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First Amendment: Cases, Controversies, and Contexts

Table of contents
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
First Amendment: Cases, Controversies, and Contexts
1st Edition
Ruthann Robson
Table Of Contents
  • Introduction - First Amendment: Cases, Controversies, and Contexts
  • 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
Introduction
First Amendment: Cases, Controversies, and Contexts

 

Ruthann Robson

Professor of Law & University Distinguished Professor

 

City University of New York (CUNY) School of Law

 

 

 

 

CALI eLangdell Press 2016

 

Revised First Edition

 

Introduction.1. About the Author

Ruthann Robson is Professor of Law and University Distinguished Professor at the City University of New York (CUNY) School of Law.

Her books include Dressing Constitutionally: Hierarchy, Sexuality, and Democracy (2013); Sappho Goes to Law School (1998); Gay Men, Lesbians, and the Law (1996); and Lesbian (Out)Law: Survival Under the Rule of Law (1992).  She is also the editor of the three volume set, International Library of Essays in Sexuality & Law (2011).

She is one of two editors of the Constitutional Law Professors Blog and a frequent commentator on constitutional and sexuality issues.

She is one of the 26 professors selected for inclusion in What the Best Law Teachers Do (Harvard University Press, 2013).

Introduction.2. Notices

This is the firest revised edition of this casebook, updated August 2016. Visit http://elangdell.cali.org/ for the latest version and for revision history.

This work by Ruthann Robson is licensed and published by CALI eLangdell Press under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International (CC BY-NC-SA 4.0). CALI and CALI eLangdell Press reserve under copyright all rights not expressly granted by this Creative Commons license. CALI and CALI eLangdell Press do not assert copyright in US Government works or other public domain material included herein. Permissions beyond the scope of this license may be available through feedback@cali.org.

 

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Ruthann Robson, First Amendment: Cases, Controversies, and Contexts, Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License.

 

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This material does not contain nor is intended to be legal advice. Users seeking legal advice should consult with a licensed attorney in their jurisdiction. The editors have endeavored to provide complete and accurate information in this book. However, CALI does not warrant that the information provided is complete and accurate. CALI disclaims all liability to any person for any loss caused by errors or omissions in this collection of information.

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Introduction.4. Preface

This Casebook 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 my 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.

The excerpted cases and all cases in the Notes contain the official citation. However, within the text of excerpted cases, the full citations of cases are not included: only the case name and year appears the first time the case is cited within the opinion.  Moreover, case citations are not always indicated by ellipses. When content is omitted, this is indicated by this symbol: ***.

This Casebook has been immeasurably improved by comments from my students in First Amendment at CUNY School of Law, especially those in the class in the Spring of 2015 when a “dry run” of the Casebook was used. Their responses to my queries (e.g., “which 5 pages did you find least helpful in this chapter?”), their engagement with the materials and original contributions, as well as their notations of typographical errors, are deeply appreciated.

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