Name: First Amendment: Cases, Controversies, and Contexts
ISBN: 0000000000

First Amendment: Cases, Controversies, and Contexts

Ruthann Robson

Law

First Amendment: Cases, Controversies, and Contexts

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Contents

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This Casebook is intended to be used in an upper-division course covering the First Amendment to the United States Constitution. Its 14 chapters are substantially the same length, with the exception of Chapter One, the introduction, and Chapters Eleven and Twelve which in combination are the usual length. It is intended for 13 or 14 week semester that meets once or twice per week. Each Chapter contains a “Chapter Outline” at the beginning for ease of reference.

The Casebook is organized with the Speech Clauses as Part One and the Religion Clauses as Part Two. Unlike many other courses, there is no accepted organizational scheme within these broad areas. As the Introduction notes, First Amendment doctrine, especially within freedom of speech, presents a varied and haphazard landscape.

The Casebook follows a scheme that has proven effective in Professor Robson’s years of teaching the course to hundreds of students. The selection of cases tends toward the most recent and these tend to be less heavily edited. These recent cases often contain extended discussions of earlier cases that are not included in the Casebook.

Language

English

ISBN

0000000000

Title Page

About the Author

Notices

About CALI eLangdell Press

Preface

Table of Contents

Table of Cases

Chapter One: INTRODUCTION TO THE FIRST AMENDMENT

I. Text

II. The Clauses

A. The Religion Clauses

B. The Free Speech Clause

C. The Press Clause

D. The Assembly Clause

E. The Petition Clause

F. Association: The “Missing” Clause

III. International Perspectives

IV. State Action and Incorporation Against the States

V. History: The Firstness of the First Amendment

VI. Theoretical Perspectives

VII. The Challenges of First Amendment Cases and Controversies

VIII. United States Supreme Court Terms: Recent Cases

2014-2015 Term

2013-2014 Term

Part I: The Speech Clauses

Chapter Two: PROTECTIONS FOR POLITICAL SPEECH

I. The Alien and Sedition Acts

The Alien Act: An Act Respecting Alien Enemies

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

Notes

II. Clear and Present Dangers

A. The Challenge of World War I

Schenck v. United States

Abrams v. United States

Note: Justice Oliver Wendell Holmes

Gitlow v. New York

Whitney v. California

Notes

B. Labor Unrest

Bridges v. California

C. Communism and the Smith Act

Dennis v. United States

Notes

III. “Offensive” Speech

Chaplinsky v. New Hampshire

Cohen v. California

Notes

IV. Distinguishing Protected Advocacy

Brandenburg v. Ohio

Hess v. Indiana

Notes

Note: The Heckler’s Veto

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

Holder v. Humanitarian Law Project

Notes

Chapter Three: OF CONDUCT, CONTENT, AND CATEGORIES

I. Defining Expression

United States v. O’Brien

Spence v. Washington

Texas v. Johnson

Notes

II. Hate Speech

R.A.V. v. St. Paul

Wisconsin v. Mitchell

Virginia v. Black

Notes

Note: “True Threats”

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

Schacht v. United States

United States v. Alvarez

Notes

Note: Developing a Structural Analysis of Free Speech Issues

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

I. Prior Restraint

Near v. Minnesota

New York Times Co. v. United States

Notes

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

A. The Press v. Criminal Defendants

Sheppard v. Maxwell

Nebraska Press Assn. v. Stuart

Notes

B. The Press as a Party in Civil Litigation

Seattle Times Co. v. Rhinehart

C. Access by the Press

Note: “Public Proceedings”

Houchins v. KQED, Inc.

Notes

D. (Un)lawful Information

Note: Bartnicki v. Vopper

E. Reporters’ “privilege”

Branzburg v. Hayes

Cohen v. Cowles Media Co.

Notes

III. Direct Regulations of the Press

The Florida Star v. B. J. F

Miami Herald Publishing Co. v. Tornillo

Notes

Note: Taxation of the Press

IV. Freedom of the Press and Tort Actions

A. Defamation

New York Times Co. v. Sullivan

Gertz v. Robert Welch, Inc.

Notes

B. Other Torts

Time, Inc. v. Hill

Hustler Magazine v. Falwell

Notes

Chapter Five: GOVERNMENT AS EMPLOYER AND EDUCATOR

I. The Politics of Public Employment

Civil Service Commission v. National Association of Letter Carriers

Branti v. Finkel

Notes

II. Protecting Public Employee Speech

A. Foundational Tests

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

Mt. Healthy City Board of Ed. v. Doyle

Notes

B. Applying and modifying the tests

Givhan v. Western Line Consol. School Dist.

Connick v. Myers

Rankin v. McPherson

San Diego v. Roe

Notes

C. Public Employee Speech in the Roberts Court

Garcetti v. Ceballos

Lane v. Franks

Notes

III. Student Speech

Tinker v. Des Moines Independent Community School District

Bethel School District No. 403 v. Fraser

Hazelwood School District v. Kuhlmeier

Morse v. Frederick

Notes

Note: Curriculum

Chapter Six: UNCONSTITUTIONAL CONDITIONS AND COMPELLED SPEECH

I. Unconstitutional Conditions and Speech

Rust v. Sullivan

Legal Services Corporation v. Velazquez

Notes

II. Compelled Speech

A. Foundational Cases of Compelled Speech

West Virginia Board of Education v. Barnette

Wooley v. Maynard

Notes

B. Fees and Dues

Keller v. State Bar of California

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

Johanns v. Livestock Marketing Ass’n

Harris v. Quinn

Notes

C. Compelled Speech and Association

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

Boy Scouts of America v. Dale

Notes

III. Combining Unconstitutional Conditions and Compelled Speech

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

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

Notes

Chapter Seven: FORUMS AND TIME, PLACE, MANNER RESTRICTIONS

I. Historical Perspectives on Public Assembly and Public Forums

Note: The Assembly Clause

Davis v. Commonwealth of Massachusetts

Hague v. Committee for Industrial Organization [CIO]

Notes

II. Public and Other Forums

Southeastern Promotions, Ltd. v. Conrad

Perry Education Assn. v. Perry Local Educators’ Assn.

Notes

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

Notes

Note: Trespassing in a Public Forum?

III. Time, Place, or Manner

Ward v. Rock Against Racism

McCullen v. Coakley

Notes

Note: Funeral Protests

IV. The Distinct Problems Posed by Signage Regulations

City Council v. Taxpayers for Vincent

Reed v. Town of Gilbert

Notes

V. The “Escape Clause” of Government Speech

Pleasant Grove City v. Summum

Walker v. Texas Division, Sons of Confederate Veterans

Notes

Chapter Eight: THE POLITICAL PROCESS

I. Anonymity and Political Life

NAACP. v. Alabama

McIntyre v. Ohio Elections Comm’n

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

Doe v. Reed

Notes

II. Campaign Finance

Note: Timeline of First Amendment Campaign Finance Cases

Note: Buckley v. Valeo

Citizens United v. Federal Election Commission

McCutcheon v. Federal Election Commission

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

III. Judicial Elections

Republican Party of Minnesota v. White

Williams-Yulee v. the Florida Bar

Notes

Chapter Nine: COMMERCIAL SPEECH

I. From Unprotected to Protected Speech

Valentine v. Chrestensen

Bigelow v. Commonwealth of Virginia

Virginia State Pharmacy Board v. Virginia Citizens Consumer Council

Notes

II. The Central Hudson Test & Its Applications

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

Bolger v. Youngs Drugs Products Corp.

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

Florida Bar v. Went For It, Inc.

Lorillard Tobacco Co. v. Reilly

Notes

III. The Ascendency of Commercial Speech?

Sorrell v. IMS Health Inc.

Notes

Chapter Ten: SEXUAL SPEECH

I. Defining Obscenity

Rosen v. United States

Notes

Roth v. United States

Jacobellis v. Ohio

Miller v. California

Note: Prurient Interest

II. Privacy and Pornography

Stanley v. Georgia

Paris Adult Theatre I v. Slaton

Note

III. Secondary Effects

Erie v. Pap’s A. M.

Notes

IV. Children, Regulated Media, and the Internet Age

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

Note: Fleeting Expletives and Fleeting Nudity on Broadcast Television

United States v. Williams

Note: Funding

V. The Limits of Obscenity and the Categorical Approach?

United States v. Stevens

Brown v. Entertainment Merchants Association

Note: Reconsidering the Categorical Approach

Part II: The Religion Clauses

Chapter Eleven: DEFINING RELIGION

United States v. Seeger

Welsh v. United States

Notes

Chapter Twelve: THE ESTABLISHMENT CLAUSE AND EDUCATION

I. Early History of the Establishment Clause

Everson v. Board of Education of Ewing Twp.

Note: Madison’s Memorial and Remonstrance

Note: The “Release Time” Cases

Engel v. Vitale

II. The Lemon Test and Its Discontents

Lemon v. Kurtzman

Notes

Lee v. Weisman

Santa Fe Independent School District v. Doe

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

III. Private Choice and Public Support of Religious Schools

Zelman v. Simmons-Harris

Notes

Chapter Thirteen: THE ESTABLISHMENT CLAUSE IN THE PUBLIC SQUARE

I. Historical Practices

McGowan v. Maryland

Marsh v. Chambers

Town of Greece, New York v. Galloway

Notes

II. Displays of Religious Symbols

Allegheny County v. Greater Pittsburgh ACLU

Note

McCreary County, Kentucky v. ACLU of Kentucky

Van Orden v. Perry

Notes

Note: Salazar v. Buono

III. The Problem of Establishment Clause Standing

Arizona Christian School Tuition Organization v. Winn

Notes

Chapter Fourteen: FREEDOM OF RELIGIOUS EXERCISE

I. Belief v. Practice

Reynolds v. United States

Note: The Polygamy Voting Cases

Notes

Note: Fraud or Heresy?

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

Sherbert v. Verner

Lyng v. Northwest Indian Cemetery Protective Association

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

III. Legislating Free Exercise

A. RFRA

Text of Religious Freedom Restoration Act (RFRA)

Note: The Constitutionality of RFRA

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal

Burwell v. Hobby Lobby Stores, Inc.

B. RLUIPA

Text of RLUIPA

Note: The Relevance of RLUIPA for RFRA

Note: Prison Litigation Under RLUIPA

IV. Targeting Religion and Ministerial Employees

Church of the Lukumi Babalu Aye v. City of Hialeah

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

Notes

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