First Amendment: Cases, Controversies, and Contexts



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First Amendment:
Cases, Controversies, and Contexts

Ruthann Robson

Professor of Law & University Distinguished Professor

City University of New York (CUNY) School of Law

CALI eLangdell Press 2016

About the Author

Ruthann Robson is Professor of Law and University Distinguished Professor at the City University of New York (CUNY) School of Law.

Her books include Dressing Constitutionally: Hierarchy, Sexuality, and Democracy (2013); Sappho Goes to Law School (1998); Gay Men, Lesbians, and the Law (1996); and Lesbian (Out)Law: Survival Under the Rule of Law (1992). She is also the editor of the three volume set, International Library of Essays in Sexuality & Law (2011).

She is one of two editors of the Constitutional Law Professors Blog and a frequent commentator on constitutional and sexuality issues.

She is one of the 26 professors selected for inclusion in What the Best Law Teachers Do (Harvard University Press, 2013).

Notices

This is the first edition of this casebook, updated January 2016. Visit http://elangdell.cali.org/ for the latest version and for revision history.

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Preface

This Casebook is intended to be used in an upper-division course covering the First Amendment to the United States Constitution.

Its 14 chapters are substantially the same length, with the exception of Chapter One, the introduction, and Chapters Eleven and Twelve which in combination are the usual length. It is intended for 13 or 14 week semester that meets once or twice per week. Each Chapter contains a “Chapter Outline” at the beginning for ease of reference.

The Casebook is organized with the Speech Clauses as Part One and the Religion Clauses as Part Two. Unlike many other courses, there is no accepted organizational scheme within these broad areas. As the Introduction notes, First Amendment doctrine, especially within freedom of speech, presents a varied and haphazard landscape. The Casebook follows a scheme that has proven effective in my years of teaching the course to hundreds of students.

The selection of cases tends toward the most recent and these tend to be less heavily edited. These recent cases often contain extended discussions of earlier cases that are not included in the Casebook.

The excerpted cases and all cases in the Notes contain the official citation. However, within the text of excerpted cases, the full citations of cases are not included: only the case name and year appears the first time the case is cited within the opinion. Moreover, case citations are not always indicated by ellipses. When content is omitted, this is indicated by this symbol: ***.

This Casebook has been immeasurably improved by comments from my students in First Amendment at CUNY School of Law, especially those in the class in the Spring of 2015 when a “dry run” of the Casebook was used. Their responses to my queries (e.g., “which 5 pages did you find least helpful in this chapter?”), their engagement with the materials and original contributions, as well as their notations of typographical errors, are deeply appreciated.
Table of Contents


About the Author 3

Notices 4

About CALI eLangdell Press 5

Preface 6

Chapter One: INTRODUCTION TO THE FIRST AMENDMENT 8

I. Text 8

II. The Clauses 8

A. The Religion Clauses 8

B. The Free Speech Clause 9

C. The Press Clause 9

D. The Assembly Clause 9

E. The Petition Clause 9

F. Association: The “Missing” Clause 9

III. International Perspectives 10

IV. State Action and Incorporation Against the States 12

V. History: The Firstness of the First Amendment 13

VI. Theoretical Perspectives 14

VII. The Challenges of First Amendment Cases and Controversies 15

VIII. United States Supreme Court Terms: Recent Cases 16

2014-2015 Term 17

2013-2014 Term 17

Part I: The Speech Clauses 18

Chapter Two: PROTECTIONS FOR POLITICAL SPEECH 19

I. The Alien and Sedition Acts 20

The Alien Act: An Act Respecting Alien Enemies 20

The Sedition Act: An Act in Addition to the Act, Entitled "An Act for the Punishment of Certain Crimes Against the United States” 21

Notes 22

II. Clear and Present Dangers 22

A. The Challenge of World War I 22



Schenck v. United States 23

Abrams v. United States 25

Note: Justice Oliver Wendell Holmes 29

Gitlow v. New York 29

Whitney v. California 34

Notes 41

B. Labor Unrest 42



Bridges v. California 42

C. Communism and the Smith Act 45



Dennis v. United States 45

Notes 56

III. “Offensive” Speech 57

Chaplinsky v. New Hampshire 57

Cohen v. California 58

Notes 63

IV. Distinguishing Protected Advocacy 63

Brandenburg v. Ohio 63

Hess v. Indiana 66

Notes 69

Note: The Heckler’s Veto 69

V. “Political” Speech in the Age of “Terrorism” 70

Holder v. Humanitarian Law Project 70

Notes 86

Chapter Three: OF CONDUCT, CONTENT, AND CATEGORIES 88

I. Defining Expression 89

United States v. O’Brien 89

Spence v. Washington 93

Texas v. Johnson 97

Notes 106

II. Hate Speech 108

R.A.V. v. St. Paul 108

Wisconsin v. Mitchell 118

Virginia v. Black 122

Notes 137

Note: “True Threats” 137

III. Considering “Content” in the Context of the Military 138

Schacht v. United States 139

United States v. Alvarez 141

Notes 152

Note: Developing a Structural Analysis of Free Speech Issues 153

Chapter Four: THE SPECIAL (OR NOT) STATUS OF THE PRESS 154

I. Prior Restraint 156

Near v. Minnesota 156

New York Times Co. v. United States 160

Notes 164

II. The Press as Guardian of the Public’s Right to Know? 165

A. The Press v. Criminal Defendants 165



Sheppard v. Maxwell 165

Nebraska Press Assn. v. Stuart 177

Notes 183

B. The Press as a Party in Civil Litigation 184



Seattle Times Co. v. Rhinehart 184

C. Access by the Press 189



Note: “Public Proceedings” 189

Houchins v. KQED, Inc. 190

Notes 199

D. (Un)lawful Information 200



Note: Bartnicki v. Vopper 200

E. Reporters’ “privilege” 201



Branzburg v. Hayes 201

Cohen v. Cowles Media Co. 205

Notes 207

III. Direct Regulations of the Press 208

The Florida Star v. B. J. F 208

Miami Herald Publishing Co. v. Tornillo 212

Notes 216

Note: Taxation of the Press 216

IV. Freedom of the Press and Tort Actions 217

A. Defamation 218



New York Times Co. v. Sullivan 218

Gertz v. Robert Welch, Inc. 226

Notes 234

B. Other Torts 235



Time, Inc. v. Hill 235

Hustler Magazine v. Falwell 239

Notes 244

Chapter Five: GOVERNMENT AS EMPLOYER AND EDUCATOR 245

I. The Politics of Public Employment 246

Civil Service Commission v. National Association of Letter Carriers 246

Branti v. Finkel 252



Notes 261

II. Protecting Public Employee Speech 262

A. Foundational Tests 262



Pickering v. Board of Education of Township High School District 205, Will County, Illinois 262

Mt. Healthy City Board of Ed. v. Doyle 268

Notes 272

B. Applying and modifying the tests 273



Givhan v. Western Line Consol. School Dist. 273

Connick v. Myers 274

Rankin v. McPherson 283

San Diego v. Roe 289

Notes 293

C. Public Employee Speech in the Roberts Court 293



Garcetti v. Ceballos 293

Lane v. Franks 303

Notes 309

III. Student Speech 310

Tinker v. Des Moines Independent Community School District 310

Bethel School District No. 403 v. Fraser 317

Hazelwood School District v. Kuhlmeier 323

Morse v. Frederick 330

Notes 338

Note: Curriculum 339

Chapter Six: UNCONSTITUTIONAL CONDITIONS AND COMPELLED SPEECH 340

I. Unconstitutional Conditions and Speech 341

Rust v. Sullivan 341

Legal Services Corporation v. Velazquez 349

Notes 357

II. Compelled Speech 358

A. Foundational Cases of Compelled Speech 358



West Virginia Board of Education v. Barnette 358

Wooley v. Maynard 365

Notes 368

B. Fees and Dues 369



Keller v. State Bar of California 369

Board of Regents of the University of Wisconsin System v. Southworth 372

Johanns v. Livestock Marketing Ass’n 376

Harris v. Quinn 379

Notes 396

C. Compelled Speech and Association 397



Hurley v. Irish-American Gay, Lesbian & Bisexual
Group of Boston 397


Boy Scouts of America v. Dale 402

Notes 415

III. Combining Unconstitutional Conditions and Compelled Speech 416

Rumsfeld v. Forum for Academic and Institutional Rights, Inc. 416

Agency for International Development v. Alliance for Open Society International, Inc. 422

Notes 430

Chapter Seven: FORUMS AND TIME, PLACE, MANNER RESTRICTIONS 432

I. Historical Perspectives on Public Assembly and Public Forums 434

Note: The Assembly Clause 434

Davis v. Commonwealth of Massachusetts 435

Hague v. Committee for Industrial Organization [CIO] 436

Notes 439

II. Public and Other Forums 440

Southeastern Promotions, Ltd. v. Conrad 440

Perry Education Assn. v. Perry Local Educators' Assn. 446

Notes 453

Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez 454

Notes 468

Note: Trespassing in a Public Forum? 468

III. Time, Place, or Manner 470

Ward v. Rock Against Racism 470

McCullen v. Coakley 480

Notes 497

Note: Funeral Protests 498

IV. The Distinct Problems Posed by Signage Regulations 499

City Council v. Taxpayers for Vincent 499

Reed v. Town of Gilbert 507

Notes 520

V. The “Escape Clause” of Government Speech 520

Pleasant Grove City v. Summum 520

Walker v. Texas Division, Sons of Confederate Veterans 530

Notes 542

Chapter Eight: THE POLITICAL PROCESS 543

I. Anonymity and Political Life 544

NAACP. v. Alabama 544

McIntyre v. Ohio Elections Comm'n 549

Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton 557

Doe v. Reed 566

Notes 579

II. Campaign Finance 579

Note: Timeline of First Amendment Campaign Finance Cases 581

Note: Buckley v. Valeo 584

Citizens United v. Federal Election Commission 585

McCutcheon v. Federal Election Commission 593

Note: “Dark Money” Anonymity, Disclosure, and Campaign Finance 621

III. Judicial Elections 622

Republican Party of Minnesota v. White 622

Williams-Yulee v. the Florida Bar 632

Notes 650

Chapter Nine: COMMERCIAL SPEECH 652

I. From Unprotected to Protected Speech 653

Valentine v. Chrestensen 653

Bigelow v. Commonwealth of Virginia 654

Virginia State Pharmacy Board v. Virginia Citizens Consumer Council 662

Notes 673

II. The Central Hudson Test & Its Applications 673

Central Hudson Gas & Electric Corp. v. Public Service Commission 673

Bolger v. Youngs Drugs Products Corp. 687

Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio 693

Florida Bar v. Went For It, Inc. 706

Lorillard Tobacco Co. v. Reilly 715

Notes 729

III. The Ascendency of Commercial Speech? 730

Sorrell v. IMS Health Inc. 730

Notes 743

Chapter Ten: SEXUAL SPEECH 745

I. Defining Obscenity 746

Rosen v. United States 746

Notes 748

Roth v. United States 748

Jacobellis v. Ohio 758

Miller v. California 760

Note: Prurient Interest 767

II. Privacy and Pornography 768

Stanley v. Georgia 768

Paris Adult Theatre I v. Slaton 771

Note 776

III. Secondary Effects 777

Erie v. Pap’s A. M. 777

Notes 792

IV. Children, Regulated Media, and the Internet Age 793

Note: Ginsberg v. New York and New York v. Ferber 793

Note: Fleeting Expletives and Fleeting Nudity on Broadcast Television 794

United States v. Williams 799

Note: Funding 812

V. The Limits of Obscenity and the Categorical Approach? 813

United States v. Stevens 813

Brown v. Entertainment Merchants Association 825

Note: Reconsidering the Categorical Approach 835

Part II: The Religion Clauses 837

Chapter Eleven: DEFINING RELIGION 838

United States v. Seeger 838

Welsh v. United States 847

Notes 856

Chapter Twelve: THE ESTABLISHMENT CLAUSE AND EDUCATION 858

I. Early History of the Establishment Clause 859

Everson v. Board of Education of Ewing Twp. 859

Note: Madison’s Memorial and Remonstrance 873

Note: The “Release Time” Cases 876

Engel v. Vitale 877

II. The Lemon Test and Its Discontents 884

Lemon v. Kurtzman 884

Notes 894

Lee v. Weisman 894

Santa Fe Independent School District v. Doe 913

Note: Elk Grove Unified Sch. Dist. v. Newdow 921

III. Private Choice and Public Support of Religious Schools 922

Zelman v. Simmons-Harris 922

Notes 937

Chapter Thirteen: THE ESTABLISHMENT CLAUSE IN THE PUBLIC SQUARE 938

I. Historical Practices 939

McGowan v. Maryland 939

Marsh v. Chambers 950

Town of Greece, New York v.
 Galloway 956

Notes 969

II. Displays of Religious Symbols 970

Allegheny County v. Greater Pittsburgh ACLU 970

Note 984

McCreary County, Kentucky v. ACLU of Kentucky 984

Van Orden v. Perry 994

Notes 1003

Note: Salazar v. Buono 1003

III. The Problem of Establishment Clause Standing 1007

Arizona Christian School Tuition Organization v. Winn 1007

Notes 1023

Chapter Fourteen: FREEDOM OF RELIGIOUS EXERCISE 1024

I. Belief v. Practice 1025

Reynolds v. United States 1025

Note: The Polygamy Voting Cases 1030

Notes 1032

Note: Fraud or Heresy? 1033

II. The Problem of Neutral Rules of General Applicability and Religious Exercise 1035

Sherbert v. Verner 1035

Lyng v. Northwest Indian Cemetery Protective Association 1042

Employment Division, Department of Human Resources of Oregon v. Smith 1053

III. Legislating Free Exercise 1066

A. RFRA 1066



Text of Religious Freedom Restoration Act (RFRA) 1066

Note: The Constitutionality of RFRA 1067

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal 1067

Burwell v. Hobby Lobby Stores, Inc. 1074

B. RLUIPA 1097



Text of RLUIPA 1097

Note: The Relevance of RLUIPA for RFRA 1099

Note: Prison Litigation Under RLUIPA 1100

IV. Targeting Religion and Ministerial Employees 1100

Church of the Lukumi Babalu Aye v. City of Hialeah 1101

Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission 1114

Notes 1125

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