First Amendment Rights
Professor Harpaz
Fall, 2012

Questions to be answered in advance of class: These questions are organized by assignment number and new assignments will be added as the semester progresses.

Assignment 1
1. Schenck was found guilty of violating the Espionage Act by circulating a document. What was the content of the document?
2. Who was the document circulated to?
3. In Schenck, what test does the government have to satisfy to justify the punishment of Schenck's speech?
4. Was the content of the newspaper articles in Frohwerk similar to the content of the document in Schenck?
5. In Debs, did Debs urge his audience to obstruct the war effort? If not, why did the  Supreme Court uphold his conviction?

Assignment 2
1. After a series of opinions written by Justice Holmes upholding convictions under the Espionage Act, Justice Holmes dissented in Abrahms. Was the evidence of an effort to obstruct the war effort less convincing in Abrams?
2. What limits on free speech does Holmes recognize in his dissent?
3. The approach of Judge Learned Hand is often contrasted with the approach of Justice Holmes. If Holmes is focused extensively on the immediate danger created by the speech in permitting a conviction for engaging in political speech, what is Hand focused on?
4. All the cases through Masses have involved a federal statute, the Espionage Act. How do the statutes in Gitlow and Whitney differ from the Espionage Act? What kind of speech do they punish?
5. Does the Supreme Court apply the clear and present danger test in Gitlow or Whitney?

Assignment 3
1. A federal statute, the Smith Act, is the basis for the convictions in Dennis. Have you seen any statute similar to the Smith Act in any of the previous cases?
2. Why does Chief Justice Vinson believe that the Communist Party presents a serious danger to the security of the United States even though it is not wartime?
3. What test does the Chief Justice apply to uphold the convictions?
4. What test does the Court apply in Brandenberg v. Ohio to decide whether Brandenburg's conviction violates the First Amendment?
5. Why does the Court conclude that Brandenberg's conviction must be overturned?

Assignment 4
1. In Cantwell v. Connecticut, Cantwell was convicted of the common law offense of inciting a breach of the peace. What evidence did the state have that he was guilty of  a breach of the peace?
2. In Chaplinsky, what categories of speech are identified as receiving no First Amendment and why?
3. How are fighting words defined?
4. In Cohen v. California, how did the state justify punishing Cohen for wearing his jacket?
5. In Feiner v. New York, did the Supreme Court uphold Feiner's conviction based on the content of his speech, the reaction to his speech, or both?

Assignment 5
1. In Beauharnais, the majority relied on Chaplinsky. Why was Chaplinsky a useful precedent?
2. In New York Times v. Sullivan, why does the Court conclude that the First Amendment protects false statements?
3. After New York Times v. Sullivan, if a public official is the object of a defamatory falsehood relating to his official conduct, what does the public official have to prove to recover damages in a libel action?
4. How do you know if someone is a public figure for purposes of the application of the New York Times standard?
5. Why does the Supreme Court distinguish between defamation directed at public figures and defamation directed at private figures?

Assignment 6
1. In Hustler Magazine v. Falwell, why wasn't the Campari ad defamatory?
2. Falwell argued that the the First Amendment did not prevent the ad from resulting in liability for intentional infliction of emotional distress because it was outrageous. Why did the Supreme Court reject that argument?
3. The Supreme Court has decided a number of cases in which First Amendment defenses are raised to claims for invasion of privacy. Reviewing the invasion of privacy cases in the casebook, is the First Amendment defense always successful?
4. In Snyder v. Phelps, the Court relies on the distinction between public concern and private concern speech that was central to Dun & Bradstreet, Inc. v. Greenmoss Builders (p. 77). What is the difference between these types of speech and why is the distinction so critical to the analysis in Snyder v. Phelps?
5. What arguments does Mr. Snyder make to try and convince the Court that the speech of the members of the Westboro Baptish Church should be treated as private concern speech?

Assignment 7
1. In the Matter of the Welfare of R.A.V., R.A.V. argues that the St. Paul ordinance is overbroad and violates the First Amendment because it punishes a substantial amount of constitutionally protected expressive conduct. How does the Minnesota Supreme Court get around this argument?
2. What is R.A.V.'s main argument in the excerpt from his Supreme Court brief you were asked to read?
3. If the Minnesota Supreme Court had not narrowly interpreted the St. Paul ordinance, what rationale would the U.S. Supreme Court have relied on in striking down the St. Paul ordinance?
4. What constitutional defect does Justice Scalia rely on to strike down the ordinance even as narrowly construed by the Minnesota Supreme Court?
5. How does the Court in Virginia v. Black define a true threat?

Assignment 8
1. In Roth v. United States, how does the Court define obscenity?
2. Why does the Court decide that obscenity is not protected speech?
3. Is what ways is the obscenity test adopted in Miller v. California more speech protective than the way obscenity was defined in Roth?
4. Ferber recognizes child pornography as a new category of unprotected speech. Why is child pornography denied First Amendment protection?
5. Is child pornograhy a broader category than obscenity, a narrower category than obscenity, or both?

Assignment 9
1. In United States v. Stevens, the government argues that the Court should recognize depictions of animal cruelty as a new category of unprotected speech and the Court rejects this argument. After Stevens, is it likely the Court will recognize any new categories of unprotected speech?
2. In Brown v. Entertainment Merchants Association, the government tries to argue that violent video games should be unprotected speech as applied to minors. Why does the Court reject this argument?
3. In Brown, the Court applies the strict scrutiny test. Why does the California law fail that test?
4. In United States v. Alvarez, the Court reviews all of the categories of unprotected speech. Is the list of such categories the same as it was in Chaplinsky?
5. Why does the Court reject the argument that all false factual statements should be denied First Amendment protection?

Assignment 10
1. In Erznoznik v. Jacksonville, the Court rejects the arguments that the ordinance can be justified based on protection of privacy, the need to protect minors or traffic safety. Why are these three justifications inadequate?
2. In Young v. American Mini Threatres, Inc., Justice Stevens and Justice Powell each write opinions upholding the zoning ordinance, but they rely on different rationales. How do the two opinions differ?
3. In Renton v. Playtime Theatres, Inc., even though the zoning ordinance was in some sense content-based, the Court managed to avoid that characterization. How did it avoid this conclusion?
4. In FCC v. Pacifica, what kind of speech falls within the definition of indecency?
5. After FCC v. Pacifica, would a 24 hour ban on broadcast indecency be constitutional?

Assignment 11
1. Why is the regulatory technique in Rowan v. U.S. Post Office Dep't more acceptable under the First Amendment than the techniques employed in Pacifica and Sable Communications, Inc. v. FCC?
2. In Pacifica, the Court was convinced by the need to protect a captive audience, but that argument fails to convince the Court in cases like Consolidated Edison and Bolger. Why?
3. In United States v. Playboy Entertainment Group, what standard of review does the Court apply?
4. Why does the Court provide more protection for internet communication than broadcast communication?
5. Why is filtering software on the receiving end for internet content an adequate less restrictive alternative to restrictions on internet speech imposed on the source of that speech?

Assignment 12
1. In Virginia Pharmacy Board v. Virginia Citizen's Council, the law was challenged by prescription drug consumers and not by advertisers. Why does the Court conclude that the consumers have standing to challenge the law on First Amendment grounds when they are not exercising their right to speak?
2. In Virginia Pharmacy Board, the Court identifies a number of ways in which commercial speech is different from other kinds of protected speech (see footnote 1 on pages 167-68).  What are those differences?
3. In Bolger v. Youngs Drug Products Corp., the Court must decide whether the speech at issue is or is not commercial speech. In the additional excerpt from the case, what criteria does it use to make this determination?
4. The Court treats differently "disclosure requirements and outright prohibitions" on commercial speech. Why does it draw this distinction?
5. What test does the Court apply in Central Hudson Gas v. Public Service Comm'n?

Assignment 13
1. As the Court describes it in Board of Trustees, State University of New York v. Fox, how much of a fit between ends and means does the Central Hudson test require?
2. Even though commercial speech gets less than full First Amendment protection, the Court does not always allow the government to give commercial speech less protection than fully protected speech. Why did the Court refuse to allow this kind of discrimination in City of Cincinnati v. Discovery Network, Inc.?
3. In Posadas de Puerto Rico Assoc. v. Tourism Company of Puerto Rico, Justice Rehnquist relied on a "the greater includes the lesser" rationale. Can you think of a reason why the greater shouldn't include the lesser when the lesser is a restriction on speech?
4. In 44 Liquormart, Inc. v. Rhode Island, how do the approaches taken by Justice Stevens and Justice O'Connor differ?
5. In Greater New Orleans Broadcasting Association v. United States, why did the federal law fail the Central Hudson test?

Assignment 14
1. In Police Dept. v. Mosley, what justification, if any, did the City of Chicago offer for treating differently peaceful labor picketing and peaceful nonlabor picketing?
2. In general, content-based regulations are scrutinized using the strict scrutiny standard. Can you identify any situations where a content-based regulation is subjected to intermediate rather than strict scrutiny?
3. In Simon & Schuster, Inc. v. Members of New York state Crime Victims Board, why did the Court conclude that the law was not narrowly tailored?
4. In Burson v. Freeman, the law survived strict scrutiny. Why did a ban on election-related speech within 100 feet from the entrance to a polling place during an election satisfy the least restrictive alternative required under that test?
5. What test does the Court apply in United States v. O’Brien?

Assignment 15
1. In Spence v. Washington, how does the Court determine that Spence’s conduct was speech within the meaning of the First Amendment?
2. In Texas v. Johnson, does the Court use the O’Brien test to conclude that the Texas law is unconstitutional?
3. In United States v. O’Brien the Court concludes that the government’s asserted interest is unrelated to the suppression of free expression. In Texas v. Johnson, by contrast, why does the Court conclude that the government’s asserted interest in preserving the flag as a symbol of nationhood and national unity is related to the suppression of free expression?
4. Under the analysis in the two dissenting opinions in Texas v. Johnson, is the American flag a unique symbol of the country or could the government prohibit the desecration of other patriotic symbols?
5. In Barnes v. Glen Theatre, Inc., Chief Justice Rehnquist concludes that the Indiana law is justified to protect societal order and morality whereas Justice Souter justifies the law based on preventing secondary effects. Does this difference have any practical consequences for future cases?

Assignment 16
1. If a state statute is overbroad, what can a state court do to "cure" the overbreadth?
2. Since Broadrick v. Oklahoma, overbreadth must be substantial to justify striking down a statute on its face. What standard does the Court use to determine if a law is substantially overbroad?
3. In New York v. Ferber, the Court identified several examples of arguably protected speech that fell within the reach of the New York child pornography statute, specifically pictures in medical textbooks and pictorials in National Geographic. Why don't these examples make the New York statute overbroad?
4. In United States v. Stevens, what standard does the Court say is used to determine if a law is overbroad and how does the government try and defend the law against an overbreadth attack?
5. In Coates v. Cincinnati, a law was struck down as vague under the First Amendment which used the phrase "in a manner annoying to persons passing by."  What makes this phrase vague?

Assignment 17
1. According to the Court in Freedman v. Maryland, for a motion picture licensing scheme to be constitutional, the government must build certain procedural protections into the scheme. What are those protections?
2. In Thomas v. Chicago Park District, why did the Court conclude that the Freedman v. Maryland procedural requirements did not apply?
3. In  Near v. Minnesota, the Court identifies some exceptional cases where the government can enjoin the publication of speech. What are they?
4. Why does the Court invalidate prior restraint schemes, such as in Lovell v. Griffin and Hague v. CIO, that give the government unbridled discretion to grant or deny a permit to engage in expression?
5. Why did the Court uphold the permit law in Cox v. New Hampshire even though the law did not limit the discretion of local authorities to grant or deny a permit to hold a parade or procession?

Assignment 18
1. Why does the Court strike down the residential sign ordinance in City of Ladue v. Gilleo?
2. The Court strikes down the permit requirement in Watchtower Bible & Tract Society v. Stratton. Why aren't the Village's stated reasons for the requirement sufficient to justify the ordinance?
3. What standard does the Court use in Heffron v. ISKCON to evaluate the constitutionality of the Minnesota State Fair's booth rule?
4. In Members of City Council v. Taxpayers for Vincent, Los Angeles bans the posting of signs on public property. Why does the Court conclude that the available alternative modes of communication are adequate?
5. Why does the Court find the reliance on the public forum doctrine misplaced in Members of City Council v. Taxpayers for Vincent?

Assignment 19
1. In Clark v. Community for Creative Non-Violence, does the Court decide that "overnight sleeping in connection with the demonstration is expressive conduct protected to some extent by the First Amendment?"
2. In Clark v. Community for Creative Non-Violence, the Court applies both the time, place, and manner test and the O'Brien test, stating that there "is little, if any, differen[ce]" between the two tests. In what ways are the two tests the same and in what ways are they different?
3. In Ward v. Rock Against Racism, the Court interprets the requirement that a time, place, or manner regulation be "narrowly tailored." What is the difference between a narrowly tailored means and a least restrictive means?
4. In Frisby v. Schultz, what "ample alternative channels of communication" were available?
5. In Madsen v. Women's Health Center, Inc., what standard of review does the Court apply?

Assignment 20
1. In Adderly v. Flordia, Justice Black equates the state with a private owner of property, but the dissent disagrees with this analogy. What limits would the dissent place on  the ability to use public places as locations for expression?
2. In Lehman v. Shaker Heights, why does the Court reject the argument that the car cards are a public forum? Why do the dissenters disagree with this conclusion?
3. In Southeastern Promotions, LTD. v. Conrad, why does the Court conclude that the municipal theaters in Chattanooga were public forums?
4. In Greer v. Spock, the majority views the critical question as whether the army base was a public forum while the Justice Brennan's dissent views the critical question as whether the speech is "bascally compatible with the activities otherwise occuring at the locale." Why does Justice Brennan reject relying on the public forum approach?
5. In Perry Education Assn. v. Perry Local Educators' Assn., the Court divides public property into 3 categories: traditional public forums, designated public forums, and nonpublic forums. To regulate speech in each of these 3 public forum categories, what standards does the government have to satisfy?

Assignment 21
1. In Cornelius v. NAACP Legal Defense and Ed. Fund, what criteria does the Court use to determine if the government has created a non-traditional public forum?
2. In Cornelius and United States v. Kokinda, what role does the government grant of selective access to some speakers play in deciding whether the government has created a non-traditional public forum?
3. In ISKCON v. Lee and Lee v. ISKCON, 5 members of the Court found airport terminals to be nonpublic forums. By contrast, Justice Kennedy, joined by 3 other members of the Court, urged the Court to adopt a different method of identifying whether government property qualified as a public forum. What three criteria would he apply to decide if a public forum exists?
4. In Arkansas Educational Television Comm'n v. Forbes, Justice Kennedy, writing for the Court, states that "First Amendment obligations might not apply at all to most public televison programming." What does he mean by this statement and how can the statement be squared with the public forum doctrine which imposes some First Amendment obligations on the government even if the property at issue is a nonpublic forum?
5. In United States v. American Library Association, Chief Justice Rehnquist says that "[public] forum principles [are] out of place in the context of this case." Why does he reach this conclusion and what is the consequence of this conclusion?

Assignment 22
1. The Supreme Court concludes that the exclusion of all religous speech from government property when other speech is allowed is a viewpoint-based exclusion rather than a content-based exclusion. How does Justice White reach this conclusion in Lamb's Chapel v. Center Moriches Union Free School Dist.?
2. In Pleasant Grove City v. Summum, why does the Court conclude that a privately designed and financed monument is government speech?
3. In Bethel School Dist. No. 403 v. Fraser, how does the Court distinguish the situation before it from Tinker?
4. In Hazelwood School Dist. v. Kuhlmeier, what standard does the Court apply to review the constitutionality of the school's decision to censor articles in the high school newspaper?
5. In Morse v. Frederick, the Court distinguishes both Tinker and Fraser. What is the Court's justification for upholding the school's decision to discipline Frederick for displaying the "Bong Hits 4 Jesus" banner?