Professor Patricia A. Broussard
Constitutional Law - First Amendment - spring 2015
Course Number: 6511
Section: 301
M/W 2:00 – 3:15
Office: 407-254-3293
Email: patricia.broussard@famu.edu
Office Hours: M/W @ 1 – 2PM; 3:15 – 4PM
Also, By Appointment
Course Description
This three-credit course examines the First Amendment, focusing on speech, association, and freedom
of religion. Cases will be examined from a historical perspective and class discussion will include
current events, presentations, and experiential exercises.
The following rules govern this class:
1. Lateness over 10 minutes will be counted as an absence.
2. Preparation is mandatory.
3. You may have your laptop in class in case we need to reference something online, but it may
not be open without the professor’s permission.
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WEEK 1
CHAPTER 9 FIRST AMENDMENT: FREEDOM OF EXPRESSION pp. 1197 – 1242;
Principles and Policies, 949 – 1312. Read the appropriate sections that correspond to text book.
Free Speech Methodology
Content-Based and Content-Neutral Laws
The Importance of the Distinction
 Turner Broadcasting System, Inc. v. FCC
How it is Determined Whether a Law is Content Based?
 Boos v. Barry
 Republican Party of Minnesota v. White
Problems in Applying the Distinction between Content-Based and Content-Neutral Laws
 City of Renton v. Playtime Theatres, Inc.
 National Endowment for the Arts v. Finley
 United States v. American Library Assn., Inc.
Vagueness and Overbreadth
Vagueness
 Coates v. City of Cincinnati
Overbreadth
 Schad v. Borough of Mount Ephraim
Relationship between Vagueness and Overbreadth
 City of Los Angeles v. Jews for Jesus
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Week 2
pp. 1243 - 1272
Prior Restraints
What is Prior Restraint?
Are Prior Restraints Really So Bad?
Court Orders as a Prior Restraint
 Near v. State of Minnesota ex rel. Olson
Court Orders to Protect National Security
 New York Times Co. v. United States
Court Orders to Protect Fair Trials
 Nebraska Press Assn. v. Stuart
Court Orders Seizing the Assets of Businesses Convicted of Obscenity Violations
 Alexander v. United States
Licensing as a Prior Restraint
 Lovell v. City of Griffin, Ga.
 Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton
Important Reasons for Licensing
Clear Standards Leaving Almost No Discretion to the Government
 City of Lakewood v. Plain Dealer Publishing Co.
Procedural Safeguards
WEEK 3
pp. 1272 - 1303
What is an infringement OF speech?
 United States v. National Treasury Employees Union
Compelled Speech
 West Virginia State Board of Education v. Barnette
 Rumsfeld v. Forum for Academic & Institutional Rights, Inc.
 McIntyre v. Ohio Elections Commn.
Unconstitutional Conditions
 Speiser v. Randall
 Rust v. Sullivan
 Legal Services Corp. v. Velazquez
STUDENT PRESENTATIONS BEGIN WEEK 4 AND WILL TAKE PLACE ON MONDAYS
WEEK 4
pp.1304 – 1337
Types of Unprotected and Less Protected Speech
Incitement of Illegal Activity
The ‘‘Clear and Present Danger’’ Test
 Schenck v. United States
 Frohwerk v. United States
 Debs v. United States
 Abrams v. United States
The Reasonableness Approach
 Gitlow v. New York
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 Whitney v. California
The Risk Formula Approach
 Dennis v. United States
The Brandenburg Test
 Brandenburg v. Ohio
 Holder v. Humanitarian Law Project
WEEK 5
pp. 1337 - 1365
Fighting Words, the Hostile Audience, and the Problem of Racist Speech
Fighting Words
 Chaplinsky v. New Hampshire
Narrowing the Fighting Words Doctrine
Fighting Words Laws Invalidated as Vague and Overbroad
 Gooding v. Wilson
Narrow Fighting Words Laws as Content-Based Restrictions
 R.A.V. v. City of St. Paul, Minnesota
a. The Hostile Audience Cases
 Feiner v. New York
The Problem of Racist Speech
 Beauharnais v. Illinois
 Virginia v. Black
WEEK 6
pp. 1365-1427
Sexually Oriented Speech
Obscenity
Supreme Court Decisions Finding Obscenity Unprotected
 Roth v. United States
 Paris Adult Theatre I v. Slaton
 Miller v. California
Should Obscenity Be a Category of Unprotected Speech?
Should There Be a New Exception for Obscenity?
Pornography
Child Pornography
 New York v. Ferber
 Ashcroft v. Free Speech Coalition
Protected but Low-Value Sexual Speech
Zoning Ordinances
 Young v. American Mini Theatres, Inc.
Nude Dancing
 City of Erie v. Pap’s A.M.
Government Techniques for Controlling Obscenity and Child Pornography
 Stanley v. Georgia
 Osborne v. Ohio
Profanity and ‘‘Indecent’’ Speech
 Cohen v. California
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The Broadcast Media
 Federal Communications Comm. v. Pacifica Foundation
Telephones
The Internet
 Reno v. American Civil Liberties Union
 Ashcroft v. American Civil Liberties Union
Cable Television
A New Exception for Violent Speech?
 United States v. Stevens
 Brown v. Entertainment Merchants Association
WEEK 7
1427 - 1459
Commercial Speech
Constitutional Protection for Commercial Speech
 Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.
What Is Commercial Speech?
 Bolger v. Young’s Drug Products Corp.
The Test for Evaluating Regulation of Commercial
Speech
 Central Hudson Gas & Electric Corp. v. Public Service Comm. of New York
Advertising of Illegal Activities
False and Deceptive Advertising
Advertising That Inherently Risks Deception Restrictions of Trade Names
 Friedman v. Rogers
Regulating Commercial Speech to Achieve Other Goals
‘‘For Sale’’ Signs on Houses
 Linmark Associates, Inc. v. Township of Willingboro
Alcohol Products
 44 Liquormart, Inc. v. Rhode Island
Tobacco Products
 Lorillard Tobacco Co. v. Reilly
Gambling
Advertising by Lawyers and Other Professionals
WEEK 8
1459 - 1489
Reputation, Privacy, Publicity, and the 1st Amendment: Torts and the 1st Amendment
Defamation
Public Officials as Defamation Plaintiffs
 New York Times Co. v. Sullivan
Public Figures as Plaintiffs
 Gertz v. Welch
Private Figures, Matters of Public Concern
 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.
Private Figures, Matters Not of Public Concern
Intentional Infliction of Emotional Distress
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Hustler Magazine v. Falwell
Snyder v. Phelps
Public Disclosure of Private Facts
Cox Broadcasting Corp. v. Cohn
Right of Publicity
WEEK 9
1489 - 1544
Conduct That Communicates
What is Speech?
When is Conduct Communicative?
When May the Government Regulate Conduct That Communicates?
The O’Brien Test
 United States v. O’Brien
Flag Desecration
 Texas v. Johnson
Spending Money as Political Speech
 Buckley v. Valeo
 Randall v. Sorrell
 First National Bank of Boston v. Bellotti
 Citizens United v. Federal Election Commission
 Arizona Free Enterprise Club’s Freedom Club Pac v. Bennett
WEEK 10
1545 – 1615
What Places Are Available for Speech?
Government Properties and Speech
Initial Rejection and Subsequent Recognition of a Right to Use Government Property for Speech
 Hague v. Committee for Industrial Organization
 Schneider v. New Jersey
What Government Property and Under What Circumstances?
 Perry Education Assn. v. Perry Local Educators’ Assn.
Public Forums
Content Neutrality
 Police Department of the City of Chicago v. Mosley
Time, Place, and Manner Restrictions
 Hill v. Colorado
Licensing and Permit Systems
No Requirement for the Use of the Least Restrictive Alternative
 Ward v. Rock Against Racism
Designated Public Forums
Limited Public Forums
 Christian Legal Society Chapter of UC Hastings COL v. Martinez
Nonpublic Forums
 International Society for Krishna Consciousness, Inc. v. Lee
Private Property and Speech
Speech in Authoritarian Environments: Military, Prisons, and Schools
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Military
Parker v. Levy
Prisons
Thornburgh v. Abbott
Shaw v. Murphy
Schools
Tinker v. Des Moines Independent Community
Bethel School District No. 403 v. Fraser
Hazelwood School District v. Kuhlmeier
Morse v. Frederick
The Speech Rights of Government Employees
Garcetti v. Ceballos
WEEK 11
1617 – 1637
Freedom of Association
Laws Prohibiting and Punishing Membership
Laws Requiring Disclosure of Membership
 NAACP v. State of Alabama, ex rel. Patterson Campaign Finance Disclosure
Compelled Association
 Board of Regents of the University of Wisconsin System v. Southworth
Laws Prohibiting Discrimination
 Roberts v. United States Jaycees
 Boy Scouts of America v. Dale
WEEK 12
1637 - 1672
Freedom of the Press
Introduction: Are there Special Rights for the Press?
Freedom of the Press as a Shield to Protect the Press from the Government
Taxes on the Press
 Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue
Application of General Regulatory Laws
 Cohen v. Cowles Media Co.
Keeping Reporters’ Sources and Secrets Confidential
 Branzburg v. Hayes
Laws Requiring That the Media Make Access Available
 Red Lion Broadcasting Co. v. Federal Communications Comm.
 Miami Herald v. Tornillo
Freedom of the Press as a Sword: A First Amendment Right of Access to Government Places and
Papers?
Access to Judicial Proceedings
 Richmond Newspapers v. Virginia
Prisons
 Pell v. Procunier
 Houchins v. KQED
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WEEK 13
CHAPTER 10 FIRST AMENDMENT: RELIGION, 1673 -1723
Introduction
Constitutional Provisions Concerning Religion and the Tension between Them
History in Interpreting the Religion Clauses
What Is Religion?
The Attempt to Define Religion under the Selective Service Act
 United States v. Seeger
Requirement for Sincerely Held Beliefs
 United States v. Ballard
The Free Exercise Clause
The Current Test
 Employment Division, Department of Human Resources of Oregon v. Smith
The Law Before Employment Division v. Smith
 Sherbert v. Verner
Cases Rejecting Exemptions Based on the Free Exercise Clause
 Church of the Lukumi Babalu Aye v. City of Hialeah
 Cutter v. Wilkinson
Is Denial of Funding for Religious Education a Violation of Free Exercise of Religion?
 Locke v. Davey
The Establishment Clause
Government Discrimination among Religions
 County of Allegheny v. ACLU
The Lemon Test for the Establishment Clause
 Lemon v. Kurtzman
WEEK 14
1723 - 1808
Religious Speech and the First Amendment
Student Religious Groups’ Receipt of Government Funds
 Rosenberger v. Rector & Visitors of the University of Virginia
Student-Delivered Prayers
 Santa Fe Independent School District v. Doe
Religious Symbols on Government Property
 McCreary County v. American Civil Liberties Union of Kentucky
 Van Orden v. Perry
Religion as a Part of Government Activities: Schools Release Time
School Prayers and Bible Reading
 Engel v. Vitale
 Lee v. Weisman
Religion as a Part of Government Activities: Legislative
Chaplains
 Marsh v. Chambers
When Can Government Give Aid to Religion?
Aid to Parochial Elementary and Secondary Schools
 Mitchell v. Helms
 Zelman v. Simmons-Harris
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Learning Outcomes
By the end of this course, you should:
1. Be able to differentiate between content-based and content-neutral speech.
2. Articulate free speech methodology.
3. Identify an “infringement” of free speech.
4. Identify types of unprotected and lesser protected speech.
5. Articulate the level(s) of scrutiny for certain speech.
6. Articulate the following:
a. The Miller Test
b. The Central Hudson Test.
c. The Pickering Test
d. The O’Brien Test
e. The Lemon Test
These outcomes will be demonstrated by class participations, group exercises, presentations and a
final examination.
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Texts:
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Erwin Chemerinsky, Constitutional Law (4th ed. Aspen 2013) ISBN: 978-1-4548-1753-6
Erwin Chemerinsky, Constitutional Law: Principles and Policies (4th ed. Aspen 2006). ISBN:
978-0-7355-9897-3
Grading:
Final Exam= 100%
Presentation will not be scored, but failure to participate in presentation will result in an F.
Final grades are subject to the Law School's grade normalization policy
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FAMU College of Law Statement on Plagiarism
FAMU College of Law does not tolerate plagiarism. Students found guilty of plagiarism will be
prosecuted to the full extent of the laws outlined in the FAMU College of Law Students’ Handbook.
Please consult the Student Handbook for other conduct which is prohibited and punishable.
FAMU College of Law Statement of ADA Procedures
FAMU College of Law is committed to providing an educational environment that is accessible to all
students. In accordance with this policy, students in need of accommodations due to a disability
should contact the Philip Miller for verification and determination of reasonable accommodations as
soon as possible after admission to the Law School, or at the beginning of each semester.
SEE ALC STATEMENT:
http://www.famu.edu/Assessment/UserFiles/File/07-08_summaries/law/FAMOUS-2007-2008-JDLaw.doc.
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