First Amendment: Cases, Controversies, and Contexts
Free

First Amendment: Cases, Controversies, and Contexts

By Ruthann Robson
Free
Book Description

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.

Table of Contents
  • 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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