CASES Flashcards

Question

Rowan v United States Post Office Dept

Answer 1

Upheld a law that banned mailings to: (1) a person’s home when (2) the recipient specifically objected to the mailing, and (3) the recipient had the legal right to object to any mailing, w/ no content judgment on the govt.’s part, and (statute was facially limited to material that “addressee … believes to be erotically arousing or sexually provocative” but court stressed addressee could even block “dry goods catalog[s]”) (4) the ban left the speakers free to communicate to willing listeners in other homes (not stressed by Rowan court)

Answer 2

no prior restraint (against individuals) Reversing injunction on distribution of leaflets and articles meant to pressure Keefe (real estate broker) to change his conduct of selling to Negroes. Invasion of privacy doesn’t warrant prior restraint on peaceful distribution of informational literature. Can’t enjoin speech against a person JUST because it's about that person.

Answer 3

HELD: gov may restrain vulgarity (and nudity) (1) on broadcast radio and TV (2) when the speech is offensive because of its form and not the because of the opinion or viewpoints it expresses Broadcast receives least amount of 1A protection bc it involves content streamed into homes and violates individuals right to be left alone --this rational does not extend to internet (Reno)

Answer 4

D drafted into war and at protest against war, threatened that if military forced a gun into his hands the first person he would shoot is the president. HELD: 1A does not protect threats but political hyperbole OK. Take into consideration the context (conditional nature of statement, laughter of listeners)

Answer 5

NAACP organized boycott of white businesses and persuaded people to join through social pressures (like publishing the names of people who shopped at white businesses) HELD: threat of social ostracism is protected under 1A, doesn't lose protection just bc it embarrass or coerces others into action

Answer 6

statute makes it illegal to burn a cross if done with intent to intimidate someone, but states that burning of cross is prima facie evidence of intent to intimidate HELD: 1A violation b/c doesn't distinguish btw cross burning performed to intimidate and other types, statute is too broad

Answer 7

HELD: attorney's advertising as 'certified specialist' by bona fide org protected by 1A, state can't ban bc its not actually or inherently misleading. Consumers would reasonably understand that certifications are awarded by private parties [not state]

Answer 8

ILL statute prohibited picketing in front of resident unless it involved a labor dispute HELD: SS failed, overinclusive (restricts all non-labor picketing regardless of the effect on residential privacy) and underinclusive (labor picketing as likely to be detrimental to residential privacy as other types)

Answer 9

Statute prohibits candidates running for judicial election from announcing their views on disputed legal or political issues HELD: SS failed state interest in preserving impartiality of state judiciary, but law not narrowly tailored b/c it just makes candidates silent about their personal political views

Answer 10

BJF reported rape and robbery to sheriff, official report with her name prepared and put in press room where it was seen by FL star and published w her name. FL statue banned publishing of rape victims name. HELD: fails SS too much chilling effect on media when they can't trust material given to them by gov to publish, overinclusive b/c applies where victim is already known in community, underinclusive b/c does not consider this info being disseminated in other ways

Answer 11

CA law prohibits sale/rental of violent video games to minors HELD: fails SS no evidence of causation btw games and violence, underinclusive bc parent can still purchase and give to child, overinclusive bc abridges parent's rights who think violent games are harmless

Answer 12

fed law prohibited giving of 'material support or resources' to certain foreign organizations designated as terrorists HELD: SS passed gov interest in combatting terrorism is compelling, not overinc b/c even training on ‘how to use humanitarian and international law to peacefully resolve disputes’ and ‘how to petition the UN’ can help terrorist practices by freeing up resources, lending legitimacy, helping terrorists buy time and get financial aid

Answer 13

FL bar prohibited elected judges and judicial candidates from personally soliciting funds for their campaigns, but allowed them to write thank you notes to donors & allowed their campaign committee to solicit donations HELD: SS passed interest in ensuring public trust in integrity of state's judiciary, narrowly tailored bc focused on personal solicitation but allows thank you notes & committee solicitation. Not overly restrictive bc judicial candidates can still do ads, direct outreach, etc.

Answer 14

leafletting ban in public spaces and ban on hand-to-hand distribution to private residences HELD: unconstitutional can prevent littering through less restrictive means like punishing litterers, leafletting is an important medium for many speakers especially underfunded ones. No ample alternative channels.

Answer 15

ordinance made it unlawful to engage in picketing before or about the residence or dwelling HELD: constitutional serves gov interest in protecting residential privacy, narrowly tailored b/c only bans picketers towards individuals in their homes, leaves open ample alternative channels (march through neighborhoods)

Answer 16

P attempted to put signs in her yard advocating political causes but were removed, city prohibited such signs HELD: unconstitutional city allowed some signs but not others shows their interest in banning signs not that substantial; no ample alternative channels for P [residential signs are cheap, convenient, used to reach neighbors]

Answer 17

Law made it illegal for anyone to stand within 35 ft of abortion clinic except for employees and those entering HELD: unconstitutional law imposes substantial burden on P (evidenced by her declining success in convincing women to not have abortions) that is more substantial than necessary to achieve safe sidewalks. Less restrictive alternatives avail o Struck down the statute finding that “substantial portion of the burden on the speech does not serve to advance the gov’t goals.” The government hasn’t shown that less restrictive laws would have been ineffective to serve the same interests of ensuring public safety and preventing harassment, intimidation and obstruction. “Easy enforcement” is not an argument - the prime objective of FA is not efficiency. o Finding the law overbroad as to interest of prevention of congestion where govt. only presented evidence of congestion near one clinic on Saturdays (cannot prevent prophylactically)

Answer 18

NC law banned convicted sex offenders from vast range of social media sites HELD: unconstitutional law too broad, websites are principal sources of news, employment opps, exchanging ideas, etc.

Answer 19

UMTSA required every male over 18 to register with draft, Ds burned their draft cards and were convicted under UMTSA which made it a crime for a person to forge, alter, knowingly destroy, knowingly mutilate or in any manner change a registration certificate. HELD: UMTSA constitutional substantial interest in classifying individuals for military service and in establishing a registration system • Destroying certifications would defeat purpose by making it difficult to verify registration, complicating communication between registrants and their local boards, eliminating reminders that registrants must update their local boards with status changes, increasing the difficulty of detecting abuses in the use of certifications • Gov interest and the law implicate only the noncommunicative aspect of Ds conduct

Answer 20

National park regulation prohibited camping and sleeping overnight in areas of certain national parks in order to promote conservation of park property. Community for creative nonviolence wanted to conduct a demonstration in parks to illustrate plight of the homeless, and hoped to build tents and sleep in them over night but were prohibited from doing so. HELD: constitutional - Gov interest: conservation and maintaining parks - Narrowly tailored: sleeping and camping can degrade condition of parks - Ample alternative avenues for them to communicate their message of the difficulties of homeless life

Answer 21

Prop 198 changed primary system so that each voter could vote for any candidate in the primary regardless of party affiliation HELD: fails SS Substantial burden: party’s nominee may be determined by adherents of an opposing party, plus nominee may be pushed to take somewhat different positions to appeal to nonmembers * Gov interests: promoting fairness, giving voters greater choice, increasing voter turnout, protecting privacy -> all are not compelling * Not narrowly tailored: state could protect each of their interests by establishing a nonpartisan blanket primary

Answer 22

social organization that permitted only young males to become regular members was convicted under MHRA which prohibited discrimination on the basis of sex in a public accommodation HELD: passes SS Compelling interest in preventing sex discrimination justifies the impact of MHRA on male members associational freedoms

Answer 23

Ps adult membership and status as scoutmaster w/ Boy Scouts revoked when they found out he was homosexual and a gay rights activist – P alleges they violated NJ public accommodations statute. HELD: not unconstitutional state may not compel organization to accept members if it would significant depart from the organizations expressive message (here: their message is to be ‘morally straight’ and ‘clean’) -Substantial burden: interferes w/ groups message that homosexuality is not morally proper

Answer 24

HELD: requiring school to allow access by recruiters to university property doesn’t substantially burden expressive association --Expressive Association: Recruiters are not part of the law school and only come onto campus for the limited purpose of trying to hire students – not to become members of the schools expressive association Speech Compulsion: regulates merely conduct, statute does not compel speech. Does not dictate content of required speech. Unlikely military's message will be attributed to law schools. to the extent there's any speech compulsion it's incidental to regulation of conduct.

Answer 25

max of 2 heterosexual players permitted in Gay softball roster HELD: forcing them to include unlimited # would significantly affect its expressive activity (emphasizing the participation of gay community and promoting athletic competition and physical health in support of the gay lifestyle) o It would be difficult for NAGAAA to effectively emphasize a vision of the gay lifestyle rooted in athleticism, competition and sportsmanship if it were prohibited from maintaining a gay identity

Answer 26

P candidate for house, Miami Herald news printed editorials criticizing his candidacy. P demanded they publish his response under FL statute granting political candidates criticized by a newspaper the right to have their responses published. HELD: content-based & violation of 1A, will cost newspaper in printing/resources as well as lost of space for what they want to publish. chilling effect and choice of what materials to print is an exercise of editorial control protected by 1A

Answer 27

NC statute required pro fund-raisers to disclose to prospective donors the % of funds donated to charity HELD: fails SS content-based regulation

Answer 28

PGE had periodical newspaper with its monthly bills to customers, commission regulation required PGE to allocate space in customers monthly bills for TURNS newsletter HELD: fails SS compelling interest in helping TURN achieve more consumer-friendly regulation underinclusive b/c forcing PGE to carry their message does not directly help. Interest in promoting speech & making more viewpoints available underinclusive because just replaces PGE with TURN newsletter (grants access to only one other speaker).

Answer 29

act requires cable TV systems to devote portion of their channels to the transmission of local broadcast TV HELD: act is content-neutral -> apply IS -> upheld b/c it does not depend upon content of the cable operators & burden of reduction in # of channels extends to all programmers. It does not force cable operators to alter their own message or chill speech, + cable operators can block a critical pathway of communication

Answer 30

South Boston Allied War veterans did not want to allow Irish Gay to march in their parade HELD: not violation of 1A; forcing them to allow Irish to march would alter the expressive content of their parade since every participating unit affects the message conveyed by private organizers [coherent speech?]

Answer 31

D took ads featuring illustrations of IUD, announced his firm represented women on contingency for IUD injury cases. Ads gave telephone # people could call for 'free info.' ODC investigated ads for violation of a rule against: the use of illustrations in legal advertising, a rule against offering legal advice in an ad, and a rule requiring any contingent-fee representation offer contained a disclaimer saying clients might be liable for costs incurred. HELD: violation of 1A interest [regulating conduct that would overburden legal system] not enough to justify inhibiting ones ability to find out about legal rights print ads does not make it more difficult to distinguish deceptive ads from truth

Answer 32

CA reproductive freedom act required o (1) each licensed clinic to disclose to pregnant patients that the state provided free or subsidized abortions  Notice is about abortion – which is not a noncontroversial subject, and notice is required even if a service will not be performed  Fails IS o (2) each unlicensed clinic to disclose on any advertising that the clinic was not licensed by the state (required a prewritten 29word statement on all ads)  Even if exception 1 applies, req. is unduly burdensome b/c it requires the 29 word statement on every ad, regardless of what it says, it could drown out the ad  Unjustified: state offers justification of ensuring women are aware the clinic is unlicensed, but there is no evidence they were unaware of that fact o Rule: professional speech is subject to same category of SS as content-based speech, but there are two exceptions: 1) required disclosure of factual and noncontroversial information about services a business will perform; 2) regulations of professional conduct that may incidentally burden speech

Answer 33

resolution ordered salute to Am Flag during activity programs in all public schools, refusal resulted in expulsion HELD: violation of 1A Involuntary affirmation of allegiance could likely not be required of students unless the lack of affirmation constitutes a clear and present danger of action of a kind the state is empowered to prevent and punish (which is not present here)

Answer 34

law required all DL plates to display state motto "live free or die". Ds were Jehovah's Witness who considered the motto against their beliefs. HELD: violation of 1A compels Ps to use their private property as mobile billboard for state's ideological message state's interest in identifying cars not narrowly tailored [NH plates already have distinguishing sequences]

Answer 35

D operates large privately owned shopping center & prohibits people from engaging in any publicly expressive activity. Students set up table to pamphlet. HELD: cannot exclude students, they have 1A right to distribute pamphlets no gov compulsion of speech -> no SS. It did not impair economic value of pruneyard's business [not a coherent speech product?]

Answer 36

Myers was assistant DA who was told she’d be transferred to a different area, she opposed this transfer and then conducted a survey of her fellow employees views on transfer policy, office morale, level of confidence in supervisors, etc. and was terminated. HELD: violation of 1A most of her questions were not one of public concern, just concerned her disagreements w her personal transfer --failed first element [public] don't need to go through rest of test Pickering Balance: gov interest in effective working relationships NOT outweighed by Ps interest in speaking

Answer 37

was clerical employee at office of the constable (a law enforcement agency) who told her coworker she was not surprised at Reagan’s assassination attempt considering his advocacy of reducing welfare, and she hoped if there was another attempt it would succeed. She was reported & fired. HELD: violation of 1A was commenting on a matter of public concern, no evidence that her statement interfered with operations of the office of the constable (it was said in a private area and only 1 other person heard it) Pickering balance: Ps interest in expressing speech > states interest in discharging her

Answer 38

Alabama sought to compel NAACP to reveal to state attorney general the names and addys of all the NAACP's Alabama members and agents HELD: state has no compelling interest in obtaining names, compelled disclosure likely to adversely affect NAACP's membership by dissuading others from joining or inducing members to withdraw

Answer 39

Act required every teacher, as condition of employment in public school, to file affidavit listing every org they belonged to in last 5y HELD: violate 1A compelling interest in investigation competence of teachers but not narrowly tailored (broad disclosure of all orgs may have no bearing on teacher's competence) and inevitable pressure teachers will feel to limit their associations as to not jeopardize their employment

Answer 40

3 reporters subp but refused to answer q's about their source HELD: 1A does not protect reporters from not testifying about names of their sources the risk that sources will stop cooperating with news sources if reporters req required to testify is dubious. Any info in proceedings likely to remain confidential.

Answer 41

UPenn refused to give tenure to Prof, she alleged sexual harassment & that she'd been denied bc she was chinese female. EEOC issued subp to uni for files regarding prof's tenure & her male candidate's peer review for tenure. HELD: univ must disclose EEOC subp is content-neutral and does not create unreasonable burden on speech U's reasoning that it will chill speech too attenuated. Confidentiality not so critical to peer review process.

Answer 42

Students protest Vietnam war by wearing black armbands to school & were suspended HELD: violation of 1A cannot ban Ps for silent, passive expression of opinion unaccompanied by any disorder. Mere fear of the risk of disorder not enough to abridge rights. Schools official did not impose equal restrictions - some students were permitted to wear other political symbols.

Answer 43

HS P suspended after displaying banner "Bong Hits 4 Jesus." HELD: no 1A violation school has compelling interest in preventing illegal drug use & can restrict student speech when it can reasonably be seen as promoting illegal drug use [at least when it doesn't convey any sort of political or religious mssg]

Answer 44

P suspended after giving lewd speech filled with sexual innuendos in front of 600 students at a school assembly for student gov positions HELD: no 1A violation appropriate for school to prohibit use of vulgar and offensive terms in public discourse

Answer 45

HS student failed to make varsity cheer, on a weekend away from school posted a snap captioned "Fuck school fuck softball fuck cheer fuck everything" - visible to about 250, coach suspended her from JV team HELD: violation of 1A she spoke in circumstances where her parents have responsibility, not school. Her speech did not cause substantial disruption or harm rights of others.

Answer 46

students at college denied forming local chapter for SDS, org viewed as having philosophy for violence & at the time there was widespread civil disobedience on campuses with SDS as driving force HELD: 1A violation cannot restrict org's access to campus bulletin boards, meeting rooms, etc based on viewpoint relationship btw local SDS and national org not sufficient to deny privileges, local group asserted independence and said they only shared some beliefs. Fear of disruption is only speculative

Answer 47

students expelled for distributing on campus a publication containing “indecent speech” Held: violates 1A, mere dissemination of ideas on a uni campus cannot be forbid b/c they are offensive/indecent

Answer 48

performance artists applied for NEA grants and were denied, NFAHA required chairperson of NEA to ensure artistic excellence & merit are criteria by which apps are judged HELD: not viewpoint discrim, no violation of 1A funding is limited so natural consequence is making value judgements on content of art gov can selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alt program which seeks to address public interest in another way

Answer 49

performance artists applied for NEA grants and were denied, NFAHA required chairperson of NEA to ensure artistic excellence & merit are criteria by which apps are judged HELD: not viewpoint discrim, no violation of 1A funding is limited so natural consequence is making value judgements on content of art gov can selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alt program which seeks to address public interest in another way quality based funding program -> ok if not "invidious viewpoint discrimation"

Answer 50

UC Hastings policy that in exchange for receiving benefits of being a school-recognized org, they must allow any student to participate HELD: policy as const. gov as limited public forum -> OK if viewpoint neutral & reasonable this policy is viewpoint neutral & furthers UC's interest in ensuring opportunities afforded by RSOs are available to all students and encourages tolerance and cooperation among students

Answer 51

Title X of Public Health Services Act issued grants to nonprofit healthcare orgs w/ condition that the projects not advocate for abortion as a method of family planning. HELD: upheld regulation as const. this is gov speech & they can advocate for certain programs to address an issue of public concern without advocating for alternative types of ways of addressing the same problem distinguish btw Title X grantee & Title X fund: grantee can continue to engage in abortion advocacy, they must conduct those activities through programs separate from the project that receives Title X funds

Answer 52

DMV permitted orgs to design their own specialty license plates, state of TX took ownership of all approved designs, DMV rejected sons of confederate designed plate b/c offensive HELD: gov speech (bc TX retained ultimate control), viewpoint discrimination OK

Answer 53

Tam was asian singer seeking to register the name of his band "the slants" as trademark, examining attorney refused on grounds of Lanham Act which prohibited marks that may disparage persons ``` HELD: trademarks NOT gov speech so viewpoint discrim not ok. -gov doesn't give $ or equivalent to trademark owners -not viewpoint neutral b/c giving offense is a viewpoint -the fact that speech is commercial does not justify regulation gov interest (preventing underrepresented groups from being demeaned) insufficient to justify restriction on private speech ```

Answer 54

Brunetti owns clothing brand "fuct" examining attorney refused to register under Lanham Act b/c it comprised of immoral or scandalous matter HELD: not gov speech so this is viewpoint-based discrimination in violation of 1A

Answer 55

Cinn cop sued for libel over post accusing him of being racist. Judge issued prelim inj to not publicize through media the cops identifying information. prof brief: citizens criticizing a cop must be entitled to the same rights (immediate appellate review of an inj)

Answer 56

MN statute provided for the abatement as a public nuisance of a 'malicious, scandalous, and defamatory newspaper." Publishers could be given temp or perm inj HELD: state law violates 1A places publisher under effective censorship once it is deemed malicious, scandalous or defamatory bc publisher cannot resume publication without completely changing the content of the media

Answer 57

ordinance prohibited newspapers from publishing 'help wanted' ads in sex-designated columns, except where entity placing the ad was legally able to make hiring decisions based on sex HELD: commercial speech unprotected by 1A, gov can regulate media's chosen location of commercial ads

Answer 58

NY Times and WA Post published excerpts from a top secret study of the.Vietnam War conducted by US Dept Defense. US gov brought suit seeking injunctions precluding publication of these excerpts on the grounds of national security. HELD: unconst. gov cannot enjoy them from publishing bc they did not meet their heavy burden of showing justification for restraint

Answer 59

Chicago passed ordinance requiring all films to be submitted for examination prior to being exhibited in public. Times Film refused to submit for examination. Held: 1A prohibition of prior restraint does not require all films to be exhibited at least once before being restrained. -case law has established that the prohibition of prior restraint is not absolute.

Answer 60

state enacted law requiring approval of state bd of censors prior to the public screening of any motion pic HELD: unconst film censorship law requiring censor approval prior to public screening unconst when it doesn't afford procedural protections to ensure a timely and impartial review of censorship decisions -must be allowed timely judicial review of censorship determination -censor has burden of justifying censorship - the go/no-go decision from the censorship board was based on content, and the entire purpose of the screening program was to block material of a particular content. - It is thus “justified with reference to the content of the speech”and is treated as facially content based

Answer 61

NSPA applied for permit to demonstrate in village in Skokie, who required them to obtain 350k in liability insurance before being issued a permit. Skokie applied for inj to prevent them from demonstrating. HELD: court imposing an inj infringing 1A must allow either immediate appellate review or stay pending appeal

Answer 62

RI created commission to screen published materials for offensive or obscene images to enforce a law designed to protect minors from exposure to obscene and offensive materials. HELD: law unconst, state must provide adequate procedural safeguards in determining obscenity but it did not afford protection to publishers, didn't provide any way for publishers to appeal decision and didn't take into acct the effect this law would have on censoring adults from access

Answer 63

Stuart threatened to blow up City buildings, said he wanted to shoot council members, etc. City got an inj prohibiting him from going to residence or private workplace of council members or going to city hall except during public meeting, and also limited his physical mvmts at meetings. HELD: inj permissible as it did not preclude his participation nor restrict content of his speech, he could still engage in discussions, attend meetings, express his views. Limiting his movement was reasonable precaution.

Answer 64

Forsyth passed ordinance that imposed fee up to 1k to obtain permits for protest on public property [for costs associate with police protection]. Nationalist Mvmt sought to demonstrate & was charged $100. HELD: law imposing variable, non-nominal fee on public violates 1A ordinance ties amount to content of speech -> content-based regulation that unduly burdens

Answer 65

Ordinance requires person to obtain permit in order to conduct a public assembly, parade, any event with 50+. App processed in order and park had 14days to grant or deny. HELD: as content-neutral restriction on the use of public forum scheme contains narrowly drawn, reasonable and definite standards. it does not authorize licensor to pass judgment on content of speech (like Freedman) b/c none of the grounds for denying a permit has anything to do with what a speaker might say

Answer 66

RAV burned wooden cross on a black family’s lawn; convicted under ordinance that prohibited the placement of hateful symbols, including burning crosses, “which one knows or has reasonable grounds to know arouse... anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender” Held: violates 1A due to impermissible content discrimination, statute allows fighting words as long as they do not address one of the disfavored topics

CASES Flashcards

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