First Amendment Checklist - 39408 I. Free Exercise A. Background History a.

No free exercise exemption (injunction sought) for forced JW flag pledge. Minersville b. Free speech, (not establishment, which would create total injunction) forbids forced pledges; (+ free exercise) religious exemptions must be allowed. Barnette c. Congress can regulate behavior, not belief (polygamy). Reynolds 1. Religious actions (likely) protected unless harmful/subverts good order. B. Contemporaneously Relevant Cases a. When state provides exemptions for benefit plan, these must include religious hardship unless it has compelling reasons to exclude them. Sherbert. (Adventist case) 1. Sherbert Test (somewhat defunct, but better than Smith) a. When to use Sherbert? i. Hybrids with individualized exemptions. Smith ii. RFRA: when a federal law is implicated. (e.g. Centro Espirita Beneficiente) iii. RLUIPA: State laws governing religious land use (zoning)/prison implicated. iv. Laws that are not generally, neutrally applicable (e.g. Lukumi Babalu Aye) b. Substantial Burden? i. (Choosing between basic needs benefits and religion is. Sherbert ii. A loss of benefit counts as a burden. Sherbert iii. Fines for skipping 11-12 grade undermine Amish community. Yoder iv. Seems that making de-facto impossible doesnt qualify (Lyng, sacred land) v. Centrality applies. Unclear if it does with RFRA. c. Compelling State Interest? (Hard to imagine; First prong more important) i. Rule not stopping lots of fraud = No compelling interest. Sherbert. ii. Neighborhood parking not a compelling interest (RLUIPA e.g.) 1. Property values, hiring discrimination, institution rules? iii. Invocating drug laws not enough, no evidence congress worried about this kind of harm (13 people, ceremonial tea). Centro Espirita Beneficiente iv. Challenge of framing the interest 1. Enforcement of drug laws compelling (OConnor in Smith) 2. But denying unemployment exemptions not (Blackmun in Smith) d. Narrow Tailoring? (any other way to accomplish? - unreached in Sherbert) e. But less scrutiny in military context. Goldman b. Free exercise right to dictate government internal procedure Roy (Little Bird & SSN) 1. No holding, but 5 justices thought free exercise warrants an exception: the adherent shouldnt have to furnish her SSN. Roy c. (Lawful programs whose incidental effects make practicing religion impossible ok. Lyng.) d. Smith: If general, neutrally applicable law burdens exercise, no Sherbert scrutiny. 1. Sherbert applies when individual exemptions and hybrid rights (two constitutional rights simultaneously) are implicated. 2. Since violating criminal law = automatic, Smith individualized in Sherbert sense. 3. Laws motivated by animus are not general, neutrally applicable. Lukumi Babalu Aye a. So they get Sherbert analysis. i. Laws purposing to burden religious practice usually not compelling, rarely survive Sherbert. Lukumi Babalu Aye 1. Where government restricts only conduct protected by the first amendment and fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification is not compelling.

II.

ii. Majority: look to objective effects (facial discrimination). Lukumi Babalu Aye iii. Only Plurality: can look at legislative intent, history. Lukumi Babalu Aye 4. RFRA: (which uses the Smith test), only applies to federal law. City of Boerne a. Congress doesnt get to decide the contours of First Amendment rights. Boerne b. RLUIPA (passed under commerce power) applies to states when their actions affect interstate commerce). i. Zoning and Prisons require compelling interest, narrow tailoring, like Smith C. Black Letter Summary a. Hybrid or Individualized Exemptions: Sherbert 1. centrality applies b. Neither: Smith (General, neutrally applicable). 1. Targeting religion doesnt qualify (Lukumi Babalu Aye) c. Fed Law: RFRA (So Sherbert) 1. unclear if centrality applies d. Zoning 1. RLUIPA (So Sherbert analysis, includes states under commerce power) Free Speech A. Traitors a. History 1. Holmes Clear and Present Danger Test a. Whether the words used are used (in context) create a clear & present danger of bringing about evils that Congress intended to prevent. Schenck b. It is a matter of proximity and degree. Schenck 2. Brochure instructing to resist the draft = no constitutional protection Schenck 3. A reasonable jury can infer likely incitement from innuendo/context. Froehwerk a. Pro-German WWI newspaper claiming to deplore riots, but hinting otherwise (sending troops to France is murder) could incite. Froehwerk. 4. Jury instructions requiring intent and natural and probable effect okay. Debs a. Socialist rhetoric fine, but if it intended to and will obstruct war effort, no. Debs. b. You intend the reasonably foreseeable effect of your actions. Abrams i. Abrams dissent (Holmes): specific intent required c. L. Hand: incitement requires urging (its your duty/interest) Masses Publishing i. General socialist agitation is not incitement. Masses Publishing Co. ii. Hand technically doing statutory interpretation in Const. Shadow. 5. Legislative finding that speech advocating forceful overthrow is prohibited is presumptively valid (even without clear and present danger). Gitlow. a. Left wing manifesto advocates overthrow. Unprotected, despite unlikeliness. Gitlow. i. Holmes dissent articulates the marketplace of ideas. b. Speech, assembly and association rights not violated by punishment for membership in syndicalist organization, despite defendants internal nonviolence advocacy. Whitney. i. Brandeis civic republicanism in concurrence. 6. Hand (version of clear and present danger) test adopted (plurality): whether gravity of evil, discounted by improbability, justifies such invasion of free speech as necessary to avoid the danger. Dennis. a. Organizing and teaching communist overthrow doctrine not a real threat. Dennis b. Black Letter Law 1. Test: law may prohibit advocacy that (Brandenburg) a. Intends (directed to inciting) to produce imminent lawless actions (Brandenburg) b. Likely to incite or produce such action. (Brandenburg) 2. Other routes: material support of terrorism (the state finds others ways!)

3. Notes say unclear if it is Clear and Present Danger test or not, debatable. So paternity shaping is unclear. Test question: might consider some background cases and how they might play in? Brandenburg does cite Dennis (but isnt exactly the Hand test). B. Fists (Fighting Words) a. Although belief not regulable, actions that incite are. Cantwell 1. But the first amendment does offer some protection for speech/religion actions. Cantwell 2. JW denouncing Catholics/phonograph, quit when ppl got angry = protected. Cantwell b. Fighting words are not protected by the First Amendment. Chaplinsky 1. Fighting words: his words will cause average addressee to fight (Murphy) Chaplinsky 2. An exception to the Brandenburg test (intends/likely to incite). 3. Chaplinsky model (some speech not under 1st Amendment Umbrella (chipped away since) a. Lewd/Obscene/Profane b. Libel i. Undermined by Collins undermining of Beauharnais group libel protection ii. Undermined by NY Times v Sullivan public officials c. Insults/Fighting Words i. Insults inherently injurious (undermined in Cohen) ii. Fighting word incite immediate breach of peace. d. See p. 8 for discussion of Brandeis/Holmes perspective on each of these. c. Fighting words exception to First Amendment protection is limited to statements directed to the person of the hearer, not generally to the world at large. Cohen. 1. Fuck the draft jacket in courthouse not fighting words. Cohen. 2. Considering the context of the courthouse not workable. Cohen. C. Racists (Hecklers vetoes) a. Definition: Hecklers vetoes similar to fighting words: speech provokes unsympathetic listeners to violence or threats of violence, but different for two respects. 1. Fighting words offend b/c of form they take, whereas hostile audience cases arise when audience is provoked by the form of the message or the message itself. a. Doctrine: Fighting words = no protection, incitement = clear & present danger test (intent/immanence/likeliness Brandenburg) b. Exception: content based restrictions (RAV) i. Unless relevant to proscribable conduct (e.g. degree) or (RAV) ii. Unless done for 2ndary effects (discrimination in workplace, treason) RAV 2. Hostile audience decisions address the problem through balancing, not categorization. b. Background Cases 1. Anti-semitic/anti-communist preachers political message protected. Terminiello 2. If speakers activities produce imminent danger of uncontrolled violence by onlookers or addressees, the police may intervene. Terminiello a. Never overturned, but court has been less solicitous of hecklers vetoes afterward. 3. Group libel is not protected. Beauharnais a. Not followed, but never overturned. (See Collin v Smith) c. Modern Cases 1. (Facially) Cant charge/deny permit for costs of policing/protecting protesters. Forsyth City 2. Procedural safeguards (appeals for injunctions) for prior-restraint important. Skokie 3. Cant enjoin hate-speech marchers from demonstrating. Skokie a. e.g. cant ban swastikas. Skokie b. Cant force hate marchers to not wear military uniforms, to not disseminate hate speech materials or to obtain insurance. Collin v Smith (certiorari denied) i. Blackmun dissent: should resolve tension with Beauharnais (if the provision saying hate material couldnt be disseminated is unconstitutional, this seems at odds with Beauharnais which says you can prohibit group libel)

4. No content based restrictions: even if fighting words. RAV a. Cross burning ban when it will alarm based on race, color, religion unconstitutional content based restriction. RAV i. Scalia: also viewpoint discrimination. Cant trash Catholic people but can trash anti-catholic people. b. Exception: Cant discriminate between kinds of fighting words except for ways that are relevant to proscribable conduct. RAV i. When the basis for the content discrimination consistent entirely of the very reason the entire class of speech at issue is proscribable. ii. e.g. Degree is okay (obscene v very obscene) c. Exception: Secondary Effects (not proscribing b/c of content, but because of secondary effects (sex discrimination in the workplace, treason) i. With intent to intimidate is okay. Virginia v Black 1. Could be characterized as relevant to proscribable conduct. 5. Prima facie rule that cross burning intends to intimidate = unconstitutional . Black d. Doctrinal Summary: 1. Incitement gets First Amendment protection (clear and present danger test) 2. No hecklers veto (so perhaps group Libel is okay, not outside first amendment) 3. Fighting words get no first amendment protection. a. Unless there is content based prohibitions (not relevant to proscribable conduct or about secondary effects) D. Flacks (libel) a. Background: Libel not a part of the first Amendment 1. Group libel is outside first amendment protection Beauharnais a. Criticized in the modern realm for its chilling effects. Beauharnais b. Not followed (see Collin v Smith), just never overturned. b. Modern: 1. If libel is of a public official, must be false and clear/convincing malice. Sullivan a. Actual Malice = (term of art) Knowingly false or reckless disregard (negligence insufficient) Sullivan i. Not the normal hatred/ill will stuff associated with malice. 2. The public official rule extends to public figures. Curtis v Butts; AP v Walker. a. (University Football coach/athletic director (Curtis) former general (Walker) are public figures). 3. Private persons dont have to meet New York Times actual malice standard. Gertz a. Lawyer wasnt a public figure. Gertz. b. As long as states dont impose liability without fault, they may define standard of liability for publishers/broadcasters of defamatory falsehoods injurious to private individuals. Gertz. c. Just participating in some community and professional affairs doesnt necessarily make someone a public official. Gertz i. Remains unclear when it happens to you (parents of kidnapped). 4. No constitutional right for journalists to be shielded from subpoenas. Branzburg a. Wanted to force government to show they possessed information relevant to a crime and that the information was unavailable elsewhere. Nope. Branzburg b. Govt shows convincinglysubstantial relation between the information sought and a subject of overriding and compelling state interest. Branzburg. c. Powell Concurrence: Good faith questions asked by grand juries are not shielded. Branzburg i. Meaning official harassment of press, not for law enforcement not ok. ii. Lower courts have followed the tenor of the concurrence.

E. Hacks a. Money is a means of speech, limiting independent expenditures unconstitutional. Buckley 1. But must not express, relative to a clearly defined candidate. Buckley a. Coordinated, clearly advocating for candidate, not okay. McConnell v FEC b. BUT: an ad is express advocacy only if ad is susceptible to no reasonable interpretation other than an appeal to vote for or against a certain candidate. Wisconsin Right to Life i. Objective test, not intent. ii. If it can be seen as an issue ad, its okay. Wisconsin Right to Life 2. But contribution limits are permissible. Buckley a. This doesnt prohibit speech, just limits intensity of endorsement. 3. Can spend as much as you want on your own campaign. Buckley b. Disclosure laws re: campaign contribution information/expenditures may be justified by substantial government interests 1. e.g.: enhancement of voter knowledge, deterrence of corruption, and enforcement of contribution limitations. c. Soft money limits are constitutional. McConnell v FEC 1. (Groups coordinating with candidates for candidates purpose). McConnell v FEC d. Corporations get free speech protections. Citizens United e. Rule prohibiting judicial candidates from announcing views on disputed legal and political views is unconstitutional. Republican Party of Minnesota v White 1. Content based and core political speech. Gets heightened scrutiny. White. a. Judge rule poorly tailored to impartial judiciary. White. f. Doctrine: So, burdens to political speech get heightened scrutiny. 1. But contribution limits, express advocacy rule, survive scrutiny. 2. Limits to own/corporate expenditures, judges expressing views, dont survive scrutiny. g. QUESTION for MERRY: do corporations just follow the same rules as individuals? Could the Hillary video be seen as anything other than candidate advocacy? Asdf F. Sex, Sex, Sex (Obscenity) a. Background 1. Obscenity gets no FA protection, is utterly without redeeming social value. Roth a. Remember Chaplinsky gave categories outside 1st amendment, the obscene. 2. Roth (mails obscene book) defines obscenity: Average person, contemporary community standards, dominant theme of the material taken as a whole appears to prurient interest. b. Modern Cases 1. Miller (sexually offensive material thrust on unwanting) defines obscenity: a. Appeals to the prurient interest in sex, using a community standard b. Is patently offensive and an affront to contemporary community standards; and c. Lacks serious value (literary, artistic, political or scientific), using a national reasonable person standard. 2. Obscene films not constitutionally immune from state regulation of places of public accommodation b/c they are exhibited for consenting adults only. Paris Adult Theatres. a. Here, the externalities are secondary (seedy neighborhood) v primary (Skokie) 3. Ordinance defines (and limits?) pornography as sexually explicit, subordinating women. Held: unconstitutional viewpoint discrimination (Eastebrook). Hudnut a. If it were content discrimination (ban all porn) we would look then to compelling interest (equality?) and narrowing tailoring. i. But viewpoint is thought control. Cant do that. b. This is different than obscenity, which excludes literary, artistic, political and scientific value.

4. Communications Decency Act of 1996 (anyone who knowingly sends content that is obscene or indecent to a minor (under 18) is guilty of a crime. Unconstitutional. Reno a. Not narrowly tailored. Reno. 5. So, Child Online Protection Act bans obscene material for children, includes societal value prong (community standards to indentify harmful to minors), facially upheld by plurality b/c of community standards prong. Ashcroft I. a. Concurrence say should be national standard, so the puritans dont rule the day. b. As long as you have societal value and prurient interest prongs okay. Ashcroft c. But, COPA struck down as applied because it is not the least restrictive means of preventing access. Ashcroft II. i. Irony is that less restrictive (filters) are a private solution. 6. Getting hard to imagine an obscenity law that will be upheld (Ron, at least on the web). Trend is away from it. G. Kids (and a Bong) (School Speech) a. Speech allowed as long as it doesnt materially or substantially interfere with requirements of appropriate discipline (or infringe on the rights of others). Time, place, manner. Tinker 1. Anti-Vietnam armbands dont materially/substantially interfere. Tinker. b. (High) School can edit school newspaper. Kuhlmeier 1. Newspapers are part of the curriculum, up to their control. Kuhlmeier. 2. School doesnt have to sponsor papers, theater, etc. 3. (Ron note) this was a newspaper produced from a journalism class, probably not worthy grounds for distinguishing, but possibly. c. In school, can limit speech that may be reasonably regarded as promoting drug use (Bong Hits 4 Jesus). Frederick 1. Govt interest importantperhaps compellingin deterring drug use in school children. Frederick. 2. Here, not treated as (protected) political speech, so Tinker didnt apply. 3. Feldman: if an ironic political comment, Tinker should have applies and was thus overruled. (Feldman is wrong, though; it wasnt). a. Meaning, viewpoint discrimination is allowed! (At least re: drug advocacy). d. Doctrine 1. Is it (he must mean political) speech? Frederick. 2. If yes, apply Tinker. e. Question for Merry: is that right? H. Flunkies a. Fairness doctrine for (TV/radio) broadcast is constitutional. Red Lion Broadcasting. 1. The right of broadcast audience trumps the rights of broadcaster. Red Lion 2. The doctrine is a condition based on licensing limited frequencies. Red Lion 3. Consider possible implications for net neutrality (infrastructure builders must subsidize equality, vouchers). b. No editorializing if taking federal $ = unconstitutional (content-based). League of Women 1. Lesser review 4 subsidies (substl. interest, narrow tailor). League of Women Voters. 2. Distinguishes Red Lion b/c of limited frequencies/scarcity. League of Women Voters. a. Treats Red Lion as outlier, govt. doesnt have to level playing field. c. The government can decide what kind of speech it wants to make. Rust v Sullivan. 1. May encourage certain activities and not others, and in doing so, prohibit those in funded programs from giving certain kinds of information to program beneficiaries. Rust a. (e.g. Title X, Abortion counseling restriction). Rust b. In other words, it isnt viewpoint discrimination if it is government speech. Rust. 2. But Law prohibiting (government subsidized) legal services attorneys from advocating changes in the law is unconstitutional. Legal Services Corp. v Velazquez.

III.

a. Distinguishes Rust; no one thinks these lawyers speak 4 government. Velazquez i. (Also, distorts role of attorney, judicial function (seems the same as Rust) b. the attempted restriction is designed to insulate the Governments interpretation of the constitution from judicial challenge. Velazquez d. Law conditioning grant funding in part on general standards of decency and respect is facially constitutional. NEA v Finley. 1. Decency and respect merely hortatory, not prohibition. NEA 2. Court (OConnor): if, as applied, is viewpoint discrimination, different story. NEA 3. The ambiguity here is acceptable for conditioning funding. 4. Seems like, except concurring Scalia, no one in NEA thinks this is govt. speech. e. Government Speech Doctrine: 1. Is it government speech? a. If yes, then Rust. b. If no, then Velasquez, lower scrutiny (not described) f. Government Employee Speech 1. Regulating speech of government employees (governments interests as an employer) must be balanced against employees speech interests as a citizen. Pickering. a. School boards interest in limiting teachers opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public. (It doesnt interfere with teaching). Pickering. 2. But when speaking on personal matters (not of public concern qua citizen), like office politics, the court generally is the wrong place to air your concern. Connick v Meyers a. Content, form, and context help decide if public concern. Meyers b. Only one part of Meyers speech was of public concern (pressure to campaign) and weighed against insubordination, the government wins the balancing test. Meyers 3. Speech within the scope/context of employment, commissioned by employer, not protected. (qua employee, rather than citizen) Garcetti. a. Just b/c inside office about office doesnt mean in scope of employment: Ceballos made his statements pursuant to his calendar duty as a deputy. Garcetti b. Even if the work itself is in the public interest. Garcetti c. (Memo suggesting dismissal of prosecution got DA fired, thats OK.) Garcetti. Free Association A. Members Only a. Substantial burdens on association require compelling interests/narrow tailoring. NAACP b. Requiring production of list of NAACP members unconstitutional substantial restraint on free association. NAACP v Alabama. 1. Adversely affects, based on past reprisals = substantial burden. NAACP a. Thus, need a compelling interest. What was the interest? i. to determine whether petitioner was conducting intrastate business in violation of Alabama statute. Unhelpful/weak interest. NAACP c. You have a (qualified) right not to associate. Abood 1. State cant make employees give $ 2 support ideological causes they object to. Abood. 2. State can make employee give to collective bargaining, eliminates free riders. Abood. a. Government can make fruit growers pay their share for marketing. Glickman. i. Must just be rationally related to legitimate government purpose. Glickman. b. Abood only means you cant be compelled to speak against your beliefs. c. Dissent notes that some fruit growers may be hurt by the marketing, and no free rider problem since the fruit is distinguishable. Glickman. 3. But if the government is speaking (taxing beef growers, (for beef, its whats for dinner), no compelled subsidy analysis. Just plan ole government speech. Johanns. B. Haters

a. Forcing members into groups (like the Jaycees) infringes on associational rights. Jaycees 1. Justified if a compelling state interest, unrelated to suppression of ideas that cannot be achieved through means significantly less restrictive. Here, justified. Jacyees. a. Compelling state interest: eradicating gender discrimination. b. Statute is facially neutral, requires no change to Jaycees creed of promoting the interests of young men, and then can exclude based on ideology. Jaycees. c. Inconsistent to claim a problem: woman can already join, just not vote. i. Feldman: this just helped figure out their express interests. 2. Boy Scouts expressive interests override NJ nondiscrimination interests. Boy Scouts a. Boy Scouts expressive goals morally straight and clean, do not want to promote homosexual behavior as legitimate. Boy Scouts v Dale i. Despite internal inconsistencies, Boy Scouts get to say what they are about. ii. They also get to decide if their interests will be substantially harmed. b. Implication: be explicit about your exclusions (perverse) and you will win. 3. Irish Parade can exclude Gay/Bisexual Group. Hurley v Irish American GLIB a. Parades (public accommodation) associational freedoms trump GLIBs expressive interest. GLIB. i. People would attribute a message to parade that parade doesnt want. b. Clear, expressive conduct (GLIB message) is grounds to exclude you. 4. Solomon amendment requiring universities receiving federal funds to allow the military to recruit on their campuses is constitutional. Rumsfeld v. FAIR a. No right to exclude because (mostly just) conduct regulated, not speech. FAIR b. Can speak out against discrimination all you want. c. Seems to contradict Dale, avoid the association question altogether by making it about speech (latter phrase is my interpretation). i. Maybe because expressive purpose is part of the test! b. Freedom of Expressive Association Test 1. Is the First Amendment Implicated? 2. Is there state action? 3. Is there expressive purpose? 4. Is there a compelling state interest/less restrictive means? IV. Establishment A. Subsidies I a. New Jersey Reimbursement for busing to Catholic schools held constitutional. Everson. 1. Busing okay because it is neutral, applies to everyone. Everson a. Like police, fire, sewer connections. b. Depends if public buses for education are a public good. (see pg. 27) i. (Schooling, additional private schools, transport to them)? 2. Despite rhetoric: high, impregnable wall between church and state. a. Cant set up church, punish nonacceptance, professions, (non)attendance, tax, govt. cant participate. Everson (still good law, had no precedent). b. Religious instruction during release time at public schools unconstitutional. McCollum 1. Public school buildings used as a subsidy, provides pupils through compulsory public school machinery; unconstitutional McCollum 2. But if students leave school grounds for religious education during break, ok. Zorach c. Lemon Test (still good law, although mostly eclipsed by endorsement) 1. Statute must have a secular purpose 2. Principal or Primary Effect must neither advance nor inhibit religion. a. Unless results are only from aggregation of private choices (Mueller) b. Ergo, Lemon test allows (generally available) Income Tax deduction for educational purposes (even if its spent on mostly religious), is constitutional. Mueller

3. Cant foster excessive government entanglement with religion B. Prayers (in public schools) a. Interdenominational prayer at school, even if opt out allowed, unconstitutional. Engel. 1. Opt out (trying to follow Barnett) insufficient because of establishment clause. b. Devotional bible reading in school, even without comment, unconstitutional. Abington. 1. Even small breaches in neutrality are breaches, may presage a torrent. Abington 2. Study of the bible or religion fine; this is religious activity. c. Nonsectarian graduation prayer, non-attendance ok = unconstitutional. Lee v Weisman 1. Kennedy says offense not enough, but here you are practically compelled. a. Kennedy thinks coercion (broadly defined) must be involved in establishment. d. Student body selecting speaker who solemnizes school football games (on school broadcast equipment) unconstitutional. Santa Fe Independent School District v Doe. 1. Ironic, because student coordinated prayer is more socially coercive. C. Monkeys (Creation and Intelligent Design in Schools) a. Uses the (dying) Lemon test (turns on the secular purpose prong) b. Law banning evolution in school unconstitutional; b/c religious purpose. Epperson 1. Fortas uses an ad suggesting a nonsecular purpose as (weak!) evidence in Epperson. c. Law requiring equal time for creationism unconstitutional b/c religious purpose. Edwards. 1. State argument that academic freedom is secular purpose is incorrect; sociological and legislative history shows its the same fundamentalists pushing this. Edwards. d. Requiring intelligent design w/evolution unconstitutional, religious purpose. Kitzmiller 1. Problem for secular purpose: conflates legislators purpose w/ purpose a. Think, if you pass a murder law for religious reasons, not okay? 2. Judge also uses endorsement test: how would reasonable observer see it. Kitzmiller e. Secular Purpose, like all of Lemon, dying, but on the books, especially for creation cases. D. Plastic Reindeer a. (Park in shopping district) Creche + reindeer, Santa, trees, teddy bear, constitutional. Lynch 1. OConnor concurrence: endorsement should be the test Lynch b. Endorsement Test: Would the reasonable observer think religion is endorsed/ disapproved? 1. Holiday context, more than a nativity, isnt endorsement. Lynch. c. Nativity on courthouse steps is endorsement, unconstitutional. Alleghany County 1. Doesnt have to be proselytizing, coercive (Kennedy dissents to that). Alleghany d. Menorah (w/tree and liberty sign) constitutional. Alleghany County 1. Blackmun, for majority, says menorah is secular (not!) Alleghany County 2. But OConnor says in context, it doesnt endorse. Alleghany County concurrence 3. OConnor thinks pluralism isnt endorsement. Alleghany County e. 3 increasingly complex, surrounding 10 command displays unconstitutional endorsement. McCreary County 1. Following the dilution strategy they imply from Lynch. 2. But the reasonable observer would pay attention to first two displays. McCreary County a. Not purpose analysis, just objective observer. McCreary County 3. Ergo, assume the reasonable observer knows prior displays or relevant history. McCreary f. 6 ft. 10 commandment statue, 40 years in big park around capitol, constitutional. Van Orden 1. Non religious circumstances (fraternal order of eagles, movie publicity stunt) Van Orden 2. Its big and its old. No need to undermine order by disturbing the past. Van Orden v Perry E. Subsidies II: A Funny Thing Happened a. Trying to avoid establishment violation, UVA wont reimburse for religious discussion (could observe/study), held, unconstitutional viewpoint discrimination. Rosenberger 1. Not government speech: created a (Feldman: virtual) limited public forum (general student speech). Rosenberger v Rector of UVA

2. Not establishment violation (discussion, neutral, no one thinks public forum = endorsement) UVA b. But a park, which might be a forum, can keep out a permanent (religious) monument because that could be construed as government speech. Summum. 1. Didnt answer the 10 commandments issue (but presented fractured opinions), pg. 298 c. Doctrine: 1. If it is a limited public forum, establishment clause doesnt apply, free speech does. 2. If it is government speech, the establishment clause does (as does equal protection) a. Maybe not if its an old monument. d. Vouchers; mostly religious schools constitutional b/c aggregation of private choices. Zelman. 1. OConnor joined, so endorsement test must be operative. Zelman 2. The state doesnt give schools money, it gives it to people who do what they want. 3. Until now, tax deductions and school vouchers doctrinally distinguished, despite economic equivalence. e. Washington states refusal to fund theology degree constitutional. Locke v Davey 1. No hostility; can go to Christian school, take bible classes; just not major. Locke a. (Thus, no Lukumi hostility problem) b. Problem: (Feldman) Lukumi was only plurality when discussing legislative history; must then look at the statute, and here they are indistinguishable. i. (Ron) Specious, can still do religious education stuff though. 2. Rhenquist keeps play in the joints (not either impermissible or must be funded). Locke a. This means establishment clause wouldnt forbid such funding, but not required. b. Probably similar play in the joints between RFRA and establishment. c. (Meaning constitutional doctrine re: free exercise and establishment and doctrinal space between the slightly different approach to free exercise under federal law (RFRA) and establishment. F. Philosophy a. Holmes Marketplace of Ideas 1. Basic Idea (found in Abrams dissent) a. We should doubt our premises and let the marketplace of ideas sort this out. i. Time has upset many fighting faiths. 2. Dissent in Abrams (generally) a. If you allow opposition speech, you either think i. It is impotent ii. You dont care about the result iii. You doubt your own power or premises. 3. Pragmatism Generally a. Denies metaphysical realism, looks to beliefs that work b. Pro-scientific method, experimentation, all of life is an experiment i. We only know results. Provision, revisable, theory of the world. c. Probability, a bet, that is why we doubt our premises. d. Critique of pragmatism: i. Self referentially incoherent. ii. Assume that out guesses get better- social darwinism. 4. Dissent in Gitlow a. Every idea is an incitement i. The only different between expression and incitement is enthusiaism. 1. How can he say that the probability of a present result can be measured by its enthusiasm? (an odd indicator of likeliness) b. Paraphrasing Holmes: If in the long run, people buy communism, so bet it, that will be our truth...the only meaning of free speech is that they get to win.

5. Discussion of Application to Chaplinsky Model a. Lewd/obscene/profane (not a source of ideas) b. Libel (not true) c. Insults (make it harder to express ideas) d. Fighting words (violence distorts the market) 6. Discussion of NYT v Sullivan a. Is there a lemon problem here i.e., information asymmetry in the context of false statements? There might end up being a market for false statements i. Other concerns: deterrence of libel, chronology of the news cycle b. Would this holding change in light of greater bias in todays supposedly fair and balanced news sources? Sullivan supports some nudging of the truth. c. Would a more objective world assume a more lenient rule? d. If theres plenty of financial incentive to spin the facts, should we be so forgiving of falsehoods? i. Has the marketplace of ideas failed? e. (Or we might simply say that whatever the majority accepts is truth.) 7. Discussing Hudnut a. Distortions i. But All ideas are context laden (authority figures) ii. Maybe there is no pure propositional content b. Could make equality-porn i. But will nature allow this to prevail? ii. Insofar as this is the case, it undercuts the enterprise of trying to interfere with the subordinating social order. c. OR maybe the speakers (women) are so subordinated that they are like an excluded group facing an oligopoly. i. Porn makes it harder for others to be heard. 8. Random in Tinker a. If we believe in the free marketplace of ideas, public schools are odd 9. A Holmesian defense of obscenity laws a. No propositional content b. Brandeis 1. Brandeis Concurrence in Whitney (with Holmes), groundwork for his civic republicanism a. Says founders thought political discussion was a political duty i. a means to a successful democracy, life ii. Value liberty as an end 1. But says happiness is an end (as in eudaimonia) b. Class Discussion i. Man is a political animal (Aristotle) (zoon politicon) 1. Sacrifice something essential when liberty is abridged or ignored 2. Not just freedom from, but freedom to (liberty of the ancients) ii. You cant be the active citizen without free speech 1. Classically, all citizens govern in a republic (but citizenship is quite limited), but demos is broader (greek; republic is latin) c. Brandeis view is civic republicanism i. A larger number of people participate, everyone participates ii. But in democracy, we could delegate to a political class (representatives) 1. Admire, excoriate, watch. d. For Brandeis, then, the First Amendment enables you to be human i. But Brandeis and anarco-syndicalists all liked small associations, note the curse of bigness (Brandeis coined the labratory of democracy phrase)

1. But Brandeis diverges from anarcho-syndicalists 2. Brandeis thinks the state/republic/polity is the state...not anarchists 3. Needs discourse, needs law e. Here is how we are uniquely human; the archetypal law is the law for free speech, the core of organizing into a polity i. Anarcho-syndicalists dont want laws, any individualism. ii. The difference is that law is inherently oppressive to the latter while liberatory to Brandeis. 1. Upholds the law, facially and as applied 2. Not a free speech absolutist, testified favoring banning advertising. 2. Chaplinsky Class Discussion a. Lewd/Obscene/Profane (not political, doesnt promote republican discourse) b. Libelous (breaches the civility of republican discourse) c. Insulting/Fighting (violates the civil norms of discourse) 3. Red Lion (White) a. Court addresses broadcasters desire to say what they want. i. Rights of viewers are more important. Its about listeners ii. Right of public to receive suitable access iii. Strongest statement by SCOTUS ever that it is about the Brandeisian view 4. NAACP assembly class discussion a. Brandeis civic republicanism (civil association) i. Civic association is a sphere of life that can be defined in opposition to, or at least distinct from, the state ii. State/Civil Society/Individual 1. Post cold-war assumption that civil society is crucial to democracy c. Cultural/Romantic view of first amendment 1. Romantic version of the 1st Amendment: One finds the best life in useful expression of self. 2. Roth Discussion a. Feldman maybe culture has to do with the category of the social i. An end in itself ii. Art, literature, science iii. Not just political, as the only human end iv. Feldman calls this the romantic conception of the first amendment (the cultural justification) v. Sees the value of the individual as culture creating and consuming 3. Barnette Discussion a. We dont want the government engaging in mind control b. Autonomy: to set the law for oneself. c. More importantly to let people form their own judgments rather than forcing them to accept the truth. i. Autonomy outweighs truth