Does party express disagreement with message? a. If no, party loses b. If yes, proceed 2. Is there a likelihood of attribution a. If no, party loses 69
b. If yes, proceed 3. Any ability to disclaim ? a. If no, party loses b. If yes, party wins b. Hurley v. Irish-American Gay and Lesbian Group of Boston (1995) i. Faces – St. Patrick’s Day parade organized by War Veterans. Local ordinance requires that gays and lesbians are part of the group (anti-discrimination). The group says their right not to speak is being violated if forced to include gays in the parade. ii. Held – Compulsion violates right not to speak iii. Rule – Groups have a 1st Amendment right not to be forced to accept participants whose presence would interfere with the group’s expressive activities iv. Analysis – 1. Does party express disagreement with message? Yes, absolutely 2. Is there a likelihood of attribution? Yes a. Parade itself is an expressive activity, so if in parade, likely to think that allowing group is part of the parade’s message 3. Any ability to disclaim? No, it would be unusual to have a disclaimer in a parade c. Board of Regents v. Southworth (2000) i. Facts – University students must pay student activities fee. Funds are used to support various organizations. Some students claimed their right NOT to speak was violated by the university supporting groups whose messages the students disagreed with. ii. Held – No violation iii. Rule – So long as we are establishing a limited public forum and the distribution of funds is viewpoint neutral, the student activities fund requirement is not a violation of the right not to speak iv. Notes – 1. Other half of Rosenberger III. COMPELLED DISCLOSURE IN COMMERCIAL SPEECH a. Compelled Disclosure i. Government is not saying you must say statement one; rather the government is saying if you say statement one, you must say statement two ii. Lots of government deference 1. Compelled statement need only be reasonable related to preventing deception 2. Contrast with strict view, which would require government to show that first statement is misleading before it could compel disclosure iii. Why did the Court adopt deferential view? 1. Anti-Paternalism View – Not suppressing facts, requiring more facts b. Test ( Zauderer ) 70
i. State may compel disclosure ii. of truthful information iii. if disclosure is reasonably related iv. to preventing deception v. BUT, if unduly burdensome then regulation may violate the 1st Amendment § 18 - Freedom of Religion I. INITIAL THOUGHTS a. Two Main Clauses – i. Establishment Clause – Prohibits any law “respecting the establishment of religion” 1. Prevents government from endorsing or supporting religion 2. 3 main areas of the Establishment Clause: a. Prayers and invocations b.
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