Con Law Outline Summer 10

FREEDOM OF EXPRESSION 1st AmendCongress shall make no law: o respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (Refers to gov. action) o This absolutist position is no longer supported (apart from the min.), where Congress can now make such laws, but the power is restricted as each of Congress actions is scrutinized Constitution o The 1st and 14th amendments do not permit a State to make criminal the exercise of the right of assembly simply because its exercise may be annoying to some people o Void for Vagueness Incorporation doctrine o Used until the 14th amendment was enacted, because the 14th amendment sets up regulation on all government actors o This means that the 1st amendment controls not only congress but also all other government actors below it (state and local) o Justice Clarence Thomas believes that this should not be extended to the state and local government, where he would limit congress limit to the original text CONTENT BASED AND CONTENT NEUTRAL Why should Speech be Fundamental: 4 theories (1) Furthering self-governance Influence the governments policies Hold public officials accountable through criticisms Acquire intelligence, integrity, sensitivity and devotion to the general welfare that participation in voting expresses (2) Aiding the discovery of truth via the marketplace of ideas Truth emerges from the clash of ideas (3) Promote Autonomy Expression is an essential aspect of personhood Assists in defining themselves Self- expressive/fulfillment/realization (4) Promote Tolerance Hate crimes are prohibited but hate speech is acceptable Methodology: Facial v. As Applied o Facial has a higher standard

o Because you are arguing the very language of the law cannot survive constitutional scrutiny, then that means that every application could not stand o As applied says that the law is not the challenge, but instead it is the way in which the law is applied, is unconstitutional Content Based o Presumptively constitutionally invalid o Traditional public forum and L/D PF Not applied if not protected speech (ex: child pornography) o Strict Scrutiny (1) Regulation is necessary to serve a compelling state interest & (2) It is narrowly drawn to achieve that end Ends, Means, Scrutiny Doesnt need to use the least restrictive alternative ENDS/MEANS Purpose of the government action must be compelling Ends must be compelling Means must be necessary and narrowly tailored o Must be both Subject Matter and View Point Neutral Subject Matter Speech regulation which does not forbid discussion of specified topics o Ex: statute which forbids all picketing except that connected to labor disputes is Not subject matter neutral Most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content Not just based on the opinion of speech, but restricting speech itself View Point laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed o Boos v. Barry-Embassy Not neutral because the regulation changes respect to embassy Although the court said that this law is content based but viewpoint neutral, it is possible that as applied challenges could successfully point out that even if the law is acceptable facially, it discriminates against me for viewpoint restrictions Content Neutral o Conduct exclusions/ Time, Place, Manner Justified without regard to the content of the regulated speech Its not the speech that is bothersome, it is the situation o Intermediate Scrutiny

(1) Narrowly tailoredsatisfied if more effective than no regulation at all, even if not least restrictive/intrusive way Ward v. Rock Against Racism (2) Serves a significant or substantial government interest (3) Leaves open ample alternative channels of communication ENDS/MEANS Means are narrowly tailored Ends are significant or significant gov interest o Subject matter neutral: means that the government cannot regulate speech based on the topic of the speech Subject matter neutral may be considered content neutral o Terner Broadcasting System, Inc. v. FCC (1994, pg. 1215) Requiring cable TV providers to devote some channels to local, educational broadcasters is content-neutral Time Place and Manner regulation o City of Renton v. Playtime Theaters, Inc. There may be certain neutral, permissible purposes to action Zoning ordinance restricting porno theaters placement must be analyzed as a content-neutral, time, place and manner regulation Time place and manner regulation: regulation which permits speech, but limits to certain times, places and manners There can be instances where a law may become content neutral For magically changing content based into content specific content If someone tried secondary effects to convince that all crime, prostitution, drugs o Secondary Effects Test (Rention) Simply must be narrowly tailored means not the least restrictive alternative of speech Law restricting adult movie theaters from areas withing 1,000 feet of a school, church, residential zone, bus stop or park found constitutional as restriction was content neutral TPM based on the secondary effects, not the content of the movies Dissent saw content based restriction, requiring SS When Government may make Content Based distinctions o Political Speech Announced Clausecontent based restriction/SS Republican Party v. White- Judicial electing Law that restricted candidates from announcing his or her views on disputed legal or political issues found unconstitutional because not narrowly tailored to serve a compelling state interest of preserving impartiality o Decency and Respect

Content based distinction Congress is permitted to isolate the messages it wants to boast that it whilst not being view point neutral Those types of expression arent limited privately, however with regards to funding, the government may pick what it wishes to aid National Endowment for the Arts v. Finley (1988, pg. 1236) The law is facially valid, as it neither inherently interferes with First Amendment rights nor violates constitutional vagueness principles Government may fund art based on its assessment of its artistic content, as long as it does NOT o (1) Abuse its discretion by penalizing disfavored viewpoints, OR o (2) Violate other constitutional rights Content based discrimination is permitted, because it is needed in order to enable government funding o U.S. v. American Library Associated Certain kinds of content can be restricted (ex: sexually oriented material) Childrens Internet protection act conditions the receipt of fed funding on the installation of porno filters on all public library computers Court found CIPA constitutional on its face and didnt go further because under article 1- there is a section that specifically allows congress to allocate funds ConcurrenceJ. Bryer: articulates the open door for someone denied from accessing information such as adults (would prefer intermediate s) VAGUENESS AND OVERBREDTH Vagueness (pg. 1247, 1248) o When a reasonable person is unable to distinguish what speech is permissible or what speech may be prohibited. o Test; Unconstitutionally vague law if 1. Reasonable person would not understand what the law prohibits or requires Must provide clear notice 2. Chilling affect tends to discourage 3. A law is unconstitutionally vague when people of common intelligence must necessarily guess to its meaning o Unduly vague laws violate due process (whether or not speech related) Over breadth o The law is unconstitutionally overbroad if it (1) Regulates substantially more speech than the constitution allows to be regulated AND (2) A person to whom the law constitutionally can be applied to can argue 4

that it would be unconstitutional as applied to others People need only assert their own rights and only for facial challenges An exception to satisfy the first amendment Strong Medicine because it involves the facial invalidation of a law and because it permits individuals standing to raise the claims of others not before the Court People who otherwise could be constitutionally punished are allowed to go free If a particular law is categorized in a certain way that is ok in consti. Substantial overbredth means that someone could be covered by enforcements or not SUBSTANTIAL overbredth is required Must restrict free speech]+ 1241 o Coats v. Cincinnatifound unconstitutional a law restricting an assembling of three or more people from being conducting themselves in an annoying manner as both overbroad and vague o Ex of unconstitutionally over broad: Georgia law made it a crime for any person who shall, without provocation, use to or of another, and in his presence opprobrious words or abusive language, tending to cause a breach of the peace GOVERNMENT PROPERTY AND SPEECH FORUMS Forums 1. Traditional public forum o Parks, Streets o Any regulation of speech for traditional or designated forum has to be content neutral. o Essentially strict scrutiny for content restrictions 2. Limited/Designated Public forum o Property that is allowed to be used for community activities A university or public hall o Designated forums can be redesignated and taken away o Essentially strict scrutiny for content restrictions 3. Non-Public forum o Schools, Military bases o Still public property, which might be accessible to the public, but its not dedicated to speech purposes at all

o Traditional Public Forum

Property that has a principle purpose of a free exchange of ideas Have immemorially been held in trust for the use of the public for the purposes of assembly and discussion Content Based Exclusion o Strict Scrutiny

Content Neutral Exclusionsi.e. conduct (Time, Place and Manner regulation) o Intermediate Scrutiny Licensing or Permit Issuing (1) Must serve an important purpose (2) Give clear criteria to the licensing authority that leaves almost no discretion (3) Provide procedural safeguards such as requirement for prompt determination of license requests and judicial review of license denials Regulation for Comfort and Convenience Hague v. Committee for Industrial Organization (1533) o Ordinance was found unconstitutional on its face which allowed public officers to arbitrarily ban assembly in public streets and parksUnion restraint o Rule: The privilege of a U.S. citizen to use streets and parks for communication of views on national questions may be regulated in the interest of all the privilege is not absolute, but relative, and must be exercised in subordination to general comfort and convenience, and in consonance with peace and good order; but it must not, be abridged or denied Schneider v. New Jersey (1534) o Government can regulate pamphleteering to preserve public safety and car/pedestrian traffic, but may not ban with the purpose to keep the streets clean and of good appearance Perry Education Assn. v. Perry Local Educators (1536) o Right of access differs depending on the character of the property at issue o In the traditional public forums The gov. cannot ban all communicative activities

o Limited/Designated Public Forum

Public Property which the state has opened for use by the public as a place for expressive activity Rosenberger reasonable/viewpoint neutral (apply esp. for religion) Content Based Exclusion--Strict Scrutiny Content Neutral Exclusions (i.e. conduct TPM)--Intermediate Scrutiny as long as the sate retains the open character of the facility the state is bound by the same standards as applied in a traditional public forumPerry 6

State is not required to indefinitely keep the space open, as long as it isnt prejudicial by the same standards of a public forum Police Department of the City of Chicago v. Mosley (1538) o Content Based Government restriction of school picketing, excluding labor unions, found unconstitutional b/c it was content based o once a forum is opened to assembly government may not prohibit group/speaker on the basis of what they intend to say Hill v. Colorado (2000, pg.1540)abortion clinic o Content Neutral Congress applied law restricting knowingly approaching without that persons consent for the purpose of passing a bill, displaying sign, or oral protest/education/counseling w/in 100 ft. of health care facility MAJ, Stevens: Place, not speech regulation; not against viewpoint; state interest Free Speech (offensive, ok) v. Unwanted Communication (intrusive, not ok) DIS, Scalia: content based the law.. forbids the rich as well as the poor to sleep under bridges Ward v. Rock Against Racism (1989, 1548) o Content Neutral Req. to use sound amplifiers for park concert is reas. place restriction Need not be least restrictive method

o Non-Public forum
Dont have to look at content based and content neutral Presumption that government needs to get the government word done Not by tradition or designation a forum for public communication Not used primarily for public communication Regulation (including content based exclusion) is acceptable as long as it is (1) Reasonable to preserve the purpose of the forum (2) View point neutral o Not an effort to suppress expression merely because public officials oppose the speakers view Creation of a public forum: whenever members of public are permitted freely to visit a place owned or operated by the gov. Govs decision must be made intentionally

Level of judicial scrutiny is reasonableness and view-point neutrality (content based ok) Security: Adderley v. Florida (pg. 1551) o Jail property is a nonpublic forum where trespass may be restricted Greer v. Spock (pg. 1553) o Military bases are non-public forums and gov. doesnt need to allow speech Public Utility Lehman v. City of Shaker Heights (pg. 1555) o When a government operates a commercial venture, it may accept commercial advertising while prohibiting political ads o Possible endorsement problems Non-public Sidewalk United States v. Kokinda (pg. 1557) o Campaign solicitors challenged a post office regulation banning solicitation in the sidewalks in front of its entrance o If sidewalk was constructed only to permit access (rather than public convenience), then it is not a public forum Transportation nodes International Society for Krishna Conciousness, Inc. v. Lee (pg. 1559) o Airports are non-public forums o May ban solicitation

TYPES OF UNPROTECTED AND LESS PROTECTED SPEECH Unprotected Speech: o Ex:s incitement of illegal activity, fighting words, and obscenity o Content based distinctions with categories of unprotected speech must meet strict scrutiny Incitement of Illegal Activity: o Strong presumption in favor of protecting speech is viewed as justifying safeguarding even advocacy of illegality unless there is a substantial likelihood of imminent harm o Government must decide when advocacy of illegality constitutes unprotected incitement and when it is safeguarded by the 1st amendment History of tests: clear and present danger reasonableness approach then risk formula now likelihood of imminent illegal conduct Rationales o What is the specific rational for getting rid of that type of speech? o What are the difficulties involved in defining such category? (ex: vagueness) o Clear and Present Danger Test 8

The first amendment doesnt protect speech that is used under such circumstances, and of such a nature, that it creates a clear and present danger of inciting illegal activity Balancing test that allows greater weight to government interest in maintaining its war efforts Requirements: (1) Requires circumstances in which the harm is not just speculative but is imminent o Conduct, not just advocacy (2) Requires intent to carry out (3) Degree of harm itself Advocacy can be punished only if there is a likelihood of imminent illegal conduct and the speech is directed to causing imminent illegality Critiques: Open interpretation Espionage Act of 1917 Made it a crime when the nation was at war for any person to make or convey false reports or false statements with intent to interfere with military success or to promote the success of its enemies Made it a crime to willfully obstruct the recruiting or enlistment service of the US The Sedation Act of 1918The Sedation Act of 1918 Prohibit people from saying anything with the intent to obstruct the sale of war bonds Rational: When speech involves incitement of an illegal action, the speech is the same as unlawful conduct Schenck v. US (1919, pg. 1324) Publishing and flyers Conduct is passive and indirect Holding: The question in every case is whether the words used are used in such circumstances and are of such a natures as to create a clear and present danger and that they will bring about the substantive evils that Congress has a right to prevent Debs v. U.S. (1919, pg. 1326) Socialist made anti-draft speech Abrams v. U.S. (1919, 1327) Dissent (J Holmes): o Clear and Present danger would be falsely shouting fire in a theater o Def needs intent to cripple or hinder the U.S., where harm would also be imminent- was only political speech o Reasonableness Approach

Upheld the laws and their applications so long as the governments law and prosecution were reasonable Has been repudiated by the Court If unreasonable, state may ban the advocacy of unlawful overthrow and the joining of an organization that advocates an unlawful overthrow ((Whitney v Clifornia 1927,1333)) Gitlow v. New York (1925, pg. 1330) To preserve itself, states have been given the power exercise its police power to punish utterances which: (1) threaten the public welfare, (2) corrupt public morals, (3) incite crime, or (4) disturb public peaceSO LONG AS NOT UNREASONABLE A state doesnt have wait till violence is present, or to prove that the utterance would cause violence It may prohibit language (1) Advocating, (2) Advising or (3) Teaching the overthrow of organized government by unlawful means Concurrence: Fear of danger o To justify suppression of free speech there must be a reasonably ground to fear that serious evil will result if practiced o There must be the probability of serious injury to the State, not just property o Fear of serious injury cannot alone justify suppression of free speech and assembly. (ex: witch trials) Imminently dangerous= if the existence of the speech poses a threat before it can be combated with opposing debate o Risk Formula Approach Dennis v. United States (1951, pg. 1337) Smith Act (against communism) was created to protect government from terrorism, violence and revolution; not from peaceable lawful means Clear and Present Danger = whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech Judge must ascertain whether clear and present danger exists, not jury Immanency is no longer required o The Brandenburg Test Congress cant criminalize the advocacy of criminal activities, except where there is (1) Directed to incite Objective standard (analysis based on reasonableness standards) (2) Imminent illegalityAND (3) A Likelihood of producing illegality Brandenburg v. Ohio (1969, pg. 1343) 10

KKK called for revenge There is a difference between teaching/advocating and inciting/producing illegality Didnt overrule the clear and present danger test

Incitement of Illegal Activity: Fighting words, the hostile audience and the problem of racist speech o Allowing the broadest scope to the language and purpose of the 14t amendment, it is well understood that the right of free speech is not absolute in all times and under all circumstances Chaplinsky o Fighting Words Doctrine Category of speech that is unprotected by the first amendment those which by their very utterance inflict injury or tend to incite an immediate breach of the peace (Chaplinsky definition) If very utterance inflicts emotional injury OR tends to incite an immediate breach of the peace Not essential to expression and have little social value (benefit is outweighed by interest for order) Chaplinsky v. New Hampshire (1942, pg. 1346) o Preacher arrested for provoking a policeman with insults o Two situations where speech constitutes fighting words: If very utterance (1) Creates a violent response against the speaker AND/OR (to the extend of defamation or extreme and outrageous) (2) Is a direct insult likely to inflict immediate emotional harm o Unanimous opinion o Never been overruled but has been narrowed Classical fighting words: o Words that cause violence OR include profanity, obscenity or threats Current status of doctrine Courts have reversed convictions by finding the bans as vague, overboard or unconstitutionally content-based Not overruled by Courts Narrowing (Problems with the definition) Invalidation as Vague and Overbroad o Overboard if the regulation can be applied to protected speech either On its face OR as applied o Gooding v. Wilson (1972, pg. 1349)

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Law punishing abusive language that causes a breach of speech In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom Government cannot prohibit abusive language except for fighting words Ex: abusive language tending to cause a breach of the peace Narrow fighting words laws as Content-Based restrictions o R.A.V. v. City of St. Paul, Minnesota (1992, 1351) Cross burning Unanimous decision (not necessarily in the rational, but that the ordinance was overly broad) Holding: Burning a cross in someones front yard is reprehensible, but St. Paul has sufficient means to prevent such behavior without adding the 1st amendment to the fire every idea is an incitement Ordinance was unconstitutionally overbroad and facially content based Because the ban on speech was motivated by bias Applied only fighting words that insult or provoke violence/hostility based on race The law must present no realistic possibility of suppression of ideas RULE: There is a strong presumption against content-based discrimination, even with unprotected speech (strict scrutiny is applied) Cant single out those viewpoints that you believe are most harmful o All anti-violence speech is void because it is content based (unless directed at the president) EXCEPTION: Two circumstances when narrowly tailored content-based distinctions are allowed within unprotected speech o (1) Where the distinction advances the reason why the category of speech is unprotected o (2) Where the restriction of speech is meant to prevent secondary effects ex: sexual fighting words may go against sexual 12

discrimination in employment practices If government doesnt target conduct on the basis of its expressive content, acts are not shielded merely because they express a discriminatory idea

o 3 rules: FWs will be upheld only if it does not draw content based discrimination o Hostile Audience Reaction provocation Hostile Audience Doctrine: Speech is protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest (pg. 1358) This includes: riot, disorder, interference with traffic upon the streets, and other immediate threats to public safety, peace or order Not unprotected speech category Feiner v. New York (1951, pg. 1359) Speech which incites riot may be restricted (speech must be beyond persuasive) o Restriction may not be invoked because of the content of the speech o Police must be unable to control crowd otherwise o Racist Speech Beauharnais v. Illinois (1952, pg. 1362) Authority for the government to regulate racist speech if can categorize it as group libel to preserve peace Not overruled, however, not sure if still good law (vague, overbroad, content based; New York Times v. Sullivan) Virginia v. Black (2003, pg. 1366) Cross burning can be seen as protected speech o If it is regulated, the regulation must be content neutral (such as trespass and public burning) o It is permissible to ban cross burning when it is done to intimidate (Must show INTENT w objective standard) However, a burning cross cannot be prima facie evidence of intent to intimidate A state may punish those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace or are inherently likely to provoke violent reaction Reason for restricting cross burning: it is a particularly virulent form of intimidation Holding: X burning statute was unconstitutional w/o intent 13

component Dissent: J. Thomas o Cross burning should be unprotected speech (the rebuttable presumption should be against the cross burning) UNPROTECTED SPEECH

Obscenity (unprotected) o Profane language and indecent speech are protected by the First Amendment, although there are exceptions (ex: broadcast media and in schools) o Pre-Miller Roth v. United States (1957, pg. 1375) Look to the effect that the material would have on an average person with standards reflective of the communitys Test for obscenity is more objective than subjective Sex and obscenity are not synonymous Obscene material is material which deals with sex in a manner appealing to a prurient interest Paris Adult Theater I v. Salton (1973, pg. 1378) State has the power to control commerce on obscene material and regulating exhibition of obscene material in places of public accommodation Must be to further legitimate interests such as maintaining order and morality o Reas: there are legitimate state interests at stake in commercialized obscenity even when there are effective safeguards against exposure to juveniles and to passersby o There is an arguable correlation between obscene material and crime Miller v. California (1973, pg. 1381) Miller Standard: The government can regulate obscene material based on (1) Prurient interest/ avg. Community standards Whether the average person, applying contemporary local community standards would find that the work, taken as a whole, appeals to the prurient interest Not a national community Prurient definitions on pg. 1377 (2) Patently offensive/State law Whether the work depicts or describes sexual conduct in a patently offensive way (as defined by the applicable state law) (3) S.L.A.P.S. value/ National standard Taken as a whole, does not have serious literary, artistic political or scientific value

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It is not the courts function to propose regulatory schemes for the States If one prong is failed, the entire test if failed There are limits on what a state may deem to be patently offensive o Court doesnt have to show that there is a lack of social value o Case opens the door for anti-obscenity statutes to be adequately thorough Nudity alone is not enough to be considered obscene What should government be protecting? Is concern about regulation of moral standards one that should be looked at by government? Or should it be a focus instead on protecting the minority populations? (ex: women, children, animals)? o Arguments regarding obscenity Arguments for/against exclusion of obscene speech from the First Amendment (pg. 1384) (1) Community should be able to determine its moral environment o Anti- government should not be able to decide what is moral and suppress speech that does not advance that conception (2) Obscenity causes antisocial behavior, particularly violence against women o Anti- dispute validity of studies linking violence with obscene material (3) Obscene material advances physical effects of sex, not speech o Anti- other forms of speech advance mere physical reactions Argument for an exception for all pornography Some go so far as to argue that pornography should be excluded as a form of sex discrimination Suggest virtually all depictions of rape, verbal or pictoral and a substantial proportion of other sexual encounters should be excluded from the first amendment Vague and overly broad Child Pornography o New York v Ferber (1982, pg. 1387) Miller standard is not sufficient enough of a solution to apply to child pornography and must therefore be modified Still good law Ferber Standard: A state may exclude child pornography if it is (1) A visual depiction (2) Of sexual conduct (as defined by the applicable state statute) (3) By children under a certain age (4) Made knowingly (with scienter) 15

Unlike Miller test, Child pornography laws are fairly absolute Not inclusive of the miller test Government has a compelling interest to protect the physical and psychological well-being of minors Sexual exploitation Regulation is over the production of the work, not its content (how it is made, not what is communicated) Substantial overbredth When a regulation could keep out first amendment expression that is protected Ashcroft v. The Free Speech Coalition (2002, pg. 1389) Cannot create restriction that goes to the extent of prohibiting speech that appears to be unprotected overbroad o Case ex: regulating sexually explicit images that depict minors but were produced without using any children by using computer imaging and real adults is acceptable The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it PROTECTED, BUT LOW-VALUE SPEECH

Sexually Oriented Speech o Government has more latitude to regulate sexually oriented speech, even if it is not obscenity or child pornography that is unprotected by the First Amendment, as it is considered to be of low value but doesnt meet the tests for obscenity o Ex: zoning ordinances for adult book stores and banning nude dancing Profanity and Indecent speech o Indecent speech is generally protected by the First amendment o Profanity and indecent speech are not Obscene o Cohen v. California (1971, pg. 1409) F*** the Draft No showing that anyone who saw the jacket message was violently aroused because of it or observed it as a personal insult There was no captive audience There were unwilling listeners, but no evidence that those people objected to it One mans vulgarity is anothers lyric o Court follows a medium-by-medium approach Broadcast Media Prohibition of indecent speech over television and radio Has received the most limited First Amendment protection How broadcasting is different from other mediums: o Uniquely pervasive Can be accessed in public and private areas 16

Individuals right to be left alone outweighs broadcasting right to intrude o Uniquely accessible to children FCC v. Pacifica Foundation (1978, pg. 1412) o Carlins Filthy Words Broadcast was vulgar, offensive and shocking o Rule: Content based restrictions may be enforced against broadcasts containing patently offensive language unless the sanctions target a social or political message o Chaplinsky: Such utterances are no essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality o Though they lack lit., political or scientific value, they are still protected essentially by the 1st amendment o Individuals should be able to chose what enters their homes Telephones SCC v. FCC (1989, pg. 1425) o Government cannot ban indecent telephone messages, however it may regulate them. Must be: (1) To promote a compelling government interest (2) The least-restrictive means of regulation possible (3) Narrowly drawn o Ok to ban obscene, but not indecent, parts of the communication The Internet Any restriction made for a compelling interest against indecency (ex: protection children) is constitutional if it is the least restrictive means among available, effective alternatives o Reno v. American Civil Liberties Union (1997, pg. 1420) o Ashcroft v. ACLU (2004, pg. 1421) Justice Stevens found more that some speech was of such slight social value that should of coarse be regulated Zoning of Adult low-value material: (can invoke secondary effects doctrine) o Anti-Nudity Laws Regulation of conduct even if it involves invocation of morals Doesnt involve first amendment protections because it is conduct and not speech Nude dancing, however, is conduct that communicates and thus possibly involves first amendment protections, if the dancing is related to an expression

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COMMERCIAL SPEECH Background o Commercial speech used to be unprotected o Not a heavily defined unprotected speech area o Supreme court saw it as perfectly within the realm of government control Now- steadily more protected speech o Incorrect definitions: An expression that proposes a commercial transaction Defining as just advertising doesnt work because that would be too under and over inclusive An expression related solely to the economic interests of the speaker and its audience Lesser protected= intermediate o Since 1975 Commercial Speech has been protected by the First Amendment o Bolger v. Youngs Drug Products Corp. (1983, pg. 1435) Rule: The reference to a specific product or the presence of an economic motivation for doing so, are each insufficient alone to be considered commercial speech Statute found invalid where advertising linking a product to a current public debate, was not entitled constitutional protection (contraceptives) Justification: there are situations where there are no profit motives o Dissent: whether there is a profit motive is not important Commercial Speech: (1) Whether the speech is advertisement (2) Whether the speech makes reference to a specific product (3) Whether the company has an economic motivation for the speech o Intermediate scrutiny because of the gov interest to protect from misleading and deceptive material o Doctrine of over breadth is not a doctrine used on commercial speech regulations This challenge doesnt work because the market place of ideas protects commercial actors so that they dont need the chilling effect argument made Evaluating Regulation of Commercial Speech o Central Hudson gas and Electric Corp. v. Public Servie Commn. Of NY (1980, pg. 1436) Commercial Speech: expression related solely to the economic interests of the speaker and its audience Speech cannot be misleading or related to an illegal activity There is a difference between speech proposing a commercial transaction (subject to government. regulation) and other forms of speech Commercial speech receives less protection than constitutionally guaranteed expression

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o o Rule

The government must balance the nature of the expression and the nature of the government interest, in order to provide protection The government may ban speech that is more likely to deceive the public than to inform it Central Hudson TEST: whether the commercial speech should be protected by 1st amend 4 elements (1) Speech concerns lawful activity and is not misleading Marketing by monopolies may be legal A prong that widows out speech that is already considered as unprotected (2) Governments restriction is justified by a substantial interest (3) Regulation directly and materially advances the government interest asserted The regulation may not be sustained if it only provides ineffective or remote support of the purpose Government must show that the harms are real and that the restriction will alleviate them to a material degree (4) The regulation must be a means narrowly tailored to achieve the desired objective Restriction need not be the least restrictive alternative Changed prong from 1989 Means type of language Old 4th prong as established by Central Hudson: Regulation must be not more extensive than is necessary to serve that interest Government has burden of proof to show test is met to justify the regulation Statements on labels constitute commercial speech as they may affect purchasers in deciding whether to buy the particular product Usually largest problem is for prongs 3 and 4 Advertising of Illegal Activities Advertising of illegal activities is not protected by the First Amendment And may be prohibited and punished False and Deceptive Advertising False speech is often protected when not commercial speech Compelling government interest:

o In preventing those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching, and other forms of vexatious conduct (pg. 1444) o The government is allowed to regulate non-misleading/truthful commercial speech only when the regulation would directly further the governments compelling interest The means tailoring prong is what we are focusing on, and under intermediate scrutiny the law has to do as little damage as possible to

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commercial expression (according to state law) The interest v. the counter argument that is that the product has already been regulated at the legislature level Advertising that Inherently Risks Deception o Even true advertisements that inherently risk deception are unprotected Laws that prohibit professionals from advertising or practicing under trade names Restrictions on the ability of professionals to solicit prospective clients o Doctors: Friedman v. Rogers (1979, pg. 1442) The government can regulate trade names because of their high likelihood of being used in a deceptive or misleading manner o Lawyers: Government may prohibit attorney in-person solicitation of prospective clients for profit; Such speech inherently risks becoming deceptive and thus even truthful solicitations can be forbidden when conducted in person, where the attorney would profit from the representation o Accountants: Government may NOT prohibit accountants from engaging in inperson solicitation of clients for profit (Reas: because there is no evidence of abuse) o Sales SignsLinmark Associates, inc. v. Township of WillingBoro (1977, pg. 1446) cant be banned o Advertising Alcohol--When the concern for the court is not making profit, but instead for what the products actually do; 44 Liquormart, Inc. v. Rhode Island (1996, pg. 1448) cant be banned o TobaccoContent-based restrictions on commercial speech do not require strict scrutiny Lorillard Tobacco co. v. Reilly (2001, pg. 1451) Law did not further government interest (#4) o Gambling Ct upheld because of government interests TORTS Reputation, Privacy, Publicity o Defamation (Not protected speech); IIED; Pubic Disclosure of Private Facts Gov. cant impose CONDUCT THAT COMMUNICATES o Rule: Conduct regulations ok if unrelated to suppressing protected expression Speech Includes symbols and certain conduct o When is Conduct Communicative? Spence test: (1) Intent to convey a specific message (2) Substantial likelihood that the message would be understood by those receiving it o The OBrien test: When speech and non-speech elements are combined in a conduct government can regulate the conduct when the regulation (1) Is within the constitutional powers of the government (2) Is the purpose unrelated to the suppression of free expression

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(content neutral law?) (3) Furthers an important or substantial government interest (Ends test) (4) Is no greater than is essential to the furtherance of that interest (Means testnarrowly tailored/no more restrictive than necessary) Must first prove 1,2 to get to 3,4 Unites States v. OBrien (1968, pg. 1496) Draft card burning Strict scrutiny is required for laws which is directly related to the suppression free speech Flag Discretion Government cannot ban flag burning when it is a means of expression/speech Preservation of speach and a symbol of the nation is not a compelling enough interest Texas v. Johnson (1989, pg. 1499) o A government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable o Expression was restricted because of the content of the message he conveyed Major area where the court has applied the OBrien test. o Analysis: If expressive, then look to if the states regulation was related to suppressing free expression. If regulation not related to expression, then the less stringent standard in OBrien is used. If regulation IS related to expression, then outside of OBrien test and must ask if the states interest justifies the conviction under more demanding standard. (In Johnson, state claims its interests are preventing breaches of the peace and preserving the flag as symbol of nationhood & national unity.) Cf. functional purposes of Draft Cards in OBrien, with arguable functional purposes of Flags here in Johnson. Financing for Political Speech o Buckley v. Valeo (1976, pg. 1505) The government may limit campaign contributions but not expenditures Spending money to promote speech IS speech Strict scrutiny is met if you put caps on direct contributions to candidates and corporations (from one person) These are narrowly tailored enough to meet the government interest of promotions of buying what the candidate could do for you Soft money, which goes to an issue rather than a candidate, is not regulated 21

EQUAL PROTECTION Constitutional provisions o 1st and 14th amendments Classification o Three ways to establish classification: (pg. 718, 719) Facially discriminatoryon the terms denotes discriminatory actions Presumed Discrimination (On the face of the law) o The law in its very terms draws a distinction among people based on a particular characteristic o Ex: law prohibiting blacks from serving on juries May warrant strict scrutiny Presumption is on government Facially neutral with discriminatory purpose/intent Law maker/government actor has discriminatory intent when making/applying o Written as neutral but meant to discriminate based on race (motivated o Demonstrating a race or gender classification would require proof of a discriminatory purpose behind the law Ex: women challenging the height and weight requirements for the police force must show that the governments purpose was to discriminate based on gender o May warrant strict scrutiny Presumption on gov. to prove that there is not a discriminatory motive/ purpose Facially neutral with discriminatory impact Disproportionally has an affects a certain minority with no discriminatory purpose No proof of discriminatory intent, even by a person administrating the law Ex: employment process Presumption is on the challenger to show law is not rationally related to gov. interest No strict scrutinydoes not trigger an equal protection violation Appropriate level of Scrutiny o Choosing a level: Factors to consider: The ability of the group to protect itself through the political process History of discrimination Likelihood that the classification reflects its judgment that race is virtually never an acceptable justification for government action Justice Martial and Stevens prefer sliding scale instead of levels 22

 Court evaluates both he ends and its means o Inclusive (pg. 721) In evaluating ends/means relationship, court will look at the degree to which the law is under or over inclusive Under-inclusive: if law does not apply to individuals who are similar to those to whom the law applies Over-inclusive: if law applies to those who need not be included in order for the government to achieve its purpose Unnecessarily applies to a groups of people o Strict Scrutiny Ends: Compelling Means: Most narrowly tailored= least restrictive alternative Strict in scrutiny; fatal in fact Government can only use racial classifications if it proves that they are necessary to achieve a compelling government purpose Suspect Classification Carolene Products footnoteif there are certain characteristics that you have no control over, and the courts discriminate based on that characteristic, we have to provide the counter majoritarian approach and not just assume the majority is correct (720) o (1) Immutability Penalize a person for characteristics that they didnt choose and cant change Immutable characteristicsrace national origin, gender, and the marital status of ones parents warrants heightened scrutiny Raises the level of scrutiny o (2) Politically powerlessif the group historically had no political power and cannot protect themselves w/ the law Strict scrutiny for illegal aliens Whether the group has the ability to protect themselves politically o (3) Discrete and Insulargroup has been separable, segregated, geographically insular (ex: ghettos) o (4) History of Discrimination Includes race, national origin, alienage o Intermediate scrutiny 1. Ends: Important 2. Means: Substantially related 3. (Req. for gender discrimination:) Is the government defense of its action accompanied by an exceedingly persuasive justification for using gender to accomplish that end only if there are real differences between the genders can you make this distinction Used for discrimination based on gender and for discrimination against

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non-marital children A law is upheld if it is substantially related to an important government purpose ENDS need not be a compelling, but must be important Means: need not be necessary but must have a substantial relationship to the END Government has burden of proof o Rational basis Ends: Legitimate Legitimate government purpose o If it advances a traditional police purpose Protecting safety, public health, or public morals Any goal that is not forbidden by the constitution will be deemed sufficient Means: Rationally related to a legitimate state interest Includes ageism and certain Alienage Minimum level of scrutiny that all laws challenged under equal protection must meet Challenger has the burden of proof Governments objective need not be compelling or important but must be something government can legitimately do Court will defer to government economic and social regulations unless they infringe on a fundamental right or discriminate against a group that warrants special judicial protection Can be the loosest fit Romer v. Evans (pg. 725) CLASSIFICATIONS AND LEVELS OF SCRUTINY Public School Segregation and De-segregation (dont need to know for final) o 1954 BrownSC decided that separate is inherently unequal and issued a ruling that there could not be state sponsored or government sponsored segregation Overruled 1896 case of Plessy Classification based on race and national origin o 13th amendment made slavery unconstitutional o 14th amendment assurance of equal protection o Strict Scrutiny for Discrimination based on Race and National origin o Race and National Origin Classification on the Face of the Law If law is facially neutral, a race or national origin classification might be proven by demonstrating: A discriminatory administration or discriminatory impact AND Discriminatory purpose Race-specific classifications disadvantaging racial minorities Korematsu v. United States (pg. 756) 24

Gender

o First case that the Supreme Court characterized race as a suspect classification and strict scrutiny should apply Racial classifications burdening both whites and minorities Anti miscegenation laws (interracial cohab/marriage) Loving v. Virginia (pg. 761) Restricting whites and blacks from marrying This court used strict scrutiny to reject racial supremacy as a compelling government interest Johnson v. California (pg. 774)

o Level of Scrutiny Intermediate v. Strict argument (pg. 879) Intermediate Scrutiny is the general rule Fortinero v. Richardson (1973, pg. 882) Divided court on what level of scrutiny to use Gender-based classifications are inherently suspect, and must be subject to strict scrutiny Requirement of husbands dependence on woman for his benefits Craig v. Boren (1976, pg. 884) Intermediate scrutiny Alcohol laws unconstitutional against men 18-21 United States v. Virginia (1996, pg. 888) NEW definition of intermediate scrutiny for gender: o Law is valid only when there is an exceedingly persuasive justification o Level between both strict and old intermediate Often rules down any laws that also show preferences to women Acceptance of women into all boys military academy Non-Marital Children o Intermediate scrutiny Alienage o Discrimination against noncitizens (diff than national origin classifications) o 14th amendment still applies o Level of Scrutiny Strict Scrutiny is the general rule Financial government interest cannot justify Alienage classifications Graham v. Richardson (1971, pg. 918) o Law denying welfare benefits to aliens was held unconstitutional Rational basis review when self-governance or democratic process is at issue Undocumented immigrants are protected by equal protection usually w/ intermediate scrutiny 25

o Alienage: state/ Local Unless____ then rational basis is applied Government function exception/ Political function exception Not constitutional to restrict for CPA; constitutional for teacher (Ambach), or state trouper (Foley v. Connelie) o Alienage: federal Mathews v. Diaz; relaxed scrutiny for federal (congress) because it has broad power over issues of immigration, citizenship and government spending

FREEDOM OF RELIGION Defining Religion o Supreme court has never accepted a single definition Any attempt to define religion raises concern that choosing a def. is itself an establishment of religion o FEC v. EC Establishment clause is freedom from religion Free exercise clause is freedom for religion o There is a desire to interpret religion Broadly for the FEC to maximize protection for religious conduct Narrowly for the EC as to limit the constraints on the government o Religion Doesnt have to be GOD but has to be something parallel Three contexts where whether a belief system is a religion, has been examined o (1) Selective Service Act: for purposes of the conscientious objector exemption An individuals belief in a relation to supreme being involving duties superior to those arising from any human relation, but (not including) essentially political, sociological, or philosophical views or merely personal moral code Definition to include nontheistic views from Seeger Whether the religious belief is o a- Sincerely and meaningfully held AND o b- Occupies a place in the life of its possessor parallel to that by the orthodox belief in God United States v. Seeger (1669) o Satisfied good-faith beliefs test after convicted for refusing to serve in the

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military when his exemption as a conscientious objector was denied o Belief in GOD is not a prerequisite of religion o (2) Requirement for Sincerely held beliefs United States v. Ballard (1670) We dont question truth or falsity of the religion but can look at sincerity (Subjective not objective) You can inquire into whether the believer sincerely holds his beliefs but not anything that would suggest asking the jury to determine if the belief is fraudulent/reasonable o (3) Relevance of Religious Dogma and Shared Beliefs Protected by 1st A even if belief is not the religious dogma or dominant view within the religion Dominant views are not determinative Inquiry must be whether a the religious belief is sincere THE FREE EXERCISE CLAUSE Free Exercise Clause o There is a distinction between the absolute constitutional protection against governmental regulation of religious beliefs on the one hand, and the qualified protection against the regulation of religiously motivated conduct Government cannot compel or punish religious beliefs However, 1st A doesnt provide absolute protection for religiously motivated conduct Freedom to believe is absolute; freedom to act is not Three ways in which government regulates religious conduct Government prohibiting conduct which a persons religion requires Government requiring conduct which a persons religion forbids Law substantially burdening religion by making religious observence more difficult o Ex.s: Polygamy forbidden; Amish must obtain SS numbers and pay SS taxs; State may not deny benefits to people who quit their jobs for religious reasons o Level of Scrutiny on laws which impact religion Rational Basis Employment D., Dept. of Human Resources of Oregon v. SMITH (1990, pg.1676) Effect of SMITH: Used to be Strict Scrutiny Standard unless Gov had the burden

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Presumptively not constitutional o NOW the standard is Rational Basis unless Smith MAJ Reasoning: o For laws of general application you shouldnt have strict scrutiny because you shouldnt presume the court is trying to attack religion o Rational basis: If it is a valid law than you should have a low standard and only look at the rational basis Burden on the person bringing forward the claim to show that the gov. interest is not based on a legitimate reason Presumptively constitutional When Strict Scrutiny does apply still: FEC cannot be used to challenge a neutral law of general applicability so long as law was not motivated by desire to interfere with religion (must be facially neutral and not discrim. Against religion or certain religions) 1. Not generally applicable Sherbert v. Verner-R Found that a denial of government funded benefits to those who are otherwise eligible, but leave employment because of religious reasons, is unconstitutional R: Gov. will apply sscritiny when government provides individual treatment 2. Not generally applicable or neutral Laws directed at religious practices have to meet strict scrutiny ((Lukumi Babalu Aye (1993, pg. 1691)) Strict Scrutiny used for Santeria religious sacrificing of animals because the law was targeting religious practices on its face with the trigger words of sacrifice, slaughter Statutory Repeal efforts attempting to go back to strict scrutiny standard 3. Hybrid rights Yoder Free exercise rights and rights of parents to control the upbringing of their children Amish children exempted from compulsory education laws State and local-no strict scrutiny??? Federal- strict scrutiny??? RFRA-Gonzales RLUIPA- Cutter 28

THE ESTABLISHMENT CLAUSE APPROACHES Strict Separation o Wall of Separation (Jefferson) Safeguard secular interests Protect gov. from religion o Government is secular and Religion is private and individual o Positives: Bright line rules are easier to apply No entanglement The purpose of a government action must be secular Avoid coercion o Negatives: Government acting against religion Neutrality o Protect Against Sectional Domination (Madison) Democracy and freedom shall flourish by protecting any one sect dominating over any other religion or political sect Cannot favor religion over secularism or one religion over others o This would assure competition among the sects Accommodation o Protect Religion (Williams) Evangelical view o Need to have religious freedom by separating it from gov. control o Court should interpret the establishment clause to recognize the importance of religion in society and accommodate its presence in government o Violation is only if it literally establishes a church or coerces religions participation JUDICIAL TESTS Usually applied if not discriminatory on its face Lemon Test (Favored by Separationist and Neutrality approaches) o Applies to a government action/law o If the action fails any of the following three prongs, it is a violation Still technically good law Post-Lemon was a transition to more accommodation by the court A test that has accepted accommodations (1) Statute must have a secular legislative purpose o Purpose must be genuine and the primary purpose (2) Principle/primary secular effect doesnt advance or inhibit religion (3) Must not foster excessive entanglement

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o Cannot require comprehensive, discriminative and continuing state surveillance o Assistance violates EC if it carries the potential for entanglement o Other cases has said that they dont need to use the lemon test, or that they can only use the first two prongs, where the third just merges into the newly formed test Mitchell- modified version- only use in school funding test o Pre Lemon case law Pre-Lemon School issues 1. Prayer a. Engel v. Vitale (1962, pg. 1759) i. School prayer unconstitutional ii. School was facilitating the message of prayer iii. Articulate the importance of separation of church and state 2. Release time (pg. 1758) a. McCollum v. Board of Education: found unconstitutional the letting children go to religion class while others carried on with their secular studies b. Zorach v. Clauson: found constitutional as simply accommodating a religion 3. Curricular decisions (1770) a. Prohibited the teaching of creationism b. Cant have strictly religious motivation c. Strong ideas where religion and public education should not mix Endorsement test (Favored by Accommodation test and Neutrality approach) o Definition o Symbolic endorsement test: Gov. violates Establishment Clause if is symbolically endorses a particular religion or if it generally endorses either religion or secularism Every government practice must be judged on its unique circumstances Government cannot endorse the religious practices when it sends a message of favoritism or creates outsiders Three different approaches on endorsement: (1) Reject endorsement test, where there should be no endorsement at all (2) Based on the perspective of a well-educated and well-informed observer (3) Perceptions of the reasonable passerby o County of Allegheny v. American Civil Liberties Union (1989, pg. 1708) Endorsement issues Menorah and crche Its all about the context and location 30

Symbolic Endorsement test Separationist Trying to secularize a religious symbol could have an effect of disrespect to those who have adopted that symbol as part of their religion Lemon test o Locke v. Davey Funding/Aid The Free exercise clause does not ensure the right to state-financed religious instruction (scholarship program restricting theology majors) o Larson v.Valente (1982, pg. 1712) Entanglement issues/ favoritism amongst religions Required religious organizations with less than 50% funding from their members and affiliated organizations to register and describe interworkings, while all other organizations were exempt Cannot privilege one religion over another Strict scrutiny on gov. for making denominational preferences Coercion Test (Favored by Accommodation approach) o Lee v. Weisman (1992, pg. 1762) Issue: School principals were permitted to invite members of clergy to offer invocation and prayers Does not accept invocation to overturn lemon Government had a role in facilitating and went even further Constitution guarantees that government may not coerce anyone to support or participation in religion or its exercise, or otherwise act in a way which establishes a state religion or religious faith Two views: o Would a reasonable person feel coerced? o Does the government this action could enable the feeling of coercion? o Coercion and Endorsement test Gov. coercion to participate in religious activities violates Establishment Clause Santa Fe Independent School District v. Doe (2000, pg. 1727) Prayer at a public football game on a school campus Holding: student delivered prayers are unconstitutional when elected by a public representative Relation to endorsement: o What is offensive is the role of the government/school, as the speech is facilitated by them Relation to coercion: o Minority felt that they were silenced and that their viewpoints would never prevail PUBLIC DISPLAYS 31

 Religious Symbols on Government property Location, Location, Location! o Look at surrounding circumstances ((10 commandments)) Questions to ask: how was this acquired, when was it established, what was the purpose of establishing it, what is its size? McCearny v. ACLU (2005, pg. 1731) 10 commandments not allowed The secular purpose required has to be genuine, not a sham and not merely secondary to a religious objective o Defendants often ask: Is there some other message which may be added so that the primary purpose isnt religious Display was provided by the government A divided court: the plurality is much different to Suiter MAJ in McCearny. No requirements of vigilance at all. Its about religious as a historical condition of the country Concurring: J Breyer o You may have a religious display so long as that is subservient to the primary purpose of being secular o Government must avoid excessive interference and promotion, BUT doesnt have to purge religion from the public sphere Historical message; gift to government, not from government; look at context/location; unchallenged for so long; no climate of intimidation Dissent: J. Stevens o Has to be driven by a secular purpose o Cannot enact regulations which aid the maj religions against different religions or those who are not religious Van Orden v. Perry (2005, pg. 1745) Holding: A display of the 10 commandments is allowed Government must avoid excessive interference with, or promotion of, religion but it does not compel the government to purge from the public sphere all that in any way partakes of the religious o Can also convey a historical message Establishment clause demands vigilance GOVERNMENT FUNDING FOR PAROCIAL NON-SECULAR OBJECTIVES Assistance to parochial elementary and secondary schools o Earlier precedent was that establishment clause demands government not to aid religion in schools o Revised Lemon Test: Mitchell v. Helms (2000, pg. 1773) Focus on instructional equipment As long as your not privileging one religion over another or religion over secular purposes then you can fund religious programs in

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parochial schools RULE: Revised Lemon Test o Third prong (excessive entanglement) of lemon is modified to be only 1 relevant criteria of the second prong (the effect) for when deciding funding for parochial schools o The issue is not divertibility of aid but rather whether the aid itself has an impermissible content Mitchell criteria to governmental aid o (1) Aid must be available to all students both public and parochial schools Evenhanded o (2) Aid is more likely to be allowed if it is provided directly to the students then if it is provided to the schools Whether or not they define the recipients as religious No percentage allocation to certain groups o (3) Aid is more likely to be allowed if it is unlikely to be for religious instruction??? Private individual funding allocation o Its the parents unilateral choice o As long as it goes through private hands, then the funding is ok Direct vs. indirect aid Indirect goes around the question of whether the primary purpose of the funding is religious or secular, because the money is going to the private individual in a way that is unbiased and doesnt violate the establishment clause This is a case of indirect aid Zelman v. Simmons (2002, pg. 1785) Rule: Government aid programs are not subject to est. clause challenge if it: o Is neutral with respect to religion and o Provides assistance directly to an individual and is brought to the school through individual choice o You can support keeping religion out of public schools but chose a parochial school TAX EXEMPTIONS FOR RELIGIOUS ORGANIZATIONS Tax exemptions which benefit only religion are not ok, but tax exemptions which benefit religious organizations and other non-profits ok (WALZ v. TAX COMM) AID TO RELIGIOUS COLLEGES and UNIVERSITIES Court more lenient in allowing government assistance People older less likely that the school will be permeated with religious doctrine and dogma

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TILTON ok for religious university to receive funds to build a structure not to be used for religious purposes o AID TO OTHER RELIGIOUS INSTITUTIONS BRADFIELD v. ROBERTS hospital did not discriminate based on religion and wholly immaterial that the hospital was run by a religious group. BOWER v. KENDRICK ok to counsel students about pregnancy and discourage sexual activity. LEGISLATIVE PRAYER The historical fabric exception o Marsh v. Chambers (1983, pg. 1771) Post Lemon Legislative prayer is upheld as constitutional Rational: weve always done this (look at the founders) deeply embedded in the history and tradition of this county unbroken history [this] practicehas become a part of the fabric of our society It solemnizes the occasion Not trying to fit into any of the standards outlined in pervious cases which require a primary secular purpose It is ceremonial government recognition or religion ESTABLISHMENT v. FREE SPEECH CLAIMS Combining and Comparing Establishment Clause and Free Speech Approaches o Rosenberger v. UVA (pg. 1722) Government funds for a Christian news school organization Holding: unconstitutional for a state universitys refusal to give student activity funds to a Christian group that published an expressly religious magazine RULE: Standards for becoming a limited forum are reasonableness in light of the purpose served by the forum and view point neutrality (Step 1) Rosenberger looks at whether the limitation on the forum doesnt violate the free speech clause o Is it reasonable? Is it viewpoint neutral? (Step 2) Once the Rosenberger standard is applied to the creation of the forum, Perry must then be applied to look at what standard should apply to the application of the rules of the forum to that specific situation o Can the university treat this newspaper circulation differently than others? o Is the establishment clause a valid defense? Dissent: violation of the establishment clause because government money was going to a religious purpose The Rosenberger v. The Perry Applications

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Rosenberger applies to restrictions that apply to the government in defining the limitations on the forum Perry applies to the restrictions on the government on further regulation on that forum once it is established (ex: time place and manner) Free Speech Argument Forum o We are applying the standard of reasonableness and viewpoint neutrality to the universitys treatment of the Christian news club Doesnt use the Perry definition of what standard should be applied once the forum is already established; instead this case focuses on how valid the standards, used when the forum was originally limited, were for creating those limitations The limitations must be reasonable and viewpoint neutral o Ex: subject matter Scrutiny? The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker in the rationale for the restriction Purpose and effects test??? Zelman v. Simmons-Harris (2002, pg. 1785) o Why program doesnt violate the establishment clause: (1) Neutral with respect to religion because the aid is secular (2) Parents have the private choice of where to use these vouchers The class of beneficiaries is considered wide because there is no religious criteria for who should receive the funding is based on Class is defined solely by financial need Can be for private or public Private schools need to meet certain standards o Ex: non-discriminatory It permits individuals to exercise genuine choice among public and private secular and religious (TRUE CHOICE) Think of cases in clusters LOOK AT ROMER v. EVANS pg.--725

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