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NON-TRADITIONAL PUBLIC FORUM US POSTAL SERVICE v GREENBURGH CIVIC ASSOCIATION (1981 – 1034) 1034 – NO ACCESS JUST BECAUSE OWNED BY GOVERNMENT. NO HINT.

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Presentation on theme: "NON-TRADITIONAL PUBLIC FORUM US POSTAL SERVICE v GREENBURGH CIVIC ASSOCIATION (1981 – 1034) 1034 – NO ACCESS JUST BECAUSE OWNED BY GOVERNMENT. NO HINT."— Presentation transcript:

1 NON-TRADITIONAL PUBLIC FORUM US POSTAL SERVICE v GREENBURGH CIVIC ASSOCIATION (1981 – 1034) 1034 – NO ACCESS JUST BECAUSE OWNED BY GOVERNMENT. NO HINT OF CONTENT DISCRIMINATION. NOT TPM. GOVERNMENT MAY PRESERVE PROPERTY UNDER ITS CONTROL FOR USE TO WHICH IT IS DEDICATED. TEST IS CONTENT NEUTRAL AND LEGITIMATE STATE PURPOSE.

2 EARLIER CASES - MILITARY BASES, BUSES, JAILS, SCHOOLS AND LIBRARIES = NON TRADITIONAL PUBLIC FORUMS PEA v PLEA (1983 – 1035) – TPF DEFINITION – CAN’T PROHIBIT ALL COMMUNICATIVE ACTIVITY. COMPELLING IF CONTENT BASED. TPM = INTERMEDIATE – NON-PUBLIC FORUM. REASONABLE AND NOT SUPRESSING PARTICULAR VIEW.

3 – QUASI OR LIMITED PUBLIC FORUM. NONPUBLIC FORUM OPENED FOR EXPRESSIVE ACTIVITY BY THE STATE. CAN BECOME LIKE A TPF IF SO OPENED FN 1 – MAY BE OPEN FOR CERTAIN GROUPS OR SUBJECTS – ENTITIES OF SIMILAR CHARACTER – VIEWPOINT DISTINCTIONS NEVER ALLOWED. SPEAKER ID AND SUBJECT MATTER MAY BE ALLOWED IN NON-PUBLIC AND LIMITED PUBLIC. 5. HERE – STUDENT INTEREST GROUPS AND OFFICIAL BUSINESS. P NEITHER. NOT ON VIEWPOINT, BUT STATUS. REASONABLE IS STANDARD IN NON-PUBLIC

4 BRENNAN + 3 DISSENT VIEWPOINT HERE – NO OTHER GROUP DENIED ACCESS TO MAILBOX SYSTEM. WHEN IS SPEAKER ID OR SUBJECT MATTER DISTINCTIONS ALLOWED (NEVER VIEWPOINT) 1. NEVER IN TPF 2. ALLOWED IN NON-PF (REASONABLE) 3. LIMITED OR DESIGNATED – HOW OPENED TPF – TPM BUT NEVER CONTENT BASED (NO SUBJECT MATTER, SPEAKER ID OR VIEWPOINT)

5 CORNELIUS v NAACP (1985 – 1037) 4 – 3 (NO LEGAL DEFENSE OR POLITICAL ADVOCACY) 1. NOT TPF OR PF BY DESIGNATION. NO LIMITED PF WHERE EVIDENCE TO CONTRARY OR INCONSISTENT PROPERTY USE. THIS WAS CREATED TO LESSEN EXPRESSIVE ACTIVITY – NON PF – REASONABLENESS AND NO VIEWPOINT. OK TO EXCLUDE IF NOT TOPIC WITHIN PURPOSES OR MEMBER OF CLASS FOR WHOSE SPECIAL BENEFIT FORUM WAS CREATED. DISSENT – SHOULD BE LIMITED PF. VIEWPOINT.

6 TPF (STREETS, SIDEWALKS, PARKS) ! LIMITED PF - OPENED GENERALLY (SEE ABOVE) ! INTENT – EVIDENCE (TRIAL LAWYERS) - CONTRACT ! LIMITED PF – OPEN SPECIFICALLY (SUBJECT MATTER OR SPEAKER ID) ! NON PF – REASONABLE AND NO VIEWPOINT

7 US v KOKINDA ( ) (NO SOLICITING) 4 = NON PF KENNEDY = TPF BUT TPM SATISFIED 4 = TPF NON PF 1. NOT TPF SIDEWALK. OPEN TO PUBLIC BUT ONLY FOR POST OFFICE BUSINESS. NOT PUBLIC THROUGH FARE. NOT EXPRESSLY DEDICATED TO EXPRESSIVE ACTIVITY.

8 NON PF = REASONABLE AND NO VIEWPOINT DISCRIMINATION. ALLOWED SOME – LEAFLET, SPEECH AND PICKET – BUT NOT DEDICATED TO SPEECH. THIS INTERFERES WITH BUSINESS OF THE POST OFFICE. KENNEDY EXPRESSIVE ACTIVITY ALLOWED – LIKE TPF. BUT TPM SATISFIED – IN PERSON SOLICITING IS DIFFERENT FROM LITERATURE OR FUTURE $$$ BRENNAN DISTINCTION BETWEEN SIDEWALKS SILLY.

9 2. COLLAPSED LIMITED PF FROM ANALYSIS. COULD BE LESS RESTICTIVE THAN TOTAL BAN TO ACCOMMODATE PO LEGITIMATE INTERESTS. CRITICAL ISSUE FOR LAWYERS - HOW DO YOU CHARACTERIZE SOLICITATION ? MORE LIKE SPEECH OR MORE LIKE SALE OF GOODS ? HARE KRISHNA v LEE (1992 – 1041) 5 – 4 BAN ON DISTRIBUTION OF LITERATURE INVALID

10 6 – 3 BAN ON SOLICITATION AND RECEIPT OF $$$ VALID KODINDA AND LEE, BRENNAN AND MARSHALL RETIRE AND ARE REPLACED BY SOUTER AND THOMAS (THOMAS CHANGES VOTES). 5 – NON PF 4 - TPF 3 – TPF, TPM NOT SATISFIED 1 - TPF BUT SOLICITATION SATISFIED TPM

11 1. REHNQUIST NON PF. NOT HISTORICALLY OR INTENTIONALLY OPENED. REASONABLENESS TEST – CONGESTION, TRAVELLER CONVENIENCE AND FRAUD PREVENTION SATISFY. 2. O’CONNOR - NON PF BUT BAN ON LITERATURE IS UNREASONABLE – COMPATIBLE. 3. KENNEDY - TPF BUT STILL TPM. BAN ON LITERATURE FAILS BUT BAN ON SOLICITATION VALID. REALLY JUST BAN ON IN PERSON RECEIPT OF MONEY. CAN STILL SOLICIT FOR LATER PAYMENT (ENVELOPES) 4. OTHER 3 - TPF AND BOTH FAIL TPM.

12 IS THERE A RIGHT TO BEG ON THE SIDEWALK ? IF YOU SAY NO SOLICITATION, IS THAT A REGULATION (TPM- INTERMEDIATE) OR A BAN (COMPELLING) ? ARKANSAS v FORBES (1998 – 1046) PUBLIC STATION/PUBLIC DEBATE BUT STILL NON PF. NO OPEN MIKE – NOT GENERALLY AVAILABLE FOR A CLASS OF PEOPLE. FIRST AMENDMENT RIGHTS OF EDITORIAL STAFF.

13 US v AMERICAN LIBRARIES ASSOCIATION ( ) FEDS REQUIRE BLOCKING SOFTWARE ON COMPUTERS – NO OBSCENITY, CHILD PORNOGRAPHY OR INDECENT MATERIAL HARMFUL TO CHILDREN 4 = NON PF 2 = INTERMEDIATE SATISFIED 3 = CONTENT BASED, COMPELLING

14 1. REHNQUIST + 3 – NON PF. DIDN’T BUY COMPUTERS TO CREATE PF – NOT ENCOURAGING DIVERSITY OF VIEWS. SUITABLE AND WORTHWHILE. ALREADY EXCLUDE THESE MATERIALS FROM THE PRINT COLLECTION. 2. KENNEDY (BREYER) - INTERMEDIATE SCRUTINY. SMALL BURDEN ON FA RIGHTS – DISCRETION IN LIBRARY ON SELECTIVITY. 3. STEVENS (SOUTER AND GINSBURG) - CONTENT BASED RESTRICTION ON MATERIALS FOR ADULTS. NOT LIKE ACQUISITION – ALREADY THERE. NOT MONEY OR SPACE. COMPELLING TEST

15 SHOULDN’T SAY “OK EXCEPT” – DRAFT IN POSITIVE FOR DESIGNATED OR LIMITED FORUM. NEW BUILDING – LAW ONLY – NON PF UB ONLY -- LIMITED PF – OPENED SPECIFICALLY PUBLIC - LIMITED PF – OPENED GENERALLY NO POSTED LEAFLETS OR FLYERS ? WHAT FA RIGHTS COME IN WITH YOU ? HANDOUT FA 5

16 RELIGIOUS SPEECH ON PUBLIC PROPERTY WIDMAR v VINCENT (1981 – 1051) UMKC ALLOWED FACILITIES FOR USE OF STUDENT GROUPS BUT DENIED IF RELIGIOUS WORSHIP OR DISCUSSION. 1. UNIVERSITY CREATED A FORUM GENERALLY OPEN FOR STUDENT GROUPS. MUST JUSTIFY EXCLUSION EVEN IF DIDN’T HAVE TO OPEN IN THE FIRST PLACE CONTENT BASED – COMPELLING. CAN BE TPM BUT ONCE GENERALLY OPEN NO CONTENT BASE

17 STEVENS (C IN JUDGEMENT) NOT TPF – DECISIONS BY EDUCATORS NOT JUDGES – NOT COMPELLING TEST. BUT STILL CAN’T BE ON VIEWPOINT WHITE (D) ESTABLISHMENT CLAUSE CAN A GOOD LAWYER MAKE ANYTHING VIEWPOINT ? ISN’T THIS SUBJECT MATTER ? IS THIS ON DRAFTING ?

18 LAMB’S CHAPEL v CENTER MORICHES (1993 – 1052) AFTER HOURS USE OF SCHOOL FACILITIES FOR VARIOUS PURPOSES BUT NOT RELIGIOUS PURPOSES OR GROUPS. NEITHER TPF NOR DESIGNATED BUT NON-RELIGIOUS PERSPECTIVE OR NON-RELIGIOUS GROUP ALLOWED. THIS IS VIEWPOINT NOT SUBJECT MATTER. NOT ESTABLISHMENT CLAUSE VIOLATION. ROSENBERGER v UNIV OF VIRGINIA (1995 – 1093) INVALID WHEN FUNDING ALL STUDENT PAPERS EXCEPT RELIGIOUS. VIEWPOINT.

19 GOOD NEWS CHURCH v MILFORD CENTRAL SCHOOL (2004 – 1053) SCHOOL FACILITIES OPEN AFTER HOURS – ALLOWED RELIGIOUS POINT OF VIEW BUT BANNED RELIGIOUS INSTRUCTION. VIEWPOINT - MORALS AND CHARACTER OK BUT RELIGIOUS PERSPECTIVE NOT. NOT ESTABLISHMENT CLAUSE VIOLATION. DRAFTING – SHOULDN’T BE EVERYONE EXCEPT …..

20 CAPITOL SQUARE REVIEW BOARD v PINETTE (1995 – 1054)(NO KKK LATIN CROSS) TPF BY STATUTE. BIAS ON BASIS OF RELIGION NOT ALLOWED. CONTENT BASED NOT ALLOWED IN TPF. PLEASANT GROVE CITY v SUMMUM (2009 – 1054) 1. CITY – OTHER SYMBOLS RELATED TO CITY’S HISTORY OR DONATED BY GROUPS WITH LONGSTANDING COMMUNITY TIES

21 2. PARK IS TPF BUT PERMANENT MONUMENT NOT SUBJECT TO PF ANALYSIS. NOT GOVERNMENT AS REGULATOR. GOVERNMENT SPEAKING RATHER THAN PROVIDING A FORUM FOR PRIVATE SPEAKERS. 3. GOVERNMENT SELECTIVITY ALLOWED HERE. 4. PINETTE WAS TEMPORARY AND ALLOWED OTHERS. DIFFERENCE HERE ON PERMANENT. GOVERNMENT SPEAKING FOR ITSELF, NOT REGULATING. WHAT ARE THE RESTRICTIONS ON GOVERNMENT SPEAKING ?

22 PRIVATE PROPERTY RIGHTS REALLY ISSUE OF STATE ACTION SOME MALLS PUBLICLY OWNED, SOME PRIVATE AMALGAMATED FOODS v LOGAN VALLEY ( ) MALL LIKE COMPANY TOWN IN MARSH v ALABAMA. TPF. PEACEFUL UNION PICKETING CAN NOT BE SUPPRESSED.

23 HUDGENS v NLRB (1976 – 1057) LOGAN VALLEY OVERRULED – PRIVATE PROPERTY – NO RIGHT TO BE THERE – NO FA ACCESS UNLESS PRIVATE UNDER STATE ACTION DOCTRINE. GOVERNMENT AS EDUCATOR TINKER v DES MOINES ( ) 1. CLOSE TO PURE SPEECH. NOT DISRUPTIVE. SILENT, PASSIVE. FEAR OF DISTURBANCE NOT ENOUGH STD – CAN’T AVOID UNPLEASANT VIEWS. NO INTERFERENCE WITH DISCIPLINE

24 3. ALLOWED OTHER SYMBOLS – SINGLED OUT THIS ONE. BLACK (D) QUESTION IS WHO CONTROLS THE SCHOOLS ? FA NOT RIGHT TO TALK WHENEVER YOU PLEASE WHAT DOES IT MEAN TO HAVE SUSPENSION REVERSED YEARS LATER ? FINALLY GAVE RIGHTS TO KIDS or BEGINNING OF INMATES RUNNING THE ASYLUM ?

25 BOARD OF EDUCATION v PICO ( ) WHAT IS THE HOLDING OF THE CASE ? RESULT ? BRENNAN OPTIONAL IN LIBRARY – NOT CURRICULUM OR COMPULSORY CLASSROOM. NOT ACQUISITION, BUT REMOVAL. 2. TENSIONS – SCHOOL BOARD’S INCULCATING VALUES v APPLICABLE FA CONSIDERATIONS (STUDENTS, PARENTS, TEACHERS)

26 3. FA MORE IMPLICATED IN REMOVAL. STUDENTS RIGHT TO RECEIVE INFORMATION. TRANSMIT VALUES IN CURRICULUM 4. BOARD HAS DISCRETION IN DETERMING COMPOSTION OF THE LIBRARY. BUT NO IN NARROWLY PARTISAN OR POLITICAL MANNER. WHITE BOARD COULDN’T SUPPRESS BLACK AUTHORS. DEPENDS ON BOARD’S MOTIVATION – CAN’T INTEND TO DENY ACCESS TO IDEAS. 5. ALL CONCEDE OK IF MOTIVATION WAS PERVASIVELY VULGAR OR BASED ON EDUCATIONAL SUITABILITY

27 – HOLDING. GENUINE ISSUE OF MATERIAL FACT ON BOARD’S INTENTIONS – SUMMARY JUDGMENT INAPPROPRIATE. BLACKMUN (C) 1061 – COMPETING PRINCIPLES. RIGHT TO RECEIVE CONCEPT CRAZY BUT CAN’T REMOVE TO RESTRICT ACCESS TO IDEAS OR SOCIAL PERSPECITVES. WHITE (C) NO NEED TO DO FA ANALYSIS – UNRESOLVED ISSUE OF FACT AS TO BOARD’S INTENT

28 BURGER + 3 TO INCULCATE VALUES, BOARD MUST MAKE DECISIONS ON CONTENT. PARENTS, TEACHERS AND BOARD ARE PRIMARY = IF DON’T LIKE WHAT BOARD DOES, VOTE THEM OUT. GOVERNMENT AS EDUCATOR LESS CONSTITUTIONAL CONCERNS THAN GOVERNMENT AS REGULATOR. BUYING v REMOVING; CURRICULUM v LIBRARY – MAKE NO SENSE. INTENT OF BOARD IRRELEVANT. NO RIGHT TO RECEIVE INFORMATION IN JHS AND HS

29 BETHEL SCHOOL DISTRICT v FRASER (1986 – 1063) SPEECH AT 1063 FN 2 1. NO VIEWPOINT HERE. VALID FOR SCHOOL TO SAY VULGAR SPEECH AND LEWD CONDUCT IS INCONSISTENT WITH FUNDAMENTAL VALUES OF PUBLIC EDUCATION. DISSENT NO ACTUAL DISRUPTION – NO NOTICE TO FRAZER.

30 HAZELWOOD SCHOOL DISTRICT v KUHLMEIER ( ) 1. NOT TPF OR DESIGNATED FORUM. TEST THEREFORE LEGITMATE AND RATIONAL. 2. IMPRIMATUR OF SCHOOL AND PART OF TEACHER/LEARNING EXPERIENCE. SOME MATERIAL NOT SUITABLE TO THIS AGE LEVEL. 3. STUDENT AND PARENT ANONYMITY NOT VALUED IN EITHER STORY. BRENNAN (D) NO CENSORSHIP IF NO DISRUPTION

31 TINKER – SCHOOL SILENCING STUDENT’S POLITICAL EXPRESSION THAT HAPPENED ON SCHOOL GROUNDS. NEWSPAPERS AND PLAYS - $$ + FACULTY ADVISORS = LIKE PART OF CURRICULUM. WHAT ABOUT LAW REVIEW OR FORUM ? DO YOU REPRESENT FRASER OR KUHLMEIER ? MORSE v FREDERICK ( ) WHAT IS THE MOST CRITICAL TRIAL TACTIC DECISION THE LAWYERS FACE BEFORE TRIAL ?

32 WHAT IS MEANING OF SIGN “BONG HITS FOR JESUS” ? POLITICAL, RELIGIOUS, PRO-DRUG -- VIEWPOINT NO MESSAGE – NOT ADVOCACY, NOT ILLEGAL, NO SCHOOL RULES VIOLATED. 1. DETERRING DRUG USE BY CHILDREN IS AN IMPORTANT AND POSSIBLY COMPELLING PURPOSE 2. NOT SIMPLY OFFENSIVE HERE – REAL DANGER – PROMOTING DRUG USE.

33 ALITO (KENNEDY) (C) CAN’T RESTRICT STUDENTS POLITICAL, RELIGIOUS OR SOCIAL SPEECH. THIS IS DRUG USE. THOMAS (C) STUDENTS HAVE NO FA RIGHTS. STEVENS (SOUTER AND GINSBURG) (D) 1. FA PROTECTS IF NO VIOLATION OF RULES AND NOT ILLEGAL OR HARMFUL. VIEWPOINT. NONSENSE MESSAGE. NO OBSERVER CHANGING HIS BEHAVIOR

34 2014 RULES – VALID INVALID 1. REG. VULGAR, DRUGS 1. VIEWPOINT 2. EDUCATIONAL 2. SUPPRESS SUITABILITY, RESOURSES IDEAS 3. DISRUPTION 3. RESTRICT STUDENT 4. ANONIMITY POLITICAL, RELIGIOUS SCHOOL HAS MORE RIGHTS ON CURRICULUM AND LIBRARY ACQUISITION THAN LIBRARY REMOVAL FA INTERESTS = STUDENTS, PARENTS, TEACHERS AND SCHOOL (ADMINISTRATION AND BOARD).

35 GOVERNMENT AS EMPLOYER (PUBLIC EMPLOYEE SPEECH ) PRIVATE EMPLOYER – USUALLY NO RIGHTS UNLESS GIVEN BY CONTRACT OR STATUTE. BALANCE EMPLOYEE’S FA INTEREST AS CITIZEN TO COMMENT v STATE AS EMPLOYER NEEDING EFFICIENCY USUAL FACT PATTERN – SOMEONE FIRED FOR SPEAKING IN SOME FORM

36 FACTORS: 1. PUBLIC CONCERN (POLITICAL, SOCIAL) v INTERNAL OFFICE ISSUE 2. WHAT IS THE SCOPE OF OFFICIAL DUTIES (WITHIN OFFICIAL DUTIES = NOT PROTECTED) ? 3. WHERE DOES SPEECH OCCUR – IN OFFICE OR OUT ? 4. DOES THE SPEECH IMPEDE JOB PERFORMANCE ?

37 PROTECTED 1. SCHOOL FUNDING (PICKERING) 2. ANTI-PRESIDENT (RONKIN) 3. FEDERAL HONORARIUM (NAT’AL TREASURY) NON-PROTECTED 1. ATTORNEY TRANSFER POLICY (CONNICK) 2. NURSE TRAINING (WATERS) 3. COP IN PORNO FILM IN UNIFORM (SAN DIEGO) 4. AFFIDAVIT MISREPRESENTATIONS (GARCETTI)

38 PICKERING v BOARD OF EDUCATION (1968 – 1070) 1. CAN’T BE FIRED FOR COMMENTS ON MATTERS OF PUBLIC INTEREST. BALANCE IN TEACHER’S FAVOR HERE – PUBLIC DEBATE WITH NO IMPACT ON JOB PERFORMANCE. CONNICK v MYERS (1983 – 1071) IF NOT MATTER OF PUBLIC CONCERN (POLITICAL SOCIAL OR OTHER CONCERNS TO COMMUNITY), NO BALANCING. HERE – INTERNAL OFFICE POLICY – INSUBORDINATION AND BREAKDOWN OF MORALE. FORCED TO SUPPORT CAMPAIGN IS PUBLIC ISSUE.

39 RONKIN v MCPHERSON (1987 – 1074) CAN’T FIRE FOR ANTI-REAGAN POSITION. PUBLIC ISSUE AND NOT WIDELY DISSEMINATED. WATERS v CHURCHILL (1994 – 1075) SUPERVISOR OVERHEARD NURSE COMPLAINING ABOUT TRAINING. EMPLOYER REASONABLY BELIEVED PRIVATE CONCERN SO FIRING VALID. SD v ROE ( 2004 – 1078) – FIRING UPHELD. COP AS COP IN UNIFORM IN PORN VIDEO.

40 GARCETTI v CEBALLOS (2005 – 1078) PUBLIC EMPLOYEES MAKING STATEMENTS PURSUANT TO OFFICIAL DUTIES ARE NOT CONSTITUTIONALLY INSULATED FROM EMPLOYER DISCIPLINE. STEVENS + 2 (D) LAWYER’S OBLIGATION TO SPEAK SHOULD BE MORE PROTECTED. STATUTES PROTECTING WHISTLE BLOWERS NOT ENOUGH. TENNESSEE AA v BRENTWOOD ACAD (2007 – 1080) RESTRICTIONS ON RECRUITING JHS VALID.

41 GOVERNMENT AS PATRON SUBSIDIZED SPEECH PENALTY (0LD = UNCON CONDITION) INVALID 1. LOYALTY OATH FOR TAX BENEFIT 2. PUBLIC TV CAN’T EDITORIALIZE 3. ROSENBERGER – PRINTING 4. RESTRICTIONS ON LEGAL AID LAWYERS NON-SUBSIDATION VALID 1. NO TAX DEDUCTION FOR LOBBYING 2. NO FUNDING FOR ABORTION ADVICE 3. RESTRICTION ON NEA GRANTS 4. LIBRARY BLOCKING SOFTWARE

42 1. GOVERNMENT SPEAKING A. DIRECTLY OR B. HIRING PRIVATE NONSUBSIDZATION 2. GOVERNMENT CREATING FORUM FOR PRIVATE INDIVIDUALS WITH DIVERSE VIEWS PENALTY IF VIEWPOINT MOST TIMES

43 SPEISER v RANDALL (1958 – 1087) 1. GOVERNMENT BENEFITS CAN’T BE CONDITIONED OR RELINQUISHMENT OF FA RIGHTS. THIS IS PENALIZING SPEECH. 2. TENSION BETWEEN GOVERNMENT DIDN’T HAVE TO PROVIDE v PENALTY ON CONSTITUTIONAL RIGHTS. REGAN v TAXATION WITHOUT REPRESENTATION (1983 – 1088) 1. TAX DEDUCTION IS REAL FINANCIAL BENEFIT

44 2. CAN’T DENY BENEFIT BECAUSE RECIPIENT IS EXERCISING CONSTITUTIONAL RIGHT. HERE JUST REFUSING TO SUBSIDIZE. 3. NOT VIEWPOINT. If CONTENT AT ALL, SUBJECT MATTER AND THAT IS OK. FCC v LEAGUE OF WOMEN’S VOTERS (1984 – 1089) 1. PENALTY, NOT MERE NONSUBSIDIZATION. 2. IF PBS GETS 1% FROM GOVERNMENT, CAN’T EDITORIALIZE. CAN’T USE PRIVATE FUNDS EITHER. IMPERMISSIBLE CONTENT BASED REGULATION.

45 REHNQUIST + 3 (D) PERMISSIBLE NONSUBSIDY. DON’T WANT SPECIAL INTERESTS OR GOVERNMENT TO DOMINATE. RUST v SULLIVAN (1991 – 1091) 1. CAN ENCOURAGE CERTAIN ACTIVITIES WITHOUT FUNDING ALTERNATIVE. CAN STOP GRANTEE FROM WORKING OUTSIDE SCOPE OF PROJECT AND LIMITS OF PROGRAM. 2. NOT FORBIDEN FROM ABORTION – JUST KEEP SEPARATE AND DISTINCT. PARTICULAR PROJECT

46 BLACKMUN + 2 FIRST CASE ALLOWING VIEWPOINT DISCRIMINATION. ALL FAMILY PLANNING ALTERNATIVES EXCEPT ABORTION. ROSENBERGER v UNIVERSITY OF VIRGINIA (1995 – 1093) 1. THIS IS VIEWPOINT DISCRIMINATION DIRECTED AT SPEECH WITHIN THE FORUM’S LIMITATIONS. DOESN’T BAN RELIGIOUS AS A SUBJECT MATTER BUT RELIGIOUS EDITORIAL VIEWPOINTS.

47 – IN RUST, PUBLIC FUNDS TO PRIVATE ENTITIES TO CONVEY A GOVERNMENTAL MESSAGE. HERE UNIVERSITY NOT SPEAKING BUT PROVIDING FUNDS FOR DIVERSITY OF VIEWS FROM PRIVATE SPEAKERS. SOUTER + 3 (D) SUBJECT MATTER, NOT VIEWPOINT. ALL RELIGIOUS GROUPS BANNED. USSC ASSUMING RELIGIOUS AND ANTI-RELIGIOUS ALWAYS PROVIDE AN OPPOSING VIEWPOINT ON A SECULAR TOPIC.

48 NEA v FINLEY ( ) – STATUTE. DECENCY AND RESPECT 2. JUST HORTATORY – NO FACIAL INVALIDITY 3. SINCE COMPETITIVE PROCESS, VALID. NOT PUBLIC FORUM. SCALIA AND THOMAS MANDATORY. NOT SUPPRESSION – JUST CHOOSING NOT TO FUND. CAN STILL CREATE THE ART – FN - ART DESCRIBED. VIEWPOINT BUT VALID.

49 SOUTER (D) CLEARLY VIEWPOINT. DENY TO COMMUNIST. LEGAL SERVICES CORP v VELAZQUEZ ( ) 1. VIEWPOINT ALLOWED WHEN GOVERNMENT CONVEYING MESSAGE OR USING PRIVATE SPEAKERS TO CONVEY ITS MESSAGE (RUST). LSC INTENDED TO FACILITATE PRIVATE SPEECH NOT PROMOTE GOVERNMENT MESSAGE (ROSENBERGER). 2. CAN’T IMPINGE ON ATTORNEY REPRESENTATION. NO ALTERNATIVE CHANNELS

50 SCALIA + 3 FEDERAL SPENDING PROGRAM – NO PF. US v AMERICAN LIBRARY ASSOCIATION ( ) 1. 6 – 3 UPHELD CIPA – REQUIRED BLOCKING SOFTWARE. 2. NON PF. FUNDING CAN DEFINE LIMITS AND ENSURE $$ PROPERLY SPENT. LIBRARIES REGULARLY EXCLUDE PORN FROM PRINT COLLECTION. 3. DISSENT – NOT GOVERNMENT SPEECH - PENALTY

51 PROBLEMS OF MODERN MEDIA: EACH MEDIUM UNIQUE - GOVERNMENT AS REGULATOR II PRESS (PRINT MEDIA) PRIOR RESTRAINTS DISFAVORED, BUT SOME ALLOWED AGAINST NON- MEDIA -- PERMITS (TPM) AND INJUNCTIONS (1129 – WALKER – APPEAL;CARROLL – NO EX PARTE). NOW MEDIA – NEAR v MINNESOTA (1931 – 1127) NO PRIOR RESTRAINT FOUNDATIONAL VALUE FROM COMMON LAW FREE SPEECH VALUES – NATIONAL SECURITY AND OBSCENITY EXCEPTIONS

52 CENSORSHIP ESPECIALLY WHEN INVOLVING PUBLIC OFFICIALS – PUBLIC DISCUSSION. NEAR + SULLIVAN = PROTECTION OF PRESS PENTAGON PAPERS (1971 – 1130) GOVERNMENT ARGUES THAT COURTS SHOULD DEFER TO ASSERTION OF NATIONAL SECURITY BY PRESIDENT. INJUNCTION INVALID BLACK AND DOUGLAS ABSOLUTE PROTECTION - PRIOR RESTRAINT, MEDIA

53 STEWART NOT ENOUGH EVIDENCE ON DIRECT AND IMMEDIATE HARM. WHITE BURDEN ON GOVERNMENT TOO BROAD MARSHALL SEPARATION OF POWERS PROBLEM IF USSC IMPOSES RESTRAINTS WHEN CONGRESS REFUSED

54 HARLAN + 2 (D) HIGH OFFICIAL + WITHIN FOREIGN POLICY POWER = DEFER TO PRESIDENT NOTE NO ONE MENTIONS STOLEN. US v PROGRESSIVE (1973 – 1135) ENJOINED MAGAZINE PUBLISHING H BOMB SNEPP v US (1980 – 1137) CIA EMPLOYEE IN VIOLATION OF AGREEMENT.

55 CONSTRUCTIVE TRUST ON PROFITS. AGREEMENT + ACCESS TO CLASSIFIED + IMPORTANT GOVERNMENTAL INTEREST. HAIG v AGEE (1981) REVOKED PASSPORT NEBRASKA PRESS v STUART (1976 – 1137) 1. FREE PRESS v FAIR TRIAL FACTORS – STRONG PRESUMPTION AGAINST PRIOR RESTRAINT.

56 3. LOWER COURT ORDER TOO VAGUE AND BROAD 4. NARROW EXCEPTIONS FOR PRIOR RESTRAINT – GENERAL FAIR TRIAL NOT ENOUGH GENERAL: 1. NEBRASKA ON BROADCASTERS, NOT PARTIES. CAN ORDER GAG ON PARTIES (AND LAWYERS). 2. COURTROOM – CAN BAN TV BUT GENERALLY OPEN TO PRESS UNLESS OVERRING REASONS TO CLOSE COMPLETELY. EVEN IF BOTH PARTIES WANT TO CLOSE.

57 3. NO ABSOLUTE PRIVILEGE FOR NEWSMEN TO WITHHOLD SOURCES FROM GRAND JURY. CAN HAVE USUAL OBJECTIONS (EG ABUSIVE, SCOPE) 4. EXISTENCE OF STATUTE MAY CHANGE MIX OF FACTORS. BROADCAST MEDIA GENERAL RULES IN TERMS OF MEDIA, PRINT GETS MOST RIGHTS – OLDER, NAMED IN CONSTITUTION, NO SCARCITY.

58 MIAMI HERALD v TORNILLO (1974 – 1145) STATE LAW GIVES CANDIDATES EQUAL SPACE RIGHT TO REPLY TO ATTACKS ON THE RECORD. UNANIMOUSLY INVALID. STATE INTERESTS – MONOPOLISTIC NATURE OF PAPERS. NO – RESPONSIBLE PRESS GOOD, BUT NOT CONSTITUTIONALLY MANDATED. DAMPENS DEBATE – CHILLS FA RIGHTS TO NEWSPAPERS. EDITORIAL DISCRETION PART OF FA. PAPER CAN CONTROL ITS OWN CONTENT. FA INTEREST IN MEDIA – PUBLIC, EDITORS, GOV’T.

59 CONGRESS – RADIO – BEFORE 1927 – PRIVATE – A MESS. GIVEN LIMITED NUMBER OF FREQUENCIES (AM ONLY) AND NEED FOR NATIONAL UNIFORMITY. CONGRESS TOOK CONTROL – CREATED “FREE” BROADCAST SYSTEM AND FCC AND LICENSES. NOTE: CAN’T HAVE LICENSE FOR PRESS. TV –ELECTRO- MAGNETIC SPECTRUM (VHF, UHF). RED LION v FCC (1969 – 1264) FAIRNESS DOCTRINE: 1) DUTY TO BROADCAST PUBLIC INTEREST INFO 2) IF BROADCAST ONE SIDE, BROADCAST OTHER AND 3) FREE REPLY IF ATTACK HONESTY AND CHARACTER. ARGUMENT FOR RED LION ?

60 1. SCARCITY OF FREQUENCIES (SPECTRUM SCARCITY). GOVERNMENT CAN TREAT LICENSEES AS FIDUCIARIES AND PROXY FOR GENERAL PUBLIC. RIGHT OF THE LISTENERS, NOT BROADCASTERS, PARAMOUNT IN FA. 2. FREE MARKETPLACE OF IDEAS – DON’T WANT TO ALLOW PRIVATE CENSORSHIP 3. NOT JUST SPECTRUM SCARCITY BUT ECONOMIC REALITIES. FAIRNESS DOCTRINE REPEALED IN 1987.

61 CBS v DEMOCRATIC NATIONAL COMMITTEE (1981 – 1266) WIDE JOURNALSTIC FREEDOM TO BROADCASTERS. OPEN DEBATE BUT NOT A SYSTEM OF “PUBLIC TRUSTEE”. CBS CAN REFUSE ALL EDITORIAL ADS. CBS v FCC ( ) RULE ALLOWING CANDIDATES TO BUY TIME DURING ELECTION PERIOD IS VALID. RIGHTS OF VIEWERS AND LISTENERS PARAMOUNT. CAN CITE SUBSTANTIAL PROGRAMMING DISRUPTION. CONGRESS GIVING ACCESS RIGHTS – NOT DIRECT FROM CONSTITUTION

62 CABLE – TALL ANTENNA AND PHYSICAL CABLE – CATV SATELLITE INTERNET TURNER AND TRANSPONDERS TURNER BROADCASTING v FCC ( ) CHALLENGE TO MUST CARRY RULES – LOCAL BROADCAST STATIONS CARRIED WITHOUT CHARGE TO CONSUMERS

63 MIAMI HERALD – RIGHTS OF NEWSPAPER EDS. RED LION – RIGHTS OF TV BROADCASTERS WHERE DO CABLE OPERATORS FIT ? ELECTROMAGNETIC SPECTRUM v FIBEROPTICS – NO SPECTRUM SCARCITY, BUT STILL NEED GOVERNMENT FOR RIGHT OF WAY ON POLES 1. REFUSED TO RECONSIDER RED LION SCARCITY RATIONALE BUT DIDN’T APPLY DIRECTLY TO CABLE. 2. NOT CONTENT BASED – NO RULE ON CONTENT OF THE PROGRAMMING.

64 3. P – LIKE TORNILLO = INFRINGES EDITORIAL DISCRETION ON CONTENT. NO – TORNILLO WAS CONTENT BASED BECAUSE TRIGGERED BY NEWSPAPER’S MESSAGE. NOT HERE. ALSO – NO CONFUSION ON SPEAKER ID – DON’T THINK STATION SPEAKS FOR CABLE OPERATOR. CABLE CONTROLS VIEWER ACCESS TO INFORMATION MORE THAN NEWSPAPERS. WHAT DO CABLE OPERATORS DO ? BUNDLE 4. INTERMEDIATE SCRUTINY. PROMOTE COMPETITION AND PRESERVE BROADCASTING.

65 5. REMAND – FACTORS: BENEFITS OF MUST CARRY TO FREE TV WIDESPREAD DISSEMINATION OF INFO PROMOTING FAIR COMPETITION BURDEN ON SPEECH NO GREATER THAN NEC. O’CONNER (SCALIA, GINSBURG AND THOMAS) CONTENT BASED – IMPINGES CABLE OPERATORS’ EDITORIAL DISCRETION. ON REMAND DC HELD NARROWLY TAILORED, CONTENT NEUTRAL RESTRICTIONS THAT ONLY IMPOSE AN INCIDENTAL BURDEN ON SPEECH.

66 DENVER AREA ED v FCC (1271) CABLE ITS OWN RULES – NOT PRINT OR BROADCAST. RENO v ACLU ( ) NON-INTERNET MEDIUMS – HISTORY OF EXTREME GOVERNMENT REGULATION, SPECTRUM SCARCITY AND INVASIVE NATURE. INTERNET WIDE OPEN AND DEMOCRATIC. PRIOR CASES PROVIDE NO BASIS FOR LEVEL OF SCRUTINY. DIFFERENCES IMPLY LESS GOVERNMENT REGULATE

67 SEXUALLY EXPLICIT EXPRESSION (CONTENT REG) OBSCENE (MILLER) v PORNOGRAPHIC/INDECENT/SEXUALLY EXPLICIT WHY PROTECTED ? SELF AUTONOMY, ART, GOVERNMENTAL LIMITS. WHY REGULATE ? UNCONSENTING ADULTS, CHILDREN, MORALITY, CRIME, WOMEN, NO MESSAGE. BEGINS WITH CHAPLINSKY – OBSCENITY NOT PROTECTED. AS MORE LIBERAL DEFINITION, MORE DESIRE TO REGULATE PORNOGRAPHIC (NOT OBSCEN)

68 ROTH v US ( ) 1. OBSCENITY NOT WITHIN FA. UTTERLY WITHOUT REDEEMING SOCIAL IMPORTANCE. 2. NOT ALL SEX = OBSCENE. OBSCENE IS SEX APPEALING TO PRURIENT INTERESTS 863 FN – AVERAGE PERSON APPLYING COMTEMPORARY COMMUNITY STANDARDS CRAZY PERIOD. MEMOIRS 3 PART TEST. STEWART IN JACOBELIS (KNOW IT WHEN I SEE IT).

69 MILLER v CALIFORNIA ( ) MEMOIRS TEST HARD TO PROVE – TOO SUBJECTIVE APPEALS TO PRURIENT INTEREST AND 2. IS PATENTLY OFFENSIVE AND 3. LACKS SERIOUS LITERARY, ARTISTIC OR SCIENTIFIC VALUE. PRURIENT DEFINED BY ROTH (863 FN 2) DEFINES PATENTLY OFFENSIVE

70 JENKINS v GEORGIA ( ) PRURIENT INTEREST AND PATENTLY OFFENSIVE TO BE DECIDED BY THE JURY APPLYING LOCAL COMMUNITY STANDARDS. BUT STILL SUBJECT TO APPELLATE REVIEW. WHAT DOES APPELLATE REVIEW MEAN IN THIS SITUATION ? POPE v ILLINOIS ( ) SERIOUS VALUE IS A NATIONAL AND REASONABLE PERSON STANDARD. DOESN’T VARY COMMUNITY BY COMMUNITY.

71 STANLEY V GEORGIA ( ) – IF THE FIRST AMENDMENT MEANS ANYTHING, … HERE, NO CHILDREN OR UNCONSENTING ADULTS. WON’T ALLOW POSSESSION BAN AS ADMINISTRATIVE CONVENIENCE FOR DISTRIBUTION BAN. WHAT ARE THE IMPLICATIONS OF STANLEY ? RIGHT TO MAKE OR DISTRIBUTE ? NO HARM TO OTHERS = PROTECTED ?

72 PARIS ADULT v SLATON ( ) STIPULATED – OBSCENE, NO CHILDREN OR UNCONSENTING ADULTS, OUTSIDE TASTEFUL STATE INTERESTS INVOLVED IN OBSCENITY. 2. STATE DOESN’T NEED PROOF OF ADVERSE EFFECTS – NOT IMPINGING ON CONSTITUTIONAL RIGHT. LEGISLATURES ALWAYS WORK ON UNPROVABLE ASSUMPTIONS. MORALITY IS A VALID STATE PURPOSE. 3. THEATER NOT HOME. STANLEY LIMITED TO HOME

73 BRENNAN + 3 (D) ALL OBSCENITY STANDARDS TOO VAGUE – CHILL. CHILDREN AND UNCONSENTING ADULTS VALID BUT MORALITY TOO VAGUE TO JUSTIFY INTERFERENCE WITH FA VALUES. DOUGLAS (D) - STANLEY

74 QUESTION – IS FILM/BOOK/ETC OBSCENE ? MILLER TEST – 3 PART 1. IF YES, THEN STANLEY AND PARIS ADULT 2. IF NO, THEN CAN STATE REGULATE - TYPE OF MEDIUM

75 CHILD PORNOGRAPHY NY v FERBER ( ) USING CHILD ACTORS – ON DISTRIBUTION 1. COMPELLING INTEREST IN SAFEGUARDING PHYSICAL AND PSYCHOLOGICAL WELL BEING OF MINOR. PREVENTION OF SEXUAL EXPLOITATION AND ABUSE OF CHILDREN 2. DISTRIBUTION INTRINSICALLY RELATES TO ABUSE – PERMANENT RECORD AND MUST CLOSE TO STOP PRODUCTION

76 3. STATE INTERESTS BEYOND OBSCENE – CHILD HURT BY SEXUALLY EXPLICIT NON-OBSCENE 4. PRODUCTION ILLEGAL – ADS AND SELLING PROVIDE ECONOMIC MOTIVE FOR PRODUCTION 5. LIMITED SOCIAL VALUE – JUST MAKE UP OLDER TO LOOK YOUNGER. CAN MAKE CASE BY CASE EXCEPTIONS FOR MEDICAL TEXTBOOKS OR NATIONAL GEOGRAPHIC. OSBORNE v OHIO ( ) MERE POSSESSION CAN BE MADE CRIMINAL

77 ASHCROFT v FREE SPEECH COALITION (2002 – 883) – FEDERAL STATUTE MADE VIRTUAL CHILD PORNOGRAPHY ILLEGAL 1. NO REAL CHILD USED OR HARMED. JUST BANNING IDEA VIOLATES FA. 2. STATE – PEDOPHILES USE TO SEDUCE KIDS. MERE TENDENCY TO ILLEGAL NOT ENOUGH – NO PROVABLE CONNECTION BETWEEN WATCHING AND CHILD ABUSE. STATE MUST SHOW RELATION TO CONDUCT 3. STATE – CAN’T ENFORCE REAL – IMAGES TOO GOOD. NO – NOT ENOUGH TO OUTWEIGH FA.

78 PORNOGRAPHY AS SUBORDINATION OF WOMEN DWORKIN AND MCKINNON – NOT MORALITY BUT POWER. MAKES DOMINANCE SEXY. SHAPES COMMUNITY VALUES. NOT DEVIANT BUT EXPRESSES SEXIST SOCIAL UNDERPINNINGS. FEMINISTS FOR PORN – LIBERATING WOMEN FROM STEROTYPES (GOOD GIRLS DON’T LIKE SEX), MAKING MONEY, GAY PORN.

79 AMERICAN BOOKSELLERS v HUDNUT ( ) INDIANAPOLIS ORDINANCE BANNING FILMS THAT DENIGRATE WOMAN NO REFERENCE TO MILLER TEST ON CONTENT OR VIEWPOINT. 2. FA LEAVES EVALUATION OF IDEAS TO INDIVIDUAL. EVEN IF LEADS TO MEN TREATING WOMEN BADLY, JUST GOES TO POWER OF IDEAS 3. CITY – NO MARKETPLACE OF IDEAS WHEN UNANSWERABLE. TRUTH NOT ALWAYS WINNING.

80 3. EVEN IF LOWER VALUE SPEECH, NO VIEWPOINT. IF TREAT WOMEN IN CERTAIN WAY, OK NO MATTER HOW SEXUAL. USSC SUMMARILY AFFIRMS REGULATING SEXUALLY EXPLICIT BUT NON-OBSCENE ERZNOZNIK v JACKSONVILLE ( ) NO NUDE 1. BALANCE FA RIGHTS OF SPEAKERS v UNWILLING VIEWERS. NOT TPM HERE – ON CONTENT. VIEWERS MUST AVOID – NOT HOME OR IMPRACTICAL TO AVOID.

81 2. OVERBROAD IF PROTECTING MINORS 3. NOTHING IN RECORD TO INDICATE TRAFFIC REGULATION IS ACTUAL PURPOSE. YOUNG v AMERICAN MINI THEATERS ( ) 895 – FN 1 - REGULATED USES PURPOSES STEVENS (PART III IS PLURALITY) 1. NOT VAGUE – D CLEARLY INCLUDED. 2. NOT PRIOR RESTRAINT – NOT DENYING ACCESS

82 3. III – REALITY – PROTECTED AND UNPROTECTED DOES TURN ON CONTENT. HERE NOT VIOLATIONS OF PRIMARY FA LIMIT ON MESSAGE – NUDITY BANNED REGARDLESS OF POINT (NOT VIEWPOINT). FA INTEREST IN EROTIC EXPRESSION DIFFERENT FROM POLITICAL SPEECH. 4. IMPORTANT PURPOSE HERE JUST LIMITING LOCATION, NOT LIMITING ACCESS OR REPRESSING. NOTE: DOESN’T USE COMPELLING BUT CAN’T SAY TPM BECAUSE ON CONTENT.

83 DISSENT (4) NOT CONTENT NEUTRAL AND NOT OBSCENE. MOST PROTECTION TO UNPOPULAR SPEECH. RENTON v PLAYTIME THEATERS ( ) CONCENTRATED IN RED LIGHT DISTRICT REHNQUIST – VALID SECONDARY EFFECTS DISSENT (2) – CONTENT BASED

84 LA v ALAMEDA BOOKS ( ) LIKE YOUNG – PROHIBITED MORE THAN 1 ADULT BUSINESS ON SAME PREMISES. BOOKSTORE OWNER WANTED BOOTHS OCONNOR + 3 CAN RELY ON 1977 STUDY TO FIND RELATION TO CRIME. CAN RELY ON ANY EVIDENCE BELIEVED TO BE REASONABLE RELEVANT BURDEN KENNEDY INTERMEDIATE EVEN THOUGH ON CONTENT SECONDARY EFFECTS

85 SOUTER + 3 (D) NEED EMPIRICAL DATA ON SECONDARY EFFECTS OR FEAR DISGUISED VIEWPOINT – SECONDARY EFFECTS = INTERMEDIATE SCRUTINY BUT ONLY IN REGULATING SEXUALLY EXPLICIT. REJECTED IN OTHER FACT PATTERNS (BOOS v BARRY – NO REGARDING STREET PICKETING FOR POLITICAL PURPOSES) SECONDARY EFFECTS CANNOT JUSTIFY A BAN – ONLY A REGULATION THAT STILL GUARANTEES ACCESS. ESSENTIALLY PARTS 2, 3 AND 4 OF INTERMEDIATE (TPM) TEST.

86 FCC v PACIFICA FOUNDATION ( ) STATUTE MAKES CRIMINAL OBSCENE, INDECENT OR PROFANE STEVENS CLEARLY ON CONTENT. CAN REGULATE UNLESS BECAUSE OF POLITICAL CONTENT OR SATIRIZING ATTIDTUDE TOWARDS 4 LETTER WORDS. 904 FN – NOT SATIRE 2. EACH MEDIUM UNIQUE. BROADCASTING MOST LIMITED – INVADES HOME AND EASILY ACCESSIBLE BY CHILDREN. DIFFERENT IF ISOLATED WORD, OTHER TIME OR OTHER MEDIUM.

87 POWELL + 1 (C) CHILDREN, HOME AND NATURE OF RADIO. ADULTS CAN HEAR IF THEY DESIRE. DISAGREE WITH LOWER VALUE SPEECH. WHAT LEVEL OF SCRUTINY ? BRENNAN + 1 CAN’T SEPARATE IDEAS FROM LANGUAGE – ESPECIALLY HERE. PARENTS SHOULD CONTROL MINORS, NOT STATE. HOME – VOLUNTARILY TURN ON. TURN OFF. FA RIGHTS OF BROADCASTERS

88 STEWART + 3 (D) INDECENT AND PROFANE = OBSCENE. FCC LACKS AUTHORITY. FCC v FOX TV (2009 – 908) FLEETING EXPLETIVES 6am – 10pm IMPROPER NOTICE. MANY VOICE FA CONCERNS – NOT DELIBERATE OR RELENTLESSLY REPETITIVE DOES ANYONE CARE ABOUT FREE TV AND RADIO ?

89 ROWAN v POST OFFICE ( ) IF HOMEOWNER FINDS MAILINGS OFFENSIVE, CAN TELL PO TO ORDER MAKER NOT TO SEND. MAIL ORDER BUSINESS CLAIMED FA RIGHT TO COMMUNICATE. REGULATION VALID. HOMEOWNER CAN STOP THINGS COMING INTO HOUSE. SUSPECT IF COMING FROM GOVERNMENT AS REGULATOR, BUT OK IF GOVERNMENT JUST ENFORCING HOMEOWNER’S WISHES (LIKE DOORBELL). BUT GOVERNMENT CAN’T ENFORCE BROAD BAN OF UNSOLICITED BEFORE OWNER COMPLAINS CON ED, BOLGER

90 SABLE COMMUNICATIONS v FCC ( ) CAN BAN OBSCENE BUT NOT INDECENT. NOT LIKE RADIO – RECIPIENT HAS TO INITIATE. NOT LIKE RADIO – DOESN’T ENTER HOME. DEVICES AVAILABLE TO FILTER KIDS OUT. US v PLAYBOY ENTERTAINMENT GROUP ( ) FCC – FULLY SCRAMBLE OR, IF SIGNAL BLEED, CONFINE TO LATE NIGHT HOURS. STEVENS + 4

91 1. STRICT SCRUTINY – CAN’T GET CHANNEL EVEN IF AN ADULT WILLING TO PAY EXCEPT LATE NIGHT. RESTRICTS FA OF CABLE OPERATORS. HERE PRIMARY NOT SECONDARY EFFECTS. TECHNOLOGY TO BLOCK HOUSE BY HOUSE AT HOMEOWNERS REQUEST. BREYER + 3 (D) VOLUNTARY OPT OUT NOT A SIMILARLY PRACTICAL AND EFFECTIVE WAY TO PROTECT CHILDREN.

92 RENO v ACLU ( ) MOST FACTS STIPULATED. 913 – STATUTE TO PROTECT MINORS FROM OBSCENE OR INDECENT 1. DISTINGUISH PACIFICA – AGENCY WITH EXPERTISE, NOT PUNITIVE AND NATURE OF RADIO. NOT RENTON – NO SECONDARY EFFECTS – REJECT CONCEPT OF CYBER-ZONING 2. EACH MEDIUM ITS OWN LAW. HERE – NO SCARCITY, LOW COST UNIVERSAL ACCESS, NOT INTRUSIVE (COMPUTER + CONNECTION)

93 3. CDA – CONTENT BASED AND CRIMINAL. VAGUENESS PROBLEMS ON DEFINITION OF INDECENT AND PATENTLY OFFENSIVE. 4. OVERBROAD – CAN’T REDUCE ADULTS TO CHILD LEVEL. ANY CHILD IN CHAT ROOM. PARENTS CAN BE LIABLE – LET 17 YEAR OLDS USE, SEND TO KIDS. 5. NO TPM BECAUSE CONTENT BASED. AFFIRMATIVE DEFENSES DON’T SAVE – TECHNOLOGY NOT AVAILBLE TO RESTRICT ON AGE – CREDIT CARDS TOO COSTLY FOR MANY.

94 OCONNOR + 1 CDA UNDULY RESTICTS ADULT ACCESS IN ATTEMPT TO PROTECT KIDS. ASHCROFT v ACLU ( ) COPA – DIFFERENT FROM CDA – NOT INCLUDED, COMMERCIAL ONLY AND HARMFUL TO MINORS

95 1. COMMUNITY STANDARDS ON HARMFUL TO MINORS. BUT NOT INVALID ON FACE. REMAND TO CLARIFY SCOPE AND APPLICABILITY. 2. INTERNET – EASE TO REACH EVERYONE IN WORLD, HARD TO REACH TARGETED GROUP. IF WANT TO EXCLUDE MINORS, HARD TO DO. ASHCROFT v ACLU II (920) FAILS STRICT SCRUTINY – USE BLOCKING SOFTWARE ON RECEIVING END, NOT SENDING. DISSENT SAYS BLOCKING SOFTWARE DOESN’T WORK

96 LIBRARY CASE – BLOCKING COMPT PROTECTION (REGULATION) MOST (LEAST) LEAST (MOST) PRINT, TV/RADIO PREMIUM CABLE, MAIL HOME REQ 900, INTERM (?) INTERNET CABLE OPERATOR SEC EFFECTS (TPM 234) SECONDARY EFFECTS – PROPERTY ZONING WITH SEXUALLY EXPLICIT

97 HANDOUT FA 6 VAGUENESS AND OVERBREATH WILD CARD THEORIES – USED EARLY IN FA LITIGATION AND CONTINUE TO BE USED TODAY. IF DON’T KNOW WHAT ELSE TO DO, USE THESE. ESPECIALLY IF STATUTE/REGULATION BROAD. OVERBREATH 1103 – DEFINITION – REGULATION BROADER THAN NECESSARY TO PROTECT INTEREST. REALLY FIT PART OF MODERN TEST. USED TO AVOID SCRUTINY LEVEL

98 INVALIDATES ON FACE INSTEAD OF AS APPLIED AND VIOLATES STANDING CONCEPTS. STATUTE INCLUDES PROTECTED ACTIVITY WHEN DIDN’T NEED TO DO SO. BROADRICK v OKLAHOMA ( ) 1. EVEN IF MIGHT APPLY TO WEARING BUTTONS, D ACTIVELY ENGAGED IN CAMPAIGN TEST AND CHILL – 7 - MODERN TEST - SUBSTANTIAL. HERE – EVEN HANDED NEUTRAL STATUTE, NOT ON CITIZENRY IN GENERAL – D CLEARLY WITHIN. BRENNAN + 3 NO CLEAR DEF OF SUBSTANTIAL – NEVER INSIGNIF.

99 NY v FERBER D ARGUED OVERBROAD BECAUSE SERIOUS SCIENTIFIC AND EDUCATIONAL MIGHT BE PROHIBITED. NOT SUBSTANTIALLY OVERBROAD. ASHCROFT v FREE SPEECH CAN’T BAN UNPROTECTED IF SUBSTANTIAL AMOUNT OF PROTECTED IS ALSO BANNED. VIRGINIA v HICKS IF NOTICE TO LEAVE PUBLIC HOUSING, CAN BE ARRESTED NEXT TIME IF NO VALID BUSINESS OR SOCIAL PURPOSE. NO SUBSTANTIAL AMOUNT OF PROTECTED ACTIVITY INVALIDATED.

100 BROCKETT v SPOKANE ARCADES 1110 – OVERBROAD TO DEFINE PRURIENT INTEREST AS LASCIVIOUSNESS OR LUST. COVERS PROTECTED SCHAMBURG 1111 AND MUNSON 1112 – CAN’T EQUATE HIGH OVERHEAD WITH FRAUD ON DOOR TO DOOR SOLICITATION BAN. HOUSTON v HILL 1115 – OVERBROAD - STATUTE NOT LIMITED TO DISORDERLY CONDUCT OR FW BD OF AIRPORT COMM 1115 – SPECTULAR OVERBREATH - CAN’T ENGAGE IN PROTECTED FA ACTIVITY IN LAX.

101 VAGUENESS 1116 – DEFINITION. PROCEDURAL DUE PROCESS CONCEPT OF GIVING ADEQUATE NOTICE OF VIOLATION. SO POORLY WRITTEN OR UNCLEAR DON’T KNOW WHAT IS MEANS. USUALLY A BROAD, GENERAL STATUTE OR REGULATION. ANTI- WANDERING STATUTES COATES v CINN – ANNOYING NEA v FINLEY 1118 – DECENCY AND RESPECT. NOT CRIMINAL. CLOSE TO OVERBROAD IN CONCEPT

102 RIGHT OF ASSOCIATION FA – “RIGHT OF THE PEOPLE PEACEFULLY TO ASSEMBLE”. DERIVED FROM THIS AND INDIVIDUAL’S RIGHT TO EXPRESS HERSELF 1. GOVERNMENT CAN’T MAKE MEMBERSHIP A CRIME – C AND P DANGER – COMMUNIST CASES – UNLESS GROUP ACTIVELY ADVOCATES LAWLESSNESS AND INDIVIDUAL KNOWS AND SUPPORTS (BRANDENBERG FOR GROUP) 2. GOVERNMENT CAN’T COMPEL DISCLOSURE OF MEMBERSHIP UNLESS COMPELLING INTERESTS

103 RIGHT NOT TO ASSOCIATE BIG CASES - ANTI-DISCRIMINATION STATUTES (STATE OR FEDERAL) V FA – EXCLUSION RIGHT ROBERTS v JAYCEES; ROTARY v NY STATE – PREVENTION OF GENDER DISCRIMINATION = COMPELLING PURPOSE. OVERRIDE FA RIGHTS. EXCEPTION OF TRULY NON – PUBLIC (AGUSTA NAT’L) BOY SCOUTS v DALE ( ) EXCLUDED FROM SCOUTMASTER – AVOWED GAY

104 STATE STATUTE BANNED DISCRIMINATION v GAY REHNQUIST FOR FA TO APPLY, GROUP MUST ENGAGE IN EXPRESSIVE ACTIVITY OR ASSOCIATION. FORCED INCLUSION BAD IF IT AFFECTS IN A SIGNIFICANT WAY GROUP’S ABILITY TO ADVOCATE ITS VIEWPOINT. 2. BS – HOMOSEXUALITY INCONSISTENT WITH MORALLY STRAIGHT AND CLEAN VALUES. DALE IS OUTSPOKEN. JAYCEES AND ROTARY – WOMEN WOULD NOT INTERFERE WITH IDEAS GROUP TRYING TO EXPRESS.

105 STEVENS + 3 (D) BS THEMSELVES DON’T KNOW WHAT MORALLY STRAIGHT MEANS. DALE NOT TRYING TO SEND MESSAGE – EXCLUDED ON MERE FACT OF GAY. RUMSFELD v FAIR ( ) SOLOMON AMENDMENT VALID. MILITARY NOT PART OF LAW SCHOOL. FACULTY’S RIGHT OF ASSOCIATION NOT INFRINGED.

106 ANTIDISCRIMINATION STATUTE v FIRST AMEND. ANTIDISCRIMINATION = COMPELLING STATE INTEREST AND FA LOSES UNLESS 1. NON-GOVERNMENTAL (PRIVATE), TRULY NON-PUBLIC ENTITY OR 2. INCLUSION AFFECTS ORGANIZATION’S ABILITY TO ADVOCATE ITS VIEWPOINT (CONFLICTS WITH VALUES). DIFFERS WITH PROTECTED NATURE OF CLASS ?

107 LIMITS ON CAMPAIGN SPENDING BUCKLEY v VALEO (1976 – 1193) STATUTE – PUBLIC FUNDING – LIMITS ON CONTRIBUTIONS AND EXPENDITURES. CONTRIBUTION LIMITS VALID - TPM 1195 – STATE PURPOSE OF ANTI-CORRUPTION AND APPEARANCE ARE SUFFICIENT TO JUSTIFY. FA RIGHTS MARGINALLY IMPACTED. NO DATA LIMITS MEAN CANDIDATE CAN’T RAISE ENOUGH MONEY TO RUN.

108 EXPENDITURE LIMITS INVALID ANTI-CORRUPTION AND EQUALIZATION NOT ENOUGH TO JUSTIFY IMPINGEMENT ON FA RIGHT TO SPEND. CAN’T LIMIT GROUP’S ABILITY TO SPEND IN SUPPORT OF CANDIDATE. CAN’T LIMIT EXPENDITURE OF PERSONAL $$$ CAN’T LIMIT OVERALL EXPENDITURES OF A CAMPAIGN. CONCURENCES AND DISSENTS ALL OVER

109 DAVIS v FEC ( 2008 – 1225) MILLONAIRES AMENDMENT - $ 350,000 OF OWN MONEY TRIGGERS 3X INCREASE ON CONTRIBUTION LIMITS OF OPPONENT. CAN’T HAVE DIFFERENT LIMITS FOR CANDIDATES – COMPELLING NOT SATISFIED BY LEVELING. STEVENS + 3 (D) REDUCING PERSONAL WEALTH AS CRITERION FOR PUBLIC OFFICE IS IMPORTANT PURPOSE.

110 CITIZENS UNITED v FEDERAL ELECTION COMMITTEE (2010 – 1226) ANTI-HILLARY DOCUMENTARY – STATUTE BANS CORPORATIONS FROM RUNNING ADS 30 DAYS FROM PRIMARY, 60 DAYS FROM ELECTION. PARADIGM – PEOPLE GIVE MONEY WITH NO EXPECTATION OF RETURN KENNEDY CORPORATIONS HAVE FA PROTECTIONS. CAN’T LIMIT FA RIGHTS BASED ON SPEAKER ID.

111 2. SMALL CORPORATIONS EXTREMELY WEALTHY. CORPORATIONS HAVE EXPERTISE. 3. ANTIDISTORTION NOT GOOD ENOUGH GOVERNMENTAL PURPOSE. ANTICORRUPTION OR APPEARANCE OF SUCH NOT ENOUGH EITHER SCALIA (C) OK EVEN IF FOUNDING FATHERS DISTRUSTED CORPORATIONS

112 STEVENS + 3 DISTINCTIONS BETWEEN CORPORATIONS AND HUMANS VALID. NO VIEWPOINT – TPM. NO HISTORY OF DISCRIMINATION OR POLITICALLY POWERLESS. JEFFERSON AGAINST – FF CLEARLY THOUGHT THAT CORPORATIONS HAD NO FA RIGHTS. RELIGION CLAUSES FA LANGUAGE ON RELIGION. TENSION BETWEEN FREE EXERCISE AND ESTABLISHMENT – IF CHURCH PROPERTY EXEMPT FROM TAX, DOES FE DEMAND THE EXEMPTION OR IS GRANTING ANTIEST.

113

114 2014 CAMPAIGN SPENDING SUMMARY: 1. ONLY QUID PRO QUO CORRUPTION OR ITS APPEARANCE ACCEPTABLE PURPOSE. CAN’T LIMIT CANDIDATE’S PERSONAL EXPENDITURES ON CAMPAIGN. 2. REGULATION ON INDIVIDUAL CONTRIBUTIONS TO SPECIFIC CANDIDATE VALID (TPM - INTERMEDIATE). CAN’T REGULATE AGGREGATE CONTRIBUTIONS OR EXPENDITURES (COMPELLING). 3. CORPORATIONS HAVE FULL FIRST AMENDMENT RIGHTS (LIKE INDIVIDUALS)

115 HISTORY – CLEAREST – CONGRESS CAN’T ESTABLISH A NATIONAL RELIGION AND CAN’T MAKE A SPECIFIC RELIGION OR RELIGIOUS PRACTICE CRIMINAL 1276 – BLACK IN EVERSON. GOVERNMENT SUPPORTED RELIGION IN PRE-1776 EUROPE. EVERYONE TAXED TO PAY FOR GOVERNMENT FUNDING OF ONE RELIGION. MADISON’S REMONSTRANCE AGAINST VIRGINIA TAX. AFTER REJECTION OF TAX, VIRGINIA BILL FOR RELIGIOUS LIBERTY BY JEFFERSON VOLUNTARISM AND SEPARATION DIFFERENT DRAFTS OF FA

116 CIVIL RIGHTS OF NONE SHALL BE ABRIDGED ON ACCOUNT OF RELIGIOUS BELIEF OR WORSHIP, NOR SHALL A NATIONAL RELIGION BE ESTABLISHED, NOR SHALL THE FULL AND EQUAL RIGHTS OF CONSCIENCE NO RELIGION EST BY LAW NOR RIGHTS OF CON NO LAWS TOUCHING RELIGION OR INFRINGING RIGHTS OF CONSCIENCE NO LAW EST RELIGION OR FE NOR RIGHTS OF CONS NO LAW ESTABLISHING ARTICLES OF FAITH OR MODES OF WORSHIP OR PROHIBITING FE

117 – NONPREFERENTIALISM – CONCEPT OF NO HOSTILITY, NO PREFERENCE, BUT GOVERNEMENT CAN SUPPORT RELIGION GENERALLY. FIRST CONGRESS ELECTED A CHAPLIN. STATES WERE FREE TO ESTABLISH AN OFFICIAL RELIGION BEFORE THE 14 TH AMENDMENT INCORPORATED 1 ST. LAST OF STATE RELIGIONS ABOLISHED IN 1830’S – ACCOMODATION – HARLAN AND THE ZONE – 4 - CONSCIENTIOUS OBJECTOR. CAN’T OBJECT ONLY TO UNJUST WARS. CAN YOU BE A NON- RELIGIOUS PACIFIST AND GET EXEMPTION ? DEFINITION OF RELIGION-SINCERITY/FRAUD

118 FREE EXERCISE - FA7 LIKE SOPHISTICATION OF RACISM FROM CON I 1. ON FACE 2. NEUTRAL ON FACE, BUT ADMINISTRATION (STATS) 3. NEUTRAL ON FACE AND ADMIN. BUT A. INTENT TO SUPPRESS B. NO INTENT TO SUPPRESS CHURCH OF LUKUMI BABALU v HILEAH(1993 – 1286) SANTERIA – ANIMAL SACRIFICE. CITY – NO SLAUGHTER – CRUELTY TO ANIMALS/PUBLIC HEALTH

119 KENNEDY + 3 SANTERIA CLEARLY A RELIGION. NOT LIMITED TO “FACIAL” NEUTRALITY – LOOK AT PURPOSE AND INTENT IN ADDITION TO EFFECT. HERE – RECORD SHOWS HOSTILE TO SANTERIA. SCALIA + 1 INTENT DOESN’T MATTER – JUST EFFECT. SOUTER + 2 COMPELLING TEST WHEN LAW AIMED AT SUPPRESSING RELIGIOUS EXERCISE.

120 SHERBERT v VERNER (1963 – 1295) 7 TH DAY ADVENTIST FIRED BECAUSE COULDN’T WORK ON SATURDAY. DENIED UNEMPLOYMENT. IF SUBSTANTIAL BURDEN ON RELIGION – COMPELLING. WISCONSIN v YODER (1972 – 1298) CAN’T REQUIRE AMISH TO SEND KIDS TO SCHOOL AFTER 8 TH GRADE.

121 GOVERNMENT WINS: 1. AMISH MUST PAY SS AND HAVE A NUMBER 2. SALES TAX ON RELIGIOUS ARTICLES VALID 3. CAN’T DEDUCT CHURCH CONTRIBUTIONS IF RECEIVE GOODS 4. REQUIRED VACCINATION FOR KIDS VALID 5. CAN BAN SERVICEMAN FROM WEARING YARMULKE 6. CAN DENY TAX EXEMPTION TO RACIST U 7. CAN BAN POLYGAMY GOVERNMENT LOST ON REGUIRING BELIEF IN GOD AS A REQUIREMENT FOR HOLDING PUBLIC OFFICE.

122 EMPLOYMENT DIVISION, OREGON DEPT OF HR v SMITH (SMITH II) (1990 – 1305) PLAINTIFFS INGESTED PEYOTE FOR SACRAMENTAL PURPOSES AT CEREMONY OF NATIVE AMERICAN CHURCH. FIRED AS DRUG COUNSELLORS. DENIED UNEMPLOYMENT BENEFITS BECAUSE, AS A CONTROLLED SUBSTANCE, USING PEYOTE WAS EITHER ILLEGAL OR MISCONDUCT UNDER UNEMPLOYMENT LAW IN OREGON. SCALIA SHERBERT – NOT CONDUCT PROHIBITED BY LAW

123 2. STATE CLEARLY CAN’T BAN IF MOTIVE IS TO LIMIT RELIGIOUS EXPRESSION – CASES CONFUSED HERE. BETTER RULE – NOT FA VIOLATION WHERE LAW IS TRULY NEUTRAL AND BURDEN IS INCIDENTAL. RELIGIOUS BELIEFS CAN’T JUSTIFY NON- COMPLIANCE WITH OTHERWISE VALID STATE LAW (POLYGAMY). 4. PLAINTIFF – FA DEMANDS EXCEPTION. NO AND NO NEED FOR INDIVIDUALIZED HEARINGS WHEN CRIMINAL ACTIVITY.

124 5. WON’T ADOPT CENTRALITY OF RELGION TEST. GOVERNMENT SHOULDN’T BE INQUIRING INTO DEGREE OF BELIEF. EXEMPTION HERE WOULD OPEN FLOODGATES. POLITICAL PROCESS – MANY STATES DO PROVIDE EXEMPTION FOR PEYOTE, BUT NOT REQUIRED. O’CONNOR (C AND D) HOSTILITY CAN BE DISGUISED. SHOULD BE COMPELLING TEST. BUT SATISFIED HERE – DRUG PREVENTION AND NEED FOR GENERAL ENFORCEMENT.

125 BLACKMUN + 2 (D) COMPELLING TEST NOT SATISFIED. NO COMPELLING REASON TO REFUSE EXCEPTION. RELIGIOUS FREEDOM ACT OF REVERSES SMITH II AND REINSTATES SHERBERT. BOERNE v FLORES – BEYOND POWER OF CONGRESS UNDER 14 TH AMENDMENT SECTION 5. CONGRESS CAN’T OVERRULE SUPREME COURT PURSUANT TO POWER TO ENFORCE.

126 ESTABLISHMENT CLAUSE FA8 – PRAYER AND $$$ LEMON v KURTZMAN (1971) 1. SECULAR PURPOSE 2. PRIMARY EFFECT MUST NEITHER ADVANCE NOR INHIBIT RELIGION 3. NO EXCESSIVE ENTANGLEMENT AGOSTINI v FELTON (1997) 1. SECULAR LEGISLATIVE PURPOSE 2. CAN’T ADVANCE RELIGION THROUGH EXCESSIVE ENTANGLEMENT

127 A. DOES PROGRAM RESULT IN GOV’T INDOCTRINATION OF RELIGION ? B. ARE RECIPIENTS DEFINED BY REFERENCE TO RELIGION ? C. IS THERE EXCESSIVE ENTANGLEMENT BETWEEN GOVERNMENT AND RELIGION ? FACTORS: 1. ID OF RECIPIENT – INDIVIDUAL OR SCHOOL 2. TENSION BETWEEN FE AND EC – CAN’T FAVOR CAN’T PENALIZE 3. WALL OF SEPARATION v FLEXIBLE BARRIER 4. COLLEGE v HIGH SCHOOL v ELEMENTARY

128 MANY DECISIONS 5 – 4 PRAYER = VIOLATION $$$ = SPLIT BUT MORE RECENT ALLOW RELIGIOUS SYMBOLS ON PUBLIC PROPERTY = SPLIT – BETTER OUTSIDE THAN INSIDE, BETTER OLD THAN NEW. SOME RELIGIOUS SECULARIZED (TREE AND LIGHTS). FA 9 AND RECENT CASES.


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