1st Amendment Thread

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de officiis
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1st Amendment Thread

Post by de officiis » Fri Dec 02, 2016 7:21 pm

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Jefferson's Letter to the Danbury Baptists
To messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.

Gentlemen

The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.

Th Jefferson

Jan. 1. 1802.
Thomas Jefferson and the Virginia Statute of Religious Freedom
II. Be it enacted by the General Assembly, that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.
List of United States Supreme Court cases involving the First Amendment

Gitlow v. New York, 268 U.S. 652 (1925)
For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543 , 42 S. Ct. 516, 27 A. L. R. 27, that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question.
Near v. Minnesota, 283 U.S. 697 (1931)
Near v. Minnesota, . . . was a landmark United States Supreme Court decision that recognized the freedom of the press by roundly rejecting prior restraints on publication, a principle that was applied to free speech generally in subsequent jurisprudence. The Court ruled that a Minnesota law that targeted publishers of "malicious" or "scandalous" newspapers violated the First Amendment to the United States Constitution (as applied through the Fourteenth Amendment). Legal scholar and columnist Anthony Lewis called Near the Court's "first great press case."
(courtesy of Wikipedia)

Cantwell v. Connecticut, 310 U.S. 296 (1940)
We hold that the statute, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts,-freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. No one would contest the proposition that a state may not, be statute, wholly deny the right to preach or to disseminate religious views. Plainly such a previous and absolute restraint would violate the terms of the guarantee. It is equally clear that a state may by general and non-discriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon; and may in other respects safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the Fourteenth Amendment.


West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
West Virginia State Board of Education v. Barnette . . . is a decision by the Supreme Court of the United States holding that the Free Speech Clause of the First Amendment to the United States Constitution protected students from being forced to salute the American flag and say the Pledge of Allegiance in school. The Court's 6-3 opinion, delivered by Justice Robert H. Jackson, is remembered for its forceful defense of free speech and constitutional rights generally as being placed "beyond the reach of majorities and officials."

It was a significant court victory won by Jehovah's Witnesses, whose religion forbade them from saluting or pledging to symbols, including symbols of political institutions. However, the Court did not address the effect the compelled salutation and recital ruling had upon their particular religious beliefs, but instead ruled that the state did not have the power to compel speech in that manner for anyone.

Barnette overruled a 1940 decision on the same issue, Minersville School District v. Gobitis (also involving the children of Jehovah's Witnesses), in which the Court stated that the proper recourse for dissent was to try to change the school policy democratically.

However, in overruling Gobitis the Court primarily relied on the Free Speech Clause of the First Amendment rather than the Free Exercise Clause.
(courtesy of Wikipedia)

Everson v. Board of Education, 330 U.S. 1 (1947)
The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'
Engel v. Vitale, 370 U.S. 421 (1962)
Because of the prohibition of the First Amendment against the enactment of any law "respecting an establishment of religion," which is made applicable to the States by the Fourteenth Amendment, state officials may not compose an official state prayer and require that it be recited in the public schools of the State at the beginning of each school day -- even if the prayer is denominationally neutral and pupils who wish to do so may remain silent or be excused from the room while the prayer is being recited.
Abington School District v. Schempp, 374 U.S. 203 (1963)
Because of the prohibition of the First Amendment against the enactment by Congress of any law "respecting an establishment of religion," which is made applicable to the States by the Fourteenth Amendment, no state law or school board may require that passages from the Bible be read or that the Lord's Prayer be recited in the public schools of a State at the beginning of each school day - even if individual students may be excused from attending or participating in such exercises upon written request of their parents.
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
Respondent, an elected official in Montgomery, Alabama, brought suit in a state court alleging that he had been libeled by an advertisement in corporate petitioner's newspaper, the text of which appeared over the names of the four individual petitioners and many others. The advertisement included statements, some of which were false, about police action allegedly directed against students who participated in a civil rights demonstration and against a leader of the civil rights movement; respondent claimed the statements referred to him because his duties included supervision of the police department. The trial judge instructed the jury that such statements were "libelous per se," legal injury being implied without proof of actual damages, and that, for the purpose of compensatory damages, malice was presumed, so that such damages could be awarded against petitioners if the statements were found to have been published by them and to have related to respondent. As to punitive damages, the judge instructed that mere negligence was not evidence of actual malice, and would not justify an award of punitive damages; he refused to instruct that actual intent to harm or recklessness had to be found before punitive damages could be awarded, or that a verdict for respondent should differentiate between compensatory and punitive damages. The jury found for respondent, and the State Supreme Court affirmed.

Held: A State cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves "actual malice"--that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.
Tinker v. Des Moines School Dist., 393 U.S. 503 (1969)
Petitioners, three public school pupils in Des Moines, Iowa, were suspended from school for wearing black armbands to protest the Government's policy in Vietnam. They sought nominal damages and an injunction against a regulation that the respondents had promulgated banning the wearing of armbands. The District Court dismissed the complaint on the ground that the regulation was within the Board's power, despite the absence of any finding of substantial interference with the conduct of school activities. The Court of Appeals, sitting en banc, affirmed by an equally divided court. Held:

1. In wearing armbands, the petitioners were quiet and passive. They were not disruptive and did not impinge upon the rights of others. In these circumstances, their conduct was within the protection of the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth.

2. First Amendment rights are available to teachers and students, subject to application in light of the special characteristics of the school environment.

3. A prohibition against expression of opinion, without any evidence that the rule is necessary to avoid substantial interference with school discipline or the rights of others, is not permissible under the First and Fourteenth Amendments.
New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam)
We granted certiorari in these cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled "History of U.S. Decision-Making Process on Viet Nam Policy."

"Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also Near v. Minnesota, 283 U.S. 697 (1931). The Government "thus carries a heavy burden of showing justification for the imposition of such a restraint." Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). The District Court for the Southern District of New York in the New York Times case and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had not met that burden. We agree.

The judgment of the Court of Appeals for the District of Columbia Circuit is therefore affirmed. The order of the Court of Appeals for the Second Circuit is reversed and the case is remanded with directions to enter a judgment affirming the judgment of the District Court for the Southern District of New York. The stays entered June 25, 1971, by the Court are vacated. The judgments shall issue forthwith.

So ordered.
Wisconsin v. Yoder, 406 U.S. 205 (1972)
Respondents, members of the Old Order Amish religion and the Conservative Amish Mennonite Church, were convicted of violating Wisconsin's compulsory school-attendance law (which requires a child's school attendance until age 16) by declining to send their children to public or private school after they had graduated from the eighth grade. The evidence showed that the Amish provide continuing informal vocational education to their children designed to prepare them for life in the rural Amish community. The evidence also showed that respondents sincerely believed that high school attendance was contrary to the Amish religion and way of life and that they would endanger their own salvation and that of their children by complying with the law. The State Supreme Court sustained respondents' claim that application of the compulsory school-attendance law to them violated their rights under the Free Exercise Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment.

Held:

1. The State's interest in universal education is not totally free from a balancing process when it impinges on other fundamental rights, such as those specifically protected by the Free Exercise Clause of the First Amendment and the traditional interest of parents with respect to the religious upbringing of their children.

2. Respondents have amply supported their claim that enforcement of the compulsory formal education requirement after the eighth grade would gravely endanger if not destroy the free exercise of their religious beliefs.

3. Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society, the Amish have demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continuing survival of Old Order Amish communities, and the hazards presented by the State's enforcement of a statute generally valid as to others. Beyond this, they have [406 U.S. 205, 206] carried the difficult burden of demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of the overall interests that the State relies on in support of its program of compulsory high school education. In light of this showing, and weighing the minimal difference between what the State would require and what the Amish already accept, it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish.

4. The State's claim that it is empowered, as parens patriae, to extend the benefit of secondary education to children regardless of the wishes of their parents cannot be sustained against a free exercise claim of the nature revealed by this record, for the Amish have introduced convincing evidence that accommodating their religious objections by forgoing one or two additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society.
Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam)
The Federal Election Campaign Act of 1971 (Act), as amended in 1974, (a) limits political contributions to candidates for federal elective office by an individual or a group to $1,000 and by a political committee to $5,000 to any single candidate per election, with an over-all annual limitation of $25,000 by an individual contributor; (b) limits expenditures by individuals or groups "relative to a clearly identified candidate" to $1,000 per candidate per election, and by a candidate from his personal or family funds to various specified annual amounts depending upon the federal office sought, and restricts over-all general election and primary campaign expenditures by candidates to various specified amounts, again depending upon the federal office sought; (c) requires political committees to keep detailed records of contributions and expenditures, including the name and address of each individual contributing in excess of $10, and his occupation and [p2] principal place of business if his contribution exceeds $100, and to file quarterly reports with the Federal Election Commission disclosing the source of every contribution exceeding $100 and the recipient and purpose of every expenditure over $100, and also requires every individual or group, other than a candidate or political committee, making contributions or expenditures exceeding $100 "other than by contribution to a political committee or candidate" to file a statement with the Commission; and (d) creates the eight-member Commission as the administering agency with recordkeeping, disclosure, and investigatory functions and extensive rulemaking, adjudicatory, and enforcement powers, and consisting of two members appointed by the President pro tempore of the Senate, two by the Speaker of the House, and two by the President (all subject to confirmation by both Houses of Congress), and the Secretary of the Senate and the Clerk of the House as ex officio nonvoting members. Subtitle H of the Internal Revenue Code of 1954 (IRC), as amended in 1974, provides for public financing of Presidential nominating conventions and general election and primary campaigns from general revenues and allocates such funding to conventions and general election campaigns by establishing three categories: (1) "major" parties (those whose candidate received 25% or more of the vote in the most recent election), which receive full funding; (2) "minor" parties (those whose candidate received at least 5% but less than 25% of the votes at the last election), which receive only a percentage of the funds to which the major parties are entitled; and (3) "new" parties (all other parties), which are limited to receipt of post-election funds or are not entitled to any funds if their candidate receives less than 5% of the vote. A primary candidate for the Presidential nomination by a political party who receives more than $5,000 from private sources (counting only the first $250 of each contribution) in each of at least 20 States is eligible for matching public funds. Appellants (various federal officeholders and candidates, supporting political organizations, and others) brought suit against appellees (the Secretary of the Senate, Clerk of the House, Comptroller General, Attorney General, and the Commission) seeking declaratory and injunctive relief against the above statutory provisions on various constitutional grounds. The Court of Appeals, on certified questions from the District Court, upheld all but one of the statutory provisions. A three-judge District Court upheld the constitutionality of Subtitle H.

Held: [p3]

...

2. The Act's contribution provisions are constitutional, but the expenditure provisions violate the First Amendment. Pp. 12-59.

(a) The contribution provisions, along with those covering disclosure, are appropriate legislative weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions, and the ceilings imposed accordingly serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion. Pp. 23-38.

(b) The First Amendment requires the invalidation of the Act's independent expenditure ceiling, its limitation on a candidate's expenditures from his own personal funds, and its ceilings on over-all campaign expenditures, since those provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate.
Lemon v. Kurtzman, 403 U.S. 602 (1971)
Rhode Island's 1969 Salary Supplement Act provides for a 15% salary supplement to be paid to teachers in nonpublic schools at which the average per-pupil expenditure on secular education is below the average in public schools. Eligible teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion. A three-judge court found that about 25% of the State's elementary students attended nonpublic schools, about 95% of whom attended Roman Catholic affiliated schools, and that to date about 250 teachers at Roman Catholic schools are the sole beneficiaries under the Act. The court found that the parochial school system was "an integral part of the religious mission of the Catholic Church," and held that the Act fostered "excessive entanglement" between government and religion, thus violating the Establishment Clause. Pennsylvania's Nonpublic Elementary and Secondary Education Act, passed in 1968, authorizes the state Superintendent of Public Instruction to "purchase" certain "secular educational services" from nonpublic schools, directly reimbursing those schools solely for teachers' salaries, textbooks, and instructional materials. Reimbursement is restricted to courses in specific secular subjects, the textbooks and materials must be approved by the Superintendent, and no payment is to be made for any course containing "any subject matter expressing religious teaching, or the morals or forms of worship of any sect." Contracts were made with schools that have more than 20% of all the students in the State, most of which were affiliated with the Roman Catholic Church. The complaint challenging the constitutionality of the Act alleged that the church-affiliated schools are controlled by religious organizations, have the purpose of propagating and promoting a particular religious faith, and conduct their operations to fulfill that purpose. A three-judge court granted the State's motion to dismiss the complaint for failure to state a claim for relief, finding no violation of the Establishment or Free Exercise Clause.

Held: Both statutes are unconstitutional under the Religion Clauses of the First Amendment, as the cumulative impact of the entire relationship arising under the statutes involves excessive entanglement between government and religion.

(a) The entanglement in the Rhode Island program arises because of the religious activity and purpose of the church-affiliated schools, especially with respect to children of impressionable age in the primary grades, and the dangers that a teacher under religious control and discipline poses to the separation of religious from purely secular aspects of elementary education in such schools. These factors require continuing state surveillance to ensure that the statutory restrictions are obeyed and the First Amendment otherwise respected. Furthermore, under the Act, the government must inspect school records to determine what part of the expenditures is attributable to secular education, as opposed to religious activity, in the event a nonpublic school's expenditures per pupil exceed the comparable figures for public schools.

(b) The entanglement in the Pennsylvania program also arises from the restrictions and surveillance necessary to ensure that teachers play a strictly nonideological role and the state supervision of nonpublic school accounting procedures required to establish the cost of secular, as distinguished from religious, education. In addition, the Pennsylvania statute has the further defect of providing continuing financial aid directly to the church-related schools. Historically, governmental control and surveillance measures tend to follow cash grant programs, and here the government's post-audit power to inspect the financial records of church-related schools creates an intimate and continuing relationship between church and state.

(c) Political division along religious lines was one of the evils at which the First Amendment aimed, and in these programs, where successive and probably permanent annual appropriations that benefit relatively few religious groups are involved, political fragmentation and divisiveness on religious lines are likely to be intensified.

(d) Unlike the tax exemption for places of religious worship, upheld in Walz v. Tax Commission, 397 U. S. 664, which was based on a practice of 200 years, these innovative programs have self-perpetuating and self-expanding propensities which provide a warning signal against entanglement between government and religion.
The Court's decision in this case established the "Lemon test", which details the requirements for legislation concerning religion. It is 3 fold:

The statute must not result in an "excessive government entanglement" with religious affairs. (also known as the Entanglement Prong)

The statute must not advance or inhibit religious practice (also known as the Effect Prong)

The statute must have a secular legislative purpose (also known as the Purpose Prong)
If any of these prongs are violated, the government's action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution.


(courtesy of Wikipedia)

Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)
Respondent public high school student (hereafter respondent) delivered a speech nominating a fellow student for a student elective office at a voluntary assembly that was held during school hours as part of a school-sponsored educational program in self-government, and that was attended by approximately 600 students, many of whom were 14-year-olds. During the entire speech, respondent referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor. Some of the students at the assembly hooted and yelled during the speech, some mimicked the sexual activities alluded to in the speech, and others appeared to be bewildered and embarrassed. Prior to delivering the speech, respondent discussed it with several teachers, two of whom advised him that it was inappropriate and should not be given. The morning after the assembly, the Assistant Principal called respondent into her office and notified him that the school considered his speech to have been a violation of the school's "disruptive conduct rule," which prohibited conduct that substantially interfered with the educational process, including the use of obscene, profane language or gestures. Respondent was given copies of teacher reports of his conduct, and was given a chance to explain his conduct. After he admitted that he deliberately used sexual innuendo in the speech, he was informed that he would be suspended for three days, and that his name would be removed from the list of candidates for graduation speaker at the school's commencement exercises. Review of the disciplinary action through petitioner School District's grievance procedures resulted in affirmance of the discipline, but respondent was allowed to return to school after serving only two days of his suspension. Respondent, by his father (also a respondent) as guardian ad litem, then filed suit in Federal District Court, alleging a violation of his First Amendment right to freedom of speech and seeking injunctive relief and damages under 42 U.S.C. § 1983. The court held that the school's sanctions violated the First Amendment, that the school's disruptive conduct rule was unconstitutionally vague and overbroad, and that the removal of respondent's name from the graduation speaker's list violated the Due Process Clause of the Fourteenth Amendment. The court awarded respondent monetary relief and enjoined the School District from preventing him from speaking at the commencement ceremonies.

1. The First Amendment did not prevent the School District from disciplining respondent for giving the offensively lewd and indecent speech at the assembly. Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, distinguished. Under the First Amendment, the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, but it does not follow that the same latitude must be permitted to children in a public school. It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the work of the school, and the determination of what manner of speech is inappropriate properly rests with the school board. First Amendment jurisprudence recognizes an interest in protecting minors from exposure to vulgar and offensive spoken language, FCC v. Pacifica Foundation, 438 U. S. 726, as well as limitations on the otherwise absolute interest of the speaker in reaching an unlimited audience where the speech is sexually explicit and the audience may include children. Ginsberg v. New York, 390 U. S. 629. Petitioner School District acted entirely within its permissible authority in imposing sanctions upon respondent in response to his offensively lewd and indecent speech, which had no claim to First Amendment protection.

2. There is no merit to respondent's contention that the circumstances of his suspension violated due process because he had no way of knowing that the delivery of the speech would subject him to disciplinary sanctions. Given the school's need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions. The school disciplinary rule proscribing "obscene" language and the prespeech admonitions of teachers gave adequate warning to respondent that his lewd speech could subject him to sanctions.
Edwards v. Aguillard, 482 U.S. 578 (1987)
Louisiana's "Creationism Act" forbids the teaching of the theory of evolution in public elementary and secondary schools unless accompanied by instruction in the theory of "creation science." The Act does not require the teaching of either theory unless the other is taught. It defines the theories as "the scientific evidences for [creation or evolution] and inferences from those scientific evidences." Appellees, who include Louisiana parents, teachers, and religious leaders, challenged the Act's constitutionality in Federal District Court, seeking an injunction and declaratory relief. The District Court granted summary judgment to appellees, holding that the Act violated the Establishment Clause of the First Amendment. The Court of Appeals affirmed.

Held:

1. The Act is facially invalid as violative of the Establishment Clause of the First Amendment, because it lacks a clear secular purpose.

(a) The Act does not further its stated secular purpose of "protecting academic freedom." It does not enhance the freedom of teachers to teach what they choose and fails to further the goal of "teaching all of the evidence." Forbidding the teaching of evolution when creation science is not also taught undermines the provision of a comprehensive scientific education. Moreover, requiring the teaching of creation science with evolution does not give schoolteachers a flexibility that they did not already possess to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life. Furthermore, the contention that the Act furthers a "basic concept of fairness" by requiring the teaching of all of the evidence on the subject is without merit. Indeed, the Act evinces a discriminatory preference for the teaching of creation science and against the teaching of evolution by requiring that curriculum guides be developed and resource services supplied for teaching creationism but not for teaching evolution, by limiting membership on the resource services panel to "creation scientists," and by forbidding school boards to discriminate against anyone who "chooses to be a creation-scientist" or to teach creation science, while failing to protect those who choose to teach other theories or who refuse to teach creation science. A [482 U.S. 578, 579] law intended to maximize the comprehensiveness and effectiveness of science instruction would encourage the teaching of all scientific theories about human origins. Instead, this Act has the distinctly different purpose of discrediting evolution by counter-balancing its teaching at every turn with the teaching of creationism.

(b) The Act impermissibly endorses religion by advancing the religious belief that a supernatural being created humankind. The legislative history demonstrates that the term "creation science," as contemplated by the state legislature, embraces this religious teaching. The Act's primary purpose was to change the public school science curriculum to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. Thus, the Act is designed either to promote the theory of creation science that embodies a particular religious tenet or to prohibit the teaching of a scientific theory disfavored by certain religious sects. In either case, the Act violates the First Amendment.
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)
Respondents, former high school students who were staff members of the school's newspaper, filed suit in Federal District Court against petitioners, the school district and school officials, alleging that respondents' First Amendment rights were violated by the deletion from a certain issue of the paper of two pages that included an article describing school students' experiences with pregnancy and another article discussing the impact of divorce on students at the school. The newspaper was written and edited by a journalism class, as part of the school's curriculum. Pursuant to the school's practice, the teacher in charge of the paper submitted page proofs to the school's principal, who objected to the pregnancy story because the pregnant students, although not named, might be identified from the text, and because he believed that the article's references to sexual activity and birth control were inappropriate for some of the younger students. The principal objected to the divorce article because the page proofs he was furnished identified by name (deleted by the teacher from the final version) a student who complained of her father's conduct, and the principal believed that the student's parents should have been given an opportunity to respond to the remarks or to consent to their publication. Believing that there was no time to make necessary changes in the articles if the paper was to be issued before the end of the school year, the principal directed that the pages on which they appeared be withheld from publication even though other, unobjectionable articles were included on such pages. The District Court held that no First Amendment violation had occurred. The Court of Appeals reversed.

Held: Respondents' First Amendment rights were not violated.

(a) First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment. A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.

(b) The school newspaper here cannot be characterized as a forum for public expression. School facilities may be deemed to be public forums only if school authorities have, by policy or by practice, opened the facilities for indiscriminate use by the general public, or by some segment of the public, such as student organizations. If the facilities have instead been reserved for other intended purposes, communicative or otherwise, then no public forum has been created, and school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community. The school officials in this case did not deviate from their policy that the newspaper's production was to be part of the educational curriculum and a regular classroom activity under the journalism teacher's control as to almost every aspect of publication. The officials did not evince any intent to open the paper's pages to indiscriminate use by its student reporters and editors, or by the student body generally. Accordingly, school officials were entitled to regulate the paper's contents in any reasonable manner.

(c) The standard for determining when a school may punish student expression that happens to occur on school premises is not the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, distinguished. Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities, so long as their actions are reasonably related to legitimate pedagogical concerns.

(d) The school principal acted reasonably in this case in requiring the deletion of the pregnancy article, the divorce article, and the other articles that were to appear on the same pages of the newspaper.
Texas v. Johnson, 491 U.S. 397 (1989)
During the 1984 Republican National Convention in Dallas, Texas, respondent Johnson participated in a political demonstration to protest the policies of the Reagan administration and some Dallas-based corporations. After a march through the city streets, Johnson burned an American flag while protesters chanted. No one was physically injured or threatened with injury, although several witnesses were seriously offended by the flag burning. Johnson was convicted of desecration of a venerated object in violation of a Texas statute, and a State Court of Appeals affirmed. However, the Texas Court of Criminal Appeals reversed, holding that the State, consistent with the First Amendment, could not punish Johnson for burning the flag in these circumstances. The court first found that Johnson's burning of the flag was expressive conduct protected by the First Amendment. The court concluded that the State could not criminally sanction flag desecration in order to preserve the flag as a symbol of national unity. It also held that the statute did not meet the State's goal of preventing breaches of the peace, since it was not drawn narrowly enough to encompass only those flag burnings that would likely result in a serious disturbance, and since the flag burning in this case did not threaten such a reaction. Further, it stressed that another Texas statute prohibited breaches of the peace and could be used to prevent disturbances without punishing this flag desecration.

Held:

Johnson's conviction for flag desecration is inconsistent with the First Amendment.

(a) Under the circumstances, Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment. The State conceded that the conduct was expressive. Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent.

(b) Texas has not asserted an interest in support of Johnson's conviction that is unrelated to the suppression of expression and would therefore permit application of the test set forth in United States v. O'Brien, 391 U.S. 367 , whereby an important governmental interest in regulating nonspeech can justify incidental limitations on First Amendment freedoms when speech and nonspeech elements are combined in the same course of conduct. An interest in preventing breaches of the peace is not implicated on this record. Expression may not be prohibited [491 U.S. 397, 398] on the basis that an audience that takes serious offense to the expression may disturb the peace, since the government cannot assume that every expression of a provocative idea will incite a riot but must look to the actual circumstances surrounding the expression. Johnson's expression of dissatisfaction with the Federal Government's policies also does not fall within the class of "fighting words" likely to be seen as a direct personal insult or an invitation to exchange fisticuffs. This Court's holding does not forbid a State to prevent "imminent lawless action" and, in fact, Texas has a law specifically prohibiting breaches of the peace. Texas' interest in preserving the flag as a symbol of nationhood and national unity is related to expression in this case and, thus, falls outside the O'Brien test.

(c) The latter interest does not justify Johnson's conviction. The restriction on Johnson's political expression is content based, since the Texas statute is not aimed at protecting the physical integrity of the flag in all circumstances, but is designed to protect it from intentional and knowing abuse that causes serious offense to others. It is therefore subject to "the most exacting scrutiny." Boos v. Barry, 485 U.S. 312 . The government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved. Nor may a State foster its own view of the flag by prohibiting expressive conduct relating to it, since the government may not permit designated symbols to be used to communicate a limited set of messages. Moreover, this Court will not create an exception to these principles protected by the First Amendment for the American flag alone.
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de officiis
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Re: 1st Amendment Thread

Post by de officiis » Fri Dec 02, 2016 7:22 pm

Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000)
Prior to 1995, a student elected as Santa Fe High School's student council chaplain delivered a prayer over the public address system before each home varsity football game. Respondents, Mormon and Catholic students or alumni and their mothers, filed a suit challenging this practice and others under the Establishment Clause of the First Amendment. While the suit was pending, petitioner school district (District) adopted a different policy, which authorizes two student elections, the first to determine whether "invocations" should be delivered at games, and the second to select the spokesperson to deliver them. After the students held elections authorizing such prayers and selecting a spokesperson, the District Court entered an order modifying the policy to permit only nonsectarian, nonproselytizing prayer. The Fifth Circuit held that, even as modified by the District Court, the football prayer policy was invalid.

Held: The District's policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause.

(a) The Court's analysis is guided by the principles endorsed in Lee v. Weisman, 505 U. S. 577. There, in concluding that a prayer delivered by a rabbi at a graduation ceremony violated the Establishment Clause, the Court held that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way that establishes a state religion or religious faith, or tends to do so, id., at 587. The District argues unpersuasively that these principles are inapplicable because the policy's messages are private student speech, not public speech. The delivery of a message such as the invocation here--on school property, at school-sponsored events, over the school's public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer--is not properly characterized as "private" speech. Although the District relies heavily on this Court's cases addressing public forums, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, it is clear that the District's pregame ceremony is not the type of forum discussed in such cases. The District simply does not evince an intent to open its ceremony to indiscriminate use by the student body generally, see, e.g., Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 270, but, rather, allows only one student, the same student for the entire season, to give the invocation, which is subject to particular regulations that confine the content and topic of the student's message. The majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced. See Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. ___, ___. Moreover, the District has failed to divorce itself from the invocations' religious content. The policy involves both perceived and actual endorsement of religion, see Lee, 505 U. S., at 590, declaring that the student elections take place because the District "has chosen to permit" student-delivered invocations, that the invocation "shall" be conducted "by the high school student council" "pon advice and direction of the high school principal," and that it must be consistent with the policy's goals, which include "solemniz[ing] the event." A religious message is the most obvious method of solemnizing an event. Indeed, the only type of message expressly endorsed in the policy is an "invocation," a term which primarily describes an appeal for divine assistance and, as used in the past at Santa Fe High School, has always entailed a focused religious message. A conclusion that the message is not "private speech" is also established by factors beyond the policy's text, including the official setting in which the invocation is delivered, see, e.g., Wallace, 472 U. S., at 73, 76, by the policy's sham secular purposes, see id., at 75, and by its history, which indicates that the District intended to preserve its long-sanctioned practice of prayer before football games, see Lee, 505 U. S., at 596.

(b) The Court rejects the District's argument that its policy is distinguishable from the graduation prayer in Lee because it does not coerce students to participate in religious observances. The first part of this argument--that there is no impermissible government coercion because the pregame messages are the product of student choices--fails for the reasons discussed above explaining why the mechanism of the dual elections and student speaker do not turn public speech into private speech. The issue resolved in the first election was whether a student would deliver prayer at varsity football games, and the controversy in this case demonstrates that the students' views are not unanimous on that issue. One of the Establishment Clause's purposes is to remove debate over this kind of issue from governmental supervision or control. See Lee, 505 U. S., at 589. Although the ultimate choice of student speaker is attributable to the students, the District's decision to hold the constitutionally problematic election is clearly a choice attributable to the State, id., at 587. The second part of the District's argument--that there is no coercion here because attendance at an extracurricular event, unlike a graduation ceremony, is voluntary--is unpersuasive. For some students, such as cheerleaders, members of the band, and the team members themselves, attendance at football games is mandated, sometimes for class credit. The District's argument also minimizes the immense social pressure, or truly genuine desire, felt by many students to be involved in the extracurricular event that is American high school football. Id., at 593. The Constitution demands that schools not force on students the difficult choice between whether to attend these games or to risk facing a personally offensive religious ritual. See id., at 596.

(c) The Court also rejects the District's argument that respondents' facial challenge to the policy necessarily must fail because it is premature: No invocation has as yet been delivered under the policy. This argument assumes that the Court is concerned only with the serious constitutional injury that occurs when a student is forced to participate in an act of religious worship because she chooses to attend a school event. But the Constitution also requires that the Court keep in mind the myriad, subtle ways in which Establishment Clause values can be eroded, Lynch v. Donnelly, 465 U. S. 668, 694, and guard against other different, yet equally important, constitutional injuries. One is the mere passage by the District of a policy that has the purpose and perception of government establishment of religion. See, e.g., Bowen v. Kendrick, 487 U. S. 589, 602; Lemon v. Kurtzman, 403 U. S. 602, 612. As discussed above, the policy's text and the circumstances surrounding its enactment reveal that it has such a purpose. Another constitutional violation warranting the Court's attention is the District's implementation of an electoral process that subjects the issue of prayer to a majoritarian vote. Through its election scheme, the District has established a governmental mechanism that turns the school into a forum for religious debate and empowers the student body majority to subject students of minority views to constitutionally improper messages. The award of that power alone is not acceptable. Cf. Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. ___. For the foregoing reasons, the policy is invalid on its face.


Citizens United v. FEC, 558 U.S. 310 (2010)

The United States Supreme Court held that the First Amendment prohibits the government from restricting political independent expenditures by corporations, associations, or labor unions. This followed a line of decisions starting with Buckley v. Valeo, 424 U.S. 1 (1976) interpreting freedom of speech to include spending money. The case has remained intensely controversial for increasing the influence in elections that money can have, in contrast to most other developed countries where limits are imposed on all election spending.

In the case, the conservative lobbying group Citizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts in apparent violation of the 2002 Bipartisan Campaign Reform Act (commonly known as the McCain–Feingold Act or "BCRA").[2] Section 203 of BCRA defined an "electioneering communication" as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary, and prohibited such expenditures by corporations and unions. The United States District Court for the District of Columbia held that §203 of BCRA applied and prohibited Citizens United from advertising the film Hillary: The Movie in broadcasts or paying to have it shown on television within 30 days of the 2008 Democratic primaries.[1][3] The Supreme Court reversed this decision, striking down those provisions of BCRA that prohibited corporations (including nonprofit corporations) and unions from making independent expenditures and "electioneering communications".[2] The majority decision overruled Austin v. Michigan Chamber of Commerce (1990) and partially overruled McConnell v. Federal Election Commission (2003).[4] The Court, however, upheld requirements for public disclosure by sponsors of advertisements (BCRA §201 and §311). The case did not involve the federal ban on direct contributions from corporations or unions to candidate campaigns or political parties, which remain illegal in races for federal office.


(courtesy of Wikipedia)


Syllabus:

As amended by § 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech that is an "electioneering communication" or for speech that expressly advocates the election or defeat of a candidate. 2 U.S.C. § 441b. An electioneering communication is "any broadcast, cable, or satellite communication" that "refers to a clearly identified candidate for Federal office" and is made within 30 days of a primary election, § 434(f)(3)(A), and that is "publicly distributed," 11 CFR § 100.29(a)(2), which in "the case of a candidate for nomination for President . . . means" that the communication "[c]an be received by 50,000 or more persons in a State where a primary election . . . is being held within 30 days," § 100.29(b)(3)(ii). Corporations and unions may establish a political action committee (PAC) for express advocacy or electioneering communications purposes. 2 U.S.C. § 441b(b)(2). In McConnell v. Federal Election Comm'n, 540 U.S. 93, 203-209, 124 S. Ct. 619, 157 L. Ed. 2d 491, this Court upheld limits on electioneering communications in a facial challenge, relying on the holding in Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S. Ct. 1391, 108 L. Ed. 2d 652, that political speech may be banned based on the speaker's corporate identity.

In January 2008, appellant Citizens United, a nonprofit corporation, released a documentary (hereinafter Hillary) critical of then-Senator Hillary Clinton, a candidate for her party's Presidential nomination. Anticipating that it would make Hillary available on cable television through video-on-demand within 30 days of primary elections, Citizens United produced television ads to run on broadcast and cable television. Concerned about possible civil and criminal penalties for violating § 441b, it sought declaratory and injunctive relief, arguing that (1) § 441b is unconstitutional as applied to Hillary; and (2) BCRA's disclaimer, disclosure, and reporting requirements, BCRA §§ 201 and 311, were unconstitutional as applied to Hillary and the ads. The District Court denied Citizens United a preliminary injunction and granted appellee Federal Election Commission (FEC) summary judgment.

Held:

1. Because the question whether § 441b applies to Hillary cannot be resolved on other, narrower grounds without chilling political speech, this Court must consider the continuing effect of the speech suppression upheld in Austin. Pp. ____ - ____, 175 L. Ed. 2d, at 771-780.

(a) Citizens United's narrower arguments--that Hillary is not an "electioneering communication" covered by § 441b because it is not "publicly distributed" under 11 CFR § 100.29(a)(2); that § 441b may not be applied to Hillary under Federal Election Comm'n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (WRTL), which found § 441b unconstitutional as applied to speech that was not "express advocacy or its functional equivalent," id., at 481, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (opinion of Roberts, C. J.), determining that a communication "is the functional equivalent of express advocacy only if [it] is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate," id., at 469-470, 127 S. Ct. 2652, 168 L. Ed. 2d 329 ; that § 441b should be invalidated as applied to movies shown through video-on-demand because this delivery system has a lower risk of distorting the political process than do television ads; and that there should be an exception to § 441b's ban for nonprofit corporate political speech funded overwhelmingly by individuals--are not sustainable under a fair reading of the statute. Pp. ____ - ____, 175 L. Ed. 2d, at 771-775.

(b) Thus, this case cannot be resolved on a narrower ground without chilling political speech, speech that is central to the First Amendment's meaning and purpose. Citizens United did not waive this challenge to Austin when it stipulated to dismissing the facial challenge below, since (1) even if such a challenge could be waived, this Court may reconsider Austin and § 441b's facial validity here because the District Court "passed upon" the issue, Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 379, 115 S. Ct. 961, 130 L. Ed. 2d 902; (2) throughout the litigation, Citizens United has asserted a claim that the FEC has violated its right to free speech; and (3) the parties cannot enter into a stipulation that prevents the Court from considering remedies necessary to resolve a claim that has been preserved. Because Citizens United's narrower arguments are not sustainable, this Court must, in an exercise of its judicial responsibility, consider § 441b's facial validity. Any other course would prolong the substantial, nationwide chilling effect caused by § 441b's corporate expenditure ban. This conclusion is further supported by the following: (1) the uncertainty caused by the Government's litigating position; (2) substantial time would be required to clarify § 441b's application on the points raised by the Government's position in order to avoid any chilling effect caused by an improper interpretation; and (3) because speech itself is of primary importance to the integrity of the election process, any speech arguably within the reach of rules created for regulating political speech is chilled. The regulatory scheme at issue may not be a prior restraint in the strict sense. However, given its complexity and the deference courts show to administrative determinations, a speaker wishing to avoid criminal liability threats and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak. The restrictions thus function as the equivalent of a prior restraint, giving the FEC power analogous to the type of government practices that the First Amendment was drawn to prohibit. The ongoing chill on speech makes it necessary to invoke the earlier precedents that a statute that chills speech can and must be invalidated where its facial invalidity has been demonstrated. Pp. ____ - ____, 175 L. Ed. 2d, at 775-780.

2. Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures. Hence, § 441b's restrictions on such expenditures are invalid and cannot be applied to Hillary. Given this conclusion, the part of McConnell that upheld BCRA § 203's extension of § 441b's restrictions on independent corporate expenditures is also overruled. Pp. ____ - ____, 175 L. Ed. 2d, at 780-799.

(a) Although the First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech," § 441b's prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracy--it is the means to hold officials accountable to the people--political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction "furthers a compelling interest and is narrowly tailored to achieve that interest." WRTL, supra, at 464, 127 S. Ct. 2652, 168 L. Ed. 2d 329. This language provides a sufficient framework for protecting the interests in this case. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion. Pp. ____ - ____, 175 L. Ed. 2d, at 780-783.

(b) The Court has recognized that the First Amendment applies to corporations, e.g., First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 778, n. 14, 98 S. Ct. 1407, 55 L. Ed. 2d 707, and extended this protection to the context of political speech, see, e.g., NAACP v. Button, 371 U.S. 415, 428-429, 83 S. Ct. 328, 9 L. Ed. 2d 405. Addressing challenges to the Federal Election Campaign Act of 1971, the Buckley Court upheld limits on direct contributions to candidates, 18 U.S.C. § 608(b), recognizing a governmental interest in preventing quid pro quo corruption. 424 U.S., at 25-26, 96 S. Ct. 612, 46 L. Ed. 2d 659. However, the Court invalidated § 608(e)'s expenditure ban, which applied to individuals, corporations, and unions, because it "fail[ed] to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process," id., at 47-48, 96 S. Ct. 612, 46 L. Ed. 2d 659. While Buckley did not consider a separate ban on corporate and union independent expenditures found in § 610, had that provision been challenged in Buckley's wake, it could not have been squared with the precedent's reasoning and analysis. The Buckley Court did not invoke the overbreadth doctrine to suggest that § 608(e)'s expenditure ban would have been constitutional had it applied to corporations and unions but not individuals. Notwithstanding this precedent, Congress soon recodified § 610's corporate and union expenditure ban at 2 U.S.C. § 441b, the provision at issue. Less than two years after Buckley, Bellotti reaffirmed the First Amendment principle that the Government lacks the power to restrict political speech based on the speaker's corporate identity. 435 U.S., at 784-785, 98 S. Ct. 1407, 55 L. Ed. 2d 707. Thus the law stood until Austin upheld a corporate independent expenditure restriction, bypassing Buckley and Bellotti by recognizing a new governmental interest in preventing "the corrosive and distorting effects of immense aggregations of [corporate] wealth . . . that have little or no correlation to the public's support for the corporation's political ideas." 494 U.S., at 660, 110 S. Ct. 1391, 108 L. Ed. 2d 652. Pp. ____ - ____, 175 L. Ed. 2d, at 783-787.

(c) This Court is confronted with conflicting lines of precedent: a pre-Austin line forbidding speech restrictions based on the speaker's corporate identity and a post-Austin line permitting them. Neither Austin's antidistortion rationale nor the Government's other justifications support § 441b's restrictions. Pp. ____ - ____, 175 L. Ed. 2d, at 787-797.

(1) The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in political speech, but Austin's antidistortion rationale would permit the Government to ban political speech because the speaker is an association with a corporate form. Political speech is "indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation." Bellotti, supra, at 777, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (footnote omitted). This protection is inconsistent with Austin's rationale, which is meant to prevent corporations from obtaining "'an unfair advantage in the political marketplace'" by using "'resources amassed in the economic marketplace.'" 494 U.S., at 659, 110 S. Ct. 1391, 108 L. Ed. 2d 652. First Amendment protections do not depend on the speaker's "financial ability to engage in public discussion." Buckley, supra, at 49, 96 S. Ct. 612, 46 L. Ed. 2d 659. These conclusions were reaffirmed when the Court invalidated a BCRA provision that increased the cap on contributions to one candidate if the opponent made certain expenditures from personal funds. Davis v. FEC, 554 U.S. 724, 742, 128 S. Ct. 2759, 171 L. Ed. 2d 737. Distinguishing wealthy individuals from corporations based on the latter's special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech. It is irrelevant for First Amendment purposes that corporate funds may "have little or no correlation to the public's support for the corporation's political ideas." Austin, supra, at 660, 110 S. Ct. 1391, 108 L. Ed. 2d 652. All speakers, including individuals and the media, use money amassed from the economic marketplace to fund their speech, and the First Amendment protects the resulting speech. Under the antidistortion rationale, Congress could also ban political speech of media corporations. Although currently exempt from § 441b, they accumulate wealth with the help of their corporate form, may have aggregations of wealth, and may express views "hav[ing] little or no correlation to the public's support" for those views. Differential treatment of media corporations and other corporations cannot be squared with the First Amendment, and there is no support for the view that the Amendment's original meaning would permit suppressing media corporations' political speech. Austin interferes with the "open marketplace" of ideas protected by the First Amendment. New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 208, 128 S. Ct. 791, 169 L. Ed. 2d 665. Its censorship is vast in its reach, suppressing the speech of both for-profit and nonprofit, both small and large, corporations. Pp. ____ - ____, 175 L. Ed. 2d, at 787-793.

(2) This reasoning also shows the invalidity of the Government's other arguments. It reasons that corporate political speech can be banned to prevent corruption or its appearance. The Buckley Court found this rationale "sufficiently important" to allow contribution limits but refused to extend that reasoning to expenditure limits, 424 U.S., at 25, 96 S. Ct. 612, 46 L. Ed. 2d 659, and the Court does not do so here. While a single Bellotti footnote purported to leave the question open, 435 U.S., at 788, n. 26, 98 S. Ct. 1407, 55 L. Ed. 2d 707, this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy. Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252, 173 L. Ed. 2d 1208, distinguished. Pp. ____ - ____, 175 L. Ed. 2d, at 793-796.

(3) The Government's asserted interest in protecting shareholders from being compelled to fund corporate speech, like the antidistortion rationale, would allow the Government to ban political speech even of media corporations. The statute is underinclusive; it only protects a dissenting shareholder's interests in certain media for 30 or 60 days before an election when such interests would be implicated in any media at any time. It is also overinclusive because it covers all corporations, including those with one shareholder. P. ____, 175 L. Ed. 2d, at 796.

(4) Because § 441b is not limited to corporations or associations created in foreign countries or funded predominately by foreign shareholders, it would be overbroad even if the Court were to recognize a compelling governmental interest in limiting foreign influence over the Nation's political process. Pp. ____ - ____, 175 L. Ed. 2d, at 796-797.

(d) The relevant factors in deciding whether to adhere to stare decisis, beyond workability--the precedent's antiquity, the reliance interests at stake, and whether the decision was well reasoned--counsel in favor of abandoning Austin, which itself contravened the precedents of Buckley and Bellotti. As already explained, Austin was not well reasoned. It is also undermined by experience since its announcement. Political speech is so ingrained in this country's culture that speakers find ways around campaign finance laws. Rapid changes in technology--and the creative dynamic inherent in the concept of free expression--counsel against upholding a law that restricts political speech in certain media or by certain speakers. In addition, no serious reliance issues are at stake. Thus, due consideration leads to the conclusion that Austin should be overruled. The Court returns to the principle established in Buckley and Bellotti that the Government may not suppress political speech based on the speaker's corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations. Pp. ____ - ____, 175 L. Ed. 2d, at 797-799.

3. BCRA §§ 201 and 311 are valid as applied to the ads for Hillary and to the movie itself. Pp. ____ - ____, 175 L. Ed. 2d, at 799-803.

(a) Disclaimer and disclosure requirements may burden the ability to speak, but they "impose no ceiling on campaign-related activities," Buckley, supra, at 64, 96 S. Ct. 612, 46 L. Ed. 2d 659, or "'"prevent anyone from speaking,"'" McConnell, 540 U.S., at 201, 124 S. Ct. 619, 157 L. Ed. 2d 491. The Buckley Court explained that disclosure can be justified by a governmental interest in providing "the electorate with information" about election-related spending sources. The McConnell Court applied this interest in rejecting facial challenges to §§ 201 and 311. 540 U.S., at 196, 124 S. Ct. 619, 157 L. Ed. 2d 491. However, the Court acknowledged that as-applied challenges would be available if a group could show a "'reasonable probability'" that disclosing its contributors' names would "'subject them to threats, harassment, or reprisals from either Government officials or private parties.'" Id., at 198, 124 S. Ct. 619, 157 L. Ed. 2d 491 799-800.

(b) The disclaimer and disclosure requirements are valid as applied to Citizens United's ads. They fall within BCRA's "electioneering communication" definition: They referred to then-Senator Clinton by name shortly before a primary and contained pejorative references to her candidacy. Section 311 disclaimers provide information to the electorate, McConnell, supra, at 196, 124 S. Ct. 619, 157 L. Ed. 2d 491, and "insure that the voters are fully informed" about who is speaking, Buckley, supra, at 76, 96 S. Ct. 612, 46 L. Ed. 2d 659. At the very least, they avoid confusion by making clear that the ads are not funded by a candidate or political party. Citizens United's arguments that § 311 is underinclusive because it requires disclaimers for broadcast advertisements but not for print or Internet advertising and that § 311 decreases the quantity and effectiveness of the group's speech were rejected in McConnell. This Court also rejects their contention that § 201's disclosure requirements must be confined to speech that is the functional equivalent of express advocacy under WRTL's test for restrictions on independent expenditures, 551 U.S., at 469-476, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (opinion of Roberts, C.J.). Disclosure is the less restrictive alternative to more comprehensive speech regulations. Such requirements have been upheld in Buckley and McConnell. Citizens United's argument that no informational interest justifies applying § 201 to its ads is similar to the argument this Court rejected with regard to disclaimers. Citizens United finally claims that disclosure requirements can chill donations by exposing donors to retaliation, but offers no evidence that its members face the type of threats, harassment, or reprisals that might make § 201 unconstitutional as applied. Pp. ____ - ____, 175 L. Ed. 2d, at 800-802.

(c) For these same reasons, this Court affirms the application of the §§ 201 and 311 disclaimer and disclosure requirements to Hillary. Pp. ____ - ____, 175 L. Ed. 2d, at 802.


McCutcheon v. Federal Election Commission, 572 U.S. ___ (2014)

The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. See, e.g., Buckley v. Valeo, 424 U.S. 1, 26-27, 96 S. Ct. 612, 46 L. Ed. 2d 659. It may not, however, regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others. See, e.g., Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. ___, ___, 131 S. Ct. 2806, 180 L. Ed. 2d 664.

The Federal Election Campaign Act of 1971 (FECA), as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA), imposes two types of limits on campaign contributions. Base limits restrict how much money a donor may contribute to a particular candidate or committee while aggregate limits restrict how much money a donor may contribute in total to all candidates or committees. 2 U. S. C. § 441a.

In the 2011-2012 election cycle, appellant McCutcheon contributed to 16 different federal candidates, complying with the base limits applicable to each. He alleges that the aggregate limits prevented him from contributing to 12 additional candidates and to a number of noncandidate political committees. He also alleges that he wishes to make similar contributions in the future, all within the base limits. McCutcheon and appellant Republican National Committee filed a complaint before a three-judge District Court, asserting that the aggregate limits were unconstitutional under the First Amendment. The District Court denied their motion for a preliminary injunction and granted the Government’s motion to dismiss. Assuming that the base limits appropriately served the Government’s anticorruption interest, the District Court concluded that the aggregate limits survived First Amendment scrutiny because they prevented evasion of the base limits.

Held: The judgment is reversed, and the case is remanded.

Chief Justice Roberts, joined by Justice Scalia, Justice Kennedy, and Justice Alito, concluded that the aggregate limits are invalid under the First Amendment.

(a) Appellants’ substantial First Amendment challenge to the current system of aggregate limits merits plenary consideration.

(1) In Buckley, this Court evaluated the constitutionality of the original contribution and expenditure limits in FECA. Buckley distinguished the two types of limits based on the degree to which each encroaches upon protected First Amendment interests. It subjected expenditure limits to “the exacting scrutiny applicable to limitations on core First Amendment rights of political expression.” 424 U.S., at 44-45, 96 S. Ct. 612, 46 L. Ed. 2d 659. But it concluded that contribution limits impose a lesser restraint on political speech and thus applied a lesser but still “rigorous standard of review,” id., at 29, 96 S. Ct. 612, 46 L. Ed. 2d 659, under which such limits “may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgement of associational freedoms,” id., at 25, 96 S. Ct. 612, 46 L. Ed. 2d 659. Because the Court found that the primary purpose of FECA—preventing quid pro quo corruption and its appearance—was a “sufficiently important” governmental interest, id., at 26-27, 96 S. Ct. 612, 46 L. Ed. 2d 659, it upheld the base limit under the “closely drawn” test, id., at 29, 96 S. Ct. 612, 46 L. Ed. 2d 659. After doing so, the Court devoted only one paragraph of its 139-page opinion to the aggregate limit then in place under FECA, noting that the provision “ha[d] not been separately addressed at length by the parties.” Id., at 38, 96 S. Ct. 612, 46 L. Ed. 2d 659. It concluded that the aggregate limit served to prevent circumvention of the base limit and was “no more than a corollary” of that limit. Id., at 38, 96 S. Ct. 612, 46 L. Ed. 2d 659.

(2) There is no need in this case to revisit Buckley’s distinction between contributions and expenditures and the corresponding distinction in standards of review. Regardless whether strict scrutiny or the “closely drawn” test applies, the analysis turns on the fit between the stated governmental objective and the means selected to achieve that objective. Here, given the substantial mismatch between the Government’s stated objective and the means selected to achieve it, the aggregate limits fail even under the “closely drawn” test.

Buckley’s ultimate conclusion about the constitutionality of the aggregate limit in place under FECA does not control here. Buckley spent just three sentences analyzing that limit, which had not been separately addressed by the parties. Appellants here, by contrast, have directly challenged the aggregate limits in place under BCRA, a different statutory regime whose limits operate against a distinct legal backdrop. Most notably, statutory safeguards against circumvention have been considerably strengthened since Buckley. The 1976 FECA Amendments added another layer of base limits—capping contributions from individuals to political committees—and an antiproliferation rule prohibiting donors from creating or controlling multiple affiliated political committees. Since Buckley, the Federal Election Commission has also enacted an intricate regulatory scheme that further limits the opportunities for circumvention of the base limits through “unearmarked contributions to political committees likely to contribute” to a particular candidate. 424 U.S., at 38, 96 S. Ct. 612, 46 L. Ed. 2d 659. In addition to accounting for such statutory and regulatory changes, appellants raise distinct legal arguments not considered in Buckley, including an overbreadth challenge to the aggregate limit.

(b) Significant First Amendment interests are implicated here. Contributing money to a candidate is an exercise of an individual’s right to participate in the electoral process through both political expression and political association. A restriction on how many candidates and committees an individual may support is hardly a “modest restraint” on those rights. The Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse. In its simplest terms, the aggregate limits prohibit an individual from fully contributing to the primary and general election campaigns of ten or more candidates, even if all contributions fall within the base limits. And it is no response to say that the individual can simply contribute less than the base limits permit: To require one person to contribute at lower levels because he wants to support more candidates or causes is to penalize that individual for “robustly exercis[ing]” his First Amendment rights. Davis v. Federal Election Comm’n, 554 U.S. 724, 739, 128 S. Ct. 2759, 171 L. Ed. 2d 737.

In assessing the First Amendment interests at stake, the proper focus is on an individual’s right to engage in political speech, not a collective conception of the public good. The whole point of the First Amendment is to protect individual speech that the majority might prefer to restrict, or that legislators or judges might not view as useful to the democratic process.

(c) The aggregate limits do not further the permissible governmental interest in preventing quid pro quo corruption or its appearance.

(1) This Court has identified only one legitimate governmental interest for restricting campaign finances: preventing corruption or the appearance of corruption. See Davis, supra, at 741, 128 S. Ct. 2759, 171 L. Ed. 2d 737. Moreover, the only type of corruption that Congress may target is quid pro quo corruption. Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties. Citizens United v. Federal Election Comm’n, 558 U.S. 310, 359, 130 S. Ct. 876, 175 L. Ed. 2d 753. The line between quid pro quo corruption and general influence must be respected in order to safeguard basic First Amendment rights, and the Court must “err on the side of protecting political speech rather than suppressing it.” Federal Election Comm’n v. Wisconsin Right to Life, 551 U.S. 449, 457, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (opinion of Roberts Click for Enhanced Coverage Linking Searches, C. J.).

(2) The Government argues that the aggregate limits further the permissible objective of preventing quid pro quo corruption. The difficulty is that once the aggregate limits kick in, they ban all contributions of any amount, even though Congress’s selection of a base limit indicates its belief that contributions beneath that amount do not create a cognizable risk of corruption. The Government must thus defend the aggregate limits by demonstrating that they prevent circumvention of the base limits, a function they do not serve in any meaningful way. Given the statutes and regulations currently in effect, Buckley’s fear that an individual might “contribute massive amounts of money to a particular candidate through . . . unearmarked contributions” to entities likely to support the candidate, 424 U.S., at 38, 96 S. Ct. 612, 46 L. Ed. 2d 659, is far too speculative. Even accepting Buckley’s circumvention theory, it is hard to see how a candidate today could receive “massive amounts of money” that could be traced back to a particular donor uninhibited by the aggregate limits. The Government’s scenarios offered in support of that possibility are either illegal under current campaign finance laws or implausible.

(3) The aggregate limits also violate the First Amendment because they are not “closely drawn to avoid unnecessary abridgment of associational freedoms.” Buckley, supra, at 25, 96 S. Ct. 612, 46 L. Ed. 2d 659. The Government argues that the aggregate limits prevent an individual from giving to too many initial recipients who might then recontribute a donation, but experience suggests that the vast majority of contributions are retained and spent by their recipients. And the Government has provided no reason to believe that candidates or party committees would dramatically shift their priorities if the aggregate limits were lifted. The indiscriminate ban on all contributions above the aggregate limits is thus disproportionate to the Government’s interest in preventing circumvention.

Importantly, there are multiple alternatives available to Congress that would serve the Government’s interest in preventing circumvention while avoiding “unnecessary abridgment” of First Amendment rights. Buckley, supra, at 25, 96 S. Ct. 612, 46 L. Ed. 2d 659. Such alternatives might include targeted restrictions on transfers among candidates and political committees, or tighter earmarking rules. Transfers, after all, are the key to the Government’s concern about circumvention, but they can be addressed without such a direct and broad interference with First Amendment rights.

(4) Disclosure of contributions also reduces the potential for abuse of the campaign finance system. Disclosure requirements, which are justified by “a governmental interest in ‘provid[ing] the electorate with information’ about the sources of election-related spending,” Citizens United, supra, at 367, 130 S. Ct. 876, 175 L. Ed. 2d 753, may deter corruption “by exposing large contributions and expenditures to the light of publicity,” Buckley, supra at 67, 96 S. Ct. 612, 46 L. Ed. 2d 659. Disclosure requirements may burden speech, but they often represent a less restrictive alternative to flat bans on certain types or quantities of speech. Particularly with modern technology, disclosure now offers more robust protections against corruption than it did when Buckley was decided.

(d) The Government offers an additional rationale for the aggregate limits, arguing that the opportunity for corruption exists whenever a legislator is given a large check, even if the check consists of contributions within the base limits to be divided among numerous candidates or committees. That rationale dangerously broadens the circumscribed definition of quid pro quo corruption articulated in prior cases. Buckley confined its analysis to the possibility that “massive amounts of money” could be funneled to a particular candidate in excess of the base limits. 424 U.S., at 38, 96 S. Ct. 612, 46 L. Ed. 2d 659. Recasting as corruption a donor’s widely distributed support for a political party would dramatically expand government regulation of the political process. And though the Government suggests that solicitation of large contributions poses the corruption danger, the aggregate limits are not limited to any direct solicitation by an officeholder or candidate.
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Re: 1st Amendment Thread

Post by TheReal_ND » Fri Dec 02, 2016 7:27 pm

Hey it would be cool if someone posted an archive from the old forum in each of these. Just a thought.

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Re: 1st Amendment Thread

Post by de officiis » Sat Dec 03, 2016 7:13 am

What is a “Religious Institution”?

by Zoë Robinson

55 B.C. L. Rev. 181 (2014)

Abstract:
Change in the First Amendment landscape tends toward the incremental, but the U.S. Supreme Court’s opinion two terms ago in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC—holding that religious institutions enjoy a range of First Amendment protections that do not extend to other individuals or organizations—is better understood as a jurisprudential earthquake. And yet, it could be that the biggest aftershock has yet to be felt, with the Court leaving open the most important functional question that exists in scenarios where there will be constitutional winners and losers: what, or who, is a “religious institution” for First Amendment purposes? Although lower federal courts have begun to grapple with the question, no satisfactory approach exists. This Article proposes a framework for distinguishing between those institutions that fall within the scope of the religious institutions category and those that do not. The framework proposed proceeds from a purposive analysis that turns on which institutions will most often and most effectively use the newly identified and exclusive protections to benefit society as a whole. To this end, the framework favors institutions that have as their purpose: (1) protection of individual conscience; (2) protection of group rights; and (3) provision of desirable societal structures.
Full Article: http://bclawreview.org/files/2014/01/05_robinson.pdf
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Re: 1st Amendment Thread

Post by de officiis » Sat Dec 03, 2016 7:14 am

THE CHALLENGE OF STRONG RELIGION IN THE LIBERAL STATE

Gila Stopler

32 B.U. Int'l L.J. 411 (Summer 2014)

Abstract
Liberal states are struggling to find ways to deal with strong religion in a manner that would enable them to give due respect to the religious beliefs of citizens while adhering to core liberal values, such as respect for human rights and avoidance of undue entanglement of religious and state authority. One solution is granting authority and autonomy to private religious tribunals, for example, in the area of religious family law. Another solution is creating a direct link between state law and some religious obligations, as in the New York Get Laws ("NY Get Laws"). Some people have criticized these solutions as deviating from the pattern of religion-state relations suitable for the liberal state, while others have embraced them. This Article rejects the tendency to view these solutions as similar and claims that they differ in both the structure of religion-state relations that they advance and in their compatibility with human rights. It argues that only the latter solution, exemplified in the NY Get Laws, is a proper solution for the challenge of strong religion in a liberal state that aims to respect the rights of all, including weaker members of the community, such as women.

In order to clarify the important differences between the two solutions, in terms of both structure and rights, this Article employs a wide comparative perspective on religion-state relations, analyzing such relations in both liberal and non-liberal countries and offering a typology of three distinct approaches that states take towards religion - nationalization, authorization, and privatization. It assesses the advantages and disadvantages of these approaches in responding to the challenge of strong religion and their compatibility with liberal religion-state structure and with liberal human rights. It then employs this analysis to highlight the significant differences between the two solutions to the challenge of strong religion, rejecting the calls for the authorization of private religious tribunals and embracing the careful and conditional incorporation of religious considerations into civil law, as in the NY Get Laws. This Article argues that the latter is an appropriate and essential means for respecting both strong religion and liberal values since it enables the liberal state to acknowledge the importance of religious belief in people's lives, while at the same time protecting the rights of all its citizens.
Full Article: http://www.google.com/url?sa=t&rct=j&q= ... 0277,d.cWc
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Re: 1st Amendment Thread

Post by de officiis » Sat Dec 03, 2016 7:15 am

The Campaign Finance Safeguards of Federalism

Garrick B. Pursley

63 Emory L.J. 781 (2014)
This Article provides the first systematic account of the relationship between campaign finance and federalism. Federalism—a fundamental characteristic of the constitutional structure—depends for its stability on political mechanisms. States and their advocates and representatives in Congress, federal agencies, political parties, intergovernmental lobbying groups, and other political forums work together to check federal interference with state governments. Entire normative theories of federalism depend on the assumption that this system of political safeguards is working effectively in the background.
Full Article: http://www.law.emory.edu/fileadmin/jour ... ursley.pdf
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Re: 1st Amendment Thread

Post by de officiis » Sat Dec 03, 2016 7:15 am

Terrorism and Associations

Ashutosh Bhagwat

63 Emory L.J. 581 (2014)

Abstract:
The domestic manifestation of the War on Terror has produced the most difficult and sustained set of controversies regarding the limits on First Amendment protections for political speech and association since the anti-Communist crusades of the Red Scare and McCarthy eras. An examination of the types of domestic terrorism prosecutions that have become common since the September 11 attacks reveals continuing and unresolved conflicts between national security needs and traditional protections for speech and (especially) associational freedoms. Yet the courts have barely begun to acknowledge, much less address, these serious issues. In the Supreme Court’s only sustained engagement with these problems, the 2010 decision in Holder v. Humanitarian Law Project, the majority largely avoided the hard questions by simply asserting that 18 U.S.C. § 2339B, the federal statute forbidding the provision of material support to foreign terrorist organizations, does not directly burden either the freedom of speech or freedom of association. Lower courts have performed even more poorly, generally rejecting powerful speech and association claims with bare assertions that “there is no First Amendment right...to support terrorists.”

This article has taken as its major goal identifying and analyzing the First Amendment issues raised by the domestic War on Terror, focusing especially on the role of freedom of association in this context. Freedom of association has historically been a critical and basic First Amendment right, central to the process of democratic self-governance that the First Amendment protects. The right of association is also deeply implicated in many domestic terrorism prosecutions, since the essence of those prosecutions is an act of association, often combined with speech. Finally, the judiciary’s bare assertions that “material support” or financial contributions do not constitute association cannot be sustained given both first principles and well-developed law outside the context of terrorism. In short, in this area the courts have failed in their basic job of honestly engaging with the law.

Ultimately, however, I conclude here that there does exist a clear, textually and historically justifiable basis for limiting constitutional protections for terrorist and other violent groups. The principle derives from the textual roots of the freedom of association, which lies in the Assembly Clause of the First Amendment. The Assembly Clause, unlike the Free Speech Clause, explicitly protects only a right “peaceably to assemble,” and so excludes violent groups. This simple principle, completely missed by the courts, serves to reconcile most terrorism prosecutions with the First Amendment. It cannot, of course, resolve all issues, especially when a prosecution is based primarily on speech not association, but it does much of the work. There also remain some difficult and complicated issues of definition and implementation, on which I provide some thoughts. But the basic argument advanced here is quite simple: the freedoms of association and assembly protect only peaceable association and assembly; and terrorists are not peaceable.
Full Article: http://papers.ssrn.com/sol3/papers.cfm? ... id=2240470
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Re: 1st Amendment Thread

Post by de officiis » Sat Dec 03, 2016 7:16 am

DO YOU HAVE A LICENSE TO SAY THAT? OCCUPATIONAL LICENSING AND INTERNET SPEECH

Stephen A. Meli

21 Geo. Mason L. Rev. 753 (Spring 2014)

Introduction
Suppose that you eat a special kind of diet. This diet focuses primarily on eating meats and greens, and it has the benefit of countering diabetes. You decide to share this diet with the world via your blog to inform others who might be afflicted with this disease and to provide nutritional advice. Would you expect to need a license to provide this information and advice on this new diet? Would you expect a state licensing board to contact you about the content of your blog and inform you that you cannot provide such dietary advice without a license? Well, this is similar to the situation that Steve Cooksey, a proponent of the "cave man diet," found himself in. 1

Mr. Cooksey's experience touches on an important area of constitutional law that Justice Byron R. White described as "a collision between the power of government to license and regulate those who would pursue a profession or vocation and the rights of freedom of speech and of the press guaranteed by the First Amendment." 2 The collision is even more pressing during the Internet Age as individuals use the Internet as a medium to engage in the "marketplace of ideas." 3 In particular, blogging has become a popular method for individuals to express viewpoints and share information in a seamless and efficient manner. 4 The structural characteristics of the Internet make information instantly accessible to all other users, and regulation of content is difficult, if not futile. 5

The government's interest in licensing and regulating certain professions sets up a conundrum in relation to free speech. In certain professions, speech alone is the service being provided. 6 Thus, the government has to distinguish between speech that is provided as part of one's professional opinion and speech that is not. 7

This Comment maintains that advice, opinions, and statements made on the Internet should not be subject to government licensing statutes because such statutes constitute content-based regulations. The governmental interest in licensing certain professions is not enough to overcome First Amendment protections for speech. Utilizing the "marketplace of ideas" doctrine, this Comment argues that both the content and medium of speech should push the Supreme Court to reject the licensing of speech by nonprofessionals.
Full Article: http://www.georgemasonlawreview.org/doc ... ersion.pdf
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Re: 1st Amendment Thread

Post by de officiis » Sat Dec 03, 2016 7:16 am

Prior Restraint and the Police: The First Amendment Right to Disseminate Recordings of Police Behavior

Jacqueline G. Waldman

2014 U. Ill. L. Rev. 311
Freedom of speech under the First Amendment once again is in jeopardy—this time, in the form of unconstitutional prior restraints on personal video recordings. In the age of smartphones and media-sharing services like YouTube and Facebook, video recording and uploading or distributing has become a natural—and even expected—form of communication. It is commonplace that people record trivial, everyday moments, and, it remains routine for people to record noteworthy events or occurrences. In a certain sense, countless media users and sharers around the country have become the functional equivalents of journalists reporting and commenting on all aspects of life and society. Thus, in the wake of a growing public disillusionment regarding law enforcement and the criminal justice system, people have begun video recording police behavior as the officers are acting in the public discharge.

Such videography has not existed without pushback from law enforcement. In response to these civilian-made video recordings, many police officers confiscate the video recording devices and/or destroy the files containing the recordings. This type of police interference has brought with it a storm of controversy. The debate centers on whether personal video recording of police conduct is “speech” that qualifies for First Amendment protection, and if so, whether confiscating and/or destroying the videos before their dissemination amounts to an unconstitutional prior restraint on speech—the most serious incursion of one’s First Amendment speech freedom.

This Note ultimately argues that destroying an individual’s video recording before the individual has the chance to disseminate it does indeed impose an unconstitutional prior restraint on speech. In arriving at this conclusion, this Note analyzes: (1) whether video recordings of police constitute speech, (2) whether the state can offer independent justifications for the restraint on speech, and (3) whether any exceptions articulated in prior restraint jurisprudence justify the destruction of the recordings. In addition to its recommendation that police officers’ confiscation and/or destruction of civilian-made videos be formally declared a prior restraint, this Note offers two suggestions to prevent the restraint from occurring: (1) require police to obtain warrants before seizing or destroying civilian-made video recordings, and (2) install a supervisory level of review to help curtail this form of prior restraint on speech.
Full Article: http://illinoislawreview.org/wp-content ... aldman.pdf
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Re: 1st Amendment Thread

Post by de officiis » Sat Dec 03, 2016 7:17 am

Removing Disfavored Faces from Facebook: The Freedom of Speech Implications of Banning Sex Offenders from Social Media

Jonathon Hitz

89 Ind. L. Rev. 1327 (Summer 2014)
This Note scrutinizes the constitutionality of statutes that ban sex offenders who are no longer under any form of probation, parole, or supervised release from using social media. This Note argues that the incarnations of three of the social media ban statutes that have been examined by the federal judiciary were properly found unconstitutional 10 because they violate the free speech rights of the sex offenders that they ban from social media. 11 This Note goes on to argue that states can secure the interests they were seeking to protect in adopting these statutes through other means.
Full Article: http://ilj.law.indiana.edu/articles/13-Hitz.pdf
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