First Amendment: Cases, Controversies, and Contexts
first Edition

First Amendment: Cases, Controversies, and Contexts

by Ruthann Robson

Ruthann Robson, First Amendment: Cases, Controversies, and Contexts, Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License. CALI® and eLangdell® are United States federally registered trademarks owned by the Center for Computer-Assisted Legal Instruction. The cover art design is a copyrighted work of CALI, all rights reserved. The CALI graphical logo is a trademark and may not be used without permission. Should you create derivative works based on the text of this book or other Creative Commons materials therein, you may not use this book’s cover art and the aforementioned logos, or any derivative thereof, to imply endorsement or otherwise without written permission from CALI.

© 2018 CALI eLangdell Press, www.cali.org. Subject to an Attribution-NonCommercial-ShareAlike CC BY-NC-SA

This Casebook (Revised First Edition, August 2016) is intended to be used in an upper-division course covering the First Amendment to the United States Constitution. Its 14 chapters are substantially the same length, with the exception of Chapter One, the introduction, and Chapters Eleven and Twelve which in combination are the usual length. It is intended for 13 or 14 week semester that meets once or twice per week. Each Chapter contains a “Chapter Outline” at the beginning for ease of reference.

The Casebook is organized with the Speech Clauses as Part One and the Religion Clauses as Part Two. Unlike many other courses, there is no accepted organizational scheme within these broad areas. As the Introduction notes, First Amendment doctrine, especially within freedom of speech, presents a varied and haphazard landscape.

The Casebook follows a scheme that has proven effective in Professor Robson’s years of teaching the course to hundreds of students. The selection of cases tends toward the most recent and these tend to be less heavily edited. These recent cases often contain extended discussions of earlier cases that are not included in the Casebook.

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Ruthann Robson, is Professor of Law & University Distinguished Professor. She is the author of Dressing Constitutionally: Hierarchy, Sexuality, and Democracy (2013), as well as the books Sappho Goes to Law School (1998); Gay Men, Lesbians, and the Law (1996); and Lesbian (Out)Law: Survival Under the Rule of Law (1992), and the editor of the three volume set, International Library of Essays in Sexuality & Law (2011). She is a frequent commentator on constitutional and sexuality issues and the co-editor of the Constitutional Law Professors Blog. She is one of the 26 professors selected for inclusion in What the Best Law Teachers Do (Harvard University Press, 2013).

Introduction. First Amendment: Cases, Controversies, and Contexts
Introduction.1 - About the Author
Introduction.2 - Notices
Introduction.3 - About CALI eLangdell Press
Introduction.4 - Preface
Chapter One. INTRODUCTION TO THE FIRST AMENDMENT
1.1 - Text
1.2 - The Clauses
1.2.1 - The Religion Clauses
1.2.2 - The Free Speech Clause
1.2.3 - The Press Clause
1.2.4 - The Assembly Clause
1.2.5 - The Petition Clause
1.2.6 - Association: The “Missing” Clause
1.3 - International Perspectives
1.4 - State Action and Incorporation Against the States
1.5 - History: The Firstness of the First Amendment
1.6 - Theoretical Perspectives
1.7 - The Challenges of First Amendment Cases and Controversies
1.8 - United States Supreme Court Terms: Recent Cases
1.8.1 - 2015-2016 Term
1.8.2 - 2014-2015 Term
1.8.3 - 2013-2014 Term
Chapter Two. PROTECTIONS FOR POLITICAL SPEECH
2.1 - The Alien and Sedition Acts
2.2 - Clear and Present Dangers
2.2.1 - The Challenge of World War I
2.2.2 - Labor Unrest
2.2.3 - Communism and the Smith Act
2.3 - "Offensive” Speech
2.4 - Distinguishing Protected Advocacy
2.5 - “Political” Speech in the Age of “Terrorism”
Chapter Three. OF CONDUCT, CONTENT, AND CATEGORIES
3.1 - Defining Expression
3.2 - Hate Speech
3.3 - Considering “Content” in the Context of the Military
Chapter Four. THE SPECIAL (OR NOT) STATUS OF THE PRESS
4.1 - Prior Restraint
4.2 - The Press as Guardian of the Public’s Right to Know?
4.2.1 - The Press v. Criminal Defendants
4.2.2 - The Press as a Party in Civil Litigation
4.2.3 - Access by the Press
4.2.4 - (Un)lawful Information
4.2.5 - Reporters’ “privilege”
4.3 - Direct Regulations of the Press
4.4 - Freedom of the Press and Tort Actions
4.4.1 - Defamation
4.4.2 - Other Torts
Chapter Five. GOVERNMENT AS EMPLOYER AND EDUCATOR
5.1 - The Politics of Public Employment
5.2 - Protecting Public Employee Speech
5.2.1 - Foundational Tests
5.2.2 - Applying and modifying the tests
5.2.3 - Public Employee Speech in the Roberts Court
5.3 - Student Speech
Chapter Six. UNCONSTITUTIONAL CONDITIONS AND COMPELLED SPEECH
6.1 - Unconstitutional Conditions and Speech
6.2 - Compelled Speech
6.2.1 - Foundational Cases of Compelled Speech
6.2.2 - Fees and Dues
6.2.3 - Compelled Speech and Association
6.3 - Combining Unconstitutional Conditions and Compelled Speech
Chapter Seven. FORUMS AND TIME, PLACE, MANNER RESTRICTIONS
7.1 - Historical Perspectives on Public Assembly and Public Forums
7.2 - Public and Other Forums
7.3 - Time, Place, or Manner
7.4 - The Distinct Problems Posed by Signage Regulations
7.5 - The “Escape Clause” of Government Speech
Chapter Eight. THE POLITICAL PROCESS
8.1 - Anonymity and Political Life
8.2 - Campaign Finance
8.3 - Judicial Elections
Chapter Nine. COMMERCIAL SPEECH
9.1 - From Unprotected to Protected Speech
9.2 - The Central Hudson Test & Its Applications
9.3 - The Ascendency of Commercial Speech?
Chapter Ten. SEXUAL SPEECH
10.1 - Defining Obscenity
10.2 - Privacy and Pornography
10.3 - Secondary Effects
10.4 - Children, Regulated Media, and the Internet Age
10.5 - The Limits of Obscenity and the Categorical Approach?
Chapter Eleven. DEFINING RELIGION
Chapter Twelve. THE ESTABLISHMENT CLAUSE AND EDUCATION
12.1 - Early History of the Establishment Clause
12.2 - The Lemon Test and Its Discontents
12.3 - Private Choice and Public Support of Religious Schools
Chapter Thirteen. THE ESTABLISHMENT CLAUSE IN THE PUBLIC SQUARE
13.1 - Historical Practices
13.2 - Displays of Religious Symbols
13.3 - The Problem of Establishment Clause Standing
Chapter Fourteen. FREEDOM OF RELIGIOUS EXERCISE
14.1 - Belief v. Practice
14.2 - The Problem of Neutral Rules of General Applicability and Religious Exercise
14.3 - Legislating Free Exercise
14.3.1 - RFRA
14.3.2 - RLUIPA
14.4 - Targeting Religion and Ministerial Employees