PART I: FREEDOM OF SPEECH 1

REGULATING THE CONTENT OF EXPRESSION

I. Introduction
A. Political-Moral Theory
i. Defined: court engaged in constructing an interpretation of the First
Amendment-Freedom of the speech
ii. Arguments of Political-Moral Theory
1. Political: Political process/self-government
a. The political process in a democratic society demands freedom of
speech
b. There is a marketplace of ideas that facilitates a search for truth
c. Political change promoted by free speech
d. Safety valve argument: permitting dissenters to speak their minds
they are less likely to engage in conspiracies or incite violence;
speech is a release that prevents harmful conduct
e. Judiciaries are in best position to facilitate free speech b/c theyre
independent
2. Non-Political: Personal fulfillment & Social Advancement
a. From standpoint of speaker: protection of core personal
autonomyfreedom to speak, say thoughts, express yourself
b. From standpoint of recipient of speech: benefit derived from
listening/seeing/reading free speech
c. Social advancement valuable and may not be political speech
d. Legislature makes free speech decision
B. Doctrine
i. Absolute versus Balancing
1. Absolute: First Amend. is absolute; no room for movement
2. Balancing (clearly USSCs standard)
a. Definitional Balancing: court balances general context speech with
the governments interest
i. Court defines generalized areas of speech and comes up
with a list of unprotected speech
1. Determine whether the speech in question has
value, then balance that against the competing
govt interest
b. Ad hoc balancing: case-by-case balancing
ii. Court looks at particular speech and asks how valuable it
is versus the governments interest not relying on
generalized areas of speech
iii. Issue: subjective and doesnt give guidance to actor as to
whether his speech is protected.
PART I: FREEDOM OF SPEECH 2

II. Incitement to Violence
A. The Clear and Present Danger Test (Schenck)
a. First Amendment protects advocacy of unlawful conduct unless it presents a
clear and present danger
b. Elements:
i. likelihood that danger will come about (Clear)
ii. immediacydanger must be coming relatively soon (Present)
iii. gravity of the threatened unlawful conduct
c. Political process argument: there should be no protection of the advocacy of
unlawful conduct; 1
st
Amend. is about lawful changes to the political system
through proper political discourse
i. Counterarguments:
1. Speech encouraging civil disobedience has political value
2. Political process arg. assumes everyone has a voice in the political
process; other avenues are necessary
3. Safety valve: better to have advocacy speech of unlawful conduct
than to have underground potentially violent actions; can monitor
the activities
d. Holmes Important Dissent in Abrams
i. There must be a clear and imminent dangerimminent is stronger word
suggesting timing
B. Hands Direct Incitement Test (Masses Publishing Co. v. Pattern)
a. Literal meaning of the words spoken are the starting points of interpretation
b. Do the words spoken directly incite violence?
c. Criticism of this test: doesnt protect the puny advocate; what if the person is
using words that normally would incite violence, but the speaker can never be
perceived to be capable of violence (i.e. puny)
C. Speech-Specific Statute
a. Gitlow & Whitney: clear and present danger test is not needed.
i. as long as the statute is rational, it will be upheld
1. Brandeis concurrence in Whitney: CPD test neededcant rely on
rationality of legislature
ii. Speech-specific statutes give guidance to citizens on how to act
b. Dennis: CPD Test applied even though speech-specific statute
i. New type of CPD Test: gravity of the evil discounted by improbability;
Gravity*Likelihood
1. The greater the gravity, the less likelihood matters
2. No immediacy requirement
3. issue of perceptionrisk can be perceived higher than it actually is;
can judiciary insulate itself from hype

PART I: FREEDOM OF SPEECH 3

D. Brandenburg Test (Brandeburg)
a. Cannot forbid advocacy of the use of force or of law violation except where such
advocacy is
i. directed to inciting or producing imminent lawless action and
1. subjective intent
2. objective intent
a. what would a reasonable person construe your speech as
doing?
ii. likely to incite or produce such action.
1. Likelihood
2. Immediacy
3. Gravity?
a. Not stated explicitly in the test but is implicit
b. Court considers if you satisfy all elements but the lawless
conduct is harmless (i.e. jaywalking)
b. This test is a blend of the Direct Incitement Test (Masses) and CPD Test
c. Incite: focus on speech that urges action
E. Categorization of Speech
a. Assume that all speech is protected by the first amendment unless the speech
falls under an unprotected category
b. Speech categorized as unprotected:
i. can be regulated based on content
ii. Examples of unprotected speech
1. Brandenburg speech
2. Fighting words
3. true threats
4. endangerments to national security
III. Fighting Words and Hostile Audiences
A. Fighting Words
a. Categorized as unprotected speech (Chaplinsky) b/c
i. free speech value of fighting words minimal and competing interest in
order and morality is sufficient to justify prohibiting this type of speech
b. Standard: for the speech to be classified as fighting words it must be a
i. face-to-face/direct personal insult w/a
ii. likelihood to lead addressee to respond w/
1. based on theory that its natural for human to react in violence to
fighting words
a. addressees propensity to violence irrelevant
iii. immediate violence against the speaker
c. nature of fighting words is such that the very utterance inflicts injury or tends to
incite an immediate breach of peace
PART I: FREEDOM OF SPEECH 4

i. propensity to violence not taken into account
d. offensiveness of speech alone doesnt warrant its classification as
unprotected/fighting words; viewers should just avert their eyes (Cohen)
B. Hostile Audiences and the Hecklers Veto
a. Hostile audience cases arise when an audience is provoked either by the form of
the message or by the message itself.
b. Hostile audience decisions have addressed the problem thru balancing and not
categorization.
c. Speech is protected unless it is shown to likely produce a clear and present
danger of a serious substantive evil that arises from the public inconvenience,
annoyance, or unrest. (Terminiello)
d. Apply Brandenburg test: restriction of speech on the basis of hostile audience
only permissible if the speech in question passes the Brandenburg Test
e. Hecklers Veto
i. The threat of one onlooker(heckler) should not be enough to
suppress(veto) the otherwise protected speech
ii. Reasonable measures should be taken by police to halt the heckler and
protect the speaker before moving to silence the speaker
iii. Cannot silence the speaker unless there is no other way to protect him
(Cox)
f. Permit Scheme
i. Cannot have a system in which permit provider has standardless
discretion to decide what kind of speech he will allow under the guise of
possible hostile audience. (Kunz)
ii. Cannot deny a permit just b/c you think the speech will lead to violence
based on its content (Forsyth v. Nationalist Movement)
iii. neutral permit scheme could work if given based on numbers so the
police gets notice and theres enough force to control the crowds and
protect the speakers
g. Libertarian Argument against Hostile Audience category of unprotected speech
i. Speaker assumes the risk that his speech may lead to violence; therefore,
its not the role of the govt to protect against a hostile audiencegovt
shouldnt interfere w/this freedom of speech
IV. Injury to Reputation and Sensibility
A. Defamation
a. libel and slander are unprotected speech, which means it has no 1
st
Amendment
protection and can be regulated through state legislation (Beauharnais)
i. slander=spoken word; libel=written word
ii. definitional balancing: 1
st
Amend interest vs. Govtal interest; no
application of CPD Test; group libel treated same as individual libel
PART I: FREEDOM OF SPEECH 5

1. 1
st
Amend. Interest: group libel commentary contains social
component that holds more weight than commentary that is
direct at an individual
2. Govt Interest: responses to group libel may involve a reaction by
more ppl
b. Libel not a categorical exclusion from 1
st
Amend. protection; more careful 1
st

Amend. scrutiny needed (NYT v. Sullivan)
i. NYT Doctrine: 1
st
Amend. should be particularly protective of political
speech; we should be skeptical of speech govt tries to w/hold that is
against the govt
c. Individual DefamationBasic 1
st
Amend. Requirements
i. For both public figure and private figure, plaintiff must first of all prove
the falsity of the statement made
ii. Public Official or Public Figure
1. Standard: Actual Malice (for any type of damages)
a. Actual malice: either the publisher knew the statement was
false or acted w/reckless disregard that the information was
false
i. Reckless disregard not an objective standard; includes
subjective component high degree of
awareness/suspicion on part of the publisher that
statement was false and they run it anyway
b. Proof by convincing clarity: clear and convincing evidence of
actual malice
i. Preponderance of evidence not sufficient
2. The speech is protected unless the plaintiff can prove that actual
malice existed
3. Why high standard?:
a. self-help responsepublic officials dont need defamation
action to resolve injury b/c they have access to the media to
rectify the situation
b. Men-afforded to: public officials assume the risk of being
criticized even unfairly. Public officials give up some of their
reputational interest
iii. Private Figure
1. Matter of public concern (Gertz)
a. Standard:
i. Actual malice for presumed or punitive damages
ii. Fault for actual damages
1. Strict liability impermissible; must prove
publisher was at least negligent
PART I: FREEDOM OF SPEECH 6

2. Matter of private concern (Dun & Bradstreet)
a. First Amendment interest is reduced significantly
b. Standard
i. Dont have to prove actual malice
ii. Proof of fault not set as requirement but was
proven in Dun & Bradstreet nevertheless
d. Freedom of the Press
i. Freedom of the press clause in a sense redundant b/c the USSC has
decided the press gets the same protection as an individual
B. Other Tortious Expression
a. Court engages in deferential balancing: 1
st
Amend. interest vs. govtal interest
b. Types: 1.) Intentional Infliction of Emotional Distress (Hustler v. Falwell) and 2.)
Privacy
i. IIED: public figures must prove false statement of fact + actual malice
1. Private figures get more protection
ii. Privacy: claim that the defendant published something about plaintiff that
was true but was nevertheless private
1. there can be no liability for publishing something that is true as
long as the information was obtained lawfully and it is somewhat
of a public issue
2. false light privacy
a. Claim that publisher has portrayed P in a false light. The
falsity may not defame the P, but he doesnt want to be
portrayed wrongly
b. Public figure in a false light claim must prove actual malice
C. Two- Track Analysis to Speech Regulation
a. Content-based Regulation, govt must satisfy:
i. Categorization analysis or
1. Protected expression
a. Fully protected
b. Lower value
i. Non-obscene porn
ii. Indecent speech
iii. Commercial speech
2. Unprotected
a. Govt must justify regulating a subset of unprotected speech
(R.A.V.)
iv. Subset ex.: fighting words that are racist, anti-
religious, or sexist
v. Adequate justification is special virulence: the
subset is exceptionally damaging
PART I: FREEDOM OF SPEECH 7

1. True threats usually special virulence (Va. v.
Black)
ii. Strict Scrutiny
1. Compelling interest
2. necessary regulation
a. Is the regulation necessary to satisfying the compelling
govtal interest
b. Content-neutral Regulation
i. Less speech protective: ad hoc balancing test
D. Hate Speech
a. Apply the 2-Track Analysis above
b. Racist speech is political speech
c. Stigmatizing speech are not fighting words, so their prohibition is
unconstitutional
d. If you single out some fighting words based on content and viewpoint, the
provision is unconstitutional. (i.e., prohibition of fighting words based on race,
sexual orientation, religion, etc. is unconstitutional)
e. Permissible for the govt to differentially regulate non-speech conduct based on
the motive of the actor
i. i.e. the govt is free to enhance punishment for criminal activity that have
a racial, or similar, basis b/c it is a crime not speechthere is no 1
st

amend. protection
V. Sexually Explicit Expression
A. Obscenity
a. Obscenity is generally an unprotected category of speech
i. USSC: 1
st
Amend. interest in these obscene materials is very limited
b. Private possession of obscene material in ur home cannot be made a crime
c. Govt interest generally is to protect children and unwilling adults
i. govt interest does extend to willing adults though b/c govt can legally
prevent the dissemination of obscene material.
ii. Govt interests in preventing dissemination even to willing adults:
1. Crime prevention
a. Arg.: someone can be influenced by sexually explicit
content, then go out and commit a sex crime
i. Issue: causal link here is inadequate
ii. USSC accepts this rationale despite issue
2. Protection of societys moral standards
a. Changing sexual practices or attitudes in society
b. tone of society
i. Society at large has an interest of protecting the
private sanctity of human sexuality
PART I: FREEDOM OF SPEECH 8

ii. If reading intellectual books elevates society;
reading/viewing bad material disintegrates society
d. Miller Test for Obscenity
i. The work depicts or describes
1. Specifically defined sexual conduct
2. In a Patently Offensive way
ii. The work as a whole appeals to the Prurient Interest AND
iii. The work as a whole lacks serious literary, artistic, political, or scientific
value
e. Notes concerning the Miller Test
i. Patently Offensive and Prurient Interest
1. These must be as viewed by the average person, applying
contemporary community standards
2. Prurient interest: appeal to a shameful or morbid interest
ii. Notice that the standard of serious literary, artistic, political, or scientific
value is not linked to community standards
1. Means that this determination is highly subjective
f. The material in question must be graphican explicit depiction/description of
sexual conduct; not merely suggestive (Jenkins v. Georgia)
B. Child Pornography
a. Child Pronography is an unprotected category of speech
b. Court engages in definitional balancing (Ferber)
i. 1
st
Amend. value in depicting children in pornography vs. govt interest in
protecting child participants in pornography
c. Court concerned with the phyiscal injury and emotional damage done to kids
(Ferber)
i. Even though the damage to kids occurs during production, the court
punishes dissemination of child porn b/c:
1. It can be exceedingly difficult to enforce prohibition on
production
2. Prohibit the dissemination in order to dry ip the market for
production; if theres no market, ppl will stop producing
d. Comparison to Miller Test
i. Unlike Miller, you must have an actual depiction (photographic showing
of a real live child); description isnt enough
ii. Unlike Miller, the sexual conduct is specifically defined as including
children (statue sets the age, doesnt have to be 18 and younger; Ferber
case was under 16)
iii. Unlike Miller, patently offensive and prurient interest standards are
eliminated, which eliminates the community standards
PART I: FREEDOM OF SPEECH 9

iv. Like Miller, the depiction must lack serious literary, artistic, political, or
scientific value
1. if and to the extent that a specific depiction of a child is
necessary for a work, then the court will determine whether the
depiction is necessary to make the point; only then can there be
a serious value exception
a. Would have to show that the message cant be convey
some other way.
b. a serious value exception for child porn is very rare
v. Unlike Miller, the work doesnt have to be considered as a whole
1. Even if the work as a whole has value, thats not enough to
absolve the work of the potential to abuse children
e. Overbreadth issue
i. Generally, a defendant gets off the hook if the statute is invalid due to
being facially overbroad
ii. In the case of child porn, there will be no facial invalidation unless the
statute is substantially overbroad
1. There can only be an as applied invalidation
2. Generally, the staute will be approved if it is limited to
unprotected expression
f. The possession of child porn is a crime (Obsorne)
g. Ferber standard of child porn does not extend to virtual/pc generated child porn
i. Virtual child porn can be categorized as obscenity if it can pass the Miller
Test for Obscenity
h. USSC has upheld statutes that make transaction of child porn unlawful
(Williams)
i. If you intended to receive porn w/real children, you can be convicted for
soliciting.
ii. Can prosecute the seller if he is pandering child porn as if it were real
child porn even if it is notthat is a proposed transaction in actual child
porn, which is unlawful
i. A statute is overbroad and facially invalid if it reaches speech that is not
protected by the 1
st
Amend.
i. USSC invalidated law that made depiction of animal cruelty and the
dissemination of such images unlawful.
C. Pornography as Subordination of Women
a. Cannot have regulations that make it a crime to depict women as sex objects or
in subordinating roles b/c these regulations are content-control and
discriminatory lacking a sufficient govt interest
PART I: FREEDOM OF SPEECH 10

i. not enough to argue that such depictions of women lead to
subordination efforts in society b/c there are a number of types of
speech that lead to bad results that are stick protected.
ii. Cannot argue that this is like protected children (Ferber) b/c the purpose
of these laws is not to protect women that are part of the porn
production but rather to protect women in society more broadly.
Furthermore, these laws would be okay if the women are depicted in
equal or dominate ways, vs. child porn laws dont kids depicted at all
D. Sexually Explicit But Non-Obscene/Non-Child Porn Expression
a. Most regulation of sexually explicit expression that isnt obscene is partial
regulation done through channeling, which is regulating the time, place, or
manner of the speech.
i. Content-neutral called channeling
ii. Content-based called time, place, or manner regulation
b. Cannot have general prohibition of nudity (Erznoznik)
i. Such regulation is invalid on its face b/c it is overbroadnot all nudity
can be deemed as obscene, even as to minors
ii. If point of regulation is to protect minors, the regulation must be specific
as to minors
iii. Those offended by nudity should just avert their eyes as suggested in
Cohen
c. For regulations that target protecting minors, they must pass the Miller Test for
Obscenity as to Minors
i. The work depicts or describes
1. Specifically defined sexual conduct
2. In a patently offensive way as to minors
ii. The work as a whole appeals to the prurient interest of minors
iii. The work as a whole lacks serious literary, artistic, political, or scientific
value to minors
d. T, P, M:
i. USSC has upheld ordinance that regulates zoning of adult theatres to be
located a certain number of feet away from each other (American Mini
Theaters)
1. Adult entertainment is lower value speech, therefore balancing
test used
a. Does the govt have a legitimate interest, and does the
regulation advance the interest vs.
b. Abridgment of 1st Amendment
i. With zoning of this sort, the speech is still
available, just not in a particular location
PART I: FREEDOM OF SPEECH 11

2. Even though the zoning law is content-based regulation, it is
regulating lower-value speech
ii. USSC has upheld ordinance that required adult theatres and stores be in
the same location (Playtime Theatres, Inc.)
1. employ content-neutral test
2. Secondary effects rationale
a. The content has a secondary effect; correlation b/w the
content and the bad effect.
b. The content of the theatres leads to crime, low quality
of life, and decrease in property value
c. How the audience might be impacted by the content of
the expression is not a secondary effect (Boos v. Barry)
d. Court has never applied secondary effects approach to
expression beyond sexually orientated, lower-value
speech
e. Govt can rely on reasonable evidentiary basis to justify
secondary effect rationale
iii. Regulation that amounts to a total ban do not fit lower-value speech
rationale; the 1
st
Amend. interest is much higher than the govts interest
e. Indecency in the Communications Media
i. Broadcast: (FCC v. Pacifica )
1. USSC takes a ad hoc balancing approach making decisions on a
case-by-case basis.
a. Issue: uncertaintydoesnt give clear-cut rule to follow
2. 1st Amend. value of indecent speech is low; therefore, it can be
regulated
3. The general standard is avert your eyes, but if there is a captive
audience or privacy of your own home, the regulation of
indecency is justified
4. Govtal interest: 1.) protecting children, 2.) protecting unwilling
adults
b. Total prohibition of this speech not allowed, but time
regulation permissible (i.e., cant be aired during
daytime hours)
5. 5-4 split decision: uncertain whether this holding will survive
after the Fox v. FCC case reaches USSC
6. Fleeting Expletives: USSC has given FCC authority to regulate
fleeting expletives
a. Problem: can result in chilling effect (articulated by 2
nd

Cir.)
ii. Mail (Rowan v. USPS)
PART I: FREEDOM OF SPEECH 12

1. There cant be a total ban on the mailing of indecent material
even if it arrives in unmarked envelopes
2. Consumer must opt-out of receiving such mailrequest block
a. Issue: consumer has to take the 1
st
blow in order to
know what mail to opt-out of
b. Court rejects arg that it is intrusive since it comes right
into home
3. Protection of children arg. isnt accepted here b/c children dont
usually sort through the mail
iii. Contraceptive advertisements: unconstitutional to regulate (Bolger v.
Youngs)
iv. Cable Regulation (U.S. v. Playboy)
1. Strict scrutiny approach
2. Consumer opt-out is the only viable remedyrequest block
3. Govt cant restrict indecent content on cable to late-night
v. Telephone (Sable v. FCC)
1. Strict scrutiny
2. Cant have total ban of dial-a-porn
a. There are less restrictive means of serving govt interest
in protecting children
i. Ex.: govt can mandate access be restricted to
those providing credit card numbers
b. No interest in protecting adults b/c theyre the ones
who dialed the #, and if they were unwilling/dialed on
accident, then they will hear porn and divert attention
vi. School Library (Bethel)
1. Public schools can teach values and protect children from
indecent materials (channeling) b/c its lower-value speech
vii. Internet: Congressional Acts
1. Communications Decency Act (CDA): relevant provision made it
unlawful to knowingly make available indecent and patently
offensive material to minors over the Internet; included email &
non-commercial sites (indecent-not defined; PO=CS)
a. USSC: Provision unconstitutional on its faceoverbroad
and vague (Reno)
b. Vagueness Chilling effect: no clear line of what is
allowed, so ppl wont use their speech
c. Overbroad: provision sweeps in speech that is not
lower-value; applies to the whole cyberspace forum;
burdens adult speech
PART I: FREEDOM OF SPEECH 13

2. Child Online Protection Act (COPA): in lieu of the striking of
CDA, Congress enacted COPA as a more specific law excluding e-
mail and non-commercial sites; defines indecency w/the Miller
Test adjusted for minors
a. Court invokes strict scrutiny requiring a compelling govt
interest and use of least restrictive means
b. Act is unconstitutional b/c there are less restrictive
means to protect minors on the Internet like parental
control software
3. Cant have a community standard for the Internet
4. Internet left widely unregulated
VI. Commercially Speech
A. Defining Commercial Speech
a. Commercial Speech is speech that proposes a commercial transaction either
explicitly or impliedly
i. Social/political commentary added to the ad doesnt absolve its
commercial speech status; court looks at primary purpose of the ad
B. Generally categorized as lower-value speech with two exceptions:
a. Unprotected commercial speech: 1.) ads for illegal transfers, 2.) false &
misleading ads
C. Unconstitutional to have total ban on certain types of commercial speech, but time,
place, or manner regulation allowed
a. i.e. cant prohibit pharmacies from advertising prices for prescription drugs (Va.
Pharmacy Board)
D. Court uses as-applied rationale; overbreadth doctrine doesnt protect commercial
speech (i.e. advertiser cant just get off the hook b/c the law was overbroad generally;
court looks at validity of the law as as-applied to the particular ad)
E. USSC invalidated PSC rule prohibiting advertising for consumers to increase electricity
consumption (Central Hudson)
F. Central Hudson Ad Hoc Intermediate Balancing Test
a. Govt must have substantial interest
b. Law must directly advance the govts interest
c. Law must be narrowly drawn
i. Means: Cant unduly restrain speech that is otherwise permissible
G. Govt cannot regulate commercial speech deferentially (regulate one form of
commercial speech over another that both have the same consequences) unless there is
something about the content of one particular speech that is more harmful. (Cincinnati
v. Discovery Networks, Inc.)
a. i.e. city regulated handbills b/c they compromised traffic safety but they didnt
regulate newspapers that caused the same harm (Cincinnati v. Discovery
Networks, Inc.)
PART I: FREEDOM OF SPEECH 14

H. Central Hudson Test is applied more vigorously when there is a total ban regulation
I. CHT applied more vigorously when there is a keeping consumers ignorant rationale
J. There is no vice advertising (tobacco, alcohol, gambling) exception to the CHT.
REGULATING THE OCCASION AND MANNER OF EXPRESSION
I. The Distinction Between Content-Based and Content-Neutral
Regulations
A. Content-Based: govt is aiming at the communicative nature of the speech; govt shows
concern over what is being communicated
B. Content-Neutral: govt aiming at behavior that it regards as harmful regardless of what
it thinks might be communicated; harm independent of any communication resulting
from the situation
C. To determine whether law is content-based or content-neutral, dont look at legislative
history/motivation; only look at law on its face and the context of the law (OBrien)
D. Significance of determining content-based vs. content-neutral
a. OBrien 2-Track Analysis
i. if the regulation is content-based, govt must satisfy categorization
analysis or strict scrutiny
ii. if the regulation is content-neutral, govt must satisfy OBrien Ad Hoc
Balancing Test
1. substantial govt interest & law must be narrowly drawn
(degree of advancement) VS.
2. 1
st
Amend. interest & its degree of abridgment (alternative
means of expression?)
E. Must ask whether there is a valid 1
st
Amend. claim before conducting OBrien 2-Track
a. The person making a 1
st
amendment claim, must show that they are engaged in
1
st
amend. activity
b. Test for Expressive Conduct (camping in park case):
i. Intended to be communicative and
ii. In context, would reasonably be understood by the viewer to be
communicative
c. To be a 1st Amend. case the govt must be aiming at 1st Amend. activity or the
regulation itself must be triggered by 1st Amend. activity. (Cloud Books)
d. If the offense committed by violating the reg. isnt 1st amend. speech then
there is no 1st amend. claim case even if the punishment is suppression of
expression.
PART I: FREEDOM OF SPEECH 15

II. Regulating Symbolic Conduct
A. If the govt can have a regulation of speech with a plausible purpose that is independent
from any message that could flow from the conduct, that regulation is content-neutral.
(OBrien)
a. It was plausible for the govt to be concerned about the destruction of other
ppls draft cards when they regulated the destruction of draft cards (OBrien)
i. OBrien Balancing Test applies to content-neutral regulation
1. Substantial govt interest: Govt interest characterized as
ensuring that draft cards not get destroyed
2. Narrowly drawn: what better way to ensure the govt interest in
preventing the destruction of draft cards than to prohibit the
destruction of draft cards! Pass
a. Lesson: if u characterize the govt interest narrowly
enough, then the law that prohibits such action the
govt is worried about automatically passes test
3. 1
st
Amend. interest is low b/c there are alternative means of
expressing opposition to the draft or war than destroying draft
cards
B. When the regulation is concerned about the communicative impact of the symbolic
conduct, this is considered content-based regulation; therefore, govt must satisfy
categorization analysis or strict scrutiny (Tinker, Street, Spence)
a. Under categorization analysis, if the only harm govt is concerned about is the
actual msg being communicated, then the regulation is unconstitutional (Tinker,
Spence)
b. School ban on Vietnam protest bands invalidated (Tinker)
c. NY law prohibiting casting contempt on U.S. flag invalidated (Street)
d. Washington ban on improper use of flag invalidated (Spence)
C. Preserving the American flag as a symbol of nationality and community is content-based
regulation b/c someone would be punished for the message that burning a flag
communicated (Texas v. Johnson)
a. There is no significant govt interest in preserving the American flag, and its not
a legitimate interest to demand respect for the American flag
D. Flag Protection Act of 1989
a. USSC holds the Act is unconstitutional (Eichman)
i. Just b/c the Act doesnt require the flag desecration to be public doesnt
change Congress purpose in enacting this Act, which is content-based
b/c govt is only concerned w/msg communicated
ii. The only govt interest here is protecting the symbolic value of the flag
PART I: FREEDOM OF SPEECH 16

III. USSC says time, place, and manner analysis is essentially the same as the OBrien ad hoc
balancing test
A. Time, Place, or Manner Regulation does target speech but is concerned about things
associated with the speech but not related to any harm flowing from the speech;
therefore, T,P,M regulation is content-neutral leading to OBrian ad hoc balancing
B. General conduct regulations are also content-neutral. (i.e. prohibition of draft-card
burning)
C. If the govt is concerned about aesthetics, access for tourist, physical wear and tear; not
focused on the particular msg communicated, then reg. is content neutral (Clark v.
Community for Creative Non-Violence)
D. Ex.s of content-neutral T,P,M regs: no talking in library, location restriction on
billboards, prohibition of camping in undesignated areas
E. As long as the govt can show that the regulation serves/achieves the interestthat
minimal showing by the govt is sufficient
a. i.e. USSC has held that they are not managers of parks to decide what methods
of preserving the park is best (camping in park case)
IV. Nude Dancing
A. Nude dancing is expressive conduct based on the test for expressive conduct (Barnes v.
Glen Theatre, Inc.)
B. Apply OBrien Ad hoc Balancing Test
a. Substantial + Effective + Narrowly Drawn
i. The court allows ineffectiveness to slide when it comes to nudity regs
(Barnes v. Glen Theatre)
b. Abridgment of 1
st
Amend.
C. Court applies secondary effects reasoning as part of the govts interest inquiry (Erie v.
PAP)
V. Regulating the Use of Public Forums and Other Government Property
A. Permit to use a public forum
a. Permit law has to contain criteria that are content-neutral and that adequately
confine the discretion of the regulator in a way that doesnt permit content-
based decision making/standard-less discretion.
i. If the law doesnt have any criteria, then the law is facially invalid (SAIA
v. NY)
ii. But a conviction under a criteria-less permit can be upheld if the permit
law is confined by state court and administrative practice (Cox v. New
Hampshire)
b. A permit fee must be based on completely content-neutral basis (Forsyth)
c. You can go to court and argue that the denial of a permit in your particular case
does not satisfy the OBrien test, but you have to attempt to comply with the
permit law to preserve your 1
st
Amend. right; if you dont apply then try to
demonstrate, you waive your right to a 1
st
amend. action
PART I: FREEDOM OF SPEECH 17

B. Traditional Public Forums Analysis
a. Traditional: streets, sidewalks (even in residential areas), parks, sound speakers
b. Determine whether the regulation is content-based or content-neutral
1. If regulation is content-based, govt must satisfy categorization analysis
or strict scrutiny ad hoc balancing
i. Strict scrutiny ad hoc balancing= compelling interest + necessary
reg.
2. If the regulation is content-neutral, govt must satisfy OBrien Ad Hoc
Balancing Test
c. Total ban on leafleting on the street is unconstitutional b/c the govt interest in
keeping the streets clean does not away the 1st Amend. interest in having the
streets available for speech; banning leafleting is preventing an entire medium
of expression. (Schneider v. State)
d. When it comes to traditional public forums the availability of alternative means
of expression is irrelevant; this is part of courts enhanced protection of
tradition public forums (Schneider)
1. i.e., court doesnt care that citizen could speak instead of leaflet.
e. Total ban on door-to-door soliciting is unconstitutional (Martin)
1. Door-to-door solicitation is a public forum
2. Govt interest in protecting privacy and shielding against annoyance is
not compelling
3. The reg. is necessary b/c ppl can just not answer their door to avoid the
soliciting
4. 1
st
Amend. interest: door-to-door soliciting is essential to poorly
financed causes. This method is also useful b/c members of society are
engaged in the dissemination of ideas in the market of idea
f. Regulation that targets noise is content-neutral (Kovacs)
g. Anything close to a total ban will be invalidated, but there is room for
substantial govt interest that may require regulations concerning size or the like
h. Law that requires obtaining a permit to speak in a trad. public forum by filling
out a form is invalid b/c it prevents spontaneous speech (Watchtower Bible)
i. Prohibition of signage on private property that provided exceptions for
commercial buildings and for sale signs was invalidated under a content-neutral
enhanced ad hoc balancing test (Gilleo)
1. Valuable b/c speaker identity automatically involved b/c its at their
house and this is a cheap mode of expression that ppl have access to
2. Court implies that substantial interest in requiring size regs would be
permissible.
j. City requiring the use of their equipment for an event is not a trad. public
forum; b/c the citys main concern is noise, the reg. is content-neutral; b/c the
reg. is content-neutral and the speech doesnt involve trad. public forum, court
PART I: FREEDOM OF SPEECH 18

applies standard OBrien ad hoc balancing test (substantial + effective +
narrowly drawn) (Rock Against Racism)
1. Noise is a substantial interest, city in control is effective
2. narrow tailoring is satisfied so long as absent the reg., the govt interest
would be achieved less effectively.
k. Court construes ban on residential picketing as a ban on targeted picketing b/c
that seems to be the point of the reg. (Frisby)
1. This reg. is content-neutral b/c its concern is w/ppls privacy in their
homes
i. Court applies OBrien Ad Hoc Balancing Test
a. 1
st
Amend. abridgment is minor b/c there are
alternative means of expression. (i.e. picket, just dont
focus on one house)
b. Govt interest in protecting privacy is substantial
c. Reg. is narrowly drawn b/c it focuses on targeted
picketing
l. Denying access to KKK from putting up a cross in a traditional public forum is
preclusion of religious speech/content based, which triggers strict scrutiny.
(Capitol Square)
C. Medical Facilities Protests
a. Streets and sidewalks around abortion clinics are traditional public forums
b. A reg. that is concerned about the proper execution of medical procedures w/o
interference is content-neutral
c. Regs. that have multiple provisions: each provision is evaluated individually to
determine whether it passes the test
d. Court applies special stringency to content-neutral injunctions that deal
w/abortion clinics b/c the injunction could be a camouflage of
viewpoint/content-based discrimination (Madsen v. Womens Health Center)
1. Special stringency: Instead of narrowly drawn, court says the law cannot
burden any more speech than necessary to serve a significant
government interest.
2. Court validates fixed buffer zone provisions as long as theyre necessary
to serve the compelling govt interest
3. Court will improve noise w/in ear-shot /can be heard w/in clinic
provision b/c they are necessary; such noise interferes w/clinical
happenings
4. Court invalidates images observable provisions b/c they are not
necessary; clinic can just close the blinds
e. Court invalidates floating buffer zones that extend to areas that should be
permitted and if they are too difficult to abide by (Schneck v. Pro-Choice
Network)
PART I: FREEDOM OF SPEECH 19

f. Floating buffer zone around unwilling listener restricted to the vicinity of the
medical facility is content-neutral and permissible (Hill v. Colorado)
1. This is content-neutral b/c the individual/listener determines what it
wants to hear, not the govt creating the regulation
2. Permissible b/c the reg is narrowly tailored and therere alternative
means of expression.
D. Keep in mind that even with a trad. public forum, if the speech is unprotected like
fighting words or obscenity, the govt can have a complete ban w/o satisfying strict
scrutiny.
E. Treatment of Public Property that is not a Traditional Public Forum
a. Designated Public Forum: forum created for limited purpose
1. Can be closed by the govt
2. Can be limited by subject matter if reasonable
3. Can be limited by speaker identity if reasonable
b. Designated public forums follow same analysis as traditional public forum:
determine whether reg is content-based or content-neutral and apply standard
govt must satisfy accordingly.
c. Public property that is not a traditional public forum is considered a non-public
forum
1. Must determine whether the regulation is content-based or content-
neutral
i. If the reg. is content-based, then must determine whether its
viewpoint discrimination or discrimination by subject matter
or speaker identification
a. If it is viewpoint discrimination, govt must satisfy strict
scrutiny (compelling + necessary)
b. If it is subject-matter or speaker identification, govt
must satisfy reasonableness test (legitimate +
reasonable)
ii. If the reg is content neutral, govt must only satisfy
reasonableness test (legitimate + reasonable)
d. An internal mail system is a non-public forum; limited access designated PF
(Perry Edu. Assn.)
1. Reg. is considered content-neutral if it concerns status rather than
viewpoint
i. Confining a mailing system to official communications is
reasonable
e. Court upholds reg. prohibited the placement of unstamped leaflet into
mailboxes b/c its content-neutral and satisfies reasonableness test (USPS v.
Greenburgh)
f. The sidewalk of the USPS is not a traditional public forum (Kokinda)
PART I: FREEDOM OF SPEECH 20

g. An airport terminal is not a public forum (ISKON)
1. Ban on general solicitation for money is content-neutral
i. Ban is upheld b/c it passes the reasonableness test
a. Govt has legitimate interests: solicitation can cause
delay and be fraudulent
b. Reg. reasonably advances the interest: ppl wont be
slowed and it prevents fraud
2. Impermissible to have a ban on the distribution of literature
3. Court has not determined whether a ban on the sale of literature is
permissible
h. Program that requires student orgs. to admit anyone and allow anyone to hold
elected position is a nonpublic forum that is either content-based that is not
viewpoint discriminatory or content-neutral (CLS v. Martinez)
1. Passes reasonableness test:
i. Legitimate: maintain diversity
ii. Reasonable: requiring admittance of anyone maintains diversity
i. A TV debate is a non-public forum (Forbes)
1. Selective access designated forum
2. This is not viewpoint discrimination, so the broadcasters action just has
to be reasonable
i. Legitimate interest: journalistic discretion
ii. Reasonable: limiting access is reasonable to having a meaningful
debate
3. Public access television generally is not even a non-public forum, not
lending itself to 1
st
Amend. inquiry. Broadcasters have discretion over
what they wish to air
j. Public libraries are not even a non-public forum, absolving itself from 1
st
Amend.
inquiry; libraries can discriminate based on view point (U.S. v. American Library
Assn.)
k. Selection of permanent monuments is not in the realm of public forum;. It is
govt speech, which can be viewpoint based; therefore is not subject to free
speech challenges (Pleasant Grove)
1. It is subject to establishment clause doctrine though
l. Specific exclusion of religious speakers is viewpoint based regardless of the kind
of forum subjecting the govt to strict scrutiny
1. Court has rejected the establishment clause separation of church and
state arg.
m. If property is a nonpublic forum or a public forum and there is discrimination
based on religion, govt must satisfy strict scrutiny. (Windmar v. Vincent)
1. There is no strong govtal interest if the school is allowing ant-religious
speech but not religious speech.
PART I: FREEDOM OF SPEECH 21

2. It is not reasonable to say allowing religious speech would violate
establishment clause b/c equal access does not violate the
establishment clause.
n. School cannot preclude Christian values film when they allow other family value
films; qualifies as viewpoint discrimination and govt cant w/stand strict
scrutiny (Lambs Chapel)
o. Court tends to regard any preclusion of speech as viewpoint/content-based
discrimination
GOVERNMENT AS EDUCATOR: FREEDOM OF SPEECH IN PUBLIC SCHOOLS
I. Personal Student Speech
A. Tinker Test: the speech must cause a material and substantial disruption (Tinker)
B. A school is a non-public forum and the restriction of personal student speech is content-
based, which triggers the Tinker Test. (Tinker)
C. A student engaged in a form of protest is engaging in purely personal
expression/political speech (Tinker)
D. Student giving a sexually oriented speech is typically categorized as personal student
speech; thereby subject to the Tinker Test (Bethel)
a. Vulgarity and sexually orientated speech counts as material and substantial
disruption, which can be regulated
E. A field trip keeps a student in care of schoolstill a school-sponsored event. (Morse)
a. Student holding up Bong HiTs for Jesus sign at a school-sponsored event is
personal student speech
1. Court doesnt apply Tinker test because this wasnt political
speech/viewpoint discrimination, but court applies some form of a
reasonableness test
i. School can reasonably perceive the speech as promoting illegal
drug use. Illegal drug use a more than a legitimate concern
II. Curricular & Related Matters
A. Hazelwood Test: Educators can exercise editorial control over the style and content of
student speech in school-sponsored expressive activities so long as their actions are
a. reasonably related to
b. legitimate pedagogical concerns
B. legitimate pedagogical concerns: political partisanship is not allowed
a. a reasonable pedagogical objective could be promoting abstinence instead of
safe sex
C. Court upheld principals deletion of two articles dealing with student pregnancy and
divorce on the grounds that the action reasonably relates to the legitimate pedagogical
PART I: FREEDOM OF SPEECH 22

concerns of the school in considering the maturity of the students and protecting its
image and educational activities (Hazelwood)
D. a school library banning certain types of books is content-based regulation in a non-
public forum (Pico)
a. if it is viewpoint discrimination, then the govt must satisfy strict scrutiny or
categorization
1. categorization would be applying the Hazelwood test
b. if it is subject matter discrimination (i.e., school running out of space for books
so decides to take away novels to make room for math books; vulgarity, but not
obscenity, also is subject matter discrimination), then govt must satisfy
reasonableness test
E. Student giving a sexually oriented speech at a school assembly can be categorized as
school-sponsored speech; thereby subject to the Hazelwood Test (Bethel)
a. Punishing such speech is reasonably related to the schools legitimate
pedagogical concern of not promoting vulgarity and sexually orientated speech
III. USSC has yet to decide whether activity on the Internet is school-related speech
IMPERMISSIBLE FORMS OF REGULATION
I. Overbreadth and Vagueness
II. Prior Restraint
PART II: THE RELIGION CLAUSES 23

THE FREE EXERCISE OF RELIGION
I. Text
A. Congress precluded from advancing religion
B. Congress cannot infringe upon the free exercise of religion
II. Defining Religion
A. Deeply held moral belief that plays the same role in ur life as a theistic belief
B. Must be sincere
C. Cannot be a mere philosophical belief
III. Basic Prohibition
A. Freedom of Belief (Absolute protection)
a. Categorical prohibition of such regulation
B. Freedom of Action
a. No discriminatory burdens (strict scrutiny)
b. Religion-based exemptions from non-discriminatory laws? (strict scrutiny?)
IV. Laws Discriminating Against Religion
A. If a law burdens religion, govt must satisfy strict scrutiny
B. To withstand strict scrutiny, the law must be neutral and generally applicable (Lukimi
Test)
a. Neutral: inquiry into the purpose/object of the law
1. Cant have neutrality if purpose is differential
b. Generally applicable: cant be substantially exclusive given its principles
1. Cant have a law that applies only to some things if there is a said
purpose that lends extension to other things
C. USSC upheld scholarship program that precludes students majoring in theology from
receiving scholarship
V. Neutral Laws Adversely Affecting Religion: The Issue of Religious
Exemptions

THE ESTABLISHMENT CLAUSE
I. Basic Prohibitions
A. No favoring one religion over another
B. No favoring religion generally over irreligion
PART II: THE RELIGION CLAUSES 24

II. Religion and the Public Schools
III. Alleged Sponsorship of Religious Doctrines, Practices, or Symbols in
Other Contexts
IV. Public Aid to Religious Schools, Organizations, and Individuals
V. Legislative Accommodations of Religion

ARGUMENTS FOR WHY WE PROTECT AGAINST ESTABLISHMENT OF
RELIGION AND PROHIBITION OF FREE EXERCISE OF RELIGION
I. Religious freedom/voluntarism
A. Individuals ought to be free to make religious decisions voluntarily
II. Protect individuals from affront
A. Maybe u are deeply offended if the govt is promoting a religion that u dont hold
B. Religious identity is a core aspect of ppls individuality so much that the govt shouldnt
be slapping them in the face by establishing a religion they dont believe in
III. Protect religion as a valuable institution in society
A. Keep govt out from messing around w/religion
B. Dont want the govt contaminating religion
C. Religion thrives best in the private domain
IV. Protecting the govt from undue religious influences
A. If u really affront dissenters, u preclude a valuable part of society
B. Dont have religious divides in the govt
C. Dont want religious views to influence the political process
V. Religious equality
A. Govt should be neutral to different religious perspectives
B. There ought to be equality btw religion on the one hand and irreligion on the other
hand






PART II: THE RELIGION CLAUSES 25