First Amendment Outline PDF

lOMoARcPSD|19835293 First Amendment Outline FIRST AMENDMENT RIGHTS (University of South Dakota) Studocu is not sponsored or endorsed by any college or university Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 FIRST AMENDMENT LAW The Establishment Clause Zorach v. Clauson Facts...

lOMoARcPSD|19835293 First Amendment Outline FIRST AMENDMENT RIGHTS (University of South Dakota) Studocu is not sponsored or endorsed by any college or university Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 FIRST AMENDMENT LAW The Establishment Clause Zorach v. Clauson Facts: New York City began a program in which students in public schools could be dismissed from classroom activities for certain periods to participate in religious instruction elsewhere. Issue: Did the New York program violate the Establishment Clause of the First Amendment? Held: No. Reasoning: public facilities were not being used for the purpose of religious instruction and "no student was forced to go to the religious classroom." There was "no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence." Engel v. Vitale Facts: The New York State Board of Regents authorized a short, voluntary prayer for recitation at the start of each school day. A group of organizations joined forces in challenging the prayer, claiming that it violated the Establishment Clause of the First Amendment. Issue: Does the reading of a nondenominational prayer at the start of the school day violate the "establishment of religion" clause of the First Amendment? Held: Yes. Reasoning: The state cannot hold prayers in public schools, even if participation is not required and the prayer is not tied to a particular religion. the Court held that respondent's decision to use its school system to facilitate recitation of the official prayer violated the Establishment Clause. Specifically, the policy breached the constitutional wall of separation between church and state. The Court ruled that the constitutional prohibition of laws establishing religion meant that government had no business drafting formal prayers for any segment of its population to repeat in a government-sponsored religious program. The Court held that respondent's provision of the contested daily prayer was inconsistent with the Establishment Clause. Abington School District v. Schempp Facts: Under Pennsylvania law, public schools were required to read from the bible at the opening of each school day. The school district sought to enjoin enforcement of the statute. Issue: Did the Pennsylvania law requiring public school students to participate in classroom religious exercises violate the religious freedom of students as protected by the First and Fourteenth Amendments? Held: Yes. Reasoning: Public schools cannot sponsor Bible readings and recitations of the Lord’s Prayer under the First Amendment’s Establishment Clause. The law required religious exercises and such exercises directly violated the First Amendment. Walz v. Tax Comm'n of the City of New York Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Facts: Frederick Walz, the owner of real estate in Richmond County, New York, brought suit against the New York City Tax Commission, challenging property tax exemptions for churches. Walz alleged that the exemptions forced him, as a taxpayer, to indirectly contribute to those churches. Issue: Did the property tax exemptions violate the Establishment Clause of the First Amendment? Held: No. Reasoning: The Court held that the purpose of the exemptions was to neither advance nor inhibit religion; no one particular church or religious group had been singled out to receive tax exempt status. Unlike direct subsidies, which would have unduly entangled the state with religion, tax exemptions created only "minimal and remote involvement between church and state and far less than taxation of churches." The Court noted that "benevolent neutrality" toward churches and religions was "deeply embedded in the fabric of our national life." Board of Edu of Central School District v. Allen Facts: A 1965 amendment to New York's Education Law required public school boards to lend textbooks to elementary and secondary school students enrolled in private and parochial schools. The Board of Education for New York Central School District No. 1, contending that the law violated the Establishment and Free Exercise Clauses of the First Amendment, filed suit against James Allen, Commissioner of Education, requesting a declaratory injunction to prevent enforcement of the statute. Issue: Do the Establishment and Free Exercise Clauses of the First Amendment forbid New York from requiring that public school boards loan textbooks to parochial school students without cost? Held: No. Reasoning: the Court applied the test constructed in Abington School District v. Schempp and found that, because the stated legislative purpose and necessary effects of the statute did not advance any one religion or religion in general, the law did not violate the First Amendment. Because the books were given to the students, rather than the parochial schools themselves, the Court reasoned, "the financial benefit is to parents and children, not schools." Lemon v. Kurtzman Facts: Both Pennsylvania and Rhode Island adopted statutes that provided for the state to pay for aspects of non-secular, non-public education. The Pennsylvania statute was passed in 1968 and provided funding for non-public elementary and secondary school teachers’ salaries, textbooks, and instructional materials for secular subjects. Rhode Island’s statute was passed in 1969 and provided state financial support for non-public elementary schools in the form of supplementing 15% of teachers’ annual salaries. The appellants in the Pennsylvania case represented citizens and taxpayers in Pennsylvania who believed that the statute violated the separation of church and state described in the First Amendment. Appellant Lemon also had a child in Pennsylvania public school. Issue: Do statutes that provide state funding for non-public, non-secular schools violate the Establishment Clause of the First Amendment? Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Held: Yes. Reasoning: The Court held that a statute must pass a three-pronged test in order to avoid violating the Establishment Clause. The statute must have a secular legislative purpose, its principal or primary effect must be one that neither promotes nor inhibits religion, and it must not foster “excessive government entanglement with religion.” The Court held that both the state statutes in question had secular legislative purposes because they reflected the desire of the states to ensure minimum secular education requirements were being met in the nonpublic schools. The Court did not reach a holding regarding the second prong of the test, but it did find that the statutes constituted an excessive government entanglement with religion. In the Rhode Island program, the amount of oversight of teachers and curricula required to ensure that there is no unnecessary injection of religion into secular topics would require the government to become excessively involved in the nuances of religious education. The same danger holds true for the Pennsylvania statute, which additionally provides state funding directly to a church-related organization. Government financial involvement in such institutions inevitably leads to “an intimate and continuing relationship” between church and state. The Court also noted the potential political implications of public funding, as there is a risk of religious issues becoming politically divisive. Tilton v. Richardson Facts: The federal Higher Education Facilities Act of 1963 provided construction grants to church-sponsored higher educational institutions. The grants were to be used for the construction of non-religious school facilities. The Act also stipulated that twenty years after the grant had been given, schools were free to use the buildings for any purpose. Issue: Did the Act violate the Religion Clauses of the First Amendment? Held: only the 20-year limitation portion of the Act violated the Religion Clauses of the First Amendment. Reasoning: The Court invalidated the 20-year clause, arguing that subsidizing the construction of facilities used for non-secular purposes would have the effect of advancing religion. The Court held that the church-related institutions in question had not used their federally-funded facilities for religious activities, and that the facilities were "indistinguishable from a typical state university facility." The Court also held that the Act did not excessively entangle the government with religion, noting that college students were less susceptible to religious indoctrination, that the aid was of "nonideological character," and that one-time grants did not require constant state surveillance. Wolman v. Walter Facts: The Ohio legislature had implemented a statute to provide aid to nonpublic school students. The statute was challenged by Ohio taxpayers, and a three-judge lower federal court panel found the entire statute constitutional. Issue: Held: Supreme Court held that the state of Ohio could provide nonpublic schools with secular textbooks, standardized testing and scoring, diagnostic services, and therapeutic and remedial services, while rejecting aid in the form of instructional materials and equipment and field trip services as violations of the First Amendment’s establishment clause. Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Reasoning: Mueller v. Allen Facts: A Minnesota law allowed taxpayers to deduct from their state income tax expenses incurred in providing tuition, textbooks, and transportation for their children's elementary or secondary school education. Parents who sent their children to parochial school also qualified for the deductions. Issue: Did the law violate the Establishment Clause of the First Amendment? Held: No. Reasoning: The Court held that the law did not have "the primary effect of advancing the sectarian aims of the non-public schools," nor did it "excessively entangle" the state in religion. Most importantly, argued Justice Rehnquist, the deductions were available to all parents; in effect, Minnesota did not "confer any imprimatur of state approval" on religious schools. Thus, the law passed the Court's three-pronged test announced in Lemon v. Kurtzman (1971) used to evaluate claims regarding the Establishment Clause. Zobrest v. Catalina Foothills School District Facts: James Zobrest was deaf since birth. He attended public school through the eighth grade where the local school board provided a sign-language interpreter. Zobrest's parents elected to send their son to a Roman Catholic high school and requested that the local school board continue to provide their son with a sign-language interpreter. The school board denied the request on constitutional grounds. The Zobrests then filed suit, alleging that the Individuals with Disabilities Education Act (IDEA) and the Free Exercise Clause of the First Amendment required the school district to provide the interpreter and that the Establishment Clause did not bar such relief. Issue: May a school district decline to provide an interpreter to a deaf child based on the Establishment Clause of the First Amendment? Held: No. Reasoning: The Court held that the Establishment Clause did not bar the school district from providing the requested interpreter. Chief Justice Rehnquist reasoned that, because the IDEA creates no financial incentive for parents to choose a sectarian school, the presence of an interpreter is not linked to the state and is the result of the private decision of individual's parents. "The service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as 'handicapped' under the IDEA, without regard to the 'sectarian-nonsectarian, or public-nonpublic nature' of the school the child attends," wrote Chief Justice Rehnquist. Rosenberger v. Rector and Visitors of the University of VA Facts: Ronald W. Rosenberger, a University of Virginia student, asked the University for $5,800 from a student activities fund to subsidize the publishing costs of Wide Awake: A Christian Perspective at the University of Virginia. The University refused to provide funding for the publication solely because it "primarily promotes or manifests a particular belief in or about a deity or an ultimate reality," as prohibited by University guidelines. Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Issue: Did the University of Virginia violate the First Amendment rights of its Christian magazine staff by denying them the same funding resources that it made available to secular student-run magazines? Held: Yes. Reasoning: the University's denial of funding to Rosenberger, due to the content of his message, imposed a financial burden on his speech and amounted to viewpoint discrimination. The Court noted that no matter how scarce University publication funding may be, if it chooses to promote speech at all, it must promote all forms of it equally. Furthermore, because it promoted past publications regardless of their religious content, the Court found the University's publication policy to be neutral toward religion and, therefore, not in violation of the establishment clause. The Court concluded by stating that the University could not stop all funding of religious speech while continuing to fund an atheistic perspective. The exclusion of several views is as offensive to free speech as the exclusion of only one. The University must provide a financial subsidy to a student religious publication on the same basis as other student publications. Board of Edu of Kiryas Joel Village School District v. Grumet Facts: In 1989, the New York legislature passed a school districting law that intentionally drew its boundaries in accordance with the boundaries of the Village of Kiryas Joel, a religious enclave of Satmar Hasidim who practice a strict form of Judaism. Children were not exposed to secular ways. Shortly before the new district commenced operations, the taxpayers and the association of state school boards embarked on a lawsuit claiming that the statute created a school district that limited access only to residents of Kiryas Joel. Issue: Did the 1989 statute violate the First Amendment's Establishment? Held: Yes. Reasoning: the statute's purpose was to exclude all but those who lived in and practiced the village enclave's extreme form of Judaism. This exclusionary intent failed to respect the Establishment Clause's requirement that states maintain a neutral position with respect to religion, because it clearly created a school zone which excluded those who were non-religious and/or did not practice Samtar Hasidism. Indeed, the very essence of the Establishment Clause is that government should not demonstrate a preference for one religion over another, or religion over non-religion in general. Agostini v. Felton Facts: This suit was brought by a New York parochial school board, and some of its student's parents, as a challenge to a District Court ruling upholding the twelve-year-old decision set out in Aguilar v. Felton (473 US 402). The decision in Aguilar prohibited public school teachers from teaching in parochial schools as a violation of the Establishment Clause. Issue: Is the Establishment Clause violated when public school teachers instruct in parochial schools? Held: No. Reasoning: The Court overruled its decision in Aguilar v. Felton. The Court held that there was no evidence to support its former presumption that the entrance of public school teachers into parochial schools will inevitably lead to the indoctrination of state-sponsored religion. The New Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 York program under which public school teachers were sent into parochial schools did not provide parochial schools with any incentive, financial or other, to establish religion in order to attract public school teachers. The Court added that under its new view, only those policies which generate an excessive conflict between church and state will be deemed to violate the Establishment Clause. As such, one should no longer find that all entanglements between church and state have a distinctly positive or negative impact on religion. Mitchell v. Helms Facts: Chapter 2 of the Education Consolidation and Improvement Act of 1981 provides for the allocation of funds for educational materials and equipment, including library materials and computer software and hardware, to public and private elementary and secondary schools to implement "secular, neutral, and nonideological" programs. In Jefferson Parish, Louisiana, about 30% of Chapter 2 funds are allocated for private schools, most of which are Catholic or otherwise religiously affiliated. Mary Helms and other public school parents file suit alleging that Chapter 2, as applied in Jefferson Parish, violated the First Amendment's Establishment Clause. Issue: Does Chapter 2 of the Education Consolidation and Improvement Act of 1981 violate the Establishment Clause of the First Amendment? Held: No. Reasoning: Chapter 2, as applied in Jefferson Parish, is not a law respecting an establishment of religion simply because many of the private schools receiving Chapter 2 aid in the parish are religiously affiliated. Turning to neutrality to distinguish between indoctrination attributable to the State and that which is not, Justice Thomas wrote for the Court, "[i]f the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government." Zelman v. Simmons-Harris Facts: Ohio's Pilot Project Scholarship Program provides tuition aid in the form of vouchers for certain students in the Cleveland City School District to attend participating public or private schools of their parent's choosing. Both religious and nonreligious schools in the district may participate. Tuition aid is distributed to parents according to financial need, and where the aid is spent depends solely upon where parents choose to enroll their children. In the 1999-2000 school year 82 percent of the participating private schools had a religious affiliation and 96 percent of the students participating in the scholarship program were enrolled in religiously affiliated schools. Sixty percent of the students were from families at or below the poverty line. A group of Ohio taxpayers sought to enjoin the program on the ground that it violated the Establishment Clause. Issue: Does Ohio's school voucher program violate the Establishment Clause? Held: No. Reasoning: the Court held that the program does not violate the Establishment Clause. The Court reasoned that, because Ohio's program is part of Ohio's general undertaking to provide educational opportunities to children, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients and the incidental advancement of a Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 religious mission, or any perceived endorsement, is reasonably attributable to the individual aid recipients not the government. Chief Justice Rehnquist wrote that the "Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice." McGowan v. Maryland Facts: Several employes of a discount department store sold a few items, such as floor wax and loose-leaf notebooks, to customers on a Sunday. By doing so, they violated Maryland's blue laws which only allow certain items, such as drugs, tobacco, newspapers and some foodstuffs, to be sold on Sundays. Issue: Do Maryland's blue laws violate the Free Exercise and Religious Establishment clauses of the First Amendment? Held: No. Reasoning: The Court found that the blue laws did not violate the Free Exercise Clause because the employees allege only economic injury and not infringement on their own religious practices. The Court also found that the blue laws did not violate the division between church and state. Sunday closing laws started out to facilitate church attendance in colonial America; however, the present Maryland laws are based on secular rather than religious state interests. The laws are to improve the "health, safety, recreation, and general well-being" of citizens. The present purpose of the laws is to provide a uniform day of rest for all. The fact that this day is of particular significance for various Christian sects does not bar the State from achieving its secular goals. Marsh v. Chambers Facts: Ernest Chambers, a member of the Nebraska legislature, challenged the legislature's chaplaincy practice in federal court. This practice involves the offering of a prayer at the beginning of each legislative session by a chaplain chosen by the state and paid out of public funds. Issue: Does the chaplaincy practice of the Nebraska legislature violate the Establishment Clause of the First Amendment? Held: No. Reasoning: Chief Justice Warren Burger abandoned the three-part test of Lemon v. Kurtzman, which had been the touchstone for cases involving the Establishment Clause. In its place, Burger rested the Court's opinion on historical custom. Prayers by tax-supported legislative chaplains could be traced to the First Continental Congress and to the First Congress that framed the Bill of Rights. As a consequence, the chaplaincy practice had become "part of the fabric of our society." In such circumstances, an invocation for Divine guidance is not an establishment of religion. "It is," wrote Burger, "simply a tolerable acknowledgment of beliefs widely held among the people of this country." Lynch, Mayor of Pawtucket v. Donnelly Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Facts: The city of Pawtucket, Rhode Island, annually erected a Christmas display located in the city's shopping district. The display included such objects as a Santa Claus house, a Christmas tree, a banner reading "Seasons Greetings," and a nativity scene. The creche had been included in the display for over 40 years. Daniel Donnelly objected to the display and took action against Dennis Lynch, the Mayor of Pawtucket. Issue: Did the inclusion of a nativity scene in the city's display violate the Establishment Clause of the First Amendment? Held: No. Reasoning: the Court held that notwithstanding the religious significance of the creche, the city had not violated the Establishment Clause. The Court found that the display, viewed in the context of the holiday season, was not a purposeful or surreptitious effort to advocate a particular religious message. The Court found that the display merely depicted the historical origins of the Holiday and had "legitimate secular purposes." The Court held that the symbols posed no danger of establishing a state church and that it was "far too late in the day to impose a crabbed reading of the [Establishment] Clause on the country." County of Allegheny v. ACLU Facts: Two public-sponsored holiday displays in Pittsburgh, Pennsylvania, were challenged by the American Civil Liberties Union. The first display involved a Christian nativity scene inside the Allegheny County Courthouse. The second display was a large Chanukah menorah, erected each year by the Chabad Jewish organization, outside the City-County building. The ACLU claimed the displays constituted state endorsement of religion. Issue: Did the public displays violate the Establishment Clause of the First Amendment? Held: Yes. Reasoning: the creche inside the courthouse unmistakably endorsed Christianity in violation of the Establishment Clause. By prominently displaying the words "Glory to God for the birth of Jesus Christ," the county sent a clear message that it supported and promoted Christian orthodoxy. The Court also held, however, that not all religious celebrations on government property violated the Establishment Clause. Six of the justices concluded that the display involving the menorah was constitutionally legitimate given its "particular physical setting." Capitol Square Review & Advisory Board v. Pinette Facts: In 1993, the Ku Klux Klan organization attempted to place an unattended cross on Capitol Square, the state-house plaza in Columbus, Ohio, during the 1993 Christmas season. Ohio law makes Capitol Square a forum for discussion of public questions and for public activities, and gives the Advisory Board responsibility for regulating access to the square. The Board denied the application of the Ku Klux Klan to erect the cross on Establishment Clause grounds. Issue: Did the Board's denial of a permit to the Ku Klux Klan violate free speech under the First Amendment? Held: Yes. Reasoning: The display was private religious speech that "is as fully protected under the Free Speech Clause as secular private expression." Because Capitol Square is designated as a traditional public forum, any group may express their views there, and the Board may regulate Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 the content of the Klan's expression on the plaza only if a restriction is necessary and narrowly drawn to serve a compelling state interest. Lee v. Weisman Facts: In keeping with the practice of several other public middle and high school principals in Providence, Rhode Island, Robert E. Lee, a middle school principal, invited a rabbi to speak at his school's graduation ceremony. Daniel Weisman's daughter, Deborah, was among the graduates. Hoping to stop the rabbi from speaking at his daughter's graduation, Weisman sought a temporary restraining order in District Court - but was denied. After the ceremony, where prayers were recited, Weisman filed for a permanent injunction barring Lee and other Providence public school officials from inviting clergy to deliver invocations and benedictions at their schools' ceremonies Issue: Does the inclusion of clergy who offer prayers at official public school ceremonies violate the Establishment Clause of the First Amendment? Held: Yes. Reasoning: he Court held that government involvement in this case creates "a state-sponsored and state-directed religious exercise in a public school." Such conduct conflicts with settled rules proscribing prayer for students. The school's rule creates subtle and indirect coercion (students must stand respectfully and silently), forcing students to act in ways which establish a state religion. The cornerstone principle of the Establishment Clause is that government may not compose official prayers to recite as part of a religious program carried on by government. Santa Fe Independent School District v. Jane Doe Facts: Prior to 1995, a student elected as Santa Fe High School's student council chaplain delivered a prayer, described as overtly Christian, over the public address system before each home varsity football game. One Mormon and one Catholic family filed suit challenging this practice and others under the Establishment Clause of the First Amendment. The District Court enjoined the public Santa Fe Independent School District (the District) from implementing its policy as it stood. While the suit was pending, the District adopted a new policy, which permitted, but did not require, student-initiated and student-led prayer at all the home games and which authorized two student elections, the first to determine whether "invocations" should be delivered at games, and the second to select the spokesperson to deliver them. Issue: Does the Santa Fe Independent School District's policy permitting student-led, studentinitiated prayer at football games violate the Establishment Clause of the First Amendment? Held: yes. Reasoning: the Court held that the District's policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause. The Court concluded that the football game prayers were public speech authorized by a government policy and taking place on government property at government-sponsored school-related events and that the District's policy involved both perceived and actual government endorsement of the delivery of prayer at important school events. Such speech is not properly characterized as "private," wrote Justice Stevens for the majority. McCreary County v. ACLU of Kentucky Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Facts: The American Civil Liberties Union (ACLU) sued three Kentucky counties in federal district court for displaying framed copies of the Ten Commandments in courthouses and public schools. The ACLU argued the displays violated the First Amendment's establishment clause, which prohibits the government from passing laws "respecting an establishment of religion." Issue: 1. Do Ten Commandments displays in public schools and in courthouses violate the First Amendment's establishment clause, which prohibits government from passing laws "respecting an establishment of religion?" 2. Was a determination that the displays' purpose had been to advance religion sufficient for the displays' invalidation? Held: Yes. Yes. Reasoning: the majority held that the displays violated the establishment clause because their purpose had been to advance religion. In the case of each of the displays, the Court held, an observer would have concluded that the government was endorsing religion. The first display for presenting the Ten Commandments in isolation; the second for showing the Commandments along with other religious passages; the third for presenting the Commandments in a presentation of the "Foundations of American Law," an exhibit in which the county reached "for any way to keep a religious document on the walls of courthouses." Van Orden v. Perry Facts: Thomas Van Orden sued Texas in federal district court, arguing a Ten Commandments monument on the grounds of the state capitol building represented an unconstitutional government endorsement of religion. Orden argued this violated the First Amendment's establishment clause, which prohibits the government from passing laws "respecting an establishment of religion." Issue: Does a Ten Commandments monument on the grounds of a state capitol building violate the First Amendment's establishment clause, which barred the government from passing laws "respecting an establishment of religion?" Held: No. Reasoning: the Court held that the establishment clause did not bar the monument on the grounds of Texas' state capitol building. The plurality deemed the Texas monument part of the nation's tradition of recognizing the Ten Commandments' historical meaning. Though the Commandments are religious, the plurality argued, "simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the establishment clause." Salazar v. Buono Facts: Private citizens placed a Latin cross on a rock outcropping in a remote section of Mojave Desert on federal land. Court is hearing a challenge to a statute that would transfer cross and land on which it stands to a private party. Issue: Did the district court properly enjoin the government from implementing the land transfer statute? Held: Remanded. Reasoning: District court failed to consider whether, in light of the change in law and circs effected by the land-transfer statute, the “reasonable observer” standard continued to be the Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 appropriate framework through which to consider the establishment clause concerns invoked to justify the requested relief. Free Exercise Clause Wisconsin v. Yoder Facts: Jonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Yutzy, a member of the Conservative Amish Mennonite Church, were prosecuted under a Wisconsin law that required all children to attend public schools until age 16. The three parents refused to send their children to such schools after the eighth grade, arguing that high school attendance was contrary to their religious beliefs. Issue: Did Wisconsin's requirement that all parents send their children to school at least until age 16 violate the First Amendment by criminalizing the conduct of parents who refused to send their children to school for religious reasons? Held: Yes. Reasoning: The Court held that individual's interests in the free exercise of religion under the First Amendment outweighed the State's interests in compelling school attendance beyond the eighth grade. In the majority opinion by Chief Justice Warren E. Burger, the Court found that the values and programs of secondary school were "in sharp conflict with the fundamental mode of life mandated by the Amish religion," and that an additional one or two years of high school would not produce the benefits of public education cited by Wisconsin to justify the law. Sherbert v. Verner Facts: Adeil Sherbert, a member of the Seventh-day Adventist Church, was fired from her job after she refused to work on Saturday, the Sabbath Day of her faith. The Employment Security Commission ruled that she could not receive unemployment benefits because her refusal to work on Saturday constituted a failure without good cause to accept available work. Under South Carolina law, employers were not allowed to require employees to work on Sunday. Issue: Did the denial of unemployment compensation violate the First and Fourteenth Amendments? Held: Yes. Reasoning: The Free Exercise Clause prohibits the government from setting unemployment benefits eligibility requirements such that a person cannot properly observe key religious principles. In a majority opinion written by Justice Brennan, the Court held that the state's eligibility restrictions for unemployment compensation imposed a significant burden on Sherbert's ability to freely exercise her faith. Furthermore, there was no compelling state interest which justified such a substantial burden on this basic First Amendment right. Employment Division, Department of Human Resources of Oregon v. Smith Facts: Two counselors for a private drug rehabilitation organization ingested peyote -- a powerful hallucinogen -- as part of their religious ceremonies as members of the Native American Church. As a result of this conduct, the rehabilitation organization fired the Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 counselors. The counselors filed a claim for unemployment compensation. The government denied them benefits because the reason for their dismissal was considered work-related "misconduct." Issue: Can a state deny unemployment benefits to a worker fired for using illegal drugs for religious purposes? Held: yes. Reasoning: Justice Antonin Scalia, writing for the majority, observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws. City of Boerne v. Flores Facts: The Archbishop of San Antonio sued local zoning authorities for violating his rights under the 1993 Religious Freedom Restoration Act (RFRA), by denying him a permit to expand his church in Boerne, Texas. Boerne's zoning authorities argued that the Archbishop's church was located in a historic preservation district governed by an ordinance forbidding new construction, and that the RFRA was unconstitutional insofar as it sought to override this local preservation ordinance. Issue: Did Congress exceed its power by enacting RFRA? Held: Yes. Reasoning: Under the RFRA, the government is prohibited from "substantially burden[ing]" religion's free exercise unless it must do so to further a compelling government interest, and, even then, it may only impose the least restrictive burden. The Court held that while Congress may enact such legislation as the RFRA, in an attempt to prevent the abuse of religious freedoms, it may not determine the manner in which states enforce the substance of its legislative restrictions. This, the Court added, is precisely what the RFRA does by overly restricting the states' freedom to enforce its spirit in a manner which they deem most appropriate. With respect to this case, specifically, there was no evidence to suggest that Boerne's historic preservation ordinance favored one religion over another, or that it was based on animus or hostility for free religious exercise. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah Facts: The Church of Lukumi Babalu Aye practiced the Afro-Caribbean-based religion of Santeria. Santeria used animal sacrifice as a form of worship in which an animal's carotid arteries would be cut and, except during healing and death rights, the animal would be eaten. Shortly after the announcement of the establishment of a Santeria church in Hialeah, Florida, the city council adopted several ordinances addressing religious sacrifice. The ordinances prohibited possession of animals for sacrifice or slaughter, with specific exemptions for state-licensed activities. Issue: Did the city of Hialeah's ordinance, prohibiting ritual animal sacrifices, violate the First Amendment's Free Exercise Clause? Held: Yes. Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Reasoning: The Court held that the ordinances were neither neutral nor generally applicable. The ordinances had to be justified by a compelling governmental interest and they had to be narrowly tailored to that interest. The core failure of the ordinances were that they applied exclusively to the church. The ordinances singled out the activities of the Santeria faith and suppressed more religious conduct than was necessary to achieve their stated ends. Only conduct tied to religious belief was burdened. The ordinances targeted religious behavior, therefore they failed to survive the rigors of strict scrutiny. Brandenburg v. Ohio Facts: Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." Issue: Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments? Held: Yes. Reasoning:. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution. Cohen v. California Facts: A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "FUCK THE DRAFT. STOP THE WAR" The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct." Cohen was found guilty and sentenced to 30 days in jail. Issue: Did California's statute, prohibiting the display of offensive messages such as "Fuck the Draft," violate freedom of expression as protected by the First Amendment? Held: Yes. Reasoning: In an opinion by Justice John Marshall Harlan, the Court reasoned that the expletive, while provocative, was not directed toward anyone; besides, there was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. Harlan recognized that "one man's vulgarity is another's lyric." In doing so, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas). Republican Party v. White Facts: Minnesota's Constitution provides for the selection of all state judges by popular election. The announcement clause of the Minnesota Supreme Court's canon of judicial conduct Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 prohibits a candidate from announcing his or her views on disputed legal or political issues. While running for associate justice of the Minnesota Supreme Court, Gregory Wersal filed suit, seeking a declaration that the announce clause violates the First Amendment and an injunction against its enforcement. Wersal alleged that he was forced to refrain from announcing his views on disputed issues during the 1998 campaign, to the point where he declined response to questions put to him by the press and public, out of concern that he might run afoul of the announce clause. T Issue: Does the First Amendment permit the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues? Held: No. Reasoning: The announce clause violates the First Amendment. The Court reasoned that the announcement clause prohibits speech based on its content and burdens a category of speech that is at the core of First Amendment freedoms - speech about the qualifications of candidates for public office. Moreover, the Court concluded that the clause did not serve to preserve the state judiciary's impartiality, its argued compelling state interest. "There is an obvious tension between the article of Minnesota's popularly approved Constitution which provides that judges shall be elected, and the Minnesota Supreme Court's announce clause which places most subjects of interest to the voters off limits," wrote Justice Scalia. Tinker v. Des Moines School District Facts: In December 1965, a group of students in Des Moines held a meeting in the home of 16year-old Christopher Eckhardt to plan a public showing of their support for a truce in the Vietnam war. They decided to wear black armbands throughout the holiday season and to fast on December 16 and New Year's Eve. The principals of the Des Moines school learned of the plan and met on December 14 to create a policy that stated that any student wearing an armband would be asked to remove it, with refusal to do so resulting in suspension. On December 16, Mary Beth Tinker and Christopher Eckhardt wore their armbands to school and were sent home. The following day, John Tinker did the same with the same result. The students did not return to school until after New Year's Day, the planned end of the protest. Through their parents, the students sued the school district for violating the students' right of expression and sought an injunction to prevent the school district from disciplining the students. Issue: Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the students' freedom of speech protections guaranteed by the First Amendment? Held: Yes. Reasoning: The Supreme Court held that the armbands represented pure speech that is entirely separate from the actions or conduct of those participating in it. The Court also held that the students did not lose their First Amendment rights to freedom of speech when they stepped onto school property. In order to justify the suppression of speech, the school officials must be able to prove that the conduct in question would "materially and substantially interfere" with Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 the operation of the school. In this case, the school district's actions evidently stemmed from a fear of possible disruption rather than any actual interference. US v. O’Brien Facts: David O'Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under a federal law that made the destruction or mutilation of drafts card a crime. Issue: Was the law an unconstitutional infringement of O'Brien's freedom of speech? Held: No. Reasoning: The 7-to-1 majority, speaking through Chief Justice Earl Warren, established a test to determine whether governmental regulation involving symbolic speech was justified. The formula examines whether the regulation is unrelated to content and narrowly tailored to achieve the government's interest. "[W]e think it clear," wrote Warren," that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest." Texas v. Johnson Facts: In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. Issue: Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment? Held: Yes. Reasoning: Johnson's burning of a flag was protected expression under the First Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Kunz v. New York Facts: New York City ordinance under which officials had refused to renew a permit for street preaching to Carl Jacob Kunz, a Baptist minister whose earlier sermons had ridiculed and denounced other religious beliefs. Issue: Held: struck down the ordinance as a prior restraint of First Amendment rights. Reasoning: In his opinion, Vinson observed that the ordinance did not specify any power of revocation. He cited a series of earlier cases — including Lovell v. City of Griffin (1938) and Hague v. Committee for Industrial Organization (1939) — in which the Court had condemned Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 licensing systems that “vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places.” He believed these decisions pointed to “the invalidity of such prior restraints upon the right to speak.” The city was free to impose “punitive remedies” on speech that led to disorder or violence, but such “punishment” had to be distinguished from unconstitutional “suppression.” City Council v. Taxpayers for Vincent Facts: city ordinance prohibiting the posting of signs, including for political candidates, on utility poles, cross wires, and other structures on public property. Held: Ordinance upheld. Reasoning: In the opinion for the Court, Justice John Paul Stevens defended the ordinance against claims that it violated freedom of speech because it was unconstitutionally applied or overly broad. Stevens argued that overbreadth did not apply because the ordinance would not affect other third parties any differently than the petitioners, the supporters of a candidate running for election to the Los Angeles City Council who sought to prevent the city from removing signs that they had posted during a campaign. Stevens asserted that the ordinance, which applied to all signs, was not intended to regulate speech on the basis of its content. Stevens considered the law an appropriate restriction as to “the time, place, or manner of expression.” The law left candidates with alternate means of communication. Moreover, Stevens noted that the law was more narrowly tailored than attempts to control litter by banning the distribution of pamphlets. Denying that utility poles were the equivalent to public streets and parks, the Court also rejected the idea that the public property at issue constituted a “public forum” for First Amendment purposes. Although the city might have chosen to make exceptions for some forms of political speech, it was not constitutionally obligated to do so, and such exceptions might even have resulted in unconstitutional content discrimination. Ward v. Rock against Racism Facts: New York City, responding to complaints of high-decibel concerts adjoining residential neighborhoods, mandated the use of city-provided sound systems and technicians for concerts in Central Park. Members of rock group claimed that the inability to use their own sound equipment and technicians in a concert in a public forum interfered with their First Amendment rights of expression. Issue: Does the New York ordinance substituting a city-employed technician and mixing board for a performer's mixer and equipment violate the First Amendment? Held: No. Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Reasoning: The Court upheld the ordinance, giving broad deference to the government's interest in maintaining order. As long as "the means chosen are not substantially broader than necessary to achieve the government's interest," a regulation will not be invalidated because a court concludes that the government's interest "could be adequately served by some lessspeech-restrictive alternative." Madsen v. Women’s Health Center Facts: Women's Health Center Inc. operated several abortion clinics throughout central Florida, including the Aware Woman Center for Choice in Melbourne, Florida. In 1992, in response to anti-abortion protesters, a state court prohibited the protesters from physically abusing those entering or exiting the clinic, or otherwise interfering with access to the clinic. About 6 months later, Women's Health Center Inc. expressed a need to broaden the court order. The state court agreed, banning demonstrators from entering a 36-foot buffer-zone around the clinic, making excessive noise, using images visible to patients, approaching patients within a 300-foot radius of the clinic, and protesting within a 300-foot radius of staff residences. Petitioner Judy Madsen and her fellow protesters claimed that these restrictions violated their First Amendment right to free speech, but the Florida Supreme Court disagreed, upholding the court order. Issue: 1) Is the prohibition of all protesting within the 36-foot buffer zone around the front of the clinic an infringement of the First Amendment right to free speech? 2) Is the 36-foot buffer zone along the back and side of the clinic a breach of the First Amendment right to free speech? 3) Do the limitations imposed on noise-making constitute a breach of the First Amendment right to free speech? 4) Do the restrictions placed on the use of images violate the First Amendment right to free speech? 5) Is it a breach of the First Amendment right to free speech to bar protesters from approaching potential patients when they are within a 300-foot radius of the clinic? 6) Is it a violation of the First Amendment right to free speech to prohibit all protesting in a 300foot radius of clinic staff residences? Held: No, Yes, No, Yes, Yes, and Yes. Reasoning: the Court found that the state of Florida could only restrict protesters to the extent necessary to allow the clinic to run and the staff to live in their homes without interference. Thus, the majority approved of the 36-foot buffer zone around the front of the clinic because it was essential to allow patients and staff to enter and leave the building freely, but disapproved of the 36-foot buffer zone along the back and side of the building because it found no indication that protesting in these areas interfered with the function of the clinic. The Court also determined that the limitations placed on noise-making were necessary to insure the well-being of the patients, whereas those placed on images were not because they were easier to ignore. Finally, the Court concluded that both 300-foot radius rules were too broad, thus restricting the protestors more than was necessary. Therefore, the decision of the Florida Supreme Court was affirmed in part and reversed in part. Virginia v. Kevin Hicks Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Facts: The Richmond Redevelopment and Housing Authority (RRHA), a political subdivision of Virginia, owns and operates Whitcomb Court, a low-income housing development. In 1997, the Richmond City Council conveyed Whitcomb Court's streets to the RRHA. Subsequently, the RRHA enacted a policy authorizing the Richmond police to serve notice on any person lacking "a legitimate business or social purpose" for being on the premises and to arrest for trespassing any person who remains or returns after having been notified. After the RRHA gave Kevin Hicks, a nonresident, written notice barring him from Whitcomb Court, he trespassed there and was arrested and convicted. At trial, Hicks claimed that RRHA's policy was unconstitutionally overbroad and void for vagueness. Issue: Is the Richmond Redevelopment and Housing Authority's trespass policy, which provides for arrest after being served notice for being on the premises without "a legitimate business or social purpose," facially invalid under the First Amendment's overbreadth doctrine? Held: No. Reasoning: In a unanimous opinion delivered by Justice Antonin Scalia, the Court held that the RRHA's trespass policy is not facially invalid under the First Amendment's overbreadth doctrine. Noting that he was not in Whitcomb Court to engage in constitutionally protected speech, the Court reasoned that Hicks had not shown that the RRHA policy prohibited a substantial amount of protected speech in relation to its many legitimate applications. Justice Scalia wrote, "both the notice-barment rule and the 'legitimate business or social purpose' rule apply to all persons who enter the streets of Whitcomb Court, not just to those who seek to engage in expression." Snyder v. Phelps Facts: The family of deceased Marine Lance Cpl. Matthew Snyder filed a lawsuit against members of the Westboro Baptist Church who picketed at his funeral. The family accused the church and its founders of defamation, invasion of privacy and the intentional infliction of emotional distress for displaying signs that said, "Thank God for dead soldiers" and "Fag troops" at Snyder's funeral. Issue: Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased? Held: Yes. Reasoning: The Court held that the First Amendment shields those who stage a protest at the funeral of a military service member from liability. Justice Stephen J. Breyer filed a concurring opinion in which he wrote that while he agreed with the majority's conclusion in the case, "I do not believe that our First Amendment analysis can stop at that point." Justice Samuel Alito filed a lone dissent, in which he argued: "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case." Forsyth County v. Nationalist Movement Facts: The Board of Commissioners for Forsyth County enacted an ordinance that permitted the county administrator to charge a fee of not more than $1,000 per day for a permit to hold a parade, assembly, or demonstration on public property in the county. The law allowed the administrator to adjust the fee to correspond with the estimated cost of maintaining public order during the activity. In January 1989, The Nationalist Movement (Movement) applied for a permit to hold a rally on the courthouse steps in Cumming, Georgia, to protest the federal Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 holiday honoring Martin Luther King, Jr. The county charged $100 for the permit, but that amount that did not include a calculation for expected law enforcement expenses during the rally. The Movement did not pay the fee and did not hold the rally; instead the Movement sued the county in federal district court and challenged its authority to interfere with the Movement’s free speech and assembly rights. Issue: Does an ordinance that permits a government administrator to vary the fee for assembling or parading to reflect the estimated cost of maintaining public order violate the free speech guarantees under the First and Fourteenth Amendments? Held: Yes. Reasoning: The Court held that the ordinance violated the free speech guarantees of the First and Fourteenth Amendments because it contained no reasonable or definite standards to guide the county administrator’s calculation of permit fees. Additionally, the ordinance required the administrator to examine the speech’s content to assess the likelihood of public hostility to the message and adjust the fee accordingly to account for security and law enforcement costs. In the Court’s view, a nominal fee lower than $1000 could not save the ordinance from the constitutional infirmities it found. Thomas v. Chicago Park District Facts: The Chicago Park District is responsible for operating public parks and other public property in Chicago. Pursuant to its authority, the Park District adopted an ordinance requiring individuals to obtain a permit before conducting large-scale events in public parks. The ordinance provides that the Park District may deny a permit on any of 13 specified grounds, must process applications within 28 days, and must explain its reasons for a denial. An unsuccessful applicant may appeal, first, to the Park District's general superintendent and then to state court. The Windy City Hemp Development Board applied on several occasions for permits to hold rallies advocating the legalization of marijuana. Some permits were granted and others were denied. Ultimately, the Board filed suit, alleging that the ordinance is unconstitutional on its face. Issue: Must a municipal park ordinance requiring individuals to obtain a permit before conducting large-scale events must, consistent with the First Amendment, contain certain procedural safeguards? Held: No. Reasoning: In a unanimous opinion delivered by Justice Antonin Scalia, the Court held that the First Amendment free speech guarantee does not require the Park District to initiate litigation every time the agency denied a permit for an event or specify a deadline for judicial review of a challenge to the denial of a permit. The Court reasoned that the licensing scheme was not based on subject-matter censorship, but rather content-neutral time, place, and manner regulation of the use of a public forum thus making the ordinance constitutional. "On balance, we think the permissive nature of the ordinance furthers, rather than constricts, free speech," wrote Justice Scalia for the Court. Frisby v. Schulz Facts: Sandra Schultz and Robert Braun both strongly opposed abortion and gathered likeminded citizens together to picket in front of the home of a local doctor who performed Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 abortions. In response, the city of Brookfield, Wisconsin passed a law against all picketing in front of residential homes except for labor disputes. Following the advice of the town attorney, the city amended the law to ban labor picketing as well. The stated purpose of the law was "the protection and preservation of the home." When enacted, Schultz and Braun stopped picketing and filed suit in federal district court, claiming that the law violated the First Amendment. Issue: Does a city ordinance prohibiting picketing in front of residential homes violate the First Amendment? Held: No. Reasoning: Justice Sandra Day O'Connor delivered the opinion for a 6-3 court. The Court held that since the street constituted a traditional public forum, the ban must satisfy strict standards in order to remain. Since the ban is "content neutral," "leaves open ample alternative channels of communication," and serves a "significant government interest," the Court ruled that it passed the strict standards and could remain. The city government had a legitimate purpose in protecting the homes of its residents, and did so without favoring one idea over another or eliminating the ability to communicate an idea. Southeastern Promotions Ltd. v. Conrad Facts: Southeastern Promotions was a theatrical production company that requested to use the Tivoli Theater in Chattanooga, Tennessee to present the musical "Hair." "Hair" was a controversial musical that contained obscenities and nudity. The Tivoli was privately owned, but was leased to the city of Chattanooga. The city rejected Southeastern's request based on the controversial content in the production. Southeastern challenged the decision in the United States District Court for the Eastern District of Tennessee, alleging that Chattanooga's denial of its request violated the free speech clause of the First Amendment. Issue: Was Chattanooga's denial of Southeastern's request in violation of the free speech clause of the First Amendment? Held: Yes. Reasoning: In a 6-3 opinion, the Court reversed the Sixth Circuit and held that Chattanooga's denial of the Southeastern's request was a "prior restraint," an attempt to censor speech and prevent it from reaching the public. Justice Harry A. Blackmun, writing for the majority, stated that though prior restraints were not necessarily unconstitutional, "the risks of freewheeling censorship are formidable." Chattanooga's "procedural safeguards were lacking" in dealing with those risks and placed the burden on Southeastern to ensure that the musical could be produced. This was inconsistent with Freedman v. Maryland, and therefore unconstitutional. Perry Education Association v. Perry Local Educators’ Association Facts: The Perry Education Association (PEA) won an election against the Perry Local Educators' Association (PLEA) to serve as the sole union representing teachers in Perry Township, Indiana. As part of the collective-bargaining agreement reached between PEA and the Board of Education of Perry Township, PEA obtained exclusive rights to use the internal school mail system and PLEA was denied access. PLEA contended that denying their members use of the mail system violated the First Amendment and the Equal Protection Clauses of the Fourteenth Amendment Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Issue: Does a local school board violate the First Amendment by disallowing a nonofficial teachers union from using its internal school mail system? Held: no. Reasoning: Justice Byron White delivered the opinion of a 5-4 court. The school board chose to grant exclusive access to the official teachers union in order to facilitate a collective-bargaining agreement. It did not act to suppress the speech of rival teachers unions. The school board entrusted PLEA with obligations as the sole representative of teachers that would require the use of the mail system. PLEA did not have these obligations and could communicate effectively though many other channels. Since the mail system was not a "public forum," PLEA had no unassailable right to access it. Bethel School District No. 403 v. Fraser Facts: At a school assembly of approximately 600 high school students, Matthew Fraser made a speech nominating a fellow student for elective office. In his speech, Fraser used what some observers believed was a graphic sexual metaphor to promote the candidacy of his friend. As part of its disciplinary code, Bethel High School enforced a rule prohibiting conduct which "substantially interferes with the educational process... including the use of obscene, profane language or gestures." Fraser was suspended from school for two days. Issue: Does the First Amendment prevent a school district from disciplining a high school student for giving a lewd speech at a high school assembly? Held: No. Reasoning: The Court found that it was appropriate for the school to prohibit the use of vulgar and offensive language. Chief Justice Burger distinguished between political speech which the Court previously had protected in Tinker v. Des Moines Independent Community School District (1969) and the supposed sexual content of Fraser's message at the assembly. Burger concluded that the First Amendment did not prohibit schools from prohibiting vulgar and lewd speech since such discourse was inconsistent with the "fundamental values of public school education." Hazelwood School District v. Kuhlmeier Facts: The Spectrum, the school-sponsored newspaper of Hazelwood East High School, was written and edited by students. In May 1983, Robert E. Reynolds, the school principal, received the pages proofs for the May 13 issue. Reynolds found two of the articles in the issue to be inappropriate, and ordered that the pages on which the articles appeared be withheld from publication. Cathy Kuhlmeier and two other former Hazelwood East students brought the case to court. Issue: Did the principal's deletion of the articles violate the students' rights under the First Amendment? Held: No. Reasoning: the Court held that the First Amendment did not require schools to affirmatively promote particular types of student speech. The Court held that schools must be able to set high standards for student speech disseminated under their auspices, and that schools retained the right to refuse to sponsor speech that was "inconsistent with 'the shared values of a civilized social order.'" Educators did not offend the First Amendment by exercising editorial control over Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 the content of student speech so long as their actions were "reasonably related to legitimate pedagogical concerns." The actions of principal Reynolds, the Court held, met this test. Rosenberger (repeated; see above) International Society for Krishna Consciousness v. Lee Facts: New York City's airport authority banned repetitive solicitation of money within airline terminals. Solicitation was permitted outside the terminals. The International Society for Krishna Consciousness solicits funds in public places. It challenged the regulation. A federal district court granted an injunction against the airport authority. The authority appealed. Issue: Does the regulation violate the First Amendment free speech clause? Held: no. Reasoning: An airport terminal is not a public forum. The regulation banning such activity need only satisfy a reasonableness standard. The regulation is reasonable. Solicitators may slow the path of possible contributors, cause duress or commit fraud. Therefore, the regulation is permissible. In a related case, the Court held invalid the airport authority’s ban on literature distribution in airport terminals. Central Hudson Gas & Electric Corporation v. Public Service Commission of New York Facts: The Public Service Commission of New York (PSC), in the interest of conserving energy, enacted a regulation that prohibited electric utilities from promoting electricity use. The PSC's regulation distinguished promotional advertising from informational advertising, which was permitted. Central Hudson Gas and Electric challenged the regulation. Issue: Did the PSC's ban on advertising violate the freedom of speech protected by the First and Fourteenth Amendments? Held: Yes. Reasoning: the Court overruled the Court of Appeals of New York and held that the New York's ban violated the right to commercial speech. Writing for the majority, Justice Lewis F. Powell cited the protections for "commercial speech from unwarranted governmental regulation" set forth in Virginia Pharmacy Board v. Virginia Citizens Consumer Council. The Court recognized New York's interest in promoting energy conservation and accepted that the PSC's regulation would directly further that interest. However, since the regulation restricted all promotional advertising regardless of its effect on electricity use, it violated the First and Fourteenth Amendment under First National Bank of Boston v. Bellotti. Lorillard Tobacco Co. v. Reilly Facts: The Attorney General of Massachusetts promulgated comprehensive regulations governing the advertising and sale of cigarettes, smokeless tobacco, and cigars. Members of the tobacco industry filed suit challenging the regulations. Lorillard Tobacco Company and others asserted that that the regulations violated the First and Fourteenth Amendments. Regulations being challenged include: 1. Retail outlet sales practices Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 is unfair or deceptive practice to use self service displays or fail to place tobacco products out of the reach of all consumers 2. Advertising Restrictions  is unfair or deceptive practice to engage in outdoor advertising, including advertising within 1000 feet of any elementary or secondary school  or to engage in Point of Sale advertising with any product placed lower than 5 feet from the floor of a retail establishment located within 1000 foot radius of any playground or school Petitioners urge rejection of Central Hudson test and use of strict scrutiny. Central Hudson Test: 1. speech entitled to 1A protection 2. compelling state interest 3. relationship between harm underlying state’s interest and the means identified by the state to advance that interest 4. is the speech restriction no more extensive than necessary to serve the interests that support it Issue: Do portions of the Attorney General's regulations governing the advertising and sale of tobacco products violate the First Amendment? Held: Yes. Reasoning: Outdoor advertising regs do not meet 4th Hudson requirement. AG did not carefully calculate costs and burdens on speech imposed by regs. AG did not consider impact of 1000 foot restriction on commercial speech in major metropolitan areas. Range of comms restricted also seems unduly broad. POS advertising restrictions fail 3rd and 4th steps. Sales regulations are constitutional. Do not violate 1st amendment.  Sheppard v. Maxwell Facts: After suffering a trial court conviction of second-degree murder for the bludgeoning death of his pregnant wife, Samuel Sheppard challenged the verdict as the product of an unfair trial. Sheppard, who maintained his innocence of the crime, alleged that the trial judge failed to protect him from the massive, widespread, and prejudicial publicity that attended his prosecution. Issue: Was Sheppard deprived of a fair trial? Held: Yes. Reasoning: Sheppard did not receive a fair trial. Noting that although freedom of expression should be given great latitude, the Court held that it must not be so broad as to divert the trial away from its primary purpose: adjudicating both criminal and civil matters in an objective, calm, and solemn courtroom setting. The Cleveland television media's repeated broadcasts of Sheppard confessing in detail to crimes he was later charged with, the blatant and hostile trial coverage by Cleveland's radio and print media, and the physical arrangement of the courtroom itself - which facilitated collaboration between the prosecution and present media - all combined to so inflame the jurors' minds against Sheppard as to deny him a fair trial. The Court concluded that the trial judge should have either postponed the proceedings or transferred them to a different venue. Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Nebraska Press Association v. Stuart Facts: A Nebraska state trial judge, presiding over a widely publicized murder trial, entered an order restraining members of the press from publishing or broadcasting accounts of confessions made by the accused to the police. The judge felt that this measure was necessary to guarantee a fair trial to the accused. Issue: Did the judge's order violate the First and Fourteenth Amendments? Held: Yes. Reasoning: The Court agreed with the trial judge that the murder case would generate "intense and pervasive pretrial publicity." However, the unanimous court held that the practical problems associated with implementing a prior restraint on the press in this case would not have served the accused's rights. Chief Justice Burger reasoned that "a whole community cannot be restrained from discussing a subject intimately affecting life within it." Seattle Times Co. v. Rhinehart Facts: a nontraditional religious group the Aquarian Foundation and its leader had sued the Seattle Times and the Walla Walla Union-Bulletin for libel, alleging that both papers had published false information that detrimentally affected membership and contributions to the group. As part of the discovery process, the trial court ordered the plaintiffs to disclose to the newspapers the names and addresses of members and donors. The court also issued a protective order prohibiting the newspapers from publishing or disseminating this information or from using it in any way except to prepare for and try the case because the plaintiffs had offered evidence that threats of violence had been directed at group members. Held: protective order prohibiting the publication of information gained by a newspaper through discovery in a civil lawsuit did not violate the First Amendment. Reasoning: the Supreme Court rejected the argument adopted by lower courts that a protective order limiting a party’s ability to disseminate information obtained in discovery represented a paradigmatic prior restraint on speech subject to strict scrutiny. Had this argument prevailed, almost no protective order limiting dissemination of information obtained in discovery would have survived First Amendment scrutiny, and a presumptive right to disseminate materials obtained in discovery would exist. Instead, the Court upheld the protective order because it furthered a substantial government interest in preventing the misuse of information produced through the court’s coercive powers. In so doing, the justices noted that litigants were able to obtain a broad scope of information through discovery and that public disclosure of some of that information could be damaging to the party forced to produce it. The Court also noted that federal and state court rules required a party seeking a protective order to make a showing of “good cause” that the order was necessary to prevent annoyance, embarrassment, or oppression. It found that such a showing was sufficient to satisfy the First Amendment and that no heightened scrutiny beyond this was required. Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 In distinguishing the protective order from other prior restraints, the Court relied on two unique features of discovery. First, in this instance, the newspapers were able to gain access to the information only because the trial court had compelled the plaintiffs to disclose the information as part of the discovery process. Second, discovery historically had not been part of the public component of a civil trial, so the Court distinguished the protective order from orders seeking to limit disclosure of information obtained outside the judicial process and orders seeking to limit disclosure of or comment on public components of a trial, such as courtroom proceedings. Gentile v. State Bar of Nevada Facts: This case involved statements made at a press conference by Dominic Gentile, a Las Vegas–based criminal defense attorney, who had asserted his client’s innocence and said that the police were corrupt. Nevada Supreme Court Rule 177 had placed limits on statements an attorney could make if he or she “knows or reasonably should know that it will have a substantial likelihood of materially prejudicing” the finder of fact in a case. Held: struck down Nevada’s judicially imposed limits on attorney speech as too vague while also upholding the constitutionality of some restrictions on attorney speech. Reasoning: The majority opinion explained that in specific, the safe harbor provision of the rule — which allowed attorneys to make certain classes of statements in spite of the rule’s prohibition — failed to provide adequate notice to Gentile that his statements were barred. The Court held that the rule’s use of such words as general and elaboration, both classic terms of degree, failed, in the language of Grayned v. City of Rockford (1972), to provide “fair notice to those to whom it is directed.” The Court also found that Gentile had made efforts to comply with the rule but still ran afoul of its strictures. The risk of discriminatory enforcement was enough to justify the Court’s finding even if petitioner could not make such a showing in this case. Substantial likelihood test found to be constitutional Rehnquist argued that the state supreme court’s standard of barring statements that would cause a substantial likelihood of material prejudice in a case was sufficient to protect Gentile’s interest. The chief justice borrowed from the clear and present danger test in deciding whether a state may prohibit media speech or publication about a pending trial. The Court held that when First Amendment rights are implicated, those interests must be balanced against the state’s legitimate interest in regulating the activity in question. It found that the substantial likelihood Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 test fit this mold because it was designed to protect the integrity and fairness of the state judicial system and imposed only narrow and necessary limitations on lawyers’ speech. NYT Co. v. US Facts: In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. Issue: Did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment? Held: Yes. Reasoning: the Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified. Powers of Taxation as Applied to the Press Grosjean v. American Press Co. Facts: a Louisiana law that imposed a 2 percent tax on the gross receipts of newspapers with circulations of more than 20,000 copies per week. Issue: Held: Violated free press clause of 1A. Reasoning: Sutherland agreed that newspapers should not be “immune from any of the ordinary forms of taxation for support of the government” — a position the Court later affirmed in Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue (1983) — but he then concluded that the tax in this case interfered with the role of the press “as a vital source of public information.” Sutherland further observed that Louisiana’s tax was the only one of its kind in U.S. history to be enacted. Minneapolis Star & Tribune Co. v. MN Commissioner of Revenue Facts: From 1967 to 1971, the Minneapolis Star and Tribune Company, a publisher of a morning and evening newspaper in Minneapolis, was exempt from a state sales and use tax provided periodic publications. In 1971, the Minnesota legislature imposed a "use tax" on the cost of paper and ink products consumed in publishing. In 1974, the legislature exempted the first $100,000 worth of ink and paper consumed a year. After the enactment of this exemption, the Star Tribune found itself paying roughly two-thirds of the total revenue raised by the tax. Issue: Did the taxing scheme enacted by the Minnesota legislature violate the freedom of press guaranteed by the First Amendment? Held: Yes. Reasoning: The Court held that while the First Amendment did not prohibit all regulation of the press, Minnesota had "created a special tax that applie[d] only to certain publications protected Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 by the First Amendment." Noting that there was "substantial evidence that differential taxation of the press would have troubled the Framers of the First Amendment," the Court held that when states single out the press "the threat of burdensome taxes becomes acute." The Court concluded that "recognizing a power in the State not only to single out the press but also to tailor the tax so that it singles out a few members of the press presents such a potential for abuse that no interest suggested by Minnesota can justify the scheme." Arkansas Writers’ Project v. Ragland Facts: Arkansas law exempting newspapers as well as “religious, professional, trade and sports journals and/or publications printed and published within this State,” but not general interest magazines, from the state’s 4 percent sales tax. Arkansas gave tax exemptions to many publications, but not magazines The Arkansas Writers’ Project, Inc., publisher of the magazine Arkansas Times, filed suit against the state law. Issue: Held: Unconstitutional. Reasoning: In the Court’s opinion, Justice Thurgood Marshall relied heavily on the Court’s earlier decision in Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue (1983), in which the Court invalidated a state tax that exempted paper and ink costs of only newspapers that spent less than $100,000 on these supplies. Agreeing that no evidence existed that Arkansas had “an improper censorial motive,” Marshall nonetheless noted that “a power to tax differentially, as opposed to a power to tax generally, gives a government a powerful weapon against the taxpayer selected.” Arkansas's content discrimination violated the First Amendment Arkansas chose to distinguish exempt from nonexempt publications on the basis of content. Such content discrimination in turn led to “official scrutiny of the content of publications” that was inconsistent with First Amendment protection of freedom of the press. Such discrimination could only be justified if the state showed that it served “a compelling state interest” and was “narrowly drawn to achieve that end.” The state unsuccessfully advanced three interests in this case: -Its interest in raising revenue could not be used to “explain selective imposition of the sales tax on some magazines and not others.” -It had not narrowly tailored its laws to meet a second goal of encouraging “fledgling” publishers. -Its concern about fostering communication within the state was limited to communication within certain specified content areas. Arkansas thus could not meet its burden. Leathers v. Medlock Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Facts: In 1987, Arkansas amended its Gross Receipts Act (GRA), imposing a tax on cable television but not on print media. Cable companies and others filed suit in the State Chancery Court, alleging that taxing cable services, but not print and satellite broadcast services, violated their First Amendment expressive rights and 14th Amendment equal protection rights. In 1989, after the Chancery Court upheld the amendment, Arkansas again amended the GRA, extending the tax to satellite broadcast services. Issue: Does differential taxation of different media violate the First and 14th Amendments? Does differential taxation of members of the same medium violate the First and 14th Amendments? Held: No and no. Reasoning: the Court held 7-2 that without the intent or effect of suppressing expression, the First Amendment allows differential taxation of different media and differential taxation of some members of the same medium. Specifically, the Court held that the GRA was a generally applicable sales tax, and that its burden on cable television, while exempting the print media, was content-neutral, not directed at a select few, and not intended to interfere with expression. The Court went on to rule that the First Amendment allows a differential tax burden on some members of pay television services (that is, a tax on cable but not satellite services), if the tax is not intended to suppress expression. The Court ordered the State Supreme Court to address the 14th Amendment claim on remand. NYT v. Sullivan Facts: During the Civil Rights movement of the 1960s, the New York Times published an ad for contributing donations to defend Martin Luther King, Jr., on perjury charges. The ad contained several minor factual inaccuracies. The city Public Safety Commissioner, L.B. Sullivan, felt that the criticism of his subordinates reflected on him, even though he was not mentioned in the ad. Sullivan sent a written request to the Times to publicly retract the information, as required for a public figure to seek punitive damages in a libel action under Alabama law. When the Times refused and claimed that they were puzzled by the request, Sullivan filed a libel action against the Times and a group of African American ministers mentioned in the ad. Issue: Did Alabama's libel law unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections? Held: Yes. Reasoning: To sustain a claim of defamation or libel, the First Amendment requires that the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate. In a unanimous opinion authored by Justice Brennan, the Court ruled for the Times. In libel law, “malice” had meant knowledge or gross recklessness rather than intent, since courts found it difficult to imagine that someone would knowingly disseminate false information without a bad intent.  Fact ad was paid for is immaterial  No malice here Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Public official may not recover damages for defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice —with knowledge that it was false or reckless disregard for whether it was false or not. Gertz v. Robert Welch Inc. Facts: Gertz was an attorney hired by a family to sue a police officer who had killed the family's son. In a magazine called American Opinion, the John Birch Society accused Gertz of being a "Leninist" and a "Communist-fronter" because he chose to represent clients who were suing a law enforcement officer. Gertz won a jury verdict and an award of $50,000 but lost his libel suit because the trial judge found that the magazine had not violated the actual malice test for libel which the Supreme Court had established in New York Times v. Sullivan (1964). The Court of Appeals for the Seventh Circuit affirmed the trial judge's ruling. Issue: Does the First Amendment allow a newspaper or broadcaster to assert defamatory falsehoods about an individual who is neither a public official nor a public figure? Held: No. Reasoning: The Court reversed the lower court decision, holding that Gertz's rights had been violated and ordering a new trial. Justice Powell argued that the application of the New York Times v. Sullivan standard in this case was inappropriate because Gertz was neither a public official nor a public figure. In the context of the opinion, Powell advanced many lines of reasoning to establish that ordinary citizens should be allowed more protection from libelous statements than individuals in the public eye. First, the recklessness standard applies only to defamation of public figures or public officials. Second, even for private individuals, states may not impose strict liability on news media. And third, any standard of fault less then recklessness limits private persons to actual injury.  NYT standard inapplicable to defamation of private persons  Absent clear evidence of general fame or notoriety in the community and pervasive involvement in the affairs of society an individual should not be deemed a public personality for all aspects of his life  look to nature and extent of an individual’s participation in the particular controversy giving rise to the defamation Dun & Bradstreet v. Greenmoss Builders Facts: Dun and Bradstreet, a credit reporting agency, mistakenly reported to some of its subscribers that the construction contractor Greenmoss Builders had voluntarily filed for bankruptcy. The president of Greenmoss quickly learned about the erroneous report, requested Bradstreet to correct its error, and asked for the list of subscribers who received the report. Bradstreet refused to release the names on the list, but issued a correction to its five subscribers who received the original report. The correction stated that actually a former employee of Greenmoss had filed for bankruptcy and that Greenmoss Builders "continued in business as usual." Greenmoss was dissatisfied with the correction and again asked for the list. When Bradstreet refused a second time, Greenmoss filed suit against it for defamation in a Vermont state court. Issue: Does the rule of Gertz apply when the false and defamatory statements do not involve matters of public concern? Held: No.  Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 Reasoning: This was not a matter of public concern. In light of reduced constitutional value of speech involving no matters of public concern we hold that the state interest adequately supports awards of presumed and punitive damages—even absent a showing of “actual malice.” Miami Herald Publishing Co. v. Tornillo Facts: Pat Tornillo was Executive Director of the Classroom Teachers Association and a candidate for the Florida House of Representatives in Dade County, Florida. The Miami Herald published two editorials criticizing Tornillo and his candidacy. He demanded that the Herald publish his responses to the editorials. When the Herald refused, Tornillo sued in Dade County Circuit Court under Florida Statute Section 104.38, which granted political candidates criticized by any newspaper the right to have their responses to the criticisms published. The Herald challenged the statute as a violation of the free press clause of the First Amendment. Issue: Did Florida Statute Section 104.38, the "right to reply" statute, violate the free press clause of the First Amendment applied to the states through the Fourteenth Amendment? Held: Yes. Reasoning: In a unanimous decision, the Court reversed the Supreme Court of Florida and held that Florida's "right to reply" statute violated the freedom of press found in the First Amendment. In an opinion written by Chief Justice Warren E. Burger, the Court recognized the risks posed to the "true marketplace of ideas" by media consolidation and barriers to entry in the newspaper industry. However, even in that context, "press responsibility is not mandated by the Constitution and…cannot be legislated." The statute was an "intrusion into the function of editors," and imposed "a penalty on the basis of the content." Chief Justice Burger relied on New York Times v. Sullivan in that the "right to reply" statute "limits the variety of public debate," and was therefore unconstitutional Cohen v. Cowles Media Co. Facts: Cohen was a campaign associate in the 1982 Minnesota gubernatorial race. He gave court records concerning another party's candidate for lieutenant governor to the St. Paul Pioneer Press and the Minneapolis Star and Tribune. Though he had received a promise of confidentiality from the reporters, the papers identified Cohen in their stories. He was fired as a result. Cohen sued the papers in state court, alleging a breach of contract. Issue: Does the First Amendment bar a plaintiff from recovering damages, under state promissory estoppel law, for a newspaper's breach of a promise of confidentiality? Held: no. Reasoning: the Court held that the First Amendment did not bar a promissory estoppel suit against the press. The Court first affirmed that such a cause of action, though private, triggered the First Amendment's protection. But the Court went on to rule that the state's promissory estoppel law was generally applicable and did not target the press. The law's enforcement against the press thus did not require stricter scrutiny than would its enforcement against other individuals or institutions. Gloria Bartnicki v. Frederick Vopper Facts: An unidentified person intercepted and recorded a phone call between the chief union negotiator and the union president (the petitioners) during collective-bargaining negotiations Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 involving a teachers' union and the local school board. After a teacher-favorable proposal was accepted, a radio commentator played a tape of the intercepted conversation. Petitioners filed suit under both federal and state wiretapping laws, alleging that an unknown person using an electronic device had surreptitiously intercepted their telephone conversation. Issue: Does the First Amendment provide protection to speech that discloses the contents of an illegally intercepted communication? Held: Yes. Reasoning: the Court held that the First Amendment protects the disclosure of illegally intercepted communications by parties who did not participate in the illegal interception. "In this case, privacy concerns give way when balanced against the interest in publishing matters of public importance," wrote Justice Stevens. "[A] stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern." Noting that the negotiations were a matter of public interest, Justice Stevens wrote that the "debate may be more mundane than the Communist rhetoric that inspired Justice Brandeis' classic opinion in Whitney v. California, but it is no less worthy of constitutional protection." Hustler Magazine v. Falwell Facts: A lead story in the November 1983 issue of Hustler Magazine featured a "parody" of an advertisement, modeled after an actual ad campaign, claiming that Falwell, a Fundamentalist minister and political leader, had a drunken incestuous relationship with his mother in an outhouse. Falwell sued to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. Issue: Does the First Amendment's freedom of speech protection extend to the making of patently offensive statements about public figures, resulting perhaps in their suffering emotional distress? Held: Yes. Reasoning: In a unanimous opinion the Court held that public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice." The Court added that the interest of protecting free speech, under the First Amendment, surpassed the state's interest in protecting public figures from patently offensive speech, so long as such speech could not reasonably be construed to state actual facts about its subject. Red Lion Broadcasting Co. v. FCC Facts: The Federal Communications Commission's (FCC) fairness doctrine requires radio and television broadcasters to present a balanced and fair discussion of public issues on the airwaves. The doctrine is composed of two primary requirements concerning personal attacks in the context of public issue debates and political editorializing. The FCC conditioned its renewal of broadcast licenses on compliance with its regulations. Red Lion Broadcasting challenged the application of the fairness doctrine (which required giving reply time to someone who was personally attacked on air) with respect to a particular broadcast. Issue: Do the FCC's fairness doctrine regulations, concerning personal attacks made in the context of public issue debates and political editorializing, violate the First Amendment's freedom of speech guarantees? Downloaded by Brett Welling ([email protected]) lOMoARcPSD|19835293 held: No. Reasoning: Justice White argued that spectrum scarcity made it "idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish." The Court held that the FCC's fairness doctrine regulations enhanced rather than infringed the freedoms of speech protected under the First Amendment. With respect to the regulation of personal attacks made in the context of public issue debates, the FCC's requirement that the subject of the attack be provided with a tape, transcript, or broadcast summary, as well as an opportunity to respond without having to prove an inability to pay for the "air-time," insured a balanced and open discussion of contested issues. The requirement that political editorializing be presented for and against both sides of the debated issues also contributed to the balanced discussion of public concerns. FCC v. Pacifica Foundation Facts: During a mid-afternoon weekly broadcast, a New York radio station aired George Carlin's monologue, "Filthy Words." Carlin spoke of the words that could not be said on the public airwaves. His list included shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. The station warned listeners that the monologue included "sensitive language which might be regarded as offensive to some." The FCC received a complaint from a man who stated that he had heard the broadcast while driving with his young son. Issue: Does the First Amendment deny government any power to restrict the public broadcast of indecent language under any circumstances? Held: No. Reasoning: The Court held that limited civil sanctions could constitutionally be invoked against a radio broadcast of patently offensive words dealing with sex and execration. The words need not be obscene to warrant sanctions. Audience, medium, time of day, and method of transmission are relevant factors in determining whether to invoke sanctions. "[W]hen the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene." Turner Broadcasting System v. FCC Facts: In 1992, Congress passed the Cable Television Consumer Protection and Competition Act of 1992. Sections 4 and 5 of this Act requi