Constitutional Law II:



Constitutional Law II:

Professor Williams

Fall 2002

(Potential exam questions)

PART I: FREE SPEECH

First Amendment Doctrine: General

a. Doctrine

i. 2 Questions

1. Scope of right – whether 1st amendment applies to particular repression of speech; depends on variables below

2. Strength of right – assuming 1st amendment applies, what level of protection is afforded; depends on variables below

3. Definitional balancing – using the strength of a right to define its scope; ie. a weaker speech category may be curtailed easier (e.g. libel)

4. Religion – same 2 questions; note that Establishment clause applies to scope

ii. Variables

1. Character of speech – what category is the speech in?

2. Nature of governmental regulation – content neutral, time/place/manner, etc.

3. Importance of state interest – compelling state interest for strict scrutiny

b. Themes

i. Values served by free speech and dangers of suppression: why is it worth protecting? What should we protect? See theories below

ii. Expression vs. action

iii. Content neutrality and non-discrimination: mode vs. speech itself

iv. Categorization: can we draw lines between categories of speech? If not, why not?

v. Role of government as facilitator: equalizing voices – is that abridgement of speech or ensuring equal right to speak?

c. General Issues in Constitutional Law

i. Political: countermajoritarian problem of appellate courts determining constitutionality; note constitution itself is countermajoritarian because it sets limits on majority’s will

ii. Linguistic: ambiguity of words in the constitution, and the court’s ability to interpret language

iii. Sociological: change vs. stability, progress vs. framers’ intent

iv. Challenges:

1. As applied – only looks at the particular case at bar and says the law should not be applied to me. Does not strike down law.

2. Facial – looks at entire restricted class and says unconstitutional as applied to anyone. Strikes down law, but higher standard of scrutiny than as applied challenges

3. Overbreadth – special to constitutional issues; can argue that even if the law is OK as applied to me, there is a potential person out there who would be wronged by it. Chill problem. Strikes down law when it is substantially overbroad (Broadrick v. OK), ie. substantial universe of possible speakers must be chilled for overbreadth to work. NOT USED for lower protected speech.

4. Vague – notice problem; strikes down law.

d. Types of Effects

i. Communicative: those harms that stem from speaker sending a message and that message being received by the listener; ask whether harm occurs through the mind of the listener

ii. Non-communicative: those harms that happen regardless of message; memory aid: if the speech was in a foreign language nobody understood, would the harm still happen?

iii. Primary: direct effect of message – communicative harms

iv. Secondary: indirect effect of mode of speech – non-communicative harms

e. General Levels of Scrutiny

i. Strict Scrutiny: compelling government interest, least restrictive means

ii. Content Based: substantial government interest, narrowly tailored, adequate alternatives

iii. Time, place & manner: content neutral, reasonable government interest, narrowly tailored, with adequate alternatives

iv. Rational Basis: reasonable government interest

I. History of Free Speech

a. Framers’ Intent

i. Blackstonian theory: government regulation prohibited as prior restraint, but free to regulate after publication. Idea is that individuals should be responsible for harms they cause, but can say what they want anyway. Can’t decide if something’s harmful before it is said – hence no prior restraint.

ii. Seditious libel: a subsequent punishment for inflammatory speech against the government (Chafee, Levy)

1. What was Framers’ intent?

a. Historical evidence – problem being evidence is never clear cut

b. Availability of other means of criticism – not enough to restrict criticism to voting, because slower, inefficient, and only majority views. Also, free speech necessary for informed voting.

c. Limit – clear and present danger

2. Zenger principles: Levy believes Framers initially accepted libel prosecutions so long as these principles applied

a. Truth as a defense – but hard to prove truth of opinions

b. Jury trial required – but jury is not always impartial to unpopular opinions

c. Intent to cause injury to government established – too easy to establish from speech against government

3. Democratic theory: Political view of government – does state control people, or vice versa? Chavee says no libel possible because people are master of the state, so state can’t control what people say.

4. Is seditious libel central?

iii. Federalism: (Levy) Because the federal government is of limited powers according to intent of Framers, it could not regulate speech even without the 1st amendment. A surety more than necessary. States, however, could regulate speech

iv. Impact of Alien & Sedition Acts: (Levy) changed Framers’ intent because it threw out the Federalism idea. Political power struggles based on shifting focus from British vs. colonial to inter-American politics caused this, the prior/subsequent restraints idea was dumped, and the 1st amendment took off.

v. Relevance of Press Practice: (Rabban) More freedom of press occurred during Framers’ time than showed in constitutional harangues; what’s more important, theory or practice?

b. Why is Framers’ Intent Relevant?

i. Objectivity

1. Value – stable objective starting point for meaning of clause

2. Possibility –

a. Levels of generality – what might have been general intent can differ from specific intent

b. Historical evidence is shaky

ii. Binding: social contract theory – intent of “parties” to k is important in interpreting boundaries of the state’s ability to regulate for the better well-being of all. But do we sacrifice progress?

c. Alternative Sources of Constitutional Restraint

i. Natural Law: moral basis for law; if constitution matches natural law, then it is right. Hard to tell what natural law is – different for each person

ii. Social Engineering: utilitarian theory - maximize welfare in the same way that murder crime does; but are we bound to punish innocents to maximize welfare?

iii. Social Cohesion & Identity: commonality and identity creation – nation building

II. Theories

a. Truth Theory (Mill, Milton)

i. The Way It Works: The purpose of free speech is achieving truth. All opinions must be expressed to get there.

1. True Opinions – suppressing truth would be antithetical to purpose, but must keep true opinions constantly open to challenge because of fallibility. Distinction between allowing speech because we recognize our fallibility and allowing ourselves to act even though infallible because we can speak against actions and correct ourselves later. Critical examination is therefore key. Suppression also intimidates, and stunts social capacities/intellectual faculties – enhances fear to think, similar to self-fulfillment theory here.

2. False Opinions – valuable in strengthening arguments for true opinions; keeps truth from becoming stale. Keeps people open to change toward truth, especially where opinions are partially true, partially false. Over-emphasis of unpopular views gets majority attention and moves us all toward truth via change.

ii. Assumptions

1. Fallibility – we are not infallible, and therefore don’t know truth when we see it to regulate it; but along with fallibility comes ability to correct ourselves.

2. Value of truth – truth theory believes truth is the highest goal, and the way to self-fulfillment.

3. Ability of people to recognize & accept truth – truth theory assumes that people will recognize and accept truth over false opinions (otherwise too risky to allow false opinions).

iii. Criticisms

1. Application

a. Market imperfections: in a perfect market for speech, truth would win, but in reality many imperfections keep us from that goal (distortion based on power, money, etc.); also, sheer quantity of information is too much for people to handle.

b. Time: do we always have time to talk? Clear and present dangers

2. Theoretical

a. Empirical claim: not possible to determine if free speech leads to truth because:

i. Time problem – have to know what is true beforehand

ii. Ambiguous causation – can’t tell that expression of ideas was what caused change

iii. Evaluation of progress – is flat world going around sun -> round world at center of universe a move toward truth?

b. Analytical claim:

i. Implausible assumptions

1. Is truth the only goal? What if a statement is true but runs against other strong values? Ex. study showing men smarter than women.

2. People don’t necessarily accept truth – psychological studies showing reluctance to change; exposure to ideas is insufficient

3. Reason leads to truth, but we are infallible, so how do we know that reason is leading to truth?

ii. Tautalogical – if truth is whatever people believe after free discussion, then truth never bears relation to external reality

iv. Implications

1. Countermajoritarianism – protect minority for the good of majority and minority; speaker protection not only for speaker but listener as well

2. Ambiguity – narrow view of truth as only prepositional would cut out protection of art, music, etc. Also, if we only care about truth, then we can channel speech to make it more difficult and not be a serious abridgement – even content based.

3. Change vs. tradition – tradition has no value in itself – must change toward truth

b. Democracy Theory

i. Liberal vs. Republican Theory

1. Liberal Theory

a. Deontology: moral values are subjective, endowed with reason to choose values

b. Most important value: equal liberty to express yourself

c. Respect capacity for choice – majoritarian democracy (Locke)

2. Republican Theory

a. Teleology: moral values are objective, and purpose of life is finding truth

b. Discovery of common good can only happen in societies, through participation and facing of other opinions

c. Must promote common good by creating virtuous citizens who put common good ahead of their own personal desires (Rousseau)

ii. Meiklejohn

1. Argument

a. Democracy means people control – state is by and for the people, so citizens need free speech to govern. Certain powers are delegated to government, but power to vote is retained solely in the people.

b. People need speech to control

i. Information - Information gathering purpose of free speech (similar to Mill)

ii. Participation – people play dual roles: public citizens as voters, private citizens as those who submit to laws created. Important to speakers so they can participate in government and raise new ideas

c. Purpose of speech is to protect speech necessary for democratic government – so focus on public role as voter. Necessary to fulfill constitutional requirements – so not really a fundamental right, but only that because the constitution chooses democracy, we must have free speech to be in keeping with that

2. Criticisms

a. Ambiguous definition of democratic regulation/value choice – line between useful and not useful speech is ambiguous

b. Public/private distinction – problematic, because private speech has indirect effects on public discourse (where do you draw the line)

c. Decision to suppress – when is danger enough to suppress? Doesn’t government have ability to protect citizens from immediate violence before it occurs? Too late.

3. Implications

a. Countermajoritarian – minority view is cut out under either deontological or teleological theories, and become suppressed – so doesn’t protect speech for all

b. Ambiguity

i. Scope of right – critical speech is protected, as well as private speech that protects the politus

ii. Types of speech – doesn’t like clear and present danger because balancing danger against speech, and speech in a democracy is vital to the government; only when incitement to violence is immediate could the state step in

iii. Type of environment – some areas are protected more than others (prisons, military schools are not protected because not democratic societies)

iii. Bork & Sunstein

1. Bork:

a. Value of free speech is search for political truth – political truth = will of the majority

i. Scope of right: speech must be political (ie. about how we are governed) to be protected – either content is political/has political effect, or the form is political (ie. speech at the courthouse), or has a political intent

ii. Explicitly political speech: highest protection goes to explicit political content speech, then form, then intent

iii. No advocacy of illegality: must work within the law, can’t go around it, because if you go around the law you go around the Constitution which protects speech in the first place. Must use democratic process to change law.

b. Criticisms –

i. Scope doesn’t match value: political speech may not spread political truth

ii. Value is not unique to speech: political truth may be found in other ways than speech

iii. Advocacy of illegality serves value too: will of majority (ie. political truth) is always changing, so advocacy of illegality must be protected to change

2. Sunstein:

a. Republican model of democracy – political process is for finding common good, and must have adequate information to do this. To have adequate information you need political equality of citizens (esp. voting) and participation by all citizens.

b. Role of speech within republican democracy – free market model – need free speech to give information

c. Criticisms –

i. Not in touch with reality: manipulation of process is routine so no equality, and not perfect flow of information.

ii. Everyone has a different view of what the common good is.

iii. Free market model is problematic because new ideas do not have the demand to be heard (ex. of press sensationalism & agendas) – mass market problems. Can say that government may regulate speech market, but in reality there is strong distrust of government.

c. Utilitarian & Tolerance Theories

i. Utilitarian Theory

1. Arguments (Schauer)

a. Mental fitness – max. utility is achieved through move toward truth, which is facilitated by free speech (like Mill). Utility of free speech is in sound mind achieved through clash of ideas. Teleological.

b. Suppression doesn’t work – curiosity of citizens in suppressed speech makes falsehoods stronger – assumes no 100% suppression possible

c. Social stability – free speech reduces use of violence because it lets off tension, enhances trust in government, participation makes people inclined to follow rules even if they don’t agree,

d. Dangers of censorship – breeds violence; censorship is poorly done; human need to suppress ideas we disagree with

2. Criticisms

a. Doubtful assumptions –

i. Assumes people know truth from falsehood

ii. No empirical data for counterproductivity of suppression

iii. Assumes distrust in government (because suppression enhances interest)

iv. Assumes speech does not fuel anger or violence

b. Limited application – does not work for non-propositional speech; only looks at utilitarian values

ii. Tolerance Theory (Bollinger)

1. The Theory

a. Intolerance as expression – both tolerance and intolerance (ie. regulation) are expressive responses to speech. Also, push toward intolerance for fear of what tolerance might indicate – weakly held beliefs, uncertainty, etc.

b. Applies to all acts – but single out speech as enclave of tolerance because it causes less harm than acts

c. Free speech teaches tolerance – by providing one area of perfect tolerance, it teaches us to be tolerant in other areas of life too

2. Criticisms

a. Scope – extreme tolerance in this one area is possible because it is a smaller area – as opposed to requiring total tolerance across the board. But where do you draw the line between speech and act? Not a clear boundary.

b. Strength – should be absolute if extreme tolerance, though Bollinger says some regulation allowed – inconsistent.

c. Timing – is intolerance more acceptable in war time, etc.?

d. Countermajoritarian in that extreme tolerance protects minority views against the majority’s will to intolerance.

d. Self-Realization Theory

i. The Theory

1. Value defined: For Baker, self-fulfillment and the expression of that value, participation in social change. All other values are subsumed in these two values. For Redish, self-fulfillment through realization of an individual’s potential and abilities and realization of an individual’s goals, destiny. More focus on controlling individual’s life – speech helps define our goals.

2. Source of value:

a. Philosophy (Baker) - Basis of a legitimate government is respect for citizens – basis for society. Deontological basis, because high respect for reason and truth is chosen, not discovered.

b. Choice of democracy (Redish) – constitution commits us to democracy, which is focused on individual control of our daily lives and decisions. Also, participation in political process moves us toward full potential. Democracy and speech are means to self-realization. Teleological basis.

3. How free speech serves: least coercive, destructive method of changing others’ views, because it works through the mind. Speech that is a part of coercion is not protected.

a. Coercion is defined as leaving the listener with fewer options than he has a right to expect, or illegitimately changing those options – illegitimate means are those that do not respect listeners’ autonomy

4. Two Step Analysis (Baker):

a. Voluntary? If not voluntary, then analysis stops because speech must be voluntary to be self-expressive.

b. Non-coercive? Only harm considered is harm to autonomy (not respect, property, etc.)

5. Scope of right: Baker suggests new categories -

a. Self-expressive speech – includes that speech that noone else ever sees, and that without intent to change views.

b. Creative speech – not communication but participation in culture

c. Commercial speech is left out because he assumes it is driven by the market, not creativity or self-expression

6. Strength of right:

a. Absolute (deontology) – because if abridged then government legitimacy is undermined.

b. Not absolute (teleology) – could be outweighed by other goods than free speech

ii. Criticisms

1. Values controversial: and based on one version of what legitimates government – if you don’t buy the underlying values, then you can’t buy this argument at all.

2. Speech harms are not the only kind that work through the mind; example of theft not harmful without concept of ownership. Possible distinction, however, is that with theft “listeners” have no choice as to whether the harm will be inflicted. With advocacy of burning draft cards, or obscenity causing listener to rape, some listener has choice.

3. Scope:

a. Has no distinction between speech and action for either theorist

b. Is non-voluntary speech without value as defined here? Teleological response would say that distinction between voluntary and non-voluntary is not clear

c. Value hierarchy problem, because my self-expression might harm others’ personal growth

4. Strength: absolute is hard to sell, but balanced right requires a line drawn that is hard to do.

e. Elements of a Theory:

i. Specify values – what does self-fulfillment mean?

ii. Find source for values - problems of ambiguity in constitution and controversial nature of moral/political theories

iii. Define scope of right – how does speech serve those values, and why do unprotected activities and speech not serve those values?

iv. Define strength of right – justify level of protection that the theory leads to, balancing other concerns against the right, depending on the source of values (deontology/teleology)

v. Do theories explain each of the categorical exclusions the Court has created?

III. Government Regulation of Speech on the Basis of Content

a. Categories Government May Regulate Based on Content

i. Subversive Speech

1. Consequences of speech

a. Clear & present danger vs. tendency

b. Interpretive issues –

i. Immediacy of harm gleaned from nature of speech;

ii. Likelihood of harm occurring; Schenck look to totality of the circumstances

iii. Size of the harm

iv. Relationship between the other variables

2. Roll of intent

a. Evidence of danger

b. Attempt analogy – Schenck, Debs (1919) uses attempt analogy to explain why they punish speech instead of waiting for harm to occur; requires nexus between speech and crime, which is clear & present danger test

c. Statutory interpretation vs. const’l requirement – legislature has sometimes included intent requirement, but it’s not in the Constitution (Debs)

3. Character of speech – incitement vs. advocacy (Masses, Brandenburg)

a. Statutory interpretation vs. const’l requirement – move toward including intent requirement in constitutional analysis

b. Judicial competence – better able to deal with language than determining causal harms

4. Application (court vs. legislature)

a. General judgment of harm – Gitlow reliance on legislature to determine harm; Brandenburg, court decides

|Situation |Law Applied |Outcome |

|Legislature proscribes action and D hauled in for|Schenck, Debs |Clear & present danger 4 part test – will speech lead to|

|speech leading to action | |proscribed end |

|Conspiracy to cause harm proscribed by |Dennis, Yates |As applied challenge only if harm is not present in this|

|legislature | |particular case (but under Dennis not even this); |

| | |possibly an overbreadth challenge/vague, but no cases to|

| | |date. Question as to importance of size of harm to |

| | |Dennis analysis. |

|Legislature proscribes speech itself as |Brandenburg (over Gitlow, Whitney) |Constitutional interpretation: directed to producing or |

|dangerous, and an individual is prosecuted | |inciting imminent lawless action and likely to produce |

| | |such action. |

ii. Libel and Privacy Invasion

1. Group Libel – Beauharnais: rational basis review, very low, because libel is not protected speech – historical basis, and so little value that it is overwhelmed by interest in protecting reputation of citizens; question with regard to application to hate speech laws. Requires a defined group and P to fit in that group.

2. Individual Libel

a. Character of P

i. Public figure – NY Times: libel against public figures is only punishable if done with actual malice; otherwise, public figures should be hardy enough to survive it. Ltd. vs. general public figure distinction – should/do general public figures have any privacy?

ii. Private figure – Gertz: only actual damages, no actual malice required.

iii. Character of D – media vs. not media

3. Privacy – Florida Star: statutes that protect privacy must:

a. Concern private figures;

b. Apply to everyone;

c. Not apply to public issues;

d. Concern illegally obtained information

e. Falwell – emotional distress is not enough to uphold privacy claim against speech

4. Explanation

a. Purpose of false speech – anti-chill

b. Government interest – reputation of citizens

c. Theories of speech – Mill, Meiklejohn

|*LIBEL* |Issue of Public Concern |Issue not of public concern |

|Public figure |New York Times, Curtis, Rosenbloom – actual |Ltd. figure – if in the ltd. role then in NY |

| |malice for liability; presumed and punitive |Times; if outside then Dunn or Gertz |

| |damages |General figure – NY Times |

|Private figure |Gertz – no actual malice for actual damages |Dunn & Bradstreet; common law question, no std. |

| | |for actual damages – just show damages |

|*PRIVACY* |Case |Result |

|Public issue and private figure |Time |Actual malice std. |

|Private issue and private figure |Florida Star |Statute only OK if 1. concerns private figures; 2.|

| | |applies to all D; 3. Not applied to public issues;|

| | |4. concern illegally obtained info. Strict |

| | |scrutiny std. |

|Public figure, protected speech |Falwell |Emotional distress is not enough to stop speech |

iii. Fighting Words, Offensive Speech, Hostile Audiences

1. Fighting Words

a. Definition (Chaplinsky)

i. Those that by their very utterance inflict injury or tend to incite an immediate breach of the peace. Does not have to be face to face or directed to an individual in Chaplinsky, but later cases limit it as such.

b. Explanation

i. Value of speech – in promoting ideas is outweighed by the government interest

ii. Government interest – in promoting order and morality

2. Hostile Audiences

a. Clear & Present Danger (Terminiello)

i. Intent relevant? Cases are pre-Brandenburg, so likely intent to incite would be relevant now

ii. How likely the harm? imminent

b. Control crowd vs. control speaker – should police have the duty to protect speakers from unruly crowds?

3. Offensive (but not obscene) (Cohen)

a. Offensive speech is not enough to justify content based regulation of speech unless the listener’s right to privacy is high and offensiveness is achieved in an essentially intolerable manner. Two concerns: 1. Where offense takes place (public vs. private) and 2. How hard it is to escape the offense.

b. Is it less dangerous to regulate based on method of expression of speech, rather than the ideas the individual expresses?

iv. Obscenity and Porn

1. Obscenity Defined

a. Elements

i. Average person applying community standards sees the work, taken as a whole, goes to prurient interest (Roth)

1. Community standards depend on locality (Miller), though the constitution provides a floor (nudity is not enough by itself). Community is made up of adults, unless work is directed to or reasonably expected to get to kids

2. Prurience is a shameful or morbid interest in sex

ii. Sexual conduct must be specified in regulating statute (Miller) – notice requirement, but ambiguous

iii. Without serious social value (Miller) – ambiguous, lesser std. such that speech with small social value is abridged

b. Problems

i. Vagueness

ii. Overbreadth

2. State Interests

a. Moral interests

i. Individuals’ thoughts – not allowed (Stanley)

ii. Moral tone of communication – changes tone of speech, eventually changes culture b/c expected responses, etc. Change vs. stability

b. Other

i. Preventing crime

ii. Preventing offense to unconsenting adults

iii. Protecting minors

iv. Physical changes in communication

3. Justifications

a. Lacks contribution to purpose of speech

b. Method: physical vs. mental/emotional - an obscene movie is more immediate and bypasses rational faculties – is this a reason to exclude (cf. art)

|Situation |Case |Outcome |

|Obscenity in commercial transactions |Miller |No protection, rational basis review |

|Private viewing of obscene materials |Stanley |Higher than rational basis review because lower|

| | |harms, etc. |

4. Child Pornography

a. State interest:

i. Distribution vs. production: Ferber

ii. Distribution vs. possession: Osborne

iii. Real children only: Ashcroft

b. Social value: Ferber

c. Overbreadth issues: doesn’t work here because government interest in protecting children overrides any “good” reason for the speech

|Situation |Case |Outcome |

|Child porn is produced or distributed |Ferber |Just about any regulation goes, very low |

| | |standard; perhaps an overbreadth argument? |

|Child porn is privately viewed/owned |Osborne |State may regulate |

|Virtual child porn |Ashcroft |Must pass Miller standard for obscenity |

5. Harm to Women:

a. Consent: in Ferber, harm was assumed because kids can’t consent. Question as to whether this would carry over to adult women.

b. Reasons to have statute: gender discrimination, rape, copycat acts, silencing and decredibilizing of women, keeps men from having good relations with women. Theories supporting this?

c. If we allow free speech, is there an attaching duty to remedy the gender inequality in another way? If we stop speech, acknowledge that we are inhibiting it for some other social purpose. Balance 1st and 14th amendments.

6. Near-Obscene Speech

a. Character of sp: lower value (Am Mini’th)

b. Nature of regulation:

i. Subject not viewpoint based

ii. Restriction not ban: (Schad, Papps)

c. Nature of gov’t interest

i. Primary effects: communicative only if (Pacifica)

1. Privacy and/or

2. Intolerable manner

ii. Secondary effects: non-communicative

1. Content neutral, e.g. noise is OK

2. Content based, e.g. urban blight is OK (Renton)

|Situation |Case |Result |

|Sexually explicit speech that does not meet |American Minitheaters, Renton |Low protection: substantial government |

|obscenity definition is zoned but not banned | |interest, and reasonable alternatives |

|Sexually explicit speech that does not meet |Schad |Low protection: substantial government |

|obscenity definition is banned | |interest, narrowly tailored |

v. Commercial Speech:

1. First Amendment value –

a. Misleading speech or illegal activity excluded (VA Pharmacy)

b. True and legal protected but lower value - does no more than propose commercial transaction; free flow of information

c. Not fully protected because verifiable, durable (no chill b/c market driven), low risk of self-interested censorship; are these always true though?

2. Government interest –

a. Substantial

b. Must be purpose other than the fact that the object is lower value speech (Discovery Network; compare Breard with Martin – once there is a separate legitimate purpose, it is easier to regulate lower value speech (Breard) than fully protected speech (Martin)).

c. Paternalism per se illegitimate because not the government’s place to regulate flow of information (VA Pharmacy, 44 Liquormart)

3. Nature of regulation –

a. Content distinction must be directly related to state interest

b. Narrowly tailored (44 Liquormart) – directly related to state’s end and no more extensive than necessary (Fox).

|Situation |Case |Result |

|Regulation of commercial speech |Ohralik, Bates |Important state interest, reasonable |

| | |alternatives |

|Total Ban of commercial speech |44 Liquormart, Central Hudson, VA Pharmacy |1. protected by 1st Amendment (concerning |

| | |lawful activity and is not misleading); 2. |

| | |government interest is substantial; 3. |

| | |regulation directly advances the government |

| | |interest; 4. not more extensive than necessary |

|Hybrid of commercial and political speech |In re Primus |Higher protection due to higher first amendment|

| | |value |

|Misleading speech or illegal activity |VA Pharmacy |No protection (dicta) |

vi. Hate Speech

1. Group libel – Beauharnais?

a. Limits: problematic b/c not all hate speech is libelous; also may not be good law b/c of NYTimes standard or Gertz

2. Fighting Words – (Chaplinksy)

a. Could fit if directed at an individual, but signs or symbols wouldn’t be covered. Also, may not actually incite violence

b. Content discrim. in excluded category?

3. New Category – (Ferber)

a. Need to indicate high state interest and low value of speech; but note that this would be viewpoint discrimination, so higher standard

b. Symbolic speech gets protection (Collin – “Skokie”)

4. Context

a. University – less tolerance because of need to provide good learning environment?

b. General public/public spaces

5. How would you draft a constitutional regulation?

|Situation |Case |Result |

|Regulation of excluded category |RAV |Content-based regulate must equal boundary of |

| | |category to get rational basis review, |

| | |otherwise strict scrutiny |

|Regulation of fully protected speech |Collin |Content based regulation receives strict |

| | |scrutiny |

b. Enforced Speech – Right to Silence

i. Explanation

1. Misinterpretation of identity, discredit voice (Wooley)

2. Hateful support – appropriation of speech

ii. Gov’t speech vs. coerced speech

1. Collection of factors

2. Affirmative vs. support

3. No ‘establishment’ clause for speech (Barnette)

|Situation |Case |Result |

|Regulation compels individual speech |Barnette, Wooley, Abood |Depends on harms (misinterpretation, |

| | |appropriation): either strict scrutiny or not |

|Regulation compels acceptance of speech on |Pruneyard |Depends on nature of property and harm to owner|

|private property | |– open to public, likely regulation OK |

|Activity is speech |Hurley |Owner must have control over content |

|Commercial activity involved |Glickman, United Foods |Coercive speech is OK within general regulatory|

| | |framework and where there is no ideological |

| | |speech involved |

c. Government Control of Speech in Exchange for Benefits

i. Right vs. privilege: initial view of question (changed now)

ii. Main question: is this a penalty for speaking or is it a refusal to fund speech?

iii. Unconstitutional condition doctrine: (Spizer)

iv. Continuum of state subsidized speech:

|Situation |Case |Result |

|Funding is to promote government speech |Rust, N.E.A. |Content discrim (both subject and vwpt) is OK, |

| | |unless only meaningful way of funding speech |

| | |(b/c then penalty) – refusal to subsidize |

| | |speech |

|Funding is to promote private ideas |Rosenberger, Velazquez |Content discrim is not OK – strict scrutiny – |

| | |penalty for exercise of fundamental right |

Government Regulation of Speech That Is Content Neutral (TPM)

d. Traditional Public Forum

i. Content neutral – test:

1. On its face

a. Viewpoint vs. subject matter discrimination

b. Not the most important inquiry (Hill)

2. Non-communicative harm (Mosley)

3. No discretion (Cox)

ii. Narrowly tailored significant state interest

iii. Adequate alternatives – considerations:

1. Cost of convenience

2. Format bans (Schneider) – ban on an entire method of communication. If strong enough interest in that method, strict scrutiny applies

e. New Forums

i. Non-traditional Public Places

1. Unlimited designated forum – treated like traditional public forum

2. Limited designated forum – if the regulation is at the same line as the boundary of the forum, then OK; if not, then strict scrutiny.

ii. Private Property

1. Character of property

a. Openness to public – choice of owner, up to point where speech disrupts purpose of property, except where geared toward the purpose of the property and no other way to get speech across

b. Essentially government function – degree it looks like traditional public function or forum (Marsh)

2. Speaker’s rights/adequate alternatives

a. Scarcity and relative market power – not quantifiable

b. Relation to particular speech – need for access to particular property for particular speech (Amalgamated Foods)

3. Owner’s rights

a. Property

b. Speech/silence

IV. Government Regulation Not Aimed at Speech – Symbolic Speech

a. When action is expressive (Spence)

i. Intent to convey message

ii. Receipt of message possible by audience

b. O’Brien standard

i. Substantial state interest – note that preserving national symbol is not enough (Johnson) unless it’s the only one of its kind (ex. Kennedy flame), in which case using it as speech would impede enjoyment by others.

ii. Unrelated to suppression

1. Non-communicative harm

2. Government interest in national symbols

iii. Narrowly tailored

c. Relation to other standards

i. TPM

1. Court says same and applies same cases (Clark)

2. Criticisms

a. Different problems: facilitative vs. expressive

b. O’Brien should be higher than TPM

c. Ignores precedent

ii. Secondary effects

1. Erie majority says related

2. Erie dissent distinguishes

d. Incidental regulations

|Situations |Case |Result |

|Regulation unrelated to speech, focusing on |O’Brien, Clark |Rational basis & adequate alternatives; note |

|secondary effects | |distinguish between speech and facilitative |

| | |action |

|Regulation of lower value symbolic speech |Erie |Rational basis & adequate alternatives; note |

| | |distinguish between speech and facilitative |

| | |action |

|Generally applicable regulation of another |Arcara, Minneapolis Star |Strict scrutiny (prior restraint?) |

|activity that falls disproportionately upon a | | |

|particular speech activity | | |

|Regulation of symbolic speech directly |Johnson |Treated as speech generally, based on forum, |

| | |content neutrality |

Prior Restraints

2 Definition – preventing speech before uttered, rather than subsequently punishing the speech. Court is hostile to prior restraints because

i. Truth will never get out unless people can speak

ii. Too much discretion in licensors

e. Standard of Review (either/or)

i. Direct, Immediate & Irreparable – if it meets this standard, then prior restraint is OK. Brandenburg plus analysis – also, no intent required.

ii. Deference to Executive – in determining dangerous nature of speech, balance deference to executive with judicial determination.

f. Procedural Safeguards – censor’s decision can’t be final, must have expedited review. Freidman v. Maryland. Some leniency in this toward lower value speech; for example, some states require viewing of near-obscene films to see if they are saleable.

g. Interpretive Issues

Freedom of Association

4 Why protect? Where a means of furthering speech and ideas, then first amendment association with protection. Private interference with right to associate is enough to invalidate a government requirement of disclosure of affiliation. NAACP v. Alabama (1958). Not certain this would be extended to other contexts today. Note that there is no differentiation of direct and indirect impact on association – all get strict scrutiny.

h. Kinds of Association

i. Intimate – small, selective, and exclusive private groups, such as families and neighborhood associations. Protected under the 14th amendment.

ii. Expressive – purpose of furthering speech and sharing of ideas

i. Standard of review – strict scrutiny

i. Jaycees, Rotary Club – compelling state interest in gender equality, and clubs could say what they wanted to say while being forced to include women.

ii. Hurley, Boy Scouts – no compelling state interest in sexual orientation equality, and boy scouts said their speech had to exclude homosexuals. 5-4 decision with strong dissent.

Money in the Political Process

j. Speakers’ identity

i. Individual

ii. Political party

iii. PAC

iv. Corporation

1. For profit

2. Not for profit & advocacy

3. Media

k. Political activity regulated

i. Candidate related

1. Campaign contribution

2. Coordinated contributions

3. Contribution to multi-candidate PAC

4. Independent expenditures

ii. Issue related

1. Ballot initiative

2. Contribution to issues PAC

l. State’s interest

i. Corruption

ii. Democracy

iii. Closing loopholes

iv. Protecting shareholders’ 1st amendment rights

(See next page for diagram of campaign finance reform)

| |Individual |Political Party |Political Action |Not-for-profit |For Profit Corporation |Media |

| | | |Committee |Corporation | | |

|Campaign contribution |Limit OK (Buckley) | |Limit OK (Nixon) |Limit OK (Austin) |Limit OK (Austin) |? |

|Coordinated contribution|Limit OK (Buckley – OK as|Limit OK (CO Rep. Fed. |Limit OK (CO Rep. Fed. |Limit OK (Austin; CO |Limit OK (Austin; CO Rep.|? |

| |long as tied to the |Campaign Comm.) |Campaign Comm.) |Rep. Fed. Campaign |Fed. Campaign Comm.) | |

| |candidate; CO Rep. Fed. | | |Comm.) | | |

| |Campaign Comm.) | | | | | |

|Contribution to |Limit OK |Limit OK |Limit OK |Limit OK |Limit OK |? |

|multi-candidate PAC | | | | | | |

|Independent expenditures|Limit unconstitutional |Limit unconstitutional |Limit unconstitutional |? |Limit OK if not |? |

| |(Buckley) |(CO Rep. Fed. Campaign |(NC PAC) | |segregating funds | |

| | |Comm.) | | |(Austin) | |

|Ballot initiatives | | | | |Limit unconstitutional |? |

| | | | | |(Bellotti; Austin | |

| | | | | |requirement of segregated| |

| | | | | |funds) | |

|Contributions to issue | | | |Limit OK (Nat’l Right to| |? |

|PAC | | | |Work Comm.) | | |

PART II. RELIGION CLAUSES.

Purpose of Religion Clauses

2 Enlightenment Liberalism (Madison, Jefferson)

i. Nature of religion –

1. duty to God, which comes first before duty to the State; also a matter of conscience, so impossible to force compliance.

a. Locke concept – cannot coerce belief, the substance of religion – only practice. Protestant view of religion being an internal, personal activity. State, by contrast, is a limited social contract, separate from natural rights under divine law. Religion, being internal, is irrelevant to secular regulation of behavior.

2. Discrimination between sects is impermissible – historical impetus.

3. Government involvement in religion robs religion of its energy – dead dogma.

4. Religion is a fundamental right

ii. Nature of the state

1. Less respect for laws if noxious to many citizens – judges cannot play God.

2. Slows flow of immigration to the US – practical concerns

iii. Anti-clericalism – suspicion of clerics based on Locke’s view that belief is internal, and therefore clerical established external institutions were due suspicion.

a. Protecting Faith (Williams)

i. Different assumptions – religion “garden” must be protected from “wilderness” of the state.

1. State would corrupt religion, so establishment clause actually keeps the state from “helping” religion, which would corrupt it.

2. Free exercise clause keeps state from attacking religion.

ii. Different implications

1. Points to ceremonial deism to show no fear of religion harming politics.

b. Secularism/Neutrality (Curland)

i. Laws are OK that make no reference to religion at all – neither helping nor hindering individuals based on religion. Religion may not be used to categorize people.

c. Three Values in the Doctrine

i. Voluntarism - idea that freedom of individual conscience (ie. personal choice) is important and intended to be protected by the religion clauses

ii. Separation – of church and state for mutual benefit.

iii. Neutrality – of government action with regard to religion.

Establishment Clause

4 Financial Aid to Religious Institutions

iv. Discrimination vs. aid to all religion

1. Everson – Discrimination between religions is no worse than discriminating between religious and non-religious.

2. Waltz – tax exemptions are not aid to religion because not government money.

3. Zellman – neutrality most important.

v. Lemon test:

1. Secular purpose

2. No primary effect of benefiting religion

a. General laws vs. targeted laws

b. Private choice vs. direct aid to religion

c. Endorsement

d. Supplementing vs. supplanting

e. Aid used for core religious activity: religious content and/or diversion

3. No entanglement

a. New part of effect analysis?

b. Political divisiveness issues

d. Government Use of Religious Symbols

i. Endorsement – apply Lemon test

1. Whose perspective?

2. Message of hostility?

3. Individual vs. government speech

ii. Coercion

1. Free expression vs. establishment

2. What kind of coercion?

3. How much coercion?

iii. Neutrality

1. No preference?

2. Accommodation – allowed, and if so what kind?

iv. Government purpose

1. Purpose vs. motive

2. Evidence requirement

3. Should this be part of test?

v. Historical Practices

1. Relevance to interpretation

2. Political problems with invalidation

e. Institutional Entanglement

Free Exercise Clause

6 Definition of Religion

1. Statutory cases – decision based on a statute (see conscientious objector statute)

2. Constitutional cases – decision based on reading of the Constitution; interpretation of terms through Constitution, rather than statute itself.

3. Can be religion of one, and does not have to be logically consistent. Must only be sincere, as evidenced by prior actions.

f. What is a burden?

1. Government action places a burden on free exercise of individual’s religion

2. Laws facially directed at religion

a. No discrimination between religion (Hialeah)

b. Strict scrutiny even where non-sectarian

3. Facially neutral general laws

a. Internal government action (Lyng)

b. Impact on believer’s own action – disparate impact claims

i. Reynolds – initially not sympathetic to believer – polygamy in UT banned.

ii. Sherbert – 7th Day Adventist denied unemployment benefits; unconstitutional because forced a burdensome choice between religion and entitlements. No establishment clause problem when free exercise requires an accommodation. See also Hobby.

iii. Smith - as long as impact was incidental to generally applicable neutral law, the law receives no heightened scrutiny.

iv. Religious Freedom Restoration Act – response to Smith; required strict scrutiny for religious exemption claims. Struck down in Flores. 6 justices in favor of Smith reading.

v. City of Borne

vi. What next?

Conflict Between Clauses - Accommodation

8 After Smith, not required

g. No establishment if –

i. Lifts burden imposed by government (Amos, Sherbert) – so no establishment clause problem with free exercise accommodation.

ii. No tendency to coerce or influence religion – choice

iii. No burden placed on others to support accommodation (tax, draft)

iv. No endorsement of a particular religion or sect, or religious practice (Thorton)

-----------------------

Gov’t as speaker: paid for by gov’t, vwpt discrim. OK (Souter)

Public forum: individual expression of pt. of view, vwpt discrim. not OK (Scalia)

*Can meaningful sp. happen without funding? (determine baseline of support expected from gov’t)

*Purpose of program to create forum or carry gov’t message?

*Competitive structure of program based on subject or vwpt. discrim?

Traditional public forum?

Yes

Content based = strict scrutiny (Mosley)

Content neutral = TPM or minimum access claim (Schneider)

Designated public forum?

No

No

Non-public forum = reasonableness std. except vwpt. discrim. might get strict scrutiny (Krishna)

Unlimited

Content based = strict scrutiny

Content neutral = TPM but no minimum access

Limited

Discrim. outside boundary = reasonableness std.

Discrim. inside boundary

Content based = strict scrutiny

Content neutral = TPM but no min. access

Yes

Yes

Government owned?

Yes

Looks like traditional public forum (Marsh)?

No

Yes

No 1st amendment protection (Hudgens)

No

Forum Determination

Action or speech? (Spence)

Fully protected

Lower Value: commercial, near obscene

Not protected: libel, child porn, fighting words, obscenity

Character of speech

CB distinction?

Rational Basis

No

Yes

CB distinction same as category boundary?

Yes

No

RAV – strict scrutiny

Character of regulation, forum

CB distinction?

Yes

CB distinction same as category boundary?

No

Yes

Commercial speech: VA Pharmacy definition, Central Hudson 4 part test, 44 Liquormart against paternalism

Near-obscene: communicative harm or not?

Pacifica, Cohen (see forum analysis)

American Minitheaters

No

Yes

CB distinction?

No

What forum?

No

Traditional public: TPM (Clark, Krishna); see other chart

Designated public: see other chart

Non-public: see other chart

Private property: see other chart

Yes

Penalty?

No

Refusal to subsidize: Rust, Finley, Velasquez

Yes

Legitimate government interest?

Illegitimate: false idea, moral corruption, indoctrinate ideas, insulate national symbol, equalizing voices, etc.

No

Legitimate compelling state interest

Yes

What forum?

Public: strict scrutiny. Mosley, or Brandenberg for subversive speech

Designated, non-public, and private forums: see other chart

Overbreadth, vagueness, prior restraint, theories of speech, and freedom of association apply across the chart.

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