Professor Patricia A. Broussard Constitutional Law - First Amendment - Spring 2017

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1 Course Number: 6511 Section: 301 M/W 9:00 10:15 Office: Office Hours: 10:30 2PM Also, By Appointment Professor Patricia A. Broussard Constitutional Law - First Amendment - Spring 2017 Course Description This three-credit course examines the First Amendment, focusing on speech, association, and freedom of religion. Cases will be examined from a historical perspective and class discussion will include current events, presentations, and experiential exercises. The following rules govern this class: 1. Lateness over 10 minutes will be counted as an absence. 2. Preparation is mandatory. 3. You may have your laptop in class in case we need to reference something online, but it may ot e ope ithout the professor s per issio. WEEK 1 CHAPTER 9 FIRST AMENDMENT: FREEDOM OF EXPRESSION pp ; Principles and Policies, Read the appropriate sections that correspond to text book. Free Speech Methodology Content-Based and Content-Neutral Laws The Importance of the Distinction Turner Broadcasting System, Inc. v. FCC How it is Determined Whether a Law is Content Based? Boos v. Barry Republican Party of Minnesota v. White Problems in Applying the Distinction between Content-Based and Content-Neutral Laws City of Renton v. Playtime Theatres, Inc. National Endowment for the Arts v. Finley Pleasant Grove City v. Utah v. Summum Vagueness and Overbreadth Vagueness Coates v. City of Cincinnati Overbreadth Schad v. Borough of Mount Ephraim Relationship between Vagueness and Overbreadth City of Los Angeles v. Jews for Jesus 1

2 Week 2 pp Prior Restraints What is Prior Restraint? Are Prior Restraints So Bad? Court Orders as a Prior Restraint Near v. State of Minnesota ex rel. Olson Court Orders to Protect National Security New York Times Co. v. United States Court Orders to Protect Fair Trials Nebraska Press Assn. v. Stuart Court Orders Seizing the Assets of Businesses Convicted of Obscenity Violations Alexander v. United States Licensing as a Prior Restraint Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton Important Reasons for Licensing WEEK 3 pp What is an infringement OF speech? United States v. National Treasury Employees Union Compelled Speech West Virginia State Board of Education v. Barnette Rumsfeld v. Forum for Academic & Institutional Rights, Inc. McIntyre v. Ohio Elections Commn. Unconstitutional Conditions Rust v. Sullivan Legal Services Corp. v. Velazquez STUDENT PRESENTATIONS BEGIN WEEK 4 AND WILL TAKE PLACE ON MONDAYS WEEK 4 -Group 1 pp Types of Unprotected and Less Protected Speech Incitement of Illegal Activity The Clear a d Prese t Da ger Test Schenck v. United States Frohwerk v. United States Debs v. United States Abrams v. United States The Reasonableness Approach Gitlow v. New York Whitney v. California The Risk Formula Approach Dennis v. United States The Brandenburg Test Brandenburg v. Ohio 2

3 Holder v. Humanitarian Law Project WEEK 5 Group 2 pp Fighting Words, the Hostile Audience, and the Problem of Racist Speech Fighting Words Chaplinsky v. New Hampshire Narrowing the Fighting Words Doctrine Fighting Words Laws Invalidated as Vague and Overbroad Gooding v. Wilson Narrow Fighting Words Laws as Content-Based Restrictions R.A.V. v. City of St. Paul, Minnesota a. The Hostile Audience Cases Feiner v. New York The Problem of Racist Speech Beauharnais v. Illinois Virginia v. Black WEEK 6 Group 3 pp Sexually Oriented Speech Obscenity Supreme Court Decisions Finding Obscenity Unprotected Roth v. United States Paris Adult Theatre I v. Slaton Miller v. California Should Obscenity Be a Category of Unprotected Speech? Should There Be a New Exception for Obscenity? Pornography Child Pornography New York v. Ferber Ashcroft v. Free Speech Coalition Protected but Low-Value Sexual Speech Zoning Ordinances Young v. American Mini Theatres, Inc. Nude Dancing City of Erie v. Pap s A.M. Government Techniques for Controlling Obscenity and Child Pornography Stanley v. Georgia Osborne v. Ohio Profa it a d I de e t pee h Cohen v. California The Broadcast Media Federal Communications Comm. v. Pacifica Foundation Telephones The Internet Reno v. American Civil Liberties Union 3

4 Cable Television A New Exception for Violent Speech? United States v. Stevens Brown v. Entertainment Merchants Association WEEK 7 Group Commercial Speech Constitutional Protection for Commercial Speech Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. What Is Commercial Speech? Bolger v. You g s Drug Produ ts Corp. The Test for Evaluating Regulation of Commercial Speech Central Hudson Gas & Electric Corp. v. Public Service Comm. of New York Advertising of Illegal Activities False and Deceptive Advertising Advertising That Inherently Risks Deception Restrictions of Trade Names Friedman v. Rogers Regulating Commercial Speech to Achieve Other Goals For ale ig s o Houses Linmark Associates, Inc. v. Township of Willingboro Alcohol Products 44 Liquormart, Inc. v. Rhode Island Tobacco Products Lorillard Tobacco Co. v. Reilly Gambling Advertising by Lawyers and Other Professionals WEEK 8 Group Reputation, Privacy, Publicity, and the 1 st Amendment: Torts and the 1 st Amendment Defamation Public Officials as Defamation Plaintiffs New York Times Co. v. Sullivan Public Figures as Plaintiffs Gertz v. Welch Private Figures, Matters of Public Concern Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. Private Figures, Matters Not of Public Concern Intentional Infliction of Emotional Distress Hustler Magazine v. Falwell Snyder v. Phelps Public Disclosure of Private Facts Cox Broadcasting Corp. v. Cohn Right of Publicity 4

5 WEEK 9 Group Conduct That Communicates What is Speech? When is Conduct Communicative? When May the Government Regulate Conduct That Communicates? The O Brie Test U ited States v. O Brie Flag Desecration Texas v. Johnson Spending Money as Political Speech Buckley v. Valeo Randall v. Sorrell First National Bank of Boston v. Bellotti Citizens United v. Federal Election Commission Arizona Free E terprise Clu s Freedo Clu Pa v. Be ett WEEK 10 Group What Places Are Available for Speech? Government Properties and Speech Initial Rejection and Subsequent Recognition of a Right to Use Government Property for Speech Hague v. Committee for Industrial Organization Schneider v. New Jersey What Government Property and Under What Circumstances? Public Forums Content Neutrality Police Department of the City of Chicago v. Mosley Time, Place, and Manner Restrictions Hill v. Colorado Licensing and Permit Systems No Requirement for the Use of the Least Restrictive Alternative Ward v. Rock Against Racism Designated Public Forums Limited Public Forums Christian Legal Society Chapter of UC Hastings COL v. Martinez Nonpublic Forums International Society for Krishna Consciousness, Inc. v. Lee Private Property and Speech Speech in Authoritarian Environments: Military, Prisons, and Schools Military Parker v. Levy Prisons Thornburgh v. Abbott Schools Tinker v. Des Moines Independent Community Bethel School District No. 403 v. Fraser 5

6 Hazelwood School District v. Kuhlmeier Morse v. Frederick The Speech Rights of Government Employees Garcetti v. Ceballos WEEK 11 Group Freedom of Association Laws Prohibiting and Punishing Membership Laws Requiring Disclosure of Membership NAACP v. State of Alabama, ex rel. Patterson Campaign Finance Disclosure Compelled Association Board of Regents of the University of Wisconsin System v. Southworth Laws Prohibiting Discrimination Roberts v. United States Jaycees Boy Scouts of America v. Dale WEEK 12 Group Freedom of the Press Introduction: Are there Special Rights for the Press? Freedom of the Press as a Shield to Protect the Press from the Government Taxes on the Press Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue Application of General Regulatory Laws Cohen v. Cowles Media Co. Keepi g eporters our es a d e rets Co fide tial Branzburg v. Hayes Laws Requiring That the Media Make Access Available Red Lion Broadcasting Co. v. Federal Communications Comm. Miami Herald v. Tornillo Freedom of the Press as a Sword: A First Amendment Right of Access to Government Places and Papers? Access to Judicial Proceedings Richmond Newspapers v. Virginia Prisons Houchins v. KQED WEEK 13 Group 10 CHAPTER 10 FIRST AMENDMENT: RELIGION, Introduction Constitutional Provisions Concerning Religion and the Tension between Them History in Interpreting the Religion Clauses What Is Religion? The Attempt to Define Religion under the Selective Service Act United States v. Seeger Requirement for Sincerely Held Beliefs 6

7 United States v. Ballard The Free Exercise Clause The Current Test Employment Division, Department of Human Resources of Oregon v. Smith The Law Before Employment Division v. Smith Sherbert v. Verner Cases Rejecting Exemptions Based on the Free Exercise Clause Cutter v. Wilkinson Is Denial of Funding for Religious Education a Violation of Free Exercise of Religion? Locke v. Davey The Establishment Clause Government Discrimination among Religions County of Allegheny v. ACLU The Lemon Test for the Establishment Clause Lemon v. Kurtzman WEEK 14 Group Religious Speech and the First Amendment Stude t Religious Groups Re eipt of Go er e t Fu ds Rosenberger v. Rector & Visitors of the University of Virginia Student-Delivered Prayers Santa Fe Independent School District v. Doe Religious Symbols on Government Property McCreary County v. American Civil Liberties Union of Kentucky Van Orden v. Perry Religion as a Part of Government Activities: Schools Release Time School Prayers and Bible Reading Engel v. Vitale Lee v. Weisman Religion as a Part of Government Activities: Legislative Chaplains When Can Government Give Aid to Religion? Aid to Parochial Elementary and Secondary Schools Mitchell v. Helms Zelman v. Simmons-Harris 7

8 Learning Outcomes By the end of this course, you should: 1. Be able to differentiate between content-based and content-neutral speech. 2. Articulate free speech methodology. 3. Ide tif a i fri ge e t of free spee h. 4. Identify types of unprotected and lesser protected speech. 5. Articulate the level(s) of scrutiny for certain speech. 6. Articulate the following: a. The Miller Test b. The Central Hudson Test. c. The Pickering Test d. The O Brie Test e. The Lemon Test These outcomes will be demonstrated by: class participations, group exercises, presentations, final examination. Texts: Erwin Chemerinsky, Constitutional Law (4th ed. Aspen 2013) ISBN: Erwin Chemerinsky, Constitutional Law: Principles and Policies (4th ed. Aspen 2006). ISBN: Grading: Final Exam= 100% Presentation will not be scored, but failure to participate in presentation will result in an F. Final grades are subject to the Law School's grade normalization policy FAMU College of Law Statement on Plagiarism FAMU College of Law does not tolerate plagiarism. Students found guilty of plagiarism will be prose uted to the full e te t of the laws outli ed i the FAMU College of Law tude ts Ha d ook. Please consult the Student Handbook for other conduct which is prohibited and punishable. FAMU College of Law Statement of ADA Procedures FAMU College of Law is committed to providing an educational environment that is accessible to all students. In accordance with this policy, students in need of accommodations due to a disability should contact the Philip Miller for verification and determination of reasonable accommodations as soon as possible after admission to the Law School, or at the beginning of each semester. SEE ALC STATEMENT: Law.doc. 8