conb 020711

1.Schneider v. Irvingtona.Facts of the Case:i.Municipal codes in four cities across the United States--Milwaukee, WI,Los Angeles, CA, Worchester, MA, and Irvington, NJ--banned hand-to-hand distribution of pamphlets in public places and private residences.Defendants convicted of violating these ordinances in each city arguedthat the ordinances were invalidated by the fundamental constitutionalprotection of free speech. The cities argued that the bans upheld theirmunicipal prerogative to keep streets clean and reduce littering. Uponappeal in each case, the Supreme Court consolidated the four.b.Question:i.Do the interests of cities in reducing littering justify encroachments uponthe First Amendment by banning the hand-to-hand distribution ofpamphlets in public places and private residences?c.Conclusion:i.No. Justice Owen J. Roberts delivered the opinion of a unanimous court.The First Amendment right to free speech was fundamental andsubstantially impaired by the bans against distributing pamphlets. Theburden on cities of upholding First Amendment free speech outweighedthe burdens of cleaning up litter caused by hand-to-hand pamphleteering.The cities could regulate dishonest pamphleteering and legislate in orderto keep streets freely accessible, but could not outlaw one citizen's attemptto impart information to another citizen through the means of passing outwritten documents.2.Cox v. new Hampshirea.Sixty-eight Jehovah's Witnesses had assembled at their church and divided into smallergroups that marched along sidewalks, displaying signs, and handing out leafletsadvertising a meeting. During the march, groups of 15 to 20 people marched in singlefile down sidewalks in the district, interfering with normal foot travel. In 1941, all 68Jehovah's Witnesses were convicted in a New Hampshire municipal court for violating astate statute which prohibited parades and processions on public streets without alicense. The defendants claimed that their First Amendment rights were violatedincluding their rights to freedom of worship and freedom of assembly.b.held that, although the government cannot regulate the contents of speech, it can placereasonable time, place, and manner restrictions on speech for the public safety. Also,that every parade or procession on public streets had to have a license and organizershad to pay a fee.c.Civil liberties, as guaranteed by the Constitution, imply the existence of anorganized society maintaining public order without which liberty itself would belost in the excesses of unrestrained abuses. The authority of a municipality toimpose regulations in order to assure the safety and convenience of the people inthe use of public highways has never been regarded as inconsistent with civilliberties but rather as one of the means of safeguarding the good order upon whichthey ultimately depend. The control of travel on the streets of cities is the mostfamiliar illustration of this recognition of social need. Where a restriction of theuse of highways in that relation is designed to promote the public convenience inthe interest of all, it cannot be disregarded by the attempted exercise of some civilright which in other circumstances would be entitled to protection. One would notbe justified in ignoring the familiar red traffic light because he thought it hisreligious duty to disobey the municipal command or sought by that means todirect public attention to an announcement of his opinions.[2]d.The Court also ruled that the government has an interest in knowing aboutparades ahead of time so that it can arrange proper security and policing -regardless of the political or religious content of the message of the parade. Thusthe government is justified in taking into account the time, manner, and place of aproposed parade in order to determine whether a license may be granted or denied.Further, the license fee did not amount to a fee or tax upon the views expressed ina parade; rather, it was an administrative fee that was needed to cover the extracosts borne by the community when parades occur. The Court thus rejected theclaim that the licensing fee infringed on anyone's right to assemble saying, "(n)ointerference with religious worship or the practice of religion in any proper senseis shown, but only the exercise of local control over the use of streets for paradesand processions."[3.Heffron v. intl soc. For Krishna consciousnessa. A Minnesota law allowed the state's Agriculture Society to prepare rules regulating thestate's fair. One of their decisions was to require organizations wishing to distribute or sellgoods to confine their activities to an assigned location. No vendors were permitted towalk the fairgrounds or engage in solicitation. The Krishna group contended that thisprevented them from engaging in Sankirtan, their religious ritual in which they go intopublic place to sell and distribute their religious literature and solicit donations.b.The Court had a 5-3-1 split over various features of the case. The limitations placed onsolicitors were permittedc.The regulations did not directly discriminate against he Krishnas because the space wasprovided on a first come first serve basis. The fairgrounds were deemed a 'limited publicforum' so the use of space could be monitored. Furthermore, the government had alegitimate interest in confining vendors to a designated space because of the need toavoid congestion with the large amounts of pedestrian traffic at the fair. The regulationsdid not prevent the Krishna's from performing their rituals outside the fairgrounds nor frommingling with the visitors or orally conveying their views. The First Amendment "does notguarantee the right to communicate one's views at all times and places or in any mannerthat may be desired." In this case, the time, place, and manner restrictions were notbased on the communicants' messages. The Krishna's asserted right to "communicate,distribute, and solicit on fairgrounds" is not superior to the similar rights of other (secular)organizations. Both are equally protected by the First Amendment.d.In this decision the Court does not elevate the rights of the ISOKC above the rights ofsecular organizations. Also, the limitations placed on the Krishna's do not prevent themfrom distributing their message, it merely restricts the places from which they may do so4.Ward v. rock against racism:a.Ward v. Rock Against Racism: Central Park bandshell. Requires groups to use theirsound technician. Rock wants to do a concert w/ their own sound technician. Held:Regulation is ok.b. a.Viewpoint discrimination argument: some music needs to be loud to enjoy it (e.g. punk)c. b.Ct: This is a content-neutral regulation. Thus, it requires substantial govt interest, butnarrow tailoring. [Ct starts at intermediate scrutiny, but has elements of strict scrutiny]d.(1)re: Narrow tailoring: Is a reasonable alternative available or a “less restrictivemeans” ? (differs from EPC definition of narrow tailoring as a least restrictive means)e.(a)Here, having a city technician is not the least restrictive means. It is a LESSRESTRICTIVE MEANS → midlevel scrutiny language.f.(b)Least restrictive would mean that rock could bring its own technician.5.Chicago police dept. v mosleya.Factsi.Ordinance permits peaceful labor picketing near schools but forbids allother peaceful picketing.b.Issuei.Can the city discriminate based on the subject matter of the speech?c.Holdingi.No, the city can’t discriminate based on subject matter unless there is asubstantial governmental interest and it is narrowly tailored. Theordinances discriminates in respect to the content of the expressionwithout good justification and thus denies EP.d.Reasoningi. A time, place, and manner regulation may not be based on the content orsubject matter of the speech unless the regulation is “necessary to serve acompelling state interest and narrowly drawn to achieve that end”.ii.Once a forum is opened up to assembly by some groups, the government may not prohibit others from assembling on the basis of what they want tosay un less it meets the above test.e.Judgmenti.Invalidated the ordinance.6.Intl society for Krishna consciousness, inc v. lee7.Lee v. international society for Krishna consciousness, inc8.Hill v. Colorado9.Rust v. Sullivana.Rosenberger v. university of Virginiai.Ronald W. Rosenberger, a University of Virginia student, asked theUniversity for $5,800 from a student activities fund to subsidize thepublishing costs of Wide Awake: A Christian Perspective at the Universityof Virginia. The University refused to provide funding for the publicationsolely because it "primarily promotes or manifests a particular belief in orabout a diety or an ultimate reality," as prohibited by University guidelines.ii.Did the University of Virginia violate the First Amendment rights of its Christian magazine staff by denying them the same funding resources thatit made available to secular student-run magazines?iii.Yes. The Court, in a 5-to-4 opinion, held that the University's denial of funding to Rosenberger, due to the content of his message, imposed afinancial burden on his speech and amounted to viewpoint discrimination.The Court noted that no matter how scarce University publication fundingmay be, if it chooses to promote speech at all, it must promote all forms ofit equally. Furtheremore, because it promoted past publications regardlessof their religious content, the Court found the University's publicationpolicy to be neutral toward religion and, therefore, not in violation of theestablishment clause. The Court concluded by stating that the Universitycould not stop all funding of religious speech while continuing to fund anatheistic perspective. The exclusion of several views is as offensive to freespeech as the exclusion of only one. The University must provide afinancial subsidy to a student religious publication on the same basis asother student publications.10.National endowment for the arts v. finleya.Congress enacted a 1990 law stating that "artistic excellence and artistic merit arethe criteria by which [grant] applications are judged, taking into considerationgeneral standards of decency and respect for the diverse beliefs and values of theAmerican public." On this basis, the National Endowment for the Arts (NEA)vetoed four grant applications (that had already passed peer review) citing"indecent" subject matter. The artists, known as the "NEA Four," sued for theirNEA grant amounts, arguing that the decency clause violated their First and FifthAmendment rights.b.The pertinent law "is facially valid, as it neither inherently interferes with FirstAmendment rights nor violates constitutional vagueness principles. . . . In thecontext of arts funding, in contrast to many other subsidies, the Government doesnot indiscriminately 'encourage a diversity of views from private speakers.' TheNEA's mandate is to make aesthetic judgments, and the inherently content-based'excellence' threshold for NEA support sets it apart from . . . comparably objectivedecisions on allocating public benefits, such as access to a school auditorium or amunicipal theater."11.Pierce v. society of sistersa.The Sisters of the Holy Names and Hill Military Academy separately sued WalterPierce, the governor of Oregon, along with Isaac H. Van Winkle, the stateattorney general, and Stanley Myers, district attorney of Multnomah County (ofwhich Portland is the county seat, and where both the Sisters and the Academywere headquartered). The two cases, heard and decided together, were slantedalong slightly different lines. The Sisters' case alleged that:b.the enactment conflicts with the right of parents to choose schools where theirchildren will receive appropriate mental and religious training, the right of thechild to influence the parents' choice of a school, the right of schools and teacherstherein to engage in a useful business or profession (268 U.S. 510, 532)c.The Sisters' case rested only secondarily on the assertion that their business wouldsuffer based on the law. That is, its primary allegation was that the State ofOregon was violating specific First Amendment rights (such as the right to freelypractice one's religion). Their case alleged only secondarily that the law infringedon Fourteenth Amendment rights regarding protection of property (namely, the school's contracts with the families).d.The Hill Military Academy, on the other hand, proposed this as their onlyallegation:e.Appellee Hill Military Academy .... owns considerable real and personal property,some useful only for school purposes. The business and incident good will are very valuable. In order to conduct its affairs, long time contracts must be made for supplies, equipment, teachers, and pupils. Appellants, law officers of the state and county, have publicly announced that the Act of November 7, 1922, is valid and have declared their intention to enforce it. By reason of the statute and threat of enforcement appellee's business is being destroyed and its propertydepreciated .... The Academy's bill states the foregoing facts and then alleges that the challenged act contravenes the corporation's rights guaranteed by theFourteenth Amendment (268 U.S. 510, 532–533)f.The schools won their case before a three-judge panel of the Oregon DistrictCourt, which granted an injunction against the Act. The defendants appealed their case directly to the Supreme Court of the United States. The Court heard the case on 16 and 17 March 1925.g.The Court deliberated for about 10 weeks before issuing their decision on 1 June1925. The Court unanimously upheld the lower court's decision, and theinjunction against the amended Act.h.Associate Justice James Clark McReynolds wrote the opinion of the Court. Hestated that children were not "the mere creature[s] of the state" (268 U.S. 510,535), and that, by its very nature, the traditional American understanding of the term liberty prevented the state from forcing students to accept instruction only from public schools. He stated that this responsibility belonged to the child'sparents or guardians, and that the ability to make such a choice was a "liberty"protected by the Fourteenth Amendment.i.With respect to the discussion of whether or not the schools' contracts withparents constituted property protected by the Fourteenth Amendment,McReynolds agreed that since the schools were corporations, they were nottechnically entitled to such protections. However, he continued,j.they have business and property for which they claim protection. These are threatened with destruction through the unwarranted compulsion whichappellants are exercising over present and prospective patrons of their schools.And this court has gone very far to protect against loss threatened by such action.(268 U.S. 510, 535)k.McReynolds also agreed that businesses are not generally entitled to protection against loss of business subsequent to "exercise of proper power of the state" (268 U.S. 510, 535). However, citing a number of relevant business and property law cases, he concluded that the passage of the revised Act was not "proper power" in this sense, and constituted unlawful interference with the freedom of both schools and families.l.In response to the claims by the appellants that the suits were premature, attempting to prevent rather than to rectify a problem, Justice McReynolds simplyreferred them to the evidence provided by the appellees showing that the schoolswere already suffering falling enrollments.m.Meyer v. Nebraskai.Nebraska, along with other states, prohibited the teaching of modernforeign languages to grade school children. Meyer, who taught German ina Lutheran school, was convicted under this law.ii.Does the Nebraska statute violate the Fourteenth Amendment's DueProcess clause?iii.Yes, the Nebraska law is unconstitutional. Nebraska violated the liberty protected by due process of the Fourteenth Amendment. Liberty meansmore than freedom from bodily restraint. State regulation of liberty mustbe reasonably related to a proper state objective. The legislature's view ofreasonableness was subject to supervision by the courts. The legislativepurpose of the law was to promote assimilation and civic development.But these purposes were not adequate to justify interfering with Meyer'sliberty to teach or the liberty of parents to employ him during a "time ofpeace and domestic tranquillity."12.Tinker v. des moines school district13.Hazelwood school district v. kuhlmeier14.Board of educ. V. picoa.The Island Trees Union Free School District's Board of Education (the "Board"),acting contrary to the recommendations of a committee of parents and school staff,ordered that certain books be removed from its district's junior high and highschool libraries. In support of its actions, the Board said such books were: "anti-American, anti-Christian, anti-Semitic, and just plain filthy." Acting through hisfriend Francis Pico, and on behalf of several other students, Steven Pico broughtsuit in federal district court challenging the Board's decision to remove the books.The Board won; the U.S. Court of Appeals for the Second Circuit reversed. TheBoard petitioned the U.S. Supreme Court, which granted certiorari.b.Did the Board of Education's decision to ban certain books from its junior highand high school libraries, based on their content, violate the First Amendment'sfreedom of speech protections?c.Yes. Although school boards have a vested interest in promoting respect for social,moral, and political community values, their discretionary power is secondary to thetranscendent imperatives of the First Amendment. The Court, in a 5-to-4 decision, heldthat as centers for voluntary inquiry and the dissemination of information and ideas,school libraries enjoy a special affinity with the rights of free speech and press.Therefore, the Board could not restrict the availability of books in its libraries simplybecause its members disagreed with their idea content15.United States v. America library association, Inc.mont v. postmaster generali. a landmark First Amendment Supreme Court case, in which the ruling ofthe Supreme Court struck down § 305(a) of the Postal Service and FederalEmployees Salary Act of 1962– a federal statute requiring the Postmaster General to detain and deliver only upon the addressee's request unsealed foreign mailings of "communist political propaganda." Under the stricken code, a recipient of material deemed "political propaganda" was required to indicate their intent to receive such materials before they were delivered, accepting the material by indicating a desire to do so on a card provided by the Post Office.[1] The card states that, if it not with the addressee'sname and consent to receiving the material, it would be returned within 20 days, the Post Office assumed that the addressee does not want thatpublication or any similar one in the future.[1]ii.The Court held that the Act, as construed and applied, is unconstitutional, since it imposes on the addressee an affirmative obligation which amounts to an unconstitutional limitation of his rights under the First Amendment.[1]。