NON-TRADITIONAL PUBLIC FORUM US POSTAL SERVICE v GREENBURGH ...

NON-TRADITIONAL PUBLIC FORUM US POSTAL SERVICE v GREENBURGH ...

NON-TRADITIONAL PUBLIC FORUM US POSTAL SERVICE v GREENBURGH CIVIC ASSOCIATION (1981 1200, 1259) 1200, 1259 NO ACCESS JUST BECAUSE OWNED BY GOVERNMENT. NO HINT OF CONTENT DISCRIMINATION. NOT TPM. GOVERNMENT MAY PRESERVE PROPERTY UNDER ITS CONTROL FOR USE TO WHICH IT IS DEDICATED. TEST IS CONTENT NEUTRAL AND LEGITIMATE STATE PURPOSE. EARLIER CASES - MILITARY BASES, BUSES, JAILS,

SCHOOLS AND LIBRARIES = NON TRADITIONAL PUBLIC FORUMS PEA v PLEA (1983 1201, 1260) 1. 1201, 1260 TPF DEFINITION CANT PROHIBIT ALL COMMUNICATIVE ACTIVITY. COMPELLING IF CONTENT BASED. TPM = INTERMEDIATE. 2. 1201 1202, 1261 NON-PUBLIC FORUM. REASONABLE AND NOT SUPRESSING PARTICULAR VIEW. 3. 1201, 1260-61 QUASI OR LIMITED PUBLIC FORUM. NONPUBLIC FORUM OPENED FOR

EXPRESSIVE ACTIVITY BY THE STATE. CAN BECOME LIKE A TPF IF SO OPENED. 1201, 1261 FN 1 MAY BE OPEN FOR CERTAIN GROUPS OR SUBJECTS. 1202, 1261 ENTITIES OF SIMILAR CHARACTER. 4. 1202, 1261 VIEWPOINT DISTINCTIONS NEVER ALLOWED. SPEAKER ID AND SUBJECT MATTER MAY BE ALLOWED IN NON-PUBLIC AND LIMITED PUBLIC. 5. HERE STUDENT INTEREST GROUPS AND OFFICIAL BUSINESS. P NEITHER. NOT ON VIEWPOINT, BUT STATUS. REASONABLE IS STANDARD IN NON-PUBLIC BRENNAN + 3 DISSENT

VIEWPOINT HERE NO OTHER GROUP DENIED ACCESS TO MAILBOX SYSTEM. WHEN IS SPEAKER ID OR SUBJECT MATTER DISTINCTIONS ALLOWED (NEVER VIEWPOINT) 1. NEVER IN TPF 2. ALLOWED IN NON-PF (REASONABLE) 3. LIMITED OR DESIGNATED HOW OPENED TPF TPM BUT NEVER CONTENT BASED (NO SUBJECT MATTER, SPEAKER ID OR VIEWPOINT) CORNELIUS v NAACP (1985 1203, 1263) 4 3 (NO LEGAL DEFENSE OR POLITICAL ADVOCACY)

1. NOT TPF OR PF BY DESIGNATION. NO LIMITED PF WHERE EVIDENCE TO CONTRARY OR INCONSISTENT PROPERTY USE. THIS WAS CREATED TO LESSEN EXPRESSIVE ACTIVITY. 2. 1204, 1263-64 NON PF REASONABLENESS AND NO VIEWPOINT. OK TO EXCLUDE IF NOT TOPIC WITHIN PURPOSES OR MEMBER OF CLASS FOR WHOSE SPECIAL BENEFIT FORUM WAS CREATED. DISSENT SHOULD BE LIMITED PF. VIEWPOINT. 1) TPF (STREETS, SIDEWALKS, PARKS) !

3A) LIMITED PF - OPENED GENERALLY (SEE ABOVE) ! INTENT EVIDENCE (TRIAL LAWYERS) - CONTRACT ! 3B)LIMITED PF OPEN SPECIFICALLY (SUBJECT MATTER OR SPEAKER ID) ! 2) NON PF REASONABLE AND NO VIEWPOINT US v KOKINDA (1990 1205, 1264) (NO SOLICITING ON PO SIDEWALK)

4 = NON PF KENNEDY = TPF BUT TPM SATISFIED 4 = TPF (D) NON PF 1. NOT TPF SIDEWALK. OPEN TO PUBLIC BUT ONLY FOR POST OFFICE BUSINESS. NOT PUBLIC THROUGH FARE. NOT EXPRESSLY DEDICATED TO EXPRESSIVE ACTIVITY. 2. 1205, 1264-65 - NON PF = REASONABLE AND NO VIEWPOINT DISCRIMINATION. ALLOWED SOME LEAFLET, SPEECH AND PICKET BUT NOT DEDICATED TO SPEECH. THIS INTERFERES WITH BUSINESS OF

THE POST OFFICE. KENNEDY EXPRESSIVE ACTIVITY ALLOWED LIKE TPF. BUT 1206, 1265 - TPM SATISFIED IN PERSON SOLICITING IS DIFFERENT FROM LITERATURE OR FUTURE $$$ BRENNAN + 3 (D) 1. DISTINCTION BETWEEN SIDEWALKS SILLY. 2. COLLAPSED LIMITED PF FROM ANALYSIS. FAILS BOTH COMPELLING AND TPM (SUBSTANTIALLY RELATED -COULD BE LESS RESTICTIVE THAN TOTAL BAN TO ACCOMMODATE PO LEGITIMATE INTERESTS)

CRITICAL ISSUE FOR LAWYERS - HOW DO YOU CHARACTERIZE SOLICITATION ? MORE LIKE SPEECH OR MORE LIKE SALE OF GOODS ? WHAT IF OK GIRL SCOUTS SELL ? EQ PRO INFLUENCE HARE KRISHNA v LEE (1992 1207, 1266) AIRPORT 5 4 BAN ON DISTRIBUTION OF LITERATURE INVALID (OCONNOR FINDS UNREASONABLE) 6 3 BAN ON SOLICITATION AND RECEIPT OF $$$ VALID BETWEEN KOKINDA AND LEE, BRENNAN AND MARSHALL RETIRE AND ARE REPLACED BY SOUTER

AND THOMAS (THOMAS CHANGES VOTES). 5 NON PF BUT 1 SAYS LITERATURE BAN IS UNREASONABLE 4 - TPF BUT 1 SAYS SOLICITATION SATISFIED TPM 1. REHNQUIST + 3 - NON PF. NOT HISTORICALLY OR INTENTIONALLY OPENED. REASONABLENESS TEST CONGESTION, TRAVELLER CONVENIENCE AND FRAUD PREVENTION SATISFY. 2. OCONNOR - NON PF BUT BAN ON LITERATURE IS UNREASONABLE COMPATIBLE. 3. KENNEDY - TPF BUT STILL TPM. BAN ON

LITERATURE FAILS BUT BAN ON SOLICITATION VALID. REALLY JUST BAN ON IN PERSON RECEIPT OF MONEY. CAN STILL SOLICIT FOR LATER PAYMENT (ENVELOPES) 4. OTHER 3 - TPF AND BOTH FAIL TPM (NOT SUBSTANTIALLY RELATED) IS THERE A RIGHT TO BEG ON THE SIDEWALK ( 1212, 1274) ? IF YOU SAY NO SOLICITATION, IS THAT A REGULATION (TPM- INTERMEDIATE) OR A BAN (COMPELLING) ? SIDEWALK CLEARLY TRADITIONAL PUBLIC FORUM. ISSUE HOW DO NONPUBLIC FORUM JUDGES IN

ISKON CASES FEEL ABOUT TPM. ARKANSAS v FORBES (1998 1214, 1275) PUBLIC STATION/PUBLIC DEBATE BUT STILL NON PF. NO OPEN MIKE NOT GENERALLY AVAILABLE FOR A CLASS OF PEOPLE. FIRST AMENDMENT RIGHTS OF EDITORIAL STAFF. US v AMERICAN LIBRARIES ASSOCIATION (2003 1215, 1276) FEDS REQUIRE BLOCKING SOFTWARE ON COMPUTERS NO OBSCENITY, CHILD PORNOGRAPHY OR INDECENT MATERIAL

HARMFUL TO CHILDREN (ADULTS CANT SEE) 4 = NON PF 2 = INTERMEDIATE SATISFIED 3 = CONTENT BASED, COMPELLING 1. REHNQUIST + 3 NON PF. DIDNT BUY COMPUTERS TO CREATE PF NOT ENCOURAGING DIVERSITY OF VIEWS. SUITABLE AND WORTHWHILE. ALREADY EXCLUDE THESE MATERIALS FROM THE PRINT COLLECTION. 2. KENNEDY (BREYER) LIKE SELECTION = INTERMEDIATE SCRUTINY. SMALL BURDEN ON FA

RIGHTS ASK TO TURN FILTER OFF. DISCRETION IN LIBRARY ON SELECTIVITY. 3. STEVENS (SOUTER AND GINSBURG) - CONTENT BASED RESTRICTION ON MATERIALS FOR ADULTS. NOT LIKE ACQUISITION ALREADY THERE. NOT MONEY OR SPACE. COMPELLING TEST SHOULDNT SAY OK EXCEPT DRAFT IN POSITIVE FOR DESIGNATED OR LIMITED FORUM. SCHOOL OF LAW BUILDING: LAW ONLY NON PF UB ONLY -- LIMITED PF OPENED SPECIFICALLY

SPEAKER ID PUBLIC - LIMITED PF OPENED GENERALLY NO POSTED LEAFLETS OR FLYERS ? WHAT FA RIGHTS COME IN WITH YOU ? WALKER v TEXAS SONS OF CONFEDERATE VETS (S82, 1271) TEXAS REJECTS SPECIALTY PLATE WITH CONFEDERATE FLAG. VALID 5-4. BREYER 1. GOVERNMENT SPEECH MESSAGE FROM STATES. P INTENDS TO CONVEY TO PUBLIC GOVERNMENT

SUPPORT FOR ITS MESSAGE. 2. REJECTED AT LEAST 12 OTHER DESIGNS. DONT NEED TO SUPPORT ALL OPPOSING POSITIONS. 3. NOT NONPUBLIC FORUM. GOVERNMENT SPEAKING ALITO (ROBERTS, SCALIA AND KENNEDY) D 1. LIMITED PUBLIC FORUM 350 SPECIALTY PLATES. NO ONE THINKS STATE ENDORSES ALL. 2. BLATANT VIEWPOINT DISCRIMINATION IN LIMITED PUBLIC FORUM. INVALID. ALLOW CHOOSE LIFE. 3. SUMMUM NOT PRECEDENT GOVERNMENT AS LAND OWNER SPATIAL LIMITATIONS.

FOCUS ON 12 REJECTED OR 350 PERMITTED ? IF DISSENT RIGHT, DOES TEXAS HAVE TO ALLOW ALL ? DOES ANYONE THINK GOVERNMENT SUPPORTS POSITION ? HANDOUT FA5 GOVERNMENT REBELS LEGAL ANALYSIS NOT FORUM, GOVT

SPEAKING NON PUBLIC FORUM NEVER VIEWPOINT VIEWPOINT NO FORUM IF NOT VIEWPOINT, LIMITED OPEN GENERALLY FACT 12 REJECTED 350 ALLOWED

WEAKNESS GOVT ENDORSED ? TAKE ALL ? RELIGIOUS SPEECH ON PUBLIC PROPERTY WIDMAR v VINCENT (1981 1222, 1284) UMKC ALLOWED FACILITIES FOR USE OF STUDENT GROUPS BUT DENIED IF RELIGIOUS WORSHIP OR DISCUSSION. 1. UNIVERSITY CREATED A FORUM GENERALLY OPEN FOR STUDENT GROUPS. MUST JUSTIFY EXCLUSION

EVEN IF DIDNT HAVE TO OPEN IN THE FIRST PLACE. 2. 1223, 1284 - CONTENT BASED COMPELLING. CAN BE TPM BUT ONCE GENERALLY OPEN NO CONTENT BASE STEVENS (C IN JUDGEMENT) NOT TPF DECISIONS BY EDUCATORS NOT JUDGES NOT COMPELLING TEST. BUT STILL CANT BE ON VIEWPOINT WHITE (D) ESTABLISHMENT CLAUSE CAN A GOOD LAWYER MAKE ANYTHING

VIEWPOINT ? ISNT THIS SUBJECT MATTER ? IS THIS ON DRAFTING ? LAMBS CHAPEL v CENTER MORICHES (1993 1224, 1286) AFTER HOURS USE OF SCHOOL FACILITIES FOR SOCIAL, CIVIC,RECREATIONAL, AND POLITICAL BUT NOT RELIGIOUS PURPOSES OR GROUPS. NEITHER TPF NOR DESIGNATED BUT NON-RELIGIOUS PERSPECTIVE OR NON-RELIGIOUS GROUP ALLOWED. THIS IS VIEWPOINT NOT SUBJECT MATTER. NOT ESTABLISHMENT CLAUSE VIOLATION.

ROSENBERGER v UNIV OF VIRGINIA (1995 1267, 1330) INVALID WHEN FUNDING ALL STUDENT NEWSPAPERS EXCEPT RELIGIOUS. VIEWPOINT. GOOD NEWS CHURCH v MILFORD CENTRAL SCHOOL (2004 1225, 1286) SCHOOL FACILITIES OPEN AFTER HOURS ALLOWED RELIGIOUS POINT OF VIEW BUT BANNED RELIGIOUS INSTRUCTION. VIEWPOINT - MORALS AND CHARACTER OK BUT RELIGIOUS PERSPECTIVE NOT. NOT ESTABLISHMENT CLAUSE VIOLATION.

DRAFTING SHOULDNT BE EVERYONE EXCEPT .. CAPITOL SQUARE REVIEW BOARD v PINETTE (1995 1226, 1288)(MUST ALLOW KKK LATIN CROSS) TPF BY STATUTE. BIAS ON BASIS OF RELIGION NOT ALLOWED. CONTENT BASED NOT ALLOWED IN TPF. PLEASANT GROVE CITY v SUMMUM (2009 1226, 1288) (7 APHORISMS) IS PINETTE CONTROLLING PRECEDENT ? (GOOD LAW STUDENTS SEE IT AFTER THEY READ OPINION, GOOD LAWYERS CREATE IT) IS THIS VIEWPOINT ?

2. PARK IS TPF BUT PERMANENT MONUMENT NOT SUBJECT TO PF ANALYSIS. NOT GOVERNMENT AS REGULATOR. GOVERNMENT SPEAKING RATHER THAN PROVIDING A FORUM FOR PRIVATE SPEAKERS. 3. PINETTE WAS TEMPORARY AND ALLOWED OTHERS. DIFFERENCE HERE ON PERMANENT. 4. EXISTING = TIED TO TOWNS PAST OR $$ PROVIDED BY GROUPS LONG ASSOCIATED WITH TOWN

PRIVATE PROPERTY RIGHTS REALLY ISSUE OF STATE ACTION SOME MALLS PUBLICLY OWNED, SOME PRIVATE AMALGAMATED FOODS v LOGAN VALLEY (1968 1221, 1283) MALL LIKE COMPANY TOWN IN MARSH v ALABAMA. TPF. PEACEFUL UNION PICKETING CAN NOT BE SUPPRESSED. HUDGENS v NLRB (1976 1222, 1283) LOGAN VALLEY OVERRULED. MODERN PRIVATE PROPERTY NO RIGHT TO BE THERE NO FA ACCESS

UNLESS PRIVATE UNDER STATE ACTION DOCTRINE. GOVERNMENT AS EDUCATOR TINKER v DES MOINES (1969 1229, 1291) 1. CLOSE TO PURE SPEECH. NOT DISRUPTIVE. SILENT, PASSIVE. FEAR OF DISTURBANCE NOT ENOUGH. 2. 1229 1230, 1292 - STD CANT AVOID UNPLEASANT VIEWS. NO INTERFERENCE WITH DISCIPLINE 3. ALLOWED OTHER SYMBOLS SINGLED OUT THIS ONE. BLACK (D)

QUESTION IS WHO CONTROLS THE SCHOOLS ? FA NOT RIGHT TO TALK WHENEVER YOU PLEASE WHAT DOES IT MEAN TO HAVE SUSPENSION REVERSED YEARS LATER ? FINALLY GAVE RIGHTS TO KIDS or BEGINNING OF INMATES RUNNING THE ASYLUM ? BOARD OF EDUCATION v PICO (1982 1231, 1293) SUMMARY JUDGMENT FOR SCHOOL BOARD WHAT IS THE HOLDING OF THE CASE ? RESULT ? BRENNAN + 2 1. OPTIONAL IN LIBRARY NOT CURRICULUM OR

COMPULSORY CLASSROOM. NOT ACQUISITION, BUT REMOVAL. 2. TENSIONS SCHOOL BOARDS INCULCATING VALUES v APPLICABLE FA CONSIDERATIONS (STUDENTS, PARENTS, TEACHERS) 3. FA MORE IMPLICATED IN REMOVAL. STUDENTS RIGHT TO RECEIVE INFORMATION. TRANSMIT VALUES IN CURRICULUM 4. BOARD HAS DISCRETION IN DETERMING COMPOSITION OF THE LIBRARY. BUT NO IN NARROWLY PARTISAN OR POLITICAL MANNER.

WHITE BOARD COULDNT SUPPRESS BLACK AUTHORS. DEPENDS ON BOARDS MOTIVATION CANT INTEND TO DENY ACCESS TO IDEAS. 5. ALL CONCEDE OK IF MOTIVATION WAS PERVASIVELY VULGAR OR BASED ON EDUCATIONAL SUITABILITY 4. 1232, 1294-95 HOLDING. GENUINE ISSUE OF MATERIAL FACT ON BOARDS INTENTIONS SUMMARY JUDGMENT INAPPROPRIATE. BLACKMUN (C) 1233, 1295 COMPETING PRINCIPLES. RIGHT TO RECEIVE CONCEPT CRAZY BUT CANT REMOVE TO RESTRICT ACCESS TO IDEAS OR SOCIAL PERSPECITVES.

WHITE (C) NO NEED TO DO FA ANALYSIS UNRESOLVED ISSUE OF FACT AS TO BOARDS INTENT BURGER + 3 TO INCULCATE VALUES, BOARD MUST MAKE DECISIONS ON CONTENT. PARENTS, TEACHERS AND BOARD ARE PRIMARY = IF DONT LIKE WHAT BOARD DOES, VOTE THEM OUT. GOVERNMENT AS EDUCATOR LESS CONSTITUTIONAL CONCERNS THAN GOVERNMENT AS REGULATOR. BUYING v REMOVING; CURRICULUM v LIBRARY MAKE NO SENSE. INTENT OF BOARD IRRELEVANT.

NO RIGHT TO RECEIVE INFORMATION IN JHS AND HS BETHEL SCHOOL DISTRICT v FRASER (1986 1235, 1297) SPEECH AT 1235, 1297 FN 2 1. NO VIEWPOINT HERE. VALID FOR SCHOOL TO SAY VULGAR SPEECH AND LEWD CONDUCT IS INCONSISTENT WITH FUNDAMENTAL VALUES OF PUBLIC EDUCATION. DISSENT NO ACTUAL DISRUPTION NO NOTICE TO FRAZER. FIGHT TO USSC ? NOT MY DAD.

HAZELWOOD SCHOOL DISTRICT v KUHLMEIER (1988 1236, 1298) 1. NOT TPF OR DESIGNATED FORUM. TEST THEREFORE LEGITMATE AND RATIONAL. 2. IMPRIMATUR OF SCHOOL AND PART OF TEACHER/LEARNING EXPERIENCE. SOME MATERIAL NOT SUITABLE TO THIS AGE LEVEL. 3. STUDENT AND PARENT ANONYMITY NOT VALUED IN EITHER STORY. BRENNAN (D) NO CENSORSHIP IF NO DISRUPTION

TINKER SCHOOL SILENCING STUDENTS POLITICAL EXPRESSION THAT HAPPENED ON SCHOOL GROUNDS. NEWSPAPERS AND PLAYS - $$ + FACULTY ADVISORS = LIKE PART OF CURRICULUM. WHAT ABOUT LAW REVIEW OR FORUM ? DO YOU REPRESENT FRASER OR KUHLMEIER ? MORSE v FREDERICK (2007 1238, 1300) WHAT IS THE MOST CRITICAL TRIAL TACTIC DECISION THE LAWYERS FACE BEFORE TRIAL ? WHAT IS MEANING OF SIGN BONG HITS 4 JESUS ?

POLITICAL, RELIGIOUS, PRO-DRUG -- VIEWPOINT NO MESSAGE NOT ADVOCACY, NOT ILLEGAL, NO SCHOOL RULES VIOLATED. 1. DETERRING DRUG USE BY CHILDREN IS AN IMPORTANT AND POSSIBLY COMPELLING PURPOSE 2. NOT SIMPLY OFFENSIVE HERE REAL DANGER PROMOTING DRUG USE. ALITO (KENNEDY) (C) CANT RESTRICT STUDENTS POLITICAL, RELIGIOUS OR SOCIAL SPEECH. THIS IS DRUG USE. THOMAS (C)

STUDENTS HAVE NO FA RIGHTS. STEVENS (SOUTER AND GINSBURG) (D) 1. FA PROTECTS IF NO VIOLATION OF RULES AND NOT ILLEGAL OR HARMFUL. VIEWPOINT. NONSENSE MESSAGE. NO OBSERVER CHANGING HIS BEHAVIOR NOT VULGAR OR SCHOOL ENDORSED. DISRUPTION ? CAN SCHOOL STOP DISCUSSION LEGALIZING DRUGS ? CRIME IF ADULT HELD UP SIGN ON SIDEWALK ? MODERN RULES VALID INVALID

1. VULGAR, DRUGS 1. VIEWPOINT 2. EDUCATIONAL 2. SUPPRESS SUITABILITY, RESOURSES IDEAS 3. DISRUPTION 3. RESTRICT STUDENT 4. ANONIMITY POLITICAL, RELIGIOUS SCHOOL HAS MORE RIGHTS ON CURRICULUM AND

LIBRARY ACQUISITION THAN LIBRARY REMOVAL FA INTERESTS = STUDENTS, PARENTS, TEACHERS AND SCHOOL (ADMINISTRATION AND BOARD). GOVERNMENT AS EMPLOYER (PUBLIC EMPLOYEE SPEECH ) PRIVATE EMPLOYER USUALLY NO RIGHTS UNLESS GIVEN BY CONTRACT OR STATUTE. BALANCE EMPLOYEES FA INTEREST AS CITIZEN TO COMMENT v STATE AS EMPLOYER NEEDING EFFICIENCY USUAL FACT PATTERN SOMEONE FIRED FOR SPEAKING

IN SOME FORM. NOT ISSUE RECOGNITION PROBLEM. FACTORS: 1. PUBLIC CONCERN (POLITICAL, SOCIAL) v INTERNAL OFFICE ISSUE 2. WHAT IS THE SCOPE OF OFFICIAL DUTIES (WITHIN OFFICIAL DUTIES = NOT PROTECTED) ? 3. WHERE DOES SPEECH OCCUR IN OFFICE OR OUT ? (IN OFFICE LESS PROTECTED) 4. DOES THE SPEECH IMPEDE JOB PERFORMANCE ?

PROTECTED 1. 2. 3. 4. SCHOOL FUNDING (PICKERING) ANTI-PRESIDENT (RONKIN) FEDERAL HONORARIUM (NATAL TREASURY) GRAND JURY TESTIMONY (LANE) NON-PROTECTED

1. 2. 3. 4. ATTORNEY TRANSFER POLICY (CONNICK) NURSE TRAINING (WATERS) COP IN PORNO FILM IN UNIFORM (SAN DIEGO) AFFIDAVIT MISREPRESENTATIONS (GARCETTI) PICKERING v BOARD OF EDUCATION (1968 1242, 1305)

1. CANT BE FIRED FOR COMMENTS ON MATTERS OF PUBLIC INTEREST. BALANCE IN TEACHERS FAVOR HERE PUBLIC DEBATE WITH NO IMPACT ON JOB PERFORMANCE. CONNICK v MYERS (1983 1244, 1306) IF NOT MATTER OF PUBLIC CONCERN (POLITICAL SOCIAL OR OTHER CONCERNS TO COMMUNITY), NO BALANCING. HERE INTERNAL OFFICE POLICY INSUBORDINATION AND BREAKDOWN OF MORALE. FORCED TO SUPPORT CAMPAIGN IS PUBLIC ISSUE. RANKIN v MCPHERSON (1987 1247, 1310)

CANT FIRE FOR ANTI-REAGAN POSITION. PUBLIC ISSUE AND NOT WIDELY DISSEMINATED. WATERS v CHURCHILL (1994 1248, 1310) SUPERVISOR OVERHEARD NURSE COMPLAINING ABOUT TRAINING. EMPLOYER REASONABLY BELIEVED PRIVATE CONCERN SO FIRING VALID. SD v ROE ( 2004 1251,1313) FIRING UPHELD. COP AS COP IN UNIFORM IN PORN VIDEO. GARCETTI v CEBALLOS (2005 1251, 1314) PUBLIC EMPLOYEES MAKING STATEMENTS PURSUANT TO OFFICIAL DUTIES ARE NOT CONSTITUTIONALLY

INSULATED FROM EMPLOYER DISCIPLINE. SOUTER + 2 (D) LAWYERS OBLIGATION TO SPEAK SHOULD BE MORE PROTECTED. STATUTES PROTECTING WHISTLE BLOWERS NOT ENOUGH. BREYER (D) PROFESSIONAL, ETHICALLY BOUND TENNESSEE AA v BRENTWOOD ACAD (2007 1253, 1316) (PRIOR AA = STATE ACTOR) RESTRICTIONS ON RECRUITING JHS VALID. LANE v FRANKS (2014 S 84, 1315) LANE FIRES NO SHOW EMPLOYEE AND LATER

TESTIFIES ON CRIMINAL GRAND JURY. LANE FIRED FOR TESTIMONY. 1. SWORN TESTIMONY IN JUDICIAL PROCEEDING IS QUINTESSENTIAL SPEECH AS CITIZEN. NOT MADE PURELY IN CAPCITY OF EMPLOYEE. 2. NOT OUTSIDE FA JUST BECAUSE LEARNED OF IT IN COURSE OF PUBLIC EMPLOYMENT. GARCETTI WITHIN SCOPE OF EMPLOYEES DUTIES. GOVERNMENT AS PATRON SUBSIDIZED SPEECH PENALTY (0LD = UNCON CONDITION) INVALID 1. LOYALTY OATH FOR TAX BENEFIT

2. PUBLIC TV CANT EDITORIALIZE 3. ROSENBERGER PRINTING 4. RESTRICTIONS ON LEGAL AID LAWYERS 5. REQUIRING ANTI-PROSTITUTION FOR AIDS NON-SUBSIDATION VALID 1. NO TAX DEDUCTION FOR LOBBYING 2. RUST - NO FUNDING FOR ABORTION ADVICE 3. RESTRICTION ON NEA GRANTS 4. LIBRARY BLOCKING SOFTWARE 1. GOVERNMENT SPEAKING A. DIRECTLY OR

B. HIRING PRIVATE TO SPEAK FOR IT (PLEASANT GROVE v SUMMUM) NONSUBSIDZATION 2. GOVERNMENT CREATING FORUM FOR PRIVATE INDIVIDUALS WITH DIVERSE VIEWS PENALTY IF VIEWPOINT MOST TIMES SPEISER v RANDALL (1958 1261, 1324) PROPERTY TAX WAIVED IF VETS NO OVERTHROW GOVERNMENT. 1. GOVERNMENT BENEFITS CANT BE CONDITIONED OR

RELINQUISHMENT OF FA RIGHTS. THIS IS PENALIZING SPEECH. 2. TENSION BETWEEN GOVERNMENT DIDNT HAVE TO PROVIDE v PENALTY ON CONSTITUTIONAL RIGHTS. REGAN v TAXATION WITHOUT REPRESENTATION (1983 1262, 1325) NO DEDUCTION FOR CONTRIBUTIONS TO LOBBYIST 1. TAX DEDUCTION IS REAL FINANCIAL BENEFIT 2. CANT DENY BENEFIT BECAUSE RECIPIENT IS EXERCISING CONSTITUTIONAL RIGHT. HERE JUST REFUSING TO SUBSIDIZE. 3. NOT VIEWPOINT. IF CONTENT AT ALL, SUBJECT

MATTER AND THAT IS OK. FCC v LEAGUE OF WOMENS VOTERS (1984 1264, 1327) 1. PENALTY, NOT MERE NONSUBSIDIZATION. 2. IF PBS GETS 1% FROM GOVERNMENT, CANT EDITORIALIZE. CANT USE PRIVATE FUNDS EITHER. IMPERMISSIBLE CONTENT BASED REGULATION. REHNQUIST + 3 (D) PERMISSIBLE NONSUBSIDY. DONT WANT SPECIAL INTERESTS OR GOVERNMENT TO DOMINATE. RUST v SULLIVAN (1991 1265, 1328) NO ABORTION

ADVICE 1. CAN ENCOURAGE CERTAIN ACTIVITIES WITHOUT FUNDING ALTERNATIVE. CAN STOP GRANTEE FROM WORKING OUTSIDE SCOPE OF PROJECT AND LIMITS OF PROGRAM. 2. NOT FORBIDEN FROM ABORTION JUST KEEP SEPARATE AND DISTINCT. PARTICULAR PROJECT BLACKMUN + 2 FIRST CASE ALLOWING VIEWPOINT DISCRIMINATION. ALL FAMILY PLANNING ALTERNATIVES EXCEPT ABORTION.

ROSENBERGER v UNIVERSITY OF VIRGINIA (1995 1267, 1330) NO FUNDING RELIGIOUS PAPERS 1. THIS IS VIEWPOINT DISCRIMINATION DIRECTED AT SPEECH WITHIN THE FORUMS LIMITATIONS. DOESNT BAN RELIGIOUS AS A SUBJECT MATTER BUT RELIGIOUS EDITORIAL VIEWPOINTS. 2. 1268, 1331 IN RUST, PUBLIC FUNDS TO PRIVATE ENTITIES TO CONVEY A GOVERNMENTAL MESSAGE. HERE UNIVERSITY NOT SPEAKING BUT PROVIDING FUNDS FOR DIVERSITY OF VIEWS FROM PRIVATE SPEAKERS.

SOUTER + 3 (D) SUBJECT MATTER, NOT VIEWPOINT. ALL RELIGIOUS GROUPS BANNED. MAJORITY ASSUMING RELIGIOUS AND ANTI-RELIGIOUS ALWAYS PROVIDE AN OPPOSING VIEWPOINT ON A SECULAR TOPIC. NEA v FINLEY (1998 1269, 1332) 1. 1269, 1332 STATUTE. DECENCY AND RESPECT 2. JUST HORTATORY NO FACIAL INVALIDITY 3. SINCE COMPETITIVE PROCESS, VALID. NOT PUBLIC FORUM.

SCALIA AND THOMAS MANDATORY. NOT SUPPRESSION JUST CHOOSING NOT TO FUND. CAN STILL CREATE THE ART. 1272, 1335 FN - ART DESCRIBED. VIEWPOINT BUT VALID. SOUTER (D) CLEARLY VIEWPOINT. DENY TO COMMUNIST. LEGAL SERVICES CORP v VELAZQUEZ (2001 1273, 1337) 1. VIEWPOINT ALLOWED WHEN GOVERNMENT CONVEYING MESSAGE OR USING PRIVATE SPEAKERS TO CONVEY ITS MESSAGE (RUST). LSC INTENDED TO

FACILITATE PRIVATE SPEECH NOT PROMOTE GOVERNMENT MESSAGE (ROSENBERGER). 2. CANT IMPINGE ON ATTORNEY REPRESENTATION. NO ALTERNATIVE CHANNELS SCALIA + 3 FEDERAL SPENDING PROGRAM NO PF. US v AMERICAN LIBRARY ASSOCIATION (2003 1275, 1338) 1. 6 3 UPHELD CIPA REQUIRED BLOCKING SOFTWARE. 2. NON PF. FUNDING CAN DEFINE LIMITS AND ENSURE $ $ PROPERLY SPENT. LIBRARIES REGULARLY EXCLUDE

PORN FROM PRINT COLLECTION. 3. DISSENT NOT GOVERNMENT SPEECH - PENALTY AID v ALLIANCE FOR OPEN SOCIETY (2013 S 85, 1340) STATUTE TO HELP AIDS VICTIMS ABSTINENCE, CONDOMS, ETC. FOR NGO TO GET FUNDING, MUST NOT ADVOCATE FOR LEGALIZATION OF PROSTITUTION/SEX TRAFFICING AND EXPLICITLY OPPOSE. INVALID 1. CANT TELL PEOPLE WHAT TO SAY. CANT CONDITION $$ ON IT EITHER. COMPELLING RECIPIENT TO ADOPT POSITION AS CONDITION. 2. ONGOING CAN TERMINATE AFTER SELECTION.

3. NOT ONLY SELECTING NGOS WHO AGREE WITH GOVERNMENTS POSITION. SCALIA (+ 1) D 1. MEANS OF SELECTING SUITABLE RECIPIENTS TO CONVEY GOVERNMENT MESSAGE. NGO CAN HAVE OTHER POSITION IN NON FUNDED WORK. 2. SPEECH RESTRICTION RELEVANT TO PURPOSE OF THE PROGRAM. HARMS PROGRAM. RESTRICTION DOESNT VIOLATE OTHER SECTIONS OF CONSTITUTION. 3. GOVERNMENT NOT COMPELLING JUST DONT

TAKE $$$. FA6 HANDOUT PROBLEMS OF MODERN MEDIA: EACH MEDIUM UNIQUE - GOVERNMENT AS REGULATOR II PRESS (PRINT MEDIA) PRIOR RESTRAINTS DISFAVORED, BUT SOME ALLOWED AGAINST NON- MEDIA -- PERMITS (TPM) AND INJUNCTIONS (1306-1307, 1375-76 WALKER APPEAL;CARROLL NO EX PARTE). NOW MEDIA NEAR v MINNESOTA (1931 1304, 1373) 1304 - NO PRIOR RESTRAINT FOUNDATIONAL VALUE

FROM COMMON LAW FREE SPEECH VALUES. 1305, 1373 NATIONAL SECURITY AND OBSCENITY EXCEPTIONS CENSORSHIP ESPECIALLY WHEN INVOLVING PUBLIC OFFICIALS PUBLIC DISCUSSION. NEAR + SULLIVAN = PROTECTION OF PRESS PENTAGON PAPERS (1971 1308, 1376) GOVERNMENT ARGUES THAT COURTS SHOULD DEFER TO ASSERTION OF NATIONAL SECURITY BY PRESIDENT. INJUNCTION INVALID 6 3 PER CURIAM HEAVY BURDEN NOT MET.

BLACK AND DOUGLAS ABSOLUTE PROTECTION - PRIOR RESTRAINT, MEDIA STEWART 1310, 1379 - NOT ENOUGH EVIDENCE ON DIRECT, IMMEDIATE AND IRREPARABLE DAMAGE. WHITE BURDEN ON GOVERNMENT 1311, 1379-80 - TOO BROAD MARSHALL SEPARATION OF POWERS PROBLEM IF USSC IMPOSES RESTRAINTS WHEN CONGRESS REFUSED

HARLAN + 2 (D) HIGH OFFICIAL + WITHIN FOREIGN POLICY POWER = DEFER TO PRESIDENT NOTE NO ONE MENTIONS STOLEN. DOES CLASSIFIED = NATL SECURITY ? DISTRUST CLASSIFIED SYSTEM ? US v PROGRESSIVE (1973 1313, 1382) ENJOINED MAGAZINE PUBLISHING H BOMB SNEPP v US (1980 1315, 1383) CIA EMPLOYEE IN VIOLATION OF AGREEMENT.

CONSTRUCTIVE TRUST ON PROFITS. AGREEMENT + ACCESS TO CLASSIFIED + IMPORTANT GOVERNMENTAL INTEREST. HAIG v AGEE (1981) -REVOKED PASSPORT WIKILEAKS AND SNOWDEN ? INJUNCTIONS IN INTERNET WORLD ? ONCE ITS OUT? NEBRASKA PRESS v STUART (1976 1316, 1385) 1. FREE PRESS v FAIR TRIAL 2. 1316, 1385 - STRONG PRESUMPTION AGAINST PRIOR RESTRAINT. PROCEDURES CAN MITIGATE 3. LOWER COURT ORDER TOO VAGUE AND BROAD

4. NARROW EXCEPTIONS FOR PRIOR RESTRAINT GENERAL FAIR TRIAL NOT ENOUGH GENERAL: 1. NEBRASKA ON BROADCASTERS, NOT PARTIES. CAN ORDER GAG ON PARTIES (AND LAWYERS). 2. COURTROOM CAN BAN TV BUT GENERALLY OPEN TO PRESS UNLESS OVERRIDING REASONS TO CLOSE COMPLETELY. EVEN IF BOTH PARTIES WANT TO CLOSE. 3. NO ABSOLUTE PRIVILEGE FOR NEWSMEN TO WITHHOLD SOURCES FROM GRAND JURY. CAN

HAVE USUAL OBJECTIONS (EG ABUSIVE, SCOPE) 4. EXISTENCE OF STATUTE MAY CHANGE MIX OF FACTORS. BROADCAST MEDIA GENERAL RULES IN TERMS OF MEDIA, PRINT GETS MOST RIGHTS OLDER, NAMED IN CONSTITUTION, NO SCARCITY. MIAMI HERALD v TORNILLO (1974 1329, 1397) STATE LAW GIVES CANDIDATES EQUAL SPACE RIGHT TO REPLY TO ATTACKS ON THE RECORD. UNANIMOUSLY INVALID. STATE INTERESTS

MONOPOLISTIC NATURE OF PAPERS. NO RESPONSIBLE PRESS GOOD, BUT NOT CONSTITUTIONALLY MANDATED. DAMPENS DEBATE CHILLS FA RIGHTS TO NEWSPAPERS. EDITORIAL DISCRETION PART OF FA. PAPER CAN CONTROL ITS OWN CONTENT. FA INTEREST IN MEDIA PUBLIC, EDITORS, GOVT. CONGRESS RADIO BEFORE 1927 PRIVATE A MESS. GIVEN LIMITED NUMBER OF FREQUENCIES (AM ONLY) AND NEED FOR NATIONAL UNIFORMITY. CONGRESS TOOK CONTROL. 1934 CREATED FREE BROADCAST SYSTEM

AND FCC AND LICENSES. NOTE: CANT HAVE LICENSE FOR PRESS. THEN FM PROVIDES MORE STATIONS. TV ELECTROMAGNETIC SPECTRUM (VHF, UHF). SPECTRUM SCARCITY RED LION v FCC (1969 1464, 1538) FAIRNESS DOCTRINE: 1) DUTY TO BROADCAST PUBLIC INTEREST INFO 2) IF BROADCAST ONE SIDE, BROADCAST OTHER AND 3) FREE REPLY IF ATTACK HONESTY AND CHARACTER. ARGUMENT FOR RED LION ? 1. SCARCITY OF FREQUENCIES (SPECTRUM SCARCITY). GOVERNMENT CAN TREAT LICENSEES AS FIDUCIARIES AND PROXY FOR

GENERAL PUBLIC. RIGHT OF THE LISTENERS, NOT BROADCASTERS, PARAMOUNT IN FA. 2. FREE MARKETPLACE OF IDEAS DONT WANT TO ALLOW PRIVATE CENSORSHIP 3. NOT JUST SPECTRUM SCARCITY BUT ECONOMIC REALITIES. FAIRNESS DOCTRINE REPEALED IN 1987. CBS v DEMOCRATIC NATIONAL COMMITTEE (1981 1467, 1541) WIDE JOURNALSTIC FREEDOM TO BROADCASTERS. OPEN DEBATE BUT NOT A SYSTEM OF PUBLIC TRUSTEE. CBS

CAN REFUSE ALL EDITORIAL ADS. CBS v FCC (1981 1468, 1542) RULE ALLOWING CANDIDATES TO BUY TIME DURING ELECTION PERIOD IS VALID. RIGHTS OF VIEWERS AND LISTENERS PARAMOUNT. CAN CITE SUBSTANTIAL PROGRAMMING DISRUPTION. CONGRESS GIVING ACCESS RIGHTS NOT DIRECT FROM CONSTITUTION RADIO AM AND FM SPECTRUM SCARCITY ON AIR TV VHF (13) AND UHF SPECTRUM SCARCITY CATV (COMMUNITY ACCESS TV) CURVATURE OF EARTH, TALL ANTENNA AND PHYSICAL CABLE. MICROWAVE TOWER

SATELLITE - TURNER, ED TAYLOR (WESTERN UNION) ,CHANNEL 17, RCA AND TRANSPONDERS. COMBINES WITH FIBEROPTICS = CABLE. INTERNET UNLIMITED. BYPASS CABLE OPERATORS. WI-FI AND MOBILE DEVICES ? BYPASS INTERNET CABLE. TURNER BROADCASTING v FCC (1994 1470, 1544) CHALLENGE TO MUST CARRY RULES LOCAL BROADCAST STATIONS CARRIED WITHOUT CHARGE TO CONSUMERS MIAMI HERALD RIGHTS OF NEWSPAPER EDS. RED LION RIGHTS OF TV BROADCASTERS WHERE DO CABLE OPERATORS FIT ? ELECTROMAGNETIC SPECTRUM v FIBEROPTICS NO

SPECTRUM SCARCITY, BUT STILL NEED GOVERNMENT FOR RIGHT OF WAY ON POLES 1. REFUSED TO RECONSIDER RED LION SCARCITY RATIONALE BUT DIDNT APPLY DIRECTLY TO CABLE. 2. NOT CONTENT BASED NO RULE ON CONTENT OF THE PROGRAMMING. 3. P LIKE TORNILLO = INFRINGES EDITORIAL DISCRETION ON CONTENT. NO TORNILLO WAS CONTENT BASED BECAUSE TRIGGERED BY NEWSPAPERS MESSAGE. NOT HERE. ALSO NO CONFUSION ON SPEAKER ID DONT THINK

STATION SPEAKS FOR CABLE OPERATOR. CABLE CONTROLS VIEWER ACCESS TO INFORMATION MORE THAN NEWSPAPERS. WHAT DO CABLE OPERATORS DO ? BUNDLE 4. INTERMEDIATE SCRUTINY. PROMOTE COMPETITION AND PRESERVE BROADCASTING. 5. REMAND FACTORS: BENEFITS OF MUST CARRY TO FREE TV WIDESPREAD DISSEMINATION OF INFO PROMOTING FAIR COMPETITION BURDEN ON SPEECH NO GREATER THAN NEC.

OCONNER (SCALIA, GINSBURG AND THOMAS) CONTENT BASED IMPINGES CABLE OPERATORS EDITORIAL DISCRETION. ON REMAND DC HELD NARROWLY TAILORED, CONTENT NEUTRAL RESTRICTIONS THAT ONLY IMPOSE AN INCIDENTAL BURDEN ON SPEECH. DENVER AREA ED v FCC (1996 1472, 1546) CABLE ITS OWN RULES NOT PRINT OR BROADCAST. RENO v ACLU (1997 1475, 1549) NON-INTERNET MEDIUMS HISTORY OF EXTREME GOVERNMENT REGULATION, SPECTRUM SCARCITY

AND INVASIVE NATURE. INTERNET WIDE OPEN AND DEMOCRATIC. PRIOR CASES PROVIDE NO BASIS FOR LEVEL OF SCRUTINY. DIFFERENCES IMPLY LESS GOVERNMENT REGULATE PRINT MEDIA, INTERNET PRESUME NO REGULATION VALID BASIC CABLE

PRESUME SOME REGULATION VALID ON AIR TV AND RADIO PRESUME MOST REGULATION VALID NEVER VIEWPOINT SPECTRUM SCARCITY EACH MEDIUM ITS OWN LAW SEXUALLY EXPLICIT EXPRESSION (CONTENT REG)

OBSCENE (MILLER) v PORNOGRAPHIC/INDECENT/SEXUALLY EXPLICIT WHY PROTECTED ? SELF AUTONOMY, ART, GOVERNMENTAL LIMITS v WHY REGULATE ? UNCONSENTING ADULTS, CHILDREN, MORALITY, CRIME, WOMEN, NO MESSAGE. BEGINS WITH CHAPLINSKY OBSCENITY NOT PROTECTED. AS MORE LIBERAL DEFINITION, MORE DESIRE TO REGULATE PORNOGRAPHIC (NOT OBSCEN)

ROTH v US (1957 1010, 1058) 1. OBSCENITY NOT WITHIN FA. UTTERLY WITHOUT REDEEMING SOCIAL IMPORTANCE. 2. NOT ALL SEX = OBSCENE. OBSCENE IS SEX APPEALING TO PRURIENT INTERESTS 1011, 1059 FN 1. 1011, 1060 AVERAGE PERSON APPLYING COMTEMPORARY COMMUNITY STANDARDS. 1012 1015, 1060-63 - CRAZY PERIOD. USSC THIRD THURSDAY OF EVERY MONTH. MEMOIRS 3 PART TEST. STEWART IN JACOBELIS (I KNOW IT WHEN I SEE IT).

MILLER v CALIFORNIA (1973 1015, 1063) MEMOIRS TEST HARD TO PROVE TOO SUBJECTIVE. 1015-16, 1064 1. APPEALS TO PRURIENT INTEREST AND 2. IS PATENTLY OFFENSIVE AND 3. LACKS SERIOUS LITERARY, ARTISTIC OR SCIENTIFIC VALUE. PRURIENT DEFINED BY ROTH (1011, 1059 FN 1) 1016, 1064 - DEFINES PATENTLY OFFENSIVE JENKINS v GEORGIA (1974 1025, 1074)

PRURIENT INTEREST AND PATENTLY OFFENSIVE TO BE DECIDED BY THE JURY APPLYING LOCAL COMMUNITY STANDARDS. BUT STILL SUBJECT TO APPELLATE REVIEW. WHAT DOES APPELLATE REVIEW MEAN IN THIS SITUATION ? POPE v ILLINOIS (1987 1026, 1075) SERIOUS VALUE IS A NATIONAL AND REASONABLE PERSON STANDARD. DOESNT VARY COMMUNITY BY COMMUNITY. IS A SEXUAL CULTURE A GOOD THING ? RHAPSODY IN THE RAIN v VICTORIA SECRET COMMERCIALS ? STANLEY V GEORGIA (1969 1014, 1062) PRIVATE POSSESSION OF OBSCENE = ILLEGAL

1. 1014, 1062 IF THE FIRST AMENDMENT MEANS ANYTHING, HERE, NO CHILDREN OR UNCONSENTING ADULTS. WONT ALLOW POSSESSION BAN AS ADMINISTRATIVE CONVENIENCE FOR DISTRIBUTION BAN. WHAT ARE THE IMPLICATIONS OF STANLEY ? RIGHT TO MAKE OR DISTRIBUTE ? NO HARM TO OTHERS = PROTECTED ? PARIS ADULT v SLATON (1973 1018, 1066) STIPULATED OBSCENE, NO CHILDREN OR UNCONSENTING ADULTS, OUTSIDE TASTEFUL. 1. 1018 1019, 1067 - STATE INTERESTS INVOLVED IN

OBSCENITY. 2. STATE DOESNT NEED PROOF OF ADVERSE EFFECTS NOT IMPINGING ON CONSTITUTIONAL RIGHT. LEGISLATURES ALWAYS WORK ON UNPROVABLE ASSUMPTIONS. MORALITY IS A VALID STATE PURPOSE. 3. THEATER NOT HOME. STANLEY LIMITED TO HOME BRENNAN + 3 (D) ALL OBSCENITY STANDARDS TOO VAGUE CHILL. CHILDREN AND UNCONSENTING ADULTS VALID BUT MORALITY TOO VAGUE TO JUSTIFY

INTERFERENCE WITH FA VALUES. DOUGLAS (D) - STANLEY QUESTION IS FILM/BOOK/ETC OBSCENE ? MILLER TEST 3 PART 1. IF YES, THEN STANLEY AND PARIS ADULT 2. IF NO, THEN CAN STATE REGULATE - TYPE OF MEDIUM CHILD PORNOGRAPHY NY v FERBER (1982 1049, 1098)

USING CHILD ACTORS ON DISTRIBUTION 1. COMPELLING INTEREST IN SAFEGUARDING PHYSICAL AND PSYCHOLOGICAL WELL BEING OF MINOR. PREVENTION OF SEXUAL EXPLOITATION AND ABUSE OF CHILDREN 2. DISTRIBUTION INTRINSICALLY RELATES TO ABUSE PERMANENT RECORD AND MUST CLOSE TO STOP PRODUCTION 3. STATE INTERESTS BEYOND OBSCENE CHILD HURT BY SEXUALLY EXPLICIT NON-OBSCENE 4. PRODUCTION ILLEGAL ADS AND SELLING

PROVIDE ECONOMIC MOTIVE FOR PRODUCTION 5. LIMITED SOCIAL VALUE JUST MAKE UP OLDER TO LOOK YOUNGER. CAN MAKE CASE BY CASE EXCEPTIONS FOR MEDICAL TEXTBOOKS OR NATIONAL GEOGRAPHIC. OSBORNE v OHIO (1990 1052, 1101) MERE POSSESSION CAN BE MADE CRIMINAL ASHCROFT v FREE SPEECH COALITION (2002 1053, 1102) FEDERAL STATUTE MADE VIRTUAL CHILD PORNOGRAPHY ILLEGAL 1. NO REAL CHILD USED OR HARMED. JUST

BANNING IDEA VIOLATES FA. 2. STATE PEDOPHILES USE TO SEDUCE KIDS. MERE TENDENCY TO ILLEGAL NOT ENOUGH NO PROVABLE CONNECTION BETWEEN WATCHING AND CHILD ABUSE. STATE MUST SHOW RELATION TO CONDUCT (BUT SEE PARIS ADULT). 3. STATE CANT ENFORCE REAL IMAGES TOO GOOD. NO NOT ENOUGH TO OUTWEIGH FA. PORNOGRAPHY AS SUBORDINATION OF WOMEN 1030, 1078 - DWORKIN AND MCKINNON NOT

MORALITY BUT POWER. MAKES DOMINANCE SEXY. SHAPES COMMUNITY VALUES. NOT DEVIANT BUT EXPRESSES SEXIST SOCIAL UNDERPINNINGS. FEMINISTS FOR PORN LIBERATING WOMEN FROM STEROTYPES (GOOD GIRLS DONT LIKE SEX), MAKING MONEY, GAY PORN. AMERICAN BOOKSELLERS v HUDNUT (1986-1030, 1079) INDIANAPOLIS ORDINANCE BANNING FILMS THAT DENIGRATE WOMAN 1030, 1079

1. NO REFERENCE TO MILLER TEST. 1031, 1079 - ON CONTENT OR VIEWPOINT. 2. FA LEAVES EVALUATION OF IDEAS TO INDIVIDUAL. EVEN IF LEADS TO MEN TREATING WOMEN BADLY, JUST GOES TO POWER OF IDEAS 3. CITY NO MARKETPLACE OF IDEAS WHEN UNANSWERABLE. TRUTH NOT ALWAYS WINNING. 3. EVEN IF LOWER VALUE SPEECH, NO VIEWPOINT. IF TREAT WOMEN IN CERTAIN WAY, OK NO MATTER HOW SEXUAL. USSC SUMMARILY AFFIRMS

REGULATING PORNOGRAPHY - SEXUALLY EXPLICIT BUT NON-OBSCENE ERZNOZNIK v JACKSONVILLE (1975 1036, 1084) NO NUDE 1. BALANCE FA RIGHTS OF SPEAKERS v UNWILLING VIEWERS. NOT TPM HERE ON CONTENT. VIEWERS MUST AVOID NOT HOME OR IMPRACTICAL TO AVOID. 2. OVERBROAD IF PROTECTING MINORS 3. NOTHING IN RECORD TO INDICATE TRAFFIC REGULATION IS ACTUAL PURPOSE. YOUNG v AMERICAN MINI THEATERS (1976 1039,

1088) 1039, 1088 FN 1 - REGULATED USES AND STATUTE 1039, 1088 - PURPOSES STEVENS (PART III IS PLURALITY) 1. NOT VAGUE D CLEARLY INCLUDED. 2. NOT PRIOR RESTRAINT NOT DENYING ACCESS 3. III REALITY PROTECTED AND UNPROTECTED DOES TURN ON CONTENT. HERE NOT VIOLATIONS OF PRIMARY FA LIMIT ON MESSAGE NUDITY BANNED REGARDLESS OF POINT (NOT VIEWPOINT). FA INTEREST IN EROTIC EXPRESSION DIFFERENT FROM POLITICAL SPEECH.

4. IMPORTANT PURPOSE HERE. 1040, 1089 - JUST LIMITING LOCATION, NOT LIMITING ACCESS OR REPRESSING. NOTE: DOESNT USE COMPELLING BUT CANT SAY TPM BECAUSE ON CONTENT. DISSENT (4) NOT CONTENT NEUTRAL AND NOT OBSCENE. MOST PROTECTION TO UNPOPULAR SPEECH. RENTON v PLAYTIME THEATERS (1981 1043, 1091) CONCENTRATED IN RED LIGHT DISTRICT REHNQUIST VALID 1043, 1092 - SECONDARY EFFECTS

DISSENT (2) CONTENT BASED LA v ALAMEDA BOOKS (2002 1044, 1093) LIKE YOUNG PROHIBITED MORE THAN 1 ADULT BUSINESS ON SAME PREMISES. BOOKSTORE OWNER WANTED BOOTHS OCONNOR + 3 CAN RELY ON 1977 STUDY TO FIND RELATION TO CRIME. CAN RELY ON ANY EVIDENCE BELIEVED TO BE REASONABLE RELEVANT 1045, 1094 - BURDEN KENNEDY INTERMEDIATE EVEN THOUGH ON CONTENT SECONDARY

EFFECTS SOUTER + 3 (D) NEED EMPIRICAL DATA ON SECONDARY EFFECTS OR FEAR DISGUISED VIEWPOINT. MODERN SECONDARY EFFECTS = INTERMEDIATE SCRUTINY BUT ONLY IN REGULATING SEXUALLY EXPLICIT. REJECTED IN OTHER FACT PATTERNS (BOOS v BARRY NO REGARDING STREET PICKETING FOR POLITICAL PURPOSES) SECONDARY EFFECTS CANNOT JUSTIFY A BAN ONLY A REGULATION THAT STILL GUARANTEES ACCESS. ESSENTIALLY PARTS 2, 3

AND 4 OF INTERMEDIATE (TPM) TEST. FCC v PACIFICA FOUNDATION (1978 1054, 1103) STATUTE MAKES CRIMINAL OBSCENE, INDECENT OR PROFANE STEVENS + 2 1. CLEARLY ON CONTENT BUT NOT ON MESSAGE. CAN REGULATE UNLESS BECAUSE OF POLITICAL CONTENT OR SATIRIZING ATTITUDE TOWARDS 4 LETTER WORDS. 1055, 1104 FN NOT SATIRE 2. EACH MEDIUM UNIQUE. BROADCASTING MOST LIMITED INVADES HOME AND EASILY ACCESSIBLE BY CHILDREN. DIFFERENT IF ISOLATED WORD, OTHER TIME

OR OTHER MEDIUM. POWELL + 1 (C) CHILDREN, HOME AND NATURE OF RADIO. ADULTS CAN HEAR IF THEY DESIRE. DISAGREE WITH LOWER VALUE SPEECH. WHAT LEVEL OF SCRUTINY ? BRENNAN + 1 (D) CANT SEPARATE IDEAS FROM LANGUAGE ESPECIALLY HERE. PARENTS SHOULD CONTROL MINORS, NOT STATE. HOME VOLUNTARILY TURN ON. TURN OFF. FA RIGHTS OF BROADCASTERS

FCC v FOX TV (2009 1059, 1108) PUNISHING FLEETING EXPLETIVES NOT ARBITRARY OR CAPRICIOUS. 4 PERSON DISSENT VOICES FA CONCERNS NOT DELIBERATE OR RELENTLESSLY REPETITIVE DOES ANYONE CARE ABOUT FREE TV AND RADIO ? ROWAN v POST OFFICE (1970 1060, 1109) IF HOMEOWNER FINDS MAILINGS OFFENSIVE, CAN

TELL PO TO ORDER MAKER NOT TO SEND. MAIL ORDER BUSINESS CLAIMED FA RIGHT TO COMMUNICATE. REGULATION VALID. HOMEOWNER CAN STOP THINGS COMING INTO HOUSE. SUSPECT IF COMING FROM GOVERNMENT AS REGULATOR, BUT OK IF GOVERNMENT JUST ENFORCING HOMEOWNERS WISHES (LIKE DOORBELL). BUT GOVERNMENT CANT ENFORCE BROAD BAN OF UNSOLICITED BEFORE OWNER COMPLAINS 1061, 1110 - CON ED, BOLGER SABLE COMMUNICATIONS v FCC (1989 1062, 1111)

900 TELEPHONE NUMBERS - CAN BAN OBSCENE BUT NOT INDECENT. NOT LIKE RADIO RECIPIENT HAS TO INITIATE. NOT LIKE RADIO DOESNT ENTER HOME. DEVICES AVAILABLE TO FILTER KIDS OUT. US v PLAYBOY ENTERTAINMENT GROUP (2000 1064, 1113) FCC FULLY SCRAMBLE OR, IF SIGNAL BLEED, CONFINE TO LATE NIGHT HOURS. STEVENS + 4 1. STRICT SCRUTINY CANT GET CHANNEL EVEN IF AN ADULT WILLING TO PAY EXCEPT LATE NIGHT. RESTRICTS FA OF CABLE OPERATORS.

HERE PRIMARY NOT SECONDARY EFFECTS. TECHNOLOGY TO BLOCK HOUSE BY HOUSE AT HOMEOWNERS REQUEST. BREYER + 3 (D) VOLUNTARY OPT OUT NOT A SIMILARLY PRACTICAL AND EFFECTIVE WAY TO PROTECT CHILDREN. RENO v ACLU (1997 1065, 1115) MOST FACTS STIPULATED. 1065-66, 1115 STATUTE TO PROTECT MINORS FROM OBSCENE OR INDECENT (INDECENT TRANSMISSION OR PATENTLY OFFENSIVE

DISPLAY) 1. DISTINGUISH PACIFICA AGENCY WITH EXPERTISE, NOT PUNITIVE AND NATURE OF RADIO. NOT RENTON NO SECONDARY EFFECTS REJECT CONCEPT OF CYBERZONING 2. EACH MEDIUM ITS OWN LAW. HERE NO SCARCITY, LOW COST UNIVERSAL ACCESS, NOT INTRUSIVE (COMPUTER + CONNECTION) 3. CDA CONTENT BASED AND CRIMINAL. VAGUENESS PROBLEMS ON DEFINITION OF INDECENT AND PATENTLY OFFENSIVE. VALID REGARDING OBSCENITY AND CHILD PORNOGRAPHY.

4. OVERBROAD CANT REDUCE ADULTS TO CHILD LEVEL. ANY CHILD IN CHAT ROOM. PARENTS CAN BE LIABLE LET 17 YEAR OLDS USE, SEND EMAIL TO KIDS. 5. NO TPM BECAUSE CONTENT BASED. AFFIRMATIVE DEFENSES DONT SAVE TECHNOLOGY NOT AVAILBLE TO RESTRICT ON AGE CREDIT CARDS TOO COSTLY FOR MANY. OCONNOR + 1 CDA UNDULY RESTICTS ADULT ACCESS IN ATTEMPT TO PROTECT KIDS. ASHCROFT v ACLU (2002 1071, 1121)

COPA DIFFERENT FROM CDA EMAIL NOT INCLUDED, COMMERCIAL ONLY AND HARMFUL TO MINORS 1071, 1121 STATUTORY LANGUAGE MILLER ADAPTED TO MINORS 1. COMMUNITY STANDARDS ON HARMFUL TO MINORS. BUT NOT INVALID ON FACE. REMAND TO CLARIFY SCOPE AND APPLICABILITY. 2. INTERNET EASE TO REACH EVERYONE IN WORLD, HARD TO REACH TARGETED GROUP. IF WANT TO EXCLUDE MINORS, HARD TO DO. ASHCROFT v ACLU II (1073, 1122)

FAILS STRICT SCRUTINY PLAUSIBLE LESS RESTRICTIVE ALTERNATIVES. USE BLOCKING AND FILTERING SOFTWARE ON RECEIVING END, NOT SENDING. DISSENT SAYS BLOCKING SOFTWARE DOESNT WORK MODERN PROTECTION (REGULATION) MOST (LEAST) LEAST (MOST) PRINT, TV/RADIO PREMIUM CABLE, MAIL - HOME REQ

900, INTERNET INTERMEDIATE CABLE OPERATOR SEC EFFECTS (TPM 234) SECONDARY EFFECTS PROPERTY ZONING WITH SEXUALLY EXPLICIT UNDERGROUND MARKETS (STRANGE STUFF) UNITED STATES v STEVENS (2010 1075,1127) STATUTE CREATION, SALE OR POSSESSION ILLEGAL IF ANIMAL TORTURED OR KILLED AND

VIOLATES LAW. INVALID 8 1. 1. GOVERNMENT MAKE ANOTHER UNPROTECTED CATEGORY. NO. NOT FERBER. 2. NOT LIMITED TO CRUSH VIDEOS (SEXUAL FETISH) AND THUS OVERBROAD. DO NOT DECIDE IF MORE LIMITED. ALITO D CONDUCT IN CRUSH VIDEOS ILLEGAL IN EVERY STATE. NEED THIS BROAD TO PREVENT THEM. ASHCROFT v ACLU (2002 1077, 1121) COMMUNITY STANDARDS IN OBSCENITY ONLINE:

POTENTIAL AUDIENCE OR INTENDED AUDIENCE ? IF POTENTIAL, INTERNET LIMITED BY MOST CONSERVATIVE. ASHCROFT v FREE SPEECH COALITION (2002 1077, 1124) FEDERAL STATUTE EXPANDS CHILD PORNOGRAPHY BAN TO INCLUDE COMPUTER IMAGES OR ADULTS MADE UP TO LOOK LIKE MINORS. 1. SUPPRESSING IDEA TEENAGERS HAVING SEX. NO CONSIDER ARTISTIC OR LITERARY VALUE. 2. NO CRIME AND NO VICTIM. CANT BAN FROM

ADULTS SIMPLY BECAUSE CHILDREN MAY GET IT. CANT BAN BECAUSE MIGHT ENCOURAGE PEDOPHILES. THOMAS (C) CAN STILL TELL DIFFERENCE CHANGE RESULT IF TECHNOLOGY DEVELOPES. REHNQUIST AND SCALIA (D) COMPELLING SATISFIED BROWN v ENTERTAINMENT MERCHANTS ASSN (2011 1080, 1130) 1080 1081, 1130 - CALIFORNIA STATUTE ILLEGAL TO SELL OR RENT VIOLENT VIDEO GAMES TO MINORS. INCORPORATED MILLER TEST.

1. VIDEO GAMES PROTECTED COMMUNICATE IDEAS. 2. NOT OBSCENITY MILLER ANALOGY NO HELP. 3. CAN PROTECT MINORS FROM HARM, BUT CANT RESTRICT IDEAS THEY RECEIVE. COMPELLING AND NARROWLY DRAWN. 4. NO CAUSAL LINK BETWEEN PLAYING AND ACTUAL HARM TO MINORS. ALSO VOLUNTARY RATING SYSTEM. MANY FAILED ATTEMPTS TO REGULATE VIOLENCE TO MINORS. ALITO AND ROBERTS (C) VAGUE THOMAS (D) NO MINORS RIGHTS IN 1791 BREYER (D) MINORS CAN STILL PLAY IF PARENTS BUY OR

RENT FOR THEM. DONT WANT MINORS ALONE . PRIVATE LABELS ON LEVELS VIOLENCE AND SEX HANDOUT FA 6 VAGUENESS AND OVERBREATH WILD CARD THEORIES USED EARLY IN FA LITIGATION AND CONTINUE TO BE USED TODAY. IF DONT KNOW WHAT ELSE TO DO, USE THESE. ESPECIALLY IF STATUTE/REGULATION VERY GENERAL. OVERBREATH 1278, 1347 DEFINITION REGULATION BROADER THAN NECESSARY TO PROTECT INTEREST. REALLY FIT

PART OF MODERN TEST. USED TO AVOID SCRUTINY LEVEL INVALIDATES ON FACE INSTEAD OF AS APPLIED AND VIOLATES STANDING CONCEPTS. STATUTE INCLUDES PROTECTED ACTIVITY WHEN DIDNT NEED TO DO SO. BROADRICK v OKLAHOMA (1973 1280, 1349) 1. EVEN IF MIGHT APPLY TO WEARING BUTTONS, D ACTIVELY ENGAGED IN CAMPAIGN. 1281, 1350 TEST AND CHILL. 1282, 1350-51 - MODERN TEST SUBSTANTIAL. HERE EVEN HANDED NEUTRAL STATUTE, NOT ON CITIZENRY IN GENERAL D CLEARLY WITHIN. BRENNAN + 3

NO CLEAR DEF OF SUBSTANTIAL NEVER INSIGNIF. NY v FERBER 1283, 1352 - D ARGUED OVERBROAD BECAUSE SERIOUS SCIENTIFIC AND EDUCATIONAL MIGHT BE PROHIBITED. NOT SUBSTANTIALLY OVERBROAD. ASHCROFT v FREE SPEECH 1284, 1352 - CANT BAN UNPROTECTED IF SUBSTANTIAL AMOUNT OF PROTECTED IS ALSO BANNED. VIRGINIA v HICKS 1285, 1253 - IF NOTICE TO LEAVE PUBLIC HOUSING, CAN BE ARRESTED NEXT TIME IF NO VALID BUSINESS OR SOCIAL PURPOSE. NO SUBSTANTIAL AMOUNT OF PROTECTED ACTIVITY INVALIDATED.

BROCKETT v SPOKANE ARCADES 1285, 1354 OVERBROAD TO DEFINE PRURIENT INTEREST AS LASCIVIOUSNESS OR LUST. COVERS PROTECTED SCHAMBURG 1286, 1255 AND MUNSON 1287, 1356 CANT EQUATE HIGH OVERHEAD WITH FRAUD ON DOOR TO DOOR SOLICITATION BAN. HOUSTON v HILL 1290, 1359 OVERBROAD STATUTE NOT LIMITED TO DISORDERLY CONDUCT OR FW BD OF AIRPORT COMM 1291, 1360 SPECTULAR OVERBREATH - CANT ENGAGE IN PROTECTED FA ACTIVITY IN LAX.

VAGUENESS 1293, 1362 DEFINITION. PROCEDURAL DUE PROCESS CONCEPT OF GIVING ADEQUATE NOTICE OF VIOLATION. SO POORLY WRITTEN OR UNCLEAR DONT KNOW WHAT IT MEANS. USUALLY A BROAD, GENERAL STATUTE OR REGULATION. ANTI- WANDERING STATUTES COATES v CINN 1293, 1362 ANNOYING NEA v FINLEY 1296, 1363 DECENCY AND RESPECT. NOT CRIMINAL. CLOSE TO OVERBROAD IN CONCEPT

RIGHT OF ASSOCIATION FA RIGHT OF THE PEOPLE PEACEFULLY TO ASSEMBLE. DERIVED FROM THIS AND INDIVIDUALS RIGHT TO EXPRESS HERSELF 1. GOVERNMENT CANT MAKE MEMBERSHIP A CRIME C AND P DANGER COMMUNIST CASES UNLESS GROUP ACTIVELY ADVOCATES LAWLESSNESS AND INDIVIDUAL KNOWS AND SUPPORTS (BRANDENBERG FOR GROUP) 2. GOVERNMENT CANT COMPEL DISCLOSURE OF MEMBERSHIP UNLESS COMPELLING INTERESTS

RIGHT NOT TO ASSOCIATE BIG CASES ANTI-DISCRIMINATION STATUTES (FEDERAL OR STATE) v FA EXCLUSION RIGHT HURLEY v GLIB (1995 1340, 1409) PRIVATE ORGANIZERS OF ST PATS PARADE DENY ACCESS TO GLIB. STATE COURT ORDERS INCLUSION PER PUBLIC ACCOMODATION STATUTE. USSC REVERSES 9-0. 1. PARADE IS A FORM OF EXPRESSION. FA PROTECTION NOT FORFEITED BECAUSE ALLOWED MANY TO JOIN. GLIBS PARTICIPATION WAS EXPRESSIVE. 2. NO HOSTILITY TO GLIB CAN MARCH IF

MEMBER OF ANOTHER GROUP. JUST NOT THEIR OWN BANNER. 3. ORDER REQUIRED PET. TO ALTER THE EXPRESSIVE CONTENT OF THEIR PARADE. SPEAKER HAS AUTONOMY TO CHOOSE CONTENT OF OWN MESSAGE. GLIB CAN GET PARADE PERMIT OF THEIR OWN. ROBERTS v JAYCEES (1984); ROTARY v NY STATE (1987) (1370 -1371, 1441 - 1442) PREVENTION OF GENDER DISCRIMINATION =

COMPELLING PURPOSE. OVERRIDE FA RIGHTS. EXCEPTION OF TRULY NON PUBLIC (AUGUSTA NATL) BOY SCOUTS v DALE (2000 1372, 1443) EXCLUDED FROM SCOUTMASTER AVOWED GAY STATE STATUTE BANNED DISCRIMINATION v GAY REHNQUIST + 4 1. FOR FA TO APPLY, GROUP MUST ENGAGE IN EXPRESSIVE ACTIVITY OR ASSOCIATION. FORCED INCLUSION BAD IF IT AFFECTS IN A SIGNIFICANT WAY GROUPS ABILITY TO ADVOCATE ITS VIEWPOINT.

2. BS HOMOSEXUALITY INCONSISTENT WITH MORALLY STRAIGHT AND CLEAN VALUES. DALE IS OUTSPOKEN. JAYCEES AND ROTARY WOMEN WOULD NOT INTERFERE WITH IDEAS GROUP TRYING TO EXPRESS. STEVENS + 3 (D) BS THEMSELVES DONT KNOW WHAT MORALLY STRAIGHT MEANS. DALE NOT TRYING TO SEND MESSAGE EXCLUDED ON MERE FACT OF GAY. RUMSFELD v FAIR (2006 1343, 1375, 1411, 1448) SOLOMON AMENDMENT VALID. MILITARY NOT

PART OF LAW SCHOOL. FACULTYS RIGHT OF ASSOCIATION NOT INFRINGED. CAN EXPRESS THEIR OWN VIEW. NO ONE THINKS MILITARY SPEAKS FOR SCHOOL. ALL RECRUITERS ARE OUTSIDERS. JANUS V AMERICAN FEDERATION (2018) PUBLIC UNION ALL PAY DUES EVEN IF NOT MEMBERS OF THE UNION. INVALID 1. VIOLATES FREE SPEECH RIGHTS OF NONMEMBERS BY COMPELLING THEM TO SUBSIDIZE PRIVATE SPEECH ON MATTERS OF SUBSTANTIAL PUBLIC CONCERN. 2. IRRELEVANT THAT UNION MUST REPRESENT INTEREST

OF ALL EMPLOYEES. KAGAN + 3 (D) UNIONS WILL GO BANKRUPT WHY PAY DUES IF GET BENEFITS FOR FREE ? ANTIDISCRIMINATION STATUTE v FIRST AMEND. ANTIDISCRIMINATION = COMPELLING STATE INTEREST AND FA LOSES UNLESS 1. NON-GOVERNMENTAL (PRIVATE), TRULY NON-PUBLIC ENTITY (AUGUSTA NATIONAL) OR

2. INCLUSION AFFECTS ORGANIZATIONS ABILITY TO ADVOCATE ITS VIEWPOINT (CONFLICTS WITH VALUES) (ORGANIZATION MUST BE ENGAGING IN EXPRESSIVE ACTIVITY) LIMITS ON CAMPAIGN SPENDING BUCKLEY v VALEO (1976 1383, 1454) 1383 1384, 1454 - 55 - STATUTE PUBLIC FUNDING LIMITS ON CONTRIBUTIONS AND EXPENDITURES. CONTRIBUTION LIMITS VALID - TPM 1385 1386, 1457 STATE PURPOSE OF ANTICORRUPTION AND APPEARANCE ARE SUFFICIENT TO JUSTIFY.

FA RIGHTS MARGINALLY IMPACTED. NO DATA THAT LIMITS = CANDIDATE CANT RAISE ENOUGH MONEY TO RUN. EXPENDITURE LIMITS INVALID ANTI-CORRUPTION AND EQUALIZATION NOT ENOUGH TO JUSTIFY IMPINGEMENT ON FA RIGHT TO SPEND. CANT LIMIT GROUPS ABILITY TO SPEND IN SUPPORT OF CANDIDATE. CANT LIMIT EXPENDITURE OF PERSONAL $$$ CANT LIMIT OVERALL EXPENDITURES OF A CAMPAIGN. CONCURENCES AND DISSENTS ALL OVER

PARADIGM PEOPLE GIVE MONEY WITH NO EXPECTATION OF RETURN DAVIS v FEC ( 2008 1417, 1485) MILLONAIRES AMENDMENT - $ 350,000 OF OWN MONEY TRIGGERS 3X INCREASE ON CONTRIBUTION LIMITS OF OPPONENT. CANT HAVE DIFFERENT LIMITS FOR CANDIDATES COMPELLING NOT SATISFIED BY LEVELING. STEVENS + 3 (D) REDUCING PERSONAL WEALTH AS CRITERION FOR PUBLIC OFFICE IS IMPORTANT PURPOSE.

CITIZENS UNITED v FEDERAL ELECTION COMMITTEE (2010 1421, 1489) ANTI-HILLARY DOCUMENTARY. 1421, 1489 STATUTE BANS CORPORATIONS FROM RUNNING ADS 30 DAYS FROM PRIMARY, 60 DAYS FROM ELECTION. KENNEDY + 4 1. CORPORATIONS HAVE FA PROTECTIONS. CANT LIMIT FA RIGHTS BASED ON SPEAKER ID. 2. SMALL CORPORATIONS EXTREMELY WEALTHY.

CORPORATIONS HAVE EXPERTISE. 3. NO SUFFICIENT PURPOSE IN: EQUALIZATION OF VIEWPOINTS, ID SOURCES OF SUPPORT, AVOID CONCENTRATIONS OF WEALTH, OR ANTICORRUPTION OR APPEARANCE OF SUCH. SCALIA (C) OK EVEN IF FOUNDING FATHERS DISTRUSTED CORPORATIONS STEVENS + 3 DISTINCTIONS BETWEEN CORPORATIONS AND HUMANS VALID. NO VIEWPOINT TPM. NO HISTORY OF DISCRIMINATION OR

POLITICALLY POWERLESS. JEFFERSON AGAINST FF CLEARLY THOUGHT THAT CORPORATIONS HAD NO FA RIGHTS. McCUTCHEON v FEC (2014 S95, 1501) STATUTE 1) BASE LIMITS LIMITS $$ TO PARTICULAR CANDIDATE AND 2) AGGREGATE LIMITS LIMITS $$ CAN MAKE IN TOTAL TO ALL CANDIDATES. 1 NOT AT ISSUE ROBERTS PLURALITY 1. VALID PURPOSE ONLY EQUALS QUID PRO QUO CORRUPTION. INGRATIATION AND ACCESS ARE NOT CORRUPTION. QUID = COMPELLING 2. AGGREGATE LIMITS HAVE LITTLE TO DO WITH QUID PRO

QUO CORRUPTION. INVALID. 3. FA RIGHT TO SPEND. CANT RESTRICT NUMBER OF CANDIDATES INDIVIDUAL WANTS TO SUPPORT. GIVING LESS TO MORE OR VOLUNTEERING IS NOT SUBSTITUTE FOR $$$. 4. CANT LEVEL FIELD OR EQUALIZE EXPENDITURES 5. STILL CANT GIVE MORE THAN BASE LIMITS TO 1 CANDIDATE - $ 5,200. 6. DISCLOSURE REQUIREMENTS STILL VALID. THOMAS (C) (5TH VOTE) OVERRULE BUCKLEY CONTRIBUTIONS AND EXPENDITURES SHOULD ALL BE ON COMPELLING TEST.

BREYER + 3 (D) 1. PLURALITY DEFINING CORRUPTION TOO NARROWLY. APPEARANCE WORSE. CORRUPTION CUTS LINK BETWEEN POLITICAL THOUGHT AND ACTION. 2. UNDUE INFLUENCE OR PRIVILEGED ACCESS = CORRUPTION. 3. CITIZENS UNITED IS ONLY PRECEDENT THAT SUPPORTS PLURALITY. 4. CONGRESS HAD COMPELLING REASONS TO SET THE LIMITS IT DID EMPIRICAL DATA.

HILLARY 2016 TRUMP 1.4 BILLION TOTAL 623.1 MIL

CAMPAIGN 598.2 MIL PARTY AND 543.4 JOINT FUNDR. 204.4 MIL SUPER PACS

957.6 MILLION 334.8 MIL 79.3 BOTH LESS THAN OBAMA AND ROMNEY HARD TO KNOW HOW MUCH PERSONAL MONEY SPENT MCDONALD V US (2016) FORMER VIRGINA GOVERNOR INDICTED FOR TAKING GIFTS AND CASH IN EXCHANGE FOR SETTING UP MEETINGS AND HOSTING EVENTS. 1. STATUTE PROHIBITS QUID PRO QUO

CORRUPTION EXCHANGE OF A THING OF VALUE FOR AN OFFICIAL ACT. INVALID. 2. PUBLIC OFFICIALS ARRANGE MEETINGS ALL THE TIME FOR CONSTITUENTS. MAY BE DIFFERENT IF EXTRAVAGANT GIFTS OR LARGE SUMS OF MONEY. MODERN CAMPAIGN SPENDING SUMMARY: 1. ONLY QUID PRO QUO CORRUPTION ACCEPTABLE PURPOSE (NO INGRATIATION OR ACCESS). CANT LIMIT CANDIDATES PERSONAL EXPENDITURES ON CAMPAIGN. 2. REGULATION ON INDIVIDUAL CONTRIBUTIONS TO SPECIFIC CANDIDATE VALID (TPM - INTERMEDIATE). RIGHT

TO SPEND. CANT REGULATE AGGREGATE CONTRIBUTIONS OR EXPENDITURES (COMPELLING) TO CANDIDATES. 3. CORPORATIONS HAVE FULL FIRST AMENDMENT RIGHTS (LIKE INDIVIDUALS) PACS NOT = CANDIDATES RELIGION CLAUSES 1477, 1577 FA LANGUAGE ON RELIGION. TENSION BETWEEN FREE EXERCISE AND ESTABLISHMENT IF CHURCH PROPERTY EXEMPT FROM TAX, DOES FE DEMAND THE

EXEMPTION OR IS GRANTING IT ANTI ESTABLISHMENT CLAUSE (EG CAN UNIVERSITY OF VIRGINIA PAY FOR RELIGIOUS STUDENT NEWSPAPERS IF NO, FREE EXERCISE PROBLEMS; IF YES, ESTABLISHMENT PROBLEMS. USUALLY FE IS SPECIFIC RELIGION USSC SAID VIEWPOINT - ROSENBERGER). HISTORY CLEAREST CONGRESS CANT ESTABLISH A NATIONAL RELIGION AND CANT MAKE A SPECIFIC RELIGION OR RELIGIOUS PRACTICE CRIMINAL 1479-80, 1553-54 GOVERNMENT SUPPORTED

RELIGION IN PRE-1776 EUROPE. SOME MADE MISSING CHURCH ON SUNDAY CRIMINAL. EVERYONE TAXED TO PAY FOR GOVERNMENT FUNDING OF ONE RELIGION. MADISONS REMONSTRANCE AGAINST VIRGINIA TAX. AFTER REJECTION OF TAX, VIRGINIA BILL FOR RELIGIOUS LIBERTY BY JEFFERSON. EARLY STATE CONSTITUTIONS ON LIBERTY OF CONSCIENCE. 1481, 1555 - VOLUNTARISM AND SEPARATION 1484, 1558 - DIFFERENT DRAFTS OF FA CIVIL RIGHTS OF NONE SHALL BE ABRIDGED ON ACCOUNT OF RELIGIOUS BELIEF OR WORSHIP, NOR

SHALL A NATIONAL RELIGION BE ESTABLISHED, NOR SHALL THE FULL AND EQUAL RIGHTS OF CONSCIENCE NO RELIGION EST BY LAW NOR RIGHTS OF CON NO LAWS TOUCHING RELIGION OR INFRINGING RIGHTS OF CONSCIENCE NO LAW EST RELIGION OR FE NOR RIGHTS OF CONS NO LAW ESTABLISHING ARTICLES OF FAITH OR MODES OF WORSHIP OR PROHIBITING FE 1482 1484, 1556-58 NONPREFERENTIALISM CONCEPT OF NO HOSTILITY, NO PREFERENCE, BUT GOVERNMENT CAN SUPPORT RELIGION GENERALLY. FF

TENSIONS - FIRST CONGRESS ELECTED A CHAPLIN ON THE MONEY. STATES WERE FREE TO ESTABLISH AN OFFICIAL RELIGION BEFORE THE 14TH AMENDMENT INCORPORATED 1ST. LAST OF STATE RELIGIONS ABOLISHED IN 1830S. 1485 APPLIED TO STATES 1486 1488, 1560 - 1562 - CONSCIENTIOUS OBJECTOR. CANT OBJECT ONLY TO UNJUST WARS. CAN YOU BE A NON-RELIGIOUS PACIFIST AND GET EXEMPTION ? 1488 -9, 1562-63 - DEFINITION OF RELIGION-SINCERITY/FRAUD FREE EXERCISE - FA7

LIKE SOPHISTICATION OF RACISM FROM CON LAW I DISCRIMINATION AGAINST PARTICULAR RELIGION 1. ON FACE 2. NEUTRAL ON FACE, BUT ADMINISTRATION (STATS) 3. NEUTRAL ON FACE AND ADMIN. BUT A. INTENT TO SUPPRESS (1, 2, 3A = COMPELLING) B. NO INTENT TO SUPPRESS CHURCH OF LUKUMI BABALU v HILEAH (1993 1491, 1565) SANTERIA ANIMAL SACRIFICE. CITY NO SLAUGHTER CRUELTY TO ANIMALS/PUBLIC HEALTH KENNEDY + 3

SANTERIA CLEARLY A RELIGION. NOT LIMITED TO FACIAL NEUTRALITY LOOK AT PURPOSE AND INTENT IN ADDITION TO EFFECT. HERE RECORD SHOWS HOSTILE TO SANTERIA. SCALIA + 1 INTENT DOESNT MATTER JUST EFFECT. SOUTER + 2 COMPELLING TEST WHEN LAW AIMED AT SUPPRESSING RELIGIOUS EXERCISE. CLEARLY HOSTILE MASTERPIECE CAKESHOP V COLORADO (2018) WOULD NOT CREATE CAKE FOR SAME SEX WEDDING BECAUSE

OF RELIGIOUS OPPOSITION. CIVIL RIGHTS COMMISSION AGAINST BAKERY. INVALID 7-2 1. COMMISSION CLEARLY BIASED AGAINST BAKERS RELIGIOUS BELIEFS. ON RECORD. NOT FAIR OR IMPARTIAL. 2. KAGAN + BREYER (C) WOULD HAVE BEEN ILLEGAL IF COMMISSION HAD BEEN UNBIASED. 3. GINSBURG + SOTOMAYOR (D) DENIED SERVICE PROVIDED TO OTHERS. STATEMENTS BY A FEW COMMISSIONERS (2). NOT LUKUMI. SHERBERT v VERNER (1963 1499, 1573) 7TH DAY ADVENTIST FIRED BECAUSE COULDNT

WORK ON SATURDAY. DENIED UNEMPLOYMENT. IF SUBSTANTIAL BURDEN ON RELIGION COMPELLING. WISCONSIN v YODER (1972 1502, 1578) CANT REQUIRE AMISH TO SEND KIDS TO SCHOOL AFTER 8TH GRADE. GOVERNMENT WINS: 1. AMISH MUST PAY SS AND HAVE A NUMBER 2. SALES TAX ON RELIGIOUS ARTICLES VALID 3. CANT DEDUCT CHURCH CONTRIBUTIONS IF RECEIVE GOODS

4. REQUIRED VACCINATION FOR KIDS VALID 5. CAN BAN SERVICEMAN FROM WEARING YARMULKE 6. CAN DENY TAX EXEMPTION TO RACIST U 7. CAN BAN POLYGAMY GOVERNMENT LOST ON REGUIRING BELIEF IN GOD AS A REQUIREMENT FOR HOLDING PUBLIC OFFICE AND OVERRIDING CORPORATIONS RELIGIOUS OBJECTIONS TO OBAMECARE. EMPLOYMENT DIVISION, OREGON DEPT OF HR v SMITH (SMITH II) (1990 1510, 1583)

PLAINTIFFS INGESTED PEYOTE FOR SACRAMENTAL PURPOSES AT CEREMONY OF NATIVE AMERICAN CHURCH. FIRED AS DRUG COUNSELLORS. DENIED UNEMPLOYMENT BENEFITS BECAUSE, AS A CONTROLLED SUBSTANCE, USING PEYOTE WAS EITHER ILLEGAL OR MISCONDUCT UNDER UNEMPLOYMENT LAW IN OREGON. SCALIA + 4 1. SHERBERT NOT CONDUCT PROHIBITED BY LAW 2. STATE CLEARLY CANT BAN IF MOTIVE IS TO LIMIT RELIGIOUS EXPRESSION

3. 1511, 1584-85 CASES CONFUSED HERE. BETTER RULE NOT FA VIOLATION WHERE LAW IS TRULY NEUTRAL AND BURDEN IS INCIDENTAL. RELIGIOUS BELIEFS CANT JUSTIFY NONCOMPLIANCE WITH OTHERWISE VALID STATE LAW (POLYGAMY). LEGITIMATE AND RATIONAL RELATION TEST. 4. PLAINTIFF FA DEMANDS EXCEPTION. NO AND NO NEED FOR INDIVIDUALIZED HEARINGS WHEN CRIMINAL ACTIVITY. 5. WONT ADOPT CENTRALITY OF RELGION TEST. GOVERNMENT SHOULDNT BE INQUIRING INTO

DEGREE OF BELIEF. EXEMPTION HERE WOULD OPEN FLOODGATES. POLITICAL PROCESS MANY STATES DO PROVIDE EXEMPTION FOR PEYOTE, BUT NOT REQUIRED. OCONNOR (C AND D) HOSTILITY CAN BE DISGUISED. SHOULD BE COMPELLING TEST. BUT SATISFIED HERE DRUG PREVENTION AND NEED FOR GENERAL ENFORCEMENT. BLACKMUN + 2 (D) COMPELLING TEST NOT SATISFIED. NO

COMPELLING REASON TO REFUSE EXCEPTION. RELIGIOUS FREEDOM ACT OF 1993 - REVERSES SMITH II AND REINSTATES SHERBERT. BOERNE v FLORES BEYOND POWER OF CONGRESS UNDER 14TH AMENDMENT SECTION 5. CONGRESS CANT OVERRULE SUPREME COURT PURSUANT TO POWER TO ENFORCE. BOERNE = RIFRA INVALID AS TO STATES VALID AS TO FEDERAL GOVERNMENT. BURWELL v HOBBY LOBBY (2014 S101, 1598) OBAMACARE IF 50 OR MORE FT EMPLOYEES, MUST

PROVIDE CONTACEPTIVE MEASURES, STERILIZATION PROCEDURES AND COUNSELING. EXEMPT IF RELIGIOUS ORGANIZATION. P HERE = 13,000 EMPLOYEES CLOSE CORPORATION, OWNERS BIBLICAL. 5 -4 MUST GIVE EXEMPTION. ALITO + 4 1. FOR PROFIT CORPORATIONS INCLUDED IN RFRA. CAN DETERMINE RELIGIOUS BELIEFS IN NON-PUBLICLY TRADED CORPORATIONS. HERE CLOSELY HELD. 2. SUBSTANTIAL BURDEN = COMPELLING. NOT LEAST RESTRICTIVE GOVERNMENT SHOULD PAY. GIVE SAME

TREATMENT AS NON-PROFIT RELIGIOUS EMPLOYERS. GINSBURG + 3 (D) 1. BROAD ALLOWS ALL COMMERCIAL ENTITIES TO OPT OUT OF GENERAL LAWS ON ASSERTED RELIGIOUS BELIEFS. UNPRECEDENTED. FOR PROFITS NOT SERVING A COMMUNITY OF BELIEVERS. 2. NOT A SUBSTANTIAL BURDEN ON HL THEY ARE NOT REQUIRED TO BUY CONTRACEPTIVES UP TO EMPLOYEE. 3. COMPELLING INTEREST IN PUBLIC HEALTH AND WOMENS WELL BEING. 4. WHAT ABOUT TRANSFUSIONS (JEHOVAHS

WITNESSES), ANTIDEPRESSANTS (SCIENTOLOGISTS), DERIVED FROM PIGS (MUSLIMS, JEWS AND HINDUS) OR VACCINATIONS (CHRISTIAN SCIENCE) ? ESTABLISHMENT CLAUSE FA8 PRAYER AND $$$ LEMON v KURTZMAN (1971) 1. SECULAR PURPOSE 2. PRIMARY EFFECT MUST NEITHER ADVANCE NOR INHIBIT RELIGION 3. NO EXCESSIVE ENTANGLEMENT AGOSTINI v FELTON (1997) 1. SECULAR LEGISLATIVE PURPOSE

2. CANT ADVANCE RELIGION THROUGH EXCESSIVE ENTANGLEMENT A. DOES PROGRAM RESULT IN GOVT INDOCTRINATION OF RELIGION ? B. ARE RECIPIENTS DEFINED BY REFERENCE TO RELIGION ? C. IS THERE EXCESSIVE ENTANGLEMENT BETWEEN GOVERNMENT AND RELIGION ? FACTORS: 1. ID OF RECIPIENT INDIVIDUAL (VALID) OR SCHOOL 2. TENSION BETWEEN FE AND EC CANT FAVOR

CANT PENALIZE 3. WALL OF SEPARATION v FLEXIBLE BARRIER (VALID) 4. COLLEGE (VALID) v HIGH SCHOOL v ELEMENTARY MANY DECISIONS 5 4 PRAYER = VIOLATION (BUT SEE GREECE CASE) $$$ = SPLIT BUT MORE RECENT ALLOW RELIGIOUS SYMBOLS ON PUBLIC PROPERTY = SPLIT BETTER OUTSIDE THAN INSIDE, BETTER OLD THAN NEW. SOME RELIGIOUS SECULARIZED (TREE AND LIGHTS). TOWN OF GREECE v GALLOWAY (2014 S 107, 1659) VOLUNTEER CLERGY GIVE PRAYER AT TOWN MEETING. LIST OF

WILLING BOARD CHAPLINS. NEVER DENIED ANYONE. BUT FROM 1999 2007, ALL CHRISTIAN NEVER REVIEWED PRAYERS IN ADVANCE OR COMMENTED AFTER. 5 4 VALID MARSH. KENNEDY + 4 1. MARSH AFFIRMED LEGISLATIVE INVOCATIONS ARE COMPATIBLE WITH ESTABLISHMENT CLAUSE. LIMITS VALID TO LEND GRAVITY AND REFLECT TRADITIONAL AMERICAN VALUES, BUT CANNOT DENIGRATE, THREATEN OR PREACH CONVERSION. MUST MAKE GENERALLY AVAILABLE.

2. NOT FOR PUBLIC BUT THE LAWMAKERS. NO EVIDENCE OF BIAS OR FAVORITISM IN ACTUAL DECISIONS. 3. OFFENSIVENESS TO SOME NOT A VALID PURPOSE TO SUPPRESS. LEAVE ROOM OR COME LATE OR SIT SILENTLY. KAGAN + 3 (D) 1. NO REAL DIVERSITY ALL CHRISTIAN. DIDNT TRY. 2. NOT JUST LEGISLATIVE BODY ALSO EXECUTIVE FUNCTION. ENGAGE WITH CITIZENS ON PERSONAL MATTERS. 3. CLEARLY ALIGNED ITSELF WITH A SINGLE FAITH.

ASSUMED EVERYONE A CHRISTIAN. FA 9

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