FREEDOM OF SPEECH AND PRESS APPLICATIONS

1. FREEDOM OF SPEECH AND PRESSAPPLICATIONS CLASS SLIDES

2. SYMBOLIC SPEECH CASES These cases relate to the nature of free speech when • physical actions are combined with speech • physical actions are used to communicate ideas.

3. United States v. O'Brien (1968) PRECEDENT: It is not a violation of the 1st amendment for the federal government to prohibit a person destroying or mutilating a draft card as part of an anti-war protest demonstration. This case is one of those in which the court develops a test that is applied in later cases involving regulation of actions used to communicate a message. What is this O’Brien test?

4. O’Brien Test A sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on first amendment freedoms when: • The government regulation must be within constitutional powers of congress. • it must further an important or substantial government interest • It must be unrelated to the suppression of free expression, and • the incidental restriction on first amendment activities is no greater than is essential to fulfill the government's interest

5. Texas v. Johnson (1989) PRECEDENT: It is a violation of the 1st amendment (as applied to the states through the 14th amendment) for a state to prohibit person from burning (or physically desecrating) an American flag when it offends onlookers or is used as a means of expressing a political viewpoint. STANDARD/TEST USED: O’Brien test

6. Texas v. Johnson (1989) REASONING SUMMARY: • Johnson's act of burning the flag constituted expressive conduct which is protected by the first amendment. • Under the O’Brien test, Texas must establish a sufficient state interest that is unrelated to the suppression of expression. • Texas failed to meet this burden.

7. Texas v. Johnson (1989) DISSENT I Chief Justice Rehnquist (joined by White and O'Connor): • The American flag occupies such a unique position as the symbol for that nation that the government is justified in prohibiting Johnson's conduct. Flag isn't just another idea in the marketplace. • If the government may conscript men into the Armed Forces where they must fight and perhaps die for the flag, then the government should be able to prohibit the public burning of the banner under which they fight.

8. Texas v. Johnson (1989) DISSENT II. Justice Stevens: • State can protect the flag in the same way it can prohibit people from writing graffiti on the Washington monument or the Lincoln Memorial. The added freedom of expression doesn't justify the tarnishing of such an important symbol.

9. Right Not to Speak or Associate

10. West Virginia State Bd. of Education v. Barnette (1943) PRECEDENT: It is a violation of the first amendment freedom of Speech clause, as applied to the states through the 14th amendment due process clause for the government to compel people to salute or pledge allegiance to the flag.

11. West Virginia State Bd. of Education v. Barnette (1943) • Court doesn't agree with Gobitis opinion's use of Lincoln quote ("Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?"). Gov. can be strong enough without having to require school children to salute the flag. • While national unity is a legitimate gov. goal and it may be fostered by persuasion and example, but not by compulsion.

12. West Virginia State Bd. of Education v. Barnette (1943) JUSTICE JACKSON’S FAMOUS QUOTE: "To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds....If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."

13. Wooley v. Maynard PRECEDENT: It is a violation of the first amendment as applied to the states through the 14th amendment due process clause for a state to punish someone for covering the state motto on their automobile license plate.

14. Hurley v. Irish-American (1995) PRECEDENT: It is a violation of the 1st amendment freedom of speech clause (as applied to the states through the 14th amendment), for a state to require the organizers of a parade to include a unit that expresses a point of view that the organizers do not wish to promulgate. NOTE: While parade organizers couldn't prohibit an individual gay person from marching as a member of some other unit, they could prohibit a unit that was going to present a message they disagreed with.

15. Rumsfeld v. Forum for Academic & Institutional Rights Inc. (2006) PRECEDENT: It is not a violation of the first amendment for the federal government to require colleges and universities grant access to military recruiters in order to receive federal funding even when the school objects to military policies and actions. STANDARD/TEST USED: O’Brien test

16. LOCATION CASES

17. Edwards v. South Carolina (1963) Discussed in text on pp. 267-268 PRECEDENT: It is a violation of the first amendment, as applied to the states through the 14th amendment due process clause, for a state to enforce a trespass law to prevent peaceful demonstrations on a public sidewalk around a state capitol building.

18. Adderley v. Florida (1966) Discussed in text on pp. 267-268 PRECEDENT: It is not a violation of the first amendment, as applied to the states through the 14th amendment due process clause, for a state to enforce a trespass law to prevent peaceful demonstrations on public property that is not open to the general public.

19. Greer v. Spock (1976) Not discussed in the text PRECEDENT: It is not a violation of the first amendment for a military base to prohibit partisan political activity on its property.

20. United States v. Grace (1983) Not discussed in the text PRECEDENT: It is a violation of the 1st amendment freedom of speech clause for federal government to prohibit the carrying of signs, banners or devices on the public sidewalk surrounding the Supreme Court building.

21. Heffron v. International Society for Krishna Conscience Not discussed in the text PRECEDENT: It is not a violation of the 1st amendment freedom of speech or freedom of religion clauses (as applied to the states through the 14th amendment) for a state to limit distribution of literature and/or solicitation of funds to designated areas of a crowded state fair grounds.

22. International Society for Krishna Conscience v. Lee See Table 5-2 on p. 269 in text PRECEDENT: It is not a violation of the 1st amendment freedom of speech or freedom of religion clauses (as applied to the states through the 14th amendment) for a state to prohibit solicitation in the interior of an airport terminal.

23. Frisby v. Schultz (1988) See Table 5-2 on p. 269 in text PRECEDENT: It is not a violation of the 1st amendment freedom of speech or freedom of religion clauses (as applied to the states through the 14th amendment) for a local government to enforce a content neutural, narrowly drawn ordinance prohibiting residential picketing that focuses on a particular residence.

24. Madsen v. Women's Health Center (1994) See Table 5-2 on p. 269 in text It is not a violation of the 1st amendment freedom of speech clause (as applied to the states through the 14th amendment) for a state court to issue an injunction that: • excludes anti-abortion demonstrators from within a 36 foot buffer zone on a public street outside a clinic providing abortion services. • to anti-abortion protestors without issuing one for pro-abortion protestors when there have been no comparable disruptive demonstrations by the pro-abortion side. • place restrictions on the amount of noise anti-abortion protestors can make outside a clinic providing abortion services.

25. Madsen v. Women's Health Center (1994) It is a violation of the 1st amendment freedom of speech clause (as applied to the states through the 14th amendment) for a state court to issue an injunction that: • prohibits anti-abortion demonstrators from within a 36 foot buffer zone on a private property outside a clinic providing abortion services. • prohibits anti-abortion demonstrators from within a 300 foot buffer zone of patients and staff of a clinic providing abortion services. • prohibits anti-abortion demonstrators from displaying observable images of aborted fetuses outside a clinic providing abortion services.

26. Hill v. Colorado (2000) HOLDING: It is not a violation of the 1st amendment freedom of speech clause (as applied to the states through the 14th amendment) for a stateto make it unlawful for any person within 100 feet of a health care facility’s entrance to “knowingly approach” within 8 feet of another person, without that person’s consent, in order to pass “a leaflet or handbill to, display a sign to a sign to, or engage in oral protest, education, or counseling with [that] person.”

27. Freedom of Speech & Press in Public Schools

28. Tinker v. Des Moines (1969) PRECEDENT: In the absence of proof that it would lead to material and substantial interference with school discipline, it is a violation of the freedom of speech clause of the first amendment, as applied to the states through the 14th amendment for a public school to prohibit its students from participating in a silent passive expression of opinion (e.g. wearing arm bands).

29. Hazelwoood School Dist. v. Kuhlmeier (1988) HOLDING: It is not a violation of the of the freedom of press clause of the 1st amendment (as applied to the states through the 14th) for public school officials to exercise prior restrain over the content of articles in a newspaper published by the school as part of its educational program.

30. 1st Amendment Activities on Private Property

31. Marsh v. Alabama (1946) Not covered in text PRECEDENT: It is a violation of the 1st amendment freedom of speech clause (as applied to the states through the 14th amendment), to prevent someone from distributing literature on streets in the business district of a company town.

32. Amalgemated Food Employees Union Local 590 v. Logan Valley Plaza (1968) Not covered in text PRECEDENT: It is a violation of the 1st amendment freedom of speech clause (as applied to the states through the 14th amendment), to enforce a trespass statute against people who are picketing on a parking lot area outside a store they are picketing in a privately owned shopping center.

33. Lloyd v. Tanner (1972) Not covered in text PRECEDENT: It is not a violation of the 1st amendment freedom of speech clause (as applied to the states through the 14th amendment), to prohibit free expression activities inside enclosed mall when those activities are not specifically related to business in the mall.

34. Hudgens v. NLRB (1976) Not covered in text PRECEDENT: It is not a violation of the 1st amendment freedom of speech clause (as applied to the states through the 14th amendment), to prohibit free expression activities inside enclosed mall even when those activities are related to business in the mall.

35. Hudgens v. NLRB (1976) OVERRULING PRECEDENT: • 3 justices claimed that Logan Valley had been overruled by Lloyd v. Tanner, • another 3 justices ruled that although the court had not overruled Logan Valley in Lloyd, they were doing so in this case.

36. Pruneyard Shopping Center v. Robbins (1980) Not covered in text PRECEDENT: • It is not a violation of a shopping center owner’s due process rights (taking their property from them without just compensation) for state to require them to allow free expression activities in public shopping centers. • It is not a violation of shopping center owner’s first amendment rights for state to require them to allow people to display messages they didn't agree with in the public areas of their shopping center.

37. Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995) Discussed on p. 307 FACTS: • A private group (The South Boston Allied War Veterans Council) which organizes an annual St. Patrick's Day parade in Boston) refused to allow a Gay Advocacy group to march in its parade. • The state claimed that its anti-discrimination in public accommodations statute applied and required the private group to allow the Gays and Lesbians to march.

38. PERMIT CASES

39. Watchtower Bible and Tract Society v. Village of Stratton (2002) Assigned to read from web and discussed in text on p. 107 HOLDING: • It is a violation of the 1st amendment, as applied to the states through the 14th, for government to require people to get a permit before they can canvass or leaflet door-to-door for non-commercial advocacy.

40. PERMIT REQUIREMENTS • To be a valid, a law requiring a permit must be narrowly drawn and not give unbridled discretion to the government official responsible for issuing the permit.

41. Shuttlesworth v. City of Birmingham (1969) PRECEDENT: It is a violation of the free speech clause of the 1st amendment (as applied to the state by the 14th amendment due process clause) for the state to prohibit people from participating in a protest march on public streets without a permit when the permit law in question confers unbridled power to prohibit the demonstration rather than providing narrow, objective standards that are clearly related to public safety.

42. Thomas v. Chicago Park District (2002) HOLDING: It is not a violation of the 1st amendment, as applied to the states through the 14th, for government to require people to get a permit before they can conduct large scale events in public parks, provided the permit regulation is content-neutral and contains adequate standards and effective judicial review.

43. Hostile Crowd Reaction Cases

44. Terminiello v. Chicago (1949) FACT: A Catholic priest was convicted of disorderly conduct because the controversial public speech he gave angered part of his audience and opponents outside the building to the point where they started screaming and throwing rocks. DECISION: Conviction was overturned on basis that it violates 1st amendment to punish speaker solely on the grounds that he/she had stirred people to anger or brought about a condition of unrest.

45. Feiner v. NY (1951) Not covered in text HOLDING: It is not a violation of the 1st amendment freedom of speech clause (as applied to the states through the 14th amendment due process clause for police to arrest a speaker who refuses to stop speaking in a situation in which police believe violence will result from the continuation of the speech.

46. Edwards v. South Carolina (1963) PRECEDENT: It is a violation of the first amendment, as applied to the states through the 14th amendment due process clause, for a state to use a breach of peace statute to stop a peaceful demonstration.

47. Cohen v. California (1971) PRECEDENT: It is a violation of the first amendment, as applied to the states trough the 14th amendment due process clause, for a state to punish a person for displaying a vulgar comment about a political subject on an item of clothing worn in public.

48. Cohen v. California (1971) Obscenity: QUOTE: "Whatever else may be necessary to give rise to the state's broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. It cannot plausibly be maintained that this vulgar allusion to the selective service system would conjure up such psychic stimulation in anyone likely to be confronted with Cohen's crudely defaced jacket."

49. Cohen v. California (1971) Offensiveness: • Although the mode of expression may well be offensive or distasteful to some people, that fact doesn't give state power to prohibit Cohen's actions. • State can provide some protection against invasion of privacy in home, but it cannot cut off public dialog just because others may not want to hear it. • QUOTE: "Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections."

50. Cohen v. California (1971) Offensiveness: • Other people in courthouse could avoid being offended by simply averting their eyes. • QUOTE: "Surely, the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. ... For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric."