First Amendment Fall 2025 First Week Coverage

 Welcome to the First Amendment course, a course that examines the First Amendment in quite a bit of depth.

For our first two classes of First Amendment, please read the assignment noted below (Casebook: Varat, Amar & Caminker Constitutional Law (16th Edition)(Foundation Press 2021). The first unit will get us through Monday. We will finish the first unit and cover the second unit on Tuesday and Wednesday:

 --   Dreisbach  article; Casebook p. 1763-1779; Read (as a Preview) Stephanie Barclay's article The Religion Clauses After Kennedy v. Bremerton School District (free download here):

-- Engel v. Vitale (Link).;Allegheny County case (link); Stone v Graham, 449 U.S. 39 (1980) (get PDF from Hein on Line); Kennedy case (link); Our class discussion will focus primarily on: the American Legion case p. 1801-1812 and on the Kennedy case and Stone v Graham.  Louisiana just passed a law requiring the 10 Commandments to be displayed in public school classrooms. Does the Kennedy case change the outcome of Stone v. Graham?

 
You should also watch the first four First Amendment videos (the first two relate to class 1; three and four relate to class 2 and 3):

Video Number One 

Video Number Two 

Video Number Three 

Video Number Four

 Students have told me that they find this recorded sessions very helpful. We will discuss these issues in class on Monday, Tuesday and Wednesday.

 

 

Blog Posts: Week One First Amendment Fall 2025 Part One

 Handful of Words

Does the Constitution Require Separation of Church and State?

 

https://professorduncan.blogspot.com/2015/01/jeffersons-wall-of-separation.html

 

Establishment Clause Prior to Everson

 

Incorporation

 

Neutrality

 

Everson and Neutrality 

 

Justice Rutledge in Everson

Links to Blog Posts for First Amendment Fall 2025 Week One Part Two

 https://professorduncan.blogspot.com/2006/07/for-todays-class-zorach-hypos.html

 https://professorduncan.blogspot.com/2006/07/zorach-question.html

https://professorduncan.blogspot.com/2008/01/lemon-test-secular-purpose-prong.html 

https://professorduncan.blogspot.com/2007/07/lemons-purpose-test.html 

https://professorduncan.blogspot.com/2006/07/advance-or-inhibit.html 

 https://professorduncan.blogspot.com/2014/01/the-case-of-devout-valdictorian.html

 https://professorduncan.blogspot.com/2007/07/kosher-food-stamps.html

https://professorduncan.blogspot.com/2021/01/france-prohibits-veils-in-public-schools.html 

 

Church, State and the Constitution

As we begin our discussion of the Establishment Clause, I want you to journey back into the recesses of time, back to the days before you were a law student. Go back to your high school and college days, perhaps, and ask yourself "what was the story I was taught about the role of religion in the public square."

Maybe you were told this story in high school, or college. Somewhere you were discussing the subject of, say, a Ten Commandments display in a public park in Corny, Nebraska, and some teacher or speaker told you the story of what the First Amendment says about "church and state."

Think about that story and be prepared to share it with the class.

Everson and Taxpayer Standing

Suppose a City provides free bus transportation for residents with health care appointments. And suppose John Doe, a city taxpayer, sues to enjoin the program because it pays for transportation to all medical appointments including for women seeking abortion services. Doe claims that subsidizing abortion through his tax payments violates his religious beliefs and asks the federal court to enjoin free bus rides for those seeking abortions.

How should this case come out?

Suppose instead the City uses tax dollars to actually pay for abortions for low income women. Now should Doe be allowed to enjoin these expenditures as violating his free exercise of religion (by requiring him to facilitate through his tax payments that which his religion forbids him to facilitate)?

Now consider Prof. Steven Smith's discussion of "taxpayer" injuries and the EC:

                 As a general matter, the Supreme Court has refused to recognize payment of taxes as a cognizable injury; forced payment of taxes to be used in part for purposes that a taxpayer believes to be objectionable or even unconstitutional does not even give a person standing to sue. However, the Court’s zeal for a no establishment principle has led it to create a special exception allowing objecting taxpayers to sue when government subsidizes religion.

                This exceptional treatment is difficult to justify on the basis of a realistic and prudential approach to religious freedom. It is true, of course, that payment of taxes to support causes one does not favor is in some sense a very real harm; the taxpayer is poorer, and she may be offended as well. But a taxpayer suffers these kinds of injuries whether the objectionable use of public money aids religion or not. So how is this sort of injury, normally not even cognizable, transformed into a violation of the taxpayer’s religious freedom?

                The lazy answer would simply define religious freedom to include a right not to contribute to any cause that may have the effect of aiding religion. But that answer is too easy; indeed, it is patently circular, attempting to settle the issue by definitional fiat.

                A less question-begging, more realistic approach might start by distinguishing between a taxpayer’s religious objection-an objection, that is, arising out of religious commitments or beliefs-to supporting a particular public project, on the one hand, and on the other hand a taxpayer’s objection, however grounded, to the religious use of tax dollars, or a to a use that benefits religion. The first kind of objection might plausibly be characterized as implicating the taxpayer’s religious freedom insofar as she is being forced to act in contravention of, or at least to support something that is contrary to, her religious commitments. By contrast, the injury in the second situation, though real enough, seems more comparable to ordinary taxpayer injury. Thus, a Quaker who sincerely opposes the use of public money to support an undeclared war in Vietnam and an atheist who sincerely opposes the use of public money to support parochial schools both suffer real harm. But the atheist, unlike the Quaker, cannot as plausibly say that his harm consists in being forced to act contrary to his religious convictions (unless, that is, he tacitly imports an extremely loose definition of “religion” that for many other purposes he, and we, would probably be unable to embrace).

                Ironically, however, in the kind of case where tax payment might plausibly be described as a violation of religious commitments, and hence perhaps of religious freedom, current law does not recognize the injury. Thus, the atheist’s claim would likely be treated as presenting a religious freedom problem, while the Quaker’s harm is probably not even a cognizable injury sufficient to confer standing to sue. Measured against a realistic appraisal of harm to religious freedom, current law seems topsy-turvy.

There are obvious difficulties, of course, in granting constitutional status to every religion-based objection to the use of public money. So my claim here is a modest one: I suggest only that if payment of taxes for what may be unconstitutional purposes is not normally a harm recognized by the law, then there is no reason why it should be given special status in this context merely because the nature of a particular taxpayer’s objection is that the expenditure will have the effect of aiding religion.

                This conclusion would have important consequences for what is probably the most persistent, and in a material sense most important, church-state controversy: aid to parochial schools (including many of the voucher programs that seem to enjoy growing political support). Once we recognize that advancement of religion is not an evil per se, and that there is no better reason to recognize taxpayer injury here than in other contexts, it follows that aid to parochial schools is no different from state aid to Chrysler Corporation, or the Shah of Iran, or the family farm, or the National Endowment for the Arts, or a host of other controversial causes and interests. Many people sincerely object often on entirely plausible grounds of self-interest or political principle or moral scruples to any of these grants of aid. But our working assumption has been that if government concludes that such aid will serve the public interest, the courts have no call to intervene. And there is no good reason to treat parochial schools differently.

Everson Summary from Oyez

 

 From Oyez:

Facts of the case

A New Jersey law authorized reimbursement by local school boards of the costs of transportation to and from schools, including private schools. 96% of the private schools who benefitted from this law were parochial Catholic schools. Arch R. Everson, a taxpayer in Ewing Township, filed a lawsuit alleging that this indirect aid to religion violated both the New Jersey state constitution and the First Amendment. After losing in state courts, Everson appealed to the U.S. Supreme Court on purely federal constitutional grounds.

Question

Did the New Jersey statute violate the Establishment Clause of the First Amendment?

Conclusion

A divided Court held that the law did not violate the Constitution. Justice Black reasoned that the law did not pay money to parochial schools, nor did it support them directly in anyway. It was rather enacted to assist parents of all religions with getting their children to school.

Justices Jackson, Frankfurter, Rutledge, and Burton dissented.  

 

The problem with Everson is not its holding concerning the bus subsidy. There are two problems:

1. The incorporation decision made by assertion without any analysis of the relevant issues.

2. Justice Black's use of the Wall of Separation Between Church and State metaphor, a phrase that is found nowhere in the text of the First Amendment. 

 

 

Do You "Feel" or "Think" About Legal Issues

 "Using 'feel' instead of 'think' is a sign that feeling is doing more work than thinking." --Ed Whelan

Louisiana Law Requires Display of Ten Commandments in Public Schools

 Here is a short article explaining the law: 

And here is a quotation from the article:

"The legislation requires that by January 1, 2025, all K-12 public schools, charter schools, and state post-secondary institutions place in their classrooms a poster-size copy of the Ten Commandments (“10Cs”). The 10Cs are to be displayed along with a three-paragraph “context statement” situating the commandments as part of the American educational experience for almost three centuries."

 Is this new law constitutional under the current Supreme Court test for the Establishment Clause?

 

From AP:

New Texas law will require Ten Commandments to be posted in every public school classroom

By  JIM VERTUNO

Updated 7:16 PM CDT, June 21, 2025

AUSTIN, Texas (AP) — Texas will require all public school classrooms to display the Ten Commandments under a new law that will make the state the nation’s largest to attempt to impose such a mandate.

Gov. Greg Abbott announced Saturday that he signed the bill, which is expected to draw a legal challenge from critics who consider it an unconstitutional violation of the separation of church and state.

A similar law in Louisiana was blocked when a federal appeals court ruled Friday that it was unconstitutional. Arkansas also has a similar law that has been challenged in federal court.

The Texas measure easily passed in the Republican-controlled state House and Senate in the legislative session that ended June 2.

“The focus of this bill is to look at what is historically important to our nation educationally and judicially,” Republican state representative Candy Noble, a co-sponsor of the bill, said when it passed the House.

 

From Religion Clause blog: 

 Suit Challenges Texas Requirement for 10 Commandments in Classrooms 

Suit was filed last week in a Texas federal district court challenging the constitutionality of a recently enacted Texas law that requires the display of the Ten Commandments in every public-school classroom. The complaint (full text) in Alexander v. Morath, (ND TX, filed 6/24/2025) alleges in part:

Senate Bill 10 ... is not religiously neutral, as it mandates the display of a specific version of the Ten Commandments in every public-school classroom. This requirement inherently takes a theological stance on the correct content and meaning of the scripture....

The version mandated by S.B. 10 mostly aligns with a Protestant rendition but does not match any version found in the Jewish tradition, notably omitting key language and context from the Torah. Furthermore, it does not match the version followed by most Catholics, as it includes a prohibition against "graven images" which could be offensive given the role of iconography in the Catholic faith....

84. As a result of the Ten Commandments displays mandated by S.B. 10, Texas students—including minor-child Plaintiffs—will be unconstitutionally coerced into religious observance, veneration, and adoption of the state’s favored religious scripture, and they will be pressured to suppress their personal religious beliefs and practices, especially in school, to avoid the potential disfavor, reproach, and/or disapproval of school officials and/or their peers. ...

85. In addition, by mandating that one version of the Ten Commandments be displayed in public educational institutions and prescribing an official religious text for school children to venerate, S.B. 10 adopts an official position on religious matters, violating the Establishment Clause’s prohibition against taking sides in questions over theological doctrine and violating the “clearest command” of the Establishment Clause that “one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982).

86. There is no longstanding historical practice or tradition of prominently and permanently displaying any version of the Ten Commandments in American public-school classrooms. On the contrary, the Supreme Court unambiguously held in Stone that such a practice is proscribed by the Constitution.

Texas Tribune reports on the lawsuit.

Why Religious Liberty is Foundational in a Free Society

 Here is a link to Mark Rienzi's (of Becket) powerful statement:

link 

 

Little v Llano County: Fifth Circuit rejects Free Speech claim regarding public library's removal of books

 Little v. Llano County Link

 

Money quotation:

We consider whether someone may challenge a public library’s removal of books as violating the Free Speech Clause. Patrons of a county library in Texas sued the librarian and other officials, alleging they removed 17 books because of their treatment of racial and sexual themes. The district court ruled that defendants abridged plaintiffs’ “right to receive information” under the Free Speech Clause and ordered the books returned to the shelves. On appeal, a divided panel of our court affirmed in part. We granted en banc rehearing.   We now reverse the preliminary injunction and render judgment dismissing the Free Speech claims. We do so for two separate reasons. First, plaintiffs cannot invoke a right to receive information to challenge a library’s removal of books. Yes, Supreme Court precedent sometimes protects one’s right to receive someone else’s speech. But plaintiffs would transform that precedent into a brave new right to receive information from the government in the form of taxpayer-funded library books. The First Amendment acknowledges no such right.

 

Do you agree with the Fifth Circuit's opinion? 

Vice President Vance on American Exceptionalism and Protecting Democracy

 Vance's speech to European leaders in February 2025:

 

For years, we’ve been told that everything we fund and support is in the name of our shared democratic values.

Everything—from our Ukraine policy to digital censorship—is billed as a defense of democracy.

But when we see European courts canceling elections, and senior officials threatening to cancel others, we ought to ask whether we’re holding ourselves to an appropriately high standard.

And I say “ourselves” because I fundamentally believe that we are on the same team. We must do more than talk about democratic values. We must live them.

Within living memory of many of you in this room, the Cold War positioned defenders of democracy against tyrannical forces on this continent.

Consider the side in that fight that censored dissidents, closed churches, and canceled elections. Were they the good guys?

Certainly not. And thank God they lost the Cold War. They lost because they neither valued nor respected all of the extraordinary blessings of liberty—the freedom to surprise, to make mistakes, to invent, to build.

As it turns out, you can’t mandate innovation or creativity, just as you can’t force people what to think, what to feel, or what to believe.

We believe those things are certainly connected. Unfortunately, when I look at Europe today, it’s sometimes not so clear what happened to some of the Cold War’s winners. I look to Brussels, where EU commissars warn citizens that they intend to shut down social media during times of civil unrest, the moment they spot what they’ve judged to be “hateful content.”

Or to this very country, where police have carried out raids against citizens suspected of posting anti-feminist comments online, as part of "Combating Misogyny on the Internet: A Day of Action."

I look to Sweden, where two weeks ago, the government convicted a Christian activist for participating in Quran burnings that resulted in his friend’s murder. And as the judge in his case chillingly noted, Sweden’s laws to supposedly protect free expression do not, in fact, grant a free pass to do or say anything without risking offending the group that holds that belief.

And perhaps most concerningly, I look to our very dear friends, the United Kingdom, where the backslide away from conscience rights has placed the basic liberties of religious Britain in the crosshairs.

A little over two years ago, the British government charged Adam Smith-Connor, a 51-year-old physiotherapist and army veteran, with the heinous crime of standing 50 meters from an abortion clinic and silently praying for three minutes.

Not obstructing anyone. Not interacting with anyone. Just silently praying on his own. After British law enforcement spotted him and demanded to know what he was praying for, Adam replied simply: “It was on behalf of the unborn son he and his former girlfriend had aborted years before.”

Now, the officers were not moved.

Adam was found guilty of breaking the government’s new “buffer zone” law, which criminalizes silent prayer and other actions that could influence a person’s decision within 200 meters of an abortion facility.

He was sentenced to pay thousands of pounds in legal costs to the prosecution.

Now, I wish I could say that this was a fluke—a one-off crazy example of a badly written law being enacted against a single person.

But no.

This last October, just a few months ago, the Scottish government began distributing letters to citizens whose houses lay within so-called Safe Access Zones, warning them that even private prayer within their own homes may amount to breaking the law.

Naturally, the government urged readers to report any fellow citizen suspected guilty of thought crime.

In Britain and across Europe, free speech, I fear, is in retreat.

And in the interest of comity, my friends, but also in the interest of truth, I will admit that sometimes the loudest voices for censorship have come not from within Europe, but from within my own country, where the prior administration threatened and bullied social media companies to censor so-called misinformation.

Misinformation like, for example, the idea that coronavirus had likely leaked from a laboratory in China.

Our own government encouraged private companies to silence people who dared to utter what turned out to be an obvious truth.

So, I come here today not just with an observation, but with an offer.

And just as the Biden administration seemed desperate to silence people for speaking their minds, so the Trump administration will do precisely the opposite.

And I hope that we can work together on that.

Birthright Citizenship: Two Views

 Link

 Trump Might Have a Case on Birthright Citizenship (By Randy E. Barnett and Ilan Wurman):

 NYT Opinion Page

Nellie Bowles of the Free Press on Thanksgiving This Year

 "I'm thankful this year for the First Amendment. I never understood how precious it was, or how rare, but watching European countries send cops to people's houses for barely controversial Facebook posts has shocked me." 

Not to mention people being arrested in the UK for silently praying on the sidewalks in front of abortion clinics. Silently praying is a thought crime in Great Britain!

Bowles is right. American exceptionalism is real and free speech is one of the most important features of American exceptionalism. But even here, the First Amendment is under attack by elites who are shocked to learn that not everyone believes what they believe. 

But we have a Supreme Court whose First Amendment jurisprudence is the strongest sign of American exceptionalism. So I am also thankful this year for the First Amendment, and for the Court that supports and defends it.

Optional Exam Review Session: Monday December 2

 I plan to hold an optional exam review session on Monday December 2 during our regular class time and place. Our exam is December 9, so December 2 is the best date for this session. 

And remember what I told you in class--the exam will not cover the last materials we discussed on pornography and obscenity under the First Amendment. The law is too vague to hold you responsible for and I have no desire to write a question describing in detail material challenged as obscene.

Exam Info

The Exam consists of 3 essay questions, one of medium length (1000 words or less answer), one of 750 words or less, and one of 500 words or less. 

Here are the Exam  Instructions:

 

 Final Examination                                          Examination No.________
December 9, 2024
Three (3) Hours

Examplify Mode: Secure    

PLEASE CHECK TO BE SURE
EXAMINATION IS COMPLETE.    THIS EXAMINATION HAS 4 PAGES.

INSTRUCTIONS


1.    You must complete this examination using Examplify in the secure mode. Using the wrong Examplify mode is an Honor Code violation.

2.    If you experience computer problems, you will not be given more time to complete the exam. You should switch to writing in Green Books and work with the exam administration personnel when you have completed your exam. You may contact exam administration personnel to try to resolve the computer problem during the exam, but you will not be given more time to complete the exam.
3.    Write your exam number in the space provided above.
4.    It is an Honor Code violation to write beyond the time limit designated above.
5.    This is a 3 hour closed book/closed network examination. You may not have any written or printed materials with you while taking the examination nor may you consult any written or printed materials before turning in all portions of the examination.

   No cell phones or other electronics, other than the laptop you are taking this exam on, are allowed in this exam room.

6.    This examination will count for 225 points.

7.    Limit the length of your answers as specified in each question. Writing beyond the word limits will adversely affect your score for that question.
8.    You must return the exam questions and all used scratch paper, however nothing written on this exam or on any scratch paper will be graded.
9.    Confidentiality: It is an Honor Code violation to share these exam questions with anyone. It is also an Honor Code violation to retain a copy of this exam in any format (printed, downloaded, scanned, photographed, etc.).

Free Speech Coalition v. Paxton (Oyez Preview)

 From Oyez:

Facts of the case

Texas enacted H.B. 1181, a law regulating commercial entities that publish or distribute material on internet websites, including social media platforms, where more than one-third of the content is sexual material harmful to minors. The law requires these entities to implement age verification methods to limit access to adults and display specific health warnings on their landing pages and advertisements. It defines sexual material harmful to minors using a modified version of the Miller test for obscenity.

Shortly after the law was enacted but before it took effect, plaintiffs sued, claiming H.B. 1181 violates their First Amendment rights and, for some plaintiffs, conflicts with Section 230 of the Communications Decency Act. The district court issued a pre-enforcement preliminary injunction, finding that the plaintiffs were likely to succeed on the merits of their claim and suffer irreparable harm. The court ruled that the age-verification requirement and health warnings fail strict scrutiny—that is, that it is not narrowly tailored to achieve a compelling government interest using the least restrictive means to achieve that interest—and that Section 230 preempts H.B. 1181 for certain plaintiffs. On appeal, the U.S. Court of Appeals for the Fifth Circuit concluded that rational basis review—i.e., rationally related to a legitimate government interest—was the proper standard of review and thus vacated the injunction against the age-verification requirement but affirmed as to the health warnings.

Question

Is a Texas law that requires any website that publishes content one-third or more of which is “harmful to minors” to verify the age of each of its users before providing access subject to “rational basis” review or “strict scrutiny”?

Pornography, obscenity, and the First Amendment

 How should the Constitution be interpreted concerning obscenity and pornography?
    
 Is pornography a social problem or is it just a matter of taste?
    
 Should all forms of expression be protected absolutely, in which case we would rely solely on the market to decide which books and movies are published and which are not?    

Should we temper a strong commitment to freedom of expression with a small area of permissible regulation (i.e. should we allow the worst forms of hard core pornography to be regulated while protecting everything else)?
    
 Or should we allow government a lot of room to protect us against cultural pollution?  Central meaning of First Amendment seems far removed from internet porn. Moreover, almost everyone is concerned about children and the fact that they are a couple of clicks on their phones away from unthinkably evil videos and images.

Also consider Prof. Catherine MacKinnon's law review article on Pornography as Trafficking, 26 Michigan Journal of International Law 993 (2005):

In material reality, pornography is one way women and children are trafficked for sex. To make visual pornography, the bulk of the industry's products, real women and children, and some men, are rented out for use in commercial sex acts. In the resulting materials, these people are then conveyed and sold for a buyer's sexual use. Obscenity laws, the traditional legal approach to the problem, do not care about these realities at all. The morality of what is said and shown remains their focus and concern. The injuries inflicted on real people to make the materials, or because they are used, are irrelevant to what is illegal about obscenity. Accordingly, as the trafficking constituted by the exhibition, distribution,  sale, and purchase of materials that do these harms is ignored.

Can the government regulate pornography?  Is it possible to distinguish between harmful movies and books and movies and books that may deal with sexual themes but which are nevertheless artistically worthwhile? And how can we enforce laws against the ubiquitous existence of internet pornography on the web? As Professor Stone concludes in his article on law and obscenity:

Perhaps ironically, we are where we are today not because citizens intentionally voted to make the most extreme forms of sexual material legal, not because judges intentionally held that the Constitution should protect the most extreme forms of such material, but because technology overwhelmed the capacity of the law to constrain the availability of such material. The challenge for the future is to make the best of it.

Should we shrug our shoulders and try to "make the best of" something so destructive as harmful? Or is there a way to at least protect children and victims of sex trafficking from harm?

Miller v California

 Although the Court had for a number of years held that “obscene” materials are not within the area of constitutionally protected speech or press, it had never managed to come up with a workable definition of obscenity.

 Justice Stewart once wrote a concurring opinion in an obscenity case in which he explained the difficulty of defining obscenity.  He said:
    
    “I have reached the conclusion . . . [that obscenity is] limited to hard-core pornography.  I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so.  But I know it when I see it.”  Jacobellis v. Ohio 378 U.S. at 197.
    

If it makes me blush, you can ban it!  That’s the best Justice Stewart could come up with.  Is this test just a wee bit vague?  

 Did the Court do any better in Miller v. California?
    
 Miller comes up with a three-part test for non-protected obscenity (which, says the Court, is "categorically...unprotected by the First Amendment."):
    
        1) whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest.    

What does “prurient interest” mean?
    
        The Court has defined prurience as material appealing to a shameful or lascivious or lustful interest in sex.  It does not include a normal interest in sex.
    
 What does that mean?
    
 In one case, the Court held that an erotic magazine was “prurient” because the “leer of the sensualist” had permeated the manner in which the publication had been distributed.    

The magazine had been mailed from the towns of Intercourse and Blue Ball, Pennsylvania and the publisher boasted of the explicit nature of the publication.  The publisher’s clear intent was to appeal to the prurient interest of potential readers.
    
  Now which community are we looking at – the local community (say in Idaho, Utah or Alabama) or a national standard?
    
        Take a look at the beginning of Roman Numeral III – the Court says that “First Amendment limitations . . . do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the ‘prurient interest’ or is ‘patently offensive.’”  
    
 Same test, but different standards (a movie that is not obscene in New York may be obscene in Mississippi).  Really a question addressed to the common sense of the jury.  An average jury pool in New York may have a different sense than an average jury in Mississippi.
    
        O.K.  Part two of the Miller test.
    
        Material is obscene if it “depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.” 
    
        What does that mean?  Again, this standard is supposed to be based upon contemporary community standards as understood by average jurors. 

 “[N]o one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct...”

 So what happens in Jenkins v. Georgia when a Georgia jury applies local community standards and concludes that the movie "Carnal Knowledge" is prurient and patently offensive?
    
        The Supreme Court buys some popcorn and malted milk balls, goes to the movies, and says “as a matter of constitutional law” Carnal Knowledge is not “patently offensive.”
    
        Why not?
    
        It’s not “hard core”? 
    
        What is “hard core”?
    
        Justice Stewart knew it when he saw it and so, apparently, does the Court.
    
        Five thumbs up for Carnal Knowledge – it’s a “must see”!  I mean come on! A young Jack Nicholson and Artie Garfunkel (without Paul Simon)! The Court takes upon itself the task of distinguishing community standards of prurience and offensiveness from mere “community prejudice.”  Nowak at 1137.
    
       Third part of the test:
    

A work is not obscene, even if it is prurient and patently offensive, unless in addition it lacks “serious literary, artistic, political, or scientific value.” (p. 1280) “Taken as a whole.”

 The third part of the test is not judged by local community standards.  Rather, it supposedly is to be decided on an objective basis (i.e. whether a reasonable person would find serious literary, artistic, political, or scientific value in the material, taken as a whole). So, artistic photography--even if hard core-- such as that of Robert Mapplethorpe, is protected because of its serious artistic value.

This is why Professor Stone ends his article with this observation:

Perhaps ironically, we are where we are today not because citizens intentionally voted to make the most extreme forms of sexual material legal, not because judges intentionally held that the Constitution should protect the most extreme forms of such material, but because technology overwhelmed the capacity of the law to constrain the availability of such material. The challenge for the future is to make the best of it.

 

First Amendment Fall 2024: Assignments For November 18, 19 & 20

 --Christian Legal Society v. Martinez (link); Freedom of Speech of Government Employees: Pickering (link);. Connick (link); Garcetti (link); Discussion of 6th Circuit decision in Meriwether v. Hartrop (blog post to be provided)

-- Obscenity and Pornography: Read the cases (Stanley, Smith, Miller, Jenkins) and discussion set forth here (link) ; handout articles from Washington Post (Halverson) and ABA (Stone article)

--Preview:  Free Speech Coalition v. Paxton (Issue: Whether the Supreme Court should stay the U.S. Court of Appeals for the 5th Circuit’s judgment allowing Texas to enforce the age verification requirements of H.B. 1181 on commercial websites that contain sexual content).