(3) “In light of these twin presumptions, gag

orders must survive strict scrutiny.” Id. at 797.

(4) And trial courts are required to support them

with specific reasons and factual findings on
the record so that a reviewing court is able to
determine whether the order can survive strict
scrutiny. Id. at 797.

(5) Strict scrutiny first requires that a gag order

serve a “compelling” public interest. Ensuring
fair trial rights is a compelling interest—but
“only when there is a ‘reasonable likelihood’
that a party would be denied a fair trial without
the [gag] order under challenge.” Id. at 797.

(6) Under Nebraska Press, “a gag order may issue

only if there is a likelihood that ‘publicity,
unchecked, would so distort the views of
potential jurors that [enough] could not be
found who would, under proper instructions,
fulfill their sworn duty to render a just verdict
exclusively on the evidence presented in open
court.’” Id. at 797-98 (quoting Nebraska Press,
427 U.S. at 569).

(7) “Publicity often accompanies trials, including

trials in which the public has a keen and
understandable interest. ... An impartial jury,
moreover, need not be wholly unaware of
information—including potentially prejudicial
information—outside the record.” 907 F.3d at
798.

(8) “The question, therefore, is neither whether a

case has garnered public attention nor whether
public discussion of it risks revealing
potentially prejudicial information. Guidance is
the critical concept. The question is whether
the judge finds it likely that he or she will be
unable to guide a jury to an impartial verdict. If
judges can guide the jury to an impartial

76
 verdict, then no gag order may issue.” Id. at
798.

(9) “Even when a gag order furthers a compelling

interest, it must be the ‘least restrictive means’
of furthering that interest. The law empowers
trial courts to ensure fair jury trials using a
number of tools short of gag orders. These
tools include enlarged jury pools, voir dire,
changes to a trial’s location or schedule,
cautionary jury instructions, and, in more
unusual circumstances, sequestration.” Id. at
799 (citations omitted).

* * *

III.

OVERBREADTH, VAGUENESS,
AND PRIOR RESTRAINT

A. Overbreadth

1. The overbreadth doctrine invalidates speech regulations

so sweeping in scope that they punish protected, and not
merely unprotected, expression.

2. Examples of speech restrictions held to be

unconstitutionally overbroad:

a. Board of Airport Commissioners of Los Angeles v.

Jews for Jesus, Inc., 482 U.S. 569 (1987) (striking
down, on overbreadth grounds, a regulation
prohibiting any person “to engage in First
Amendment activities within the Central Terminal
Area at Los Angeles International Airport”); id. at
575 (striking down the regulation because “it
prohibits even talking and reading, or the wearing of
campaign buttons or symbolic clothing”).

77
 b. City of Houston v. Hill, 482 U.S. 451 (1987) (striking
down—as facially overbroad—an ordinance
prohibiting speech that “in any manner” interrupts a
police officer in performing his duties; the ordinance
was so broadly worded that it was violated every day
and effectively gave police unfettered discretion to
arrest individuals for words or conduct that merely
annoyed or offended them).

c. Reno v. ACLU, 521 U.S. 844 (1997) (striking down—

as facially overbroad—provisions of the
Communications Decency Act, a federal statute that
criminalized the Internet transmission of “indecent”
materials to persons under the age of 18); id. at 874
(“In order to deny minors access to potentially
harmful speech, the [Act] effectively suppresses a
large amount of speech that adults have a
constitutional right to receive and to address to one
another.”).

3. Confusion in the Case Law about When to Apply the

Overbreadth Doctrine

a. The case law is confused and inconsistent on when

to apply the overbreadth doctrine. Does it apply only
to content-based restrictions on speech, or does it
also apply to content-neutral time, place, and
manner restrictions? Applying it to content-neutral
time, place, and manner restrictions doesn’t make
sense because we already have a test for those
regulations (the intermediate scrutiny test) that
requires them to be “narrowly tailored.” So if we are
confronted with an overly broad time, place, and
manner restriction, shouldn’t we simply apply
intermediate scrutiny and strike it down for lack of
narrow tailoring?

b. Many courts have done this. But many others,

without even mentioning the intermediate scrutiny
test, have pursued an overbreadth analysis when
confronted with such a regulation.

c. Even the U.S. Supreme Court has done this. In one of

the examples cited above (Jews for Jesus), the Court

78
 used overbreadth analysis when confronted with a
content-neutral time, place, and manner regulation
that it might have invalidated just as readily under
the narrow tailoring requirement of intermediate
scrutiny.

d. So what are we to do? My advice is this:

(1) The overbreadth doctrine is most applicable to

the situation in which the government imposes
a content-based restriction on an unprotected
or “low-level” speech category but the
regulation sweeps far beyond the unprotected
boundaries of that category.

(2) Reno v. ACLU, 521 U.S. 844 (1997) (cited

above), is a good example of this situation. The
government wanted to restrict “indecent” (i.e.,
sexually explicit but non-obscene)
communications to minors on the Internet, but
it worded the regulation in such a way as to
criminalize a vast amount of protected speech.
The narrow tailoring requirement of
intermediate scrutiny doesn’t apply here,
because we’re dealing with a content-based
restriction, so it makes perfect sense to employ
overbreadth analysis. And that’s just what the
Supreme Court did, striking down the offending
statute as facially overbroad.

(3) Gooding v. Wilson, 405 U.S. 518 (1972)

(discussed in detail below), is another example
of the situation in which overbreadth analysis
is most appropriate—where the government
imposes a content-based restriction on an
unprotected or “low-level” speech category but
the regulation sweeps far beyond the
unprotected boundaries of that category. In
Gooding, the Supreme Court was confronted
with a Georgia statute that criminalized a
spectrum of statements far broader than the
unprotected category of fighting words. The
Court appropriately used the overbreadth
doctrine to strike the statute down.

79
 (4) If you see a fact pattern like Reno or Gooding—
where the government has imposed a content-
based restriction whose focus is not confined to
unprotected speech but also reaches protected
expression—go ahead and apply the
overbreadth doctrine. This is the situation
where the overbreadth doctrine is most clearly
applicable.

(5) If, on the other hand, you see a content-neutral

time, place, and manner regulation that
eliminates a well-established method of
expression—e.g., a total ban on leafleting—I
recommend that you apply intermediate
scrutiny and strike it down for flunking the
narrow tailoring requirement. But you should
also add that the U.S. Supreme Court has
sometimes used overbreadth analysis when
confronted with such a fact pattern, and then
cite the Jews for Jesus case.

e. By using this approach, your analysis will comport

with Supreme Court precedent while attempting to
maintain a doctrinal distinction between
overbreadth and intermediate scrutiny.

4. What are the justifications for the overbreadth doctrine?

a. concerns about the chilling effect of overbroad

prohibitions on speech; and

b. a recognition that the broader the statute, the

broader will be the discretion enjoyed by government
officials to engage in selective enforcement.

5. Important procedural aspects of the overbreadth doctrine:

a. permits facial rather than as-applied challenges;

b. relaxes the normal standing rules governing who

may bring a constitutional challenge;

c. is limited by the power of a court to save an

overbroad statute through a “narrowing
construction”; and

80
 d. is limited by the requirement of “substantial”
overbreadth.

6. Let’s examine these procedural aspects one at a time.

7. Facial Challenges

a. The doctrine authorizes a facial challenge to an

overbroad speech restriction that, if successful,
results in the statute’s TOTAL invalidation.

b. This is very different, and far more devastating, than

the result of an as-applied challenge.

c. A successful facial challenge effectively wipes the

offending statute right out of the codebooks. But an
as-applied challenge, even if successful, leaves the
statute in effect, and bars its enforcement only in a
certain manner or under certain circumstances.

d. Thus, when a speech restriction is declared facially

overbroad, its enforcement by the government in any
context is impermissible.

e. A footnote: Under the First Amendment, overbreadth

is not the only sort of claim that may be asserted as
a facial challenge. “There are two quite different
ways in which a statute or ordinance may be
considered invalid ‘on its face’—either because it is
unconstitutional in every conceivable application
[e.g., content-based restrictions on protected
speech], or because it seeks to prohibit such a broad
range of protected [expression] that it is
unconstitutionally ‘overbroad.’” City Council of Los
Angeles v. Taxpayers for Vincent, 466 U.S. 789, 796
(1984).

8. Relaxation of the Normal Standing Rules

a. The overbreadth doctrine authorizes a relaxation of

the normal standing rules governing who may bring
a constitutional challenge.

81
b. The Supreme Court “has altered its traditional rules
of standing to permit—in the First Amendment area
—‘attacks on overly broad statutes with no
requirement that the person making the attack
demonstrate that his own [speech] could not be
[punished if the] statute [were] drawn with the
requisite narrow specificity.’ Litigants, therefore, are
permitted to challenge a statute not because their
own rights of free expression are violated, but
because of a judicial prediction or assumption that
the statute’s very existence may cause others not
before the court to refrain from constitutionally
protected speech or expression.” Broadrick v.
Oklahoma, 413 U.S. 601, 612 (1973) (quoting
Dombrowski v. Pfister, 380 U.S. 479, 486 (1965)).

c. Gooding v. Wilson, 405 U.S. 518 (1972), is a vivid

example of the extent to which the normal rules of
standing are relaxed in overbreadth challenges. It
shows why the Supreme Court considers the
overbreadth doctrine to be “strong medicine.”
Osborne v. Ohio, 495 U.S. 103, 122 (1990);
Broadrick, 413 U.S. at 613.

d. In Gooding, the Supreme Court sustained an

overbreadth challenge to a Georgia statute that
criminalized a spectrum of statements far broader
than fighting words (“opprobrious words or abusive
language tending to cause a breach of the peace,”
405 U.S. at 519)—but it did so in a case where the
person challenging the statute likely HAD uttered
fighting words.

e. Gooding stemmed from a clash between police and

anti-war demonstrators at an army induction center.
When police attempted to move the defendant away
from the facility’s entrance, a scuffle ensued in
which he said to the officers: “You son of a bitch, I’ll
choke you to death!” and “White son of a bitch, I’ll
kill you!” and “You son of a bitch, if you ever put
your hands on me again, I’ll cut you all to pieces!”
405 U.S. at 520 n.1.

f. Since these words likely fall within the definition of

fighting words, it would have been constitutionally

82
 permissible to punish this defendant under an
appropriately narrow statute.

g. But the Georgia statute was not narrow—and

because it swept so far beyond the scope of “fighting
words,” it was vulnerable to an overbreadth
challenge. What Gooding shows is that STANDING to
assert such a challenge is available even to someone
who did not engage in constitutionally protected
speech and who would not have escaped conviction
under an appropriately narrow statute.

h. And what is the reason for these relaxed standing

rules? “[They are] deemed necessary,” observed
Justice Brennan, “because persons whose expression
is constitutionally protected may well refrain from
exercising their rights for fear of criminal sanctions
[under] a statute susceptible of application to
protected expression.” Gooding, 405 U.S. at 521
(emphasis added).

9. “Narrowing” Constructions

a. The overbreadth doctrine is limited by the power of

courts to save an overbroad statute through the
issuance of a “narrowing construction.”

b. Such a construction effectively rewrites the statute,

declaring its scope to be more limited than what its
sweeping language would suggest, and identifying
the constricted range of circumstances to which it
may henceforth be applied.

c. The Supreme Court has cautioned against the

wholesale use of this approach, observing that a
narrowing construction should be imposed on a
statute “only if it[s language] is ‘readily susceptible’
to such a construction.” Reno v. ACLU, 521 U.S. 844,
884 (1997) (quoting Virginia v. American
Booksellers Associa-tion, Inc., 484 U.S. 383, 397
(1988)).

d. The appropriate source of a narrowing construction

depends on the statute’s origin: federal courts are
free to narrow federal statutes, Reno v. ACLU, 521

83
 U.S. at 884, but state legislation should be narrowed
by the courts of that state, Gooding v. Wilson, 405
U.S. 518, 520 (1972); Erznoznik v. City of Jackson-
ville, 422 U.S. 205, 216 (1975).

e. When, in Gooding v. Wilson, 405 U.S. 518 (1972), the

Supreme Court invoked the overbreadth doctrine to
strike down Georgia’s “abusive language” statute, it
observed that the Georgia courts had not issued the
sort of narrowing construc-tion that might have
saved the statute. Id. at 524.

f. In demonstrating that the Georgia courts had not

given the statute a narrowing construction, Justice
Brennan showed that they had used it to prosecute
defendants for such innocuous statements as “God
damn you, why don’t you get out of the road?” Id. at
525.

10. “Substantial” Overbreadth

a. In 1973, one year after Gooding was decided, the

Supreme Court cut back on the doctrine’s
availability by imposing the requirement of
“substantial” overbreadth. Broadrick v. Okla-homa,
413 U.S. 601, 615-16 (1973).

b. What is meant by “substantial” overbreadth is less

than clear. Straining to elaborate, the Court has
observed: “The concept of ‘substantial overbreadth’
is not readily reduced to an exact definition. It is
clear, however, that the mere fact that one can
conceive of some impermissible applications of a
statute is not sufficient to render it susceptible to an
overbreadth challenge. On the contrary .... there
must be a realistic danger that the statute itself will
significantly compromise recognized First
Amendment protections of parties not before the
Court for it to be facially challenged on overbreadth
grounds.” City Council of Los Angeles v. Taxpayers
for Vincent, 466 U.S. 789, 800-01 (1984).

c. An example of how the Court applies the

requirement of “substantial” overbreadth is New
York v. Ferber, 458 U.S. 747 (1982), where it

84
 rejected an overbreadth challenge to a statute that
prohibited persons from knowingly promoting a
sexual performance by a child under the age of 16.

d. While recognizing that this statute might reach

some protected expression (like medical textbooks
or pictorials in National Geographic), the Court
observed: “[W]e seriously doubt ... that these
arguably impermissible applications ... amount to
more than a tiny fraction of the materials within the
statute’s reach.” 458 U.S. at 773.

e. Thus, a statute will be deemed unconstitutionally

overbroad only when, within the range of its
potential applications, a substantial number entail
protected expression. See Ferber, 458 U.S. at 771;
Regan v. Time, Inc., 468 U.S. 641, 650-51 (1984).

B. Vagueness

1. The vagueness doctrine may be invoked to strike down

restrictions on speech that are worded in such a way that
citizens cannot reasonably discern what is prohibited.

2. A speech restriction is void for vagueness unless it gives a

“person of ordinary intelligence a reasonable opportunity
to know what is prohibited, so that he may act
accordingly.” Grayned v. City of Rockford, 408 U.S. 104,
108 (1972) (rejecting a vagueness challenge to an
ordinance that prohibited disturbing a school session by
coming onto school grounds and willfully making a noise
or diversion).

3. In Holder v. Humanitarian Law Project, 130 S. Ct. 2705

(2010), the Supreme Court phrased the vagueness test as
follows: “‘A conviction fails to comport with due process
[due to vagueness] if the statute under which it is
obtained fails to provide a person of ordinary intelligence
fair notice of what is prohibited, or is so standardless that
it authorizes or encourages seriously discriminatory
enforce-ment.’” Id. at 2718-19 (quoting United States v.
Williams, 553 U.S. 285, 304 (2008)).

4. Holder was a vagueness challenge to a provision of the

Anti-Terrorism and Effective Death Penalty Act of 1996,

85
 18 U.S.C. § 2339A(b), that imposed a ten-year jail
sentence for knowingly providing material support—
including any “training”—to a foreign terrorist
organization.

5. The Holder lawsuit was brought by humanitarian and

public interest groups (the “plaintiffs”) who wanted to
furnish aid to two entities—the Kurdistan Workers’ Party
and the Liberation Tigers of Tamil Eelam—that the federal
government had designated as foreign terrorist
organizations. The plaintiffs feared that merely teaching
international law to these organizations might fall within
the definition of “training.”

6. The Ninth Circuit held that “training” is

unconstitutionally vague.

7. But the Supreme Court reversed—holding that “training”

is NOT vague and that it certainly applies to the plaintiffs’
proposed activities. The Court observed (130 S. Ct. at
2719-20) that “training” is specifically defined in the
statute, and that it stands in sharp contrast to the types of
words that HAVE been judged vague—words like
“annoying” that are bound up with subjective judgments
that will vary from person to person. See Coates v. City of
Cincinnati, 402 U.S. 611 (1971) (striking down ordinance
that prohibited sidewalk meetings by three or more
people conducted “in a manner annoying to persons
passing by”).

8. Holder’s key insight: The more subjective a statutory word

is—i.e., the more that a word invites individual judgments
that will vary from person to person—the more vulnerable
it will be to a vagueness challenge. Here are some
examples of subjective words that were struck down as
unduly vague by the Supreme Court: “annoying,” from
Coates v. City of Cincinnati, 402 U.S. 611 (1971) (above);
and “contemptuous,” from Smith v. Goguen, 415 U.S. 566
(1974) (proscribing the “contemptuous” treatment of the
American flag).

9. Let’s take a closer look at Smith v. Goguen, 415 U.S. 566

(1974). In Smith, the Court sustained a vagueness
challenge to a Massachusetts statute that criminalized
publicly treating the American flag “contemptuously.”

86
 When this case was decided, the American public was
sharply divided on the question of how the flag should be
treated. On college campuses, in an attitude growing out
of the Vietnam War protests, students displayed the flag
in a gesture of mock patriotism or sewed it onto their
clothing—sometimes upside down or on the seat of their
pants. Other segments of society believed that display on
a flagpole was the only proper use of the flag.

a. The Court observed that any “unceremonial” use of

the flag might be regarded by some as
“contemptuous,” but that casual treatment of the
flag (as “an object of youth fashion and high camp”)
had become commonplace. 415 U.S. at 573-74.

b. Given the prevalence of these widely divergent views,

a statute criminalizing the “contemptuous” use of
the flag was so vague that police, courts, and juries
were free to enforce it under their own preferences
for how the flag should be treated. Id. at 574-75.
Accordingly, the Court ruled the statute void for
vagueness.

10. Here is another example of SUBJECTIVE language being

struck down as unduly vague. Montenegro v. New
Hampshire Division of Motor Vehicles, 93 A.3d 290 (N.H.
2014) struck down as vague a regulation barring vanity
license plates “which a reasonable person would find
offensive to good taste.” Since reasonable persons can
reach widely differing conclusions about what constitutes
“good taste,” the regulation granted the DMV power to
deny a vanity license merely because it offended a
particular official’s subjective idea of “good taste.”

11. In Grayned, 408 U.S. at 108-09, the Supreme Court

identified three distinct POLICY grounds for striking down
vague laws:

a. Vague laws may trap the innocent by not providing

fair warning of what is proscribed.

b. Vague laws effectively delegate enforcement

discretion to police officers, judges, and juries,
freeing them to act on an ad hoc and subjective

87
 basis, with the attendant dangers of arbitrary and
discriminatory application.

c. When directed at expressive activity, vague laws can

inhibit the exercise of First Amendment freedoms. In
fact, vagueness can have the same effect as
overbreadth, prompting citizens to steer a wide path
around the perceived prohibition.

12. Vagueness challenges do not enjoy the same relaxed rules

on standing that prevail in overbreadth cases. Holder v.
Humanitarian Law Project, 130 S. Ct. 2705, 2719 (2010).

C. Prior Restraint

1. In reaction to the now-vilified press licensing systems of

the 16th and 17th centuries (see pages 11-12 of this
Outline), the doctrine of prior restraint imposes severe
limits on the power of government to require ADVANCE
APPROVAL of speech BEFORE it is uttered or published.

2. Prior restraints come in two forms:

a. speech-restrictive injunctions; and

b. licensing systems that require a permit or fee as a

prerequisite to engaging in expressive activity.

3. Speech-Restrictive Injunctions

a. There are four basic points to bear in mind with

regard to speech-restrictive injunctions:

(1) A flat, pre-publication gag order is

presumptively unconstitutional, and so is any
injunction that imposes a total ban on
expressive activity.

(2) Injunctions that impose time, place, or manner

restrictions are subject to a heightened form of
intermediate scrutiny.

(3) Speech-restrictive injunctions must not be

granted ex parte, and their restraints must be
limited to the narrowest possible scope.

88
 (4) Under the “collateral bar” rule, speech-
restrictive injunctions must be obeyed even if
they are unconstitutional.

b. Let’s take a closer look at each of these four points.

c. Any injunction that imposes a total ban on

expressive activity is presumptively unconstitutional.
Carroll v. President & Commissioners of Princess
Anne, 393 U.S. 175 (1968). And as we learned from
the newspaper injunction cases in section II(C) of
this Outline, a flat, pre-publication gag order is
likewise presumptively unconstitutional:

(1) Nebraska Press Association v. Stuart, 427 U.S.

539 (1976) (striking down a gag order on press
coverage of a murder trial; the injunction,
issued by the trial judge, barred newspapers
and broadcasters from reporting any confession
by, or inculpatory information about, the
accused—including testimony adduced in open
court); id. at 558 (“Any prior restraint on
expression comes to this Court with a ‘heavy
presumption’ against its constitutional
validity.”); id. at 562 (applying the follow-ing
test: “[Whether] the gravity of the ‘evil’ [posed
by publication], discounted by its improbability,
justifies such invasion of free speech as is
necessary to avoid the danger.”). In other
words, we must balance the answers to two
questions: How great is the harm posed by
publication? How speculative is the proof of
that harm?

(2) New York Times v. United States, 403 U.S. 713

(1971) (striking down injunctions that barred
the New York Times and Washington Post from
publishing excerpts from the “Pentagon
Papers,” a top secret Defense Department study
of the Vietnam War).

(3) Near v. Minnesota, 283 U.S. 697 (1931)

(striking down an injunction that perpetually
enjoined the Saturday Press from publishing

89
 any “malicious, scandalous, or defamatory”
material; the paper had been sharply critical of
the Minneapolis police chief, accusing him of
corruption).

(4) But see United States v. The Progressive, Inc.,

467 F. Supp. 990 (W.D. Wis. 1979) (granting a
preliminary injunction against magazine that
sought to discredit the government’s system of
classification and secrecy by publishing an
article revealing that much of the information
necessary for constructing an H-Bomb was
already contained in publicly available
literature).

d. Injunctions that impose time, place, or manner

restrictions are subject to a heightened form of
intermediate scrutiny—under a test that is slightly
more stringent than that for legislation:

(1) Observing that “[i]njunctions ... carry greater

risks of censorship and discriminatory
application than do general ordinances,” the
Supreme Court held in 1994 that speech-
restrictive injunctions should be subjected by
appellate courts to more “stringent” First
Amendment scrutiny than comparable
legislation—that, “when eval-uating a content-
neutral injunction, we think that our standard
time, place, and manner analysis is not
sufficiently rigorous.” Madsen v. Women’s
Health Center, Inc., 512 U.S. 753, 764-65
(1994) (emphasis added).

(2) Announcing a new standard of review for

content-neutral injunctions, the Court held
that, rather than inquiring whether the order is
narrowly tailored to serve a significant
governmental interest, “[w]e must ask instead
whether the challenged provisions of the
injunc-tion burden no more speech than
necessary to serve a significant government
interest.” Id. at 765 (emphasis added).

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e. Speech-restrictive injunctions must not be issued ex
parte, and their restraints must be limited to the
narrowest possible scope:

(1) These twin teachings were emphatically

delivered in Carroll v. President &
Commissioners of Princess Anne, 393 U.S. 175
(1968), where the Supreme Court struck down
a ten-day injunction, issued ex parte, that
banned further demonstrations by a white
supremacist group that had staged a racist
rally on the courthouse steps.

(2) The Court suggested that ex parte speech

restrictions are presumptively unconstitutional;
this is because, by definition, their issuance
takes place without the crucial benefit of
evidentiary input from both sides of the
dispute, id. at 183, and the procedural
safeguards necessary for sustaining a prior
restraint are thus entirely lacking, id. at 180-
82.

(3) The injunction was offensive to the First

Amendment not only for its ex parte issuance
but also for its broad scope (it enjoined the
group from holding meetings or rallies
anywhere in the county “‘which will tend to
disturb and endanger’” the local citizenry, id.
at 177).

(4) On this point, the Court stressed that speech-

restrictive injunctions “must be couched in the
narrowest terms that will accomplish the
pinpointed objective permitted by
constitutional mandate and the essential needs
of public order.” Id. at 184.

f. Under the “collateral bar” rule, speech-restrictive

injunctions must be obeyed even if they are
unconstitutional:

(1) The collateral bar rule requires obedience to

injunctive orders. GTE Slyvania v. Consumers
Union, 445 U.S. 375, 386 (1980).

91
 (2) By engaging in expressive activity in defiance of
such an injunction, a speaker places herself in
contempt of court—and, under the collateral
bar rule, the injunction’s unconstitutionality is
no defense to the contempt citation. Randy
Barnett, The Puzzle of Prior Restraint, 29 STAN.
L. REV. 539, 553 (1977).

(3) An example of this is Walker v. City of

Birmingham, 388 U.S. 307 (1967), where the
Supreme Court upheld the criminal contempt
convictions of eight black ministers who defied
a temporary restraining order requiring them
to secure a permit before conducting a civil
rights march.

(4) Though the Walker Court suggested that the

injunction might well have been
constitutionally suspect, id. at 318-19, it
refused to reach that issue, holding that the
ministers, while free to challenge the
injunction in court, were not free to defy it, id.
at 319-21.

(5) One unfortunate effect of the collateral bar rule

is that prospective speakers, confronted by an
unconstitutional injunction, can be silenced for
months on end while they pursue the path of
judicial review.

4. Licensing Systems that Require a Permit or Fee as a

Prerequisite to Engaging in Expressive Activity

a. Of the two basic forms of prior restraint, speech-

restrictive injunctions are one type, while speech-
restrictive licensing schemes are the other.

b. Such licensing schemes will run afoul of the First

Amendment if they fail to LIMIT:

(1) the licensor’s discretion in issuing a permit or

fee; or

92
 (2) the time frame within which the licensor must
grant or deny the permit.

c. In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215

(1990), the Supreme Court identified “two evils” in
speech licensing schemes “that will not be
tolerated”—vesting “unbridled discretion” in the
licensing authority, and “fail[ing] to place limits on
the time within which the decisionmaker must issue
the license.” Id. at 225-26.

d. Let’s examine these “two evils” in turn.

e. Vesting “unbridled discretion” in the licensing

authority

(1) Courts have consistently invalidated permit

schemes vesting government officials with
unfettered discretion to forbid or allow certain
speech activities:

(a) Lovell v. City of Griffin, 303 U.S. 444

(1938) (striking down—as a prior restraint
—municipal licensing scheme that
required advance permission from City
Manager before distributing any leaflets
or other literature, and vested the City
Manager with unfettered discretion in
arriving at such decisions).

(b) City of Lakewood v. Plain Dealer

Publishing Co., 486 U.S. 750 (1988)
(unfettered discretion) (permit to place
newsracks on public property).

(c) Southeastern Promotions, Ltd. v. Conrad,

420 U.S. 546 (1975) (unfettered
discretion) (permit to use city
auditorium).

(d) Shuttlesworth v. City of Birmingham, 394

U.S. 147 (1969) (unfettered discretion)
(parade permit).

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 (e) Hague v. CIO, 307 U.S. 496 (1939)
(unfettered discretion) (permit for public
meetings and demonstrations).

(f) Kunz v. New York, 340 U.S. 290 (1951)

(unfettered discretion) (permit for
sidewalk preaching).

(g) Schneider v. New Jersey, 308 U.S. 147

(1939) (unfettered discretion) (leafleting
permit).

(2) Any scheme that vests arbitrary discretion in

the licensing official “has the potential for
becoming a means of suppressing a particular
point of view.” Heffron v. International Society
for Krishna Conscious-ness, Inc., 452 U.S. 640,
649 (1981).

(3) Accordingly, a permit scheme will survive

constitutional scrutiny only if it employs
content-neutral criteria, and only if it contains
“narrowly drawn, reasonable, and definite
standards for the officials to follow.” Niemotko
v. Maryland, 340 U.S. 268, 271 (1951).

(4) A permit scheme fails this test if it “‘involves

appraisal of facts, the exercise of judgment,
[or] the formation of an opinion’ by the
licensing authority.” Forsyth County v.
Nationalist Movement, 505 U.S. 123, 131
(1992) (quoting Cantwell v. Connecticut, 310
U.S. 296, 305 (1940)).

(5) Without such standards, “post hoc

rationalizations by the licensing official and the
use of shifting or illegitimate criteria are far
too easy, making it difficult for courts to
determine in any particular case whether the
licensor is permitting favorable, and
suppressing unfavorable, expression.” City of
Lakewood v. Plain Dealer Publishing Co., 486
U.S. 750, 758 (1989).

94
(6) Closely akin to these “unfettered discretion”
cases are those in which the permit scheme
allows licensing officials to consider either the
controversial nature of a speaker’s message or
its potential for inspiring a hostile response.

(7) These schemes are struck down just as readily

—and for the same reason—as the schemes
affording unbridled discretion. In both
contexts, the First Amendment flaw is the
same: the right to speak is left to hinge on the
popularity of one’s message.

(8) The permit schemes in this line of precedent

are of two (equally fatal) types:

(a) those allowing the licensor to forbid or

restrict speech activities based on
concerns that the speaker’s message will
inspire a hostile response (e.g., Williams
v. Wallace, 240 F. Supp. 100 (M.D. Ala.
1965) (ordering Alabama to grant Martin
Luther King Jr. a permit to march from
Selma to Montgomery, notwithstanding
the possible hostility of onlookers who
might witness the march); Village of
Skokie v. National Socialist Party of
America, 366 N.E.2d 347 (Ill. App. 1977)
(declining to enjoin Nazi march through
Illinois suburb populated by Holocaust
survivors)); and

(b) those allowing the licensor to charge a

higher police-protection fee based on the
anticipated level of hostility among
onlookers (e.g., Forsyth County v.
Nationalist Movement, 505 U.S. 123, 134-
35 (1992) (since “[t]hose wishing to
express views unpopular with bottle-
throwers ... may have to pay more for their
permit,” the Court struck the scheme
down, asserting: “Speech cannot be
financially burdened, any more than it can
be punished or banned, simply because it
might offend a hostile mob.”)).

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f. Failing to place limits on the time frame within
which the licensor must grant or deny the permit

(1) Courts will treat as “a species of unbridled

discretion” any failure by a licensing scheme to
place limits on the time frame within which the
licensor must grant or deny the permit.
FW/PBS, 493 U.S. at 223-24.

(2) A licensing scheme may run afoul of this

requirement in one of two ways:

(a) by failing to afford prompt processing of

permit applications, through the
imposition of a brief and specific time
frame within which the licensor must
grant or deny the permit application (e.g.,
FW/PBS, Inc. v. City of Dallas, 493 U.S.
215, 223-24 (1990) (striking down a
speech licensing scheme for sexually-
oriented businesses because, id. at 229, it
lacked “an effective limitation on the time
within which the licensor’s decision must
be made”)); and

(b) by imposing advance registration

requirements that build into the
application process a lengthy delay before
the licensee may speak (e.g., NAACP v.
City of Richmond, 743 F.2d 1346 (9th Cir.
1984) (black man’s death in police
custody prompted immediate plans for a
protest march, but city officials thwarted
the march by invoking a 20-day advance
registration requirement in their parade
permit ordinance—struck down as
effectively “outlaw[ing] spontaneous
expression,” id. at 1355)). In recent years,
courts have consistently struck down
advance registration requirements of
more than two days—a far cry from the
twenty days imposed in City of Richmond.
Kevin Francis O’Neill, The Regulation of
Public Protest, in LOCAL GOVERNMENT,

96
 LAND USE, AND THE FIRST AMENDMENT 291,
335-36 & n.269 (Brian J. Connolly ed.,
2017).

(3) Under Freedman v. Maryland, 380 U.S. 51, 58-

60 (1965), motion picture censorship schemes
must contain the following procedural
safeguards:

(a) Burden of proof is on the licensor to

demonstrate that the applicant’s speech is
unprotected expression.

(b) There must be a specified and brief time

frame in which the licensor must either
issue the license or go to court to restrain
the applicant’s expression.

(c) The procedure must also assure a prompt

and final judicial decision.

g. Public Forum Permit Schemes

(1) The Supreme Court held in 2002 that the

“extraordinary procedural safeguards” required
by Freedman v. Maryland, which were designed
for motion picture censorship schemes, do NOT
apply to municipal permit schemes governing
expressive access to public parks. Thomas v.
Chicago Park District, 534 U.S. 316 (2002). The
Freedman safeguards apply only to content-
based regulations; they do not apply to content-
neutral time, place, and manner restrictions on
use of a public forum.

(2) This means that content-neutral public forum

permit schemes need NOT contain Freedman’s
requirement that the government, every time it
denies a permit, must rush into court to enjoin
the applicant’s speech. 534 U.S. at 322.

(3) But Thomas makes clear that the law remains

the same in TWO important respects:

97
 (a) Content-neutral permit schemes
governing expressive use of a public
forum are STILL unconstitutional if they
vest the licensing official with
UNFETTERED DISCRETION to grant or
deny the permit (Thomas, 534 U.S. at
323); and

(b) Content-neutral permit schemes

governing expressive use of a public
forum are STILL unconstitutional if they
do not contain a brief and specific TIME
FRAME in which the licensor must grant
or deny the permit (Thomas, 534 U.S. at
322).

h. Permit Schemes Governing Door-to-Door Advocacy

In 2002 the Supreme Court struck down—as applied

to religious proselytizing, anonymous political
speech, and the distribution of handbills—an
ordinance that made it a misdemeanor to engage in
door-to-door advocacy without first registering with
the mayor and obtaining a permit. Watchtower Bible
& Tract Society v. Stratton, 536 U.S. 150 (2002).

* * *

IV.
CONTENT-BASED RESTRICTIONS:
“LOW” VALUE SPEECH

A. Direct Restrictions on Expressive Content: Categorizing Speech

Based on its “Value”

1. When it comes to direct restrictions on expressive

content, the Supreme Court has developed a “two-tiered”
analytical framework, striking down such restrictions as
presumptively unconstitutional unless the regulated
utterance falls into one of the designated categories of
“low-level” speech—categories defined in advance as
being unworthy of full First Amendment protection.

98
 2. These “low-level” categories of speech are denied full
First Amendment protection because, in the words of
Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72
(1942), they are “no essential part of any exposition of
ideas,” and are of only “slight social value as a step to
truth.”

3. There are eight basic categories of “low-level” speech;

some are utterly unprotected by the First Amendment,
while others are less than fully protected.

4. The unprotected categories are:

a. Advocacy of Imminent Lawless Action;

b. Obscenity;

c. Child Pornography;

d. Fighting Words; and

e. True Threats.

5. The less-than-fully-protected categories are:

a. Defamatory Statements;

b. Commercial Advertising; and

c. the Lewd, the Profane, and the Indecent.

6. Except for the Lewd/Profane/Indecent, each category has

a recognized test.

7. These tests are set forth in my Speech Clause Overview.

They are also discussed in this Outline.

B. Bear in mind that if you are confronted with a direct, content-

based restriction on speech, you would normally analyze it
under the strict scrutiny test: To survive judicial review, the
regulation must be “necessary, and narrowly drawn, to serve a
compelling state interest.” Capitol Square Review & Advisory
Board v. Pinette, 515 U.S. 753, 761 (1995).

99
C. But before applying strict scrutiny, you should always check to
see if the regulated speech falls into one of the “low-level”
categories of expression:

1. Advocacy of Imminent Lawless Action

2. Obscenity
3. Child Pornography
4. Fighting Words
5. True Threats
6. Defamatory Statements
7. Commercial Advertising
8. The Lewd/Profane/Indecent

D. If the regulated speech DOES fall into one of those unprotected

or less-than-fully-protected categories, then DON’T apply strict
scrutiny. Instead, apply the specific test that prevails in the
applicable category.

E. Bear in mind, finally, that if the regulation you are analyzing is

NOT content-based, you should drop down from strict scrutiny
to intermediate scrutiny, employing the three-prong test for
time, place, and manner restrictions set forth in Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989). To survive judicial
scrutiny under this test, the regulation:

1. must be content-neutral;

2. must be narrowly tailored to serve a significant

governmental interest; and

3. must leave open ample alternative channels for

communicating the information.

F. We are now in the process of working our way through the

various categories of “low-level” speech.

G. We have already covered two of them:

1. Advocacy of Imminent Lawless Action (the Brandenburg

line of cases); and

2. “Fighting Words” (derived from Chaplinsky).

H. We will turn next, in the following order, to:

100
 1. Defamatory Statements
2. True Threats
3. Commercial Advertising
4. Obscenity
5. Child Pornography
6. The Lewd/Profane/Indecent

* * *

IV(A).
DEFAMATORY STATEMENTS
(False Statements of Fact)

NOTE TO STUDENTS:
In this section of my Outline, you will often see the word “libel.”
The term “libel” refers to a defamatory statement that is published
in PRINT. The term “slander” refers to a defamatory statement that
is purely ORAL.

A. The Significance of New York Times v. Sullivan, 376 U.S. 254

(1964)

1. Throughout much of our history, critics of government

sought in vain to establish legal protection for their
utterances.

2. Prior to 1804, even a truthful statement was no defense in

a seditious libel prosecution.

a. It was not until Alexander Hamilton’s pioneering

accomplishment in People v. Croswell, 3 Johnson’s
Cases 336 (N.Y. 1804), that a judicial decision
recognized that truth should be a defense to a
charge of seditious libel. Id. at 376-77 & 393-94
(opinion of Kent, J.). RON CHERNOW, ALEXANDER
HAMILTON 668-71 (2004).

3. But in the rough and tumble of political debate, even

falsehoods may be blurted out in the heat of the moment.

4. In 1964, the Supreme Court took the momentous step of

affording limited legal protection even to false statements
uttered by critics of government officials.

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 5. That case, New York Times v. Sullivan, reversed a
$500,000 libel award to a Southern official who, following
a clash with civil rights demonstrators, identified certain
factual inaccuracies in an advertisement they published in
the New York Times recounting the event.

6. Though most of the inaccuracies were trivial, the ad did

accuse local police of padlocking a campus dining hall
when in fact they never did.

7. The issue before the Court was whether that type of

falsehood, uttered in the heat of a civil rights protest,
should leave the speakers vulnerable to a huge damage
award.

8. Recognizing “a profound national commitment to the

principle that debate on public issues should be
uninhibited, robust, and wide-open, and that it may well
include vehement, caustic, and sometimes unpleasantly
sharp attacks on government officials,” 376 U.S. at 270,
the Court established qualified protection for defamatory
falsehoods uttered by critics of official conduct.

9. Observing that “erroneous statement is inevitable in free

debate, [and that] it must be protected if the freedoms of
expression are to have the ‘breathing space’ that they
‘need ... to survive,’” id. at 271-72, the Court held that
public officials are precluded from recovering damages
for defamatory falsehoods uttered in reference to their
official conduct unless they can prove that the statement
was made “with knowledge that it was false or with
reckless disregard of [its truth],” id. at 279-80.

10. This new evidentiary burden on public official plaintiffs,

requiring them to prove a knowing or reckless falsehood,
became known as the “Times Malice” standard. We will
look more carefully at the reasons for its creation in ¶ C
below.

B. Factual Background of New York Times v. Sullivan

1. In March 1960, the Reverend Dr. Martin Luther King, Jr.

was one of the leaders of the rapidly growing civil rights
movement. Dr. King had first come to national
prominence four years earlier when he led the campaign

102
 to desegregate the Montgomery, Alabama bus lines.
TAYLOR BRANCH, PARTING THE WATERS 185 (1988). As
president of the Southern Christian Leadership
Conference, he quickly rose to the forefront of the
nonviolent struggle for black civil rights in the South.

2. Because of his civil rights activities, Dr. King became the

target of sporadic violence and harassment. His home was
the subject of both bomb and gunshot attacks. BRANCH at
164-67, 197. In 1956 Dr. King was convicted of violating
the Alabama criminal boycott statute because of his
efforts in desegregating the Montgomery bus lines. Id. at
184. That same year, he was also arrested for speeding.
Id. at 160. Two years later, he was arrested for “loitering”
at a whites-only lunch counter. Id. at 351.

3. In February 1960 Dr. King was arrested on a charge of

perjury in connection with the filing of his Alabama state
income tax return. Id. at 276-77. Under Alabama law this
was a felony, carrying a maximum penalty of ten years in
prison. In response, Dr. King’s supporters formed an
organization: “The Committee to Defend Martin Luther
King and the Struggle for Freedom in the South.” Id. at
288.

4. On March 29, 1960, the Committee published an appeal

for funds in a full-page advertisement in the New York
Times. The ad was entitled: “Heed Their Rising Voices.”
Id. at 288-89. The ad contained a number of factual
assertions about civil rights clashes between protesters
and police in the deep South. Id. It turned out that there
were some errors in ¶ 3 and ¶ 6 of the ad. For example:
Dr. King had been arrested four times, not seven; and
protesters sang the National Anthem, not “My Country,
’Tis of Thee.” 376 U.S. at 258-59.

5. Seizing upon those errors, a government official brought

suit against the New York Times for publishing the ad.
The plaintiff, L.B. Sullivan, was a city commissioner in
Montgomery, Alabama with supervisory authority over the
police officers who battled civil rights protesters and
arrested Dr. King.

6. Commissioner Sullivan’s lawsuit against the New York

Times was not an isolated incident. In fact, Southern

103
 officials brought a NUMBER of libel suits that were
designed to intimidate and punish the national news
media. Mary Rose Papandrea, The Story of New York
Times Co. v. Sullivan, in FIRST AMENDMENT STORIES 229,
229 (Richard W. Garnett & Andrew Koppelman eds.,
2012).

7. These suits targeted the New York Times, CBS News, and
the Associated Press for their coverage of governmental
efforts to suppress the civil rights movement. SAMANTHA
BARBAS, ACTUAL MALICE: CIVIL RIGHTS AND THE FREEDOM OF
THE PRESS IN NEW YORK TIMES V. SULLIVAN 2 (2023). In
filing these lawsuits, Southern segregationists were trying
to inflict financial ruin upon the Northern press. BARBAS
at 86.

8. By the end of 1961, the New York Times confronted over

$6 million in potential libel judgments and the possibility
of bankruptcy. Id. at 2. By 1964, CBS News and the
Associated Press, among other media companies, faced
over $288 million in damages in libel cases brought by
segregationist officials. Id.

C. Why Did the Supreme Court Create the “Times Malice”

Standard?

1. In light of these multi-million-dollar libel suits, the

Supreme Court created the “Times Malice” standard
because “state libel laws threaten the very existence of an
American press virile enough to publish unpopular views
on public affairs and bold enough to criticize the conduct
of public officials.” 376 U.S. at 294 (Black, J., concurring).

2. By creating the “Times Malice” standard, the Supreme

Court effectively REVISED the state law tort of
defamation, adding an extra layer of protection for those
who criticize public officials. And where does that extra
layer of protection come from? It emanates from the First
Amendment (as applied to the States through the
Fourteenth Amendment). The extra layer of protection is
effectuated by the new evidentiary burden borne by public
official plaintiffs (who must now prove that the
defamatory statement was made “with knowledge that it
was false or with reckless disregard of [its truth],” 376
U.S. at 279-80).

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 3. What pushed the Supreme Court to create this extra layer
of protection? It was the EASE with which plaintiffs could
win these cases under state libel laws. How easy was it?
Let’s take a look...

a. In New York Times v. Sullivan, the easy burden

borne by the plaintiff can be seen in the JURY
INSTRUCTIONS employed by the Alabama state
court trial judge.

b. The jury was not allowed to decide whether the

advertisement was defamatory. Instead, they were
instructed that the challenged statements in the ad
were “libelous per se.”

c. Under Alabama law, said the judge, a statement that

was libelous per se was presumed to be false. The
defendant could overcome that presumption only by
proving the statement true in all material respects.

d. Damage was also presumed, so the plaintiff did not

have to offer ANY proof of injury.

e. Summing up, then, the case went to the jury with

instructions that the advertisement was libelous,
false, and injurious. 376 U.S. at 262.

f. Only three issues were left for the jury to decide (id.
at 262):

(1) Had the New York Times published the ad?

(2) Were the statements in the ad “of and

concerning” the plaintiff?

(3) And if the jury answered yes to (1) and (2), how
much money should be awarded to the plaintiff
as damages?

D. The “Times Malice” Standard Now Extends Not Only to Public

Officials But Also to Public Figures.

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1. The “Times Malice” standard now extends not only to
public officials but also to public figures. Curtis
Publishing Co. v. Butts, 388 U.S. 130, 164 (1967).

2. Who constitutes a public OFFICIAL?

“The following types of political figures or public

employees are required to comply with the New York
Times standard—elected officials at all levels of the
political hierarchy, local, state, or federal; all candidates
for public office, at whatever level, whether incumbent or
non-incumbent; members of the judiciary at all levels;
govern-mental lawyers in positions of substantial power
and responsibility; high-ranking police and military
officials; the president and mem-bers of local policy
making boards; high-level school administrators; federal
and state executive officials of significant policymaking
authority or having functions at the core of the political
process. The Court’s decisional law also indicates that it
has not held low-ranking policemen or teachers to be
public officials.”

DAVID ELDER, DEFAMATION: A LAWYER’S GUIDE § 5.1 at nn.17-

29 (December 2020 Update) (footnotes and quotation
marks omitted).

3. What is the difference between a public OFFICIAL and a

public FIGURE?

4. Public OFFICIALS are governmental actors. Public

FIGURES are people who are “intimately involved in the
resolution of important public questions or, by reason of
their fame, shape events in areas of concern to society at
large.” Curtis Publishing Co. v. Butts, 388 U.S. 130, 164
(1967).

5. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974),

the Supreme Court offered some elaboration on public
FIGURES:

“[The public figure] designation may rest on either of two

alternative bases. In some instances an individual may
achieve such pervasive fame or notoriety that he becomes
a public figure for all purposes and in all contexts. More
commonly, an individual voluntarily injects himself or is

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 drawn into a particular public controversy and thereby
becomes a public figure for a limited range of issues. In
either case, such persons assume special prominence in
the resolution of public questions.”

6. Thus, public figures fall into two different categories:

a. “all-purpose,” or “general-purpose,” public figures,

who are those individuals who have achieved such
pervasive fame or notoriety that they become public
figures for all purposes and in all contexts; and

b. “limited-purpose” public figures, who are public

figures only for a limited range of issues
surrounding a particular public controversy.

7. A limited-purpose public figure is someone who

“voluntarily injects himself or is drawn into a particular
public controversy and thereby becomes a public figure
for a limited range of issues.” Gertz, 418 U.S. at 351.

8. “A private individual is not automatically transformed into

a [limited-purpose] public figure just by becoming
involved in or associated with a matter that attracts
public attention.” Wolston v. Reader’s Digest, 443 U.S.
157, 167 (1979).

9. Likewise, a person who engages in criminal conduct does

not automatically become a public figure “for purposes of
comment on a limited range of issues relating to his
conviction....To hold otherwise would create an ‘open
season’ for all who sought to defame persons convicted of
a crime.” Reader’s Digest, 443 U.S. at 168-69.

10. “A libel defendant must show more than mere

newsworthiness to justify application of the demanding
[‘Times Malice’] burden.” Reader’s Digest, 443 U.S. at
167-68.

11. A limited-purpose public figure must satisfy the “Times

Malice” standard ONLY when she is defamed in
connection with the limited issues that made her famous.
In all other aspects of her life, she remains a private
figure, governed NOT by “Times Malice” but by the lesser
standards (set forth immediately below in ¶ E) that govern

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 defamation suits by private figure plaintiffs. SMOLLA &
NIMMER ON FREEDOM OF SPEECH § 23:4 at n.37 (March 2021
Update).

E. What About Libel Actions by Purely Private Figures?

1. In suits by private figures involving matters of “public

interest,” the plaintiff need only satisfy a negligence
standard to recover compensatory damages, but “Times
Malice” must be proven in order to recover punitive
damages. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347,
349 (1974).

2. When a private figure is defamed as to a matter of no

public interest, the “Times Malice” standard has no
applicability whatsoever. Dun & Bradstreet, Inc. v.
Greenmoss Builders, 472 U.S. 749, 761 (1985).

3. But where the plaintiff is a private figure who is suing a

media defendant, and where the media speech regarding
the plaintiff falls within the realm of public concern, the
plaintiff bears the burden of proving not only the
defendant’s negligence but ALSO that the speech was
FALSE. Absent such proof, the plaintiff is not entitled to
ANY damages. Philadelphia Newspapers, Inc. v. Hepps,
475 U.S. 767 (1986).

4. Except for Philadelphia Newspapers, supra, the foregoing

rules govern defamation actions generally; they are not
confined solely to those cases featuring media defendants.

5. Why should private figure plaintiffs enjoy an easier

burden of proof than public figures and public officials?
For two reasons:

a. First, “[p]ublic officials and public figures usually

enjoy significantly greater access to the channels of
effective communication and hence have a more
realistic opportunity to counteract false statements
than private individuals normally enjoy. Private
individuals are therefore more vulnerable to injury,
and the state interest in protecting them is
correspondingly greater.” Gertz v. Robert Welch,
Inc., 418 U.S. 323, 344 (1974).

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 b. Second, by voluntarily thrusting themselves into the
public spotlight, public officials and public figures
have invited closer scrutiny by the media, thereby
“expos[ing] themselves to increased risk of injury
from defamatory falsehood[s].” Gertz, 418 U.S. at
345.

F. How Do Courts Differentiate Between Public Figures and

Private Figures?

1. In ¶ D, above, I have already described the essential

characteristics of a public figure.

2. An ALL-PURPOSE public figure is a celebrity, like LeBron

James or Beyoncé or Lady Gaga or Michelle Obama or
Oprah Winfrey, someone whose fame is so pervasive that
it’s not confined to any particular niche or context. See
Gertz, 418 U.S. at 345.

3. A LIMITED-PURPOSE public figure is someone like Kim

Davis, the former county clerk for Rowan County,
Kentucky, who gained national attention in August 2015
when she defied a federal court order to issue marriage
licenses to same-sex couples; or Lev Parnas, the Trump
henchman who gained national attention in the Ukraine
impeachment affair. Kim Davis and Lev Parnas are
limited-purpose public figures because they exemplify the
type of person who “voluntarily injects h[er]self [(Davis)]
or is drawn into [(Parnas)] a particular public controversy
and thereby becomes a public figure for a limited range of
issues.” Gertz, 418 U.S. at 351.

4. A PRIVATE figure is not necessarily a person who is

utterly unknown. Instead, the private figure category
embraces anyone—even a person who has achieved some
public notoriety—who has not achieved the exceptional
fame of a public figure. Let’s review some cases where the
defamation plaintiff fell within the gray area between a
public figure and a private figure...

a. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), was

a libel action in which the plaintiff, a well-known
Chicago attorney and law professor, was deemed a
private figure by the Supreme Court. That plaintiff,
Elmer Gertz, brought suit against the publisher of a

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 far-right magazine who warned his readers that
Gertz was part of a nationwide Communist
conspiracy to discredit local law enforcement
agencies. The publisher accused Gertz of framing,
and orchestrating false testimony against, a Chicago
policeman named Nuccio who was convicted of
second-degree murder in the shooting death of a
youth named Nelson. Id. at 325-26. The Supreme
Court held that Gertz was neither an all-purpose nor
a limited-purpose public figure. Id. at 351-52. Even
though Gertz had built a distinguished legal career—
success-fully challenging the obscenity ban on Henry
Miller’s novel Tropic of Cancer, overturning the
death sentence imposed on Jack Ruby for killing
President John F. Kennedy’s assassin, and publishing
several books on legal subjects, RANDY E. BARNETT &
HOWARD E. KATZ, CONSTITUTIONAL RIGHTS 602 (2013)
—Gertz was not an all-purpose public figure because
“he had achieved no general fame or notoriety in the
community” and “[n]one of the prospective jurors
called at the trial had ever heard of [him].” 418 U.S.
at 351-52. Though Gertz agreed to represent the
Nelson family in civil litigation against Officer
Nuccio, id. at 325, he was not a limited-purpose
public figure because he “took no part” in Nuccio’s
criminal prosecution and “he never discussed either
the criminal or [the] civil litigation with the press,”
id. at 352. Accordingly, Gertz “did not thrust himself
into the vortex of this public issue, nor did he
engage the public’s attention in an attempt to
influence its outcome.” Id. Based on this analysis,
the Court concluded that Gertz was a private figure.
Id.

b. Time, Inc. v. Firestone, 424 U.S. 448 (1976), is set

against the backdrop of an explosive divorce trial,
featuring loads of extramarital sex, involving one of
America’s wealthiest families. Summing up the
testimony against both spouses, the divorce court
judge wrote that the husband was described as
“bounding from one bedpartner to another with the
erotic zest of a satyr,” while the wife’s amatory
“escapades” were so “bizarre” as to make “Dr.
[Sigmund] Freud’s hair curl.” Id. at 450-51. In
Firestone, the wife brought a libel action against

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 Time magazine for alleged inaccuracies in its
coverage of the divorce trial. Even though the wife
was married to “the scion of one of America’s
wealthiest industrial families,” id. at 450, and even
though she held several press conferences during
the divorce proceedings, id. at 454-55 n.3, the
Supreme Court ruled that she was a private figure,
not a public figure, id. at 455. In arriving at this
conclusion, the Court observed: “[E]ven though the
marital difficulties of extremely wealthy individuals
may be of interest to some portion of the reading
public,” the “[d]issolution of a marriage through
judicial proceedings is not the sort of ‘public
controversy’ referred to in Gertz.” Id. at 454. The
Court also rejected the notion that the plaintiff had
voluntarily thrust herself into the public spotlight—
in order to obtain a divorce, the plaintiff had no
choice but to appear in court. Id. at 454.

c. Hutchinson v. Proxmire, 443 U.S. 111 (1979),

involves the “Golden Fleece of the Month Award,” an
honor sarcastically bestowed by Senator William
Proxmire to “publicize what he perceived to be the
most egregious examples of wasteful governmental
spending.” Id. at 114. In April 1975 Proxmire used
his Golden Fleece Award to ridicule Ronald
Hutchinson, a behavioral scientist whose research
was being funded by NASA. Id. at 114. Hutchinson’s
research, which focused on patterns of animal
aggression, aligned with NASA’s concerns about
confining humans in close quarters for extended
stretches of time in space. Id. at 115. Hutchinson
sued Proxmire for libel, alleging that the Senator, by
mocking and mischaracterizing his research, had
damaged Hutchinson’s professional and academic
standing. Id. at 114. The Senator defended by
arguing that Hutchinson was a limited-purpose
public figure on the topic of his federally-funded
research. Id. at 134. The Supreme Court disagreed,
holding that Hutchinson was a private figure. Id. at
134-36. At the time he received the Golden Fleece
Award, Hutchinson was not widely known—he was
director of research at the Kalamazoo State Mental
Hospital and an adjunct professor at Western
Michigan University. Id. at 114. Senator Proxmire

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 countered that Hutchinson was now a nationally-
known figure; but the Court replied that Hutchin-son
had grown famous only because of the Golden Fleece
Award: “[T]hose charged with defamation cannot, by
their own conduct, create their own defense by
making the claimant a public figure.” Id. at 134-35
(emphasis added). Hutchinson had not thrust
himself or his views into the public spotlight;
instead, he had been lifted out of obscurity by the
very same statements he was challenging as
defamatory. Id. at 135.

G. A Defamation Action Must Be Based on a False Assertion of

FACT.

1. A defamation action must be based on a false assertion of

fact; a statement of opinion, so long as it “does not
contain a provably false factual connotation[,] will receive
full constitutional protection.” Milkovich v. Lorain Journal
Co., 497 U.S. 1, 20 (1990).

2. “A statement of fact is not shielded from an action for

defamation by being prefaced with the words ‘in my
opinion,’ but if it is plain that the speaker is expressing a
subjective view, an interpretation, a theory, conjecture, or
surmise, rather than claiming to be in possession of
objectively verifiable facts, the statement is not
actionable.” Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222,
1227 (7th Cir. 1993) (Posner, J.).

H. Original Publishers and Repeaters

1. In defamation law, an original publisher is the person or

entity that first disseminated a defamatory falsehood. A
publisher is responsible for all harms proximately caused
by the dissemination, including harms resulting from a
repeater’s foreseeable publication. DAN B. DOBBS, THE LAW
OF TORTS § 402, at 1123 (2000).

2. The repeater of defamatory material is also a publisher

and is subject to liability for the publication. Thus, a
newspaper or television broadcaster may be fully
responsible in libel for material it prints, even though it is
merely quoting or accurately repeating what others have
said. Where constitutional limitations apply, however, the

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 repeater will not be liable unless he is at fault in stating a
falsehood and may not be at fault if he reasonably relied
upon the original publication. DOBBS at 1123.

I. The “Times Malice” Standard Has Now Been Extended to Other

Tortious Statements—Including:

1. false light invasions of privacy (Time, Inc. v. Hill, 385 U.S.

374 (1967); Cantrell v. Forest City Publishing Co., 419
U.S. 245 (1974)); and

2. intentional infliction of emotional distress (Hustler

Magazine v. Falwell, 485 U.S. 46 (1988)).

J. Efforts to Prohibit Other False Statements

1. Defamation and fraud are tort actions that punish false

statements of fact. Perjury and fraud are crimes that
punish false statements of fact. But each of the foregoing
statements is punishable because it injures another
person. Under the First Amendment, is the government
free to punish a person who lies about having received a
military honor, even though such a lie is not inherently
injurious to anyone? The Supreme Court said NO in
United States v. Alvarez, 132 S. Ct. 2537 (2012).

2. In Alvarez, the Court struck down, as a content-based

restriction on speech, the federal Stolen Valor Act, which
made it a crime for any person falsely to state that he was
“awarded any decoration or medal authorized by Congress
for the Armed Forces of the United States.” The Court
voted 6-3 for this outcome, but it did not produce a
majority opinion. A 4-vote plurality (authored by Justice
Kennedy) held that strict scrutiny was the appropriate
test; a 2-vote concurrence (written by Justice Breyer)
argued that intermediate scrutiny was the proper test for
false statements of fact.

3. Justice Kennedy wrote that “[this] Court has never

endorsed the categorical rule [that] false statements
receive no First Amendment protection.” 132 S. Ct. at
2545. While conceding that some false statements could
be restricted—like defamation, perjury, and fraud, which
all feature statements that injure other people—Kennedy

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 observed that the Stolen Valor Act “targets falsity and
nothing more.” Id. at 2545.

4. “Were the Court to hold,” wrote Kennedy, “that the

interest in truthful discourse alone is sufficient to sustain
a ban on speech, absent any evidence that the speech was
used to [injure others or] gain a material advantage, it
would give government a broad censorial power
unprecedented in [our] constitutional tradition.” Id. at
2548.

5. Ultimately, Kennedy concluded, “The remedy for speech

that is false is speech that is true.” Id. at 2550.

* * *

IV(B).
THREATS

1. A “true threat” is a statement through which the speaker

intimidates the victim by conveying a serious intention to
inflict violent harm upon her. “[T]hreats of violence are
outside the First Amendment.” R.A.V. v. City of St. Paul,
505 U.S. 377, 388 (1992).

2. Like obscenity, child pornography, fighting words, and the

advocacy of imminent lawless action, true threats
constitute a “low-level” speech category that is completely
unprotected by the First Amend-ment.

3. For many years, the Supreme Court furnished only fitful

guidance on true threats. But in Counterman v. Colorado,
143 S. Ct. 2106 (2023), the Court offered some much-
needed clarification. Counterman holds that an
unprotected true threat is comprised of two distinct
elements:

a. First, the statement must actually constitute a

THREAT. This question is gauged by an objective

114
 standard that inquires whether it is reasonable to
interpret the statement as expressing an intent to
harm the victim. This is a fact-sensitive inquiry that
examines not only the words employed but the
context in which they were communicated.

b. Second, as to mens rea (the defendant’s subjective

mental state), the prosecutor must at least satisfy a
recklessness standard—i.e., the State must show that
the defendant consciously disregarded a substantial
risk that his communi-cations would be viewed as
threatening violence.

4. Counterman stresses that the mens rea requirement (the

subjective-mental-state requirement) is ADDED to prevent
a CHILLING EFFECT on speech. The speaker’s mental
state is not what makes a statement a threat; the impact
of the statement on the victim is what makes it a threat.
The mental state is an additional requirement designed to
lessen the chilling effect that criminal prosecutions will
have on speech. Id. at 2114-15.

5. Here is a point of clarification on the mens rea

requirement. Let’s say that the defendant has threatened
to kill the victim. The prosecutor need not prove that the
defendant actually intended to kill the victim, actually
intended to CARRY OUT the threat. Instead, the
prosecutor must prove that he sought to COMMUNICATE
a threat. Elonis v. United States, 135 S. Ct. 2001 (2015).

6. What do we mean by a “true” threat? Writing for the

majority in Counterman, Justice Kagan explains: “The
‘true’ in that term distinguishes what is at issue from
jests, ‘hyperbole,’ or other statements that when taken in
context do not convey a real possibility that violence will
follow (say, ‘I am going to kill you for showing up late’).”
143 S. Ct. at 2114 (citing Watts v. United States, 394 U.S.
705, 708 (1969)).

7. Watts teaches an important lesson: when determining

whether a statement constitutes a threat, text and context
are equally important. It is not enough to focus on the
defendant’s words; we must also examine the surrounding
circumstances in which they were uttered. In Watts, the
Supreme Court sided with an anti-war protester who was

115
 being prosecuted for threatening President Lyndon Baines
Johnson. The defendant was arrested at an anti-war rally
for telling a crowd of demonstrators: “If they ever make
me carry a rifle, the first man I want to get in my sights is
L.B.J.” He was convicted under a federal statute that
criminalizes any threat to kill or injure the President.
Though the Court deemed this statute constitutional “on
its face,” it held that the defendant’s remark was the sort
of “political hyperbole” that did not constitute a “true
threat.” Id. at 708. Accordingly, it could not be deemed to
fall within the statute’s reach and could not be punished
under the First Amendment.

8. All courts agree that the alleged threat must be analyzed

in light of its full factual context, United States v. Syring,
522 F. Supp. 2d 125, 130 (D.D.C. 2007), and they all focus
on “whether a reasonable person would consider the
statement a serious expression of an intent to inflict
harm,” id. at 129. When examining the context in which
the threat was communicated, courts look at a range of
factors, including: (a) the reaction by the recipient of the
threat and the reaction by other listeners; (b) whether the
threat was conditional; (c) whether the threat was
communicated directly to its victim; (d) whether the
maker of the threat had made similar statements to the
victim in the past; and (e) whether the victim had reason
to believe that the maker of the threat had a propensity to
engage in violence. Syring, 522 F. Supp. 2d at 130.

9. The true threats category is broad enough to reach not

only those statements that target the recipient for harm,
but those that pledge harm to third parties who are near
and dear to the recipient. Thus, the true threats category
would encompass not only the statement that commands,
“Wire $50,000 to my bank account or I will kill you,” but
also the statement that declares, “Wire $50,000 to my
bank account or I will kill your wife and children.”

10. United States v. Kelner, 534 F.2d 1020 (2d Cir. 1976) is an
influential true threats decision. In Kelner, the Second
Circuit upheld the criminal threats conviction of a Jewish
Defense League activist who proclaimed on television that
he and his colleagues were preparing to kill Yasser Arafat,
who was then present in New York City for a speech to the
United Nations; the defendant stressed that “[e]verything

116
 [has been] planned in detail,” and that the operation was
already in motion. 534 F.2d at 1021. The court held that
these facts fell within the unprotected boundaries of the
true threats category.

11. Kelner serves as a reminder that true threats litigation is

always complicated by statutory provisions that the court
must construe and apply. There are many criminal
statutes that prohibit threats. It is a crime, for example,
to convey threatening communications through the U.S.
mail system (18 U.S.C. § 876); to extort money through
threats of violence or kidnapping (18 U.S.C. § 875(b)); or
to threaten a federal judge (18 U.S.C. § 115(a)(1)(B)), or
the President (18 U.S.C. § 871(a)), or a former President
(18 U.S.C. § 879(a)(1)) with kidnapping, assault, or
murder. When researching these cases, it is essential to
distinguish between the court’s statutory analysis
(construing the elements of the criminal statute) and its
constitutional analysis (applying the true threats doctrine
to the defendant’s statement). The prosecution must
satisfy all the elements of the statute, but that is not the
end of the analysis—at least where the defendant
interposes a First Amend-ment challenge. As a
constitutional matter, the statute can criminal-ize only
those threats that fall within the unprotected boundaries
of the “true threats” category.

12. Some acts of cross-burning will qualify as “true threats.”

This is the upshot of Virginia v. Black, 538 U.S. 343
(2003), where the Supreme Court ruled that Virginia’s
ban on cross-burning with intent to intimidate did not
violate the First Amendment. The Court held that states
may criminalize cross-burning so long as the state statute
clearly puts the burden on prosecutors to prove that the
act was intended as a threat and not as a form of symbolic
expression. For doctrinal purposes, what the Court has
done here is to include within the unprotected speech
category of “true threats” those acts of cross-burning that
are intended to intimidate a person or group of persons,
placing them in fear of bodily harm or death.

13. Cross-burning is not the only nonverbal manifestation of a

true threat. The State of Virginia has enacted another
true threats statute that proscribes displaying a noose
with the intent to place another person in reasonable fear

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 of death or bodily injury. VA. CODE ANN. § 18.2-423.2(B).
The Virginia Supreme Court upheld a criminal convic-tion
under this statute in a case where the defendant, in an
effort to intimidate his African-American neighbors,
displayed a noose in a tree in his front yard from which he
hung a black, life-sized mannequin. Turner v. Virginia,
809 S.E.2d 679 (Va. 2018).

14. Can a WEBSITE convey a true threat? This is the question

posed by “The Nuremberg Files”—Planned Parenthood v.
American Coalition of Life Activists, 290 F.3d 1058 (9th
Cir. 2002) (en banc).

a. Background and Question Presented

(1) An anti-abortion group, the American Coalition

of Life Activists, establishes a website (“The
Nuremberg Files”) that:

(a) says abortion providers are “guilty of

crimes against humanity”;

(b) compares abortion to “war crimes”;

(c) lists the names and addresses of abortion

providers and their families;

(d) includes photographs of some abortion

providers in Old-West-style “Wanted”
posters; and

(e) crosses out the names of abortion

providers after they have been murdered.

(2) Planned Parenthood brings suit under a federal

statute, the Freedom of Access to Clinic
Entrances Act (FACE), demanding that this
website be shut down and permanently
enjoined.

(3) FACE creates a civil cause of action, affording

damages and injunctive relief, against any
person who “by threat of force ...
intentionally ... intimidates ... any person be-
cause that person is or has been ... providing

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 reproduc-tive health services.” 18 U.S.C. §
248(a)(1) & (c)(1)(A).

(4) Does this website fall within the unprotected

category of speech defined by Brandenburg?

(5) Does this website fall within the unprotected

category of speech known as “true threats”?

b. Outcome—The Big Picture

(1) In Planned Parenthood v. American Coalition of

Life Activists, 41 F. Supp. 2d 1130 (D. Or.
1999), a federal judge issued a permanent
injunction that shut down the controversial
website.

(2) But that decision was later vacated by a panel

of the Ninth Circuit: 244 F.3d 1007 (9th Cir.
2001) (holding that the website was protected
speech under the First Amendment; it did not
fall into the unprotected category defined by
Brandenburg, nor did it fall into the
unprotected category of “true threats”).

(3) But rehearing the case en banc, the Ninth

Circuit vacated its earlier opinion and came to
the opposite conclusion. It held that the
website DID convey “true threats” within the
sphere of that unprotected speech category.
Accordingly, the website was bereft of
protection under the First Amendment and
could be enjoined under FACE. 290 F.3d 1058
(9th Cir. 2002) (en banc) (voting 6-5).

(4) The U.S. Supreme Court declined to hear the

case.

c. In the Ninth Circuit—Before the Initial Three-Judge

Panel

(1) While acknowledging that “true threats” are an

unprotected category of speech, 244 F.3d at
1015-16, the panel held that the website could

119
 not be deemed an unprotected threat, id. at
1019.

(2) To fall into the realm of unprotected speech,

held the panel, a threat must be directly and
specifically com-municated to a particular
target—and it must indicate that the target will
suffer violence inflicted by the speaker himself
or someone acting at his behest. Id. at 1014-15.

(3) By contrast, public speeches advocating

violence “are given substantially more leeway
under the First Amendment” than privately
communicated threats. Id. at 1018-19.

(4) There are two reasons, says the panel, for this
distinction:

(a) “[W]hat may be hyperbole in a public

speech may be understood (and intended)
as a threat if communicated directly to
the person threatened.” Id. at 1019.

(b) “[M]ore importantly, speech made

through the normal channels of group
communication, and concerning matters
of public policy, is given the maximum
protection by the Free Speech Clause
because it lies at the core of the First
Amend-ment.” Id. at 1019.

(5) As an example, the panel cited NAACP v.

Claiborne Hardware Co., 458 U.S. 886 (1982),
where, in an effort to enforce an NAACP
boycott of white-owned businesses, a civil
rights activist delivered a public speech in
which he told black citizens, “If we catch any of
you going in any of them racist stores, we’re
gonna break your damn neck.” Id. at 902.

(6) In Claiborne, observed the panel, “[t]he

Supreme Court held that despite his express
call for violence ..., [the activist’s] statements
were protected, because they were
quintessentially political statements made at a

120
 public rally, rather than directly to his targets.”
244 F.3d at 1019.

(7) Analogizing the anti-abortion website to the

public speech in Claiborne, the panel held that
the website was even more deserving of First
Amendment protection because, unlike the
activist’s speech, the website “said nothing
about planning to harm [its targets]; indeed, it
did not even call on others to do so.” Id. at
1019-20.

d. In the Ninth Circuit—Rehearing En Banc

(1) Sitting en banc and voting 6-5, the Ninth

Circuit vacated the panel’s opinion and held
that the website should be enjoined. 290 F.3d
at 1088.

(2) It reached this result...

(a) by concluding that Brandenburg and its

progeny do not apply to these facts
because the website does not advocate
violence—it conveys threats, id. at 1071;

(b) by rejecting the panel’s distinction

between privately-communicated and
publicly-communi-cated threats, id. at
1076; and

(c) by using CONTEXT expansively so as to

broaden the boundaries of the “true
threats” category, id. at 1078-80.

* * *

IV(C).
COMMERCIAL ADVERTISING
(“Commercial Speech”)

A. One month after deciding Chaplinsky, the Supreme Court

added commercial advertising to its pantheon of low-level

121
 speech categories. Valentine v. Chrestensen, 316 U.S. 52
(1942).

B. Central Hudson Gas & Electric Corp. v. Public Service

Commission of New York, 447 U.S. 557 (1980), embodies the
current standard for analyzing commercial speech claims.

1. The Central Hudson test has four prongs:

a. Is the advertisement protected at all by the First

Amendment? This will depend on whether:

(1) it concerns lawful activity; and

(2) it is not misleading.

b. Next, is the asserted governmental interest

“substantial”?

c. If the first two questions are answered “yes,” then

inquire: Did the regulation of commercial speech
directly advance the asserted governmental interest?

d. If yes, then, finally, the last question is: Could the

government interest be served by a more limited
restriction on the commercial speech? If so, the
regulation is invalid under the First Amendment.

2. When applying the Central Hudson test, bear in mind the

following points:

a. The government bears the burden of identifying a

substantial interest and justifying the challenged
restriction. Greater New Orleans Broadcasting
Association, Inc. v. United States, 527 U.S. 173, 183
(1999).

b. In applying the third prong (“Does the regulation

directly advance the asserted governmental
interest?”), remember that “[t]his burden is not
satisfied by mere speculation or conjecture; rather, a
governmental body seeking to sustain a restriction
on commercial speech must demonstrate that the
harms it recites are real and that its restriction will

122
 in fact alleviate them to a material degree.” Greater
New Orleans, 527 U.S. at 188.

c. The Supreme Court has relaxed its enforcement of

the fourth prong, no longer treating it as a “least
restrictive means” test. Board of Trustees of SUNY v.
Fox, 492 U.S. 469, 480 (1989) (holding that the
fourth prong is satisfied where the regulation is
“reasonable,” with a scope “in proportion to the
interest served,” or where the regulation employs “a
means narrowly tailored to achieve the desired
objective”).

C. Note that the Central Hudson test affords LESS protection for
commercial speech than that enjoyed by political speech.
Notwithstanding Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council, 425 U.S. 748 (1976), the Court has
recognized that commercial advertising holds only a
“subordinate position” on the scale of First Amendment values.

D. But over the last 30 years, the Court has shown a willingness to
read the Central Hudson test more strictly, thus affording
MORE protection for commercial speech than previously. See,
e.g.,

1. Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (striking

down federal ban on disclosure of alcohol content on beer
labels as not directly advancing government’s interest in
preventing malt liquor “strength wars”).

2. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996)

(unanimously striking down state law banning the
advertising of retail liquor prices).

3. Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011)

(striking down a state law that barred pharmaceutical
companies, in marketing their prescription drugs, from
purchasing or using information about the prescription
practices of individual doctors—but the law allowed this
information to be purchased or used by a broad range of
other speakers; the Court found, id. at 2663, that “the
law’s express purpose and practical effect are to diminish
the effectiveness of marketing by manufacturers of brand-
name drugs”). In his 6-3 majority opinion, Justice
Kennedy seems to be applying a stricter standard than the

123
 intermediate scrutiny of Central Hudson. Justice Breyer
(in dissent) accuses him of doing so. Though he does
briefly invoke Central Hudson and other commercial
speech precedents, id. at 2667-68, Justice Kennedy
asserts that the challenged statute imposes both a
speaker-based and a content-based burden on protected
expression, making it appropriate to apply “heightened
scrutiny,” id. at 2667. Part of the problem in identifying
the correct test is that the restricted speech in Sorrell is
not clearly advertising, and advertising has always resided
at the core of the commercial speech doctrine. This may
explain why Justice Kennedy states that “there is no need
to determine whether all speech hampered by [the
statute] is commercial, as our cases have used that term.”
Id. at 2667. In the end, he says, “the outcome [here] is the
same whether a special commercial speech inquiry or a
stricter form of judicial scrutiny is applied.” Id. at 2667.

E. Paternalism: The Court is more willing to strike down, as

“paternalistic,” those statutes in which the government broadly
proscribes the dissemination of PRICE information or other
CONSUMER-oriented information regarding the CONTENTS or
the CHARACTERISTICS of a product.

1. Thus the results in:

a. Coors Brewing (contents); and

b. 44 Liquormart (prices).

2. Harken back to Justice Blackmun’s concerns in Virginia

Pharmacy about misguided “paternalistic” regulations
that keep consumers in the dark regarding price or
product information.

3. In 44 Liquormart, the Court observed: “[When] a State

[prohibits] the dissemination of truthful, nonmisleading
commercial [messages], there is [little] reason to depart
from the rigorous review that the First Amendment
generally demands. [Bans] against truthful,
nonmisleading commercial speech [usually] rest solely on
the offensive assumption that the public will respond
‘irrationally’ to the truth. The First Amendment directs us
to be especially skeptical of regulations that seek to keep

124
 people in the dark for what the govern-ment perceives to
be their own good.” 517 U.S. at 503 (emphasis added).

F. The Supreme Court has never been entirely satisfied with the
Central Hudson test, and a number of Justices have expressed
an inclination to abandon it. But they are so widely divided on
how to approach commercial advertising that we shouldn’t
expect a new test anytime soon.

1. Some members of the Court—in Lorillard Tobacco Co. v.

Reilly, 533 U.S. 525 (2001), and Thompson v. Western
States Medical Center, 535 U.S. 357 (2002)—urged that
Central Hudson either be rejected altogether or at least
set aside in certain situations.

2. In Western States, Justice Thomas wrote a concurrence to

stress his belief that Central Hudson should be abandoned
in situations where the governmental regulation of
commercial speech seems like an attempt to keep
consumers “in the dark” about information that they
might misuse.

3. Justice Breyer’s dissent in Western States pushed in the

opposite direction, calling for a commercial speech
doctrine that would be far more deferential to government
regulation.

4. When we see a number of Justices openly expressing

doubt or dissatisfaction regarding the Court’s approach to
a given subject, the prevailing standard would appear to
be in jeopardy.

5. But for now Central Hudson remains the ostensible test in

all commercial speech cases, and that is the standard you
should apply. Given the wide divergence of views on the
Court about commercial speech, it may be a long time
before the Justices can muster a five-vote majority to
replace Central Hudson.

* * *

IV(D).
OBSCENITY
Much of the material contained in this lecture is derived from

125
 BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE
SUPREME COURT 231-46, 294-306 (1979) (2005 paperback edition).

A. Under Miller v. California, 413 U.S. 15 (1973), expression will

be deemed obscene, and hence utterly unprotected by the First
Amendment, if it satisfies each prong in the following three-
prong test (id. at 24):

1. Whether the average person, applying contemporary

community standards, would find that the work, taken as
a whole, appeals to [a] prurient interest [in sex];

2. whether the work depicts or describes, in a patently

offensive way, sexual conduct specifically defined by the
applicable state law; and

3. whether the work, taken as a whole, lacks serious literary,

artistic, political, or scientific value.

B. Where did this convoluted test come from? To find out, let’s go
back in time—to 1971 and the Supreme Court chambers of
Justice Byron White.

C. White’s Rebellion from Redrup v. New York, 386 U.S. 767

(1967)

1. Under Redrup, the Court would issue per curiam reversals

of obscenity convictions when five Justices (Brennan,
Marshall, Douglas, Stewart, and White), applying their
own separate tests, could agree on the result.

2. Redrup involved the Justices in a continual barrage of

lurid trial exhibits—glossy photos, magazines, even reels
of film—circulating through the chambers.

3. Brennan admitted that he was “sick of seeing this shit,”

but concluded that Redrup was the best available
approach, since the Justices could not agree on a
definition of obscenity—or at least could not DRAFT a
definition that was intelligible to the public.

4. But the Justices had no trouble communicating their

ACTUAL tests to their clerks.

126
 5. White’s test for obscenity: No erect penises, and no oral,
anal, or vaginal penetration.

6. Brennan’s test: No erect penises.

7. Stewart—who had famously declared in Jacobellis v. Ohio,

378 U.S. 184, 197 (1964) (concurring opinion), that “I
know it when I see it”—had his own test for obscenity: the
“Casablanca” test. This was an exceedingly subjective test.
It was based upon his days in the Navy and a memorable
period when his ship was docked in the harbor at
Casablanca, a north African city in Morocco. Stewart
ruefully recalled the locally produced pornography that
sailors brought back to the ship. Any materials coming to
the Supreme Court that resembled the Moroccan
pornography he glimpsed in the Navy violated Stewart’s
Casablanca test.

8. Douglas: We can’t define it, so due process requires that it

can’t be banned or criminalized.

9. In 1971, after serving for four years as the swing vote in

Redrup reversals, White abruptly ceased cooperating with
the liberal wing of the Court.

10. Though he wasn’t sure how, White wanted to handle the

obscenity cases differently—and his shift of allegiance
prompted the Court rethink its approach.

D. Brennan’s Role as the “Father” of Obscenity Law—a Role He

Later Came to Regret

1. Justice Brennan authored the first effort to define

obscenity, in Roth v. United States, 354 U.S. 476 (1957).

2. When crafting his definition in Roth, Brennan was trying

to make it impossible for prosecutors to censor serious
literary works—because books by James Joyce (Ulysses),
William Faulkner (Sanctuary), D.H. Lawrence (Lady
Chatterley's Lover), and Theodore Dreiser (An American
Tragedy) previously had been banned as obscene.
ANTHONY LEWIS, FREEDOM FOR THE THOUGHT THAT WE HATE
132-33 (2007).

127
 3. But in Roth’s wake, lower courts kept banning material
that Brennan thought was clearly NOT obscene.

4. So, in the Fanny Hill case (Memoirs of a Woman of

Pleasure v. Massachusetts, 383 U.S. 413 (1966)), he
CHANGED the definition, holding that the material could
not be criminalized unless it was “utterly without
redeeming social value.” Id. at 418.

5. This placed the burden on prosecutors to prove that

NOTHING in a work redeemed it.

6. Pornographers then took to throwing in lines from

Shakespeare to protect their product.

E. Justice Marshall’s Privacy Approach to Sexually Explicit Speech

1. In Stanley v. Georgia, 394 U.S. 557 (1969), Marshall had

written: “If the First Amendment means anything, it
means that a State has no business telling a man, sitting
alone in his own house, what books he may read or what
films he may watch.” Id. at 565.

2. Defense lawyers flooded the Court with obscenity appeals

in which they sought to expand on that logic: If there’s a
constitutional right to possess an obscene work in one’s
home, then there’s a right to buy it. If there’s a right to
buy it, there’s a right to sell it. To distribute it. To write,
photograph, or film it.

F. The Backstage Bargaining Begins

1. Brennan tried to angle for Paris Adult Theatre I v. Slaton,

413 U.S. 49 (1973), as the key obscenity opinion to be
issued that Term by the Court—because it had better facts
than Miller v. California for extending the Stanley v.
Georgia privacy rationale.

2. Unlike Miller, where pornographic brochures were mailed

unsolicited to an unsuspecting recipient and his mother,
Paris Adult involved Atlanta’s “Finest Mature Films
Exhibitor”—a theater with no pictures advertising its
films, and with warning signs situated outside restricting
the audience to consenting adults over 21.

128
 3. Brennan and Burger circulated competing opinions,
trying to sway the three undecided Justices.

4. The nine Justices were arranged ideologically as follows:

a. At the far left of the ideological spectrum, all by

himself, was Justice Douglas, who held the absolutist
position—no ban whatsoever on sex-oriented speech.

b. Almost as far to the left as Douglas were three

Justices (Brennan, Marshall, and Stewart) who held
that only extreme, hard-core materials may be
banned.

c. Situated at the center of the spectrum, undecided,

were three more Justices: Powell, Blackmun, and
White.

d. And way out at the far right wing of the spectrum

were Burger and Rehnquist, who held: Let the States
ban as much sexually explicit speech as they wish.

G. Local vs. National Standard

1. Stewart was especially troubled by Burger’s intention,

evinced in his draft opinions, to change the Court’s
obscenity jurisprudence—shifting from a national
standard for what is obscene to a local standard.

2. Arguments for a LOCAL standard: Don’t force

communities in Maine and New Hampshire to accept the
same standards for obscenity as those prevailing in Las
Vegas, New York, and San Francisco.

3. Arguments for a NATIONAL standard: As Stewart

asserted, we have one Constitution, not 50. Lower courts
and prosecutors have been vindictive toward
pornographers; why take a standard that’s already
confusing and allow a different test to prevail in every
community?

4. At oral argument in Miller, the California prosecutor

blundered into arguing for the need to “update” the
prevailing test for obscenity “every few years,” prompting
horror from Burger—but Rehnquist saved him with a

129
 softball question, tying the necessary flexibility to the jury
system.

H. Efforts to Win Over the “Center”

1. White, on the fence, shared Stewart’s concerns about the

“Balkanization” of the First Amendment if a local
standard were adopted. Under Burger’s approach, world
famous works of art and literature might be banned in
some communities.

2. But White didn’t want to join a Brennan opinion that

would effectively dictate to the States what they could and
could not ban.

3. White hit upon a compromise—and he would join Burger’s

opinion if it included these conditions: He would permit
the States to define obscenity as they saw fit IF they
specifically described EXACTLY what ACTS they deemed
obscene, AND IF the work appealed to a prurient interest
in sex, AND IF the work depicted patently offensive “hard-
core” sex.

4. LISTING those sex acts would at least put pornographers

ON NOTICE as to what was obscene (their principal
complaint in arguing these cases).

5. It would also LIMIT the WHIMS of local law enforcement

officials.

6. Note the irony here: White’s idea is for the States to

CODIFY their own versions of the “no erections” and
“Casablanca” tests.

7. Through this compromise, Burger got his third vote:

White.

8. That left two remaining Justices: Powell and Blackmun.

9. The uncertainty surrounding Powell was due solely to his

own reticence on the subject. Though nobody knew it,
Powell was utterly shocked by the exhibits (photos,
magazines, etc.) that were circulating through the
Supreme Court chambers. Privately, he confided to his
clerks that he never knew such materials existed, and he

130
 found them repulsive. As the father of three daughters, he
found it impossible to justify any First Amendment
protection for such expression. Thus, it was inevitable
that he would side with Chief Justice Burger.

10. When Powell declared his intention to vote with the Chief
Justice, poor Harry Blackmun was left in the center of a 4-
to-4 tie (just as he had been only a few months earlier in
Roe v. Wade).

11. Realizing that he had some bargaining power as the swing

vote, Blackmun set to work negotiating with Chief Justice
Burger. Blackmun wanted “taken as a whole” RETAINED
in Burger’s new redefinition of obscenity.

12. Burger wanted “taken in context,” which Blackmun feared

would shift the focus from the work as a totality to
singling out particular scenes, sections, and passages.

13. Blackmun held out on this change and Burger, after twice
rejecting it, finally relented. Miller v. California was born.

14. In light of all the backstage horse-trading, look again at

Miller’s three-prong test (413 U.S. at 24):

a. Whether the average person, applying contemporary

community standards, would find that the work,
taken as a whole, appeals to [a] prurient interest [in
sex];

b. whether the work depicts or describes, in a patently

offensive way, sexual conduct specifically defined by
the applicable state law; and

c. whether the work, taken as a whole, lacks serious

literary, artistic, political, or scientific value.

15. Note that the first and second prongs are reflective of a
local standard, but the third prong is a national standard.

16. Note also the influence of White and Blackmun, the two
swing votes.

a. The second prong is the product of White’s

compromise solution—requiring the States, not the

131
 Justices, to be graphically specific about which hard-
core sex acts pornographers would have to avoid.

(1) Due to White’s compromise, prong two of the

Miller test has effectively compelled each State
to enact its own obscenity statute, spelling out
the prohibited sex acts.

(2) The State of Arkansas, for example, defines

“hard-core sexual conduct” to include “any anal
or vaginal pene-tration by any part of any
person or animal’s body,” and also includes
cunnilingus, fellatio, anilingus, bestiality, sado-
masochism, lewd exhibition of genitals, or an
excretory function. ARK. CODE ANN. § 5-68-
302(2).

b. The “taken as a whole” requirement—which finds its

way into both the first prong and the third prong—is
the product of Blackmun’s holdout.

I. Aftermath

1. Brennan was crushed because—as Douglas reminded him

—if he’d only given up his effort to define obscenity a few
years earlier when Earl Warren was Chief Justice and the
liberals were in the majority, this would never have
happened.

2. A few weeks later, a prosecutor in Charlottesville, Virginia

announced that, under the new test in Miller v. California,
he would prosecute Playboy magazine on local newsstands
—because it was violative of local community standards.

3. When the Chief Justice read the story in the newspaper,

he told his law clerks that he had never intended such a
result.

4. By the end of his tenure on the Court, Brennan finally

came around to Justice Douglas’s position: If we can’t
define it, we can’t criminalize it.

J. Summing Up the Current State of Obscenity Law

132
1. Within the vast spectrum of sexually explicit material,
only the narrow subsets of obscenity (discussed in this
section) and child pornography (discussed in the next
section) may be criminalized.

2. The Supreme Court’s struggle to define obscenity

ultimately convinced some members of the Court that the
government cannot legitimately regulate sexual
expression at all. See, e.g., Liles v. Oregon, 425 U.S. 963,
965 (1976) (Brennan, J., dissenting) (recognizing “the
difficulty and arbitrariness inherent in any attempt to
articulate a standard of obscenity”).

3. But such a view has never commanded a majority of the

Court—and the test for obscenity announced in 1973
remains the standard today.

4. That test, from Miller v. California, 413 U.S. 15 (1973),

provides that expression will be deemed obscene, and
hence utterly unprotected by the First Amendment, if it
satisfies each of the following three elements (id. at 24):

(a) whether the average person, applying contemporary

community standards, would find that the work,
taken as a whole, appeals to [a] prurient interest [in
sex];

(b) whether the work depicts or describes, in a patently

offensive way, sexual conduct specifically defined by
the applicable state law; and

(c) whether the work, taken as a whole, lacks serious

literary, artistic, political, or scientific value.

5. In a less-than-helpful elaboration of the first prong, the

Supreme Court stressed that a “prurient” interest in sex is
one that is “shameful or morbid” rather than “normal”
and “healthy.” Brockett v. Spokane Arcades, Inc., 472 U.S.
491, 498-99 (1985).

6. The “patently offensive” requirement in prong two is

gauged under local community standards, but the “lacks
serious ... value” require-ment in prong three is judged
under a national, objective test. Pope v. Illinois, 481 U.S.
497, 500-01 (1987).

133
 7. Though the private possession of obscene material is
protected from prosecution, Stanley v. Georgia, 394 U.S.
557, 565 (1969), the public exhibition of such material—
even in a theater open only to consenting adults—is not,
Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57 (1973).

8. Likewise, there is no protection for importing,

transporting, or distributing obscene material, even if
solely for private use.

* * *

CHILD PORNOGRAPHY

A. Under New York v. Ferber, 458 U.S. 747 (1982), child

pornography may be criminalized under the Miller obscenity
test as modified in the following ways (id. at 764):

1. As under Miller, the prohibited conduct must be

adequately defined by statute.

2. But unlike Miller, a trier of fact need not find that the
material appeals to the prurient interest of the average
person; and

3. it is not required that the sexual conduct be portrayed in

a patently offensive manner; and

4. the material at issue need not be considered as a whole.

In another departure from traditional obscenity precedents,

even the private possession of child pornography may be
criminalized. Osborne v. Ohio, 495 U.S. 103, 111 (1990).

But to fall within the unprotected category of child

pornography, the material must depict actual children, not
computer-generated beings who only look like children.
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

B. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)

1. Background

134
a. Advances in computer imaging technology have
enabled child pornographers to create computer-
generated child porn—i.e., pornographic materials
that depict children engaging in sexually explicit
activity without using real children to create the
materials. 35 U. SAN FRANCISCO L. REV. 109, 111
(2000).

b. Through a technique called “morphing,” the image

of an adult model can be scanned into a computer
and transformed through animation techniques into
a sexually explicit image of a child. Id. at 111-12.

c. Although the morphed image is “virtual,” it is

practically indistinguishable from an unretouched
photographic image of a real child in a sexually
explicit pose. Id. at 112.

d. These technological advancements were designed in

part to evade the reach of federal child pornography
law—which, prior to 1996, only criminalized the
production, distribution, and possession of visual
depictions of REAL children engaging in sexually
explicit conduct. Id. at 112 n.24.

e. To close that loophole, Congress enacted the Child

Pornography Prevention Act ("CPPA") in 1996. 18
U.S.C. §§ 2251-2260.

f. The CPPA amended the definition of child

pornography to include any “visual depiction [that]
is, or appears to be, of a minor engaging in sexually
explicit conduct.” 18 U.S.C. § 2256 (8)(B) (emphasis
added).

g. Accompanying the CPPA were 13 detailed

congressional findings in which Congress sought to
justify its prohibition of virtual child pornography.
18 U.S.C. § 2251. These included the assertions that:

(1) Pedophiles and child sexual abusers use child

porn “to stimulate and whet their own sexual
appetites,” regardless of whether actual
children were used in producing the imagery;
and

135
 (2) Protecting children from “sexual exploitation
provide[s] a compelling governmental interest”
in proscribing both real and virtual child porn.

Id.; 35 U. SAN FRANCISCO L. REV. at 113 n.28.

h. The CPPA also created an affirmative defense for

pornographers who use youthful-looking adults to
produce pornographic materials and do not market
such materials as child porn. 18 U.S.C. § 2252A(c).

2. The CPPA was challenged on First Amendment grounds as

unconstitutionally overbroad.

3. The Outcome:

a. This controversy produced a split in the federal

circuits.

b. The First and Eleventh Circuits upheld the CPPA’s

constitutionality, rejecting overbreadth challenges
to it:

(1) United States v. Hilton, 167 F.3d 61 (1st Cir.

1999).

(2) United States v. Acheson, 195 F.3d 645 (11th

Cir. 1999).

c. But the Ninth Circuit struck down the CPPA as

substantially overbroad. Free Speech Coalition v.
Reno, 198 F.3d 1083 (9th Cir. 1999).

d. Next, the Supreme Court stepped in, granting cert in

Free Speech Coalition, 121 S. Ct. 876 (U.S. Jan. 22,
2001) (No. 00-795).

e. And in a forceful opinion by Justice Kennedy, the

Court reaffirmed its adherence to Ferber’s definition
of child porn, holding that this category of
unprotected speech does NOT extend to “virtual”
imagery—i.e., computer-generated images that were
not produced by the exploitation of real children.

136
 Ashcroft v. Free Speech Coalition, 535 U.S. 234
(2002).

* * *

IV(E).
THE COURT’S RELUCTANCE TO CREATE NEW
CATEGORIES OF UNPROTECTED SPEECH
A. In 2010 and 2011, the Supreme Court handed down two
decisions that reveal a deep unwillingness to recognize any
additional categories of unprotected speech. Let’s take a close
look at those two decisions.

B. United States v. Stevens, 130 S. Ct. 1577 (2010)

1. OUTCOME: Striking down, as substantially overbroad, a

federal statute that criminalized depictions of animal
cruelty.

2. The statute—18 U.S.C. § 48—imposed up to five years of

jail time for anyone who knowingly “creates, sells, or
possesses a depiction of animal cruelty,” if done “for
commercial gain” in interstate or foreign commerce. 130
S. Ct. at 1582. A depiction of “animal cruelty” was defined
as one “in which a living animal is intentionally maimed,
mutilated, tortured, wounded, or killed,” if that conduct
violates federal or state law where “the creation, sale, or
possession takes place.” Id.

3. The statute was aimed primarily at the interstate market

for “crush videos,” which depict women slowly crushing
small animals like mice or hamsters to death “with their
bare feet or while wearing high heeled shoes,” sometimes
while “talking to the animals in a kind of dominatrix
patter.” Id. at 1583 (quoting the legislative history of §
48).

4. SIGNIFICANCE: This case is significant for the Court’s

refusal to recognize a new category of unprotected speech
for “depictions of animal cruelty.” Id. at 1585. Also
significant was the 8-to-1 vote, with Justice Alito the lone
dissenter. Since it would be difficult to imagine a more
loathsome form of expression than “crush videos,” the

137
 Court’s refusal to uphold the statute shows that the
Justices are reluctant to recognize new categories of
unprotected speech.

5. In arguing this case, the government’s primary strategy

was to invite the Court to hold that “depictions of animal
cruelty, as a class, are categorically unprotected by the
First Amendment.” Id. at 1384. And in pressing this
argument, the government collected language from
earlier cases in which the Court had described historically
unprotected speech categories as being “of such slight
social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social
interest in order and morality.” Chaplinsky v. New
Hampshire, 315 U.S. 568, 572 (1942).

6. From that descriptive language, the government

constructed a test for recognizing new categories of
unprotected speech: “Whether a given category of speech
enjoys First Amendment protection depends upon a
categorical balancing of the value of the speech against
its societal costs.” 130 S. Ct. at 1585 (quoting the
government’s brief).

7. Writing for the Court, Chief Justice Roberts responded as

follows to the government’s proposed test: “As a free-
floating test for First Amendment coverage, that sentence
is startling and dangerous. The First Amendment’s
guarantee of free speech does not extend only to
categories of speech that survive an ad hoc balancing of
relative social costs and benefits. The First Amendment
itself reflects a judgment by the American people that the
benefits of its restrictions on the Government outweigh
the costs. Our Constitution forecloses any attempt to
revise that judgment simply on the basis that some speech
is not worth it.” Id. at 1585.

8. Tracing the government’s test to descriptive language in

Chaplinsky, Chief Justice Roberts observed: “But such
descriptions are just that—descriptive. They do not set
forth a test that may be applied as a general matter to
permit the Government to imprison any speaker so long as
his speech is deemed valueless or unnecessary, or so long
as an ad hoc calculus of costs and benefits tilts in a
statute’s favor.” Id. at 1586.

138
 9. The Chief Justice went on to suggest that speech will be
deemed categorically unprotected only if it has so been
treated by long-standing historical tradition: “Our
decisions ... cannot be taken as establishing a
freewheeling authority to declare new categories of
speech outside the scope of the First Amendment. Maybe
there are some categories of speech that have been
historically unprotected, but have not yet been specifically
identified or discussed as such in our case law. But if so,
there is no evidence that ‘depictions of animal cruelty’ is
among them. We need not foreclose the future
recognition of such additional categories to reject the
Government’s highly manipulable balancing test as a
means of identifying them.” Id. at 1586.

C. Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729

(2011)

1. OUTCOME: Holding that video games qualify for First

Amendment protection; invoking strict scrutiny to strike
down a California law that banned the sale or rental of
“violent video games” to minors; and reasserting the
Court’s reluctance to recognize new categories of
unprotected speech.

2. Writing for a 7-2 majority, Justice Scalia rejected as

“unprecedented and mistaken” California’s effort “to
create a wholly new category of content-based regulation
that is permissible only for speech directed at children.”
States certainly possess “legitimate power to protect
children from harm,” he wrote, “but that does not include
a free-floating power to restrict the ideas to which
children may be exposed.” 131 S. Ct. at 2735-36.

3. Invoking United States v. Stevens, 130 S. Ct. 1577 (2010),

where the Court refused to recognize depictions of animal
cruelty as a new category of unprotected speech, Justice
Scalia argues that the holding in Stevens “controls this
case,” because in both cases the government sought to
justify categorical restrictions on violent speech by
analogizing that speech to obscenity. 131 S. Ct. at 2734.

4. Justice Scalia stressed that the Court will be unwilling to

recognize any new categories of unprotected speech

139
 “without persuasive evidence that a novel restriction on
content is part of a long (if heretofore unrecognized)
tradition of proscription.” Id. at 2734.

5. As a content-based restriction on protected speech, the

California statute must be analyzed under strict scrutiny—
i.e., it must be “justified by a compelling government
interest” and must be “narrowly drawn to serve that
interest”—and this means that “[t]he State must
specifically identify an ‘actual problem’ in need of solving,
and the curtailment of free speech must be actually
necessary to the solution.” Id. at 2738 (citations omitted).

6. Justice Alito, in a separate concurrence joined by Chief

Justice Roberts, disagreed with the broad sweep of the
majority’s holding and argued that the statute should
have been struck down on the narrower ground of
vagueness. But he wrote separately for another reason—to
stress the extraordinary realism and power of video
games, suggesting that a child’s experience in playing
them is far more vivid and visceral than reading a book, so
the Court should proceed cautiously in affording
unqualified protection to this new medium of expression.
Justice Alito then recounted the “astounding” violence to
be encountered in some video games: “Victims are
dismembered, decapitated, disemboweled, set on fire, and
chopped into little pieces. ... There are games in which the
player can take on the identity and reenact the killings
carried out by the perpetrators of the murders at
Columbine High School and Virginia Tech. The objective
of one game is to rape a mother and her daughters; in
another, the goal is to rape Native American women.
There is a game in which players engage in ‘ethnic
cleansing’ and can choose to gun down African-
Americans, Latinos, or Jews.” Id. at 2749-50 (footnotes
omitted).

7. Justice Scalia readily agreed that these illustrations were

disgusting—“but disgust is not a valid basis for restricting
expression.” Id. at 2738.

* * *

140
 IV(F).
THE LEWD/PROFANE/INDECENT
A. Cohen v. California, 403 U.S. 15 (1971)

1. Holding that the First Amendment precluded defendant’s

breach-of-the-peace conviction for walking through a
courthouse corridor wearing a jacket bearing the words,
“Fuck the Draft.”

2. Id. at 22-23 (holding that defendant’s choice of words

could be punished “[n]either upon the theory ... that its
use is inherently likely to cause violent reaction [n]or
upon a more general theory that the States, acting as
guardians of public morality, may properly remove this
offensive word from the public vocabulary”).

3. Id. at 25 (“Surely the State has no right to cleanse public

debate to the point where it is grammatically palatable to
the most squeamish among us.... [O]ne man’s vulgarity is
another’s lyric.”).

4. At the outset of his opinion, Harlan quickly disposes of

certain bases on which Cohen’s case might have been
analyzed (id. at 19-22):

a. His speech was NOT obscene; it was in no way erotic

or prurient.

b. His words were NOT “fighting words”; they were not

a direct personal invitation to fisticuffs.

c. This was NOT a “hostile audience” situation; there

was no proof (as in Feiner) that Cohen intentionally
tried to provoke a violent reaction, and nobody got
so angry in response to Cohen’s message that a
breach of the peace occurred (e.g., Terminiello).

d. Finally, Harlan asserts that this was neither a

captive audience situation nor an intrusion upon the
privacy of others.

141
 (1) These factors—captive audience, bombardment
of sensibilities, intrusion upon the privacy of an
unwitting “audience”—later prove important in
the Supreme Court’s treatment of the
Lewd/Profane/Indecent.

(2) We’ll see these factors resurface as important

themes in such other Lewd/Profane/Indecent
cases as Erznoznik, Pacifica, Sable, and Reno v.
ACLU.

5. How does Harlan frame the issue in this case?

a. He frames the issue as follows: Whether California

can remove “fuck” from the lexicon of public
discourse—either:

(1) because its use is inherently likely to cause a

violent reaction; or

(2) because the State may act as the guardian of

public morality, even to the point of regulating
the public vocabulary.

6. How does Harlan answer the two-pronged issue he poses?

a. Note how, in response to prong #1, he invokes

Tinker v. Des Moines School District, 393 U.S. 503
(1969): “[U]ndifferentiated fear or apprehension of
disturbance is not enough to overcome the right to
freedom of expression.” 403 U.S. at 23.

b. Note how, in response to prong #2, Harlan invokes

the self-governance and self-expression themes that
we saw (pages 5-8 of this Outline) as two of the three
principal justifications for protecting speech (403
U.S. at 24):

(1) “The constitutional right of free expression is

powerful medicine in a society as diverse and
populous as ours. It is designed and intended
to remove governmental restraints from the
arena of public discussion, putting the decision
as to what views shall be voiced largely into the
hands of each of us, in the hope that use of

142
 such freedom will ultimately produce a more
capable citizenry and more perfect polity and in
the belief that no other approach would
comport with the premise of individual dignity
and choice upon which our political system
rests.”

7. What reasons does Harlan cite for refusing to side with

the government here?

a. The power sought by the State is effectively limitless.

What holding would affirm this conviction and yet
preclude the State from cleansing public debate to a
level acceptable to the most squeamish? “[O]ne
man’s vulgarity is another’s lyric,” he says. Id. at 25.

b. The State is restricting the emotive, rather than the

cognitive, part of Cohen’s speech—and that
component is equally important. Id. at 26.

c. Finally, banning specific words will inevitably and

conveniently lead to the suppression of ideas—a
result we cannot be a party to, he says. Id. at 26.

8. At oral argument, the ACLU lawyer representing the

defendant (UCLA law professor Melville Nimmer) faced a
difficult choice: Should he or should he not utter the word
“fuck” when presenting his arguments to the Justices?
Nimmer gave the matter much thought. Finally, he grew
convinced that the case would be lost if he did not say the
word at least once. If he failed to say it out loud in open
court, he would be conceding that the State of California
was right—that “fuck” should be treated as unspeakable,
and that government could criminalize its use in public.
Accordingly, Nimmer began his oral argument by quickly
recounting the “Fuck the Draft” facts—much to the
displeasure of Chief Justice Burger, who voted to uphold
the defendant’s conviction. But Nimmer won his case, by a
5-4 vote. BOB WOODWARD & SCOTT ARMSTRONG, THE
BRETHREN: INSIDE THE SUPREME COURT 153-54 (1979) (2005
paperback edition).

B. Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) (striking

down ban on nudity projected on drive-in movie screens visible
to the public).

143
1. The City’s “Traffic Safety” Justification

a. The City argued here that its ordinance could be

justified on grounds of traffic safety—that the
regulation served to prevent passing motorists from
being distracted and possibly having accidents.

b. How did the Court respond to this argument?

(1) The Court rejected this argument.

(2) It found the “traffic safety” justification to be

“strikingly underinclusive,” since other movies
(e.g., Star Wars) will prove just as capable of
distracting passing motorists.

(3) Note that a content-neutral approach was

readily available to the City here: It need only
require that all drive-in movie screens be
positioned so that they can’t be seen from
public streets.

(4) The fact that this alternative was so readily

available to the City indicates that it may have
been interested less in “traffic safety” than in
banning movies with nudity.

2. The City’s “Captive Audience” Justification

a. In another attempt to justify its ordinance, the City

argued here that it was free to protect the public, as
a captive audience, from exposure to offensive
speech.

b. How did the Court respond to this argument?

(1) The Court rejected this argument.

(2) It observed that generally the State is NOT free

to single out ONE type of speech, banning it
alone, on the ground that it is more offensive
than other forms of speech.

144
 (3) This is precisely what the City attempted here,
singling out films containing nudity for special
prohibition.

(4) Selective bans on offensive but non-obscene

speech are upheld only in the captive audience
situation—but this ISN’T a captive audience
situation, because it involves neither the
bombardment of the home nor an audience
trapped in an enclosed space.

C. FCC v. Pacifica Foundation, 438 U.S. 726 (1978)

1. Upholding FCC’s power to sanction a radio station for the

afternoon broadcast of George Carlin’s “Filthy Words”
monologue, which was inadvertently heard on the car
radio of a father who was driving with his young son.

2. In delivering this monologue, the comedian, all the while

belittling their harm, repeatedly spoke the seven words
that “you couldn’t say ... you definitely wouldn’t say, ever,”
on the air: “shit, piss, fuck, cunt, cocksucker,
motherfucker, and tits.” 438 U.S. at 751.

3. Note how Justice Stevens, writing for the Court, defines

the issue in this case: Whether the FCC has the power to
regulate a radio broadcast that is “indecent” but falls
short of being obscene.

4. Note how Stevens, while paying lip service to the

marketplace of ideas, LIKENS profanity to obscenity: They
are equally worthless as a step to truth.

5. And he asserts that restrictions on profanity go to the

FORM, not the content, of expression.

6. Finally, in one of the most important aspects of this

opinion, Stevens asserts that the BROADCAST medium is
not entitled to the same level of First Amendment
protection as the PRINT medium.

a. Invoking a “nuisance” rationale, and observing that

each medium of mass communications requires a
distinct approach under the First Amendment,
Stevens holds that the BROADCAST medium is

145
 especially vulnerable to content-based restrictions
on indecent speech.

b. This is because, 438 U.S. at 748-49:

(1) The broadcast media “have established a

uniquely pervasive presence in the lives of all
Americans.”

(2) Indecent material coming in over the airwaves

“confronts the citizen, not only in public, but
also in the privacy of the home,” where the
individual’s right to be left alone “plainly
outweighs” the First Amendment rights of “an
intruder.”

(3) Since “the broadcast audience is constantly

tuning in and out, prior warnings cannot
completely protect the listener or viewer from
unexpected program content.”

(4) And, finally, “broadcasting is uniquely

accessible to children, even those too young to
read.”

c. Thus, Stevens uses the

captive-audience/bombardment-of-unwilling-
listeners rationale in justifying reduced First
Amendment protection for the BROADCAST medium.

7. What arguments does Justice Brennan advance in dissent?

a. Brennan’s dissent undercuts the captive audience

rationale by stressing the voluntary and affirmative
nature of tuning in to a broadcast—a distinction that
would loom large to the lawyers who tried Reno v.
ACLU, 521 U.S. 844 (1997) (where a huge issue was
the degree of protection to be afforded speech in the
new medium of the Internet).

b. Brennan argues that the Court is permitting

majoritarian tastes to preclude an unoffended
minority from tuning in.

146
 c. The laudable goal of protecting children, he asserts,
does not mean reducing the adult population to
receiving only what is fit for kids.

d. Leave it to the public, not to the unrestrained

discretion of the FCC, to divide the worthless from
the worthwhile.

e. Refuting Stevens’s argument that bans on profanity

reach only the form, not the content, of expression,
Brennan asserts that stripping a statement of its
particular phrasing may result in a “sterilized”
message that lacks the emotive power of the profane
original.

D. Fleeting Expletives and Pacifica’s Continuing Vitality: FCC v.

Fox Television Stations, 129 S. Ct. 1800 (2009)

1. In a case stemming from televised music award shows in

which a few celebrities uttered the words “fuck” and
“shit” in unscripted remarks, the Court narrowly upholds,
as neither arbitrary nor capricious under the
Administrative Procedure Act, a dramatic policy change
by the FCC—a shift from permitting to banning a single
“fleeting use” of an expletive by broadcasters.

2. The Court does not reach the constitutional issue because

the lower courts disposed of the case on APA grounds, but
in multiple concurring and dissenting opinions there is
much discussion of the limits and continued vitality of
Pacifica.

3. Justice Stevens stresses that Pacifica dealt not with an

isolated expletive but a 12-minute barrage of profanity,
such that Pacifica should not be viewed as a sound basis
for the FCC’s desire to ban “any word with a sexual or
scatological origin, however used,” id. at 1827 (Stevens,
J., dissenting).

4. Meanwhile, Justice Thomas questions Pacifica’s continued

vitality as a basis for imposing any restrictions on
broadcasters, observing that its “spectrum scarcity”
rationale is hopelessly outdated, id. at 1819-22 (Thomas,
J., concurring).

147
E. Iancu v. Brunetti, 139 S. Ct. 2294 (2019)

1. Ruling in favor of trademark registration for “FUCT” as

the brand name of a clothing line.

2. Though this case falls within the realm of the

Lewd/Profane/Indecent precedents, it is important for its
handling of VIEWPOINT discrimination.

3. The Court struck down, as viewpoint based, the Lanham

Act’s ban on registering any “immoral[] or scandalous”
trademarks.

4. By prohibiting the registration of “scandalous”

trademarks, the Lanham Act “allows registration of marks
when their messages accord with, but not when their
messages defy, society’s sense of decency and propriety.”
Id. at 2300.

5. “[A] law disfavoring ‘ideas that offend’ discriminates

based on viewpoint, in violation of the First Amendment.”
Id. at 2301.

F. In Pacifica’s Wake: The Supreme Court’s “Medium-Specific”

Treatment of Mass Communications Media

1. In its treatment of mass communications media, the

Supreme Court has adopted a “medium-specific” analysis.
ACLU v. Reno, 929 F. Supp. 824, 873 (E.D. Pa. 1996)
(supporting opinion of Dalzell, J.), aff’d, 521 U.S. 844
(1997).

2. The cases featuring broadcast (Pacifica), cable (Playboy),

and Inter-net (Reno) regulation of “indecency,” for
example, make clear that judicial scrutiny will vary
depending upon the MEDIUM of expression.

3. The Court is most deferential to restrictions on

broadcasters (e.g., Pacifica and Red Lion Broadcasting Co.
v. FCC, 395 U.S. 367 (1960)).

4. The Court is least deferential to restrictions on the print

medium (e.g., Miami Herald Publishing Co. v. Tornillo,
418 U.S. 241 (1974)).

148
 5. In justifying this divergent treatment, the Court has
stressed two aspects of broadcasting:

a. its unique pervasiveness and intrusiveness

(Pacifica); and

b. the inherent scarcity of its transmission frequencies

(Red Lion).

6. When confronted with new forms of communication ...

a. “dial-a-porn” (Sable Communications, Inc. v. FCC,

492 U.S. 115 (1989));

b. cable TV (United States v. Playboy Entertainment

Group, 529 U.S. 803 (2000)); and

c. and the unsolicited mailing of contraceptives

(Bolger v. Youngs Drug Products Corp., 463 U.S. 60
(1983)) ...

the Court has struggled to analogize them either to print

or to broadcast.

7. Though the Court has ruled that cyberspace

communications are entitled to the same unqualified
protection reserved for the print medium (Reno v. ACLU),
it has balked at doing the same for cable TV (Playboy).

G. Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989)

1. Striking down an FCC ban on indecent “dial-a-porn”

communica-tions.

2. Significant here, once again, were the nature of the

medium and the extent to which this speech bombarded a
captive audience.

3. The Court struck down this ban partly because, in

contrast to the broadcast medium (where you can turn on
the TV or radio and be hit without warning by indecent
content), “the dial-it medium requires the listener to take
affirmative steps to receive the [indecent]
communication.” 492 U.S. at 127-28 (emphasis added).

149
 4. This “affirmative steps” factor would loom large in Reno v.
ACLU, helping to distinguish the medium of cyberspace
from the medium of broadcasting.

H. Reno v. ACLU, 521 U.S. 844 (1997)

1. Striking down (on overbreadth grounds) a ban on the

Internet transmission of indecent communications.

2. Given the Court’s longstanding reluctance to give NEW

communica-tions media (e.g., radio and TV) the same
high level of protection enjoyed by the print medium, the
Reno decision has great historical importance—because it
elevates speech in cyberspace to the same exalted position
reserved for books and newspapers. 521 U.S. at 870.

3. What are the reasons cited by the Court in arriving at that

momentous conclusion?

a. Since the three factors justifying heightened

regulation of the broadcast medium—

(1) the history of extensive government regulation

of broadcasting;

(2) the scarcity of available frequencies at its

inception; and

(3) its “invasive” nature

—are NOT present in cyberspace, there is no basis

for qualifying the level of First Amendment scrutiny
that should be applied to content-based restrictions
on Internet speech. 521 U.S. at 868-70.

b. As for the first factor, the Internet has never been

subjected to the vast degree of government
supervision that has attended the broadcast medium.

c. As for the second factor, spectrum scarcity is by no

means a characteristic of the Internet; its barriers to
entry are extremely low for speakers and listeners
alike, for communications of all kinds.

150
d. Finally, and again in sharp contrast to the broadcast
medium, “[c]ommunications over the Internet do not
‘invade’ an individual’s home or appear on one’s
computer screen unbidden.” 521 U.S. at 869
(quoting the district court’s findings of fact, 929 F.
Supp. at 844). This theme evokes the “affirmative
steps” idea from Sable—the notion that, in
cyberspace, one goes actively searching for material
rather than being passively bombarded by it, that
“[u]sers seldom encounter content ‘by accident,’”
Reno, 521 U.S. at 869.

e. Accordingly, speech in cyberspace enjoys the same

unqualified protection as that reserved for books and
newspapers. 521 U.S. at 870.

f. What First Amendment doctrine did the Court invoke

in striking down the challenged provisions of the Act
—and, in applying that doctrine, what reasons did
the Court identify in explaining why the Act was
unconstitutional?

(1) The Court invoked the OVERBREADTH doctrine

in striking down the challenged provisions.

(2) Writing for the Court, Justice Stevens observed:

“In order to deny minors access to potentially
harmful speech, the [Act] effectively suppresses
a large amount of speech that adults have a
constitutional right to receive and to address to
one another,” 521 U.S. at 874.

(3) He noted that a speaker could not “confidently

assume” that serious discussions of birth
control, homosexuality, or prison rape—or even
“the card catalogue of the Carnegie Library,”
id. at 878—would not run afoul of the Act’s
“indecency” prohibition, id. at 871.

(4) Since the Internet is “open to all comers,” the

possibility of a minor gaining access to such
communications is always present, and the
criminal penalties imposed by the Act were
severe (two years in prison and a fine of
$250,000).

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 (5) Thus, the Act’s inevitable effect would be to
reduce the level of discourse on the Internet
from that suitable for adults to that suitable
only for children:

“‘[R]egardless of the strength of the

government’s interest’” in protecting children,
“‘[t]he level of discourse reaching a mailbox
simply cannot be limited to that which would
be suitable for a sandbox.’” Id. at 875 (quoting
Bolger v. Youngs Drug Products Corp., 463 U.S.
60, 74-75 (1983)).

4. In a famous passage, Justice Stevens observed (521 U.S.

at 870):

“Through the use of chat rooms, any person with a phone

line can become a town crier with a voice that resonates
farther than it could from any soapbox. Through the use
of Web pages, mail exploders, and newsgroups, the same
individual can become a pamphleteer. As the District
Court found, ‘the content of the Internet is as diverse as
human thought.’ We agree with its conclusion that our
cases provide no basis for qualifying the level of First
Amendment scrutiny that should be applied to this
medium.”

I. Congress Tries Again To Ban Indecent Internet Speech—but

the Supreme Court Strikes Down the New Statute (“COPA”) in
Ashcroft v. ACLU, 542 U.S. 656 (2004)

1. After the Supreme Court struck down the

Communications Decency Act in Reno v. ACLU, 521 U.S.
844 (1997) (discussed immediately above), Congress tried
again to criminalize indecent Internet expression in a new
statute, the Child Online Protection Act (“COPA”). Under
COPA, knowingly posting sexually explicit material on the
Internet for commercial purposes was punishable by a fine
of $50,000 and six months in prison.

2. The Court upheld an injunction by the district court that

barred the government from enforcing COPA. The Court
upheld the injunction because the district court found

152
 “plausible, less restrictive alterna-tives to COPA”—
namely, blocking and filtering software.

3. Filters are less restrictive than COPA, found the Court,

because “[t]hey impose selective restrictions on speech at
the receiving end, not universal restrictions at the
source.” 542 U.S. at 667.

J. United States v. Playboy Entertainment Group, Inc., 529 U.S.

803 (2000) (invoking strict scrutiny to strike down—as a
content-based restriction on protected speech—a federal
statute that singled out cable operators who provided channels
“primarily dedicated to sexually-oriented program-ming,”
requiring them either to limit their transmissions to between
10:00 p.m. and 6:00 a.m. or purchase very expensive equipment
in order to “fully scramble” their transmissions during daylight
hours).

1. Writing for the Court, Justice Kennedy observed: “[There

is a] key difference between cable television and the
broadcasting media, which is the point on which this case
turns: Cable systems have the power to block unwanted
channels on a household-by-household basis. [Simply]
put, targeted blocking is less restrictive than banning,
and the Government cannot ban speech if targeted
blocking is a feasible and effective means of furthering its
compelling interests.” 529 U.S. at 804.

K. Regulating Adult Entertainment Establishments: The

“Secondary Effects” Doctrine

1. The secondary effects doctrine is confined to the

regulation of adult entertainment establishments—e.g.,
strip clubs, X-rated video stores, and X-rated movie
theaters. The government asserts in these cases that, even
though it is singling out such establishments based on the
sexually explicit content of the expression there, its aim is
to combat the “secondary effects” of those establishments
—e.g., prostitution, declining property values, crime, and
blight.

2. If the government makes a showing that it enacted the

legislation in order to combat these “secondary effects,”
then the courts will TREAT that legislation AS IF it were
truly content neutral.

153
3. The secondary effects doctrine has been applied to a wide
range of laws governing adult entertainment
establishments. These include zoning laws and laws
restricting window displays, hours of operation, and the
interaction between performers and customers.

4. Young v. American Mini-Theatres, 427 U.S. 50 (1976)

a. Upholding Detroit’s “Anti-Skid-Row Ordinance,” a

zoning restriction on the location of adult theaters
that forced their dispersal in order to avert the
creation of “red light” districts.

b. Justice Stevens, writing for the Court, denies that

the ordinance is a content-based restriction on
speech, even though he concedes that it treats adult
theaters differently due to the content of the
material shown there.

c. In footnote 34 (427 U.S. at 71), the Court first

broaches the “secondary effects” doctrine, observing
that the purpose of the ordinance was not to
suppress the content of speech but to prevent the
crime and declining property values that often follow
such theaters.

5. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41

(1986)

a. In an opinion by Justice Rehnquist, the Court here

upholds a zoning ordinance that required the
concentration of adult movie theaters in order to
avoid the spread of blight.

b. While conceding that “the ordinance treats [adult]

theaters differently from other kinds of theaters,”
Rehnquist upholds the ordinance because “[it] is
aimed not at the content of the films shown [but] at
the secondary effects of such theaters on the
surrounding community.” 475 U.S. at 47 (emphasis
added).

c. Since the regulatory aim of the Renton ordinance

was directed at the crime and declining property

154
 values that frequently accompany adult theaters, not
the sexually explicit content of the films they exhibit,
id. at 48, the ordinance “is completely consistent
with our definition of ‘content-neutral’ speech
regulations as those that ‘are justified without
reference to the content of the regulated speech,’”
id. at 48-49 (emphasis added) (quoting Virginia
Pharmacy Board v. Virginia Citizens Consumer
Council, Inc., 425 U.S. 748, 771 (1976)).

L. Some Finer Points on “Secondary Effects”—a Closer Look at

Renton, Alameda Books, and the Nude Dancing Cases

1. What were the three arguments leveled against the

Renton ordinance, and how did Justice Rehnquist respond
to those arguments?

2. The three arguments were:

a. The City had enacted this ordinance without

bothering to conduct any studies or gather any
evidence demonstrating that its enactment was
calculated to combat the particular secondary effects
prevailing in this community.

b. The ordinance was underinclusive because it failed

to regulate other kinds of adult businesses—like
bars, massage parlors, and adult bookstores—that
were equally likely to produce secondary effects.

c. By relegating adult theaters to only five percent of

the city’s available land, some of which was already
occupied by existing businesses, the ordinance did
not leave open “reasonable alternative avenues of
communication.”

3. In rejecting each of these arguments, Rehnquist

responded:

a. The City was not required to conduct its own

investigation. Instead, it was free to place
reasonable reliance on the empirical studies of other
municipalities. 475 U.S. at 51-52.

155
 b. The ordinance was not underinclusive for failing to
embrace massage parlors and other adult
businesses. The City was free to address adult
businesses one step at a time. Id. at 52-53.

c. So long as the City did not completely withhold all

zoning for adult theaters, it was not required to
ensure that such establishments be afforded sites at
“bargain prices.” Id. at 54.

4. What TEST Should You Apply in These “Secondary

Effects” Cases?

a. The key language from Renton says that “zoning

ordinances designed to combat the undesirable
secondary effects of [sexually oriented] businesses
are to be reviewed under the standards applicable to
‘content-neutral’ time, place, and manner
regulations.” Id. at 49.

b. So the correct test to apply is the three-prong

INTERMEDIATE SCRUTINY standard.

5. What if a city relies on a study that focused only on ONE

kind of adult business (e.g., cabarets with nude dancing),
but it seeks to USE that study to regulate a totally
DIFFERENT kind of adult business (e.g., a store selling
books and videos but offering no live entertainment)?

See Z.J. Gifts v. City of Aurora, 136 F.3d 683, 687 (10th
Cir. 1998) (dissimilarity between adult businesses
examined in secondary effects study on which city relied
and adult businesses the city sought to regulate did not
affect the ordinance’s content-neutrality for First
Amendment purposes).

6. The Supreme Court later issued a similar ruling when it

upheld a Los Angeles ordinance barring two or more adult
entertainment establishments from occupying the same
building.

The Court held that the city could justify this ban by using
studies that focused on single-use, not multiple-use,
buildings. City of Los Angeles v. Alameda Books, Inc., 535
U.S. 425 (2002).

156
7. Alameda Books is interesting for the candor that Justice
Kennedy uses to describe the secondary effects doctrine.
Writing separately (in an opinion that concurred in the
judgment), Kennedy asserted that “[this ordinance] is
content-based and we should call [it] so,” adding that
Renton’s effort to describe such ordinances as content-
neutral “was something of a fiction.” 535 U.S. at 448.

a. Rather than perpetuating that “fiction,” wrote

Kennedy, the Court should expressly recognize that
these ordinances are content-based—but they
function as a useful regulatory tool for local
governments, so it makes no sense to demolish that
tool with the blunt force of strict scrutiny. Instead,
wrote Kennedy, the Court should expressly create an
exception for these ordinances, subjecting them to
intermediate, not strict, scrutiny. Id. at 448-49.

b. Why? Because these ordinances do not constitute an

assault on free speech: “As a matter of common
experience, these sorts of ordinances are more like a
zoning restriction on slaughter-houses and less like
a tax on unpopular newspapers.” Id. at 449.

8. The Nude Dancing Cases: Glen Theatre and Pap’s A.M.

a. Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)

In a 5-4 decision that did NOT produce a majority

opinion, the Court found no First Amendment
violation in the application of Indiana’s public
indecency statute to nude dancing, where the
statute, as construed by the state courts, required
dancers to wear pasties and a G-string.

b. A 3-vote plurality rested its result on an asserted

governmental power to regulate public morality.

c. But Justice Souter, casting the swing vote, balked at

endorsing that sweeping rationale.

d. Instead, Souter’s concurrence offered a far narrower

rationale, concluding that the State’s power to
combat the secondary effects of nude dancing

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 establishments—NOT any broad power to regulate
public morality—justified the application of its public
indecency statute to the dancers in the Kitty Kat
Lounge. 501 U.S. at 582.

e. Nine years later—in City of Erie v. Pap’s A.M., 529

U.S. 277 (2000)—the Supreme Court for the first
time used the secondary effects doctrine to justify a
total ban on public nudity. In the process, the Court
made it even EASIER for cities to invoke the
secondary effects doctrine.

(1) First, Pap’s A.M. reaffirmed the holding in

Renton that, in terms of demonstrating a link
between sexually oriented businesses and the
threat of secondary effects, a city need not
conduct new studies or produce evidence
independent of that already generated by other
cities, so long as whatever evidence the city
relies upon is reasonably believed to be
relevant to the problem at hand. 529 U.S. at
296.

(2) Then, Pap’s A.M. made it even easier for

municipalities to invoke the secondary effects
doctrine, holding that cities can “reasonably
rely on the evidentiary foundation set forth in
Renton and American Mini-Theatres [to
establish] that secondary effects are caused by
the presence of even one adult entertainment
establishment in a given neighborhood.” 529
U.S. at 297.

f. The difference between Pap’s A.M. and Barnes lies in

the REGULATORY DEVICES by which government
accomplished the objective of banning nude dancing.

(1) Barnes involved the application of Indiana’s

PUBLIC INDECENCY STATUTE to nude
dancing. That statute, as construed by the state
courts, required dancers to wear pasties and a
G-string.

(2) Pap’s A.M. featured an ordinance that TOTALLY

BANNED public nudity—an ordinance whose

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 preamble invoked the secondary effects
doctrine by citing “a recent increase in nude
live entertainment within [our] City [that]
adversely impacts the … public health, safety,
and welfare by providing an atmosphere
conducive to violence, sexual harassment,
public intoxication, prostitution, the spread of
sexually transmitted diseases, and other
deleterious effects.” 529 U.S. at 290.

(3) The significance of Pap’s A.M. is that:

(a) it marks the first time that the Supreme

Court has used the secondary effects
doctrine to justify a total ban on public
nudity; and

(b) it makes the secondary effects doctrine

even easier for cities to invoke.

M. Summing up the Lewd/Profane/Indecent:

1. Cohen v. California tells us that profanity in the service of

core political speech will receive heightened indulgence—
and that the government cannot remove certain epithets
(like “fuck”) from the lexicon of public discourse.

2. Young, Renton, Glen Theatre, Pap’s A.M., and Alameda

Books indicate that when it comes to adult theaters and
nude dancing, courts will be especially deferential to
restrictions that are justified as targeting “secondary
effects.”

3. The cases featuring broadcast, cable, and Internet

regulation of “indecency” make clear that judicial
scrutiny will vary depending upon the medium of
expression:

a. Broadcast: FCC v. Pacifica Foundation, 438 U.S. 726,

748 (1978) (stressing the sharply diminished speech
rights of broadcasters vis-à-vis their counterparts in
the print media in upholding the FCC’s power to
sanction a radio station for the daytime broadcast of
George Carlin’s “Filthy Words” monologue).

159
 b. Cable TV: United States v. Playboy Entertainment
Group, Inc., 529 U.S. 803 (2000) (using strict
scrutiny to strike down a federal statute banning
“signal bleed” of sexual images because such images
can be fully blocked upon request by individual cable
subscribers); id. at 804 (“There is a key difference
between cable television and the broadcasting
media, which is the point on which this case turns:
Cable systems have the capacity to block unwanted
channels on a household-by-household basis.”).

c. Telephone: Sable Communications v. FCC, 492 U.S.

115 (1989) (striking down a federal statute that
sought to eliminate the “dial-a-porn” industry); id. at
128 (stressing that “there is no ‘captive audience’
problem here; callers will generally not be unwilling
listeners” because they must take affirmative steps—
dialing a specific number—in order to receive the
indecent communication).

d. Internet: Reno v. ACLU, 521 U.S. 844, 868-70 (1997)

(since the factors justifying heightened regulation of
the broadcast media—the history of extensive
government regulation of broadcasting, the scarcity
of available frequencies at its inception, and its
“invasive” nature—are not present in cyberspace,
there is no basis for qualifying the level of First
Amendment scrutiny that should be applied to
content-based restrictions on Internet speech;
accordingly, speech in cyberspace enjoys the same
elevated protection as that reserved for books and
newspapers).

The Court is most deferential to restrictions on

broadcasters; the Court is least deferential to restrictions
on the print medium and the Internet. Pacifica; Reno v.
ACLU.

4. Finally, Pacifica, Erznoznik, Sable, and Reno demonstrate

that indecent speech faces greater judicial hostility the
more it is seen to bombard an unwilling audience.

* * *

IV(G).

160
 HATE SPEECH

A. Beauharnais v. Illinois, 343 U.S. 250 (1952)

1. UPHOLDING group libel conviction of a Chicago white

supremacist/segregationist who distributed leaflets
stigmatizing blacks while soliciting membership in the
White Circle League, of which he was president.

2. Note the date of decision (1952)—seven years after

Hitler’s death.

3. Notice the language of the jury instruction that the trial

court refused to give; it’s taken directly from Terminiello
v. City of Chicago, 337 U.S. 1, 4 (1949), which we
encountered while studying the “hostile audience” cases
[section II(B) of this Outline].

4. Note who writes the 5-4 opinion for the Court in

Beauharnais: Justice Felix Frankfurter, who could vividly
recall from his own life encountering virulent anti-
Semitism, and who includes references to religious as well
as racial hatred throughout his opinion.

5. Note how Frankfurter starts out by invoking Chaplinsky to

underscore that libelous utterances are not a fully-
protected category of expression.

6. The State, he observes, is just as free to punish GROUP

libels as individual libels—unless the legislation is a
“willful and purposeless restriction unrelated to” the
public interest.

7. Illinois, he says, may look to its own violent history of race

relations in finding a justification for restricting the type
of speech at issue here.

8. Judicial invalidation of this statute cannot rest on the

argument that it is misguided or won’t work, says
Frankfurter; this is a policy choice we can’t deny the
legislature, so long as it’s related to the problem at hand.

161
 9. Just because the governmental power we recognize here is
susceptible to abuse is no reason for withholding it from
Illinois.

10. Libelous statements, Frankfurter concludes, are no more

deserving than obscenity of the added layer of protection
afforded by the “clear and present danger” jury
instruction urged by the defendant.

11. What does Justice Black argue in dissent?

a. Black, dissenting, refutes the GROUP libel analogy

that Frankfurter draws to criminal libel and fighting
words.

b. Both of those doctrines are narrowly confined to

utterances directed at SPECIFIC INDIVIDUALS.

c. Expanding them to expressions of opinion directed

at huge groups greatly expands the censorial power
of the State.

B. Group Defamation and Hate Speech

1. Is Beauharnais dead?

2. Did it survive New York Times v. Sullivan, 376 U.S. 254

(1964)?

a. It seems doubtful that Beauharnais could still be

good law in the wake of Times v. Sullivan—

(1) because Sullivan CONSTITUTIONALIZED the

law of libel;

(2) because, in Sullivan’s wake, only FALSE

statements, NOT opinions, are vulnerable to
punishment; and

(3) because group libel entails the expression of

opinion, NOT false statements of fact.

3. But why isn’t hate speech punishable as a species of

“fighting words”?

162
 4. Or, even if it doesn’t fit neatly into the narrow definition
of fighting words, why can’t hate speech form a new
category of “low-level” expression, consistent with the
language in Chaplinsky, 315 U.S. at 572 (“no essential
part of any exposition of ideas,” and of only “slight social
value as a step to truth”)?

5. Isn’t hate speech regulation affirmatively beneficial to the

First Amendment goal of promoting debate, since its
object is to prevent CHILLING the speech of minorities?

C. There are three possible governmental justifications for

regulating hate speech—with three different implications for
First Amendment doctrine.

1. The Justifications:

a. We want to punish hate speech because it HURTS

people, because it inflicts INJURY (à la “fighting
words”).

b. We want to punish hate speech because it expresses

a sentiment that society rightfully condemns—it
propagates a BAD, NOXIOUS idea (à la the
subversive advocacy cases).

c. We want to punish hate speech because the Equal

Protection Clause is a rival constitutional value that
precludes First Amendment protection for racist
speech.

2. The Implications:

a. Justification #1 (inflicts injury) requires an

EXPANSION of the fighting words doctrine, far
beyond the narrow definition that currently prevails.

b. Justification #2 (noxious idea) would require a

RADICAL departure from our existing approach to
content-based regulation.

(1) It would open the door to criminalizing the

expression of unpopular ideas or opinions.

163
 (2) Professor Mari Matsuda concedes as much, but
asserts nevertheless that racist speech is so
harmful, so dangerous, so historically
untenable that we may safely treat it as sui
generis—and thus properly outside the realm of
protected discourse. Matsuda, Public Response
to Racist Speech: Considering the Victim’s
Story, 87 MICH. L. REV. 2320 (1989).

(3) But Professor Mark Graber counters that those

who would ban hate speech forget that they are
using the same justifications as those who
previously called for banning anti-World-War-I
speech, Communist speech, and radical labor
speech—that those sentiments threatened what
each generation regarded as fundamen-tal
constitutional values. Graber, Old Wine in New
Bottles: The Constitutional Status of
Unconstitutional Speech, 48 VAND. L. REV. 349
(1995).

(4) Note, too, that if we created a new category of

unprotected expression for hate speech, it
would be the ONLY such category permitting a
speech restriction because society condemns
the VIEWPOINT or OPINION being expressed.

(5) In a word, we’d be making a particular

viewpoint taboo—and that is not the case with
any of the other “low-value” speech categories.

(6) Whether it’s lewd or profane, or obscene

speech, defamatory or commercial speech,
none of these categories entails singling out a
particular VIEWPOINT as TABOO.

(7) The same is true of fighting words and illegal

advocacy, which are prohibited not to suppress
a viewpoint but to prevent the instigation of
immediate lawlessness.

c. Justification #3 (Equal Protection Clause as rival

constitutional value that precludes First Amendment
protection for racist speech) would likewise require
a substantial rewriting of our speech jurisprudence,

164
 building into it either a balancing test or a
categorical ban on racist speech. But reliance on the
Equal Protection Clause raises questions about what
other speech would be included; e.g., sexist speech,
homophobic speech, etc.

(1) This leads to the observations of Professor

Robert Post: The call for altering the First
Amendment playing field to promote the speech
of victim groups becomes less and less tenable
as the roster of victim groups grows (referring
to speech codes that list not just race and
gender but national origin, sexual orientation,
age, handicap, and veteran’s status). Post,
Racist Speech, Democracy, and the First
Amendment, 32 WILLIAM & MARY L. REV. 267
(1991).

(2) Arguably, the campus speech codes are a bald

political assertion of which ideas may be
expressed and which may not; they are just as
arbitrary as those promoted by earlier
generations.

D. By the mid 1990s, when the smoke had cleared, the battle to
vest government with greater power to punish hate speech—
and to punish pornography as a species of hate speech—had
been lost.

1. The key cases:

a. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (hate

speech ordinance);

b. Doe v. University of Michigan, 721 F. Supp. 852 (E.D.

Mich. 1989) (campus speech code); and

c. American Booksellers Association, Inc. v. Hudnut,

771 F.2d 323 (7th Cir. 1985), aff’d mem., 475 U.S.
1001 (1986) (Indianapolis ordinance attempting to
ban pornography as a species of hate literature).

2. What happened?

165
 a. Courts refused to expand the fighting words doctrine
and refused to create new categories of unprotected
expression to which hate speech and pornography
might have been relegated.

b. Given these refusals, the courts either used

overbreadth analysis (Doe, Hudnut) to strike down
such speech codes, or, as in R.A.V., held that
viewpoint discrimination is impermissible even
within the parameters of an unprotected category
like fighting words.

E. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)

1. Striking down St. Paul’s Bias-Motivated Crime Ordinance,

which prohibited the display of a swastika, burning cross,
or any other symbol that one knows will arouse “anger,
alarm, or resentment in others” on the basis of race,
color, creed, religion, or gender—even though the state
supreme court imposed on the ordinance a narrowing
construction confining its ambit to fighting words.

2. Justice Scalia, for the Court, writes an opinion designed to

address not only this law but also to deal a crippling blow
to all hate speech codes.

3. On what basis does he strike down this ordinance?

Scalia holds that even when the government is regulating

speech within the parameters of an unprotected category
like fighting words, it is NOT free to single out particular
ideas or viewpoints for special proscription; such
selectivity is no different under the First Amendment than
other forms of viewpoint-based discrimination, and is
likewise subject to strict scrutiny.

F. Wisconsin v. Mitchell, 508 U.S. 476 (1993).

1. Unanimously upholding Wisconsin’s hate-crime-penalty-

enhance-ment statute, which tacked on an added jail term
for certain crimes in which the defendant selected his
victim on the basis of race, religion, etc.

2. Chief Justice Rehnquist, writing for the Court, is

unpersuasive in trying to reconcile this result with R.A.V.,

166
 since, in both instances, the government was singling out
particular bigoted viewpoints for special punishment.

3. The best he can do is to say that R.A.V. punished the

EXPRESSION of such a viewpoint, while Mitchell merely
punishes the CONDUCT animated by such a viewpoint.

G. American Booksellers Association, Inc. v. Hudnut, 771 F.2d 323

(7th Cir. 1985) (striking down an ordinance that attempted to
ban pornography as a species of hate literature), aff’d mem.,
475 U.S. 1001 (1986).

1. In a unique ordinance drafted by feminist scholars, the

City of Indianapolis attempted to ban all pornography as a
species of hate literature.

2. The ordinance defined “pornography” as:

the graphic sexually explicit subordination of

women, whether in pictures or in words, that
also includes, [inter alia,] [w]omen ...
presented as sexual objects for domina-tion,
conquest, violation, exploitation, possession, or
use, or through postures or positions of
servility or submission or display.

771 F.2d at 324.

3. In striking down this ordinance, the Seventh Circuit held

that its restrictions were viewpoint-based, id. at 332-33,
since “[s]peech that ‘subordinates’ women [is] forbidden,
[but speech] that portrays women in positions of equality
is lawful,” id. at 328.

4. “This,” the court concluded, “is thought control.... Those

who espouse the approved view may use sexual images;
those who do not, may not.” Id. at 328.

5. More broadly, the court observed that the power exercised

here by the legislature was essentially that of a Director of
Approved Viewpoints, regulating noxious sentiment to
promote the purifica-tion of our culture. Bigotry, anti-
Semitism, TV violence are all culturally poisonous, the
court acknowledged, but upholding viewpoint-based
regulations of such speech puts government in the role of

167
 “the great censor and director of which thoughts are good
for us.” Id. at 330.

H. Virginia v. Black, 538 U.S. 343 (2003), is prominently featured

here in the Hate Speech section of our book—and appropriately
so, since it involves a frightening act of cross-burning. But we
have already encountered Virginia v. Black in our study of true
threats, and I think that the most appropriate way to
conceptualize the case is to place it in the true threats
category. Though the Supreme Court ruled that Virginia’s ban
on cross-burning with intent to intimidate did not violate the
First Amendment, the upshot of the case is that some acts of
cross-burning will now qualify as unprotected true threats.

a. The Supreme Court held that States may criminalize

cross-burning so long as the state statute clearly puts the
burden on prosecutors to prove that the act was intended
as a threat and not as a form of symbolic expression.

b. For doctrinal purposes, Black’s effect is to include, within

the unprotected speech category of true threats, those
acts of cross-burning that are intended to intimidate a
person or group of persons, placing them in fear of bodily
harm or death.

* * *

SUMMING UP THE SUPREME COURT’S

APPROACH TO “LOW-LEVEL” SPEECH

This lecture proceeds in three sections, which correspond to

the following three questions:

(1) What is the Court’s approach to “low-level”

speech?

(2) Is the approach misguided?

(3) Why doesn’t the approach permit greater

restrictions on hate speech and pornography?

A. What is the Court’s approach to “low-level” speech?

1. We take our cue from Chaplinsky, which relegates to

unprotected or less-than-fully-protected status those

168
 categories of speech that are unworthy of full First
Amendment protection because they are (315 U.S. at
572):

a. “no essential part of any exposition of ideas,”

b. and are of only “slight social value as a step to

truth.”

2. How do we make sense of this language in figuring out

whether speech may be appropriately relegated to “low-
level” status?

a. By resort to the three key themes that scholars and

courts have identified as justifications for First
Amendment protection:

(1) promoting self-government;

(2) promoting the search for truth; and

(3) promoting self-expression/self-fulfillment.

3. What is the central principle that characterizes the

Court’s approach in creating low-level categories?

a. Government is free to protect the public from

significant harms, but it has no power to punish the
expression of ideas or opinions.

b. The list of low-level categories is significant for what

it does NOT contain: There are no ideas, opinions, or
viewpoints that are singled out as taboo.

c. False statements of fact, fighting words, profanity,

and obscenity don’t contain ideas or opinions per se.

(1) Obscenity is raw sex; there are no ideas or

opinions at stake.

(2) Child porn is kids exposing their genitalia; once

again, no ideas here.

(3) Defamation is limited to false statements of

FACT, not ideas or opinions.

169
 d. Even the advocacy of imminent lawless action (“Let’s
blow up the R.I.T.A. Office right now!”), which might
be regarded as an idea or opinion, is best regarded
as akin to fighting words:

(1) an invitation to immediate lawlessness (like the

evidentiary concept of verbal acts).

(2) Absent the imminent lawbreaking that the

statement invites, the government would NOT
be free to punish the mere opinion that
revolution is necessary. (See, e.g., Yates and
Scales.)

4. So, to sum up the answer to Question #1 (“What is the

Court’s approach to ‘low-level’ speech?”):

a. We see that the Court, even in creating certain low-

level categories of speech, has been careful NOT to
vest the government with the power to outlaw
particular ideas, viewpoints, or opinions.

b. What characterizes the categories so far created is

that they do NOT allow government to serve as
gatekeeper to the marketplace of ideas.

B. Is the approach misguided?

1. This is a question for you to decide; there’s no right or

wrong answer.

2. Let me simply throw some observations onto the table:

a. The approach has been criticized as arbitrary and

susceptible to judicial abuse. Critics assert that it
leaves judges free to go on endlessly expanding the
list of unprotected categories on an ad hoc basis,
singling out new forms of expression that the public
disfavors. But the Court’s decision in United States
v. Stevens, 130 S. Ct. 1577 (2010), refusing to
recognize a new category of unprotected speech for
depictions of animal cruelty, contradicts this
criticism. Stevens indicates that the Court is
reluctant to recognize new categories of unprotected

170
 speech and will add them only in accordance with
long-standing historical tradition.

b. A related criticism is that the categories read like a

Top Ten List of the most unpopular forms of
expression—that they have been singled out because
they are particularly threatening to majority values.

(1) But this is a reason for protecting them, not for

reducing their status under the First
Amendment (the “representation
reinforcement” theory of constitutional
interpretation).

c. These criticisms are countered by the notion that the

approach is simply a common-sense recognition that
some speech is more valuable than others:

(1) that the debate over taxes and federal spending

is just qualitatively different from pictures of
children exposing their genitalia,

(2) and that it makes no sense for the First

Amendment to give the SAME level of
protection to BOTH.

d. Ultimately, according to this argument, the First

Amendment will afford BETTER protection for
VALUABLE speech if we candidly acknowledge a
qualitative difference between political speech and
obscenity—so that protections for the former are not
DILUTED by treating it as indistinguishable from the
latter.

C. Why doesn’t (or shouldn’t) the approach permit GREATER

restrictions on hate speech and pornography?

1. Once again, there’s no right or wrong answer here; it’s up

to you to decide if existing First Amendment law is
WRONG in failing to vest government with greater power
to prohibit hate speech and pornography.

2. Let me simply put some observations on the table in the

hope that they will illuminate the NATURE of the Court’s
approach to content-based regulation of speech.

171
3. The key question raised by the movement for punishing
hate speech is this:

“Why can’t we all agree that hate speech is so

poisonous, so noxious, so obviously WRONG
that society may properly punish its
expression?”

4. From the standpoint of existing First Amendment law,

there are two distinct problems with this:

a. it entails majoritarian selection of which ideas go

unprotected; and

b. it involves singling out a particular viewpoint or

opinion and making it taboo.

5. Problem #1: Majority control over permissible expression

is incon-sistent with First Amendment doctrine (West
Virginia State Board of Education v. Barnette, 319 U.S.
624, 642 (1943)) and inconsistent with the purpose
behind the Bill of Rights (to prevent, in Madison’s words,
the “tyranny of the majority”). Majority opinions don’t
need the First Amendment’s protection.

6. Problem #2: Making a viewpoint or opinion taboo is

inconsistent with First Amendment law (R.A.V. v. City of
St. Paul, 505 U.S. 377, 382 (1992)).

a. As we’ve seen, this is the one power that is denied

the government under existing First Amendment
law.

b. It contradicts the “marketplace of ideas” principle

that lies at the heart of modern First Amendment
law.

7. These were the very impulses—making certain ideas or

opinions taboo because they offended the political
majority—that created the repressive world in which
Eugene Debs and 2,000 other defendants were prosecuted
for expressing opposition to World War I.

172
8. In other words, these were the very conditions that
spawned the Holmes/Brandeis approach to free speech—
the approach that still prevails today.

9. The problem with letting the majority dictate that certain

ideas be made taboo is that many valuable ideas start out
as provocative minority viewpoints:

a. opposition to racial segregation;

b. opposition to the Vietnam War;

c. giving women the vote;

d. and giving women access to contraceptives.

10. Those who advocate punishing hate speech and

pornography would argue that purely hateful and
demeaning expressions are singularly poisonous,
singularly harmful, and readily distinguishable from the
now-popular ideas I’ve just listed.

11. Surely we can draw a line between hateful speech and the
viewpoints I’ve just listed.

12. Maybe we can. But don’t forget who is being entrusted

with that power—the State.

13. Be aware that, no matter how well meaning, the impulse

to punish particular viewpoints involves surrendering to
the government the power to declare which viewpoints are
punishable and which are not.

14. If American history reveals anything, if the cases we’ve

read show anything, it’s that the government does not
always behave responsibly or with pure motives when
regulating speech.

15. So, at the end of the day, the question of content-based

regulation comes down to the question of how much
power we are willing to surrender to the State.

* * *

V.

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 TIME, PLACE, AND MANNER RESTRICTIONS:
LIMITATIONS ON THE MEANS OF
COMMUNICATION
AND THE PROBLEM OF CONTENT-NEUTRALITY
DOCTRINAL INTRODUCTION

A. Content-Based Versus Content-Neutral Restrictions: Diverging

Levels of Judicial Scrutiny

1. When the government regulates speech, it does so in one

of two ways:

a. restricting expressive content; or

b. restricting the time, place, or manner of its

expression.

2. Judicial hostility to the former is much greater than to the

latter.

a. “It is axiomatic,” the Supreme Court has stressed,

“that the government may not regulate speech based
on its substantive content or the message it
conveys.” Rosenberger v. Rector & Visitors of the
University of Virginia, 515 U.S. 819, 828 (1995).

3. Accordingly, the best way to begin any Speech Clause

analysis is to determine whether you are looking at a
content-based or a content-neutral restriction.

4. The answer to that question will dictate one of two

divergent tests:

a. strict scrutiny for content-based restrictions; or

b. intermediate scrutiny for time, place, and manner

restrictions.

5. We will now examine, in the following order:

a. the diverging tests employed under strict and

intermediate scrutiny; and

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 b. the standards for gauging content neutrality.

6. Strict Scrutiny versus Intermediate Scrutiny

a. The test for content-based restrictions on protected

speech is strict scrutiny:

To survive judicial review, the regulation must be

“necessary, and narrowly drawn, to serve a
compelling state interest.” Capitol Square Review &
Advisory Board v. Pinette, 515 U.S. 753, 761 (1995).

b. The test for time, place, and manner restrictions,

from Ward v. Rock Against Racism, 491 U.S. 781,
791 (1989), is a form of intermediate scrutiny that
has three distinct prongs.

To survive judicial scrutiny under this test, the

regulation:

(1) must be content-neutral;

(2) must be narrowly tailored to serve a significant

government interest; and

(3) must leave open ample alternative channels for

communicating the information.

c. Some Finer Points on Strict Scrutiny: The

Distinction Between Content-Based and Viewpoint-
Based Restrictions on Speech

(1) You already know that CONTENT-based speech

restric-tions are subject to strict scrutiny.
VIEWPOINT-based speech restrictions are even
worse than content-based restrictions.

(2) The Supreme Court regards viewpoint

discrimination as “an egregious form of
content discrimination” that is “presumptively
unconstitutional.” Rosenberger v. Rector &
Visitors of the University of Virginia, 515 U.S.
819, 829-30 (1995).

175
(3) What is the difference between CONTENT
discrimina-tion and VIEWPOINT
discrimination? A CONTENT-based restriction
singles out a particular topic or subject for
regulation. A VIEWPOINT-based restriction
ventures within a given topic or subject,
singling out a particular idea or opinion for
disfavored treatment.

(4) Here is an example of a CONTENT-based

speech restriction. Cleveland City Council
enacts an ordinance that provides, “No one
shall comment on Mayor Jackson’s
performance in office.” Here is an example of a
VIEWPOINT-based speech restriction:
Cleveland City Council enacts an ordinance
that provides, “No one shall criticize Mayor
Jackson’s performance in office.”

(5) Notice how the CONTENT-based restriction

singles out an entire topic or subject for
regulation: Mayor Jackson’s performance in
office. Meanwhile, the VIEWPOINT-based
restriction takes sides on that topic, allowing
praise of the Mayor but banning criticism. This
is why viewpoint discrimination is a greater
offense to the First Amendment than content
discrimination—because, with VIEWPOINT
discrimination, the government is favoring
particular ideas, opinions, perspectives over
others.

(6) Viewpoint discrimination is the one power that

the government is always denied—even when
regulating a nonpublic forum (Christian Legal
Society v. Martinez, 130 S. Ct. 2971, 2984 n.11
(2010)), even when regulating an unprotected
speech category (R.A.V. v. City of St. Paul, 505
U.S. 377, 391 (1992)).

(7) In recent years, the Supreme Court has shown

a staunch commitment to striking down all
forms of viewpoint discrimination, even where
the targeted speech was crude or racist. See,
for example...

176
 (8) Matal v. Tam, 137 S. Ct. 1744 (2017) (striking
down, as viewpoint based, the Lanham Act’s
ban on registering trademarks that “disparage”
any “person[], living or dead”) (ruling in favor
of trademark registration for “The Slants,” an
Asian-American rock band); Iancu v. Brunetti,
139 S. Ct. 2294 (2019) (striking down, as
viewpoint based, the Lanham Act’s ban on
registering any “immoral[] or scandalous”
trademarks) (ruling in favor of trademark
registration for “FUCT” as the brand name of a
clothing line); id. at 2300 (by prohibiting the
registration of “scandalous” trademarks, the
Lanham Act “allows registration of marks when
their messages accord with, but not when their
messages defy, society’s sense of decency and
propriety”); id. at 2301 (“[A] law disfavoring
‘ideas that offend’ discriminates based on
viewpoint, in violation of the First
Amendment.”).

d. Some Finer Points on Intermediate Scrutiny:

(1) Prong 2’s “Narrow Tailoring” Requirement:

(a) The Supreme Court has stressed that this

prong does not require time, place, and
manner restrictions to be the least
restrictive or least intrusive means of
achieving the government’s objective.
Ward, 491 U.S. at 798-99. But to satisfy
the narrow tailoring requirement, a
speech restriction “must not ‘burden
substantially more speech than is
necessary to further the government’s
legitimate interests.’” McCullen v.
Coakley, 134 S. Ct. 2518, 2535 (2014)
(quoting Ward, 491 U.S. at 799).

(b) Until 2014, when the Supreme Court

handed down McCullen, the narrow
tailoring requirement was not stringently
enforced. Instead, lower courts adopted a
relaxed approach to narrow tailoring,

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 based upon one particular sentence in
Ward: “[T]he requirement of narrow
tailoring is satisfied ‘so long as
the...regulation promotes a substantial
government interest that would be
achieved less effectively absent the
regulation.’” 491 U.S. at 799 (quoting
United States v. Albertini, 472 U.S. 675,
689 (1985)).

(c) Viewed in isolation, that lone statement

suggests a deferential role for the courts
in reviewing time, place, and manner
restrictions. But viewed in context, the
statement appears in a much more
nuanced discussion of narrow tailoring,
where the Supreme Court also says:
“Government may not regulate expression
in such a manner that a substantial
portion of the burden on speech does not
serve to advance its goals.” Ward, 491
U.S. at 799. Twenty-five years later, in
McCullen, Chief Justice Roberts
invigorated the narrow tailoring
requirement by delving back into Ward
and dredging up that quotation, plus
other speech-protective statements that
accompanied it. McCullen v. Coakley, 134
S. Ct. 2518, 2535 (2014).

(d) In the years prior to McCullen, the case

law reflects a relaxed conception of
narrow tailoring. Regulations failing this
test invariably featured broad restraints
on traditional forms of expressive activity
—imposing, for example, sweeping
prohibitions on parades, demonstrations,
residential picketing, door-to-door
leafleting, or public handbilling. Then as
now, the narrow tailoring requirement is
violated by a categorical ban on any of the
foregoing methods of expressive conduct.
It is also violated by a restriction that
substantially deprives citizens of any of
those methods. So, for example, an

178
 ordinance would violate the narrow
tailoring requirement by banning parades
anywhere within the city’s central
business district on all workdays—because
it would allow parades only when the
downtown streets are bereft of onlookers.
Sixteenth of September Planning
Committee, Inc. v. City and County of
Denver, 474 F. Supp. 1333 (D. Colo.
1979).

(e) Absent a categorical or substantial ban on

a traditional method of expressive activity,
courts prior to 2014 routinely upheld
time, place, and manner restrictions as
satisfying the narrow tailoring
requirement.

(f) In McCullen, the Supreme Court

strengthened the narrow tailoring
requirement—striking down, for lack of
narrow tailoring, a Massachusetts statute
that barred speakers from entering fixed
35-foot buffer zones at abortion clinics.
The legislature enacted this statute when
police found it difficult to enforce an
earlier statute, one that imposed a
floating six-foot buffer zone surrounding
patients as they came within 18 feet of
abortion clinics. McCullen, 134 S. Ct. at
2525-26.

(g) Writing the majority opinion, Chief Justice

Roberts stressed that the government’s
power to restrict speech in a traditional
public forum is “very limited,” id. at 2529,
and that: “[T]o be narrowly tailored,” a
speech restriction “must not burden
substantially more speech than is
necessary to further the government’s
legitimate interests,” id. at 2535 (internal
quotation marks and citations omitted).

(h) “By demanding a close fit between ends

and means,” wrote the Chief Justice, “the

179
 tailoring requirement prevents the
government from too readily sacrificing
speech for efficiency,” id. at 2534-35
(internal quotation marks and citations
omitted).

(i) To satisfy the narrow tailoring

requirement, he insisted, the government
“may not regulate expression in such a
manner that a substantial portion of the
burden on speech does not serve to
advance its goals,” id. at 2535 (internal
quotation marks and citations omitted).
Another way of expressing this last
requirement is that it is not enough for
speech regulators to recite a government
interest that is significant in the abstract;
the regulation must be narrowly tailored
to achieve that government interest, with
a real nexus between the regulation and
the govern-ment’s ostensible objective.

(j) Perhaps the most significant feature of

McCullen’s narrow tailoring analysis is
the following require-ment that it imposes
on the government: “To meet the
requirement of narrow tailoring, the
govern-ment must demonstrate that
alternative measures that burden
substantially less speech would fail to
achieve the government’s interests, not
simply that the chosen route is easier.” Id.
at 2540 (emphasis added). To satisfy that
requirement, “it is not enough for [the
government] simply to say that other
approaches have not worked.” Id.

(k) It seems that McCullen has shifted the

legal land-scape, prompting judges to
perform a more searching analysis of the
narrow tailoring require-ment. Two cases
—one decided before McCullen, the other
decided after—provide a good example.
Both cases pose the same question: Does
the narrow tailoring requirement allow

180
 the govern-ment to impose a total ban on
stepping into the street and approaching
the occupants of motor vehicles stopped
at traffic lights to solicit money or sell
newspapers? The pre-McCullen decision
upholds the ordinance with no hesitation;
the parties actually stipulated that the law
was narrowly tailored. The Contributor v.
City of Brentwood, 726 F.3d 861 (6th Cir.
2013). The post-McCullen decision strikes
the law down for lack of narrow tailoring.
Reynolds v. Middleton, 779 F.3d 222 (4th
Cir. 2015).

(l) The key difference between these cases is

that the post-McCullen decision gives
great weight to McCullen’s requirement
that the government must affirmatively
demonstrate that alternative measures
burdening substantially less speech would
fail to achieve the government’s goal.
Given the overwhelming government
interest in promot-ing pedestrian and
traffic safety that comes into play when
people enter roadways, many judges, even
in McCullen’s wake, will be inclined to up-
hold such an ordinance. But after
McCullen, their narrow tailoring analysis
won’t be quite so deferential as before.

(m) Here is a recent example of the post-

McCullen trend toward searching analysis
under the narrow tailoring prong: Brewer
v. City of Albuquerque, 18 F.4th 1205
(10th Cir. 2021) (striking down—for lack
of narrow tailoring—an ordinance that
sharply restricted pedestrians from
stepping into the street and interacting
with motor vehicles in a travel lane or
near a freeway entrance or exit ramp); id.
at 1214-15 (echoing McCullen’s insistence
that narrow tailoring requires the
government to produce concrete, case-
specific evidence showing that its
proposed restriction will actually achieve

181
 its asserted interest without burdening
substan-tially more speech than
necessary).

(2) Prong 3’s “Ample Alternative Channels”

Requirement:

(a) Under Ward’s third prong, the regulation

must leave open ample alternative
channels for communicating the speaker’s
message. Two different themes run
through the cases that construe this
requirement.

(b) First, the Supreme Court has shown a

“special solicitude” for inexpensive
methods of communi-cation (e.g., leaflets
or homemade signs). City of Los Angeles
v. Taxpayers for Vincent, 466 U.S. 789,
812-13 n.30 (1984). Accordingly, a speech
restriction may run afoul of this
requirement if it precludes forms of
expression that are much less expensive
than feasible alternatives.

(c) Second, the ample alternative channels

require-ment most commonly arises when
a speaker identifies one particular place
as uniquely suited to conveying her
message, but the government insists that
she take up position in an alternative
location. The basic test for gauging the
sufficiency of alternative channels is
whether the speaker is afforded a forum
that is accessible and where the intended
audience is expected to pass. Students
Against Apartheid Coalition v. O’Neil, 660
F. Supp. 333, 339 (W.D. Va. 1987); accord
Bay Area Peace Navy v. United States, 914
F.2d 1224, 1229 (9th Cir. 1990).

(d) In performing this analysis, a court

should take account of (1) the speaker’s
intended audience and (2) the extent to
which her chosen location contributes to

182
 her message. Million Youth March, Inc. v.
Safir, 18 F. Supp. 2d 334, 347-48 (S.D.N.Y.
1998); accord Nationalist Movement v.
City of Boston, 12 F. Supp. 2d 182, 191-93
(D. Mass. 1998).

(e) A speech restriction does not leave open

ample alternative channels if the speaker
is left unable to reach her intended
audience. United States v. Baugh, 187
F.3d 1037, 1044 (9th Cir. 1999); Service
Employee International Union v. City of
Los Angeles, 114 F. Supp. 2d 966, 972
(C.D. Cal. 2000).

(f) In Students Against Apartheid Coalition v.

O’Neil, 660 F. Supp. 333 (W.D. Va. 1987),
student protesters successfully challenged
the University of Virginia’s lawn-use
regulations, under which they had been
barred from erecting symbolic shanties to
protest South African apartheid and to
urge the University’s governing body to
adopt a divestment policy toward South
Africa. The students’ intended audience
was the University’s governing body,
whose on-campus meetings were confined
to a famous old building called the
Rotunda. But the University would permit
the erection of shanties only in those
areas “beyond earshot or clear sight of
the Rotunda.” By making their shanties—
and thus their message—invisible to the
governors ensconced in the Rotunda, this
restriction thwarted the students’ ability
to reach their intended audience.
Accordingly, the court struck it down as
failing to afford adequate alternative
channels of communication. 660 F. Supp.
at 339-40.

(g) Accord Martin Luther King, Jr. Movement,

Inc. v. City of Chicago, 419 F. Supp. 667
(N.D. Ill. 1976) (where civil rights
organization sought to march through

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 white neighborhood, its previous foray
there having been curtailed when
bystanders pelted the procession with
rocks, bricks, and explosive devices, city
officials violated the First Amendment in
denying the organizers a permit for a
second march through the same neighbor-
hood, proposing instead an alternate
route through an all-black neighborhood);
id. at 673-74 (since the whole point of
plaintiffs’ march was to publicize and
protest a pattern of violence against
blacks attempting to reside in or travel
through the specified neighborhood, the
city’s proposal for an alternate route—
taking plaintiffs away from that
neighborhood and away from their
intended audience—was constitutionally
inadequate as an alternative channel of
communication).

7. Gauging Content Neutrality:

a. The content neutrality requirement will be violated

by any regulation that describes permissible
expression in terms of its subject matter. So the first
step in content neutrality analysis is to check the
face of the statute. Reed v. Town of Gilbert, 135 S.
Ct. 2218, 2228 (2015).

b. Police Department of Chicago v. Mosley, 408 U.S. 92

(1972), provides an example of a time, place, and
manner regulation that, on its face, failed the
content neutrality requirement. In Mosley, an
ordinance prohibited all picketing within 150 feet of
any school building while classes were in session—
but picketing was allowed if the school was involved
in a labor dispute. Writing for the Court, Justice
Thurgood Marshall observed that the ordinance
“describes impermissible picketing not in terms of
time, place, and manner, but in terms of subject
matter. The regulation thus slips from the neutrality
of time, place, and circumstance into a concern
about content. This is never permitted.” Id. at 99
(internal quotation marks and footnote omitted).

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c. Mosley does not exemplify the only way that a speech
restriction can violate the content neutrality
requirement. Even if the regulation does not, as in
Mosley, expressly discriminate on the basis of
subject matter, it can run afoul of the content
neutrality requirement if the circumstances
surrounding its enactment reveal a governmental
intent to favor or punish particular messages. Town
of Gilbert, 135 S. Ct. at 2227.

d. But speech restrictions will be deemed content

neutral, even if they impinge more severely on a
particular speaker or message, so long as they are
facially content neutral and the government can
credibly justify its regulation as serving purposes
that have nothing to do with the content of speech.

e. A good example of this may be found in Community

for Creative Non-Violence v. Kerrigan, 865 F.2d 382
(D.C. Cir. 1989), where a federal regulation banned
the overnight maintenance of any “props” on the
U.S. Capitol grounds. This regulation effectively
thwarted a plan by homeless advocates to erect, as
part of a seven-day vigil, a 500-pound clay statue of a
man, woman, and child huddled over a steam grate.
The homeless advocates complained that the
overnight ban would require them to dismantle their
statue every evening and rebuild it each morning—
which, over the course of their seven-day vigil, would
cause the statue to disintegrate. Thus, they
complained, the regulation was content-based
because it imposed a special hardship on their
capacity to communicate their message. The court
flatly disagreed, noting that neither the text nor the
enforcement history of the regulation indicated any
content-based animus by the government. Instead,
the government offered a credible, content-neutral
justification for the ban: By requiring the nightly
removal of home-made signs and other props from
Capitol Hill, the regulation simply gave the
government meaningful day-to-day control over the
Capitol grounds, so that they could be cleared of
debris and cleaned each night. Given this content-

185
 neutral justification, the court held that the
regulation could not be deemed content based.

f. To sum up, here are the basic steps and lessons to

remember about content neutrality analysis. The
first step is to check whether the law is content
based on its face. Reed v. Town of Gilbert, 135 S. Ct.
2218, 2228 (2015).

g. A law is facially content based if it applies to

particular speech because of the topic discussed or
the idea, message, or viewpoint expressed. Town of
Gilbert, 135 S. Ct. at 2227, 2230.

h. A speech restriction that is facially content based is

subject to strict scrutiny regardless of the
government’s reason for enacting it. Id. at 2228.

i. Even if a law is content neutral on its face, it will be

governed by strict scrutiny if the government had
content-based motives in adopting it. Id. at 2227.

j. So if a law is content neutral on its face, the second

step is to examine the government’s reason for
enacting it. Id. at 2228.

k. Strict scrutiny can be avoided only if the government

can credibly justify the law as serving purposes
unrelated to the content of the regulated speech. Id.

B. The Various Guises in Which Content-Based and Content-

Neutral Regulations Appear

1. Impermissible content-based restrictions appear in a

variety of guises; for issue-spotting purposes, they may be
grouped into five discrete categories:

a. First, where the government categorically

suppresses or favors a particular topic or message—
as, for example, in Boos v. Barry, 485 U.S. 312
(1988), where a District of Columbia statute banned
the display of any sign criticizing a foreign
government within 500 feet of its embassy.

186
 b. Second, where the government serves as a content-
conscious gatekeeper, selectively blocking access to
a forum based on the speaker’s intended message—
as, for example, in Mahoney v. Babbitt, 105 F.3d
1452 (D.C. Cir. 1997), where the National Park
Service sought to prevent anti-abortion protesters
from displaying banners along the route of President
Clinton’s inaugural parade.

c. Third, where the government subjects unpopular

speakers to a higher fee for using a forum—as, for
example, in Forsyth County v. Nationalist Movement,
505 U.S. 123 (1992), where, under a local permit
scheme, the fee for police protection could be
increased if the speaker was likely to generate
controversy.

d. Fourth, where the government withholds a service or

subsidy to which the speaker would otherwise be
entitled if not for his message—as, for example, in
Rosenberger v. Rector & Visitors of the University of
Virginia, 515 U.S. 819 (1995), where a student
religious journal was denied the same subsidy for
printing costs that the university furnished to all
other student publications.

e. Fifth, where the government alters the speaker’s

intended message as the price for access to a forum
—as, for example, in Hurley v. Irish-American Gay,
Lesbian & Bisexual Group of Boston, 515 U.S. 557
(1995), where, as the price for securing their permit,
the private organizers of a St. Patrick’s Day parade
were compelled by the government to include a
contingent of gay and lesbian marchers, whose very
presence would impart a message that the
organizers did not wish to convey.

2. Time, place, and manner regulations come in many forms:

a. imposing limits on the noise level of speech;

b. fixing caps on the number of protesters who may use

a given forum;

187
 c. barring early-morning or late-evening
demonstrations; and

d. restricting the size or placement of signs on

government property.

Such regulations are frequently upheld and represent a

common part of the regulatory landscape in most cities.

C. Content-Based Versus Content-Neutral Regulations: An

Introductory Trio of Hypotheticals

1. In each of the following hypos, we move steadily away

from direct content-based restrictions, but do the First
Amendment problems go away as the regulations appear
to become increasingly content-neutral?

a. Scenario #1: First, suppose a law that prohibits any

person from criticizing U.S. intervention in Vietnam.

b. Scenario #2: Second, suppose a law that prohibits

the display of a peace symbol by participants in any
demonstration or parade.

c. Scenario #3: Third, suppose a law that prohibits all

demonstra-tions and parades.

2. Scenario #1 features a viewpoint-based restriction. It

singles out CRITICISM of the war for special prohibition,
while leaving PRAISE for the war unregulated.

3. The regulation in Scenario #2, while not banning the

expression of anti-war sentiment, does single out that
viewpoint for disadvanta-geous treatment, since those
favoring the war did not make use of peace symbols. The
enactment of this restriction therefore poses the specter
of a legislative motive to suppress the viewpoint. Though
the restriction will likely be justified on the grounds that
it is intended to prevent a hostile audience reaction, we
have seen (in Skokie, Terminiello, and the hostile
audience cases) that this is an illegitimate basis for
restricting speech.

4. The regulation in Scenario #3 is facially content-neutral—

but it, too, raises the specter of illegitimate intent, since

188
 most demonstrations and parades during the Vietnam era
were conducted by those opposing the war.

5. The lesson to be learned here is that the mere fact of

facial content-neutrality does not necessarily remove the
possibility that the legislature’s intent was content-based
or viewpoint-based.

*****

V(A).
GENERAL PRINCIPLES

A. General Principles of Time/Place/Manner Case Law

1. Schneider v. New Jersey, 308 U.S. 147 (1939)

a. Striking down ordinances that prohibited leafleting

without a license but furnished no standards
governing the issuance of such licenses.

b. Observing that governmental concerns about

littering are an insufficient justification for a broad
ban on leafleting. Id. at 162.

c. Famously asserting that “one is not to have the

exercise of his liberty of expression in appropriate
places abridged on the plea that it may be exercised
in some other place.” Id. at 163.

2. Martin v. City of Struthers, 319 U.S. 141 (1943)

a. Striking down an outright ban on all door-to-door

leafleting.

b. Observing that door-to-door distribution of circulars

may be a nuisance, but it is “essential to the poorly
financed causes of little people.” 319 U.S. at 146.

c. Peering behind the legislative text to find an

illegitimate regulatory purpose: Though the door-to-
door leafleting ban was justified in large part as a
crime control measure designed to prevent
burglaries, id. at 144, the Supreme Court did not

189
 hesitate to peer behind the asserted governmental
justifica-tion, where it found an illegitimate
regulatory purpose, id. at 147: “[Because] the
dangers of distribution can so easily be controlled by
traditional legal methods, [the challenged
ordinance] can serve no purpose but that forbidden
by the Constitution, the naked restriction of the
dissemination of ideas.”

3. Kovacs v. Cooper, 336 U.S. 77 (1949)

a. Upholding ordinance prohibiting use on city streets

of sound trucks emitting “loud and raucous” noises.

b. Justifying its decision, the 5-4 majority stresses that

certain means of expression may create a level of
public nuisance or disturbance that warrants
governmental restriction, without violating the First
Amendment.

c. Black, dissenting, stresses the need for protecting

inexpensive methods of communication, so that the
powerful in society do not enjoy a disproportionate
advantage in the available media of expression. Id. at
102 (Black, J., dissenting).

4. Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981)

a. Voting 6-3, the Court strikes down a San Diego

ordinance that banned virtually all outdoor
advertising display signs.

b. Of the six justices who voted with the majority, four

regarded the ordinance as content-based.

c. Brennan, joined by Blackmun, regarded the

ordinance as akin to the bans in Schneider and
Struthers, which wiped out a particular means of
communication.

(1) Like the sweeping restrictions on leafleting in

those early cases, the instant ban (asserted
Brennan) effectively eliminated the billboard as
a means of communication.

190
 (2) And Brennan was unwilling to uphold such a
restriction based on the flimsy record that San
Diego had established in support of its twin
justifications: traffic safety and aesthetics.

d. Stevens, in dissent, stresses the need to respect a

city’s desire to improve its aesthetics, and he
belittles the theme of protecting inexpensive means
of communication by knocking down the straw man
of graffiti as a cheap method of expression that
government should have the power to ban.

5. City of Ladue v. Gilleo, 512 U.S. 43 (1994)

a. Unanimously striking down a “visual clutter”

ordinance that barred homeowners from displaying
signs—even political signs—on their property. The
defendant here had been thwarted by the ordinance
from displaying a small sign opposing U.S.
intervention in the Persian Gulf.

b. Writing for the Court, Justice Stevens—echoing a

theme that runs through Schneider, Struthers,
Metromedia, and Black’s dissent in Kovacs—stresses
the danger of foreclosing an entire MEANS of
communication.

c. Stevens also stresses a theme that he belittled in his

Metromedia dissent: the special importance of
preserving INEXPENSIVE modes of communication.

6. Here is a case that pairs nicely with City of Ladue. It

strikes down, as a violation of the intermediate scrutiny
test, a total ban on portable signs—because the ban wipes
out a “venerable” method of com-munication. LaCroix v.
Town of Fort Myers Beach, 38 F.4th 941, 951 (11th Cir.
2022) (holding that the government cannot completely
foreclose a traditional medium of expression).

a. In LaCroix, the Eleventh Circuit discerned a direct

parallel with City of Ladue, not only in the
categorical sweep of the ban but also in its targeting
of a traditional, inexpensive medium of expression.

191
 b. The court observed: “Just like the political signage
banned from residential property in City of Ladue,
handheld signs are inexpensive, they are easy to
create and customize, and they can reach a wide
variety of listeners. ... The rich tradition of political
lawn signs perhaps is surpassed only by America’s
history of marches and rallies dotted with handheld
signs and placards of every imaginable description
and covering every conceivable political message.”
38 F.4th at 951.

7. Bartnicki v. Vopper, 532 U.S. 514 (2001) (recognizing

First Amendment protection for the publication or
broadcast of truthful information about a matter of public
concern, even if the information was obtained unlawfully).

8. Themes to be gleaned from these cases:

a. Banning—rather than merely limiting—an entire

MEANS of communication will be treated with
heightened judicial hostility (e.g., Struthers,
Schneider, Metromedia, Ladue).

b. A concern with protecting INEXPENSIVE means of

communi-cation:

(1) Struthers: “essential to the poorly financed

causes of little people.” 319 U.S. at 146.

(2) Black’s dissent in Kovacs. 336 U.S. at 102.

(3) Ladue: for persons of “modest means,” lawn

signs are especially useful. 512 U.S. at 57.

(4) But the Court has stressed that its “special

solicitude” for inexpensive modes of
communication “has practical boundaries.”
City Council of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789, 812 n.30 (1984) (citing,
inter alia, the Stevens dissent in Metromedia
(ban on graffiti is constitutionally permissible
even though some creators of graffiti may have
no equally effective alternative means of public
expression)).

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 c. The notion, best expressed in Kovacs, that
government has a freer hand in restricting the time,
place, and manner of expression than its content.

d. Struthers, however, shows a willingness to peer

behind the asserted governmental justification if a
time/place/manner restriction seems like an effort to
restrict the dissemination of ideas (recall that the
defendant here was a member of the Jehovah’s
Witnesses, an unpopular group at that time).

*****

V(B).
SPEECH ON PUBLIC PROPERTY:
THE PUBLIC FORUM

*****

DOCTRINAL INTRODUCTION

1. Speech on Public Property: An Introduction to the Public

Forum Doctrine

a. Access to public property for speech-related activity

is governed by the public forum doctrine.

b. The Supreme Court has adopted a “forum-based”

approach to assessing restrictions that the
government seeks to impose on the expressive use of
its property. For purposes of forum analysis, the
Court has divided all government-owned property
into four categories:

(1) “traditional” public forums;

(2) “designated” public forums;

(3) “limited” public forums; and

(4) “nonpublic” forums, this last category

comprising all of the government property not
embraced within the first three.

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c. Traditional public forums are places that “by long
tradition or by government fiat have been devoted to
assembly and debate.” Perry Education Association
v. Perry Local Educators’ Association, 460 U.S. 37,
45 (1983). They are largely confined to public
squares, streets, parks, and sidewalks.

d. Designated and limited public forums come into

existence when the government takes public
property that is not a traditional public forum and
intentionally opens it up for expressive purposes.
Walker v. Texas Division, Sons of Confederate
Veterans, 135 S. Ct. 2239, 2250 (2015); Christian
Legal Society v. Martinez, 130 S. Ct. 2971, 2984 n.11
(2010).

e. A designated public forum is opened for all speakers

and all topics. International Society for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992).
A limited public forum is opened for a limited range
of speakers (e.g., student groups) or a limited range
of topics (e.g., school board business). Sons of
Confederate Veterans, 135 S. Ct. at 2250; Christian
Legal Society, 130 S. Ct. at 2984 n.11.

f. Nonpublic forums are places that, by tradition,

nature, or design, “are not appropriate platforms for
unrestrained communication,” Paulsen v. County of
Nassau, 925 F.2d 65, 69 (2d Cir. 1991)—including,
for example, military bases and federal workplaces,
“‘[w]here the government is acting as a proprietor,
managing its internal operations,’” Sons of
Confederate Veterans, 135 S. Ct. at 2251 (quoting
Krishna Consciousness, 505 U.S. at 678-79).

g. In forum analysis, the government’s power to impose

speech restrictions depends on how the affected
property is categorized; the level of judicial scrutiny
hinges on whether the property is deemed a
traditional, designated, limited, or nonpublic forum.
Krishna Consciousness, 505 U.S. at 678-79.

h. Traditional public forums may be regulated only by

content-neutral time, place, and manner

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 restrictions. To survive judicial review, such
restrictions must satisfy intermediate scrutiny—they
must be “‘justified without reference to the content
of the regulated speech,’” must be “‘narrowly
tailored to serve a significant government interest,’”
and must “‘leave open ample alternative channels
for communicati[ng] the information.’” Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989) (quoting
Clark v. Community for Creative Non-Violence, 468
U.S. 288, 293 (1984)).

i. Governmental restrictions on the content of speech

in a traditional public forum are presumptively
unconstitutional; to survive judicial review, they
must satisfy strict scrutiny—i.e., they will be struck
down unless shown to be “necessary, and narrowly
drawn, to serve a compelling state interest.” Capitol
Square Review & Advisory Board v. Pinette, 515 U.S.
753, 761 (1995).

j. These same standards govern the second category—

restric-tions on speech in designated public forums.
Christian Legal Society, 130 S. Ct. at 2984 n.11.
Content-based restrictions here are subject to strict
scrutiny, while content-neutral regulations are
governed by the three-prong intermediate scrutiny
test outlined above. Id.

k. The rules are different for the third category—

restrictions on speech in limited public forums. The
three-prong intermediate scrutiny test does NOT
apply here; instead, a reasonableness test prevails,
and only viewpoint discrimination is forbidden.
Christian Legal Society, 130 S. Ct. at 2984 n.11.
Though the gov-ernment is free to restrict access to
a limited range of speakers or a limited range of
topics, its restrictions must be applied evenhandedly
to all similarly situated parties. Rosenberger, 515
U.S. at 829-30.

l. In the fourth and final category—nonpublic forums—

the same deferential standard prevails. So long as
the government does not engage in forbidden
viewpoint discrimination, its regulation of speech in
a nonpublic forum will be analyzed under a

195
 reasonableness test. Perry, 460 U.S. at 46. In a non-
public forum, it is permissible for the government to
prohibit all protest activities. Thus, the First
Amendment afforded no defense to anti-war
protesters who occupied a nonpublic forum (a
corridor in a federal office building) to read aloud
the names of fallen soldiers. United States v. Sroka,
307 F. Supp. 400 (E.D. Wis. 1969).

m. Since the level of judicial scrutiny varies so widely

from category to category, many public forum cases
feature a battle over how to categorize the property
in question. The resulting case law offers guidance
on how to differentiate the four categories.

n. Traditional public forums are so narrowly defined by

the Supreme Court that we may safely confine them
to public parks, public squares, public streets, and
public sidewalks. These “are places which ‘by long
tradition or by government fiat have been devoted to
assembly and debate’”—places whose “principal
purpose ... is the free exchange of ideas.” Cornelius,
473 U.S. at 802 (quoting Perry, 460 U.S. at 45) &
800. Under this narrow conception, traditional
public forum status has eluded such heavily
frequented public spaces as airport terminals, state
fairgrounds, post office sidewalks, public housing
complexes, and Chicago’s municipally-owned pier.
(Before his retirement from the bench, Justice
Kennedy stood alone on the Court in advocating an
expansive conception of the traditional public forum,
arguing that cyberspace and social media constitute
the modern public square. Packingham v. North
Carolina, 137 S. Ct. 1730, 1735 (2017).)

o. In determining whether public property is a

designated or limited public forum—and therefore
not a nonpublic forum—the most important factor is
whether the government took affirmative steps to
dedicate the property to expressive purposes. The
government does not create such a forum “by
inaction,” or by allowing the public “freely to visit,”
or by “permitting limited discourse” there; instead,
such a forum is created only where the government
“intentionally opens a nontraditional forum for

196
 public discourse.” Krishna Conscious-ness, 505 U.S.
at 680 (citations and internal quotation marks
omitted). Absent these intentional, affirmative steps
by the government, the property in question will be
deemed a nonpublic forum.

p. This factor—examining the government’s “policy and

practice” toward the property—was decisive in
Widmar v. Vincent, 454 U.S. 263 (1981),
Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
546 (1975), Lehman v. City of Shaker Heights, 418
U.S. 298 (1974), and Perry Education Association v.
Perry Local Educators’ Association, 460 U.S. 37
(1983). In Conrad and Widmar, respectively, the
Supreme Court deemed a municipal auditorium to be
a designated public forum, and a university meeting
center to be a limited public forum, because in each
case the government affirmatively dedicated the
facilities to expressive uses. Perry and Lehman, by
contrast, featured well-established policies
disfavoring, respectively, access to a school district’s
internal mail system and access to advertising
spaces on city transit vehicles. The Court deemed
each, accordingly, a nonpublic forum.

q. Another factor to distinguish nonpublic forums from

designated/limited public forums is whether the
property is by nature compatible with expressive
activity. As the Court stressed in Cornelius, “We will
not ... infer that the government intended to create a
public forum when the nature of the property is
inconsistent with expressive activity.” 473 U.S. at
803. This factor proved pivotal in Krishna
Consciousness, Cornelius, Greer v. Spock, 424 U.S.
828 (1976), and Adderly v. Florida, 385 U.S. 39
(1966), where the Supreme Court held to be
nonpublic forums, respectively, an airport terminal,
a federal workplace charity drive, a military base,
and jailhouse grounds. Each of these cases turned on
the Court’s declared “reluctan[ce]” to recognize a
designated/limited public forum “where the principal
function of the property would be disrupted by
expressive activity.” Cornelius, 473 U.S. at 804.

197
r. Here is an important point to remember about
designated and limited public forums. After opening
such a forum, there is no requirement that the
government keep it open indefinitely. Perry, 460 U.S.
at 45-46 & n.7. But there is very little case law
governing the closure of a designated or limited
public forum. It appears that the government may
close such a forum whenever it wants to, with no
offense to the First Amendment, and its motive for
closing the forum is irrelevant. Sons of Confederate
Veterans v. City of Lexington, 722 F.3d 224, 231-32
(4th Cir. 2013). When a designated or limited public
forum is closed, it reverts back to the status of a
nonpublic forum. Id. at 231.

s. Finally, there is some disagreement in the case law

on how to define the RELEVANT forum when
performing a public forum analysis. In some cases
an event or festival is staged on government
property that is indisputably a traditional public
forum (most often, a public park). But the
government argues that the relevant forum is the
EVENT, not the property on which it is staged—and
the event is a NON-PUBLIC forum, where subject
matter limitations are permissible. Some courts have
accepted this argument, but these decisions
constitute a MINORITY position in the case law.

(1) Here is a prominent example of this minority

view: Community for Creative Non-Violence v.
Hodel, 623 F. Supp. 528 (D.D.C. 1985) (public
advocacy group was rebuffed by National Park
Service in its request to include a controversial
statue—depicting a homeless man sleeping on a
steam grate—in the Christmas Pageant of
Peace, a “national celebration event” held
annually on the Ellipse in Washington, D.C.;
holding that the Pageant is a nonpublic forum,
the court concluded that the Park Service was
free to select only “traditional” Christmas
displays for inclusion in the event, and that
plaintiffs’ First Amendment rights would not be
violated if they were permitted to erect their
statue on the Ellipse outside the Pageant
boundary); id. at 533 (concluding that the

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 Pageant is a nonpublic forum because the Park
Service has never treated it as “a forum for all
expression on the subject of Christmas or for
all displays on that subject,” and because the
Park Service “carefully selects only a few
displays and does not routinely accept displays
from those who tender them”); id. at 533
(holding that in a nonpublic forum, the
government may deny access to any prospective
speaker, so long as its decision is “reasonable
and viewpoint neutral”). The court here
narrowly defined the “relevant forum” as the
Pageant (i.e., the event), not the Ellipse (i.e.,
the public park on which the event was staged)
—and concluded that, since the Pageant was a
nonpublic forum, the Park Service was free to
select only “traditional” Christmas displays for
inclusion in the event. Since the Ellipse is
unquestionably a traditional public forum,
identifying the Pageant as the “relevant forum”
enabled the court to conclude that a public
forum had been converted into a nonpublic
forum.

(2) The government made the very same argument

in the next case, but encountered a completely
different reaction from the judge...

(3) This decision represents the MAJORITY view:

Irish Sub-committee v. Rhode Island Heritage
Commission, 646 F. Supp. 347 (D.R.I. 1986)
(striking down, as content-based restrictions
on public forum speech, a state commis-sion’s
regulations prohibiting the display or
distribution of any political paraphernalia—
including political but-tons, pins, hats, and
pamphlets—at the Rhode Island Heritage Day
festivities); id. at 352-53 (the court rejected the
argument that the festival as a whole (which
was situated on the statehouse grounds) or its
booths (from which the plaintiffs distributed
their political parapher-nalia) lacked the status
of a traditional public forum); id. at 354 n.3
(and the court emphatically refused to make
the festival the relevant forum, as if it were a

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 nonpublic-forum island in the traditional-
public-forum sea of the statehouse grounds:
“To allow the government to limit traditional
public forum property and thereby create
within it a nonpublic forum would destroy the
entire concept of a public forum.”).

(4) The minority view is embraced by only a small

number of decisions, virtually all of them
issued at the district court level. The vast
majority of courts focus on the PROPERTY, not
the event, in deciding how to categorize the
relevant public forum.

*****

V(B)(1).
THE PUBLIC FORUM:
STREETS AND PARKS

1. Traditional Public Forums: Streets and Parks

a. Davis v. Massachusetts, 167 U.S. 43 (1895),

represents the original view of free speech in public
places: the government has the same power to
exclude speakers from its property as a homeowner
has to expel speakers from her house.

b. Thus, the “public forum” issue was initially analyzed

strictly in terms of property law.

c. But all that changed with Hague v. CIO, 307 U.S. 496
(1939).

d. Hague was a response to the speech-restrictive

policies of Frank “Boss” Hague, the Mayor of Jersey
City, New Jersey. Mayor Hague was anti-union, and
openly hostile to the CIO, the Communists, the
Socialists, and the ACLU. In seeking to silence these
groups, his tactics included:

(1) the arbitrary denial of permits to hold public

meetings, assemblies, and demonstrations;

200
 (2) police harassment of union picketers;

(3) banning CIO and union leaflets;

(4) padlocking a synagogue after a union meeting

had been held there; and

(5) evicting union organizers from Jersey City—by

giving them one-way train and ferry tickets out
of town.

e. Hague v. CIO was a civil suit, seeking injunctive

relief against these tactics. The Supreme Court
complied, striking down ordinances that, inter alia,
imposed a flat ban on the public distribution of
printed materials, and required a permit—issued at
the unfettered discretion of the public safety
director—for all public meetings and
demonstrations.

f. In an enormously influential plurality opinion,

Justice Roberts found a constitutional right to use
“streets and parks for communication of views,” id.
at 515-16, basing that right on the fact that “streets
and parks ... have immemorially been held in trust
for the use of the public and, time out of mind, have
been used for purposes of assembly, communicating
thoughts between citizens, and discussing public
questions,” id. at 515.

g. The problem with Roberts’s dictum in Hague: By

implicitly retaining the Davis “property” concept,
public forum doctrine is plagued by the lingering
distinction between streets and parks (where the
public enjoys a longstanding First Amend-ment
“easement”) and other types of government property
(to which the public is presumptively afforded less
access).

h. We come next to Schneider v. New Jersey, 308 U.S.

147 (1939), where the Court struck down ordinances
that prohibited leafleting without a license and
furnished no standards for issuing such licenses.

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i. Schneider, decided only eight months after Hague,
made clear the Court’s commitment to opening
public forums for speech purposes, even over
asserted governmental interests in preventing
littering or public inconvenience.

j. This commitment was made even clearer when

Jamison v. Texas, 318 U.S. 413 (1943), invalidated
yet another ban on leafleting.

k. Fast-forwarding in time, United States v. Grace, 461

U.S. 171 (1983), rejected an effort to relegate a
traditional public forum (the Supreme Court
sidewalk) to the status of a NON-public forum.

l. Grace struck down a statutory prohibition against

leafleting or displaying signs on the U.S. Supreme
Court’s sidewalk. Holding that a traditional public
forum cannot be transformed by government fiat
into a NON-public forum, the Court concluded that
the sidewalk lining its perimeter must be treated as
a public forum, so that the sweeping ban on
expressive activity there could not be justified as a
reasonable “place” restriction.

m. Grayned v. Rockford, 408 U.S. 104 (1972), affirmed

noise restric-tions on speech near schools in session.
The Grayned result may be reconciled with Grace on
the grounds that this ordinance was, in the Court’s
view, “narrowly tailored,” since it limited speech
access rather than banning it outright.

n. Frisby v. Schultz, 487 U.S. 474 (1988), makes clear

that public streets and sidewalks do not lose their
status as traditional public forums once they enter a
residential neighborhood.

(1) Addressing an ordinance that imposed an

outright ban on picketing “before or about” any
residence, the Frisby Court saved the ordinance
from its apparently fatal “overbreadth” [here is
another example of the Court using
overbreadth when intermediate scrutiny makes
more sense (see pages 67-69 of this Outline)]
by imposing a narrowing construction that

202
 prohibited only “focused” picketing conducted
solely in front of a single, targeted home.

(2) Frisby holds that residential picketing may be

banned only to the extent that it entails
“focused picketing” of an individual home;
general marching through the neighborhood,
door-to-door proselytizing, etc., may NOT be
banned. 487 U.S. at 483 (emphasis added).

o. Clark v. Community for Creative Non-Violence, 468

U.S. 288 (1983), upheld (as content neutral) a ban
on overnight camping in Lafayette Park and the
Mall, even though the ban thwarted the expressive
activity of homeless advocates, who sought to erect
and sleep in “tent cities” in those locations.

p. Familiar, I hope, from our study of content neutrality

is Ward v. Rock Against Racism, 491 U.S. 781
(1989), where the Court upheld anti-noise
regulations governing concerts in New York’s
Central Park.

q. Injunctive restrictions on the time, place, or manner

of speech are governed by a distinct test—announced
in Madsen v. Women’s Health Center, Inc., 512 U.S.
753, 765 (1994), and reaffirmed in Schenck v. Pro-
Choice Network of Western New York, 519 U.S. 357,
374 (1997)—that is slightly more stringent than
traditional intermediate scrutiny.

r. The test is whether the injunction, if content-

neutral, “burden[s] no more speech than necessary
to serve a significant government interest.” Madsen,
512 U.S. at 765. Note that this REPLACES, for
injunctions, the “narrowly tailored” prong of
intermediate scrutiny.

s. Hill v. Colorado, 530 U.S. 703 (2000) (upholding a

Colorado statute that was designed to discourage
anti-abortion protesters from interacting with
persons entering and exiting abortion clinics). Hill
has not been expressly overruled, but its validity is
doubtful now in the wake of McCullen v. Coakley,
134 S. Ct. 2518 (2014), where the Supreme Court

203
 struck down, for lack of narrow tailoring, a
Massachusetts statute that imposed a 35-foot buffer
zone at abortion clinics.

t. In Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), a

church and its pastor brought a First Amendment
challenge to a town’s sign code, which sharply
restricted the size, duration, and location of
temporary directional signs. The Supreme Court
ruled that the sign code imposed content-based
restrictions on protected speech and, invoking strict
scrutiny, struck it down. This decision is important
for offering specific guidance on how to perform
content neutrality analysis, insisting that a benign
governmental purpose will not save a speech
restriction that is facially content based. [I have
incorporated Reed’s teachings into the Content
Neutrality sections of this Outline and my Speech
Clause Overview.]

2. Regulating the Public Forum: Licenses and Fees

a. The key cases in this area are Cox v. New Hampshire,

312 U.S. 569 (1941), and Murdock v. Pennsylvania,
319 U.S. 105 (1943).

b. Stressing the government’s interest in controlling

traffic flow and protecting public safety, Cox upheld
a parade permit scheme that authorized the
imposition of a $300 fee.

c. But Murdock, decided two years later, emphatically

restricted the power of government to foist “user
fees” on public forum speakers. The Murdock Court
rejected the application of a flat peddler’s license fee
imposed as a precondition to sidewalk and house-to-
house sales of religious literature by Jehovah’s
Witnesses.

d. In the intervening years, the Court has afforded

virtually no guidance on the constitutionality of
speech licensing fees.

e. Left largely to their own devices, the lower courts

have made clear that such a fee is constitutionally

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 permissible if it is directly linked to, and serves to
defray, the administrative expenses incurred by the
government in regulating the speaker’s expressive
activity. Kevin Francis O’Neill, Disentangling the
Law of Public Protest, 45 LOYOLA L. REV. 411, 467-68
(1999).

f. Particularly troublesome has been the Court’s

silence on the affordability of such fees (i.e., the
extent to which the govern-ment may erect cost
barriers to public forum speech so high that some
individuals are silenced by their inability to pay).

g. But Schneider v. New Jersey, 308 U.S. 147 (1939),

makes clear that the government cannot BAN speech
just because it poses administrative expenses—and,
since there is no effective difference between
banning speech and making it financially
unaffordable, Schneider suggests that the
government cannot fix public forum user fees at
exorbitant levels. David Gold-berger, A
Reconsideration of Cox v. New Hampshire: Can
Demonstrators Be Required to Pay the Costs of
Using America’s Public Forums?, 62 TEX. L. REV. 403,
410 (1983).

h. Taken together, Cox, Schneider, and Murdock stand

for a basic principle: “[T]he state may recoup the
actual costs of govern-mental services that are
generated by the use of public property for speech
activities, so long as the charge is not so great as to
appear to the judiciary to be oppressive or
completely preclusive of speech.” Goldberger, 62
TEX. L. REV. at 409-10.

i. Permit Schemes Governing Door-to-Door Advocacy

More recently, the Supreme Court struck down—as

applied to religious proselytizing, anonymous
political speech, and the distribution of handbills—
an ordinance that made it a misdemeanor to engage
in door-to-door advocacy without first registering
with the mayor and obtaining a permit. Watchtower
Bible & Tract Society v. Stratton, 536 U.S. 150
(2002).

205
 *****

V(B)(2).
THE PUBLIC FORUM:
OTHER PUBLICLY OWNED PROPERTY

1. The Public Forum: Other Publicly Owned Property

a. Adderly v. Florida, 385 U.S. 39 (1966): rejecting (5-

4) a First Amendment defense to trespass
convictions of student civil rights protesters who
entered upon jailhouse grounds, blocked vehicular
traffic, and refused to leave—where there was no
evidence that any protesters had ever previously
been permitted to gather in the jailhouse curtilage
and where there was no evidence that Defendants’
message, rather than their physical intrusion,
prompted their arrest.

(1) Writing for the Court, Justice Black suggests

that jail-house curtilage is not a public forum,
and holds that “people who want to
propagandize protests or views [do not] have a
constitutional right to do so whenever and
however and wherever they please.” 385 U.S. at
48.

(2) Douglas, dissenting, makes three important

points:

(a) He articulates the UNIQUE FORUM

concept, which holds that in the context
of any public issue, it is often the case
that one PLACE is particularly symbolic
of, or singularly relevant to, the debate.
Here, for example, the Defendants sought
to protest the jailing of their brethren in
the civil rights movement—and what
better PLACE to do so than the very jail
where they were being held? First
Amendment law should be solicitous, he

206
 suggests, of the need for access to a
unique forum.

(b) He explains WHY people take to the

STREET: Because they feel too strongly
merely to write a letter and because, not
enjoying any control over the media, they
have no other way to “broadcast” their
message. Once again, Douglas suggests
that First Amendment law should be
solicitous of this unique method of
expression.

(c) This was a peaceful effort to register a

grievance with the government—and we
do harm to the Speech and Petition
Clauses, he says, by analyzing this case as
a basic trespass action.

b. But even Douglas concedes that speech may be

inconsistent with SOME types of government
property.

c. Following up on this concession by Douglas, we

come to the dictum in Grayned v. Rockford, 408 U.S.
104 (1972), which indicates that, under the Court’s
modern approach to forum analysis, a principal
inquiry will be whether the property in question is by
nature “compatible” with expressive activity.

d. This notion of free speech “compatibility” surfaces

consistently in later cases. It’s stressed in Cornelius;
and it proved pivotal in Greer v. Spock (military
bases) and Krishna Consciousness (airport
terminals). (Cornelius held that a federal workplace
charity drive was a nonpublic forum.)

e. In Grayned’s wake, public forum status turns NOT (à

la Davis) on common law property rights but on
whether the government property is by nature
compatible with expressive activity.

f. This notion is reiterated in Cornelius v. NAACP Legal

Defense & Education Fund, Inc., 473 U.S. 788
(1985), which adds a second inquiry: the Court will

207
 look not only to the property’s free speech
“compatibility,” but also to the government’s “policy
and practice” vis-à-vis the property. Id. at 802-03.

g. Greer v. Spock, 424 U.S. 828 (1976): Holding that

military bases are NON-public forums; rejecting a
challenge to a base regulation that banned all
speeches and demonstrations of a partisan political
nature.

(1) In Greer, the free speech “compatibility” factor

proves pivotal, since the principal purpose of a
military base is to train soldiers, not to serve as
a forum for political debate.

(2) The Court stresses that public access to

government property does not EQUAL public
forum status.

h. Heffron v. International Society for Krishna

Consciousness, 452 U.S. 640 (1981): upholding—as a
reasonable T/P/M restriction on use of a “limited”
(actually, a designated) public forum—a state fair
rule that barred selling or distributing any materials
on the fairgrounds except from fixed booths rented
to all comers on a first-come, first-served basis.

(1) This case is an unsuccessful First Amendment

challenge by Krishnas, who sought to circulate
freely throughout the fairgrounds without
having to rent a booth.

(2) Applying intermediate scrutiny, the Court holds

that the challenged provision is content-neutral
(satisfying Prong #1 of the prevailing test).

(3) Rejecting the analogy to city streets and parks,

the Court concludes that state fairgrounds pose
special congestion problems, such that the
challenged provision is not “an unnecessary
regulation” (satisfying a watered-down Prong
#2).

(4) Finally, the Court concludes that the

challenged provision leaves the Krishnas

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 alternative channels of communication
immediately outside the fairgrounds (satisfying
Prong #3).

(5) Thus, the regulation survives intermediate

scrutiny.

i. U.S. Postal Service v. Council of Greenburgh Civic

Associations, 453 U.S. 114 (1981): holding that
residential letterboxes do not constitute a public
forum, the Court rejects a First Amendment
challenge to a federal statute prohibiting the deposit
of unstamped mailable matter in such letterboxes.

(1) The result seems consistent with both the free

speech “compatibility” rationale and the
“policy and practice” rationale—because
letterboxes had long been treated, and had long
been regarded, solely as repositories for Postal
Service deliveries.

j. City Council of Los Angeles v. Taxpayers for Vincent,

466 U.S. 789 (1984): A political candidate’s
unsuccessful challenge to an ordinance that, by
banning the posting of signs on public property,
effectively proscribed his practice of attaching
campaign signs to utility pole crosswires.

(1) The Court held that the property covered by the

ordinance—which included lampposts,
curbstones, fire hydrants, and tree trunks—was
NOT a public forum; and the ordinance
satisfied the reasonableness test as a content-
neutral restriction on visual clutter.

(2) In rejecting the existence of a public forum

here, the Court relied on the assumption that
there was no longstanding tradition of using
utility poles as vehicles of expression
commensurate with streets and parks.

k. United States v. Kokinda, 497 U.S. 720 (1990):

holding that postal sidewalks are NOT a traditional
public forum because the government’s sole purpose
in building them was to “provide for the passage of

209
 individuals engaged in postal business.” The case is
significant for three features:

(1) The majority stresses that traditional public

forums are narrowly conceived, and that mere
physical characteris-tics of government
property do not dictate the result of forum
analysis.

(2) The majority reiterates the relaxed standard for

NON-public forums: speech restrictions
governing such property need only be
reasonable, so long as they are not an effort to
suppress expression merely because public
officials oppose the speaker’s view.

(3) Brennan, dissenting, rejects the majority’s

distinction between public and postal
sidewalks: Focusing on why a sidewalk was
built makes no sense—sidewalks and streets
are deserving of public forum status because
they are USED for expressive purposes, not
because the government BUILT them for
expressive purposes.

What is the basic lesson of Kokinda? In RARE

instances, where a public sidewalk is detached from,
and does not serve as a conduit for, the normal flow
of pedestrian traffic, that sidewalk may not
constitute a traditional public forum.

l. International Society for Krishna Consciousness v.

Lee, 505 U.S. 672 (1992): Holding that airport
terminals are NON-public forums, the Court upholds
a ban on soliciting money inside such terminals, but,
at the same time, strikes down a ban on the sale or
distribution of literature there.

(1) Upholding the Ban on Soliciting Money Within

the Airport Terminal: Chief Justice Rehnquist
glibly con-cludes that airport terminals are
NON-public forums because they’re modern
and thus can’t fit Hague v. CIO’s description of
streets and parks as “immemorially ... time out
of mind” devoted to public discourse.

210
Moreover, they can’t be deemed public forums
because their principal purpose is not to
promote the free exchange of ideas. Thus,
Rehnquist substantially narrows the concept of
the traditional public forum by transforming
Hague’s DESCRIPTIONS of streets and parks
into PREREQUISITES that must be satisfied in
order to qualify for traditional public forum
status.

(a) Having concluded that airport terminals

are nonpublic forums, Rehnquist goes on
to hold that the solicitation ban satisfies
the reasonableness test reserved for
speech restrictions in nonpublic forums.

(b) The reasonableness test is satisfied here,

con-cludes Rehnquist, because of the
burden and inconvenience that
passengers would face if soliciting were
allowed in the terminal, and because
soliciting is already permitted on the
sidewalks outside the terminal buildings.

(c) In a concurrence, Justice Kennedy sharply

criti-cizes the majority’s narrow
conception of traditional public forums.

1. First, making “time out of mind” a

test for public forum status will
prevent new forums from being
recognized.

2. Second, making “principal purpose”

a test for public forum status will
give the government the largest say
in whether certain property falls
within the definition.

3. Finally, says Kennedy, Rehnquist’s

analysis is inconsistent with the
expansive and speech-protective
spirit of the public forum doctrine,
which was designed to promote the
free exchange of ideas in any space

211
 that serves as the crossroads of the
community, not to promote hair-
splitting distinctions about various
sorts of public spaces.

4. Finding that airport concourses bear

signifi-cant similarities to public
streets, Kennedy concludes that they
constitute traditional public forums.
[NOTE TO STUDENTS: Re-member
that this case was decided nearly ten
years before the September 11
attacks, which forever changed the
open nature of airport terminals.]

5. But Justice Kennedy concurs in

upholding the ban on solicitation as
a reasonable time, place, and
manner restriction given the risks of
fraud and duress that are posed by
such activity.

(2) Striking Down the Ban on Sale or Distribution

of Literature Within the Airport Terminal: In a
plurality opinion authored by Kennedy, the
Court goes on to strike down the ban on sale or
distribution of literature, since such expression
lies at the heart of First Amendment
protection.

2. Does the Public Forum Doctrine Govern Access to

Facebook and Twitter Accounts Maintained by Public
Officials?

a. The answer to this question is YES, according to

several recent cases, IF the government official
opens her account to comments by users. This is a
new line of precedent in First Amendment law;
courts didn’t even begin to look at this question
until 2017. Here are the key cases...

b. In Davison v. Randall, 912 F.3d 666, 688 (4th Cir.

2019), the Fourth Circuit held that a county
government official, Phyllis Randall, violated the
First Amendment when she blocked a constituent

212
 from her Facebook page after he posted a comment
on her page alleging corruption in the county
government. As chair of the county board of
supervisors, Ms. Randall created what she called
“the Chair’s Facebook Page,” where she welcomed
comments from constituents: “I really want to hear
from ANY [county] citizen on ANY issue[], request,
criticism, complement[,] or just your thoughts.” Id.
at 673 (emphasis in original). The Fourth Circuit
held that “the interactive component of the Chair’s
Facebook Page constituted a public forum, and
Randall engaged in unconstitutional viewpoint
discrimination when she banned [the offending
constituent] from that forum.” Id. at 688.
Unfortunately, the court did not decide whether the
Chair’s Facebook Page constituted a traditional,
designated, or limited public forum—because the
viewpoint discrimination that occurred here is
prohibited in all forums. Id. at 687.

c. In Knight First Amendment Institute v. Trump, 928

F.3d 226, 237-38 (2d Cir. 2019), the Second Circuit
held that President Donald Trump created a public
forum by opening up the interactive features of his
Twitter account to the public at large—and that he
engaged in unconstitutional viewpoint
discrimination by selectively blocking users who
criticized him. This decision is important for two
separate issues, one pertaining to the state action
doctrine, the other pertaining to the public forum
doctrine.

(1) A Public Official’s Use of His PRIVATE Social

Media Account Will Qualify as “State Action,”
and Thus Be Governed by the First Amendment,
if the Official UTILIZES that Account for
Purposes of Governance. The court flatly
rejected the government’s argument that the
President’s Twitter account is purely private
and thus beyond the reach of the First
Amendment. The evidence to the contrary was
overwhelming, wrote the court. Ever since
taking office, “the President has consistently
used the Account as an important tool of

213
 governance and executive outreach.” Id. at 235-
36.

(2) A Public Official’s Social Media Account Can Be

Transformed into a PUBLIC FORUM if the
Official OPENS the Interactive Features of that
Account to the Public. President Trump
“created a public forum” by “intentionally
open[ing]” his Twitter account for “public
discussion,” “repeatedly us[ing] the Account as
an official vehicle for governance[,] and
ma[king] its interactive features accessible to
the public without limitation.” Id. at 237.
Unfortunately, the Second Circuit (like the
Fourth Circuit in Davison, supra) did not
specify which category of public forum
President Trump created—traditional,
designated, or limited. But the correct answer
would seem to be a designated public forum
because the account was opened to all Twitter
users with no subject matter limitations. In
fact, the lower court specifically held that “the
‘interactive space’ where Twitter users may
directly engage with the content of the
President’s tweets ... is a designated public
forum.” Knight First Amendment Institute v.
Trump, 302 F. Supp. 3d 541, 549 (S.D.N.Y.
2018) (emphasis added). Though the Second
Circuit affirmed the lower court’s decision, it
was silent on what type of public forum the
President created.

(3) The U.S. Supreme Court VACATED the Trump

decision as moot (apparently because Donald
Trump was banished from Twitter) in Biden v.
Knight First Amendment Institute, 141 S. Ct.
1220 (2021).

d. One Wisconsin Now v. Kremer, 354 F. Supp. 3d 940,

953-56 (W.D. Wis. 2019) (holding that the
interactive portions of the Twitter accounts of three
state legislators each constituted a designated
public forum under the First Amendment, and that
the legislators violated the First Amendment by

214
 selectively blocking a liberal advocacy group from
their respective Twitter pages).

e. But see Campbell v. Reisch, 986 F.3d 822 (8th Cir.

2021) (holding that there was NO STATE ACTION,
and thus no First Amend-ment violation, where a
Missouri state representative blocked a constituent
from her Twitter account after he criticized her
once; the legislator used her Twitter account to
campaign for office, to trumpet her
accomplishments in the Missouri House of
Representatives, and to set forth her positions on
political topics; but the court held that a legislator’s
Twitter account does not rise to the level of state
action unless “it becomes an organ of official
business,” id. at 826—and here, ruled the court, the
legislator’s Twitter account “is more akin to a cam-
paign newsletter” than to the social media accounts
in Trump and Davison, id. at 827; given the lack of
state action, the constituent’s First Amendment
claim necessarily fails).

3. “Private” Public Forums: Company Towns, Shopping

Malls, and the Impact of State Constitutional Provisions

a. Marsh v. Alabama, 326 U.S. 501 (1946) (finding the

state action necessary for a constitutional violation
in the governmental function vested by the State in
the regulatory power of the private town’s
governors) (the Defendant, a Jehovah’s Witness,
invoked the First Amendment when denied a permit
to distribute religious literature).

b. Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), and

Hudgens v. NLRB, 424 U.S. 507 (1976), make clear
that shopping mall owners have the right to control
access to their privately-owned spaces—and may
exclude all speech-related activities no matter how
much a mall might bear the characteristics of a
traditional public forum.

c. Lloyd held that there was no First Amendment right

of access to a shopping mall to protest U.S.
intervention in Vietnam—because the First

215
 Amendment restrains only governmental restrictions
on speech.

d. Hudgens held, for the same reason, that there exists

no First Amendment right of access to a privately-
owned mall for labor picketing.

e. PruneYard Shopping Center v. Robins, 447 U.S. 74

(1980), held out the availability of STATE
constitutional claims for free speech access to
privately-owned premises.

f. Such claims have been litigated under the state

constitutions in 14 States—successfully in only four.
Ohio is among the ten States to reject the existence
of any such right under the speech clause of its state
constitution (art. I, § 11). Eastwood Mall, Inc. v.
Slanco, 68 Ohio St. 3d 221, 626 N.E.2d 59 (1994).

*****

V(B)(3).
THE PUBLIC FORUM:
UNEQUAL ACCESS AND THE
PROBLEM OF CONTENT NEUTRALITY

1. Unequal Access to Public Forums: “Content-Neutral”

Restrictions That Are Actually Content-Based

a. The cases in this section of our book confront us

with a type of CONTENT-based regulation that I have
only mentioned in passing, but that we have not yet
squarely examined.

b. In these cases, the government is restricting the

content of speech under the guise of regulating
forum access.

c. In effect, the government is acting as a content-

conscious gatekeeper, selectively blocking access to
a forum based on the speaker’s message.

216
d. When directed at speech in a traditional public
forum, such content-conscious gate-keeping will be
analyzed under strict scrutiny—and, 99 percent of
the time, will be deemed to violate the First
Amendment.

(1) A good example of this is Police Department of

Chicago v. Mosley, 408 U.S. 92 (1972), which
we’ll examine in a moment.

(2) An extremely rare example—the only one I can

cite—of such a regulation surviving strict
scrutiny is Burson v. Freeman, 504 U.S. 191
(1992) (Justice Blackmun, writing for a 4-vote
plurality, upholds a Tennessee statute
prohibiting the solicitation of votes and the
display or distribution of campaign materials
within 100 feet of any polling place entrance,
concluding that this restriction was necessary
and narrowly tailored to serve a compelling
state interest in preventing voter intimidation
and election fraud); id. at 214 (Scalia, J.,
concurring in the judgment) (observing that a
better rationale for this result is that the areas
around polling places have traditionally been
the scene of heavy speech restrictions on
election day; thus, on election day, at least,
such spaces constitute a nonpublic forum;
though the instant regulation is content based,
it satisfies the test for speech restrictions in a
nonpublic forum because it is reasonable and
viewpoint neutral).

e. Though, vis-à-vis limited public forums, the

government may limit access to certain speakers
(e.g., student groups) or certain topics (e.g., school
board business), courts will likewise employ strict
scrutiny if the government engages in viewpoint-
based discrimination within those authorized
parameters.

(1) Good examples of this are Widmar v. Vincent

and Lamb’s Chapel, which we’ll examine
shortly.

217
f. In restricting access to NON-public forums, only
viewpoint-based discrimination is forbidden. Perry,
460 U.S. at 46.

g. Let’s turn to an examination of the cases in our

book:

h. Police Department of Chicago v. Mosley, 408 U.S. 92

(1972): striking down—as a content-based restriction
on public forum speech—an ordinance that
prohibited all picketing within 150 feet of a school,
except for the picketing of any school involved in a
labor dispute.

(1) Mosley’s basic message is that forum access

cannot hinge on whether the government finds
one’s topic or message acceptable for debate in
public.

(2) Writing for the Court, Justice Marshall

observes that there is an “equality of status in
the field of ideas,” and that “government must
afford all points of view an equal opportunity to
be heard.” Id. at 96 (internal quotation marks
omitted).

(3) By describing impermissible picketing in terms

of its SUBJECT MATTER, the ordinance cannot
be analyzed as a content-neutral T/P/M
regulation.

(4) Marshall stresses that CONTENT-based

discrimination in determining access to a
traditional public forum is never permitted:
“[A]bove all else, the First Amendment means
that government has no power to restrict
expression because of its message, its ideas, its
subject matter, or its content.” Id. at 95.

i. How do we reconcile Mosley with Grayned?

(1) Why does the Court UPHOLD a forum access

regulation that restricts the noise level of ALL
speech near a school (Grayned), while
STRIKING DOWN a regulation that at least

218
 affords ready access for LABOR speech
(Mosley)?

(2) The answer: Even though the Grayned

ordinance seems to restrict MORE speech, its
facial content neutrality warrants a LOWER
level of judicial scrutiny than the categorical,
content-based suppression of all non-labor
speech effected by the Mosley ordinance.

(3) Thus, it is not the apparent scope of a speech

restriction but its departure from content
neutrality that triggers heightened scrutiny
under the First Amendment.

j. Is the EQUAL PROTECTION CLAUSE (which Justice

Marshall partly relied upon in Mosley, 408 U.S. at
96) implicated by content-discriminatory speech
restrictions? NO. Equal Protec-tion analysis is NOT
needed in cases like Mosley, and, under current law,
courts that invoke the Equal Protection Clause when
confronted with content-discriminatory or viewpoint-
discriminatory speech restrictions are simply
WRONG.

k. In Mosley’s wake, the Supreme Court has

consistently applied strict scrutiny in forum-access
cases where the government has employed content-
or viewpoint-discriminatory grounds in denying
access to:

(1) a traditional public forum (e.g., Carey v. Brown,

447 U.S. 455 (1980));

(2) a limited public forum (e.g., Rosenberger v.

Rector & Visitors of the University of Virginia,
515 U.S. 819 (1995)); and, once again,

(3) a limited public forum (e.g., Widmar v. Vincent,

454 U.S. 263 (1981)).

(4) See Lamb’s Chapel v. Center Moriches Union

Free School District, 508 U.S. 384 (1993)
(finding a First Amendment violation where
government engaged in viewpoint-based

219
 discrimination in denying access to a
“nonpublic” forum).

l. The only recent exception to this rule is the strange

case of Capitol Square Review & Advisory Board v.
Pinette, 515 U.S. 753 (1995)—“strange” only because
the government’s lawyers briefed the case in an
unconventional manner, seeking to evade the
application of Mosley and its progeny.

(1) Pinette (an ACLU lawsuit on which I worked)

was a run-of-the-mill forum-access-
discrimination case, in which the lower courts
held that Ohio could not constitutionally bar
the KKK from erecting a cross in a traditional
public forum (the Statehouse grounds) where
that forum was open to all prospective speakers
and where the government, even in denying the
Klan a permit, granted a rabbi’s application to
erect a menorah in the very same location.

(2) After being beaten over the head with Mosley in

the lower courts, the government’s lawyers
came up with a NEW theory of the case in their
Supreme Court cert petition—a theory that
aroused Justice Scalia’s interest and (to our
horror) prompted the Court to grant cert.

(3) This new theory of the case transformed a run-

of-the-mill forum-access-discrimination case
into an Establish-ment Clause controversy by
focusing on the NON-issue of unattended
religious displays in the curtilage of legis-lative
seats.

(4) Though we still won (the Court concluded that

the Klan’s First Amendment rights had been
violated), Pinette produced no majority opinion
and raises more questions than it answers.

(5) It would appear to indicate that unattended

religious displays in the curtilage of legislative
seats pose an Establishment Clause issue only
if reasonable passers-by would interpret the

220
 displays as SPONSORED BY, ERECTED BY the
government.

(6) At the end of the day, Pinette is an aberrant

(and unnecessary) detour from Mosley and its
progeny. Those cases determined the outcome
in the lower courts and should have determined
the outcome in the Supreme Court. It is to
Mosley’s progeny that we now turn our
attention.

m. Carey v. Brown, 447 U.S. 455 (1980), featured a fact

pattern that the Court regarded as “constitutionally
indistinguishable” from Mosley. Id. at 460.

(1) In Carey, the plaintiff had been arrested for

picketing the racial integration policies of
Chicago’s mayor, on the sidewalk in front of the
mayor’s home.

(2) The Court struck down—as a content-based

restriction on public forum access—the statute
in question, which banned the picketing of
residences or dwellings but exempted premises
involved in a labor dispute.

n. Widmar v. Vincent, 454 U.S. 263 (1981):

(1) Applying strict scrutiny where a public

university created a limited public forum for all
student groups and then closed that forum to a
religious student group. This case shows that
the Court will apply STRICT scrutiny where the
government, after creating a LIMITED public
forum for a particular category of speakers,
fails to afford equal access to all members of
that category.

(2) Holding: A state university that makes its

meeting facilities generally available for the
activities of registered student groups violates
the First Amendment by closing those facilities
to a registered student group desiring to use
the facilities for religious worship and religious
discussion.

221
 (3) Rejecting an Establishment Clause basis for
permitting or requiring the government to
discriminate against religious expression in
public forums.

o. Lamb’s Chapel v. Center Moriches Union Free School

District, 508 U.S. 384 (1993):

(1) Viewpoint discrimination in denying access to a

“non-public” forum.

(2) Holding: Where school district opened its

facilities for after-hours use by community
groups for a broad range of social, civic, and
recreational purposes, it unconstitu-tionally
denied access to church group that sought to
exhibit film series addressing family values and
child-rearing from a “Christian perspective.”

(3) Id. at 393 (“[I]t discriminates on the basis of

viewpoint to permit school property to be used
for the presentation of all views about family
issues and child-rearing except those dealing
with the subject matter from a religious
standpoint.”)

p. Rosenberger v. Rector & Visitors of the University of

Virginia, 515 U.S. 819 (1995):

(1) Viewpoint discrimination in denying access to a

“limited” public forum.

(2) Holding that a student religious journal was

entitled to the same subsidy from student
activity funds that the University furnishes to
secular student journals.

(3) Id. at 831 (holding that the University policy

withholding the subsidy from student religious
journals constitutes VIEWPOINT-based
discrimination, because “the Univer-sity does
not exclude religion as a subject matter but
selects for disfavored treatment those student
journalistic efforts with religious editorial

222
 viewpoints. Religion may be a vast area of
inquiry, but it also provides, as it did here, a
specific premise, a perspective, a standpoint
from which a variety of subjects may be
discussed and considered. The prohibited
perspective, not the subject matter, resulted in
the [University’s denial of the subsidy].”)
(emphasis added)).

q. Regulation of Speech at POLLING PLACES:

(1) Minnesota Voters Alliance v. Mansky, 138 S. Ct.

1876 (2018) (striking down ban on wearing
political apparel inside polling places; State’s
broad interpretation of “political” was
unworkable and gave too much discretion to
poll workers, thereby flunking the
reasonableness test for content-based
restrictions on speech in a non-public forum).

(2) Burson v. Freeman, 504 U.S. 191 (1992)

(writing for a 4-vote plurality and purporting to
apply strict scrutiny, Justice Blackmun upholds
a Tennessee statute prohibiting the solicitation
of votes and the display or distribution of
campaign materials within 100 feet of any
polling place entrance, concluding that this
restriction was necessary and narrowly tailored
to serve a compelling state interest in
preventing voter intimidation and election
fraud); id. at 214 (Scalia, J., concurring in the
judgment) (observing that a better rationale for
this result is that the areas around polling
places have traditionally been the scene of
heavy speech restrictions on election day; thus,
on election day, at least, such spaces constitute
a nonpublic forum; though the instant
regulation is content based, it satisfies the test
for speech restrictions in a nonpublic forum
because it is reasonable and viewpoint neutral).

r. Lehman v. City of Shaker Heights, 418 U.S. 298

(1974):

223
(1) Upholding city’s refusal to accept any political
advertising for placement in or upon the city’s
rapid transit vehicles. Holding that advertising
spaces in or upon the city’s transit vehicles do
NOT constitute a public forum, the Court rules
that the city’s decision to preclude all political
advertising—by advancing the reasonable
governmental objectives of minimizing
“chances of abuse, the appearance of
favoritism, and the risk of imposing upon a
captive audience,” id. at 304—did not offend
the First Amendment.

(2) Note that Blackmun, writing for the Court,

deems these advertising spaces to be NON-
public forums, id. at 304—and notice the
extremely relaxed standard he employs in
analyzing this case: Content-based advertising
choices, he says, must not be “arbitrary,
capricious, or invidious,” id. at 303.

(3) Recall the current standard for restrictions on

speech in NON-public forums: They need only
be reasonable, so long as it is not an effort to
suppress expression merely because public
officials oppose the speaker’s view. Perry,
Krishna Consciousness, Kokinda, Cornelius.

(4) In finding these spaces to be NON-public

forums, Blackmun places great emphasis on
the commercial nature of this governmental
enterprise. 418 U.S. at 303.

(5) HOW TO ANALYZE PUBLIC TRANSIT

ADVERTISING SPACES: In the years since
Lehman, the lower federal courts have
developed a line of precedent that looks
carefully at the government’s policy and
practice toward its advertising spaces. If the
government consistently refuses to allow
political ads, its advertising spaces will be
deemed a NON-public forum. But if the
government consistently accepts political ads,
its advertising spaces will be deemed a
DESIGNATED public forum, and the

224
 government will not be free to prefer some
political ads over others. See, e.g., American
Freedom Defense Initiative v. SMART, 698 F.3d
885 (6th Cir. 2012) (state-run transit authority
did not violate the First Amendment when it
rejected plaintiff’s effort to place an anti-
Muslim advertisement on the sides of the
authority’s buses; the authority’s consistent
policy of refusing all political and ideological
ads meant that the advertising spaces on its
buses were a NON-public forum as in Lehman,
and not a designated public forum); New York
Magazine v. Metro-politan Transportation
Authority, 136 F.3d 123 (2d Cir. 1998) (where
transit authority had accepted not only
commercial but also political advertising on its
buses, the advertising space constituted a
DESIGNATED public forum—thus, transit
authority violated First Amend-ment in
rejecting an ad critical of the mayor); White
Coat Waste Project v. Greater Richmond
Transit Co., 35 F.4th 179, 196-203 (4th Cir.
2022) (transit authority, invoking its ban on all
“political” advertising on its buses, rejected an
ad that opposed taxpayer-funded animal
experimenta-tion; court holds that the transit
authority’s ban failed to satisfy the
reasonableness requirement for speech
restrictions in a nonpublic forum, because the
ban was enforced in a confusing and
inconsistent manner—sometimes narrowly
confined to criticism of govern-ment, other
times broad enough to bar public advocacy
statements calling for a boycott of McDonald’s
or the National Football League; in so holding,
the court invokes Minnesota Voters Alliance v.
Mansky, 138 S. Ct. 1876 (2018) for the
proposition that, “to be reasonable, nonpublic-
forum speech restrictions must be ‘capable of
reasoned application,’” 35 F.4th at 199
(quoting Mansky, 138 S. Ct. at 1892)).

s. Perry Education Association v. Perry Local

Educators’ Association, 460 U.S. 37 (1983): Holding
that teacher mailboxes and interschool mail system

225
 constituted a NON-public forum, so that granting
access to exclusive bargaining representative of
teachers union (and denying access to rival union)
did not violate the rival union’s First Amendment
rights.

(1) Perry is historically significant for tidying up

the public forum doctrine by introducing the
tripartite approach to forum analysis (i.e.,
dividing government property into three
distinct categories: traditional, designated, and
nonpublic forums). [NOTE: The Supreme Court
now divides all government property into FOUR
distinct categories: traditional, designated,
limited, and non-public forums. Christian Legal
Society v. Martinez, 130 S. Ct. 2971, 2984 n.11
(2010); Walker v. Texas Division, Sons of
Confederate Veterans, 135 S. Ct. 2239, 2250-51
(2015).]

t. Cornelius v. NAACP Legal Defense & Education

Fund, Inc., 473 U.S. 788 (1985): Holding that a
charity drive aimed at federal employees is a NON-
public forum, and ruling that the federal
government did not violate the First Amendment
rights of legal defense and political advocacy
organizations by excluding them from participation
in the drive.

(1) Cornelius is significant for expanding upon

Perry in elucidating:

(a) the degree of content discrimination that

the government may employ in restricting
access to NON-public forums; and

(b) the difference between designated and

nonpublic forums.

(2) The Degree of CONTENT Discrimination that

the Government May Employ in Restricting
Access to NON-public Forums:

Elaborating the test for restricting access to

nonpublic forums, Cornelius holds that such

226
 restrictions “can be based on subject matter
and speaker identity so long as the distinctions
drawn are reasonable in light of the purpose
served by the forum and are viewpoint neutral.”
473 U.S. at 806.

(3) The Difference Between Designated and

Nonpublic Forums:

(a) Writing for the Court, Justice O’Connor

stresses that designated public forums are
narrowly con-ceived. The government
does not create such a forum by inaction,
or by allowing the public freely to visit, or
by permitting limited discourse there;
instead, such a forum is created only
where the government intentionally opens
a non-traditional forum for public
discourse. 473 U.S. at 802.

(b) In divining the requisite intent to create a

designated public forum, the Court will
look to the government’s “policy and
practice” vis-à-vis the property; it will
likewise inquire whether the property is
by nature “compatib[le] with expressive
activity.” Id. at 802.

(c) Blackmun, joined by Brennan, dissents,

arguing that Cornelius makes it unduly
difficult for a plaintiff to establish the
existence of a designated public forum,
since the test turns largely on the need
for proof of affirmative governmental
intent.

(d) The concerns expressed by Blackmun in

his Cornelius dissent were later confirmed
in United States v. Kokinda, 497 U.S. 720
(1990), where O’Connor’s plurality
opinion (holding that postal sidewalks
located entirely on post office property
are NON-public forums) stressed that
designated public forums are not created
by governmental acquiescence in ongoing

227
 speech activities taking place on the
premises; instead, such a forum is created
by an intentional and affirmative
dedication of the property by the
government for certain expressive
purposes. Id. at 730.

u. Arkansas Educational Television Commission v.

Forbes, 523 U.S. 666 (1998): Rejecting a First
Amendment claim by an independent candidate for
Congress, who was excluded from appearing in a
debate on public television under a policy that
confined participation “to the major party candidates
or any other candidate who had strong popular
support.”

(1) Plaintiff had been excluded from the debate not

because public TV officials disagreed with his
views, but because he had not generated
appreciable voter support and was not regarded
as a serious candidate by the press. 523 U.S. at
682-83.

(2) The Court, in an opinion by Justice Kennedy,

concluded that the public forum doctrine does
not generally apply to the programming
decisions of a state-owned TV station. Id. at
673-75.

(3) But the public forum doctrine does apply when

a public TV station hosts a debate among
candidates for political office. Id. at 675-76.

(4) The narrow question posed by the case was

whether such a debate is a designated public
forum or a nonpublic forum. Id. at 678.

(5) The Court held that the debate was a NON-

public forum, from which the TV station could
exclude the candidate in the reasonable,
viewpoint-neutral exercise of its journalistic
discretion. Id. at 680.

(6) Since the TV station had excluded the

candidate not because it disagreed with his

228
 views but, instead, because “the voters lacked
interest in his candidacy,” the station did not
violate the First Amendment by excluding him
from the debate. Id. at 683.

(7) This decision is useful for its extended

discussion of the difference between
designated and nonpublic forums. The key
difference identified by Justice Kennedy’s
majority opinion is that a designated public
forum only arises when the government
affirmatively allows “general access” to an
entire class or category of speakers. Id. at 679.

(8) Absent facts that feature this type of

affirmative grant of “general access,” we fall all
the way down to the nonpublic forum, where
“selective access” (i.e., invited access to
specific speakers) is permissible. Id. at 679.

(9) Justice Kennedy observed (523 U.S. at 679):

“On the one hand, the government creates a

designated public forum when it makes its
property generally available to a certain class
of speakers, as the university made its facilities
generally available to student groups in
[Widmar v. Vincent, 454 U.S. 263 (1981)]. On
the other hand, the government does not create
a designated public forum when it does no
more than reserve eligibility for access to the
forum to a particular class of speakers, whose
members must then ‘obtain permission’ to use
it.”

(10) In the latter situation, the government must

abide by the basic standard for nonpublic
forums: Its restrictions on expressive access to
the forum must satisfy a reasonableness test,
and it cannot exclude a particular speaker due
to disagreement with her message or viewpoint.
523 U.S. at 677-78.

(11) Justice Kennedy concluded (id. at 680):

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 “By recognizing the distinction [between
‘general’ and ‘selective’ access], we encourage
the government to open its property to some
expressive activity in cases where, if faced with
an all-or-nothing choice, it might not open the
property at all. That this distinction turns on
governmental intent does not render it
unprotective of speech. Rather, it reflects the
reality that, with the exception of traditional
public fora, the government retains the choice
of whether to designate its property as a forum
for specified classes of speakers.”

v. Good News Club v. Milford Central School, 533 U.S.

98 (2001) (voting 6-3) (per Thomas, J.)

(1) Holding that public school’s exclusion of

Christian children’s club from meeting after
hours at the school based on the club’s
religious nature was uncon-stitutional
viewpoint discrimination under the First
Amendment’s Speech Clause.

(2) Holding, moreover, that the school was not

required to engage in such viewpoint
discrimination by the Establishment Clause.

(3) Effectively, the Court holds here that public

schools must open their doors to after-school
religious activities, even those that involve
young children, on the same basis as any other
after-hours activity that school policy permits.

(4) Significance: This ruling extends to elementary

school property the same constitutional
principle that the Court has already applied to
public high schools, Lamb’s Chapel, 508 U.S.
384 (1993), and colleges, Widmar v. Vincent,
454 U.S. 263 (1981)).

w. Christian Legal Society v. Martinez, 130 S. Ct. 2971

(2010): In this case, the Christian Legal Society
(CLS) unsuccessfully challenged the University of
California’s requirement that Registered Student
Organizations (RSOs) must be open to all students.

230
 CLS argued that under this requirement it would be
forced to admit avowed atheists and “unrepentant
homosexual[s]” into its organization. Id. at 2980.
But student organizations are free to exist without
RSO status; RSOs merely receive certain benefits and
subsidies that are not given to student groups that
discriminate in conferring membership. When the
University refused to grant RSO status to CLS, citing
CLS’s intention to discriminate on the basis of
religion and sexual orientation, CLS filed suit,
alleging that its First Amend-ment rights had been
violated. In a 5-4 decision, the Supreme Court ruled
against CLS, holding that RSO status is a “limited”
public forum, and that the University’s restrictions
on access to that forum were reasonable and
viewpoint neutral.

*****

V(B)(4).
GOVERNMENT SPEECH

1. In this section of the course, we examine four cases that

discuss the “government speech” doctrine:

a. Pleasant Grove City v. Summum, 129 S. Ct. 1125

(2009);

b. Walker v. Texas Division, Sons of Confederate

Veterans, 135 S. Ct. 2239 (2015);

c. Matal v. Tam, 137 S. Ct. 1744 (2017); and

d. Shurtleff v. City of Boston, 142 S. Ct. 1583 (2022).

2. The government speech doctrine applies to situations in

which the government is acting not as a speech regulator
but as a speaker itself, communicating information and
ideas to the public.

3. When the government speech doctrine is applicable, the

government is NOT restrained by the Free Speech Clause.

4. Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009)

231
a. In Summum, Justice Alito framed the issue as
follows: “This case presents the question whether
the Free Speech Clause of the First Amendment
entitles a private group to insist that a municipality
permit it to place a permanent monument in a city
park in which other donated monuments were
previously erected. The Court of Appeals held that
the municipality was required to accept the
monument because a public park is a traditional
public forum.” Id. at 1129.

b. Reversing, the Supreme Court concluded that

“although a park is a traditional public forum for
speeches and other transitory expressive acts, the
display of a permanent monument in a public park is
not a form of expression to which forum analysis
applies. Instead, the placement of a permanent
monument in a public park is best viewed as a form
of government speech and is therefore not subject to
scrutiny under the Free Speech Clause.” Id. at 1129.

c. But the government’s decision is not wholly free

from constitu-tional restraint. Summum holds that
government speech must comport with the
Establishment Clause. Id. at 1131-32.

d. Writing for a unanimous Court, Justice Alito

observed: “Governments have long used monuments
to speak to the public. ... When a government entity
arranges for the construc-tion of a monument, it
does so because it wishes to convey some thought or
instill some feeling in those who see the structure.”
Id. at 1132-33.

e. When a monument “is commissioned and financed

by a government body for placement on public land,”
it is incon-testable that the installation of that
monument “constitutes government speech.” Id. at
1133. “Just as government-commissioned and
government-financed monuments speak for the
government, so do privately financed and donated
monuments that the government accepts and
displays to the public on government land.” Id. at
1133.

232
 f. When it comes to privately funded or donated
monuments, governmental entities are selective, id.
at 1133; they exercise considerable care in choosing
such monuments because the public parks they
adorn “play an important role in defining the
identity that a city projects to its residents and to
the outside world,” id. at 1133-34.

g. Accordingly, the monuments they select “are meant

to convey and have the effect of conveying a
government message, and they thus constitute
government speech.” Id. at 1134.

5. Walker v. Texas Division, Sons of Confederate Veterans,

135 S. Ct. 2239 (2015)

a. The Sons of Confederate Veterans complained that

its First Amendment rights were violated when the
Texas Department of Motor Vehicles Board rejected
its application for a specialty license plate featuring
the Confederate battle flag.

b. Rejecting the plaintiff’s claim, the Supreme Court

(voting 5-4) held that Texas specialty license plate
designs are government speech, so that the Speech
Clause does not apply to plaintiff’s application.
Accordingly, Texas was not required to be view-point
neutral in approving and rejecting design proposals.

c. The Court’s resort to the government speech

doctrine is questionable on a record revealing more
than 350 highly individualized specialty plates, many
of them celebrating people and institutions with no
connection to Texas (e.g., the University of
Alabama’s Crimson Tide football team).

d. Writing for the four dissenters, Justice Alito mocked

the notion that the State of Texas was “speaking”
through its specialty license plates. He singled out
the “I’d Rather Be Golfing” plate and wondered
whether that sentiment reflected the official policy
of the State. 135 S. Ct. at 2255 (Alito, J., dissenting).

233
6. Matal v. Tam, 137 S. Ct. 1744 (2017), is not really a
government speech case; it’s a viewpoint discrimination
case. But it did slam the door on expanding the
government speech doctrine to encompass federal
trademark registration. So Matal is significant for
establishing some LIMITS on the government speech
doctrine.

a. In Matal, an Asian-American rock band sought

trademark registration for its name, “The Slants,”
but the federal Trademark Office refused,
responding that “slants” is a derogatory term for
persons of Asian descent (as if the band members
didn’t know that). By choosing that slur as the name
for their group, the band members sought to
“reclaim” it and thereby combat its denigrating
force, id. at 1754, so they challenged the decision of
the Trademark Office.

b. The Supreme Court ruled in their favor, striking

down the disparagement clause of the Lanham Act—
which banned registering trademarks that
“disparage” any “person[], living or dead”—as
facially invalid viewpoint discrimination under the
Speech Clause of the First Amendment. Id. at 1763.

c. GOVERNMENT SPEECH: The Trademark Office tried

to defeat the rock band’s challenge by invoking the
government speech doctrine and arguing as follows:
Federal trademarks are government speech—so the
First Amendment DOES NOT RESTRAIN the
Trademark Office when it grants or withholds a
trademark. Since the First Amendment does not
apply, viewpoint discrimination is allowed—and the
Trademark Office is free to ban “disparag[ing]”
trademarks like “The Slants.”

(1) The Supreme Court rejected this argument. Id.

at 1757-60.

(2) Writing for the Court, Justice Alito cautioned

against any broad expansion of the government
speech doctrine: “[W]hile the government-
speech doctrine is important—indeed, essential
—it is a doctrine that is susceptible to

234
 dangerous misuse. If private speech could be
passed off as government speech by simply
affixing a government seal of approval,
government could silence or muffle the
expression of disfavored viewpoints. For this
reason, we must exercise great caution before
extending our government-speech precedents.”
Id. at 1758.

(3) Given the nature and procedure of trademark

registration, says Alito, a trademark bears none
of the characteristics of government speech:
“The Federal Government does not dream up
these marks, and it does not edit marks
submitted for registration....[A]n examiner does
not inquire whether any viewpoint conveyed by
a mark is consistent with Government policy or
whether any such viewpoint is consistent with
that expressed by other marks already on the
principal register....Moreover, once a mark is
registered, the [Trademark Office] is not
authorized to remove it from the register
unless a party moves for cancellation, the
registration expires, or the Federal Trade
Commission initiates proceedings....” Id. at
1758. Under these circum-stances, the
government looks like it’s processing
applications from other speakers, not speaking
itself.

(4) Then Alito has some fun with the idea that the
government is speaking here: “[I]f trademarks
represent government speech, what does the
Government have in mind when it advises
Americans to ‘make.believe’ (Sony), ‘Think
different’ (Apple), ‘Just do it’ (Nike), or ‘Have it
your way’ (Burger King)? Was the Government
warning about a coming disaster when it
registered the mark ‘EndTime Ministries’?” Id.
at 1759.

(5) Justice Alito had a similar splurge of fun in

Walker v. Texas Division, Sons of Confederate
Veterans, 135 S. Ct. 2239 (2015), when he
mocked the idea that Texas specialty license

235
 plates were government speech. But in Walker,
he was writing in DISSENT—and that raises the
question whether Matal and Walker can be
reconciled.

(6) In his Matal majority opinion (137 S. Ct. at

1760), Alito TRIES to distinguish Walker, but
his effort is unpersuasive. In both cases—
whether we are talking about trademarks or
specialty license plates—it strains credulity to
suggest that the government is speaking.

(7) In the end, it looks like Walker was wrongly

decided. But going forward, Matal will likely
act as a check on efforts to stretch the
government speech doctrine.

7. Shurtleff v. City of Boston, 142 S. Ct. 1583 (2022).

a. Like Matal, Shurtleff is NOT a government speech

case—but the lower courts in Shurtleff
MISIDENTIFIED it as a govern-ment speech case. In
Shurtleff, the Supreme Court offers extended
guidance on how to identify a true government
speech case.

b. OUTCOME: In Shurtleff, the Supreme Court struck

down a program that afforded broad expressive
access to a Boston City Hall flagpole—permitting
flag-raising events by private groups that featured
flags of many different countries and causes—when
the City imposed a flat ban on religious flags.

c. FACTS:

(1) The City of Boston owns and manages three

flagpoles that are situated directly in front of
City Hall in an area known as City Hall Plaza.

(2) Ordinarily, the City raises the United States

flag on one flagpole, the Commonwealth of
Massachusetts flag on the second flagpole, and
the City of Boston flag on the third flagpole.

236
 (3) But the City does not always use the third
flagpole to fly its own flag. Upon request and
after approval, the City allows private parties to
stage a “flag-raising event” with a flag of their
own choosing.

(4) Over a 12-year span, the City approved

hundreds of flag-raising events utilizing its
third flagpole. These events highlighted ethnic
and cultural celebrations (featuring the flags of
many different foreign countries),
commemorated historic events (featuring, for
example, a Juneteenth flag), and celebrated
certain causes (featuring, for example, a gay
pride flag).

(5) But when a Christian organization sought to fly

a Christian flag, the City refused.

(6) Before rejecting that request, the City had

never previously denied a flag-raising
application. It had approved 284 consecutive
requests.

d. VIEWPOINT DISCRIMINATION: All nine Justices

agreed that Boston’s refusal to fly the Christian flag
was an act of viewpoint discrimination that violated
the First Amendment. In this sense, Shurtleff was an
easy case, confirming a long line of decisions—e.g.,
Rosenberger v. Rector & Visitors of the University of
Virginia, 515 U.S. 819 (1995)—in which the Court
has stressed that viewpoint discrimination includes
discrimination against religious viewpoints.

e. GOVERNMENT SPEECH ANALYSIS: But the Justices

disagreed on how to identify a true case of
government speech. Here Justice Alito departed from
Justice Breyer’s majority opinion. Rejecting Breyer’s
approach, Alito (joined by Gorsuch and Thomas)
writes a separate opinion concurring in the
judgment. I believe that Justice Alito gets it exactly
right—and I recommend that you follow his approach
when trying to determine whether a fact pattern
presents a government speech issue.

237
(1) Here is Alito’s key point: IN A GOVERNMENT
SPEECH CASE, THE ESSENTIAL QUESTION IS
WHETHER THE GOVERNMENT IS SPEAKING
INSTEAD OF REGULATING PRIVATE
EXPRESSION. Any test that strays from this
focus is a distraction and a disservice.

(2) And this is the problem with Breyer’s majority

opinion. Breyer makes a serious analytical
mistake by erecting a three-factor test derived
from observations that were peculiar to the
facts in Summum. These factors DEVIATE from
a focus on whether the government is speaking.

(3) In Shurtleff, all nine Justices agreed that

Boston’s flag-raising program did NOT entail
government speech. So why did the lower
courts MISIDENTIFY Shurtleff as a government
speech case? The lower courts got it wrong
because they employed the same three-factor
test endorsed by Justice Breyer. Rather than
focusing on whether the government was
SPEAKING, they focused on the general history
of flags and the close proximity of the flagpoles
to Boston’s City Hall.

(4) Applying the three-factor test adopted by the

majority, Breyer concludes that Shurtleff was a
close call. 142 S. Ct. at 1590. But Shurtleff was
not a close call. None of the facts suggested
that the City of Boston was SPEAKING through
its flag-raising program. The City rubber-
stamped 284 consecutive applications,
approving flags of every description; it balked
at the Christian flag only out of fear that it
might be accused of violating the
Establishment Clause. Nowhere in these facts
do we see the government communicating its
own message, or expressing its own identity, or
speaking with its own voice. In short, the City
was NOT engaged in government speech. This
was not a close call. And any test that makes it
look like a close call is badly flawed.

238
(5) Here is the three-factor test advanced by
Justice Breyer in his majority opinion. To
determine whether it is confronted with
government speech, a court must consider:
“the history of the expression at issue; the
public’s likely perception as to who (the
government or a private person) is speaking;
and the extent to which the government has
actively shaped or controlled the expression.”
Id. at 1589-90.

(6) Here is Alito’s approach: “[G]overnment speech

occurs if—but only if—a government
purposefully expresses a message of its own
through persons authorized to speak on its
behalf, and[,] in doing so, does not rely on a
means that abridges private speech.” Id. at
1598 (Alito, J., con-curring in the judgment).

(7) Critiquing the “triad” of factors advanced by

Breyer, Justice Alito writes: “[T]reating those
factors as a test obscures the real question in
government-speech cases: whether the
government is speaking instead of regulating
private expression.” Id. at 1595 (Alito, J.,
concurring in the judgment) (emphasis in
original).

(8) Particularly problematic is the factor that

relies on PUBLIC PERCEPTION of who is
speaking rather than a direct inquiry into who
is ACTUALLY speaking: “Unless the public is
assumed to be omniscient, public perception
cannot be relevant to whether the government
is speaking, [rather than] merely appearing to
speak.” Id. at 1597 (Alito, J., concurring in the
judg-ment) (emphasis in original).

(9) For Bar Exam purposes, you’ll need to be

cognizant of the three-factor test. But, as a
practical matter, you should employ Alito’s
approach to government speech analysis. By
focusing directly and exclusively on whether
the government is speaking, you’ll be much
more likely to reach the correct result.

239
 *****

V(B)(5).
GOVERNMENT-FUNDED SPEECH

1. Government-Funded Expression

a. The Influence of Rust v. Sullivan

(1) Government-funded expression is most

accurately regarded as a unique subtopic in
First Amendment law.

(2) In this special context—where the government

is funding expressive activity—judicial review is
deferen-tial, appearing to uphold even
viewpoint discrimination in some contexts (e.g.,
arts funding).

(3) This unhappy state of affairs is directly

attributable to Rust v. Sullivan, 500 U.S. 173
(1991).

(a) In Rust, the Supreme Court held that

Congress did not offend the First
Amendment by conditioning federal
public health funding upon the recipient’s
abstaining from providing counseling
about abortion or advocating abortion as
a method of family planning. Id. at 203.

(b) Rust’s upshot was to broaden the

government’s power to exert control over
the speech of govern-ment grantees—
permitting even viewpoint discrimination
in doling out government subsidies.

(c) See id. at 193 (finding that “[t]he

Government can, without violating the
Constitution, selectively fund a program
to encourage certain activities it believes
to be in the public interest, without at the

240
 same time funding an alternative program
which seeks to deal with the problem in
another way”).

(d) The Court, of course, did not consider the

funding denial to abortion-related
activities as viewpoint discrimination. Id.
at 193. Instead, the Court found that
Congress “has merely chosen to fund one
activity to the exclusion of the other.” Id.

(e) Regardless of the Court’s effort to

minimize the impact of its holding, what
the Court actually did was to uphold a
federal funding restriction that dictated
to doctors what they could and could not
say to their patients. And that speech
restriction was viewpoint-based because it
took sides in the abortion debate—
silencing doctor speech that even
mentioned abortion as an option the
patient might choose.

(4) On the day that Rust was handed down, one

commenta-tor summed it up as a judicial
application of the old saying, “He who pays the
piper calls the tune.” In other words, when the
government is funding expression, the
government can control the viewpoint of that
expression.

(5) Though Rust did not deal with arts funding,

constitu-tional lawyers and scholars were quick
to observe how readily Rust could be applied to
the arts funding context.

(6) Seven years later, in National Endowment for

the Arts v. Finley, 524 U.S. 569 (1998), the
Court did just that.

b. The Finley Decision

(1) Finley was the climax of an angry political

debate that began in 1989 when lawmakers and
the public were confronted with the fact that

241
 works by two controversial artists—the
homoerotic photographs of Robert Mapple-
thorpe and the “Piss Christ” of Andres Serrano
—had been federally subsidized.

(2) Congress responded with a 1990 amendment,

codified at 20 U.S.C. § 954(d)(1), requiring the
chairperson of the NEA to ensure that “artistic
excellence and artistic merit are the criteria by
which [grant] applications are judged, taking
into consideration general standards of
decency and respect for the diverse beliefs and
values of the American public.” 524 U.S. at 572.

(3) Finley was a facial challenge to this “decency

and respect” proviso, brought by four
individual per-formance artists and an artists’
organization. The plaintiffs asserted that the
amendment should be struck down as a classic
example of viewpoint discrimination under the
First Amendment.

(4) Voting 8-1, the Court upheld the law as

constitutional under the First Amendment.

(5) The lone dissenter, Justice Souter, asserted

that the decency and respect proviso “penalizes
[art] that disrespects the ideology, opinions, or
convictions of a significant segment of the
American [public, but not] art that reinforces
those values.” Id. at 606 (Souter, J., dis-
senting).

(6) As such, argued Souter, the proviso is a patent

example of “viewpoint discrimination”—and he
expressed bafflement as to why the statute
should not be struck down under the Court’s
well-established hostility to viewpoint-based
restrictions. Id. at 606 (Souter, J., dis-senting).

(7) The statute’s legislative history is replete with

congressional floor speeches insisting that
funding must be denied to controversial artists
like Robert Mapple-thorpe and Andres Serrano,
and to any works that offend traditional

242
 American sensibilities. Id. at 606-07 (Souter, J.,
dissenting).

(8) The author of the decency and respect proviso

stated in a floor speech that it “add[s] to the
criteria of artistic ... merit a shell, a screen, a
viewpoint that must constantly be taken into
account” in awarding grants. Id. at 606-07
(Souter, J., dissenting).

(9) But the majority, echoing its approach in Rust,

held that “there is a basic difference between
direct state inter-ference with a protected
activity and state encourage-ment of an
alternative activity consonant with legislative
policy.” Id. at 589.

(10) “[A]s a practical matter,” the Court concluded,

“artists may conform their speech to what they
believe to be the decisionmaking criteria in
order to acquire funding.” Id.

c. But see Legal Services Corp. v. Velazquez, 531 U.S.

533 (2001) (holding that Rust and Finley do NOT
allow the government to impose viewpoint-based
restrictions on advocacy by government-funded
lawyers who represent the indigent).

(1) Velazquez involved a federal program by which

Congress provides funding for the legal
representation of indigent clients. Under this
program, the money allocated by Congress is
funneled through a federal entity, the Legal
Services Corporation (“LSC”), which distributes
the funds to hundreds of local organizations
like the Legal Aid Society here in Cleveland.
The money helps to support Legal Aid lawyers
in representing indigent clients.

(2) In Velazquez, Legal Aid lawyers and their

clients challenged a statute by which Congress
prohibited LSC-funded attorneys from
contesting the validity of existing welfare laws.
Under this prohibition, LSC-funded lawyers
were barred from asserting constitutional

243
 arguments against federal provisions and
Supremacy Clause argu-ments against state
provisions. 531 U.S. at 544.

(3) The Supreme Court, in a 5-4 ruling by Justice

Kennedy, held that this restriction violated the
First Amendment as a form of viewpoint
discrimination.

(4) Under the challenged statute, wrote Kennedy,

“cases would be presented by LSC attorneys
who could not advise the courts of serious
questions of statutory validity. The disability is
inconsistent with the proposition that attorneys
should present all the reasonable and well-
grounded arguments necessary for proper
resolution of the case. By seeking to prohibit
the analysis of certain legal issues and to
truncate presentation to the courts, the
[statute] prohibits speech and expression upon
which courts must depend for the proper
exercise of the judicial power.” Id. at 545.

(5) In conclusion, Kennedy observed: “The

Constitution does not permit the Government
to confine litigants and their attorneys in this
manner. We must be vigilant when Congress
imposes rules and conditions which in effect
insulate its own laws from legitimate judicial
challenge.” Id. at 548.

(6) Writing for the four dissenters, Justice Scalia

argued that this case was indistinguishable
from Rust v. Sullivan, so that the statute should
have been upheld.

d. Agency for International Development v. Alliance for

Open Society International, 133 S. Ct. 2321 (2013)

(1) This case helps to establish the outer limits of

how far Congress can go in imposing speech
restrictions on the recipients of federal
funding.

244
(2) “The relevant distinction that has emerged
from our cases,” wrote Chief Justice Roberts,
“is between conditions that define the limits of
the government spending program—those that
specify the activities Congress wants to
subsidize—and conditions that seek to leverage
funding to regulate speech outside the
contours of the program itself.” 133 S. Ct. at
2328.

(3) What was the government spending program in

this case? It was a federal statute called “the
United States Leadership Against HIV/AIDS,
Tuberculosis, and Malaria Act of 2003,” which
funnels billions of dollars to nongovernmental
organizations to combat HIV/AIDS around the
world.

(4) What was the restriction that Congress

imposed on all recipients of funding under the
Act? All recipients were required explicitly to
declare their opposition to prostitution.

(5) The plaintiffs who challenged this funding

restriction were domestic organizations
engaged in combating HIV/AIDS overseas, in
Africa, India, and Central Asia. They feared that
adopting a policy explicitly opposing
prostitution would make it difficult for them to
work with prostitutes to fight the spread of
HIV/AIDS.

(6) The Supreme Court held that the funding

restriction violated the First Amendment.

(7) Writing for the Court, Chief Justice Roberts

asserted: “[This case] is about compelling a
grant recipient to adopt a particular belief as a
condition of funding. ... By requiring recipients
to profess a specific belief, the Policy
Requirement goes beyond defining the limits of
the federally funded program to defining the
recipient.” Id. at 2330-31 (emphasis added).

245
 (8) The Chief Justice concluded: “The Policy
Requirement compels as a condition of federal
funding the affirma-tion of a belief that by its
nature cannot be confined within the scope of
the Government program. In so doing, it
violates the First Amendment and cannot be
sustained.” Id. at 2332.

*****

V(C).
SYMBOLIC CONDUCT

C. Symbolic Conduct

1. Does the First Amendment freedom of “speech” extend to

nonverbal symbolic expression?

2. The federal courts have consistently said “yes,” extending

speech protection to such nonverbal expression as flag-
burning and cross-burning, armbands and sit-ins.

3. To constitute symbolic speech, there must be a speaker

who intends to communicate a message to an audience.
Melville Nimmer, The Meaning of Symbolic Speech under
the First Amendment, 21 UCLA L. REV. 29, 36 (1973).

4. But just because someone engages in symbolic expression

does not mean that the government is barred from
regulating the underlying conduct—as the next case
shows:

5. United States v. O’Brien, 391 U.S. 367 (1968): Upholding

defendant’s conviction for burning his draft card to
protest U.S. military intervention in Vietnam—and
creating a special four-part test for gauging the
constitutionality of regulations that are directed at
conduct comprised of speech and non-speech elements,
where the government asserts an interest in regulating
the NON-speech element.

a. Facts: Defendant intentionally burned his draft card,

knowing it was a violation of federal law; he did so

246
 with a view toward influencing others to adopt his
anti-draft, anti-war beliefs.

b. Defendant received a five-year jail sentence for this

expressive act.

c. In a 7-1 decision, with Chief Justice Warren writing

the opinion (Marshall took no part), the Supreme
Court upholds the conviction.

d. Regarding the statute that Defendant violated: It

was amended in 1965 (one year before his actions)
to criminalize the intentional mutilation or
destruction of one’s draft card, authorizing a prison
term of up to six years.

e. The U.S. Court of Appeals for the First Circuit struck

down the 1965 amendment as designed to single out
for punishment those persons protesting the
Vietnam War.

f. The Supreme Court reverses, upholding the law on

its face and as applied.

g. The key to O’Brien: Incidental burdens on the

speech-related element of regulated conduct will be
upheld where the government has an important
interest in restricting the NON-speech element of
that conduct. In other words, where the government
regulates CONDUCT that has a communicative
quality, the regulation will nevertheless survive a
First Amendment challenge if the governmental
JUSTIFICATION for restricting the conduct is
important and is unrelated to the suppression of
ideas.

h. More precisely, O’Brien sets forth a four-part test for

gauging the First Amendment validity of regulations
directed at conduct comprised of speech and non-
speech elements, where the government has an
interest in regulating the NON-speech component.
Such a regulation is “sufficiently justified,” 391 U.S.
at 377:

247
 (1) if it is within the constitutional power of the
government;

(2) if it furthers an important or substantial

governmental interest;

(3) if the governmental interest is unrelated to the

suppression of free expression; and

(4) if the incidental restriction on alleged First

Amendment freedoms is no greater than is
essential to the furtherance of that interest.

i. Note how Warren—in applying his newly-minted

four-part test—goes out of his way to justify the
necessity of the draft card in the administration of
the Selective Service system.

j. He concludes that since the card system is necessary

to the efficient administration of the draft, the
governmental interest here is unrelated to the
communicative aspect of Defendant’s conduct.

k. Less than persuasively, he attempts to distinguish

this case from Stromberg, where, he says, the ban on
red flags was directed at the communicative aspect
of the defendant’s conduct. [See Stromberg v.
California, 283 U.S. 359 (1931) (overturning the
conviction of a Youth Communist League member by
striking down a statute that criminalized the display
of any “red flag, banner, or badge [employed] as a
sign, symbol, or emblem of opposition to organized
government”).]

l. Perhaps the most troubling aspect of O’Brien is the

Court’s refusal to look carefully at the speech-
suppressive purpose that animated Congress in
enacting the 1965 amendment.

m. Alfange, The Draft-Card Burning Case, 1968 SUP. CT.

REV. 1, asserts that the floor debates on the 1965
amendment leave little doubt about the intent of
Congress (id. at 15): “What emerges with
indisputable clarity from an examination of the
legislative history of the amendment is that the

248
 intent of its framers was purely and simply to put a
stop to this particular form of antiwar protest, which
they deemed extraordinarily contemptible and
vicious—even treasonous—at a time when American
troops were engaged in combat. … On the basis of
this legislative history, it is not open to doubt that
the attitude of defiance manifested in the draft-card
burnings was what represented the threat seen by
Congress, and that the infuriating offensiveness of
this mode of dissent was what drove Congress to
prohibit it.”

n. Especially revealing are the remarks of

Representative William G. Bray of Indiana, who,
during the floor debates, asserted: “The need of this
legislation is clear. Beatniks and so-called ‘campus
cults’ have been publicly burning their draft cards to
demonstrate their contempt for the United States
and our resistance to Communist takeovers.” 111
CONGRESSIONAL RECORD at 19,871-72.

o. Shouldn’t this type of legislative history, revealing a

VIEWPOINT-discriminatory aim, affect the Court’s
First Amendment analysis?

p. The O’Brien Court’s refusal to look carefully at the

legislative intent is all the more troubling when you
remember that viewpoint discrimination is FATAL to
a speech regulation. See, e.g.,

(1) Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227

(2015) (holding that a speech restriction will
be subject to strict scrutiny, even if content
neutral on its face, if it was “adopted by the
government because of disagreement with the
message [it] conveys”) (emphasis added).

(2) Other Supreme Court decisions show that a

viewpoint-suppressive intent is NOT irrelevant
to First Amendment analysis; e.g., Cornelius v.
NAACP Legal Defense & Education Fund, 473
U.S. 788, 811 (1985): “The existence of
reasonable grounds for limiting access to a
nonpublic forum [will] not save a regulation

249
 that is in reality a facade for viewpoint-based
discrimination.”

q. Two final points about O’Brien:

(1) The DANGER of O’Brien: The case serves as an

invitation to legislators to punish expression
they dislike by concocting a regulatory
justification that carefully avoids any overt
relation to speech.

(2) The LIMITS of O’Brien: As a precedent, its

reach is properly confined to the realm of
symbolic expression (i.e., NON-VERBAL
expression).

6. Other Forms of Symbolic Expression: Stromberg, Tinker,

and Schact

a. Stromberg v. California, 283 U.S. 359 (1931)

(overturning the conviction of a Youth Communist
League member by striking down a statute that
criminalized the display of any “red flag, banner, or
badge [employed] as a sign, symbol, or emblem of
opposition to organized government”). [N OTE:
Handed down 140 years after the First Amendment’s
ratification, this was the first Supreme Court case in
which a defendant successfully invoked the First
Amendment to defeat the government’s effort to
punish his expression.]

b. Tinker v. Des Moines School District, 393 U.S. 503

(1969) (several high school and junior high school
students were suspended for wearing black
armbands as a symbol of opposition to the Vietnam
War; a rule forbidding the wearing of such armbands
had been adopted by school officials two days before,
in anticipation of the protest; the Supreme Court
held that the prohibition against armbands violated
the students’ First Amendment rights because
school officials were regulating expressive conduct
that approached being “pure speech,” id. at 505-06).

c. Schacht v. United States, 398 U.S. 58 (1970)

(striking down a federal statute that was enforced to

250
 punish the wearing of an American military uniform
in a theatrical production critical of the war in
Vietnam).

7. Flag Desecration and Misuse

a. Street v. New York, 394 U.S. 576 (1969) (defendant

was convicted under New York’s flag desecration
statute when, upon learning that civil rights leader
James Meredith had been shot by a sniper in
Mississippi, he publicly burned an American flag,
declaring: “‘We don’t need no damned flag. … If they
let that happen to Meredith, we don’t need an
American flag.’”).

(1) Voting 5-4, the Court overturned the

defendant’s flag-burning conviction, but did so
on narrow grounds.

(2) Rather than reaching the issue of whether the

government can criminalize the intentional
burning of the American flag as a means of
public protest, the majority held that New
York’s flag desecration statute was
unconstitutionally applied to defendant—
because it was worded in such a way that it
permitted him to be punished merely for
speaking defiant or contemptuous words about
the flag.

b. Smith v. Goguen, 415 U.S. 566 (1974) (striking down

—on vagueness grounds—a Massachusetts statute
that criminalized the contemptuous treatment of an
American flag) (defendant had been convicted for
wearing a small cloth replica of the flag sewn to the
seat of his trousers).

c. Spence v. Washington, 418 U.S. 405 (1974)

(successful as-applied challenge to flag misuse
statute under which defendant college student was
prosecuted for displaying from his apartment
window an American flag, hung upside down with a
peace symbol attached, to protest U.S. intervention
in Cambodia and the killing of students at Kent
State) (the Court, in a per curiam opinion,

251
 distinguished O’Brien on the grounds that THIS
statute was DIRECTLY related to expression).

d. Texas v. Johnson, 491 U.S. 397 (1989): Squarely

addressing the issue that the Street majority ducked,
the Court (in a 5-4 Brennan opinion) strikes down a
Texas flag desecration statute under which the
defendant had been convicted for burning an
American flag during a protest rally against
President Reagan outside the 1984 Republican
National Convention.

(1) After holding that flag-burning is sufficiently

communi-cative to warrant First Amendment
protection, Brennan distinguishes O’Brien,
observing that the Texas statute is related to
expression—indeed, to the suppression of free
expression.

(2) Since the text of the statute made conviction

depend on the likelihood that observers would
be “seriously offend[ed],” Brennan holds that
this is a content-based restriction on speech
that must be subjected to strict scrutiny. 491
U.S. at 411-12.

(3) In a famous passage, Brennan observes that

“the government may not prohibit the
expression of an idea simply because society
finds the idea itself offensive or disagreeable.”
Id. at 414. This means that government may
not require that particular symbols be utilized
by speakers only in a manner consistent with
political orthodoxy. Id. at 416-18.

e. United States v. Eichman, 486 U.S. 310 (1990)

(again 5-4 and again in a Brennan opinion, the Court
strikes down a federal flag desecration statute
enacted by Congress in angry reaction to Texas v.
Johnson).

* * *

V(D).

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 POLITICAL SOLICITATION,
CONTRIBUTION, AND EXPENDITURE

D. Regulating Political Solicitation, Contribution, and Expenditure

1. Does contributing money to a political candidate

constitute “speech” for First Amendment purposes?

2. Does the expenditure of money by or for a political

candidate constitute “speech” for First Amendment
purposes?

3. If so, to what extent is the First Amendment violated by

laws that restrict the contribution or expenditure of
political money?

4. For many years, the dominant Supreme Court case in this

area was Buckley v. Valeo, 424 U.S. 1 (1976), and it has
not yet been overruled. Buckley drew a distinction
between:

a. CONTRIBUTIONS TO a candidate, and

b. EXPENDITURES BY or FOR a candidate.

5. Buckley held that CONTRIBUTIONS TO a candidate may

be limited, but EXPENDITURES BY OR FOR a candidate
may not, except as a condition of receiving public funds.

6. In Citizens United v. Federal Election Commission, 558

U.S. 310 (2010), the Supreme Court reaffirmed Buckley
and greatly simplified the law of campaign finance.

7. Citizens United retains Buckley’s distinction between

DIRECT CONTRIBUTIONS TO a candidate (which can be
restricted) and INDEPENDENT EXPENDITURES FOR a
candidate (which now cannot be restricted).

8. As to these INDEPENDENT EXPENDITURES, Citizens

United holds that:

a. Congress cannot impose dollar limits on them;

253
 b. Congress cannot bar corporations from making
them, even if the corporation is spending the money
to disseminate a partisan political message; and

c. Congress cannot restrict their timing (banning

them, for example, in the final days leading up to an
election).

9. But independent expenditures in the form of corporate

political speech CAN be regulated through DISCLAIMER
and DISCLOSURE requirements that reveal the identity of
the speaker.

10. In April 2014, the Supreme Court continued its attack on

campaign spending limits in McCutcheon v. FEC, 134 S.
Ct. 1434 (2014). McCutcheon struck down a long-
established cap on the total amount that any individual
can contribute to federal candidates in a two-year election
cycle. Left intact, for now, is the $2,600 limit on
contributions to individual candidates, but wealthy donors
are free now to give that sum to as many candidates as
they wish. McCutcheon undermines the key distinction in
Buckley v. Valeo between direct contributions to and
independent expenditures for a candidate. The Court did
not overrule Buckley but this holding looks like a fatal
blow. Unlike Citizens United, which governs independent
expenditures by corporations and unions, McCutcheon
focused only on direct contributions by individual donors.

* * *

VI.
ADDITIONAL PROBLEMS
A. The Speech Rights of Students

1. Restricted Environments: In First Amendment law, there

is a body of precedent known as “Restricted
Environments.” It refers to three distinct arenas—the
military, prisons, and public schools—where the “inmates”
are afforded far less speech protection than their counter-
parts in the outside world. We will study the speech rights
of students, and the governing law is covered in this
section of the Outline. We will not study the speech rights

254
 of prisoners and military personnel because those topics
are virtually ignored in your casebook, STONE SEIDMAN.
But I have given you the governing law on those topics in
my Speech Clause Overview.

2. Schools:

a. Students in public secondary schools do not enjoy

the same highly-protected speech rights as do their
adult counterparts in the outside world.

b. Protection for student speech varies depending upon

the setting in which the student expressed herself.
The most important distinction is between ON-
CAMPUS and OFF-CAMPUS expression. In the
section immediately below, I cover the cases dealing
with ON-CAMPUS speech. After that, I cover the
Court’s approach to OFF-CAMPUS speech, including
off-campus Internet communications.

c. ON-CAMPUS SPEECH: Regarding student speech

that takes place ON CAMPUS, First Amendment
protection will vary depending upon which of the
following four categories it falls into:

(1) Individual Political Expression: This is the type

of student speech that receives the greatest
protection. It may be censored or punished by
school authorities only if it “materially and
substantially disrupt[s]” the work and
discipline of the school. Tinker v. Des Moines
School District, 393 U.S. 503, 509 (1969)
(holding that school officials violated the First
Amendment rights of students by banning them
from wearing, and then suspending them for
wearing, black armbands as a symbol of
opposition to the Vietnam War). N OTE: This
substantial disruption test is the most speech-
protective test in the realm of student
expression—and it DOES NOT APPLY in any of
the other categories of on-campus student
speech. Tinker has been extended by lower
courts to other forms of individual student
expression, including artistic expression. And
in 2021, the Supreme Court extended Tinker to

255
 the realm of off-campus Internet
communications. Mahanoy Area School District
v. B.L., 141 S. Ct. 2038, 2047-48 (2021). (I
discuss Mahanoy below, in the section on OFF-
campus expression by students.)

(2) Lewd or Vulgar Speech: Student speech that is

lewd or vulgar may be readily censored or
punished by school authorities. Bethel School
District No. 403 v. Fraser, 478 U.S. 675 (1986)
(upholding disciplinary action in which a
student was punished for delivering a
sophomoric, sexually suggestive speech at a
high school assembly). The speech, made in
support of a candidate for student government,
contained an elaborate sexual metaphor: “Jeff
Kuhlman is a man who takes his point and
pounds it in....He doesn’t attack things in
spurts. He drives hard, pushing and pushing
until finally—he succeeds.” 478 U.S. at 687.

(3) Speech Advocating or Celebrating Illegal Drug

Use: Student speech that advocates or
celebrates illegal drug use may be readily
censored or punished by school authorities.
Morse v. Frederick, 551 U.S. 393 (2007)
(upholding suspension of student who unfurled
a 14-foot-long banner—bearing the phrase
“BONG HiTS 4 JESUS”—while standing in front
of his school with classmates and
administrators as the televised proces-sion of
the Olympic Torch Relay passed before them).
Rejecting the argument that this banner was a
form of political speech protected by Tinker,
the Supreme Court held that “a principal may,
consistent with the First Amendment, restrict
student speech at a school event, when that
speech is reasonably viewed as promoting
illegal drug use.” 551 U.S. at 403.

(4) School-Sponsored Speech: Efforts by school

authorities to edit, restrict, or censor student
speech that appears in an official school
publication or performance will be analyzed by
courts under a form of rational basis review—

256
 the speech restriction will be upheld if it is
“reasonably related to legitimate pedagogical
concerns.” Hazelwood School District v.
Kuhlmeier, 484 U.S. 260, 272-73 (1988)
(upholding a high school principal’s decision to
remove two articles from the student news-
paper—a story describing three students’
experiences with pregnancy, and a story
discussing the impact of divorce on students at
the school). NOTE: This category is limited to
student speech that appears in a publication or
setting that may be reasonably perceived to
bear the school’s stamp of approval.

d. The Bethel decision is limited to lewd and vulgar

speech—its deferential treatment of school
censorship does NOT extend to speech that is
deemed “offensive” by administrators. Morse v.
Frederick, 551 U.S. 393, 409 (2007). This holding
repudiates a longstanding trend in the lower federal
courts.

e. Flatly rejecting the arguments of the Bush

Administration, and repudiating yet another trend in
the lower federal courts, Morse v. Frederick refused
to hold that the First Amendment permits public
school officials to censor any student speech that
purportedly interferes with a school’s “educational
mission.” 551 U.S. at 423 (Alito and Kennedy, JJ.,
concurring).

f. OFF-CAMPUS SPEECH: Mahanoy Area School

District v. B.L., 141 S. Ct. 2038 (2021).

(1) Before June 2021, the Supreme Court had

never decided a student speech case involving
OFF-CAMPUS expression; nor had it ever
decided a case involving student INTERNET
expression. That all changed with Mahanoy.

(2) Facts and Lower Court Outcomes:

(a) Rejected by the varsity cheerleading

squad and rebuffed by a private softball
team, a high school freshman (“B.L.”)

257
 expressed her frustration on Snapchat:
“Fuck school fuck softball fuck cheer fuck
everything.” Id. at 2043. These words
were accompanied by a photo of B.L. with
her middle finger raised.

(b) B.L. posted this communication on a

weekend, off campus, while visiting the
Cocoa Hut (a local convenience store); the
posting was viewable by her Snapchat
“friends” (roughly 250 people) for the
next 24 hours.

(c) But screen shots of the posting found

their way to the cheerleading coaches,
who punished B.L. with a year-long
suspension from the squad—a verdict
affirmed by the school’s athletic director,
principal, superintendent, and school
board. B.L. and her parents filed suit.

(d) Both the district court and the Third

Circuit ruled that B.L.’s punishment
violated the First Amendment.

(e) On the Third Circuit, the three-judge

panel agreed on the outcome but split on
the proper analysis. One judge wrote that
B.L.’s punishment could not be sustained
because her speech was not substantially
disruptive, as required by Tinker v. Des
Moines School District, 393 U.S. 503, 513
(1969). The two-member majority went
much farther, holding that the power of
school administrators to regulate student
expression DOES NOT EXTEND to off-
campus speech. The Supreme Court
granted cert to decide whether Tinker
“applies to student speech that occurs off
campus.” 141 S. Ct. at 2044.

(3) The Supreme Court’s Decision:

(a) In an 8-1 ruling authored by Justice

Breyer, the Supreme Court agreed that

258
 B.L.’s punishment violated the First
Amendment.

(b) But the Court rejected the Third Circuit’s

sweeping conclusion that school
administrators are powerless to regulate
all forms of off-campus speech. Id. at
2045.

(c) Instead, the Court expressed agreement

with the solitary concurring judge on the
Third Circuit, who wrote that B.L.’s
punishment could not be sustained under
Tinker because her speech was not
substantially disruptive. Id. at 2048.

(4) The Court Did Not Propound a Comprehensive

Rule Governing Off-Campus Speech:

(a) Justice Breyer acknowledged that “[a]

school’s reg-ulatory interests remain
significant in some off-campus
circumstances.” Id. at 2045.

(b) These include “severe bullying or

harassment tar-geting particular
individuals” and “threats aimed at
teachers or other students.” Id. at 2045.

(c) But Breyer stressed that “we do not now

set forth a broad, highly general First
Amendment rule stating just what counts
as ‘off campus’ speech and whether or
how ordinary First Amendment stan-dards
must give way off campus to a school’s
special need to [protect] those who make
up a school community [or to] prevent ...
substantial disruption of learning-related
activities.” Id. at 2045.

(5) But the Court DID Identify Three Principles To

Be Used in Analyzing Off-Campus Speech
Cases:

259
 Instead of propounding a comprehensive First
Amend-ment rule to govern all regulatory
restrictions on off-campus speech, Justice
Breyer identified three basic principles to be
applied in such cases. Id. at 2046. And these
principles all counsel AGAINST giving school
administrators the same “leeway” they enjoy
when regulating ON-campus speech. Id. at
2046. Here are the three principles:

(a) Off-campus speech normally falls “within

the zone of parental, rather than school-
related, responsi-bility.” Id. at 2046
(emphasis added). Thus, when attempting
to regulate off-campus speech, school
officials “will rarely stand in loco
parentis” (i.e., IN PLACE OF the student’s
parents). Id. at 2046 (italics in original).

(b) School officials can claim no legitimate

authority to regulate student speech 24
hours a day. Accord-ingly, courts must be
more skeptical of any attempt to regulate
off-campus speech—and “[w]hen it comes
to political or religious speech that occurs
outside school or a school activity, the
school will have a heavy burden to justify
inter-vention.” Id. at 2046.

(c) “America’s public schools are the

nurseries of democracy.” Id. at 2046.
Rather than suppressing ideas, schools
should be teaching students to value the
“marketplace of ideas” in our democracy
and to recognize the need for protecting
even those ideas with which we disagree.
Accordingly, “the school itself has an
interest in protecting a student’s
unpopular expression, especially when the
expression takes place off campus.” Id. at
2046 (emphasis added).

(6) Summing Up the Key Points To Be Gleaned

From This Decision:

260
 (a) In his concurring opinion, Justice Alito
deftly summarized the key points to be
gleaned from Justice Breyer’s decision.

(b) Alito wrote: “The Court holds—and I agree

—that: the First Amendment permits
public schools to regulate some student
speech that does not occur on school
premises during the regular school day;
this authority is more limited than the
authority that schools exercise with
respect to on-premises speech; courts
should be ‘skeptical’ about the
constitutionality of the regulation of off-
premises speech; the doctrine of in loco
parentis ‘rarely’ applies to off-premises
speech; public school students, like all
other Americans, have the right to express
‘unpopular’ ideas on public issues, even
when those ideas are expressed in
language that some find ‘inappropriate’ or
‘hurtful’; public schools have the duty to
teach students that freedom of speech,
including unpopular speech, is essential
to our form of self-government; the
Mahanoy Area High School violated B.L.’s
First Amendment rights when it punished
her for the messages she posted on her
own time while away from school
premises; and the judgment of the Third
Circuit must therefore be affirmed.” Id. at
2049 (Alito, J., concurring) (italics in
original; footnotes omitted).

(7) Reasons Why the Court Ruled in Favor of the

Student on These Facts:

Keeping in mind the three principles

articulated by Justice Breyer—all three of which
counsel AGAINST allowing schools to punish
off-campus speech—here are the pivotal facts
that caused the Court to rule in B.L.’s favor:

(a) As Justice Breyer observed: “Her posts

appeared outside of school hours from a

261
 location outside the school. She did not
identify the school in her posts or target
any member of the school com-munity
with vulgar or abusive language. B.L. also
transmitted her speech through a
personal cellphone, to an audience
consisting of her private circle of
Snapchat friends. These features of her
speech, while risking transmission to the
school itself, nonetheless...diminish the
school’s interest in punishing B.L.’s
utterance.” Id. at 2047.

(b) Focusing on the content of B.L.’s speech,

it was essentially “criticism, of the team,
the team’s coaches, and the school—in a
word or two, criticism of the rules of a
community of which B.L. forms a part.”
Id. at 2046. And this criticism “did not
involve features that would place it
outside the First Amendment’s ordinary
protection. B.L.’s posts, while crude, did
not amount to fighting words. And while
B.L. used vulgarity, her speech was not
obscene as this Court has understood that
term. To the contrary, B.L. uttered the
kind of pure speech to which, were she an
adult, the First Amendment would provide
strong protection.” Id. at 2046-47
(citations omitted).

(c) What about the school’s professed

interest in prohibiting students from
using vulgar language to criticize a school
team or its coaches? “The strength of this
anti-vulgarity interest,” replied Justice
Breyer, “is weakened considerably by the
fact that B.L. spoke outside the school on
her own time.” Id. at 2047. School
officials were certainly not standing in
loco parentis when B.L. was posting on
Snapchat at the Cocoa Hut. Id. at 2047.

(d) What about the school’s argument that it

“was trying to prevent disruption, if not

262
 within the classroom, then within the
bounds of a school-sponsored
extracurricular activity”? Id. at 2047.
Justice Breyer replied that the record was
bereft of any facts even approaching
Tinker’s substantial disruption standard:
“Rather, the record shows that discussion
of the matter took, at most, 5 to 10
minutes of an Algebra class ‘for just a
couple of days’ and that some members of
the cheerleading team were ‘upset’ about
the content of B.L.’s Snapchats. But when
one of B.L.’s coaches was asked directly if
she had ‘any reason to think that this
particular incident would disrupt class or
school activities other than the fact that
kids kept asking ... about it,’ she
responded simply, ‘No.’ ... The alleged
disturbance here does not meet Tinker’s
demanding standard.” Id. at 2047-48
(citations omitted).

(e) Justice Alito skillfully summarized the

pivotal facts in this case: “[T]he school’s
justifications for punishing B.L.’s speech
were weak. She sent the messages and
image in question on her own time while
at a local convenience store. They were
transmitted via a medium that preserved
the communication for only 24 hours, and
she sent them to a select group of
‘friends.’ She did not send the messages
to the school or to any administrator,
teacher, or coach, and no member of the
school staff would have even known about
the messages if some of B.L.’s ‘friends’
had not taken it upon themselves to
spread the word. The school did not claim
that the messages caused any significant
disruption of classes. The most it asserted
along these lines was that they ‘upset’
some students (including members of the
cheerleading squad), caused students to
ask some questions about the matter
during an algebra class taught by a

263
 cheerleading coach, and put out
‘negativity ... that could impact students
in the school.’ The freedom of students to
speak off-campus would not be worth
much if it gave way in the face of such
relatively minor complaints.” Id. at 2058
(Alito, J., concurring) (footnotes omitted).

g. Mahanoy’s EXCEPTION for Off-Campus Bullying and

Threats

(1) In the realm of off-campus student speech,

Mahanoy recognized that “[a] school’s
regulatory interests remain significant” when
confronted with “severe bullying” or “threats”
targeting particular classmates. Mahanoy, 141
S. Ct. at 2045. This language—which seems to
create a bullying/threats exception to
Mahanoy’s restriction on the disciplinary power
of schools—proved pivotal one year later, when
the Ninth Circuit dealt with a student’s
virulently racist Instagram posts.

(2) In Chen v. Albany Unified School District, 56

F.4th 708 (9th Cir. 2022), the Ninth Circuit
upheld the punishment of a student whose
Instagram posts manipulated photos of black
classmates, inserting a noose around one
student’s neck and juxtaposing another student
with a historical image of a slave being strung
up and beaten. Still other postings glorified Ku
Klux Klan violence against black people,
including a historical photograph of a lynched
man still hanging from a tree. When these
“private” social media posts became public,
they traumatized the black students at the
school. The Ninth Circuit held that Mahanoy
did not insulate the offending student from
disciplinary action by the school.

STUDENT SPEECH ON THE INTERNET

As we’ve seen, Mahanoy did not provide a definitive answer on the

power of school administrators to punish off-campus Internet

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expression by public school students. Left undisturbed are a number
of influential LOWER COURT decisions that deal with this question.
These lower court cases may be grouped into three distinct
categories, based on the content of what the student said: (1) threats
of violence directed at the school community; (2) hurtful remarks or
bullying directed at other students at the school; and (3) criticism or
mockery directed at teachers or administrators at the school. (In his
Mahanoy concurrence, Justice Alito singled out these categories
while reviewing the lower court decisions. Id. at 2056-57.) The lower
courts themselves (except for the Chen decision discussed
immediately above) have not yet recognized these categories; but in
Mahanoy’s wake, they may begin to do so—particularly because
Justice Breyer’s majority opinion identified threats and bullying as
two situations in which schools may have a legitimate regulatory
interest in OFF-campus speech. Id. at 2045. Here, then, is my own
summary of some key lower court decisions, divided into the three
categories set forth above.

(1) THREATS

Bell v. Itawamba County School Board, 799 F.3d 379 (5th Cir. 2015)
(en banc) (plaintiff high school student wrote and performed a rap
music video bitterly attacking two coaches at the school, accusing
them of improper sexual contact with female students; the song is
pervasively profane, accusing both coaches of “fucking with” the
students, and accusing one coach of being a “dirty ass nigga” who
salivates while “looking down girls’ shirts”; he warns the coaches
that he’s going to shoot them—“betta watch your back ... going to
get a pistol down your mouth”; the student posted his video on both
Facebook and YouTube, admitting that his intended audience was
the entire school community); id. at 396 (holding that “Tinker
governs our analysis ... when a student intentionally directs at the
school community speech reasonably understood by school officials
to threaten, harass, and intimidate a teacher, even when such speech
originated, and was disseminated, off-campus without the use of
school resources.”); id. at 400 (concluding that the threatening
nature of plaintiff’s video gave the school board a reasonable basis
to forecast a substantial disruption).

Wisniewski v. Weedsport Central School District, 494 F.3d 34 (2d

Cir. 2007) (upholding an eighth-grader’s semester-long expulsion for
using his parents’ home computer to send instant messages to 15
classmates; the instant messages featured a drawing that depicted a
pistol firing a bullet at a person’s head, with dots representing
spattered blood, accompanied by a statement, “Kill Mr.

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VanderMolen,” that singled out the student’s English teacher; even
though a police investigator and a school psychologist both
concluded that the communication was intended as a joke, and even
though it took two or three weeks before anyone at school even
learned about it, Mr. VanderMolen asked and was allowed to stop
teaching the student’s class; a hearing officer concluded that even
though the communication took place outside of school, it disrupted
school operations by requiring special attention from school
officials, who had to replace the threatened teacher and interview
pupils during class time); id. at 39-40 (in finding the requisite nexus
between the school and the student’s expression, the Second Circuit
adopted a relaxed standard, requiring only that it must have been
reasonably foreseeable that the student’s out-of-school
communication would come to the attention of school authorities
and foreseeably create a risk of substantial disruption).

(2) BULLYING

J.C. v. Beverly Hills Unified School District, 711 F. Supp. 2d 1094

(C.D. Cal. 2010) (plaintiff high school student was given a two-day
suspension for creating, and then posting on YouTube, a four-
minute-long video in which several of her friends single out a
classmate for vicious criticism, calling her a “slut” and an “ugl[y]
piece of shit”; after posting the video on YouTube, the plaintiff urged
five to ten classmates to view it, and the video received 90 hits that
evening alone; she also notified the victim, who viewed the video and
was so humiliated that she went straight to the principal,
accompanied by her mother, the next morning) (in a long, scholarly
opinion that takes great pains to summarize the case law governing
student Internet speech, the court holds that (1) even though the
video was created and disseminated entirely off campus, the school
was not precluded from disciplining the student, since it was
reasonably foreseeable that the video would make its way to campus,
which in fact it did; but (2) the video did not substantially disrupt,
nor was it reasonably foreseeable that it would disrupt, the work and
discipline of the school, so school officials violated the plaintiff’s
First Amendment rights by punishing her with a two-day
suspension). This opinion is notable for three reasons. First, even
though it is a genuine cyberbullying case, it is analyzed by the court
exactly like a “mocking-my-teacher” case, employing Tinker’s
“substantial disruption” test. Second, the court uses the same
relaxed test for on-campus nexus as that employed by the Second
Circuit in Wisniewski v. Weedsport Central School District, 494 F.3d
34, 39-40 (2d Cir. 2007), requiring only that it be “reasonably
foreseeable” that the student’s expression would find its way onto

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campus. Third, and most surprising to me, the court finds a lack of
disruption, even on a factual record that features an utterly
distraught victim and extensive efforts by school officials to deal
with the on-campus impact of plaintiff’s video.

(3) MOCKING OR CRITICIZING TEACHERS OR ADMINISTRATORS

J.S. v. Blue Mountain School District, 650 F.3d 915 (3d Cir. 2011)
(en banc) (holding that school district violated eighth grader’s First
Amendment rights when it suspended her for creating a MySpace
parody profile of her principal—in which the principal describes
himself as a “hairy, expressionless, sex addict” with a small penis
whose interests include “fucking in my office” and “hitting on
students and their parents”—where the student created the parody
on a weekend on her home computer, and where her parody neither
caused a substantial disruption in school nor gave school officials a
reasonable basis to forecast such a disruption). This en banc
decision by the Third Circuit is significant in three respects. First, it
stresses that school officials have no authority to punish students for
off-campus use of profane language; punishment may be imposed
only for student speech that creates a substantial on-campus
disruption. Id. at 932-33. Second, off-campus speech is not
converted into on-campus speech merely because another student,
obeying a direct request from the principal, prints out a hard copy of
the speech and brings it to school. Id. at 933. Third, and perhaps
most important, the court offers extended guidance on the
circumstances that must exist before school officials may punish a
student based on their reasonable forecast of disruption. Id. at 928-
31. Contrasting the emotional turmoil of the Vietnam protest in
Tinker with the juvenile prank at issue here, and observing that the
Tinker majority found no facts in the record justifying a disruption
forecast in that case, the Third Circuit concluded that no basis for
such a forecast existed here. Citing facts in the record to support
this conclusion, the Third Circuit observed that the student created
the profile as a joke; she took steps to make it “private” so that
access was limited to her friends; and the profile was so sophomoric
and nonsensical that nobody could, or did, take it seriously.

Layshock v. Hermitage School District, 650 F.3d 205 (3d Cir. 2011)
(en banc) (holding that school district violated high school student’s
First Amendment rights when it suspended him for creating a
MySpace parody profile of his high school principal—in which the
principal describes himself as a “big steroid freak” who recently
stole a “big keg,” smoked a “big blunt,” and was “too drunk to
remember” his birthday—where the student created the parody at

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his grandmother’s house using his grandmother’s computer during
non-school hours, and where the district court found that the parody
did not produce a substantial disruption at school). The Third
Circuit, sitting en banc, here affirms the district court’s decision,
which distinguished Morse and Bethel because “[Morse] does not
permit school officials unfettered latitude to censor student speech
under the rubric of ‘interference with the educational mission,’” and
Bethel does not apply to off-campus speech. 496 F. Supp. 2d 587,
599-600 (W.D. Pa. 2007). The primary significance of the Third
Circuit’s decision is its refusal to find a sufficient nexus between off-
campus Internet speech and the school environment—a nexus that
would allow school officials to punish the speech in question—where
the student obtained a photograph of the principal by copying it
from the school’s website and where, on at least one occasion, the
student displayed his parody on campus using a school computer.

J.S. v. Bethlehem Area School District, 807 A.2d 847 (Pa. 2002)
(upholding the expulsion of an eighth-grade student based on the
content of his Internet homepage) (with bitter, sophomoric humor,
the student’s homepage featured a multi-media attack on his algebra
teacher and the principal of his school; using text, animation,
graphics, and sound clips, the website ridiculed the principal as
sexually promiscuous, and tarred the algebra teacher as a “bitch”
and a tyrant; it mockingly depicted her as a witch and as Hitler,
offered satirical reasons why she should “die,” and repeated 136
times the statement, “Fuck you, Mrs. Fulmer”); id. at 865 (the
court’s decision is significant for holding that the student’s website,
which was created at home, became “on-campus” speech for First
Amendment purposes when he accessed it at school and showed it to
a classmate).

ANALYSIS

These Internet speech cases pose the same difficult question that
Mahanoy sought to address: Under what circumstances can school
officials punish a student for her OFF-CAMPUS expression, posted
on the Internet with her own cell phone or computer? The answer
seems to hinge upon (1) whether the off-campus speech creates a
powerful ON-CAMPUS impact, and (2) whether the student speaker
WANTED to reach the whole school community, not merely a small
circle of friends.

ON-CAMPUS Impact: The Third Circuit’s en banc opinions (Layshock

and Blue Mountain) seem to require a stronger on-campus impact
than that required by the Fifth and Second Circuits (in Bell and

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Wisniewski, respectively). But this difference might be explained by
the stark differences between what the students SAID in these cases.
The Third Circuit cases merely involved student MOCKERY of school
officials, while Bell and Wisniewski both involved student THREATS
to kill or injure school officials. In a post-Columbine world in which
students have massacred their classmates and teachers, it is
understandable why a judge might be more sensitive to threats of
violence, showing greater deference to school administrators in their
handling of such threats.

The Speaker’s INENT: The cases feature another distinction that

may be just as important: Did the student speaker WANT his
message to reach the whole school community, or was he merely
confiding it to a small circle of friends? This factor proved pivotal in
Bell, where the student admitted that he was targeting the whole
school community, and in Blue Mountain, where the student took
steps to ensure that only her friends could gain access to her
posting.

* * *

B. The Speech Rights of Public Employees

a. The Supreme Court has created special rules

governing the speech rights of public employees.

b. These rules essentially balance a government

employer’s interest in promoting workplace
efficiency against the employee’s interest in
commenting freely on matters of public concern.

c. When an employee criticizes her government

employer, the difficulty in these cases is to
determine whether her words are protected political
speech or an unprotected act of insubordination.

d. This dichotomy is exemplified in two Supreme Court

cases:

(1) Pickering v. Board of Education, 391 U.S. 563

(1968); and

(2) Connick v. Myers, 461 U.S. 138 (1983).

269
e. In Pickering, a public schoolteacher had been fired
for a letter he’d published in a local newspaper
criticizing the school board’s spending of tax
revenues and questioning its purported need for new
revenues.

f. In Connick, an assistant district attorney had been

fired for circulating a workplace questionnaire
inquiring whether her colleagues felt pressured to
work in political campaigns in order to keep their
jobs.

g. The Court sided with the schoolteacher in Pickering,

holding that school tax levies are matters of
legitimate public concern and that teachers should
“be able to speak out freely on such questions
without fear of retaliatory dismissal.” 391 U.S. at
571-72.

h. But in Connick, the Court sided with the employer,

who described the questionnaire as an act of
insubordination that prompted a “mini-insurrection”
in the workplace. 461 U.S. at 151.

(1) The Court concluded that the questionnaire

“touched upon matters of public concern in
only the most limited sense,” and was therefore
worthy of only minimal First Amendment
protection. Id. at 154.

(2) Thus, the balance of interests favored the

employer, who was not required to “tolerate
action which he reasonably believed would
disrupt the office, undermine his authority, and
destroy close working relationships.” Id. at 154.

i. Connick shows that speech by a public employee will

be afforded ever greater weight in this balancing
analysis the more it ascends from a personal
workplace grievance to pure political expression.

j. Thus, in Rankin v. McPherson, 483 U.S. 378 (1987),

the Court sided with a clerical worker in a county
constable’s office who had been fired for expressing

270
 her contempt for the policies of President Ronald
Reagan.

(1) Apprised of the assassination attempt on

Reagan, the plaintiff cited his cutbacks on
welfare, food stamps, and Medicaid, and
declared: “[I]f they go for him again, I hope
they get him.” Id. at 381.

(2) This statement, held the Court, was plainly a

form of political expression, since it was
uttered in the context of a conversation
criticizing Reagan’s policies. Id. at 386.

(3) And the “inappropriate or controversial

character” of the statement was “irrelevant” to
whether it dealt with a matter of public
concern. Id. at 387.

(4) Applying its balancing test to these facts, the

Court concluded that the speech rights of the
employee trumped the employer’s interests,
since there was no proof that her statement,
uttered in a private conversation, either
discredited the office or interfered with its
efficient operation. Id. at 389.

k. This line of cases will protect the public employee

only if she was speaking as a CITIZEN and not in her
official capacity as a government worker. Garcetti v.
Ceballos, 547 U.S. 410, 421 (2006) (“[W]hen public
employees make statements pursuant to their
official duties, the employees are not speaking as
citizens for First Amendment purposes, and the
Constitution does not insulate their communications
from employer discipline.”). The plaintiff in Garcetti,
Richard Ceballos, was a supervising district attorney
whose job included the responsibility of
investigating police and prosecutorial misconduct
reported by criminal defense attorneys. In that
capacity, he was asked by defense counsel to review
a case in which, counsel claimed, the affidavit police
used to obtain a critical search warrant was
inaccurate. After investigating, Ceballos concluded
that the affidavit contained serious

271
 misrepresentations, amounting to perjury by the
police officer who testified. Ceballos relayed his
findings to his supervisors in a “disposition
memorandum” of the sort normally used for these
investigations. In that memorandum, he
recommended that the prosecutor’s office should
dismiss the criminal charges because of the police
officer’s misrepresentations. Ceballos claimed that
his super-visors retaliated against him for his
statements in the memorandum, demoting him,
denying him promotion, and reassigning him to a
different office and different job duties. The
Supreme Court ruled against Ceballos, holding that
the statements contained in his memorandum were
job-duty speech, not citizen speech.

l. Thus, if you get a fact pattern in which a public

employee is being punished by her government
employer for something she said or wrote, look
carefully at the context in which she made the
statement and ask yourself: “When the employee
made that statement, was she acting pursuant to her
official duties or was she speaking as a citizen?” The
First Amendment protects her only if she was
speaking as a citizen.

(1) Lane v. Franks: Cutting Back on the Apparent

Sweep of Garcetti.

In Lane v. Franks, 134 S. Ct. 2369, 2379 (2014),

the Supreme Court provided an important
clarification and limitation on the holding in
Garcetti:

“[T]he mere fact that a citizen’s

speech concerns information
acquired by virtue of his public
employment does not transform that
speech into employee—rather than
citizen—speech. The critical question
under Garcetti is whether the speech
at issue is itself ordinarily within the
scope of an employee’s duties, not
whether it merely concerns those
duties.”

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 In Lane, a public employee at a community
college was fired by the college president after
testifying truthfully in court about fraudulent
conduct by a former colleague at the college.
The Supreme Court ruled that Garcetti did not
bar the employee’s speech retaliation claim,
holding that the First Amendment protects a
public employee who provides truthful sworn
testimony, compelled by subpoena, outside the
scope of his ordinary job duties. It was
undisputed that plaintiff’s ordinary job duties
did not include testifying in court proceedings.

(2) Does Garcetti Leave Whistleblowers

Unprotected?

A “whistleblower” is a public employee who

discovers corruption inside her government
workplace and is fired or punished after
speaking out about it. When Garcetti was
decided in 2006, many lower courts viewed its
holding as effectively barring speech retaliation
suits by whistleblowers—because
whistleblowers are able to discover government
corruption only because their official duties
place them inside a government work-place.
But Lane v. Franks (2014) corrected this mis-
perception, stressing that speech does not lose
its protection simply because it “concerns,” or
is “acquired by virtue of,” the whistleblower’s
public employment. 134 S. Ct. at 2379. Lane
suggests that courts must be extremely careful
in assessing whether a public employee has
spoken pursuant to her official duties when her
statement concerns allegations of public
corruption. This is because (id. at 2380):

“It would be antithetical to our juris-

prudence to conclude that the very
kind of speech necessary to
prosecute corruption by public
officials—speech by public employ-
ees regarding information learned
through their employment—may

273
 never form the basis for a First
Amendment retaliation claim. Such a
rule would place public em-ployees
who witness corruption in an im-
possible position, torn between the
obliga-tion to testify truthfully and
the desire to avoid retaliation and
keep their jobs.”

m. Where the government retaliates against protected

expression by a public employee, the employee will
have standing to sue even if the government was
factually mistaken about the content of her
expression. Heffernan v. City of Paterson, 136 S. Ct.
1412 (2016).

n. SUMMING UP THE ANALYSIS TO PERFORM IN

PUBLIC EMPLOYEE SPEECH CASES: Under the First
Amendment, a public employer may not retaliate
against a public employee for engaging in protected
speech. Under the Connick-Pickering test, a public
employee can establish that her speech is consti-
tutionally protected only if she can satisfy three
elements...

(1) When the employee spoke, she engaged in

protected citizen speech, not in unprotected
job-duty speech; and

(2) the employee spoke on a matter of public

concern.

(3) If the first two elements are satisfied, then the

court conducts a balancing test, inquiring
whether the interest of the employee as a
citizen in commenting upon matters of public
concern outweighs the interest of the
government as an employer in promoting the
efficiency of the public services it performs
through its employees.

When applying Prong #1 of this test, remember the

holding in Garcetti: “[W]hen public employees make
statements pursuant to their official duties, the
employees are not speaking as citizens for First

274
 Amendment purposes, and the Constitution does not
insulate their communications from employer
discipline.” 547 U.S. at 421.

When applying Prong #2 of this test, remember that

the Supreme Court has broadly defined speech on
matters of public concern to embrace “[speech]
relating to any matter of political, social, or other
concern to the community.” Connick v. Myers, 461
U.S. 138, 146 (1983).

When applying the balancing test in Prong #3, the

primary question is whether the employee’s speech
has undermined “the effective functioning of the
public employer’s enterprise.” Rankin v. McPherson,
483 U.S. 378, 388 (1987).

o. In related lines of precedent, the Court has held that

government workers are constitutionally protected
from dismissal for refusing to take an oath
regarding their political affiliation. Keyishian v.
Board of Regents, 385 U.S. 589 (1967); Elfbrandt v.
Russell, 384 U.S. 11 (1966); Wieman v. Updegraff,
344 U.S. 183 (1952).

p. Likewise, except where relevant to job performance,

it is unconstitutional to discharge a government
worker or deny her a promotion based on her
affiliation with a particular political party.

(1) Discharge: Branti v. Finkel, 445 U.S. 507

(1980); Elrod v. Burns, 427 U.S. 347 (1976).
These protections against patronage discharge
were extended to independent contractors in
O’Hare Truck Service, Inc. v. City of Northlake,
518 U.S. 712 (1996).

(2) Promotion Denial: Rutan v. Republican Party

of Illinois, 497 U.S. 62 (1990).

C. Compelled Affirmation, Expression, and Association: The Right

Not To Speak

1. The fountainhead in this line of precedent is West

Virginia State Board of Education v. Barnette, 319 U.S.

275
 624 (1943), where the Supreme Court struck down a
mandatory flag salute and pledge of allegiance law
directed at all children within the West Virginia public
schools.

a. The challenge was brought by Jehovah’s Witnesses,

who refused the flag salute on religious grounds
(i.e., that it required them to bow down before a
“graven image”). 319 U.S. at 629.

b. As the Court found, “Children of this faith have been

expelled from school and are threatened with
exclusion for no other cause. Officials threaten to
send them to reformatories maintained for
criminally inclined juveniles. Parents of such
children have been prosecuted and are threatened
with prosecutions for causing delinquency.” Id. at
630.

c. In one of the most famous passages in all of First

Amendment law, Justice Jackson, writing for the
Court, observed: “[If] there is any fixed star in our
constitutional constellation, it is that no official,
high or petty, can prescribe what shall be orthodox
in politics, nationalism, religion, or other matters of
opinion, or force citizens to confess by word or act
their faith therein.” Id. at 642.

d. This decision was especially courageous because it

was issued at the height of World War II—a time of
widespread displays of patriotism.

2. In Wooley v. Maynard, 430 U.S. 705 (1977), the Supreme

Court struck down a New Hampshire law that criminalized
covering up the state motto (“Live Free or Die”), which
was emblazoned on all license plates.

a. Invoking Barnette, the Court found a “freedom of

mind” that protects an individual from being coerced
by the state to convey an officially-mandated
ideology. Id. at 714-15.

b. The State’s interest in disseminating an ideology,

held the Court, “cannot outweigh an individual’s

276
 First Amendment right to avoid becoming the
courier for such message.” Id. at 715.

3. In 2015 the Supreme Court decided yet another license

plate case. In Walker v. Texas Division, Sons of
Confederate Veterans, 135 S. Ct. 2239 (2015), the Sons of
Confederate Veterans complained that its First
Amendment rights were violated when the Texas
Department of Motor Vehicles Board rejected its
application for a specialty license plate featuring the
Confederate battle flag. Rejecting the plaintiff’s claim, the
Supreme Court held that Texas specialty license plate
designs are government speech, so that the Speech Clause
does not apply to plaintiff’s application. Accordingly,
Texas was not required to be viewpoint neutral in
approving and rejecting design proposals. The Court’s
resort to the government speech doctrine is questionable
on a record revealing more than 350 highly individualized
specialty plates, many of them celebrating people and
institutions with no connection to Texas—e.g., the
University of Alabama’s Crimson Tide football team.

4. Pacific Gas & Electric Co. v. Public Utilities Commission,

475 U.S. 1 (1986)

a. Striking down a public utilities commission order

that required an electric company to carry—in its
own billing envelopes—messages from a consumer
group with which it disagreed.

b. In essence, the order required the company to use

its own property to disseminate a message that it
opposed.

5. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of

Boston, 515 U.S. 557 (1995)

a. Holding that Massachusetts could not invoke its

public accommodations law to force the private
organizers of a St. Patrick’s Day parade to include a
contingent of Irish gays and lesbians, who would
march under a distinct banner and convey a message
that the organizers did not wish to impart.

277
 b. Compelling the inclusion of this group effectively
altered the expressive content of the organizers’
parade—a type of com-pelled speech that violates the
First Amendment.

c. Holding that the “selection of contingents to make

[up] a parade” is entitled to full First Amendment
protection, no less than the editorial compilation of
viewpoints on a newspaper’s opinion pages. Id. at
570.

6. Board of Regents of the University of Wisconsin System v.

Southworth, 529 U.S. 217 (2000), held that the First
Amendment permits a public university to charge its
students an activity fee used to fund a program to
facilitate extracurricular student speech, provided that
allocation of funding support is viewpoint neutral. The
Court rejected compelled speech claims by conservative
students who argued that they should not be required to
fund groups whose ideology they opposed, including
feminist, LGBT, and AIDS support groups. The
conservative students lost this case because the activity
fund supported a vast range of student organizations
(more than 600 of them, id. at 223), representing the full
spectrum of student interests and beliefs on campus.
Because the fund supported ALL of those interests and
beliefs, the plaintiffs could not credibly claim that they
were being compelled to support a specific ideology that
they opposed. To win a compelled speech case, the
plaintiff must be able to show that the government is
forcing her to be identified with a specific idea or message
that she opposes.

7. Rumsfeld v. FAIR, 547 U.S. 47 (2006), unanimously

rejected a compelled speech claim by law schools
challenging the Solomon Amendment, a federal statute
that required educational institutions that receive federal
funding to give military recruiters the same access given
to recruiters for all other employers; if they refused to
provide the requisite access, they would be stripped of
their federal funding. The Solomon Amendment was
inspired by the refusal of many law schools to permit
visits by U.S. military recruiters, because (at that time)
the U.S. military discriminated on the basis of sexual
orientation. The law schools argued that they are so

278
 heavily dependent on federal funding that the Solomon
Amendment effectively operated as a mechanism for
compelled speech. Chief Justice Roberts, writing for the
Court, observed that the Solomon Amendment does not
compel the communication of any specific content,
making it distinguishable from compelled speech cases
like Barnette and Wooley.

8. Masterpiece Cakeshop v. Colorado Civil Rights

Commission, 138 S. Ct. 1719 (2018): This case presented
a compelled speech issue and a religious freedom issue.
The Court ducked both issues, but they are worth
discussing—because lawsuits with fact patterns like this
one are percolating in the lower courts. I will discuss the
compelled speech issue right here. We’ll confront the
religious freedom issue in section IX of this Outline.

a. In this case, a devoutly religious baker refused to

bake a wedding cake for a same-sex couple,
asserting that his Christian beliefs were opposed to
same-sex marriage.

b. As expressed in his own words, the baker believed

that “to create a wedding cake for an event that
celebrates something that directly goes against the
teachings of the Bible, would have been a personal
endorsement and participation in the ceremony and
relationship that they were entering into.” 138 S. Ct.
at 1724.

c. Since the cake shop was governed by Colorado’s

public accommodations laws, the spurned couple
filed a charge with the Colorado Civil Rights
Commission, alleging discrimination on the basis of
sexual orientation in violation of the Colorado Anti-
Discrimination Act. The Commission found that the
cake shop’s actions violated the Act and ruled in the
couple’s favor.

d. The baker challenged the Commission’s ruling on

two distinct constitutional grounds:

(1) Compelled Speech: The government was

violating his freedom of speech by compelling
him to engage in an expressive act—baking a

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 cake to celebrate a same-sex marriage—that
conveyed a message he personally rejected.

(2) Religious Freedom: Through enforcement of its

anti-discrimination law, the government was
forcing him to participate in a union (same-sex
marriage) that offended his Christian religious
beliefs.

The Supreme Court never squarely addressed either

of these issues.

e. Instead, the Court found a convenient way to dispose

of the case by zeroing in on a few remarks by two of
the five Commis-sioners—remarks suggesting that
they did not respect the baker’s religious beliefs—
and summarily concluding that the baker did not
receive a fair hearing. By disposing of the case in
this perfunctory manner, the Court produced a
decision that has almost no value as a precedent.

f. Though Justice Kennedy’s majority opinion did not

decide the compelled speech question, Justice
Thomas (joined by Justice Gorsuch) did address the
issue.

(1) Is Baking a Cake SPEECH At All? Justice

Thomas expends a lot of energy arguing that
this particular baker is engaged in
EXPRESSIVE conduct when he bakes a wedding
cake. How do we know that his cakes are
speech? Because this baker “considers himself
an artist”; because the logo for his cake shop
“is an artist’s paint palette with a paintbrush
and baker’s whisk”; because he “has a picture
that depicts him as an artist painting on a
canvas”; and because he “takes exceptional
care with each cake that he creates.” Id. at
1742 (Thomas, J., concurring in part and
concurring in the judgment). By these criteria,
I myself am engaged in protected speech when
I make a grilled cheese sandwich—so long as I
think of myself as the Correggio of grilled
cheese sandwiches.

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 (2) Analyzing the COMPELLED Speech Issue.
Justice Thomas argued that enforcing the anti-
discrimination law against the baker in this
case compelled him to convey a message that
he did not wish to convey: “Here ... Colorado
would not be punishing [the baker] if he
refused to create any custom wedding cakes; it
is punishing him because he refuses to create
custom wedding cakes that express approval of
same-sex marriage.” Id. at 1746 (Thomas, J.,
concurring in part and concurring in the
judgment) (emphasis added).

9. 303 Creative LLC v. Elenis, 143 S. Ct. 2298 (2023)

a. In a 6-3 decision authored by Justice Gorsuch, the

Court held: Under the compelled speech doctrine, a
wedding website designer who opposes same-sex
marriage on biblical grounds is free to reject same-
sex couples who seek her services—even though her
company is governed by Colorado’s public
accommodations law and is therefore barred from
discrimi-nating on the basis of sexual orientation—
because her Christian beliefs are sincerely held and
her websites are a form of individual expression.

b. The Gorsuch opinion exploits certain “facts” to

which the State of Colorado unwisely stipulated (id.
at 2309):

(1) “[The website designer] ‘will gladly create

custom graphics and websites’ for clients of
any sexual orientation.”

(2) “[She] is ‘willing to work with all people

regardless of classifications such as race,
creed, sexual orientation, and gender.’”

(3) “Her belief that marriage is a union between

one man and one woman is a sincerely held
religious conviction.”

(4) “All of the graphic and website design services

[that she] provides are ‘expressive.’”

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 (5) “She will not produce content that ‘contradicts
biblical truth’ regardless of who orders it.”

c. Gorsuch sums up the issue in a very misleading way:

“Can a State force someone who provides her own

expressive services to abandon her conscience and
speak its preferred message instead?”

Id. at 2318 (emphasis in original).

d. But the government is not advancing its own

“preferred message” here; it is simply insisting that
a company open for business must sell its wares to
ALL customers. Nowhere in the majority opinion
does Gorsuch entertain the notion that if a wedding
website designer is unwilling to celebrate ALL
weddings, then she doesn’t have to go into business
in the first place.

e. Will this case allow other “Christian” businesses to

spurn GLBTQ customers?

(1) It will certainly inspire such behavior—but this

decision is so firmly grounded upon the
compelled speech doctrine that its reach will be
limited to companies that provide expressive
services.

(2) What sorts of services will be deemed

“expressive”? That question will be explored in
a whole new round of litigation to come.

(3) But it’s doubtful whether many businesses will

qualify as purveyors of “expressive” services. In
Masterpiece Cake-shop, recall how strenuously
Justice Thomas had to labor in portraying the
anti-gay baker as an “artist.”

10. National Institute of Family and Life Advocates v. Becerra,

138 S. Ct. 2361 (2018)

a. In a 5-4 decision authored by Justice Thomas, the

Court applied strict scrutiny to strike down a
California statute that “requires licensed medical

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 facilities (that provide women with assistance
involving pregnancy or family planning) to tell those
women where they might obtain help, including
financial help, with comprehensive family planning
services, prenatal care, and abortion.” 138 S. Ct. at
2379 (Breyer, J., dissenting).

b. The statute was challenged on compelled speech

grounds by two “crisis pregnancy centers.” What are
crisis pregnancy centers? According to the State of
California, they are “pro-life” organizations that
“pose as full-service women’s health clinics, but aim
to discourage and prevent women from seeking
abortions.” NIFLA v. Becerra, Joint Appendix at 39,
2018 WL 388836 (Jan. 8, 2018). There are
approximately 200 crisis pregnancy centers in
California. Id.

c. In striking down the notice requirement, Justice

Thomas wrote:

“[The notice] is a content-based regulation of

speech. By compelling individuals to speak a
particular message, such notices ‘alte[r] the content
of [their] speech.’ Here, for example, licensed clinics
must provide a government-drafted script about the
availability of state-sponsored services, as well as
contact information for how to obtain them. One of
those services is abortion—the very practice that
petitioners are devoted to opposing. By requiring
petitioners to inform women how they can obtain
state-subsidized abortions—at the same time
petitioners try to dissuade women from choosing
that option—the...notice plainly ‘alters the content’
of petitioners’ speech.”

138 S. Ct. at 2371 (citations omitted).

d. Breyer’s Dissent: Justice Breyer (joined by Ginsburg,

Soto-mayor, and Kagan) dissented, stressing that
Justice Thomas had needlessly and aggressively
departed from existing precedent: “This Court has
more than once considered disclosure laws relating
to reproductive health[—and those holdings] should

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govern our disposition of this case.” Id. at 2383
(Breyer, J., dissenting).

(1) Justice Breyer demonstrated that Justice

Thomas was not only flouting a controlling
precedent; he was following a path that was no
longer good law.

(2) The path taken by Justice Thomas—striking

down a state-mandated notice requirement
designed to influence the decisionmaking of
pregnant women—was no longer good law; the
Court had OVERRULED those precedents:
Akron v. Akron Center for Reproductive Health,
462 U.S. 416, 444 (1983) (city ordinance
required a doctor to tell a pregnant woman
contemplating an abortion that “the unborn
child is a human life from the moment of
conception.”); Thornburgh v. American College
of Obstetricians & Gynecologists, 476 U.S. 747,
760-61 (1986) (state statute required a doctor
to tell a pregnant woman “about health risks
associated with abortion; possibly available
benefits for prenatal care, childbirth, and
neonatal care; and agencies offering
alternatives to abortion”; it also required that
the woman be given a printed statement that
declared: “The Commonwealth of Pennsylvania
strongly urges you to contact [agencies offering
alternatives to abortion] before making a final
decision about abortion.”).

(3) Meanwhile, Thomas refused to acknowledge

the applicability of Planned Parenthood v.
Casey, 505 U.S. 833 (1992), where the Supreme
Court overruled Akron and Thornburgh in
UPHOLDING a state law requiring doctors to
convey specified information to women who
were deciding whether to proceed with an
abortion. That law required the doctor to tell
the woman the “‘probable gestational age of
the unborn child’” and the health risks of
abortion and childbirth; the law also required
that the doctor make available to the woman
state-printed materials describing the fetus and

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 explaining medical assistance for childbirth,
potential child support, and adoption services.
138 S. Ct. at 2384 (Breyer, J., dissent-ing).

(4) Casey is directly on point; it’s the controlling

precedent in this case; if applied faithfully to
these facts, it would require that the California
statute be UPHELD: “If a State can lawfully
require a doctor to tell a woman seeking an
abortion about adoption services, why should it
not be able, as here, to require a medical
counselor to tell a woman seeking prenatal
care or other reproductive healthcare about
childbirth and abortion services? As the
question suggests, there is no convincing
reason to distinguish between information
about adoption and information about abortion
in this context.” Id. at 2385 (Breyer, J.,
dissenting).

e. As a compelled speech precedent, I don’t think this

case should be taken seriously outside the narrow
realm of “crisis pregnancy centers.” This is simply a
case in which five right-wing Justices were unable to
restrain their hostility to abortion rights, which
caused them to ignore Supreme Court precedent
(Planned Parenthood v. Casey) that is directly on
point. This was the view of Professor Erwin
Chemerinsky in Constitutional Gerrymandering
Against Abortion Rights: NIFLA v. Becerra, 94 N.Y.U.
L. REV. 61, 66-67 (2019).

10. Abood v. Detroit Board of Education, 431 U.S. 209 (1977)

[OVERRULED by Janus v. American Federation of State,
County, and Municipal Employees, 138 S. Ct. 2448
(2018)], involved a challenge to a Michigan statute
permitting “agency shop” arrangements in connection
with union representation of government employees.
NON-union em-ployees who were nevertheless
represented by a union objected—on First Amendment
compelled association grounds—to the agency shop
arrangement, under which they were compelled to pay the
union a service charge equal in amount to union dues.
The Court held that the plaintiffs/teachers who opposed
the agency shop arrangement could not evade (as “free

285
 riders”) paying for the union’s collective bargaining
representation; but they did not have to pay for, and the
union would have to raise funds separately to support,
political activities and endorsements engaged in by the
union. [Janus holds that non-union public employees
cannot be compelled to pay the union anything, even for
collective bargaining representation.]

11. Keller v. State Bar of California, 496 U.S. 1 (1990)

(compulsory state bar dues can be used for regulating the
legal profession, but not for political advocacy—e.g.,
endorsing gun control or a nuclear weapons freeze).

D. Compelled Disclosure of Expression, Belief, and Association

1. We move now from compelled speech and association to

compelled REVELATION of a speaker’s identity or
associational membership.

2. The most famous of these cases is NAACP v. Alabama, 357

U.S. 449 (1958):

a. Striking down enforcement of Alabama’s corporate

“doing-business” statute, by which the government
sought to compel disclosure of the NAACP’s
membership list.

b. This enforcement was part of an effort by

government officials to oust the NAACP from the
State of Alabama.

c. The NAACP produced substantially all of the records

called for—except its membership list, prompting a
state court’s contempt order and a fine of $100,000.

d. Justice Harlan, writing for the Court, likened this

type of compelled disclosure to “‘[a] requirement
that adherents of particular religious faiths or
political parties wear identifying armbands.’” 357
U.S. at 462 (quoting American Communications
Association v. Douds, 339 U.S. 382, 402 (1950)).

e. Especially where a group espouses dissident views,

there is a strong likelihood that compelled
disclosure of affiliation with that group will chill the

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 freedom of association—since revealing a member’s
identity exposes him to the threat of reprisal. 357
U.S. at 462.

f. As Harlan pointed out, revelation of NAACP

membership had previously exposed its rank-and-file
members to “economic reprisal, loss of employment,
threat of physical coercion, and other manifestations
of public hostility.” Id. at 462.

g. Applying strict scrutiny, Harlan concluded that

Alabama’s justification for demanding disclosure of
the membership list—to determine whether the
NAACP was conducting intrastate business—was
hardly sufficient to satisfy the requisite “compelling
interest” test.

3. Harlan’s insight—that the protective cloak of anonymity

helps to preserve the First Amendment freedoms of
political minorities—proved pivotal in McIntyre v. Ohio
Elections Commission, 514 U.S. 334 (1995), and Talley v.
California, 362 U.S. 60 (1960), where the Supreme Court
struck down bans on anonymous leafleting.

4. In Talley, which involved the distribution of unsigned

handbills urging readers to boycott certain Los Angeles
merchants for engaging in discriminatory employment
practices, Justice Black, writing for the Court, observed
that “[p]ersecuted groups and sects from time to time
throughout history have been able to criticize oppressive
practices and laws either anonymously or not at all.” 362
U.S. at 64.

a. Black stressed that “[a]nonymous pamphlets,

leaflets, brochures and even books have played an
important role in the progress of mankind.” Id. at
64.

b. He cited the experience of American colonists, who

“frequently had to conceal their authorship or
distribution of literature that easily could have
brought down on them prosecutions by English-
controlled courts.” Id. at 65.

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 c. “Even the Federalist Papers, written in favor of the
adoption of our Constitution, were published under
fictitious names.” Id. at 65.

d. “It is plain,” he concluded, “that anonymity has

sometimes been assumed for the most constructive
purposes.” Id. at 65.

5. Writing for the Court in McIntyre, where a 7-2 majority

struck down Ohio’s ban on anonymous campaign
literature, Justice Stevens surveyed the broad range of
literary and political authors who chose to publish
anonymously or under pseudonyms—including Mark
Twain, Voltaire, George Sand, George Eliot, Charles
Dickens, and, during the period surrounding our
Revolution and Founding, “Publius,” “Junius,” “Cato,”
“Centinel,” and “The Federal Farmer.” 514 U.S. at 341-43.

6. Stevens concluded: “Under our Constitution, anonymous

pamph-leteering is not a pernicious, fraudulent practice,
but an honorable tradition of advocacy and dissent.
Anonymity is a shield from the tyranny of the majority. It
thus exemplifies the purpose behind the Bill of Rights,
and of the First Amendment in particular: to protect
unpopular individuals from retaliation—and their ideas
from suppression—at the hand of an intolerant society.”
514 U.S. at 357 (citations omitted).

7. Are there any situations where the Supreme Court

ALLOWS the compelled revelation of speaker identity or
associational member-ship? YES—as a permissible form of
campaign finance regulation or as a method of policing
election referendum petitions:

a. Campaign Finance Regulation: In Citizens United v.

Federal Election Commission, 558 U.S. 310 (2010),
the Court held that independent expenditures in the
form of corporate political speech (e.g., a
corporation pays for a TV commercial supporting a
specific candidate) CAN be regulated through
disclaimer and disclosure requirements that reveal
the identity of the speaker. Apparently reaffirmed by
Citizens United was the Court’s ruling in Buckley v.
Valeo, 424 U.S. 1 (1976), that Congress can require
the disclosure of political campaign contributions—

288
 specifically, the identity of the donor and the dollar
amount conveyed.

b. Election Referendum Petitions: In Doe v. Reed, 130

S. Ct. 2811 (2010), the Court upheld a Washington
state public records statute that authorized public
disclosure of the names and addresses of individuals
who sign referendum petitions. The plaintiffs argued
that public disclosure would chill the willingness of
individuals to sign such petitions. The Court held
that the State’s interest in “preserving the integrity
of the electoral process by combating fraud,
detecting invalid signatures, and fostering
government transparency and accountability,” id. at
2819, is sufficient to justify the generally modest
impact on those who sign such petitions, id. at 2820.
But due to the procedural posture of the case, the
Court’s holding was limited to referendum petitions
in general—the Court made clear that if those who
sign any particular petition can demonstrate “a
reasonable probability that the compelled disclosure
[of personal information] will subject them to
threats, harassment, or reprisals from either
Government officials or private parties,” then
disclosure might well violate the First Amendment.
Id. at 2821.

8. The “Minor Party” Exception to Disclosure Requirements

in the Electoral Context: Brown v. Socialist Workers ’74
Campaign Commit-tee, 459 U.S. 87 (1982)

a. As the Court stressed in Doe v. Reed (see ¶ D(7)(b),

immediate-ly above), disclosure requirements can be
threatening to members of unpopular political
groups. These people fear that they will invite
retaliation or harassment by revealing their
membership in far-right or far-left political parties.

b. Accordingly, the Supreme Court has created a

“minor party” EXCEPTION to disclosure
requirements in the electoral context. This exception
is best illustrated by Brown v. Socialist Workers ’74
Campaign Committee, 459 U.S. 87 (1982).

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c. In Brown, the Socialist Workers Party balked at
complying with an Ohio campaign finance law that
required every candidate for political office to
identify each contributor and each recipient of a
disbursement of campaign funds. Id. at 89-90.

d. At the time of this lawsuit, the Socialist Workers

Party (“the Party”) had only sixty members in the
State of Ohio. During the ten years leading up to the
suit, the Party received about $15,000 a year in
campaign contributions. Id. at 88-89.

e. The Party’s stated aim was “the abolition of

capitalism and the establishment of a workers’
government to achieve socialism.” Id. at 88.

f. Rejecting the use of violence, the Party vowed to

achieve social change through the political process,
and its members regularly ran for public office. But
the Party enjoyed scant success at the polls. In 1980
its candidate for the U.S. Senate received less than
1.9 percent of the vote. Id. at 88-89.

g. Meanwhile, party members and supporters were the

victims of both private and governmental
harassment. Gunshots were fired at a Party office,
property owned by Party members was destroyed,
threatening phone calls and hate mail were directed
at Party members, and Party literature was burned.
In the 12-month period leading up to the trial, 22
Party members (including four in Ohio) were fired by
their employers because of their Party membership.
FBI surveillance was massive and included a
“Disruption Program” designed to impair the Party’s
ability to function. The FBI spent over $350,000
hiring informants to infiltrate the Party. The FBI
sent anonymous letters to Party members,
supporters, spouses, and employers, and it disclosed
to the press the criminal records of Party candidates.
Id. at 99-101.

h. THE TEST: The Supreme Court held that the First

Amendment prohibits the government from
compelling disclosures by a minor political party
that can show a “reasonable probability” that the

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 compelled disclosures will subject those identified to
“threats, harassment, or reprisals.” Id. at 88. And
this protec-tion from compelled disclosure applies
not only to campaign contributors but also to the
recipients of campaign disburse-ments. Id. at 98.

i. THE OUTCOME: Applying this test to the record

before it, the Supreme Court ruled that the
disclosure requirements in Ohio’s campaign finance
law were unconstitutional as applied to the Socialist
Workers Party. Id. at 101-02.

j. This “minor party” exception in Brown v. Socialist

Workers is still good law. It was reaffirmed in
Citizens United, 558 U.S. 310, 367 (2010).

9. IN COMPELLED SPEECH CASES, WHAT TEST DOES THE

COURT APPLY? NORMALLY, STRICT SCRUTINY.

With the exception of the campaign finance cases

(Citizens United, Buckley v. Valeo) and the referendum
petition case (Doe v. Reed), the Supreme Court has shown
a special judicial hostility to government-compelled
EXPRESSION (Barnette), and to government-compelled
DISCLOSURE of speaker identity (McIntyre) or
associational membership (NAACP v. Alabama). Thus,
when deciding compelled speech cases, the Court
normally applies strict scrutiny—but not always ...

10. COMPELLED DISCLOSURE REQUIREMENTS IN THE

ELECTORAL CONTEXT: “EXACTING SCRUTINY.”

When reviewing “[compelled] disclosure requirements in

the electoral context,” the Court employs an intermediate
standard of review that it calls “exacting scrutiny.” Doe v.
Reed, 130 S. Ct. 2811, 2818 (2010) (emphasis added). As
enunciated by Chief Justice Roberts, “exacting” scrutiny is
less demanding than strict scrutiny. “Th[e] standard,” he
says, “requires a substantial relation between the
disclosure requirement and a sufficiently important
governmental interest.” Doe, 130 S. Ct. at 2818 (citing
Citizens United, 130 S. Ct. at 914) (internal quotation
marks omitted). In McIntyre, Justice Stevens formulated
the test quite differently, making it sound like a souped-
up version of strict scrutiny: “[When] a law burdens core

291
 political speech, we apply ‘exacting’ scrutiny, and we
uphold the restriction only if it is narrowly tailored to
serve an overriding state interest.” McIntyre v. Ohio
Elections Commission, 514 U.S. 334, 347 (1995)
(emphasis added). The current Court, at least, regards
“exacting” scrutiny as falling short of strict scrutiny. This
is apparent from Justice Thomas’s dissent in Doe v. Reed,
where he argued that the Court should have applied full-
blown strict scrutiny, not the lesser standard it employed,
130 S. Ct. at 2839 (Thomas, J., dissenting), and from the
Chief Justice’s majority opinion, where he acknowledged
using a standard that fell short of the strict scrutiny
urged by Thomas, id. at 2820 n.2.

11. COMPELLED DISCLOSURE REQUIREMENTS OUTSIDE

THE ELECTORAL CONTEXT: “NARROW TAILORING.”

On July 1, 2021, the Supreme Court brought confusion to

this line of precedent in Americans for Prosperity
Foundation v. Bonta, 141 S. Ct. 2373 (2021). As we’ve
seen (supra ¶ 10), the Court applies “exacting” scrutiny to
compelled disclosure requirements in the electoral
context. This case falls outside the electoral context, and
it produced a clash among the Justices over whether to
apply strict scrutiny or exacting scrutiny. Ultimately, the
Court struck down the instant disclosure statute: a
California law requiring charitable organizations to
disclose the identities of their major donors. Though the
Justices could NOT agree on the proper test to apply—
neither strict nor exacting scrutiny could command the
requisite five votes—six of them DID agree that the
governing standard MUST include a “narrow tailoring”
requirement.

* * *

VII.
INTRODUCTION TO THE RELIGION CLAUSES
A. In the text of the First Amendment, the Speech and Press
Clauses are preceded by the two Religion Clauses (the
Establishment and Free Exercise Clauses):

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 Congress shall make no law
respecting an establishment of
religion, or prohibiting the free
exercise thereof ....

U.S. CONST. amend. I (1791).

B. Determining Whether the Religion Clauses Apply—and, if so,

Which One

1. Any factual scenario that features a government/religion

nexus arguably implicates the Religion Clauses.

2. If the scenario involves government aid to, or

identification with, religion, the Establishment Clause
may apply.

3. If the scenario involves governmental interference with,

or hindrance of, religion, the Free Exercise Clause may
apply.

C. The Establishment Clause

1. Until 2019, the three-prong test from Lemon v. Kurtzman,

403 U.S. 602 (1971), was for many years the basic
standard for gauging Estab-lishment Clause violations.
Lemon was sharply criticized and largely repudiated in
American Legion v. American Humanist Association, 139
S. Ct. 2067 (2019). Three years later, Lemon was expressly
overruled in Kennedy v. Bremerton School District, 142 S.
Ct. 2407 (2022).

2. Let’s begin by looking at Lemon, including modifications

to Lemon that the Supreme Court adopted in the years
before American Legion. Then we’ll examine Kennedy and
American Legion, followed by some big-picture advice on
how to analyze different fact patterns under the
Establishment Clause.

3. To survive judicial scrutiny under Lemon, a state action:

a. must have a secular purpose (the PURPOSE prong);

b. must have a primary effect that neither advances nor

inhibits religion (the EFFECT prong); and

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 c. may not foster an excessive governmental
entanglement with religion (the ENTANGLEMENT
prong).

4. Important Modifications to the Lemon Test

a. As the swing vote in the Court’s Establishment

Clause cases, Justice O’Connor effected three
important changes to the Lemon test:

(1) The Court collapsed the entanglement prong

into the effect prong, transforming Lemon from
a three-prong test into a two-prong test.
Writing for the Court in Agostini v. Felton, 521
U.S. 203 (1997), O’Connor asserted that the
question of entanglement is best treated “[as]
an aspect of the inquiry into a statute’s effect.”
Id. at 233.

(2) The PURPOSE prong of Lemon was interpreted

to inquire whether the government actually
intended to endorse religion.

(3) The EFFECT prong of Lemon was interpreted to

inquire whether the challenged practice in fact
conveyed a message of government
endorsement of religion.

b. The PURPOSE and EFFECT prongs were

reinterpreted to focus on government
“endorsement” of religion because Justice O’Connor
believed that such endorsement was the central
problem that the Establishment Clause was designed
to combat.

c. Though the Court purportedly changed Lemon from

three prongs to two, the lower federal courts mostly
failed to notice—many federal judges continued to
apply all three prongs. See, e.g., American Atheists v.
Port Authority of New York, 760 F.3d 227 (2d Cir.
2014) (deciding an Establishment Clause challenge,
the court applies all three prongs of Lemon,
including the “entanglement” prong).

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5. Kennedy: Expressly Overruling Lemon

a. In Kennedy v. Bremerton School District, 142 S. Ct.

2407 (2022), a high school football coach was fired
for refusing to abandon his post-game habit of
praying on the fifty yard line. The defendant school
district fired the coach because it believed that
allowing those prayers to continue would violate the
Establishment Clause. In a 6-3 decision authored by
Justice Gorsuch, the Court held that firing the coach
violated the Free Exercise Clause—and that the
coach’s prayers did not remotely offend the
Establishment Clause. In arriving at this decision,
the Court finally overruled the Lemon test for
gauging Establishment Clause violations. Id. at
2427-28.

b. In announcing that the Court was overruling Lemon,

Justice Gorsuch pretended that this was old news,
rather than breaking news: “[T]his Court long ago
abandoned Lemon and its endorsement test
offshoot.” Id. at 2427 (citing American Legion and
Town of Greece).

c. Correctly observing that state and local governments

sometimes violate the Free Exercise or Free Speech
Clause because they misperceive the requirements of
the Establishment Clause, Gorsuch blamed Lemon
for those misperceptions. In addition, he blamed the
“endorsement” gloss that Justice O’Connor added to
Lemon—particularly the focus on government
behavior that could be perceived as an endorsement
of religion.

(1) To avoid the APPEARANCE that it was

endorsing religion, a state government barred
playground resurfacing grants to all religious
schools—and thereby violated the Free Exercise
Clause in Trinity Lutheran Church v. Comer,
137 S. Ct. 2012 (2017).

(2) To avoid the APPEARANCE that it was

endorsing religion, a municipal government
deliberately discrimi-nated against religious
expression—and thereby violated the Speech

295
 Clause in Shurtleff v. City of Boston, 142 S. Ct.
1583 (2022).

(3) To avoid the APPEARANCE that it was

endorsing religion, a school district fired a
football coach for his private, post-game
prayers—and thereby violated the Free Exercise
Clause (Kennedy).

(4) In each case, exaggerated concerns about

violating the Establishment Clause triggered an
overreaction by the government.

d. Justice Gorsuch asserted that Lemon created an

environment where state and local governments
mistakenly believed that they were “compel[led] to
purge from the public sphere anything an objective
observer could reasonably infer endorses or partakes
of the religious.” Id. at 2427 (citations and internal
quotation marks omitted). For Gorsuch, this was a
major reason for overruling Lemon.

e. KENNEDY IS NOT AN ESTABLISHMENT CLAUSE

CASE; IT IS A FREE EXERCISE CASE. SO LOWER
COURTS AND LAWYERS WILL LOOK TO AMERICAN
LEGION, NOT TO KENNEDY, FOR GUIDANCE ON
HOW TO ANALYZE AN ESTABLISHMENT CLAUSE
ISSUE.

6. American Legion

a. American Legion is an earthquake in Establishment

Clause jurisprudence.

b. What happened in American Legion?

(1) Voting 7-2, the Supreme Court rejected an

Establishment Clause challenge to a 32-foot-
tall, 94-year-old Latin cross, erected as a
memorial to soldiers who died in World War I,
which stands on a traffic island at the center of
a busy three-way intersection in Bladensburg,
Maryland.

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 (2) The Court did not overrule Lemon. But it
strongly encouraged lower courts to abandon
Lemon in favor of an approach that gives great
deference to well-established customs,
practices, and monuments.

(3) Six of the Justices heaped criticism upon

Lemon; only one of them (Kagan) defended it;
and Lemon came within one vote of being
banished from virtually all Establishment
Clause fact patterns. The dissent (Ginsburg and
Sotomayor) largely ignored Lemon, never citing
it and utilizing only one piece of it: a
“government-message-of-endorsement”
analysis.

(4) Of the seven Justices who voted to uphold the

gigantic Latin cross, two urged that Lemon be
overruled entirely, while four voted to retire
Lemon in all cases featuring “religious
references or imagery in public monuments,
symbols, mottos, displays, and ceremonies,”
replacing Lemon with “a presumption of
constitutionality for longstanding monuments,
symbols, and practices.” 139 S. Ct. at 2081-82
& n.16 (emphasis added).

(5) Essentially, “American Legion replaced Lemon

with a new ‘history and tradition’ test, at least
for Establish-ment Clause cases involving
public monuments, symbols, mottos, displays,
or ceremonies, and perhaps for essentially all
Establishment Clause cases.” SMOLLA & NIMMER
ON FREEDOM OF SPEECH § 19:1.50 & n.63 (March
2021 Update).

c. In American Legion’s wake, courts will very likely

REJECT an Establishment Clause challenge to any
practice that has longstanding historical or
traditional roots. This is exactly what happened in
two cases that American Legion cited approvingly:
Van Orden v. Perry and Town of Greece v. Galloway.

(1) Van Orden v. Perry, 545 U.S. 677 (2005)

(upholding a Ten Commandments display on

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 the statehouse grounds in Austin, Texas, which
had existed for 40 years without inspiring any
complaint).

(2) Town of Greece v. Galloway, 134 S. Ct. 1811

(2014) (uphold-ing the power of local town
councils to commence their public meetings
with overtly sectarian prayers). Town of Greece
relied heavily upon Marsh v. Chambers, 463
U.S. 783 (1983), where the Court upheld
Nebraska’s legislative chaplain in part because
the tradition may be traced all the way back to
the first federal Congress.

7. Recommended Analysis

a. American Legion’s four-vote plurality identified six

different categories of Establishment Clause fact
patterns (139 S. Ct. at 2081-82 n.16), but some of
those categories implicate either the Speech Clause
or the Free Exercise Clause. For our purposes,
Establishment Clause fact patterns may be broken
down into three basic scenarios:

(1) Government aid to religious institutions

(whether in the form of a subsidy or service).

(2) Religious symbols or writings adorning

government property—e.g., official seals,
mottos, monuments, and displays.

(3) Religious teachings or prayers within a

government institution or ceremony.

b. As for Category #1 (government aid to religious

institutions), the Court is generally willing to uphold
such aid so long as it is available across the board, to
secular and sectarian institu-tions alike. American
Legion does NOT apply to this category. These aid
cases have been developing on a separate track,
under separate principles, for 30 years. When
analyzing an aid-to-religion case, stay within the
Category #1 precedents (Mueller, Witters, Zobrest,
Zelman); do NOT employ the precedents from
Categories #2 and #3.

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 c. As for Category #2 (religious symbols or writings
adorning government property), this is where
American Legion will have an immediate and
dramatic impact. In American Legion’s wake, courts
will very likely REJECT an Establishment Clause
challenge to the presence of religious symbols or
writings in any official seals, mottos, monuments, or
displays that have longstanding historical or
traditional roots. What about NEW religious
monuments, seals, etc.? In American Legion, only
two Justices (Gorsuch and Thomas) argued that the
presumption of constitutionality should extend to
ALL religious monuments, seals, etc., both old and
new. It remains to be seen how the lower courts will
distinguish between old and new.

d. As for Category #3 (religious teachings or prayers

within a government institution or ceremony), this is
where the Court has usually been most hostile and
most willing to find an Establishment Clause
violation. But all this may have changed in 2014 with
the Court’s decision in Town of Greece, where the
Court upheld the power of local town councils to
commence their public meetings with overtly
sectarian prayers. The lower courts have mostly
limited Town of Greece to fact patterns involving
LEGISLATIVE prayer. (There is only one circuit-level
precedent authorizing COURTROOM prayer.) Right
now, the cases barring prayer inside PUBLIC
SCHOOLS and at public school GRADUATION
CEREMONIES have not been overruled. But that may
change in American Legion’s wake. Finally, Kennedy
won’t have an impact here, because that case
involved a private, not a governmental, prayer.

D. The Free Exercise Clause

1. In assessing a Free Exercise claim, inquire which of the

following THREE scenarios best describes your facts:

a. Purposeful interference by government with a

religious belief or practice (requiring STRICT
SCRUTINY)—e.g., Church of the Lukumi Babalu Aye
v. City of Hialeah, 508 U.S. 520 (1993). Within this

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 category, Covid-19 public health regulations that
limit RELIGIOUS gatherings may be no more
restrictive than limits on access to beauty parlors,
fitness centers, and other secular activities—e.g.,
Roman Catholic Diocese of Brooklyn v. Cuomo, 141
S. Ct. 63 (2020) (applying strict scrutiny because
New York limited gatherings by religious
congregations more aggressively than it limited
access to many secular activities).

b. A generally applicable law, not specifically directed

at religious practices, that nevertheless impinges
upon their exercise (requiring RATIONAL BASIS
REVIEW)—e.g., Employment Division v. Smith, 494
U.S. 872 (1990).

c. Be on the lookout for facts that implicate a NEW line

of Free Exercise precedent that has arisen in recent
years—imposing STRICT SCRUTINY to strike down
laws that disqualify an otherwise eligible recipient
from a public benefit solely because of the
recipient’s religious character. Carson v. Makin, 142
S. Ct. 1987 (2022); Trinity Lutheran Church v.
Comer, 137 S. Ct. 2012 (2017); and Espinoza v.
Montana Dep’t of Revenue, 140 S. Ct. 2246 (2020).
[See infra section IX(C) of this Outline.]

2. Bear in mind that Free Exercise claims are greatly

weakened if advanced by the denizens of certain
“restricted environments”—soldiers and prisoners.

a. The Military—e.g., Goldman v. Weinberger, 475 U.S.

503 (1986) (employing an extremely deferential
standard in rejecting a Free Exercise claim by a
Jewish officer in the Air Force who was barred by
regulations from wearing a yarmulke indoors).

b. Prisons—e.g., O’Lone v. Estate of Shabazz, 482 U.S.

342 (1987) (applying a “reasonableness” test for
Free Exercise claims brought by prison inmates)
(prison officials, citing security concerns, barred
Muslim inmates from traveling within the prison to
attend a weekly congregational service mandated by
the Koran).

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 c. Unclear from these cases—but highly unlikely—is
whether a bad faith or willfully punitive deprivation
of religious freedom would survive the relaxed
scrutiny of a “reasonableness” test. If a plaintiff
could prove that a state actor had such a motive, it
would certainly seem that his Free Exercise claim
would be successful.

E. The “No Man’s Land” Between the Establishment and Free

Exercise Clauses: Affirmative Measures by Government to
ACCOMMODATE Religion

1. Affirmative steps by government to promote or

accommodate the free exercise of religion may cross the
line into an Establishment Clause violation.

2. Key cases: Board of Education of Kiryas Joel Village

School District v. Grumet, 512 U.S. 687 (1994); Larkin v.
Grendel’s Den, 459 U.S. 116 (1982).

3. In Grendel’s Den, for example, a statute granted churches

a veto power over the granting of liquor licenses within a
500-foot radius of the church. By vesting churches with a
zoning power normally exercised by the government, this
statute conferred a special benefit upon religious
institutions and thereby crossed the line into an
Establishment Clause violation.

4. The test for judging whether an accommodation is

permissible or whether it runs afoul of the Establishment
Clause: Is the government alleviating a regulatory burden
for religious exercise or is it conferring a special benefit
upon religion? The former will likely survive judicial
scrutiny, but the latter may be deemed to violate the
Establishment Clause.

The courts in this area still perform a full-fledged

Establishment Clause analysis, but the foregoing inquiry
is still the big-picture key to the outcome.

F. Historical Introduction to the Religion Clauses

1. Everson v. Board of Education, 330 U.S. 1 (1947): Voting

5-4, the Court rejected an Establishment Clause challenge
to a New Jersey law that subsidized the transportation of

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all schoolchildren, including those attending private
religious schools.

a. Writing for the Court, Justice Black surveys the

historical trends that led to the adoption of the
Establishment Clause: persecution of minority
religious groups by the politically dominant sect or
religion.

b. From the British colonial experience came state-

established churches—and the imposition of tithes
and taxes upon believers and dissenters alike.

c. By the latter half of the 18th century, the tide of

public opinion turned against these practices—and
there emerged a growing belief that government
should enjoy no power to impose taxes for, or
otherwise support, any or all religions.

d. This belief gained ascendancy in Virginia in 1785-86,

when Madison and Jefferson spearheaded an
opposition movement against the re-enactment of
Virginia’s tax levy in support of the established
church.

(1) Madison wrote his great Memorial and

Remonstrance against that law.

(2) Jefferson wrote the Virginia Bill for Religious

Liberty, which was ultimately enacted instead
of the state-supported-religion tax.

e. Black concludes his historical summary by linking

the Virginia experience with the intentions of the
First Amendment’s Framers.

f. His key description of the meaning of the

Establishment Clause includes the famous “wall of
separation” remark long attributed to Jefferson: “In
the words of Jefferson, the [Establishment Clause]
was intended to erect ‘a wall of separation between
Church and State.’” 330 U.S. at 16 (quoting Reynolds
v. United States, 98 U.S. 145, 164 (1879)).

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2. In Rosenberger v. Rectors & Visitors of the University of
Virginia, 515 U.S. 819 (1995), where the Court held that a
student religious journal was entitled to the same subsidy
from student activity funds that the University furnishes
to secular student journals, Justice Souter (dissenting)
and Justice Thomas (concurring) advanced competing
views of James Madison’s famous Memorial and
Remonstrance.

3. The running debate between Souter and Thomas shows

that recent and current members of the Court have
expended great energy in dredging up nuggets of history
to support their competing interpretations. But it is worth
bearing in mind what Justice Brennan warned, 60 years
ago, in his concurring opinion in Abington School District
v. Schempp, 374 U.S. 203 (1963), where the Court struck
down the practice of devotional Bible-reading in public
schools.

a. Brennan warned against placing too much reliance

on original intent.

b. In the 18th century, he observed, the competition

was chiefly among Protestant sects.

c. But nowadays, we have much more religious

diversity—and we need to construe the
Establishment Clause accordingly.

d. Practices that may not have bothered the Framers

might be extremely offensive to some citizens today,
including the many non-believers among us.

4. Laurence Tribe identified three distinct strands of

historical tradition vis-à-vis the separation of church and
state:

a. Roger Williams: protecting churches from the state.

b. Jefferson: protecting the state from the church.

c. Madison: separation is the best way to ensure that

both of these institutions will flourish.

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5. Various Themes by Which the Religion Clauses Might Be
Construed

a. Strict Separation: Maintaining an ABSOLUTE wall of

sep-aration, taken to its logical extreme, might
entail cutting churches off from police and fire
protection, sewage disposal, highways, and even
sidewalks. Such a rigorous wall of separation would
effectively constitute hostility to religion.

b. Strict Neutrality: Under this view, states would be

required to employ purely SECULAR criteria for their
actions—but this would mean no religious
accommodation.

c. Non-Coercion: Under this approach, government

must not act in a manner that will influence
religious choice.

d. Non-Preferentialism: Under this view, government

may sup-port religion in general, but it may neither
favor nor disfavor any particular religion or religious
perspective.

e. Voluntarism and Separatism: Professor Tribe found

these two values at the core of the Religion Clauses:

(1) Voluntarism means that religions should stand

or fall on their own, without any subsidy from
the state.

(2) Separatism means that the state must stay out

of religious affairs and derive no claim to
authority from religious sources.

* * *

VIII.
THE ESTABLISHMENT CLAUSE

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A. Arguments Favoring a BROAD Interpretation of the
Establishment Clause (i.e., favoring a strict separation between
church and state):

1. In his Lee v. Weisman concurrence, Justice Souter charted

the path of the Establishment Clause through House and
Senate committees of the first federal Congress in 1789.
He demonstrates that the broad conception of the House
repeatedly and ultimately prevailed over narrower
language proposed by the Senate.

2. In their personal letters, two profoundly influential

Framers (Madison and Jefferson) repeatedly advance a
broad conception of the sweep of the Establishment
Clause.

3. Madison specifically identified the appointment and

payment of the Congressional Chaplain as an
Establishment Clause violation.

4. Brennan’s observation in Schempp that the Establishment

Clause should be construed even MORE broadly than what
is warranted by original intent—because, as to religion,
this country is vastly more diverse today than it was in the
18th century. Practices that may have been insignificant
among the country’s few Protestant sects back then might
be deeply offensive to a large section of our citizenry
today.

B. Arguments Favoring a NARROW Interpretation of the

Establishment Clause (i.e., favoring a relaxed separation
between church and state):

1. The historical origins of the Religion Clauses show that

the abuses that the Framers sought to rectify all focused
on a single problem: the danger of ONE religion gaining
political ascendancy and forcing other religions to
support it. Only that sort of abuse is a proper basis for an
Establishment Clause violation.

2. Early Presidents—even Madison—included religious

messages in their inaugural and Thanksgiving Day
addresses.

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 3. Congress early on appointed a Chaplain and paid him with
public funds.

4. In DEMOCRACY IN AMERICA, published in 1835, Alexis de

Tocqueville described the god-intoxicated nature of the
American heritage. Don’t we have to construe the
Establishment Clause with this historical tradition in
mind? If so, the “wall” between church and state should
be substantially relaxed.

C. Influential Themes in Recent Establishment Clause

Jurisprudence

1. ANTI-ENDORSEMENT: This view, developed by Justice

O’Connor, recognizes an Establishment Clause violation
whenever the govern-ment manifests its adoption of, or
preference for, a particular religion—thereby sending a
message “to nonadherents that they are outsiders, not full
members of the political community, and an
accompanying message to adherents that they are
insiders, favored members of the political community.”
Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J.,
concurring).

2. ANTI-COERCION: Under this view, the Establishment

Clause is violated only when the government exerts
pressure on a citizen to manifest an adherence to the
favored religion. But there are TWO very different
versions of the coercion test—one developed by Justice
Kennedy and the other developed by Justice Scalia. Under
Scalia’s view, the Establishment Clause is violated only by
the type of governmental compulsion that existed under
British colonial rule in the 18th century: “The coercion
that was a hallmark of historical establishments of
religion was coercion of religious orthodoxy and of
financial support by force of law and threat of penalty.”
Lee v. Weisman, 505 U.S. 577, 640-41 (1992) (Scalia, J.,
dissenting) (emphasis in original). Specifically, Scalia is
talking about the government establishing an official
church, requiring regular attendance at that church, and
forcing the people to pay for that church through
mandatory tithes and taxation. Justice Kennedy’s
conception of “coercion” is much broader; it extends to
public ceremonies where the government exerts subtle
psychological pressure to manifest conformity to the

306
 prevailing religion, as indicated by his opinion for the
Court in Lee v. Weisman, which struck down a policy that
authorized prayer at public school graduation ceremonies.

3. HISTORICAL PRACTICE or TRADITION: Under this view,

there is a strong presumption that the Establishment
Clause is NOT violated by longstanding historical
practices and traditions (e.g., Marsh v. Chambers, 463
U.S. 783 (1983) (upholding legislative chaplain)).

D. The Anticoercion Principle

1. In his Lamb’s Chapel concurrence, Justice Scalia uses

humor to question the continued vitality of the Lemon
test:

He analogizes Lemon to “a ghoul in a late-night horror

movie that repeatedly sits up in its grave and shuffles
abroad, after being repeatedly killed and buried.” Lamb’s
Chapel v. Center Moriches Union Free School District, 508
U.S. 384, 398 (1993) (Scalia, J., concur-ring in the
judgment).

2. Lee v. Weisman, 505 U.S. 577 (1992) (striking down a

policy that authorized prayer at public school graduation
ceremonies).

a. Justice Kennedy, writing for the Court, announced

the “anti-coercion” principle as a baseline standard
for Establishment Clause violations.

b. Key facts: The school’s principal exerted editorial

control over the content of the prayer, and, given the
context of a graduation ceremony, subtle coercive
pressures existed here that effectively compelled
students to attend and to participate in the prayer
(because a student’s graduation is a unique and
important event in her life).

c. That the prescribed prayer here was nonsectarian

does not make it, when uttered at the State’s behest,
any less a violation of the Establishment Clause,
Kennedy asserts.

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 d. This is because the Religion Clauses “mean that
religious beliefs and religious expression are too
precious to be either proscribed or prescribed by the
State. The design of the Consti-tution is that
preservation and transmission of religious beliefs
and worship is a responsibility and a choice
committed to the private sphere....[T]he central
meaning of the Religion Clauses ...is that all creeds
must be tolerated and none favored.” 505 U.S. at
589.

e. State-sponsored religious exercises send a message

to the citizenry that the State disavows its duty to
protect each person, each faith, from a State-created
orthodoxy.

f. Scalia, dissenting, laments that the majority “[lays]

waste a ...longstanding American tradition of
nonsectarian prayer to God at public celebrations
generally.” Id. at 631-32 (Scalia, J., dissenting).

3. Walz v. Tax Commission, 397 U.S. 664 (1970) (upholding

property tax exemptions for churches) shows that fiscal
support for religion through the tax system will not be
regarded by courts as governmental imposition of religion
upon nonbelievers.

4. In Engel v. Vitale, 370 U.S. 421 (1962) (striking down

daily school prayer), and Abington School District v.
Schempp, 374 U.S. 203 (1963) (striking down devotional
Bible-reading in public schools), the Court spoke in terms
of COERCION, sowing the seeds for Kennedy’s coercion
test in Lee.

5. In Santa Fe Independent School District v. Doe, 530 U.S.

290 (2000) (voting 6-3) (per Stevens, J.) (striking down, as
offensive to the Establishment Clause, a public high
school policy permitting students to hold a majority vote
on whether home football games should be introduced by
a student-read Christian prayer)—the Court finds the
same type of COERCION that was present, and fatal, in
Lee.

E. The Nonendorsement Principle, History’s Relevance, and De

Facto Establishments

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1. Lynch v. Donnelly, 465 U.S. 668 (1984)

a. Rejecting an Establishment Clause challenge to a

municipal Christmas display that featured a crèche
surrounded by a large number of secular elements,
including a Santa Claus house, reindeer, candy-
striped poles, and a sign that read “Season’s
Greetings.”

b. Belittling the constitutional threat posed by this

holiday display, Chief Justice Burger wrote a
majority opinion that stressed the very real coercive
pressures that the Establish-ment Clause was
designed to rectify:

“We are unable to perceive the Archbishop of

Canterbury, the Vicar of Rome, or other powerful
religious leaders behind every public
acknowledgment of the religious heritage long
officially recognized by the three constitutional
branches of government. Any notion that these
symbols pose a real danger of establishment of a
state church is far-fetched indeed.” 465 U.S. at 686.

c. Note how, even as early as 1984, the Court was

backing away from Lemon as the definitive test
—“[W]e have repeatedly emphasized our
unwillingness to be confined to any single test or
criterion in this sensitive area,” wrote Burger (id. at
679)—lending weight to Scalia’s assertion in Lamb’s
Chapel.

d. Justice O’Connor’s concurring opinion in Lynch was

significant and influential for broaching the “no
endorsement” test and for reformulating Lemon IN
TERMS OF endorsement.

2. County of Allegheny v. ACLU, 492 U.S. 573 (1989)

(holding unconstitu-tional a freestanding nativity scene
on the main staircase of a county courthouse).
ABROGATED: This decision was overruled in Town of
Greece v. Galloway, 134 S. Ct. 1811 (2014). For more on
Town of Greece, see infra ¶ 5.

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 a. In Allegheny, a majority of Justices adopted
O’Connor’s “no endorsement” analysis as a general
guide in Establishment Clause cases.

b. Kennedy—with Rehnquist, White, and Scalia—rejects

O’Con-nor’s “no endorsement” test.

c. It is here that we find Kennedy rehearsing his

coercion test.

d. Though Scalia joins Kennedy here, the two Justices

part company in Lee v. Weisman, 505 U.S. 577
(1992), advancing very different visions of the
“coercion” test.

3. Capitol Square Review & Advisory Board v. Pinette, 515

U.S. 753 (1995): Refusing to treat as an Establishment
Clause violation the unattended display of a privately-
owned cross—among other religious symbols—on
government property.

a. Note what Justice O’Connor says in her concurrence:

“When the reasonable observer would view a
government practice as endorsing religion, [it] is our
duty to hold the practice invalid.” 515 U.S. at 777
(emphasis in original).

4. Marsh v. Chambers, 463 U.S. 783 (1983) (upholding

Nebraska’s legislative chaplain in part because the
tradition may be traced all the way back to the first
federal Congress).

5. Town of Greece v. Galloway, 134 S. Ct. 1811 (2014)

(upholding the power of local town councils to commence
their public meetings with overtly sectarian prayers).

a. Town of Greece ABROGATES County of Allegheny v.

ACLU, 492 U.S. 573 (1989), which held
unconstitutional a free-standing nativity scene on
the main staircase of a county courthouse. In
Allegheny, a five-member majority adopted Justice
O’Connor’s “endorsement” analysis as a general
guide in Establishment Clause cases. Dissenting
from that opinion (along with Scalia, Thomas, and
Rehnquist) was Justice Kennedy, who rejected the

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 “endorsement” test. And Kennedy writes the
majority opinion in Town of Greece. By abrogating
Allegheny, Kennedy was paving the way for the death
of Lemon and the endorsement test.

b. In Town of Greece, Kennedy relies heavily upon

Marsh v. Chambers, 463 U.S. 783 (1983), where the
Court upheld Nebraska’s legislative chaplain. At the
time it was decided, the difficult question about
Town of Greece was whether to read it narrowly or
broadly. Was it limited to the narrow realm of prayer
at legislative sessions? Or did it suggest a sea
change in the Court’s whole approach to
Establishment Clause analysis?

c. SEA CHANGE: Today, it seems that Town of Greece

very much augured a sea change in the Court’s
Establishment Clause jurisprudence—a sea change
that American Legion confirms. At the time it was
decided, Town of Greece looked like a sea change
because the Court upheld a SECTARIAN prayer,
some-thing it had never done before. This was an
ominous development for the Lemon test and the
“endorsement” test—because those tests were always
hostile to sectarian prayer in governmental settings.

d. Here is some language from Justice Kennedy’s Town

of Greece majority opinion that suggests a readiness
to abandon the prevailing “tests” under the
Establishment Clause:

“Marsh stands for the proposition that it is not

necessary to define the precise boundary of the
Establishment Clause where history shows that the
specific practice is permitted. Any test the Court
adopts must acknowledge a practice that was
accepted by the Framers and has withstood the
critical scrutiny of time and political change.”

134 S. Ct. at 1819 (emphasis added). And sectarian

prayer was the historical practice familiar to the
Framers.

e. In one section of the Town of Greece decision, the 5-

member majority splits into two camps, with

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 Kennedy writing a 3-vote plurality (joined by Roberts
and Alito) and Thomas writing a 2-vote concurrence
in the judgment (joined by Scalia). This split is
prompted by differing views of a “coercion” test that
would replace the old “endorsement” test.

f. For Thomas and Scalia, “coercion” means the kind of

coercion that existed in the 18th century: “The
coercion that was a hallmark of historical
establishments of religion was coercion of religious
orthodoxy and of financial support by force of law
and threat of penalty.” 134 S. Ct. at 1837 (emphasis
in original) (internal quotation marks and citations
omitted). As examples of this type of coercion,
Thomas refers to requirements like mandatory
attendance at the established church and taxes
levied to generate church revenue.

g. For Kennedy, “coercion” analysis “remains a fact-

sensitive [inquiry] that considers both the setting in
which the prayer arises and the audience to whom it
is directed.” 134 S. Ct. at 1825.

h. What would be a violation of Kennedy’s “coercion”

test? “[I]f town board members directed the public
to participate in the prayers, singled out dissidents
for opprobrium, or indicated that their decisions
might be influenced by a person’s acquiescence in
the prayer opportunity.” 134 S. Ct. at 1826.

6. How Are the Lower Courts Responding to Town of Greece?

a. For years, the lower courts have been limiting Town

of Greece to its original context: prayer at
LEGISLATIVE sessions. But in 2022, the Fifth Circuit
broke away from this pattern, extending Town of
Greece for the first time to prayers commencing
JUDICIAL proceedings.

b. In Freedom From Religion Foundation v. Mack, 49

F.4th 941 (5th Cir. 2022), a Texas judge established
a practice of allowing volunteer chaplains to perform
brief, interfaith opening ceremonies—almost always
featuring a Protestant prayer—before the start of
court sessions; attendance was not required, but the

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 judge was present during the prayer, able to observe
who remained and who departed the courtroom. In a
decision that completely ignores the Town of Greece
distinction between legislative and courtroom
prayers, id. at 964 (Jolly, J., concurring in part and
dissenting in part), the Fifth Circuit holds that this
program does not violate the Establishment Clause.

F. Impermissible Purposes: The Cases Involving School Prayer,

the Ten Commandments, and Creationism

1. Stone v. Graham, 449 U.S. 39 (1980) (striking down a

Kentucky statute requiring that a copy of the Ten
Commandments be posted on the walls of each public
classroom).

2. Engel v. Vitale, 370 U.S. 421 (1962) (striking down a

public school policy recommending that classes recite
aloud an official prayer, drafted by the New York Board of
Regents, professing belief in and “dependence” upon
“Almighty God”). Writing for the Court, Justice Black
asserted that the Establishment Clause “must at least
mean that in this country it is no part of the business of
government to compose official prayers for any group of
the American people to recite as a part of a religious
program carried on by government.” Id at 425.

3. Abington School District v. Schempp, 374 U.S. 203 (1963)

(striking down a state law requiring that ten verses from
the Bible be read aloud at the opening of each public
school day).

4. Wallace v. Jaffree, 472 U.S. 38 (1985) (striking down an

Alabama statute authorizing schools to set aside one
minute at the start of each school day “for meditation or
voluntary prayer”). Both the governor and the bill’s
primary sponsor stated, id. at 57 & nn.43-44, that it was
“an ‘effort to return voluntary prayer’ to the public
schools.”

5. McCreary County v. ACLU of Kentucky, 545 U.S. 844

(2005) (declaring unconstitutional a brand new Ten
Commandments display inside a county courthouse where
the evidence strongly indicated that the government had a
religious purpose in posting it and the display aroused an

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 immediate protest, in marked contrast to the Ten
Commandments display in Van Orden v. Perry [see
immediately below], which existed for 40 years without
triggering any complaint).

6. Van Orden v. Perry, 545 U.S. 677 (2005) (narrowly

upholding a Ten Commandments display on the
statehouse grounds in Austin, Texas, which had existed
for 40 years without inspiring any complaint, where
evidence of an impermissible governmental purpose was
lacking).

7. Epperson v. Arkansas, 393 U.S. 97 (1968) (striking down

an Arkansas “anti-evolution” statute that barred public
schools and universities from teaching “the theory that
man evolved from other species of life.” Id. at 98. At oral
argument, questioned about how the statute would be
enforced against teachers in Arkansas, counsel for the
State admitted that “[if a teacher] would tell her students
that ‘Here is Darwin’s theory, that man ascended or
descended from a lower form of being,’ then I think she
would be under this statute liable for prosecution.’” Id. at
103. Writing for a unanimous Court, Justice Fortas
observed that the statute “selects from the body of
knowledge a particular segment which it proscribes for
the sole reason that it is deemed to conflict with a
particular religious doctrine; that is, with a particular
interpretation of the Book of Genesis by a particular
religious group.” Id. at 103. Justice Fortas held that “the
First Amendment does not permit the State to require
that teaching and learning must be tailored to the
principles or prohibitions of any religious sect or dogma.”
Id. at 106.

8. Edwards v. Aguillard, 482 U.S. 578 (1987) (striking down

a Louisiana statute requiring public schools to teach
“creation science” whenever they taught the theory of
evolution). The Court found, id. at 591, that “[t]he
preeminent purpose of the Louisiana legislature was
clearly to advance the religious viewpoint that a
supernatural being created humankind.”

G. Facially Neutral Statutes That Incidentally Aid Religion:

Permissible and Impermissible Effects

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1. Mueller v. Allen, 463 U.S. 388 (1983): Upholding, 5-4, a
state tax deduction for expenses incurred for “tuition,
textbooks, and transportation” for elementary and
secondary schoolchildren, regardless of whether they
attended public or nonpublic schools.

a. Focusing on Rehnquist’s majority opinion, note what

he says about “the private choices of individual
parents.”

(1) Rehnquist stresses that any aid flowing to

parochial schools from this tax deduction stems
from the PRIVATE DECISIONS OF PARENTS to
send their kids to religious, rather than public,
schools. 463 U.S. at 399.

(2) Thus, he says, any aid to parochial schools

under this law is attributable to private, not to
governmental, decision-making.

(3) Accordingly, “no ‘imprimatur of State approval’

can be deemed to have been conferred on any
particular religion, or on religion generally.”
Id. at 399.

(4) This “private choice” theme later looms large

in Zobrest v. Catalina Foothills School District,
509 U.S. 1 (1993), and in Zelman v. Simmons-
Harris, 536 U.S. 639 (2002).

b. In his Mueller majority opinion (463 U.S. at 400),

Rehnquist quotes a key passage from Justice
Powell’s concurrence in Wolman v. Walter, 433 U.S.
229, 263 (1977):

“At this point in the 20th century we are quite far

removed from the dangers that prompted the
Framers to include the Establishment Clause in the
Bill of Rights. The risk of signifi-cant religious or
denominational control over our democratic
processes—or even a deep political division along
religious lines—is remote, and when viewed against
the positive con-tributions of sectarian schools, any
such risk seems entirely tolerable in light of the
continuing oversight of this Court.”

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 (1) This Powell quote neatly sums up the view of
the Establishment Clause that is currently held
by the Court’s right wing.

(2) It is a view that regards the Establishment

Clause as something of an anachronism—as
nearly obsolete.

(3) A year after Rehnquist wrote this opinion, the

Court decided Lynch v. Donnelly, 465 U.S. 668
(1984), where we saw Chief Justice Burger (id.
at 686) conclude his majority opinion on a
similar note. (Burger’s quote appears on page
250 of this Outline.)

(4) CONTRAST this view of the Establishment

Clause with that of Justice O’Connor—who, far
from regarding the Clause as obsolete, found it
to be implicated today whenever government
(by means of “endorsement”) sends a message
“to nonadherents that they are out-siders, not
full members of the political community, and
an accompanying message to adherents that
they are insiders, favored members of the
political community.” Lynch, 465 U.S. at 688
(O’Connor, J., concurring).

(5) This contrast illustrates the gulf between the

Court’s right and left wings on the
Establishment Clause.

(6) The right wing views it in a narrow historical

context—as prohibiting a State-sanctioned
religion and the direct oppression of minority
religions that such a condition would bring.

(7) The left wing views it far more broadly, as a

wide-ranging prohibition that, transcending
any historical period, is designed to prevent
religious minorities from feeling socially or
politically marginalized.

2. In Witters v. Washington Department of Services for the

Blind, 474 U.S. 481 (1986), the theme of “private choice”

316
 surfaces again as the Court rejects a challenge to a
statute that authorized the payment of public funds to
blind persons for vocational rehabilitation services where
the recipient planned to use the funds to pay tuition at a
Christian college.

a. The key to the Court’s “private choice” analysis was

the fact that any payment under the program went
“directly to the student, who transmits it to the
educational institution of his or her choice.” 474
U.S. at 488.

b. Thus, “any aid provided under [the] program that

ultimately flows to religious institutions does so only
as a result of the genuinely independent and private
choices of aid recipients.” Id. at 488.

3. Zobrest v. Catalina Foothills School District, 509 U.S. 1

(1993)

a. Rejecting a challenge to a program in which

government funds were paid to fund sign-language
interpreters for deaf children—regardless of whether
they attended public or parochial schools.

b. The key for Rehnquist, writing for the Court, is again

the “private choice” theme—the daily presence of a
government-paid interpreter inside a Roman
Catholic high school stems here from the private
choice of the child’s PARENTS, not from any STATE
decisionmaking.

4. Agostini v. Felton, 521 U.S. 203 (1997)

a. In a 5-4 opinion, with Justice O’Connor writing for

the majority, the Court held that a federal program
that funds remedial instruction and counseling of
disadvantaged children in public and private schools
does not violate the Establishment Clause, even
though it results in public employees being sent to
teach inside parochial schools.

b. This decision overruled Aguilar v. Felton, 473 U.S.

402 (1985), which prohibited public school teachers

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 from conducting such classes on the premises of
parochial schools.

c. Agostini is significant for its new treatment of the

three-prong Lemon test:

(1) In Agostini, the Court was in the process of

COLLAPSING Lemon’s “entanglement” prong
INTO the “effect” prong.

(2) Writing for the Court in Agostini, O’Connor

asserted that the question of entanglement is
best treated “[as] an aspect of the inquiry into
a statute’s effect.” 521 U.S. at 233.

d. Lemon’s transformation from a three-prong test into

a two-prong test was confirmed five years later in
Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

5. Mitchell v. Helms, 530 U.S. 793 (2000) (voting 6-3, but

failing to produce a majority opinion) (4-vote plurality
authored by Thomas) (a 2-vote concurrence, authored by
O’Connor, balked at the sweep of the Thomas opinion).

a. Continuing a trend toward relaxing the restrictions

on gov-ernment aid to religious schools, the Court
here rejected an Establishment Clause challenge to a
federal program that places computers in parochial
school classrooms.

b. This legislation affords aid to all elementary and

secondary schools, public and private. It requires
that the aid be used to implement “secular, neutral,
and nonideological” programs. 530 U.S. at 802.

c. In upholding this legislation, the Court overruled

still more of its Establishment Clause precedents—
this time striking down (id. at 835):

(1) Meek v. Pittenger, 421 U.S. 349 (1975)

(striking down a statute that authorized the
lending of instructional materials, such as
maps and laboratory equipment, to nonpublic
schools, and the furnishing of public school
employees to provide such services as remedial

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 reading instruction and counseling at
nonpublic schools); and

(2) Wolman v. Walter, 433 U.S. 229 (1977)

(striking down a statute that authorized the
lending of instructional equipment to students
in nonpublic schools and the payment of costs
incurred by nonpublic schools on field trips for
secular courses).

d. Just three years earlier, the Court had overruled

another of its Establishment Clause precedents. See
Agostini v. Felton, 521 U.S. 203 (1997) (overruling
Aguilar v. Felton, 473 U.S. 402 (1985), which
prohibited public school teachers from conducting
remedial classes on the premises of parochial
schools).

e. The significance of Mitchell v. Helms was the

aggressive effort by Justice Thomas, in his four-vote
plurality opinion, to recast the way these
government-aid-to-religion cases are analyzed.

f. Justice O’Connor balked at joining his opinion. In a

concur-rence joined by Justice Breyer, she declared:
“I write separately because, in my view, the plurality
announces a rule of unprece-dented breadth for the
evaluation of Establishment Clause challenges to
government school-aid programs.” 530 U.S. at 837
(O’Connor, J., concurring).

g. The key problems with Thomas’s approach, she

charged (id. at 837-38), were that:

(1) It substantially relaxes the level of judicial

scrutiny, making the inquiry turn largely on
whether the aid is offered on a neutral basis.

(2) And it rejects the longstanding distinction

between direct and indirect aid, expressing an
approval for “actual diversion of government
aid to religious indoctrination [that] is in
tension with our precedents.”

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 h. Though Justice O’Connor may not have liked it, the
deferential Thomas approach to aid cases likely
commands majority support among the current
Justices.

6. Zelman v. Simmons-Harris, 536 U.S. 639 (2002)

(rejecting, by a 5-4 vote, an Establishment Clause
challenge to a “school choice” voucher program that
funneled tax dollars to low-income families for tuition aid
in sending their children to private schools, even though
96% of the participating students used the money to
enroll in religious schools).

a. Zelman confirmed that the Supreme Court had

completed the transformation of Lemon’s three-
prong test into Agostini’s two-prong test—that the
“entanglement” prong had been folded into the
“effect” prong.

(1) Chief Justice Rehnquist’s majority opinion does

not even mention Lemon. Instead, he employs
the two-prong purpose/effect standard from
Agostini. 536 U.S. at 648-49.

(2) In her Zelman concurrence, 536 U.S. at 668-69,

Justice O’Connor DOES cite Lemon, but she
confirms that it has been converted into the
two-prong inquiry performed in Agostini.

b. Here in Zelman, the “private choice” theme (earlier

developed in Mueller, Witters, and Zobrest) comes to
full fruition, serving as the centerpiece of the
Court’s rationale.

c. Zelman offers greater clarification of how “private

choice” analysis fits into the PURPOSE/EFFECT
rubric of the revised Lemon/Agostini test.

d. Zelman makes clear that the “private choice” theme

applies specifically to application of the EFFECT
prong in funding cases, and that the presence of true
private choice will prevent a violation of the effect
prong, even if the challenged government funding
goes to a disproportionately high percentage of
religious recipients.

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 * * *

IX.
THE FREE EXERCISE CLAUSE
A. Overview

1. In assessing a Free Exercise claim, inquire which of the

following THREE scenarios best describes your facts:

a. Purposeful interference by government with a

religious belief or practice (requiring STRICT
SCRUTINY)—e.g., Church of the Lukumi Babalu Aye
v. City of Hialeah, 508 U.S. 520 (1993). Within this
category, Covid-19 public health regulations that
limit RELIGIOUS gatherings may be no more
restrictive than limits on access to beauty parlors,
fitness centers, and other secular activities—e.g.,
Roman Catholic Diocese of Brooklyn v. Cuomo, 141
S. Ct. 63 (2020) (applying strict scrutiny because
New York limited gatherings by religious
congregations more aggressively than it limited
access to many secular activities).

b. A generally applicable law, not specifically directed

at religious practices, that nevertheless impinges
upon their exercise (requiring RATIONAL BASIS
REVIEW)—e.g., Employment Division v. Smith, 494
U.S. 872 (1990).

c. Be on the lookout for facts that implicate a NEW line

of Free Exercise precedent that has arisen in recent
years—imposing STRICT SCRUTINY to strike down
laws that disqualify an otherwise eligible recipient
from a public benefit solely because of the
recipient’s religious character. Carson v. Makin, 142
S. Ct. 1987 (2022); Trinity Lutheran Church v.
Comer, 137 S. Ct. 2012 (2017); and Espinoza v.
Montana Dep’t of Revenue, 140 S. Ct. 2246 (2020).
[See infra section IX(C) of this Outline.]

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2. Bear in mind that Free Exercise claims are greatly
weakened if advanced by the denizens of certain
“restricted environments”—soldiers and prisoners.

a. The Military—e.g., Goldman v. Weinberger, 475 U.S.

503 (1986) (employing an extremely deferential
standard in rejecting a Free Exercise claim by a
Jewish officer in the Air Force who was barred by
regulations from wearing a yarmulke indoors).

b. Prisons—e.g., O’Lone v. Estate of Shabazz, 482 U.S.

342 (1987) (applying a “reasonableness” test for
Free Exercise claims brought by prison inmates)
(prison officials, citing security concerns, barred
Muslim inmates from traveling within the prison to
attend a weekly congregational service mandated by
the Koran).

c. Unclear from these cases—but highly unlikely—is

whether a bad faith or willfully punitive deprivation
of religious freedom would survive the relaxed
scrutiny of a “reasonableness” test. If a plaintiff
could prove that a state actor had such a motive, it
would certainly seem that his Free Exercise claim
would be successful.

3. The “No Man’s Land” Between the Establishment and

Free Exercise Clauses: Affirmative Measures by
Government to ACCOMMODATE Religion

a. Affirmative steps by government to promote or

accommodate the free exercise of religion may cross
the line into an Establishment Clause violation.

b. Key cases: Board of Education of Kiryas Joel Village

School District v. Grumet, 512 U.S. 687 (1994);
Larkin v. Grendel’s Den, 459 U.S. 116 (1982).

c. In Grendel’s Den, for example, a statute granted

churches a veto power over the granting of liquor
licenses within a 500-foot radius of the church. By
vesting churches with a zoning power normally
exercised by the government, this statute conferred
a special benefit upon religious institutions and

322
 thereby crossed the line into an Establishment
Clause violation.

d. The test for judging whether an accommodation is

permissible or whether it runs afoul of the
Establishment Clause: Is the government alleviating
a regulatory burden for religious exercise or is it
conferring a special benefit upon religion? The
former will likely survive judicial scrutiny, but the
latter may be deemed to violate the Establishment
Clause.

The courts in this area still perform a full-fledged

Establishment Clause analysis, but the foregoing
inquiry is still the big-picture key to the outcome.

B. Required Accommodation of Religion

1. Reynolds v. United States, 98 U.S. 145 (1879) (upholding

a Mormon’s conviction for bigamy).

2. Braunfeld v. Brown, 366 U.S. 599 (1961)

a. Rejecting a Free Exercise challenge by Orthodox

Jews to a Sunday closing law.

b. Note the Court’s rationale, which is consistent with

Scalia’s opinion, 29 years later, in Employment
Division v. Smith, 494 U.S. 872 (1990).

c. The Braunfeld Court observed: “[To] strike down

[legislation] which imposes only an indirect burden
on the exercise of religion [would] radically restrict
the operating latitude of the legislature. [We] are a
cosmopolitan nation made up of people of almost
every conceivable religious preference. [Consequent-
ly,] it cannot be expected, much less required, that
legislators enact no law regulating conduct that may
in some way result in an economic disadvantage to
some religious sects and not to others because of the
special practices of the various religions.” 366 U.S.
at 606.

3. Sherbert v. Verner, 374 U.S. 398 (1963): In a Brennan

opinion, the Court distinguishes Braunfeld (the Sunday

323
 closing law case) and holds that unemployment
compensation cannot be denied to a woman fired by her
employer for refusing to work on her church’s sabbath,
Saturday.

4. Wisconsin v. Yoder, 406 U.S. 205 (1972)

a. Holding that, as applied to the Amish, Wisconsin’s

compulsory school attendance law violated the Free
Exercise Clause in compelling the Amish against
their religious beliefs to send their children to
school beyond the eighth grade.

b. In arriving at this result, the Court announced a

Free Exercise balancing test considerably protective
of individual liberty.

(1) Writing for the Court, Chief Justice Burger

acknow-ledged the state’s “interest in universal
education,” id. at 214, but insisted that it be
balanced “when it impinges on fundamental
rights and interests” to assure that “there is a
state interest of sufficient magnitude to
override the [Free Exercise] interest,” id. at
214.

(2) “[Only] those interests of the highest order and

those not otherwise served,” he wrote, “can
overbalance legitimate claims of free exercise
of religion.” Id. at 215.

c. In siding with the Amish, Burger regarded this

balance as very much affected by the longstanding
tradition of vocational education within the Amish
community.

5. In the wake of Sherbert and Yoder, then, the Court’s Free

Exercise analysis inquired whether the challenged law
substantially burdened a religious practice and, if so,
whether the burden was justified by a compelling state
interest.

6. But the Court refused to apply that test in one of its most
significant Free Exercise cases: Employment Division v.
Smith, 494 U.S. 872 (1990).

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7. In Smith (per Justice Scalia), the Court applied rational
basis review in rejecting the Free Exercise claims of two
Native Americans who were denied unemployment
benefits after being fired from their jobs for partaking in
the sacramental use of peyote—part of a religious ritual in
the Native American Church.

a. Justice Scalia began his opinion by setting forth the

types of state action that are certainly forbidden by
the Free Exercise Clause: “[T]he First Amendment
obviously excludes all govern-mental regulation of
religious beliefs as such. The government may not
compel affirmation of religious belief, punish the
expression of religious doctrines it believes to be
false, impose special disabilities on the basis of
religious views or religious status, or lend its power
to one or the other side in controversies over
religious authority or dogma.” 494 U.S. at 877
(emphasis in original) (internal quotation marks and
citations omitted).

b. But there is a difference, wrote Scalia, between

regulating religious beliefs and regulating physical
acts that may stem from those beliefs: “[T]he
‘exercise of religion’ often involves not only belief
and profession but the performance of (or abstention
from) physical acts: assembling with others for a
worship service, participating in sacramental use of
bread and wine, proselytizing, abstaining from
certain foods or certain modes of transportation.” Id.
at 877. It would certainly offend the Free Exercise
Clause if a State “sought to ban such acts or
abstentions only when they are engaged in for
religious reasons, or only because of the religious
belief that they display.” Id. at 877. But that is not
what happened in this case.

c. Instead, the plaintiffs here were punished under a

law of general applicability, not a statute that
directly targeted their religion: “They contend that
their religious motivation for using peyote places
them beyond the reach of a criminal law that is not
specifically directed at their religious practice, and
that is concededly constitutional as applied to those

325
 who use the drug for other reasons. They assert, in
other words, that [the Free Exercise Clause bars the
government from] requiring any individual to
observe a generally applicable law that requires (or
forbids) the performance of an act that his religious
belief forbids (or requires).” Id. at 878.

d. This goes too far, says Scalia: “We have never held
that an individual’s religious beliefs excuse him from
compliance with an otherwise valid law prohibiting
conduct that the State is free to regulate.” Id. at
878-79.

e. Such an approach, says Scalia, would be unworkable

in a pluralistic society like ours, where the populace
holds a wide range of religious beliefs. Id. at 885.

f. “[The plaintiffs] urge us to hold, quite simply, that

when otherwise prohibitable conduct is accompanied
by religious convictions, not only the convictions but
the conduct itself must be free from governmental
regulation. We have never held that, and decline to
do so now.” Id. at 882.

g. Accordingly, Scalia holds that “the right of free

exercise does not relieve an individual of the
obligation to comply with a valid and neutral law of
general applicability on the ground that the law
proscribes (or prescribes) conduct that his religion
prescribes (or proscribes),” id. at 879 (internal
quotation marks and citations omitted), and that
such laws shall be gauged under rational basis
review, id. at 885-89.

h. One wonders if Scalia would have been quite so

inflexible if the plaintiffs had been Christians and
not Native Americans. Now that Christians are
besieging the Court with Free Exercise claims (e.g.,
Masterpiece Cakeshop), some right-wing Justices are
unhappy to be handcuffed to rational basis review
under Smith. Recently—in Fulton v. City of
Philadelphia, 141 S. Ct. 1868 (2021)—Justice Alito
(joined by Gorsuch and Thomas) urged that Smith be
overruled. Justice Barrett (joined by Kavanaugh)

326
 acknowledged an eventual willingness to jettison
Smith once a workable substitute can be developed.

8. A Footnote on the Religious Freedom Restoration Act

(“RFRA”)

a. RFRA was enacted by Congress in angry reaction to

Smith. In RFRA, Congress sought to restore, by
statute, Sherbert’s compelling interest test—making
it applicable whenever the government substantially
burdens a person’s free exercise of religion, “even if
the burden results from a rule of general
applicability.” 42 U.S.C. § 2000bb-1(a).

b. As originally enacted, RFRA applied not only to the

federal government but also to the States. The
Supreme Court put an end to that in City of Boerne
v. Flores, 521 U.S. 507 (1997), where the Court held
that Congress, in extending RFRA’s application to
the States, exceeded its legislative authority under §
5 of the 14th Amendment. Gonzales v. O Centro
Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,
424 n.1 (2006).

c. After City of Boerne, Congress amended RFRA (in

2003) so that it covers only the federal government.
That is the version of the statute that currently
exists.

d. How is it that Congress can require federal

legislation to satisfy the compelling interest test,
while state and local governments need only satisfy
rational basis review under Smith? Because
Congress has the authority to carve out exemptions
to laws that Congress has itself enacted. So if
Congress wants to extend the compelling interest
test even to generally applicable federal laws that
burden free exercise, Congress has the authority to
do that—without any offense to the Constitution.

9. Two EXCEPTIONS to Rational Basis Review Under Smith:

“Hybrid” Claims and Exemption Systems That Ignore
Religion

327
a. In the wake of Smith, Free Exercise claims will be
analyzed under rational basis review if directed at a
law of general applicability that in some way burdens
the plaintiff’s religious practices. Generally
speaking, strict scrutiny is triggered only when the
government purposefully interferes with a religious
belief or practice—e.g., Church of the Lukumi
Babalu Aye v. City of Hialeah, 508 U.S. 520, 533
(1993). But there are two additional situations in
which strict scrutiny will be used in analyzing a Free
Exercise claim—(1) when dealing with so-called
“hybrid” claims; and (2) when confronted with
exemption systems that ignore religion.

b. “Hybrid” Claims

(1) A “hybrid” claim arises when a law of general

applicabili-ty impinges not only upon a
plaintiff’s religious practices BUT ALSO UPON
SOME OTHER CONSTITUTIONAL RIGHT, such
as freedom of speech or the right to privacy.

(2) This notion of a “hybrid” Free Exercise claim

comes directly from Justice Scalia’s majority
opinion in Smith, where he observed: “The only
decisions in which we have held that the First
Amendment bars application of a neutral,
generally applicable law to religiously
motivated action have involved not the Free
Exercise Clause alone, but the Free Exercise
Clause in conjunction with other constitutional
protections, such as freedom of speech and of
the press, or the rights of parents ... to direct
the education of their children.” 494 U.S. at
881 (citations omitted). And he went on to
observe that “[t]he present case does not
present such a hybrid situation.” Id. at 882.

(3) Let’s sum up, then, the rule of the Free

Exercise “hybrid” claim: Generally applicable
laws that burden religious conduct AND some
other constitutional right, such as freedom of
speech or the right to privacy, are analyzed
under STRICT SCRUTINY, not rational basis
review.

328
 (4) BUT: Some Circuits have expressed doubt
whether the hybrid rights exception exists at
all, calling it dictum at best. Parents for Privacy
v. Barr, 949 F.3d 1210, 1238 (9th Cir. 2020);
Leebaert v. Harrington, 332 F.3d 134, 143 (2d
Cir. 2003).

c. Exemption Systems That Ignore Religion

(1) Where the government imposes a generally

applicable requirement, but then recognizes
various exemptions from that requirement
(e.g., a medical exemption), it must also
recognize a religious exemption or face STRICT
SCRUTINY under the Free Exercise Clause.

(2) Writing for the Court in Smith, Justice Scalia

asserted: “[O]ur decisions … stand for the
proposition that where the State has in place a
system of individual exemptions, it may not
refuse to extend that system to cases of
religious hardship without compelling reason.”
494 U.S. at 884.

d. Exemption Systems That Ignore Religion: Fulton v.

City of Philadelphia

(1) At the very end of its 2020-2021 Term, the

Supreme Court issued a decision that falls
within this SECOND exception to Smith-style
rational basis review—the exception that
requires STRICT SCRUTINY where the
government sets up a system of individual
exemptions but then refuses to include a
religious exemption.

(2) That case is Fulton v. City of Philadelphia, 141

S. Ct. 1868 (2021).

(3) Under its foster care system, the City of

Philadelphia contracts with private foster care
agencies to identify suitably responsible and
nurturing foster families where children may
be placed. This case presented a Free Exercise

329
 dispute between the City and one of its long-
standing foster care agencies: Catholic Social
Services (“CSS”), an agency affiliated with the
Roman Catholic Archdiocese. The City stopped
referring children to CSS upon discovering that
the agency, due to its religious beliefs about
marriage, would not certify same-sex couples to
be foster parents. Id. at 1874. CSS filed suit
when the City balked at renewing their contract
unless CSS pledged to certify same-sex couples.
Id. at 1874.

(4) Regarding the selection of prospective foster

care parents, the City’s standard contract
barred foster care agencies from
discriminating on a range of grounds, including
sexual orientation—but the contract authorized
the foster care Commissioner to grant
individual exceptions to this ban “in his/her
sole discretion.” Id. at 1878. And the City flatly
stated that the Commissioner “has no intention
of granting an exception” to CSS. Id. at 1878.

(5) Applying strict scrutiny, the Court ruled

unanimously for CSS, holding that the City had
violated the agency’s Free Exercise rights. Id.
at 1882.

(6) In his majority opinion for the Court, Chief

Justice Roberts ruled that Smith-style rational
basis review was not the appropriate standard
for deciding this case because the City’s foster
care program was not a law of general
applicability. Id. at 1877.

(7) The governing standard, held Roberts, id. at

1878, came not from Smith but from the Smith
EXCEPTION that requires strict scrutiny where
the government sets up “a system of individual
exemptions” but “refuse[s] to extend that
system to cases of religious hardship,” id. at
1878 (quoting Smith, 494 U.S. at 884) (internal
quotation marks and citations omitted).

330
(8) The Chief Justice concluded: “The creation of a
system of exceptions under the contract
undermines the City’s contention that its non-
discrimination policies can brook no
departures. The City offers no compelling
reason why it has a particular interest in
denying an exception to CSS while making
them available to others.” 141 S. Ct. at 1882
(citations omitted).

(9) All nine Justices agreed that the City violated

the Free Exercise Clause, but only six of them
signed the Roberts opinion. Three Justices
(Alito, Gorsuch, and Thomas) bemoaned the
Roberts opinion as a missed opportunity to
overrule Smith. The Chief Justice retorted as
follows: Since Smith did not govern the instant
facts, this case was not the appropriate vehicle
for overturning Smith. Id. at 1881.

(10) Justice Barrett agreed. In a separate

concurring opinion (joined by Kavanaugh), she
acknowledged an eventual willingness to
overrule Smith—but she stressed that there are
too many unresolved questions about how to
REPLACE Smith. Are we really going to apply
strict scrutiny every time a statute impinges,
no matter how incidentally, on the free exercise
of religion? “I am skeptical,” she wrote, “about
swapping Smith’s categorical
antidiscrimination approach for an equally
categorical strict scrutiny regime, particularly
when this Court’s resolution of conflicts
between generally applicable laws and other
First Amendment rights—like speech and
assembly—has been much more nuanced.” Id.
at 1883 (Barrett, J., concurring). Before we
overrule Smith, she wrote, we need to develop a
workable substitute: “There would be a number
of issues to work through if Smith were
overruled. To name a few: Should entities like
Catholic Social Services—which is an arm of the
Catholic Church—be treated differently than
individuals? Should there be a distinction
between indirect and direct burdens on

331
 religious exercise? What forms of scrutiny
should apply? And if the answer is strict
scrutiny, would pre-Smith cases rejecting free
exercise challenges to garden-variety laws
come out the same way?” Id. at 1883 (citations
omitted).

10. Torcaso v. Watkins, 367 U.S. 488 (1961): Striking down a

provision in the Maryland Constitution that required state
officials to declare their belief in the existence of God.
Here the Court applied STRICT SCRUTINY, not rational
basis review, because it was confronted with purposeful
interference by government with a religious belief or
practice.

11. Church of the Lukumi Babalu Aye v. City of Hialeah, 508

U.S. 520 (1993): Striking down city’s newly-enacted ban
on “ritual slaughter” as applied to animal sacrifices
conducted by the plaintiff church as part of its practice of
the Santeria religion—where the legislative history of the
ordinance revealed that, far from being neutral, its
central purpose was to ban the Santeria worship service
from being conducted anywhere within the city. Here the
Court applied STRICT SCRUTINY, not rational basis
review under Smith, because it was confronted with
purposeful interference by government with a religious
belief or practice.

12. Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct.

63 (2020) (invoking the Free Exercise Clause to strike
down New York’s Covid-19 restrictions on gatherings by
religious congregations; applying strict scrutiny because
New York limited religious gatherings more aggressively
than it limited access to many secular activities).

a. To combat the spread of Covid-19, the State of New

York imposed indoor occupancy restrictions that
varied from locale to locale, depending on the
severity of the infection rate. The tightest
restrictions prevailed in the communities that were
hardest hit by the pandemic. Those communities
were designated as “red” and “orange” zones.

b. The plaintiffs in this case—a Roman Catholic

congregation and an Orthodox Jewish congregation—

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 brought a Free Exercise challenge to the red and
orange occupancy limits on attendance at religious
services. They argued that these occupancy limits
imposed greater obstacles to religious worship than
to comparable secular activities.

c. In red zones, no more than 10 persons were allowed

to attend each religious service; in orange zones,
attendance was capped at 25.

d. For most secular activities, the regulations were not

as strict.

e. “In a red zone,” wrote the Court, “while a synagogue

or church may not admit more than 10 persons,
businesses categorized as ‘essential’ may admit as
many people as they wish. And the list of ‘essential’
businesses includes things such as acupuncture
facilities [and] garages, as well as many whose
services are not limited to those that can be
regarded as essential, such as all plants
manufacturing chemicals and microelectronics and
all transportation facilities.” 141 S. Ct. at 66.

f. “The disparate treatment is even more striking in an

orange zone. While attendance at houses of worship
is limited to 25 persons, even non-essential
businesses may decide for themselves how many
persons to admit.” Id. at 66.

g. Applying strict scrutiny under Hialeah, id. at 67, the

Court ruled (5-4) in favor of the plaintiffs: “Members
of this Court are not public health experts, and we
should respect the judgment of those with special
expertise and responsibility in this area. But even in
a pandemic, the Constitution cannot be put away and
forgotten. The restrictions at issue here, by
effectively barring many from attending religious
services, strike at the very heart of the First
Amendment’s guarantee of religious liberty. Before
allowing this to occur, we have a duty to conduct a
serious examination of the need for such a drastic
measure.” Id. at 68.

333
13. Masterpiece Cakeshop v. Colorado Civil Rights
Commission, 138 S. Ct. 1719 (2018): This case presented
a compelled speech issue and a religious freedom issue.
The Court ducked both issues—but they are worth
discussing, because lawsuits with fact patterns like this
one are percolating in the lower courts. I discussed the
compelled speech issue in section VI(C) of this Outline.
We’ll confront the religious freedom issue right here.

a. In this case, a devoutly religious baker refused to

bake a wedding cake for a same-sex couple,
asserting that his Christian beliefs were opposed to
same-sex marriage.

b. As expressed in his own words, the baker believed

that “to create a wedding cake for an event that
celebrates something that directly goes against the
teachings of the Bible, would have been a personal
endorsement and participation in the ceremony and
relationship that they were entering into.” 138 S. Ct.
at 1724.

c. Since the cake shop was governed by Colorado’s

public accommodations laws, the spurned couple
filed a charge with the Colorado Civil Rights
Commission, alleging discrimination on the basis of
sexual orientation in violation of the Colorado Anti–
Discrimination Act. The Commission found that the
cake shop’s actions violated the Act and ruled in the
couple’s favor.

d. The baker challenged the Commission’s ruling on

two distinct constitutional grounds:

(1) Compelled Speech: The government was

violating his freedom of speech by compelling
him to engage in an expressive act—baking a
cake to celebrate a same-sex marriage—that
conveyed a message he personally rejected.

(2) Religious Freedom: Through enforcement of its

anti-discrimination law, the government was
forcing him to participate in a union (same-sex
marriage) that offended his Christian religious
beliefs.

334
 The Supreme Court never squarely addressed either
of these issues.

e. Instead, the Court found a convenient way to dispose

of the case by zeroing in on a few remarks by two of
the five Commis-sioners—remarks suggesting that
they did not respect the baker’s religious beliefs—
and summarily concluding that the baker did not
receive a fair hearing. By disposing of the case in
this perfunctory manner, the Court produced a
decision that has almost no value as a precedent.

f. Specifically, the Court found that the Commission

failed to treat the baker’s position “with the
neutrality that the Free Exercise Clause requires.”
Id. at 1731. Accordingly, the Court applied strict
scrutiny under Hialeah, id., producing a victory for
the baker.

g. Since Colorado’s public accommodations statute is a

law of general applicability that was not enacted to
burden religion, this case would normally have been
decided under Smith-style rational basis review, not
Hialeah-style strict scrutiny. Justice Kennedy’s
majority opinion concedes as much: “Our society has
come to the recognition that gay persons and gay
couples cannot be treated as social outcasts or as
inferior in dignity and worth. ... At the same time,
the religious and philosophical objections to gay
marriage are protected views and in some instances
protected forms of expression. ... Nevertheless, while
those religious and philosophical objections are
protected, it is a general rule that such objections do
not allow business owners and other actors in the
economy and in society to deny protected persons
equal access to goods and services under a neutral
and generally applicable public accommodations
law.” Id. at 1727 (citations omitted).

h. What would have happened if those two

Commissioners had kept their mouths shut? If they
hadn’t let slip their lack of sympathy for the baker’s
religious scruples? Then Kennedy would have been
forced to apply Smith-style rational basis review,

335
 likely handing the baker a defeat and triggering a
rebellion by Alito, Gorsuch, and Thomas. Those
Justices want a vigorous Free Exercise Clause; they
want to eliminate the possibility of rational basis
review; and they are now calling loudly for Smith to
be buried. See Fulton v. City of Philadel-phia, 141 S.
Ct. 1868 (2021), where Justices Alito, Gorsuch, and
Thomas urged that Smith be overruled.

i. The only reason Smith is still alive is that Justice

Barrett (joined by Kavanaugh) did not view Fulton as
the appropriate vehicle for overruling Smith. But she
did acknowledge an eventual willingness to jettison
Smith once a workable substitute can be developed.
See Fulton, 141 S. Ct. at 1882-83 (Barrett, J.,
concurring).

14. In Kennedy v. Bremerton School District, 142 S. Ct. 2407

(2022), a high school football coach was fired for refusing
to abandon his post-game habit of praying on the fifty
yard line. The defendant school district fired the coach
because it believed that allowing those prayers to
continue would violate the Establishment Clause. In a 6-3
decision authored by Justice Gorsuch, the Court held that
firing the coach violated the Free Exercise Clause—and
that the coach’s prayers did not remotely offend the
Establishment Clause. In arriving at this decision, the
Court finally overruled the Lemon test for gauging
Establishment Clause violations. Id. at 2427-28. On the
Free Exercise claim, the Court held that firing the coach
for his post-game prayers was an act of governmental
discrimination against a religious practice, requiring
strict scrutiny under Hialeah. Id. at 2422.

* * *

C. Express Discrimination Against Churches

1. In recent years, the Supreme Court has developed a new

line of precedent under the Free Exercise Clause,
imposing strict scrutiny to strike down laws that
disqualify an otherwise eligible recipient from a public
benefit solely because of the recipient’s religious
character. The recent cases that embody this new line of
precedent are: Carson v. Makin, 142 S. Ct. 1987 (2022);

336
 Trinity Lutheran Church v. Comer, 137 S. Ct. 2012 (2017);
and Espinoza v. Montana Department of Revenue, 140 S.
Ct. 2246 (2020). Let’s address them in the sequence in
which they were decided.

2. Trinity Lutheran Church v. Comer, 137 S. Ct. 2012 (2017):

In a clumsy effort to avoid Establishment Clause
violations, the State of Missouri categorically refused to
entertain applications by religious organizations seeking
competitively-awarded grants to nonprofit entities for
purchasing rubber playground surfaces made from
recycled tires. The Court held, 7-2, that Missouri violated
the Free Exercise rights of a church that qualified for such
a grant but whose application was rejected solely due to
its religious affiliation. The Court ruled that where the
government expressly discriminates against otherwise
eligible recipients by disqualifying them from a public
benefit solely because of their religious character, courts
must apply the “strictest scrutiny,” id. at 2022.

3. Espinoza v. Montana Department of Revenue, 140 S. Ct.

2246 (2020): Notwithstanding the Montana Constitution’s
“no-aid” provision (which bars government aid to
religious schools), Montana’s scholarship program for
students attending private schools violated the federal
Free Exercise Clause by disqualifying all private schools
with a religious affiliation. Writing for the Court, Chief
Justice Roberts held that “disqualifying otherwise eligible
recipients from a public benefit ‘solely because of their
religious character’ imposes ‘a penalty on the free
exercise of religion that triggers the most exacting
scrutiny.’” Id. at 2255 (quoting Trinity Lutheran Church v.
Comer, 137 S. Ct. 2012, 2021 (2017)). Chief Justice
Roberts concluded that Montana’s categorical
disqualification of religious schools from the scholarship
program could not survive strict scrutiny. 140 S. Ct. at
2260. In the decision below, the Montana Supreme Court
upheld the scholarship program, asserting that the state
constitution’s no-aid provision serves Montana’s interest
in separating church and state “more fiercely” than the
U.S. Constitution. Id. at 2260 (citations omitted). But
Chief Justice Roberts retorted that such an interest could
not qualify as compelling, for purposes of strict scrutiny,
in the face of so blatant an infringement of free exercise.
Id. at 2260.

337
 4. Carson v. Makin, 142 S. Ct. 1987 (2022): Applying strict
scrutiny under the Free Exercise Clause, the Court struck
down a Maine tuition assistance program that expressly
disqualified religious schools. Writing for a 6-3 majority,
Chief Justice Roberts observed: “The State pays tuition for
certain students at private schools—so long as the schools
are not religious. That is discrimination against religion.”
Id. at 1998. This holding does not mean that Maine MUST
fund religious education: “A State ‘need not subsidize
private education. But once a State decides to do so, it
cannot disqualify some private schools solely because they
are religious.’” Id. at 2000 (quoting Espinoza, 140 S. Ct. at
2261).

D. Permissible Accommodation of Religion

1. Corporation of the Presiding Bishop of the Church of

Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327
(1987)

a. Upholding the religious organizations exemption in

Title VII, which permits such organizations to
engage in employment discrimination on the basis of
religion.

b. This was an unsuccessful challenge by a janitor who

lost Mormon employment due to his failure to abide
by the prescribed abstinence from tobacco, coffee,
and alcohol.

2. Texas Monthly v. Bullock, 489 U.S. 1 (1989): In a 5-4

decision authored by Justice Brennan, the Court strikes
down a statute that exempted religious publications from
a state sales tax.

a. Brennan: By directly targeting for government aid

those publications that promulgate the teachings of
religious faiths, this Act conveys an unmistakable
message of endorsement that violates the
Establishment Clause.

b. Scalia’s dissent: The tax exemption here is a

permissible accommodation of religion; this should

338
 be an easy case because taxing religious publications
might well violate the Free Exercise Clause.

3. Board of Education of Kiryas Joel Village School District v.

Grumet, 512 U.S. 687 (1994): Striking down as an
impermissible accommodation of religion the creation of
a special public school district for a village that served as
a religious enclave for a sect of Orthodox Jews.

a. Writing for the Court, Justice Souter focused on how

the State of New York had singled out this religious
sect for special favorable treatment, thus violating
the Establishment Clause principle requiring
government neutrality among religions.

b. Kennedy’s concurrence focused on the fact that New

York created the school district by drawing political
boundaries on the basis of religion.

c. Scalia’s dissent: How can New York’s helping this

tiny minority sect effect an ESTABLISHMENT of the
Satmar Hasidim?

4. Larkin v. Grendel’s Den, 459 U.S. 116 (1982): Striking

down the delegation of veto power to churches over the
issuance of liquor licenses to nearby restaurants.

5. At the end of the day, the standard by which to reconcile

these religious accommodation cases is to inquire: Is the
government alleviating a regulatory burden for religious
exercise or is it conferring a special benefit upon religion?

6. Only the former situation will be deemed consistent with

the Religion Clauses.

7. The courts in this area still perform a full-fledged

Establishment Clause analysis, but the foregoing inquiry
is still the big-picture key to the outcome.

* * *

X.
THE PRESS CLAUSE

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A. A “Preferred” Status for the Press?

1. Does the press enjoy a “preferred” status under the First

Amendment? The short answer is an emphatic “NO.”

2. In fact, the Press Clause is itself surprisingly irrelevant.

The landmark cases in which press freedom has been
vindicated—e.g., New York Times v. Sullivan, 376 U.S. 254
(1964), and the Pentagon Papers case, New York Times v.
United States, 403 U.S. 713 (1971)—were decided under
the SPEECH Clause, NOT the Press Clause.

3. Ironically, liberty of the PRESS received much more

attention than liberty of speech among 18th century
advocates of expressive freedom.

4. In a 1975 law review article, Justice Potter Stewart argued

that the Press Clause is redundant if it offers no
protection beyond that afforded by the Speech Clause—
and the Framers cannot have intended such a result.
Potter Stewart, Or of the Press, 26 HASTINGS L.J. 631
(1975).

a. Stewart asserts that the Framers envisioned the

Press Clause as providing an additional structural
check on the three branches of government by
protecting the institutional autonomy of the press to
function as a government watchdog. Id. at 634.

b. But three years later, in First National Bank of

Boston v. Bellotti, 435 U.S. 765, 797-801 (1978),
Chief Justice Burger, in a concurrence that reflects
the longstanding majority view, rejected Stewart’s
“special-protection-for-the-press” argument.

c. The Supreme Court has consistently refused to hold

that the press enjoys any special protection from the
enforcement of generally applicable laws.

B. A Right to “Gather” News?

1. Thanks to the SPEECH Clause, the press enjoys

extraordinary protection against censorship and prior
restraint.

340
2. But the following cases show that:

a. the press enjoys no special power or privilege to

gather information;

b. the press enjoys no greater right of access to

government information or proceedings than that
enjoyed by the general public; and

c. the press enjoys no special immunity from

governmental demands for information in its
possession.

3. Branzburg v. Hayes, 408 U.S. 665 (1972): In an opinion

widely regarded as rejecting any special Press Clause
protection for news-gathering by the media, the Supreme
Court holds that there is no reporter/news source
privilege, so that reporters can be compelled to disclose
their investigative findings and the identities of their
sources when subpoenaed to testify before grand juries,
all without any offense to the First Amendment.

a. In Branzburg, a newspaper reporter in Louisville,

Kentucky was subpoenaed to reveal the identities of
confidential news sources for a series of articles he
had written on illegal drug activity.

b. Paul Branzburg was a staff reporter for a newspaper

called the Louisville Courier-Journal. He published
some feature stories on illegal drug activity.

c. One story focused on two young men who were

synthesizing hashish and thereby earning $5,000
over a three-week span.

d. The other story was a two-week investigation into

the widespread drug use to be found in Frankfort,
Kentucky. The story involved the reporter in
interviews with several dozen drug users.

e. Branzburg was able to get these people to talk to

him by promising not to reveal their identities in the
newspaper stories he would publish about them.

341
f. And Branzburg kept his promise: he published these
stories without revealing the identities of his
subjects.

g. After the publication of these stories, Branzburg

found himself subpoenaed to testify before the
county grand jury.

h. When he refused to answer questions about the

identities of his subjects, he was held in contempt of
court.

i. The U.S. Supreme Court agreed to hear his appeal—

but in a 5-to-4 ruling, it handed him a defeat.

j. Writing for the majority, Justice White observed:

“The issue [here] is whether requiring newsmen to
appear and testify before state or federal grand
juries abridges the freedom of speech and press
guaranteed by the First Amendment. We hold that it
does not.” 408 U.S. at 667.

k. In a dissent joined by Brennan and Marshall, Justice

Stewart asserted: By leaving reporters with no
privilege by which to protect their sources, the
majority opinion “invites state and federal
authorities to undermine the historic independence
of the press by attempting to annex the journalistic
profession as an investigative arm of government.”
Id. at 725 (Stewart, J., dissenting).

l. The true holding of Branzburg remains ambiguous

because Justice Lewis Powell, the 5-to-4 swing vote,
wrote a separate opinion “to emphasize...the limited
nature of the Court’s holding.” Id. at 709 (Powell, J.,
concurring). Powell seized upon language near the
end of White’s majority opinion suggesting that First
Amendment protection for reporters WOULD arise if
it appeared that the grand jury investigation were
NOT being conducted in good faith. Id. at 709-10
(Powell, J., concurring).

m. Powell’s opinion produced a lot of commotion in the

lower federal courts. Some judges and commentators
speculated that reporters now enjoy a qualified First

342
 Amendment privilege protecting them from
compelled disclosure of their confiden-tial sources—
a privilege that survived the 5-to-4 Branzburg
decision due to Powell’s concurrence.

n. HOW SHOULD YOU VIEW BRANZBURG?

(1) The most accurate interpretation of Justice

Powell’s impact on the Branzburg precedent is
this: Powell’s con-currence did NOT create a
qualified First Amendment privilege protecting
reporters from compelled disclosure of their
confidential sources. Such a privilege is
rejected by Justice White’s opinion—and
White’s opinion was a MAJORITY, not a
plurality, opinion because Powell signed it.

(2) Instead, Powell’s concurrence is most

accurately viewed as recognizing an
EXCEPTION to the Branzburg rule where
prosecutors conduct grand jury investigations
IN BAD FAITH—either to harass reporters or to
squeeze them for information that prosecutors
could have obtained on their own. Justice
Powell’s concurrence should not be
overestimated; all he did was to single out a
bad faith exception that was already
acknowledged in Justice White’s majority
opinion.

4. In Branzburg’s wake, a majority of States have enacted

“shield” laws designed to protect the confidentiality of
press sources.

a. But these shield laws are largely toothless. They do

not apply in federal court. ANTHONY LEWIS, FREEDOM
FOR THE THOUGHT THAT WE HATE: A BIOGRAPHY OF THE
FIRST AMENDMENT 91 (2007).

b. Reporters still go to jail (usually for contempt of

court) rather than reveal their sources.

5. Zurcher v. Stanford Daily, 436 U.S. 547 (1978), upheld the

newsroom search of a college paper’s editorial offices,
holding that so long as the search satisfies the Fourth

343
Amendment, the First Amendment affords the news media
no special protection from search and seizure.

a. In Zurcher, a student newspaper published articles

and photographs concerning a violent clash on
campus between demonstrators and police. Seeking
negatives and photos that might help them identify
those demonstrators, police obtained a warrant and
searched the paper’s editorial offices, where they
rifled the filing cabinets, desks, wastepaper baskets,
and photographic laboratories.

b. The Court, in an opinion by Justice White, rejected

the newspaper’s civil action against the police.

c. Justice Stewart, dissenting in Zurcher, emphasized

the stark contrast between a subpoena and a search
warrant in extracting evidence from a newsroom
(436 U.S. at 573):

“A search warrant allows police officers to ransack

the files of a newspaper, reading each and every
document until they have found the one named in
the warrant, while a subpoena would permit the
newspaper itself to produce only the specific
documents requested. A search, unlike a subpoena,
will there-fore lead to the needless exposure of
confidential information completely unrelated to the
purpose of the investigation. The knowledge that
police officers can make an unannounced raid on a
newsroom is thus bound to have a deterrent effect
on the availability of confidential news sources. The
end result, wholly inimical to the First Amendment,
will be a diminishing flow of potentially important
information to the public.”

d. In Zurcher’s wake, Congress enacted the Privacy

Protection Act of 1980.

e. The Act limits the power of law enforcement officials

to conduct newsroom searches, unless the media
target is itself suspected of criminal wrongdoing or
there are reasonable grounds to believe that the
evidence would be destroyed if sought by subpoena
rather than a warrant.

344
 f. Notwithstanding the Act, Zurcher still shows that the
Press Clause affords the news media no greater
protection from search and seizure than that enjoyed
by the public generally.

6. Likewise, Pell v. Procunier, 417 U.S. 817 (1974), shows

that reporters enjoy no greater access to jails than that
enjoyed by the public generally.

a. Pell rejected a Press Clause challenge to a California

penal provision that barred face-to-face interviews
between a reporter and any individual inmate whom
the reporter specifically named and requested.

b. Justice Douglas wrote an eloquent dissent that offers

valuable insight into the nature of the Press Clause.
Douglas asserted that the principle adopted by the
majority—restricting press access to the same low
level as public access—ignores the fact that the
press represents the public, that it ventures into
prisons so that the public won’t have to. 417 U.S. at
841 (Douglas, J., dissenting).

C. A Right of Access to Information?

1. Trial Closure Orders Barring Public and Press Access to

Judicial Proceedings

a. In Richmond Newspapers v. Virginia, 448 U.S. 555

(1980), the Supreme Court recognized a general
right of public and press access to criminal trials.
But this right is NOT a special Press Clause right
enjoyed by the news media; it’s a general First
Amendment right of PUBLIC access.

b. Invoking the Speech, Press, Assembly, and Petition

Clauses of the First Amendment, Richmond
Newspapers asserted that “[t]hese expressly
guaranteed freedoms share a common core purpose
of assuring freedom of communication on matters
relating to the functioning of government.” 448 U.S.
at 575 (emphasis added).

345
c. Thus, the First Amendment confers upon the public
a broad “right to know” about governmental
proceedings: “[T]he First Amendment goes beyond
protection of the press and the self-expression of
individuals to prohibit government from limiting the
stock of information from which members of the
public may draw. Free speech carries with it some
freedom to listen. In a variety of contexts, this Court
has referred to a First Amendment right to receive
information and ideas.” Id. at 575-76 (citations and
internal quotation marks omitted).

d. “People in an open society,” said the Court, “do not

demand infallibility from their institutions, but it is
difficult for them to accept what they are prohibited
from observing.” Id. at 572.

e. Based, then, on this broad “right to know,” the Court

has issued a series of decisions guaranteeing public
access to criminal proceedings:

(1) Richmond Newspapers, 448 U.S. at 580

(holding that “the right to attend criminal
trials is implicit in the guarantees of the First
Amendment”);

(2) Globe Newspaper Co. v. Superior Court for the

County of Norfolk, 457 U.S. 596 (1982)
(striking down restrictions on public access to
rape trials);

(3) Press-Enterprise Co. v. Superior Court of

California (Press-Enterprise I), 464 U.S. 501
(1984) (guaranteeing public access to voir dire
examinations in criminal proceedings); and

(4) Press-Enterprise Co. v. Superior Court of

California (Press-Enterprise II), 478 U.S. 1
(1986) (recognizing a qualified First
Amendment right of public access to
preliminary hearings in criminal trials
conducted in California).

f. In deciding whether the First Amendment confers a

right of public access to certain governmental

346
 proceedings, the Supreme Court has examined “two
complementary considera-tions,” Press-Enterprise II,
478 U.S. at 8:

(1) whether the proceedings “have historically

been open to the press and general public,” and

(2) “whether public access plays a significant

positive role in the functioning of the
particular process in question.”

g. If, based on this analysis, the public DOES enjoy a

right of access, any governmental restriction on such
access will be gauged under strict scrutiny.

h. Ultimately, though, the PRESS enjoys only that

degree of access enjoyed by the public generally—
and such access is by no means derived specifically
from the PRESS Clause. It is derived instead from
the PUBLIC’s “right to know”—a right first recog-
nized in Richmond Newspapers as emanating from
the Speech, Press, Assembly, and Petition Clauses in
combination.

i. Controlling Standard for Constitutionality of Trial

Closure Orders:

“The party seeking to close a hearing must advance

an over-riding interest that is likely to be prejudiced,
the closure must be no broader than necessary to
protect that interest, the trial court must consider
reasonable alternatives to closing the pro-ceedings,
and it must make findings adequate to support the
closure.”

Waller v. Georgia, 467 U.S. 39, 48 (1984).

D. Differential Treatment of the Press

1. Where the government SINGLES OUT the press for special

burdens, the Supreme Court will employ strict scrutiny.

2. See, e.g., Minneapolis Star & Tribune Co. v. Minnesota

Commissioner of Revenue, 460 U.S. 575 (1983): striking

347
 down a special tax on paper and ink employed in the
publishing of periodicals.

a. Writing for the Court, Justice O’Connor observed

that differential taxation of the press would have
troubled the Framers.

* * *

XI.
FREEDOM OF ASSOCIATION

A. Introduction

1. The First Amendment does not mention “freedom of

association,” but the Supreme Court has inferred the
existence of such a right as a necessary concomitant to
the express protections for speech, assembly, and
petition.

2. Freedom of association protects a person’s right to join

together with others for the purpose of pursuing social,
political, or economic goals.

3. Freedom of association is implicated in at least six

disparate lines of First Amendment precedent (note the
overlap with some of the compelled expression cases):

a. An organization’s freedom from compelled

disclosure of its members.

b. A speaker’s freedom from compelled disclosure of

her identity.

c. A person’s freedom from punishment based on her

political associations or opinions.

d. A person’s freedom from compelled membership in

an organization.

e. An organization’s freedom from compelled inclusion

of unwanted members.

f. Litigation as an associational right.

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B. An Organization’s Freedom from Compelled Disclosure of Its
Members

1. NAACP v. Alabama, 357 U.S. 449 (1958) (striking down

enforcement of Alabama’s corporate “doing-business”
statute, by which the government sought to compel
disclosure of the NAACP’s membership list); id. at 402
(writing for the Court, Justice Harlan likened this type of
compelled disclosure to “‘[a] requirement that adherents
of particular religious faiths or political parties wear
identifying armbands’”) (quoting American
Communications Association v. Douds, 339 U.S. 382, 402
(1950)).

C. A Speaker’s Freedom from Compelled Disclosure of Her

Identity

1. McIntyre v. Ohio Elections Commission, 514 U.S. 334

(1995) (striking down Ohio’s ban on anonymous campaign
literature).

2. Talley v. California, 362 U.S. 60 (1960) (striking down a

ban on anonymous leafleting).

D. A Person’s Freedom from Punishment Based on Her Political

Associations or Opinions

1. Keyishian v. Board of Regents, 385 U.S. 589 (1967)

(striking down a New York law that prohibited civil service
employment or public school teaching for any person who
refused to sign a certificate swearing that they were not a
Communist and did not advocate the forcible overthrow of
the federal government).

2. Elfbrandt v. Russell, 384 U.S. 11 (1966) (striking down an

Arizona statute that required all state employees to take a
loyalty oath swearing that they were not members of the
Communist Party or any other organization seeking to
overthrow the government).

3. Wieman v. Updegraff, 344 U.S. 183 (1952) (striking down

an Oklahoma law that required public employees to take
an oath that they were not members of the Communist

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 Party or any group that advocated overthrowing the
government by force or violence).

E. A Person’s Freedom from Compelled Membership in an

Organization

1. Abood v. Detroit Board of Education, 431 U.S. 209 (1977)

(First Amendment challenge to a Michigan statute
permitting “agency shop” arrangements in connection
with union representation of government employees; non-
union employees who were nevertheless represented by
union objected—on compelled association grounds—to the
agency shop arrangement, under which they were
compelled to pay the union a service charge equal in
amount to union dues) (the Court held that the non-union
employees who opposed the agency shop arrangement
could not evade—as “free riders”—paying for the union’s
collective bargaining representation; but they did not
have to pay for, and the union would have to raise funds
separately to support, political activities and
endorsements engaged in by the union), OVERRULED,
Janus v. American Federation of State, County, and
Municipal Employees, 138 S. Ct. 2448 (2018). Janus holds
that non-union public employees cannot be compelled to
pay the union anything, even for collective bargaining
representation.

F. An Organization’s Freedom from Compelled Inclusion of

Unwanted Members

In this line of precedent, the Supreme Court has held that

freedom of association protects an organization’s right to
discriminate only where the discrimination is integral to the
organization’s expressive activity.

1. Excluding Women from Civic or Commercial

Organizations: Roberts v. United States Jaycees, 468 U.S.
609 (1984) (rejecting an effort by the Jaycees to exclude
women from their voting membership); Board of Directors
of Rotary International v. Rotary Club of Duarte, 481 U.S.
537 (1987) (unanimously upholding the application of
California’s gender discrimination law to the Duarte
Rotary Club, a civic organization that refused to admit
women).

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 2. Barring Gays from the Boy Scouts: Boy Scouts of America
v. Dale, 530 U.S. 640 (2000) (trumping an anti-
discrimination statute with the freedom from government-
compelled association, the Supreme Court holds that a
law prohibiting the Boy Scouts from excluding gays
effectively violates the First Amendment right of
expressive association because, as found by the Court, id.
at 661, opposition to homosexuality is part of “the
organization’s expressive message”).

3. Protecting the Freedom of Political Association in the

Context of Primary Elections: California Democratic Party
v. Jones, 530 U.S. 567 (2000) (voting 7-2) (per Scalia, J.)
(striking down California’s blanket primary system, under
which all voters were given a single ballot from which they
could choose candidates of any political party—holding
that this system stripped parties of their right to political
association).

4. Protecting “Expressive Association” in the Context of

Marches and Parades: Hurley v. Irish-American Gay,
Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995)
(holding that Massachusetts could not invoke its public
accommodations law to force the private organizers of a
St. Patrick’s Day Parade to include a contingent of Irish
gays and lesbians, who would impart a message that the
organizers did not wish to convey; compelling the
inclusion of this group effectively altered the expressive
content of the organizers’ parade, thereby violating the
First Amendment).

G. Litigation as an Associational Right

1. NAACP v. Button, 371 U.S. 415 (1963) (rejecting as

unconstitutional Virginia’s enforcement of an “improper
solicitation” statute by which it prohibited the NAACP’s
practice of explaining to parents and children how to
bring a school desegregation suit—the Court held that the
NAACP’s actions were “modes of expression and
association” protected by the First Amendment).

* * *

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 APPENDIX
Police Power To Disperse
And Arrest Demonstrators
NOTE TO STUDENTS:
You will not be tested on these materials, but they may be
of interest given the huge upsurge in public protest after
the police killing of George Floyd.

A. Introduction

1. This Appendix is meant to provide some basic black-letter

law, and some practical background information, on
police power to disperse and arrest demonstrators.

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 2. The governing law in this area has been developed
through a combination of First Amendment and Fourth
Amendment principles.

3. In the sections that follow, I will try to answer three basic

questions:

a. Before marching or demonstrating, are protesters

always required to obtain a permit?

b. Under what circumstances are police allowed to

disperse or arrest demonstrators?

c. Under what circumstances are police allowed to

conduct mass arrests of demonstrators?

B. Before Marching or Demonstrating, Are Protesters Always

Required to Obtain a Permit?

1. As a practical matter, no—but large-scale protests

normally proceed more smoothly, with less chaos and
conflict, under a permit that establishes the march route
or protest location in advance.

2. Courts are hostile to permit requirements for small

assemblies. Such a requirement is almost certain to be
struck down if it applies to groups of twenty or fewer
individuals. See, e.g., Smith v. Executive Director of
Indiana War Memorials Commission, 742 F.3d 282 (7th
Cir. 2014) (striking down, for lack of narrow tailoring, a
public forum permit scheme that required an advance
permit from groups numbering as few as fifteen people).

3. Under the First Amendment, a city cannot “flatly ban

groups of people from spontaneously gathering on
sidewalks or in public parks in response to a dramatic
news event. But it can require a permit for a planned
event on public property, especially a large-scale demon-
stration or march....” Vodak v. City of Chicago, 639 F.3d
738, 749 (7th Cir. 2011) (Posner, J.).

4. There is no First Amendment right to occupy the public

streets—but well-trained police departments realize that
many protesters are completely unaware of permit
requirements. In Chicago, “‘un-permitted marches’ are

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 sufficiently frequent that police have adopted a practice of
‘permitting’ them to use a specific corridor of city streets.
This waiver of the permit requirement is informal; it
seems to consist just in not telling the demonstrators that
they need a permit.” Vodak, 639 F.3d at 741 (emphasis in
original).

5. To be criminally liable for marching or parading without a

permit, one must do so knowingly. “Accordingly, officers
who make such an arrest must have reasonable grounds
to believe that the suspect (1) took part in a [march or]
parade, (2) without a permit, and (3) did so knowing no
permit was granted.” Carr v. District of Columbia, 587
F.3d 401, 410 (D.C. Cir. 2009) (emphasis in original).

C. Under What Circumstances Are Police Allowed to Disperse or

Arrest Demonstrators?

1. “[W]here demonstrations turn violent, they lose their

protected quality as expression under the First
Amendment.” Grayned v. City of Rockford, 408 U.S. 104,
116 (1972) (Justice Thurgood Marshall, writing for the
Court).

2. When protesters engage in “obstructive” behavior (e.g.,

intentionally blocking traffic by occupying busy
intersections), police may order them to “move on”—but
in this situation, “the initial police objective must be
merely to clear passage [for vehicular and pedestrian
traffic], not to disperse the demonstrators, or to suppress
the free communication of their views.” Washington
Mobilization Committee v. Cullinane, 566 F.2d 107, 116-
17 (D.C. Cir. 1977).

3. If obstructive demonstrators refuse to move on, or if they

turn violent, the police “may validly order [them] to
disperse or clear the streets. If any demonstrator or
bystander refuses to obey such an order after fair notice
and opportunity to comply, his arrest does not violate the
Constitution even though he has not previously been
violent or obstructive.” Id. at 120.

4. If protesters are rioting (e.g., breaking windows, setting

fires), police can arrest them without first ordering them

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 to disperse. Carr v. District of Columbia, 587 F.3d 401,
409-10 (D.C. Cir. 2009).

5. If marchers deviate from the agreed-upon parade route—

spilling onto busy streets, blocking traffic, and pounding
on the hoods and windows of cars—“the authority of the
police to order the crowd to disperse and return to its
starting point cannot be questioned.” Vodak v. City of
Chicago, 639 F.3d 738, 743 (7th Cir. 2011) (Posner, J.)
(citations omitted).

D. Under What Circumstances Are Police Allowed to Conduct Mass

Arrests of Demonstrators?

1. In Barham v. Ramsey, 434 F.3d 565, 573-77 (D.C. Cir.

2006), the court held that police officers lacked probable
cause to support their mass arrest of 386 people who were
present in Washington’s Pershing Park during “anti-
globalization” protests throughout the city; and held that
the assistant police chief who ordered that the park be
sealed off and everyone in it arrested was not entitled to
qualified immunity where many people in the park were
not engaged in illegal activity, where the people in the
park were not acting as a unit, where pedestrian traffic
was flowing freely in and out of the park, where the people
in the park were arrested without warning and without
any opportunity to disperse, and where the assistant
police chief’s grounds for ordering the mass arrest were
based largely upon certain incidents—protesters walking
in the streets and scattered acts of vandalism—that he
had witnessed outside of the park earlier that morning.

2. This case is important for identifying the limits on police

power to conduct mass arrests of demonstrators. Police
cannot indiscrimi-nately arrest a crowd of protesters if
many of them are engaged in peaceful, lawful behavior.
Id. at 574. Only if a crowd “‘is substantially infected with
violence or obstruction [may] the police ... act to control it
as a unit.’” Id. at 575 (quoting Washington Mobilization
Committee v. Cullinane, 566 F.2d 107, 120 (D.C. Cir.
1977)). “[W]hen [such] compelling circumstances are
present, the police may be justified in detaining an
undifferentiated crowd of protesters, but only after
providing a lawful order to disperse followed by a

355
reasonable opportunity to comply with that order.” 434
F.3d at 575.

END

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