First Amendment Rights
Professor Harpaz
Fall, 2021

Questions Before Class

In connection with each reading assignment and as part of your class preparation, there are posted questions that you should attempt to answer before class. Your answers do not need to be in writing. These Questions Before Class are designed to help you prepare for class discussion by focusing on relevant facts, legal analysis, and your own assessment of how the court should treat some of the issues presented in a case. While the actual discussion in class may include some of the questions, it will range beyond the Questions Before Class. However, answering these questions, or at least attempting to answer them, should nevertheless help you to engage in class discussion. These questions will be available on the course website at least several class meetings in advance. They are organized by assignment number.

Assignment 1 (Chapter I - pages 1-17)
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?
6. 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?
7. What limits on free speech does Holmes recognize in his dissent?
8. The approach of Judge Learned Hand in Masses Publishing Co. 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?

Assignment 2 (Chapter I - pages 17-32)
1. 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?
2. Does the Supreme Court apply the clear and present danger test in Gitlow or Whitney?
3. 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?
4. 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?
5. What test does the Chief Justice apply to uphold the convictions?
6. What test does the Court apply in Brandenberg v. Ohio to decide whether Brandenburg's conviction violates the First Amendment?
7. Why does the Court conclude that Brandenberg's conviction must be overturned?
8. In Hess v. Indiana, would Hess’ speech have been punishable under the Brandenberg test if he had removed “later” or “again” from his speech?

Assignment 3 (Chapter II - pages 33-60) (Unprotected Categories of Speech: Chaplinsky, Gooding v. Wilson, Watts, Virginia v. Black, Stevens, Brown v. Entertainment Merchants Assoc., Alvarez)
1. In Chaplinsky, what categories of speech are identified as receiving no First Amendment and why?
2. How are fighting words defined?
3. In Gooding v. Wilson, does the Court conclude that Wilson’s words as described in footnote 1 were not fighting words?
4. In Watts v. United States, why does the Court conclude that Watts’ words do not qualify as a true threat?
5. How does the Court in Virginia v. Black define a true threat?
6. 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?
7. In Brown, the Court applies the strict scrutiny test. Why does the California law fail that test?
8. In United States v. Alvarez, why does the Court reject the argument that all false factual statements should be denied First Amendment protection?

Assignment 4. Pages 61-90 Chapter III (Profanity and Libel: Cohen, New York Times v. Sullivan, Gertz, Hustler Magazine v. Falwell, Snyder v. Phelps)
1. In Cohen v. California, what were the California’s justifications for punishing Cohen for wearing his jacket?
2. What were the reasons the Court thought it was important that Cohen’s speech receive First Amendment protection?
3. In New York Times v. Sullivan, why does the Court conclude that the First Amendment protects false statements?
4. 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?
5. Why does the Supreme Court distinguish between defamation directed at public officials and public figures and defamation directed at private figures?
6. In Hustler Magazine v. Falwell, 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?
7. 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 (see Note on pages 80-81). What is the difference between these types of speech and why do you think the distinction is so critical to the analysis in Snyder v. Phelps?
8. What arguments does Mr. Snyder make to try and convince the Court that the speech of the members of the Westboro Baptist Church should be treated as private concern speech?

Assignment 5. Pages 91-114 Chapter IV (Obscenity and Child Pornography: Roth, Miller, Paris Adult Theatre, Jenkins v. Georgia, Ferber, Ashcroft v. Free Speech Coalition)
1. In Roth v. United States, why does the Court decide that obscenity is not protected speech?
2. Is what ways is the obscenity test adopted in Miller v. California more speech protective than the way obscenity is defined in Roth?
3. Do you think that a book containing only words and no drawings or photographs could be considered obscene under the Miller test?
4. After the decision in Jenkins v. Georgia, what choices are available to a state to define the community for purposes of the contemporary community standards element of the Miller test?
5. New York v. Ferber recognizes child pornography as a new category of unprotected speech. Why is child pornography denied First Amendment protection?
6. Is child pornography a broader category than obscenity, a narrower category than obscenity, or both?
7. As defined in Ferber, the category of child pornography does not have to satisfy many of the elements of the Miller test. Which elements don’t need to be satisfied?
8. The federal government’s effort to punish the distribution of virtual child pornography fails in Reno v. ACLU. How does the government justify expanding the reach of federal law to punish virtual child pornography in the Child Pornography Prevention Act of 1996 and why does the Court reject those justifications.

Assignment 6. Pages 115-144 Chapter V (Commercial Speech: Virginia State Board of Pharmacy, Central Hudson, Discovery Network, Lorillard Tobacco, Compelled Disclosures in Commercial Advertising)
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, why does the Court conclude that speech that does “no more than propose a commercial transaction” is entitled to First Amendment protection?
3. In Virginia Pharmacy Board, the Court identifies several forms of commercial speech regulation that are permissible. What are they?
4. What test does the Court apply in Central Hudson Gas v. Public Service Comm'n?
5. Why does the Court conclude that the New York Public Service Commission’s order is unconstitutional?
6. In Lorillard Tobacco Co. v. Reilly, why does the Court strike down the outdoor advertising regulations?
7. 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.?
8. The Court treats differently "disclosure requirements and outright prohibitions" on commercial speech. Why do you think it draws this distinction?

Assignment 7. Pages 145-172 (Chapter VI) (Symbolic Speech: O'Brien, Spence, Texas v. Johnson, Hurley, Buckley v. Valeo)
1. In United States v. O’Brien, does the Court decide that burning a draft card is speech under the First Amendment?
2. What standard does the Court apply to decide whether the federal government is justified in punishing O’Brien for burning his draft card?
3. Why does the Court decide that the governmental interest is unrelated to the suppression of expression?
4. In Spence v. Washington, how does the Court determine that Spence’s conduct was speech within the meaning of the First Amendment?
5. In Texas v. Johnson, does the Court use the O’Brien test to conclude that the Texas law is unconstitutional?
6. 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?
7. In Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, does the Court apply the Spence test to determine if the parade is symbolic speech?
8. In Buckley v. Valeo, in contrast to campaign expenditures, why does the Court conclude that “a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free communication”?

Assignment 8. Pages 173-204 (Chapter VII) (Compelled Expression and Compelled Association: Barnette, Wooley v. Maynard, Hurley, Janus, Boy Scouts of America v. Dale, Compelled Disclosure of Members and Donors of Expressive Associations)
1. After West Virginia State Board of Education v. Barnette, can West Virginia still include a salute to the American flag as a daily activity in its public schools. 
2. After Barnette, could a public school student in a class where students are required to read passages from an assigned book out loud rely on Barnette and successfully object to reading from a passage from a book on the ground that it expresses anti-police views, a view the student disagrees with because members of the student’s family are police officers?
3. In Wooley v. Maynard, why did the Court conclude that having the state motto on your car license plate is less of an infringement upon First Amendment rights than requiring public school students to salute the American flag each day? 
4. In Wooley, why does the Court find that the state interests asserted by New Hampshire to justify requiring that the state motto be displayed on New Hampshire license plates are not adequate?
 5. After reading the cases in this assignment, does it seem to you that the Supreme Court provides more protection, less protection, or the same amount of protection for compelled speech and association than it does for restrictions on speech and association?

Assignment 9. Pages 205-238 Chapter VIII (Content Based vs. Content Neutral Regulations: Mosley, Burson v. Freeman, Reed, Iancu v. Brunetti, Heffron v. International Society for Krishna Consciousness, Frisby v. Schultz)
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 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?
4. In Reed v. Town of Gilbert, the Court rejects a number of arguments for treating the Sign Code as content-neutral. What are those arguments and why does the Court reject them?
5. In Reed, Justice Kagan’s opinion concurring in the judgment argues that strict scrutiny need not be applied to every content-based regulation of speech. Under what circumstances does she conclude strict scrutiny should not be applied to content-based regulations of speech?
6. What standard does the Court use in Heffron v. ISKCON to evaluate the constitutionality of the Minnesota State Fair's booth rule?
7. In Frisby v. Schultz, in what way does the Supreme Court narrowly construe the ban on residential picketing? If the Court had not narrowly construed the ban, would that have changed the outcome in the case?
8. In Frisby v. Schultz, what "ample alternative channels of communication" were available?

Assignment 10. Pages 239-274 Chapter IX (Overbreadth, Vagueness, and Prior Restraints: Broadrick, Virginia v. Hicks, United States v. Stevens, Coates, Near, New York Times v. United States, Shuttlesworth v. City of Birmingham)
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 Virginia v. Hicks, in discussing the overbreadth doctrine the Court explains that allowing an overbroad law to remain in effect has substantial chilling effects on speech, but at the same time invalidating such a law imposes significant social costs. What are the chilling effects and what are the social costs?
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 the overbreadth argument made by Stevens?
5. In Coates v. Cincinnati, a law which used the phrase "in a manner annoying to persons passing by" was struck down as vague under the First Amendment. What makes this phrase vague?
6. In  Near v. Minnesota, the Court identifies some exceptional cases where the government can enjoin the publication of speech. What are they?
7. In New York Times v. United States, six members of the Court refuse to block the publication of the Pentagon Papers. However, they author five concurring opinions and their only agreement as to the reasons for rejecting the government’s request for the issuance of an injunction against publication is reflected in the per curiam opinion. What reason for the Court’s decision is provided in that opinion?
8. In Shuttlesworth v. Birmingham, The Rev. Fred Shuttlesworth successfully challenges an ordinance that makes “it an offense to participate in any ‘parade or procession or other public demonstration’ without first obtaining a permit from the City Commission.” What First Amendment defect does the ordinance have that causes the Court in invalidate it?

Assignment 11. Pages 275-308 (Chapter X) (Public Forum Doctrine: United States v. Grace, Kokinda, Forsyth County v. Nationalist Movement, Lehman v. City of Shaker Heights, Perry Education Assn. v. Perry Local Educators' Assn.)
1. If the sidewalks surrounding the Supreme Court building were treated as part of the building and grounds by the opinion in United States v. Grace, what standard would the Court use to determine if § 13k was unconstitutional?
2. In United States v. Grace, why does the Court reject the argument that § 13k is a reasonable, time, place, and manner restriction?
3. In United States v. Kokinda, why does the Court conclude that the postal sidewalk at issue is not a traditional public forum?
4. In  Kokinda, "individuals or groups have been permitted to leaflet, speak, and picket on postal premises." Why doesn't that fact justify treating the postal sidewalk as a public forum?
5. In Forsyth County v. Nationalist Movement, what kind of standards must limit the discretion of the government administrator who sets the amount of a permit fee charged to a group that seeks to hold a demonstration on public property?
6. In Lehman v. City of Shaker Heights, why does Justice Blackmun's plurality opinion reject the argument that the car cards are a public forum?
7. Why does Justice Brennan's dissenting opinion disagree with that conclusion?
8. 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 12. Pages 309-322 (Chapter X) and Pages 323-343 (Chapter XI) (Public Forum Doctrine, Government Speech, and Government Employee Speech: Cornelius v. NAACP Legal Defense and Educational Fund, Minnesota Voters Alliance v. Mansky, Pleasant Grove City v. Summum, Pickering, Connick v. Myers, Garcetti)
1. In Cornelius v. NAACP Legal Defense and Ed. Fund, why does the Court conclude that the forum at issue is the Combined Federal Campaign (CFC) rather than the federal workplace?
2. In Cornelius, what criteria does the Court use to determine if the government has intentionally designated the CFC as a public forum?
3. In Cornelius, what does the Court conclude was the government’s motive for creating the CFC? 
4. In Minnesota Voters Alliance v. Mansky, why does the Court decide that Minnesota’s political apparel polling place ban is not reasonable?
5. In Pleasant Grove City v. Summum, how does the Court explain the fact that the Free Speech Clause doesn’t impose limits on the government’s own speech?
6. In Connick v. Myers, what do government employees have to demonstrate as a threshold requirement in order for their speech to be protected by the First Amendment and, therefore, analyzed under the balancing test.
7. Under the balancing test applied in Connick v. Myers, what government interests will the Supreme Court consider in balancing the government employer’s interest against the employee’s interest in freedom of expression.
8. In Garcetti v. Ceballos, why did the Supreme Court conclude that the First Amendment did not provide Richard Ceballos with any protection from employer discipline?

Assignment 13. Pages 343-349 (Student Speech: Mahanoy Area School Dist. v. B.L.)
1. In Mahanoy Area School Dist. v. B.L., the Court states that “[t]he school’s regulatory interests remain significant in some off-campus circumstances.” Can you identify any situations where the Court itself makes clear that it would be willing to uphold school discipline arising out of off-campus behavior?
2. The Court identifies “three features of off-campus speech” that limit the ability of public schools to discipline students for off-campus speech. What are they?
3. Does the Court explain why it concludes that B.L. could not be disciplined for posting the two Snapchat photos?