I.
Introduction to Freedom of Speech................................................................................................................. 2
a. Breaking Down the First Amendment Language ....................................................................................... 2
b. The History of Free Expression in England ................................................................................................ 2
c. The First Challenge to Free Expression ...................................................................................................... 2
d. Rationale for Free Expression ..................................................................................................................... 2
II. The Suppression of Dangerous Ideas and Information ................................................................................... 6
a. Expression that Induces Unlawful Conduct ................................................................................................ 6
b. Speech that Threatens ............................................................................................................................... 14
c. Expression that Provokes a Hostile Audience Reaction ........................................................................... 15
d. Expression that Discloses Confidential Information ................................................................................ 20
III.
Overbreadth, Vagueness and Prior Restraint ............................................................................................ 23
a. Overbreadth and Vagueness ..................................................................................................................... 23
b. Prior Restraint ........................................................................................................................................... 25
IV.
Content-Based Restrictions: Low-Value speech ...................................................................................... 28
a. General ...................................................................................................................................................... 28
b. False Statements of Fact (Defamation) ..................................................................................................... 28
c. Non-newsworthy disclosures of private information ................................................................................ 31
d. Commercial Speech .................................................................................................................................. 33
e. Obscenity .................................................................................................................................................. 37
f. The Lewd, The Profane, and The Indecent ............................................................................................... 43
g. Hate Speech and Pornography .................................................................................................................. 48
h. Final Thoughts .......................................................................................................................................... 53
V. Introduction to Content Neutrality ................................................................................................................ 54
a. Hypo: Three Different Statutes and the Proper Level of Scrutiny............................................................ 54
b. General Principles ..................................................................................................................................... 55
c. Case Law ................................................................................................................................................... 55
d. Symbolic Conduct ..................................................................................................................................... 56
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I.
Introduction to Freedom of Speech
a. Breaking Down the First Amendment Language
i. Congress: The court’s read “Congress” to mean “the federal government” (agencies,
courts, etc.)
1. Similarly, through the incorporation doctrine (14th amendment), the 1st amendment
is applied against state government’s as well
ii. Shall make no law: government action beyond a law passed congress may fall within the
first amendment (ordinances, etc.)
iii. Speech or Press: Written, oral, telephone calls, electronic communication, nude dancing
iv. The point is that these terms are read very broadly
v. Justice Breyer’s Constitutional objectives:
1. Democratic Self-Government;
2. Dispersion of power
3. Individual Dignity (though protection of individual liberties);
4. Equality before the law
5. The Rule of law itself
b. The History of Free Expression in England
i. Throughout English History, three forms of restraint were commonly employed to restrict
speech
1. Licensing: The government gives printers licenses; to print without one is a crime
2. Constructive Treason: Any written matter that is against the King (alongside overt
acts) is considered treason.
a. The case of John Twyn shows a man convicted of treason after police
searched his home and found proofs for a book suggesting that the King
was accountable to the people. He was hanged, drawn and quartered.
3. Seditious Libel: Saying something, true or not, about someone or an institution
considered a crime.
c. The First Challenge to Free Expression
i. The Sedition Act of 1798
1. U.S. was on the verge of war with France and the Federalists were in fear of some
of the ideas of the French Revolution. Thus, they past this law, which stated that
attacks on the government that were malicious and false were against the law.
Truth was a complete defense and the law required malicious intent (thus,
abolishing the problems with the English Common Law of seditious libel). It was
enforced vigorously against Republicans.
a. E.g. Matthew Lyon (Vermont Republican Congressman that was put in
jail under the act)
d. Rationale for Free Expression
i. Search for truth: The Marketplace of Ideas
1. Proponent: J.S. Mill, On Liberty
a. First, the opinion which is suppressed may be true
i. Likely it will return later if this is the case, but no one authority
should have the power to judge truth for all mankind
b. Second, the opinion against it may be true
i. However, even if this is so, it will only be assuredly judged so
against the other opinion.
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c. Third, each doctrine may be a piece of the truth that assists
d. This is J. Holmes in Abrams: the Marketplace of Ideas - the true ideas will
be sold for the highest price, and the bad ones will be left to rot in the
bazaar
2. Criticism:
a. Baker, Scope of the First Amendment Freedom of Speech
i. Experience as well as discussion contributes to understanding.
Thus, restrictions on experience-generating conduct are as likely as
restrictions on debate to stunt the progressive development of
understanding, but the marketplace theory gives no constitutional
protection to experience-producing conduct
b. Ingber, The Marketplace of Ideas: A legitimizing myth
i. This idea is based on lasses-faire economic theory, which
government over time has had to add some controls to. Similarly,
real world conditions also interfere with the effective operation of
the marketplace of ideas, and state intervention thus may be
necessary.
ii. Marketplaces aren’t perfect, and we need some regulations
c. Wellington
i. In the long run, true ideas drive out false ones. However, we live
in a world of short runs, several on top of the other. The Holocaust
is a good example of a short run of awful consequences.
d. Class
i. The truth might not be absolute – who is to say that there is one
truth, and we could have multiple truth
ii. If what we care about is truth, why do we protect art, literature, and
other aesthetic things – which may not be about truth, but rather
about opinion, beauty, etc.
ii. Self-Governance
1. Proponent:
a. Meiklejohn, Free Speech and its Relation to Self-Government
i. In order to properly govern one another, all ideas must be heard.
An idea, because it is on one side of the fence, should still be
heard, because free men who govern themselves have the right to
decide the issue. Thus, freedom of speech is not a law of nature or
of reason, but a deduction from the basice American agreement
that public issues shall be decided by universal sufferage.
ii. Voting is but the outward expression by which we govern. People
must have the intelligence, sensitivity, etc. to know how to vote,
and these must be acquired by the arts, etc.
iii. Basically, society is a town meeting, and the self-governing
citizens have to make the best possible decision, and free-speech
allows their information to get out into the open
b. Post
i. Under Mieklejohn’s view, the state is the moderator of democracy,
and opinions that are inconsistent with “responsible and regulated”
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discussion can and should be suppressed. However, an alternative
form of democracy is participatory democracy, which locates selfgovernance in the process by which citizens come to understand
the government as their own. If a state cuts off a person from
discussion, it makes the government less legitimate. If the
government regulates speech according to values of a collective
identity, then it cuts off the process by which we form a collective
identity, through discourse.
ii. Speech is valuable not b/c the govn’t is in a town meeting, but b/c
society is a mass of factions, at each of these factions needs to find
itself and participate in the governing by putting their view out
there
2. Criticisms
a. Chafee, Book Review
i. Meiklejohn’s assertion that there is a distinction between public
and private speech is weak. There is something public about
nearly every aspect of life, and Mieklejohn’s distinction eliminates
art and literature from free speech.
b. Bork, Neutral Principles and Some First Amendment Problems
i. Non-political speech should not be subject to the first amendment.
This type of speech should be regulated by society and its elected
representatives.
c. Redish, The Value of Free Speech
i. The appropriate scope of the First Amendment is thus much
broader that either Bork or Mieklejohn would have it. Free speech
aids all life-affecting decision-making, no matter how personally
limited, in much the same manner in which it aids the political
process. There thus is no logical basis for distinguishing the role
speech plays in the political process.
d. Sunstein, Free Speech Now
i. The First Amendment is about political deliberation. We should
treat speech as political when it is intended and received as a
contribution to public deliberation about an issue.
e. Class
i. This theory is too narrow: it wouldn’t protect children’s stories and
other things that may be irrelevant to governance
iii. Self-Fulfillment and Autonomy
1. Proponent:
a. Richards, Free Speech and Obscenity Law
i. The significance of free expression rests on the central human
capacity to create and express symbolic systems . . . freedom of
expression permits and encourages these capacities. In doing so, it
nurtures and sustains the self-respect of the mature person . . .
without which the life of the spirit is meager and slavish.
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ii. Only through participation in speaking, debating, participation in
the arts and literature, can we have these mature and developed
people.
b. Scanlon, A Theory of Freedom of Expression
i. To see oneself as autonomous, a person must feel like they are
making their own decisions. An autonomous person makes
independent considerations, and cannot take the states assessment
at face value.
ii. Scanlon eventually rescinded on his theory (see p. 15).
2. Criticism:
a. Bork
i. An individual may develop his faculties or derive pleasure in other
ways. Barmaid, etc. The self-fulfillment/autonomy rationale
doesn’t distinguish speech from these other ways. One cannot, on
neutral ground, choose to protect speech and not these other things.
iv. Other Rationales
1. The Checking Value
a. Free Speech can serve to check the abuse of power by public officials.
Citizens have a veto power when public officials go too far.
2. The Safety Valve
a. The process of open discussion promotes greater cohesion in society
because people are more ready to accept decisions that go against them if
they have a part in the decision-making process
b. If we let the losers complain, then they will (a) moan in constructive ways
which will change the rules and convince people or (b) have the cathartic
feeling of explaining themselves
3. The tolerant society
a. Because people have to listen to things they don’t like, it makes them a
stronger and more tolerant person.
4. The development of Character
a. We must deal with things, which are painful, which makes us stronger
people.
e. Philosophy and the First Amendment
i. These rationales might not be nearly what the framers intended
ii. Most people believe you need more than just one of these rationales to decide any First
Amendment cases
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II.
The Suppression of Dangerous Ideas and Information
a. Expression that Induces Unlawful Conduct
i. General
1. This section focuses on the Court’s attempt to restrict expression that might
persuade, incite, or otherwise “cause” readers or listeners to engage in unlawful
conduct.
a. This is naturally important because this is very similar to the concept of
seditious libel and lies at the core of the First Amendment.
2. Four types of speech:
a. Speech which criticizes government policy and discusses public issues
generally
i. E.g. It is a nuisance that my shoes get screened when I board a
flight
ii. This could be Schenck, or Schenck could be under category 4
b. Speech that urges the audience to accept the proposition that lawbreaking
may be moral or necessary sometimes to achieve political goals
i. Civil disobedience – Martin Luther King, Jr., Ghandi, the
Declaration of Independence
c. Speech that advocates lawbreaking at some point in the future
i. This is Gitlow
ii. The “bad tendency test”
d. Speech that expressly advocates lawbreaking NOW
i. Lets seize the Dean’s suite and turn out those tyrants
ii. Abrams’ “lets strike right now” speech
3. First dealt with in cases concerning agitation against the draft during WWI
a. Two months after entry into WWI, Congress enacted the Espionage Act
of 1917, which made it a crime when the nation was at war to “willfully
make or convey false reports or false statements with intent to interfere
with the military of the United States” or to “promote the success of its
enemies;” to willfully cause or attempt to cause insubordination,
disloyalty, mutiny, or refusal of duty, in the military or naval forces of the
United States;” or to willfully “obstruct the recruiting or enlistment service
of the United States.”
b. Eleven months later, Congress passed the Sedition Act of 1918, which
made it criminal for any person to say anything with intent to obstruct the
sale of war bonds; to utter, print, write, or publish any disloyal . . . or
abusive language intended to cause contempt or scorn for the form of
government of the United States, the Constitution, or the Flag; to urge the
curtailment of production of war materials with the intent of hindering the
war effort; or to utter any words supporting the cause of any country at
war with the United States or opposing the cause of the United States.
4. Dealing with the Espionage and Sedition Act
a. Shaffer v. United States (Court of Appeals)
i. P convicted of violating the Espionage Act by publishing a book
that contained many “treasonable, disloyal, and seditious
utterances” – he said war is the devils outcome and that patriotism
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was his tool to achieve it. Held, the P is in violation of the Act. (1)
The question is whether the natural and probable tendency and
effect of the publication are such as are calculated to produce the
result condemned by the statute. (2) Printed matter may tend to
restrict enlistment in the armed services without mentioning
recruitment or enlistment: by attacking the justice of the cause for
which war is waged, by undermining the spirit of loyalty which
inspires men to enlist or to register for conscription in the service
of their country. (3) By attacking patriotism as the spirit of the
devil, he has weakened patriotism and the desire of people to
enlist. (4) “There is enough in the evidence to show that the hostile
attitude of his mind against the prosecution of the war . . . he must
be presumed to have intended the natural and probable
consequences of what he knowingly did.”
b. Masses Publishing Co. v. Patten (Hand: S.D.N.Y. 1917)
i. Postmaster advised a revolutionary magazine, The Masses, that
their August publication would not be mailed because it violated
the Espionage Act of 1917. The publication sought an injunction,
and the postmaster replied that there were four pieces of text and
four cartoons that fall within the Act. Held, the Platiniff is granted
the preliminary injuction because his speech did not rise to the
level of inciting people to violate the law. 1) The postmaster’s
position, in so far as it involves the suppression of the free
utterance of abuse and criticism of the existing la, or of the policies
of the war, is not, in my judgment, supported by the language of
the statute. (2) It would be folly to disregard the fact that political
agitation may in fact stimulate men to the violation of law; and
there is no doubt that counseling one to violate the laws is not a
valid form of speech. (3) However, if one stops short of urging
upon others that it is their duty or in their interest to violate the
law, it seems one should not be held to have attempted to cause its
violation. (4) Although some of the passages to praise contientious
objectors, showing admiration for someone does not necessarily
encourage others to follow them – at most it says if you do you
will receive the same praise and admiration.
c. Schenck v. United States (Holmes, U.S. 1919)
i. P was convicted under the Espionage Act of 1917 for sending
mailings to men who had been drafted that were “alleged to be
calculated” to obstruct the recruiting and enlistment services. The
mailings said numerous times over that it is one’s duty to stand up
for their rights and to asset opposition to the draft, and that
arguments for the draft were by cunning politicians and even silent
consent to the laws was supporting a vast conspiracy. Held, the
defendants are convicted for violating the Act. (1) It may well be
said that laws abridging the Freedom of Speech are not confined to
prior restraints, though that may have been the main purpose of the
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Amendment. (2) In many places and in ordinary times the
defendants would have been perfectly correct in saying all that
they said, but every act depends on circumstances. The most
stringent protection of free speech would not protect a man from
shouting fire in a theater, and causing a panic. (3) The question in
every case is whether words are used in such circumstances and
are of such a nature as to create a clear and present danger that
they will bring about the substantive evils that Congress has a
right to prevent. It is a question of proximity and degree. (4)
When at war, many things that might be said in time of peace they
their utterance will not be allowed as long as men fight.
1. The ‘clear and present danger’ test is apparent here. It is
not clear if Holmes opinion in Schenck is a different
formulation of the bad tendency test or if it is something
new. What we do know is that Schenck ultimately loses.
5. Shaffer, Masses, and Schenk
a. Bad Tendency Test:
i. Shaffer reflects the traditional positions of the lower courts that if
the tendency of the expression is to bring about the conduct, then it
is punishable. Naturally, intent could be viewed from the tendency
of the speech itself, on the theory that one intends the probable and
foreseeable consequences of one’s actions.
b. Express Incitement:
i. Hand attempted, in Masses to articulate a categorical, per se rule
that would “hard, conventional, and difficult to evade.” Unlike
Shaffer and Schenk, Masses focused on the content of the speech
rather than the intent of the speaker or the consequences of the
communication. This test focuses on explicit incitement
ii. Is this under-protective of free speech?
1. This approach affords no protection to express advocacy.
Bork believes that “advocacy of law violation is a call to
set aside the results that political speech has produced . . . it
allows a minority to defeat a majority that makes law
enforcement, put into practice, ineffective. Thus, it should
be accorded no Constitutional protection.
2. However, note that the suppression of any expression
destroys the atmosphere of freedom essential to the life and
progress of a healthy community.
iii. Is this overprotective of the clever inciter (who doesn’t use explicit
words)?
1. The express inciter is more dangerous because he is likely
to be more effective.
2. Inquiry into the subjective intent of a speaker is too
slippery of a formula to find verdicts. During war, juries
think that the only patriotic verdict is a guilty verdict. Thus,
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to protect the rights of innocent dissenters, more objective
considerations must be focused on.
iv. The Hand formula is overprotective of the dangerous speaker?
1. This formula would seem to protect the speaker who stands
before Monsanto’s compound and shouts, “drug makers are
baby killers!”
v. The Fate of Masses – it is ultimately reversed on appeal and
abandoned by Hand himself.
c. Clear and Present Danger
i. Consider Frohwerk, Debs, and Holmes’ dissent in Abrams
6. Frohwerk v. United States (Holmes: US 1919)
a. Publishers of a German-language newspaper are convicted under the
Espionage Act of 1917 of conspiring to cause disloyalty, mutiny, and
refusal of duty in the military and naval forces of the US. The articles
largely said it was a war to protect the rich man’s money and that it is a
basic impulse of human nature to follow self-preservation. The Court
unanimously rejected the contention that his conviction violated the First
Amendment. Held, the conviction for publication of anti-war speech in a
German-language publication is not unconstitutional under the First
Amendment. (1) The First Amendment doesn’t protect all speech; there is
no question that the counseling of murder is not within the Amendment.
(2) It may be that all this may be said or written even in time of war and in
circumstances that would not make it a crime . . . but on the record it is
impossible to say that it might not have been found that the circulation of
the paper was in quarters where a little breath would be enough to kindle a
flame and that that fact was known and relied upon by those who
circulated the papers.
7. Debs v. United States (Holmes: 1919)
a. National Leader of the Socialist Party was convicted under the Espionage
Act of 1917 for giving a speech. The main theme of the speech was
socialism, its growth, and a prophecy of its ultimate success. In the speech,
Debs had praised people who were convicted of refusing induction, and
that he would like to say more but can’t, and that the audience “needed to
know that you are fit for something more than slavery and cannon fodder.”
P claims that his conviction violates the First Amendment. Held,
unanimous court feels that conviction for speech praising socialist values,
with parts that express admiration for those that resist the draft, does not
violate the First Amendment. (1) We have nothing to do with the
socialism part of the speech, but if a part of the manifest intent of the more
general utterances was to encourage those present to obstruct the
recruiting service and if in passages such encouragement was directly
given, the immunity of the general theme many not be enough to protect
the speech. (2) If one purpose of the speech . . . was to oppose the war . . .
and that would be its probable effect, it would not be protected. (3) When
Deb’s said that he wanted to say more, this intimated to his audience that
he thought this was important. (4) The First Amendment Claim here has
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been disposed of in Schenck. (5) The proper jury instruction was that they
could not find the D guilty for advocacy of any of his opinions unless the
words used had as their natural tendency and reasonably probable effect
to obstruct the recruiting service [and] unless the D had the specific intent
to do so in his mind.
i. In Both of these cases, Holmes makes no mention of clear and
present danger.
ii. Abrams v. United States
1. A group of Russian immigrants who were self-proclaimed socialists and anarchists
believe the United States was trying to crush the Russian Revolution. They
distributed two leaflets that called for a general strike to cripple what they believed
was an imperialist attempt to intervene in the proletariat Russian revolution. They
were punished under the 1918 amendments to the Espionage act of 1917. The SC
affirmed the conviction both “to incite, provoke and encourage resistance to the
United States” and “with intent to cripple or hinder the United States in the
prosecution of the war. The 1st amendment argument was rejected by the Majority
saying that Schenck and Frohwerk dealt with the question sufficiently. Dissent,
Holmes: (1) Schenck, Frohwerk, and Debs are still good law and were decided
correctly. (2) The clear and present danger test is appropriate. The principle of the
right to free speech is only the (a) present danger of immediate evil or (b) the
intent to bring it about that warrants Congress in setting a limit to the expression of
opinion where private rights are not concerned. (3) Abrams is a silly man, and it is
not going to do anything at all. (4) The defendants did not have the requisite intent
the statute required, for their specific intent was to help Russia, with whom we are
not at war. (5) Why we have clear and present danger test: “I think we should be
eternally vigilant against attempts to check the expression of opinions that we
loathe and believe to be fraught with death, unless they so imminently threaten
immediate interference with the lawful and pressing purposes of the law that an
immediate check is required to save the country.”
a. This dissent is identified with the emergence of “clear and present danger”
as a highly speech protective doctrine
i. There must be
1. (a) the present danger of immediate evil and
2. (b) the intent to bring it about
ii. In the present case, Abrams’ was no danger (he’s just a silly man),
and he didn’t have an intent to disrupt anything
iii. The search for truth is the guiding star, and we should not outlaw
opposing ideas, but just let them follow through the truth strainer
b. Rationales for the clear and present danger standard:
i. The test balances competing speech and societal interests – speech
is important, so government can restrict it only when there is an
“emergency” that is clear and present.
ii. The test marks off a broad area of protected expression to avoid
Judge Hand’s concern in Masses that government not be permitted
to render unlawful “every political agitation which can be shown to
be apt to create a seditious temper.”
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iii. The test is designed to reduce the risk that government, in the guise
of preventing danger will in fact suppress expression because it
disapproves of its content
iv. The state should not punish a speaker as a culpable actor unless the
speaker exerted a power over the listener so profound that the
listener herself could not be held morally accountable for her
actions
iii. Gitlow v. New York (Sanford: 1925)
1. Gitlow was indicted for crimes of criminal anarchy. He was a member of the left
wing socialist party, a faction of the socialist party that was more radical and
encouraged revolution. He published something called the Left Wing Manifesto
which encouraged the bringing on of Marx’s communist revolution by
overthrowing the government. P’s contention is that the statute on “advocacy of
criminal anarchy” violates 14th amendment due process. Held, the statute does not
violate the 1st or 14th amendment because a state, through its police power, may
punish utterances endangering the foundations of organized government and
threatening its overthrow by unlawful means. (1) This is not a statute that punishes
“abstract doctrine,” academic discussion, historical or philosophical essays, etc. It
punishes incitement to government overthrow. (2) It cannot be said that the state is
acting arbitrarily or unreasonably when in the exercise of its judgment as to the
measures necessary to protect the public peace and safety, it seeks to extinguish
the spark without waiting until it has enkindled the flame or blazed into the
conflagration. Dissent, Holmes: If what I think the correct test is applied, it is
manifest that there was no present danger of an attempt to overthrow the
government by force on the part of the admittedly small minority who shared the
D’s views. It is said that this Manifesto was more than a theory, but an incitement
– well, every theory is an incitement. It offers itself for the belief, and if believed,
it is acted on unless some other belief outweighs it, or some failure of energy
stifles the movement at its birth. Furthermore, if the beliefs of the proletarian
dictatorship are destined to be accepted by the dominant forces of the community,
the only meaning of free speech is that they should be given their chance and have
their way.
a. Baltzer Case: D’s wrote the governor of South Carolina letter saying that
if the enlistment services weren’t changed, they wouldn’t vote for him.
Convicted and prosecuted for attempting to obstruct the enlistment
services. The SC upheld the conviction. Holmes dissented, saying we
have forgot about how to have freedom. The government then confessed
its error and the case was remanded “for further proceedings in accordance
with law.
iv. Whitney v. California (Sanford: 1927)
1. Woman was member of Oakland branch of Socialist Party. She believed in the
moderate wing of the party, but was part of a group that advocated the radical
version of communism (inducing an overthrow and all). Convicted under
California Criminal Syndicalism Act, which prohibited any person to knowingly
become a member of any organization that advocates “the commission of crime,
sabotage, or unlawful acts of force and violence or unlawful methods of terrorism
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as a means of accomplishing change, or effect political change.” Held, majority
holds that these acts should be punished as proper exercise of state’s police power.
a. Concurrence (Brandeis) (1)That the necessity which is essential to a valid
restriction does not exist unless speech would produce, or is intended to
produce, a clear and imminent danger of some substantive evil which the
state may constitutionally seek to prevent is settled law. (2) The final end
of the state is to make men free to develop their faculties; the greatest
menace to freedom is an inert people; that public discussion is a political
duty; and that this should be a fundamental principal of the American
Government. (3)Even advocacy of law violation . . . is not ustification for
denying free speech where the advocacy falls short of incitement and
nothing indicates it will be immediately acted upon. (4) In order to support
a finding of clear and present danger it must be shown either that
immediate serious violence was to be expected or was advocated, or that
the past conduct furnished reason to believe that such advocacy was then
contemplated. (5) A legislative declaration, like the fact that statute was
passed and was sustained by the highest court of the state, creates merely a
rebuttable presumption that these conditions have been satisfied.
b. Holmes v. Brandes:
i. Holmes is about free trade in ideas. Brandeis is about the
development of the faculties and the deliberative process, and
suggests that public discussion is a political duty and that the
greatest menace to liberty is an inert people.
1. Mieckeljohn owes much to Brandeis
c. In the decade following Whitney, the Court handed down three decisions
reversing convictions for subversive advocacy.
d. “Clear and Present Danger” from Whitney to Dennis:
i. In the 25 years between these cases, the court embraced clear and
present danger for a wide range of first amendment issues
e. The Communism Problem
i. With its decision in Dennis, the Court continued its quest for a
satisfactory solution to the problem of subversive advocacy.
v. Dennis v. United States (Vinson: 1951)
1. Indictment charged man with organizing as the communist party of the United
States a group to teach and advocate the overthrow of the govn’t by force. Held,
the petitioners can be convicted because they pose a clear and present danger (1) A
conviction relying upon speech or press as evidence of violation may be sustained
only when the speech or publication created a clear and present danger of
attempting or accomplishing the prohibited crime. (2) In each case, the court must
ask whether the gravity of the evil, discounted by its improbability, justifies such
invasion of free speck as is necessary to avoid the danger. (3) The formation by the
petitioners of such a highly organized conspiracy, with rigidly disciplined
members subject to call when the leaders . . . felt that the time had come for action,
coupled with the inflammable nature of world conditions, similar uprisings in other
countries, and the touch-and-go nature of our relationships with countries whom
petitioners were in the very least idologically attuned, convince us that their
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convictions are justified on this score. Frankfurter Concurrence: We are only to
set aside legislatures pronouncements when there is no reasonable basis for it.
Congress (the elected officials) have the power to determine the danger. Jackson
Concurrence: Direct incitement by speech or writing can be made a crime, and it
doesn’t need to be as high a standard as clear and present danger. Black Dissent:
We must repudiate Clear and Present Danger Rule b/c it changes with time and in
every time it is impossible to evaluate what is a clear and present danger.
a. The charge in Dennis was with conspiring to advocate the overthrow of
the government
b. Sedition trials are generally only a deterrent to those people who would
not have the courage to be seditious anyway
c. The Dennis formula uses “gravity” instead of “seriousness” in the clear
and present danger standard – it lacks an imminence standard.
d. The Court’s present position on deference: Landmark Communications,
Inc. v. Virginia
i. A legislative declaration does not preclude enquiry into the
question whether, at the time and under the circumstances, the
conditions existed which are essential to validity under the Federal
Constitution. . . The judicial function commands analysis of
whether the specific conduct charged falls within the reach of the
statute and if so whether the legislation is consonant with the
Constitution.
vi. The road to Brandenburg
1. Yates v. United States (Harlan: 1957)
a. Court overturned the conviction of several members of the Communist
party for conspiracy to violate the Smith Act: “We reject the proposition
that mere doctrinal justification of forcible overthrow, if engaged in with
the intent to accomplish overthrow, is punishable under the Smith act.
That sort of advocacy is too remote from the concrete action to be
regarded as the kind of indoctrination preparatory to action which was
condemned in Dennis
2. Understanding Yates:
a. A dominant theme of Harlan’s opinion is that the Court had historically
recognized an “essential distinction” between express advocacy of
unlawful action, on the one hand, and advocacy of abstract doctrine or
general discussion of policies and ideas, on the other
vii. Brandenberg v. Ohio (Per Curiam: 1965)
1. Ohio statute for Criminal Syndacalism is similar to that of Whitney (knowing
membership in assembly that advocates criminal syndalism). Leader of the Ku
Klux Klan invited camera crew to a rally, in which he said that the Klan isn’t a
“revengent” organization, but if the President, Congress, and the Supreme Court
didn’t stop suppression the Caucasion race, its possible that there might have to be
some revengence taken. Held, this man can’t be convicted under the act. (1) Later
decisions have fashioned the principle that the constitutional guarantees of free
speech and free press do not permit a State to forbid or proscribe advocacy of the
use of force or of law violation except where such advocacy is direct to inciting or
13
producing imminent lawless action and is likely to incite or produce such action.
(2) A statute which fails to draw a distinction between the abstract teaching of an
idea and the incitement to violence violates the 1st and 14th amendments. (3) The
contrary teaching of Whitney is abandoned and overruled. Concurrence Black:
Clear and Present Danger doesn’t appear in Brandenburg. It is way too malleable.
The only use of Dennis here is to show that Whitney is overruled, and then the
Court announces a new test. He is looking to point out that “clear and present
danger” is not the law under Brandenburg. Concurrence Douglas: There should
be a difference between speech and speech acts (where the speech is so intertwined
with the action that it is dangerous). Douglas is almost an absolutist - feels that
speech should be protected nearly in the absolute. The threats of every day are
puny, and accentuated in their own time. We should not be so serious about these
threats.
a. Understanding Brandenburg:
i. Generally understood to require 3 things to be convicted under a
incitement/subversive advocacy test:
1. express advocacy of law violation;
2. the advocacy must call for immediate law violation; and
3. the immediate law violation must be likely to occur
ii. The court has adhered to Brandenberg
1. However, the court did punish a person in Rice v. Paladin
Press who extolled the life of a contract killer, told how to
kill, etc. The court held Brandenberg does not control and
that the publisher could be held liable b/c the publisher
“intended . . . that the publication would be used by
criminals to execute the crime of murder for hire.” (4th Cir.
1997). The publisher stipulated to the fact that they
intended the publication would be used by criminals.
b. Speech that Threatens
i. Bridges v. California
1. Two consolidated cases: In Bridges, while a motion for new trial was pending,
Bridges (head of a Union the trial judge ruled against) published a letter he had
written to the Secretary of Labor, saying that the decision was outrageous and if it
was enforced his Union would strike and tie up the ports on the West coast. In
Times-Mirror Co., the LA Times called two members of a Union who had
assaulted nonunion truck drivers bad names, and said the judge would be making a
big mistake if he were to give these two people probation. Both parties were held
in contempt of court and claim that the contempt convictions violate their right to
free speech. Held, nothing in these cases presents a clear and present danger
sufficient to allow the contempt conviction. (1) We are convinced that the
judgments below result in a curtailment of expression that cannot be dismissed as
insignificant. (2) The convictions are not justified on either of two grounds: (a) It
cannot be justified on upholding respect for judiciary, b/c a punished or enforced
silence would probably create more resentment, etc., than respect; (b) that can’t be
justified on the ground that they encourage disorderly or unfair administration of
justice b/c the LA Times always criticizes judges when they give probation, so this
14
merely threatened future criticism, and it would be completely legal for Bridges to
call a strike – and it seems obvious the judge must have had this possibility in
mind in making his decision.
a. Notes on this case 68-72
b. Watts v. United States (1969)
i. Guy said that if the govn’t made him enlist and take a gun, the first
person he’d turn it on was the president. Held, the kind of political
hyperbole indulged in by P did not constitute ‘a threat’ within the
meaning of the statute
c. Planned Parenthood v. American Coalition of Life Activists (6th Cir. 2002)
i. Website puts wanted posters up that show abortionists faces, and
X’s them out when the abortionists are killed. Held, this constitutes
a threat. It was perceived by physicians as a threat. Dissent argues
that it shouldn’t be prevented unless it is threatening violence by
the speaker; also, political speech, as this was, may not be enjoined
unless it falls into one of the SC categories – true threat,
incitement, fighting words, etc.
c. Expression that Provokes a Hostile Audience Reaction
i. Terminiello v. Chicago(1949)
1. At trial, jury was instructed that “it could convict if if found that his speech
included expression that ‘stirs the public to anger, invites dispute, brings about a
condition of unrest, or creates a disturbance.” Held, jury instruction violates 1st
amendment. (1) A function of free speech is to invite dispute. (2) Can only be
halted if it presents a clear and present danger.
2. Terminiello stands for the proposition that speech may not be restricted b/c the
ideas expressed offend the audience.
ii. Cantwell v. Connecticut
1. Cantwell was a Jehovah’s witness who played a phonograph for two men on a
street corner, not loud, not prohibited by statute. The phonograph was against the
Catholic Church and upsetting to the two men – one wanted to punch Cantwell and
one wanted him off the street corner. Held, this does not rise to the level at which
we should punish him for provoking a dangerous, imminent reaction. (1) When
clear and present danger of riot, disorder, interference with traffic upon a public
street, or other immediate threat to public safety, peace, or order, appears, the
power of the State to prevent or punish is obvious. (2) We find in the instant case
no assault or threatening of bodily harm, no truculent bearing, no intentional
discourtesy, no personal abuse. On the contrary, we find only an effort to persuade
a willing listener to buy a book or to contribute money in the interest of what P
conceived to be true religion.
a. Subversive Advocacy Analogy: In the subversive advocacy contexsxt, the
speech is suppressed b/c it may successfully persuade the audience to act
in an undesirable manner, whereas in the hostile audience context the
speech is suppressed b/c the audience may react against the speaker.
b. “The government may not limit speech b/ other citizens deem the ideas
offered to be wrong or offensive b/c the 1st amendment protects no less
against majority oppression than against runaway government.”
15
iii. Feiner v. New York
1. Man delivered speech on street corner with megaphone on van that seemed to be
calling black people to rise up against whites, and whites were mixed in the crowd.
He called Truman a “bum,” the mayor of the city a “champagne-sipping bum who
doesn’t care about Negroes,” and the American Legion a “Nazi Gestapo.” Police
asked him to stop, then again asked him to quit, then again asked him, then had
him arrested. He was convicted under a “breach of peace statute” (p. 77). Held,
this conviction is affirmed and allowable. (1) We are not faced here with such a
situation where a man is being silenced simply b/c the crowd opposes what he is
saying. (2) It is one thing to say that the police cannot be used as an instrument for
the suppression of unpopular views, and another to say that when, as here, the
speaker passes the bounds of argument or persuasion and undertakes incitement to
riot, they are powerless to prevent a breach of the peace.
a. Feiner: the implicit, if not explicit, justifications
i. (1) There is a clear and present danger
ii. (2) There is incitement to riot
iii. (3) There is disobedience to a police officer
iv. Expanding on Feiner
1. In Kunz v. New York, the Court did not decide whether a permit coulc
constitutionally be denied on the ground that the speaker had previously caused
disorder, but instead held that a permit scheme that silenced a Baptist minister
(who had degraded other religions on a street corner and angered people after
being issued a permit to preach there) was facially invalid b/c it didn’t provide
clear standards to guide the discretion of the official charged with administering
the scheme.
2. In Georgia v. The Nationalist Movement, a statutory scheme was instituted which
would make a party pay more for a permit if they were planning on speaking on a
controversial issue (b/c more police would need be deployed). The Court held that
“speech cannot be financially burdened, any more that it can be punished or
banned, simply b/c it might offend a hostile mob. Regulations which permit the
government to discriminate on the basis of a message cannot be tolerated under the
1st amendment.”
3. Three Cases considered “a far cry from Feiner”:
a. Edwards v. South Carolina (1963): 187 black students walked to the state
house grounds to protest discrimination. They sang songs and stomped
there feet. . Court states “there was no violence or threat of violence on
the part of the petitioners, or on the part of any member of the crowd
watching them, and police protection was sufficient had there been
dissent. The Constitution does not allow police to make criminal the
expression of unpopular views.
i. Roots in the Self-Governance and Search for Truth rationales
b. Cox v. Louisiana (1965): Minister led 2,000 students to Courthouse, where
they were ordered to stand across the street. Angry white people came up
on the Courthouse steps. Man said, “it’s lunchtime, lets go to these places
that encourage discrimination and stand at their lunch counters.” Court
states “there was no indication that the mood of the students was ever
16
hostile, aggressive, or unfriendly,” an the students can’t be punished if the
fear of violence was coming from the people across the street.
c. Gregory v. City of Chicago (1969): People marched around Mayor Daly’s
house and said mean things about him, and white people came and
demanded violently that they leave (threw eggs and such). Police tried to
make them leave, and eventually protesters were arrested. Court holds
that there was no evidence that P’s were violent, so the arrest can’t stand.
d. Why these cases are “a far cry from Feiner”- consider these explanations:
i. The demonstrators in these cases did not pass the bounds of
argument or persuasion and undertake incitement to riot;
ii. There was less likelihood in these cases of an imminent violent
response;
iii. The police were better able to handle the situation in Edwards,
Cox, and Gregory.
v. Chaplinsky v. New Hampshire (Murphy: 1942)
1. P, a Jehovah’s Witness, was distributing literature on the streets on a busy
afternoon and calling religion a “racket.” Members of the crowd said he was
disturbing, and a local Marshall warned him that the crowd was getting restless.
After he was being taken to a police station after a disturbance, he yelled to the
Marshall, “You are a God damned racketeer . . . and a damn fascist and the shole
government of Rochester are Fascists or agents of Fascists.” He was convicted
under law that made it illegal to use derisive words to another on the street. Held,
conviction under the statute is proper because statute is not overbroad and
“damned racketeer” and “damned fascist” are words which would provoke the
average person to a breach of the peace. (1) There are certain well-defined and
narrowly limited classes of speech, the prevention and punishment of which have
never been thought to raise any Constitutional problems: the lewd and the obscene,
the profane, the libelous, and the insulting or fighting words – those which by their
very utterance inflict injury or tend to incite an immediate breach of the peace. (2)
It has been well-observed that fighting words are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by a societal interest
in order and morality. (3) This statute, which prohibits fighting words, is narrowly
drawn and limited to define and punish specific conduct lying within the domain of
state power.
a. Two-Level Theory:
i. The two-level theory says that speech is either “protected” or
“unprotected” by the First Amendment according to the Court’s
assessment of its relative “value.”
b. What the Post-Chaplinsky Cases Establish:
i. The fighting-words doctrine applies only to the use of insulting and
provocative epithets that describe a particular individual and are
addressed specifically to that individual in a face to face encounter.
ii. The court has not upheld a fighting words decision since
Chaplinsky, and it has been claimed that the Court’s decisions have
narrowed the doctrine so much that it is meaningless, that it is
17
c.
d.
e.
f.
nothing more than a quaint remnant of an earlier morality that has
no place in a democratic society dedicated t o the principle of free
expression.
1. Chaplinsky rests upon the assumption that men are
offended by swear words, and they are so offended that
they can’t resist fighting when they hear these words – thus
it’s not even possible for men to resist, so we punish the
person who says them
2. As the norms of masculinity have changed, we realize that
people don’t challenge each other to fights like they use to,
and they can resist such words.
iii. Arguably, clear and present danger should take care of this
problem – if you are saying things that are likely to incite people
into a rage, then clear and present danger would handle this
Fighting words as “low-value” speech:
i. These are unprotected b/c as “epithets or personal abuse,” they are
intended to inflict harm, rather than to communicate ideas, and
thus are not really speech at all. The verbal assaults are more akin
to a punch in the mouth than to a constitutionally protected idea or
opinion.
ii. Fighting words are likely to provoke a breach of the peace – so
they are just a straightforward application of the Holmes/Brandeis
clear and present danger formula.
1. Maybe, however, the violent addressee should be the one
punished.
iii. Fighting words are no essential part of the exposition of ideas.
Street v. New York
i. After civil-rights leader James Meredith was shot, man burned a
flag in anger. Lower court held that he could be convicted b/c this
was likely to cause a breach of the peace. The Court reversed,
stating that “his remarks were not so inherently inflamamatory as
to come within the small class of ‘fighting words’ which are ‘likely
to provoke the average person to retaliation.”
Cohen v. California
i. Cohen wore the “Fuck the Draft” jacket to the courthouse. He was
convicted under statute that was interpreted by lower court to mean
it would provoke others to violence. The Court reversed, stating
that no one person could have personally felt that the four letter
words on his jacket were a “direct personal insult.”
Gooding v. Wilson
i. Court finds overbroad a statute that the lower courts had regularly
failed to interpreted as “limited in application, as in Chaplinsky, to
words that have a direct tendency to cause acts of violence by the
person to who, individually, the remarks are addressed . . . and the
lower courts had interpreted the statute as authorizing conviction
even if the addressee might not be able at the time of the remark to
18
assault and beat another, so long as it might still tend to cause a
breach of the peace at some future time.” Court notes that the
fighting words doctrine only applies to words that cause an
immediate breach of the peace.
g. Texas v. Johnson
i. Court finds flag burning prohibition statute not under fighting
words b/c no person could take the “generalized” action as a
“direct personal insult or an invitation to exchange fisticuffs.”
vi. The Skokie Controversy (The Converse of Civil Rights Cases)
1. In Skokie, 1977, 40,000 out of 70,000 citizens were Jewish – 5,000 of whom were
survivors of Nazi concentration camps. Leader of the National Socialist Party of
America wanted to hold a march through Skokie to protests the city’s requirement
that a $350,000 bond be put down before an assembly could be held in a city park.
The Socialists wanted to wear Nazi uniforms with swastikas and “White Free
Speech” signs and march. Village of Skokie sought to enjoin the demonstration
because they knew violence would erupt (a counter-demonstration of 15-20,000
people was to be held). Trial Court granted the injunction, and neither appellate
court or state supreme court stayed the injunction. Supreme Court remanded, and
state court held that the march could go on, but the marchers could not wear
swastikas. The city, during the litigation, tried to pass laws prohibiting the march
(fees due to march, liability insurance needed, no signs or symbols that incite
hatred to a race or national origin), etc. All three of the statutes were held invalid.
Ultimately, the march was cancelled in Skokie, but was held in Chicago – where
there was no serious injuries (bottles and rocks thrown – helmet guards protected
the Nazi’s.
a. Cross-Burning: While it may be considered to express a political view, it
could be argued that cross burning directed at a particular person, family,
etc. should not be given protection for its effectiveness only stems from
the wrongfulness of the particular conduct.
b. Racial Hatred in Europe v. United States: Europe has long curbed the
violence designed to stir up racial hatred. The Brandenburg requirement
of imminence before hateful speech is proscribed is objectionable –
different listeners respond in different ways to fighting words. European
case law looks not only to harm caused by such expression, but also
proceeds from a particular conception of individual personality and
psychology. Surely it is not enough for societies that claim to be
committed to the ideals of social and political equality and respect for
individual dignity to remain neutral and passive when threats to these
values exist. Sometimes the state must act to show its solidarity with
vulnerable minority groups and its commitment to equality.
c. Analyzing Skokie: The right of Nazi’s to speak should not be upheld
under the traditional rationales of free speech, but rather because the
danger of intolerance towards ideas is so pervasive an issue in our social
lives, the process of mastering a capacity for tolerance is difficult, that it
makes sense somewhere in the system to attempt to confront that problem
and exercise more self-restraint than may be otherwise required.
19
d. Expression that Discloses Confidential Information
i. General Issues
1. Govn’t always has two potential remedies:
a. (a) prevent the speech by injunction (prior restraint); or
b. (b) can punish it some other way (damages, jail time, creation of a tort
where those aggrieved can sue, etc.) (subsequent punishment)
i. There is a STRONG presumption in English/American law against
prior restraints (if 1st amendment means anything, it means prior
restraints are bad)
2. We are talking about disclosures of TRUE information (Defamation is
dissemination of false information)
3. Alternatives to Prior Restraints
a. Criminal punishment of the publisher
i. Bartnicki v. Vopper
ii. An exam question might be whether a statute that punishes
dissemination of this information is unconstitutional
b. Criminal Punishment of the Leakers
c. Properly screen employees
ii. Landmark communications, Inc. v. Virginia
1. Virginia paper accurately reported that the Virginia Judicial Inquiry and Review
Commission was contemplating an investigation of a particular state court judge.
Convicted of violating statute that prohibited disclosure of confidential matters
before the commission. Held, the publication Virginia seeks to punish under its
statute lies near the core of the 1st amendment, and the Commonwealth’s interests
advanced by the imposition of criminal sanctions are insufficient to justify the
actual and potential encroachments on freedom of speech and of the press which
follow therefrom. (1) The commonwealth’s interest in protecting the reputation of
its judges, nor its interest in maintaining the institutional integrity of its courts is
sufficient to justify the subsequent punishment of speech at issue here, even on the
assumption that criminal sanctions do in fact enhance the guarantee of
confidentiality.
a. In a series of decisions since Landmark, the Court has consistently held
that a state may not restrict the publication of truthful confidential
information absent a state interest of the highest order.
iii. Nebraska Press Ass’n v. Stuart
1. In anticipation of a very publicized trial, a Nebraska trial judge entered an order
that restrained P newpapers and broadcasters from publishing or broadcasting
accounts of confessions made by the accused or any other facts “strongly
implicative” of the accused. Held, the order is unconstitutional. (1) The 6th
amendment, and 14th amendment, guarantee that a citizen has a right to an
impartial jury. (2) The 1st amdendment, though, provides special protection against
orders that impose a prior restraint on speech. (3) The question is whether, as in
Dennis, the gravity of the evil, discounted by its improbability, justifies such
invasion of free speech as is necessary to avoid the danger. (4) There are several
alternatives the state could have used other than prior restraints. In this case, the
trial judge has not adequately considered whether the alternative measures would
20
sufficiently have protected the D’s rights to avoid the need for a prior restraint. (5)
Because the community is so small, it is doubtful that prior restraints on the
publication would have prevented the harm sought to be prevented.
a. The court in Nebraska Press announced ‘a virtual bar to prior restraints on
reporting of news about crime.’
b. Gentile v. State Bar of Nevada held that, although the state may not
restrict speech by the press about pending criminal cases w/o meeting the
clear and present danger standard, it may restrict speech by an attorney
about pending cases if the attorney knows or reasonably should know the
speech will have a “substantial likelihood of materially prejudicing’ the
proceeding.
iv. New York Times & Washington Post v. U.S.
1. NYTimes obtains copy of govn’t report about Vietnam, during its peak, and began
publishing a series of papers about the report. Justice Department moved to enjoin
the publication. NYDistrict Court denies the injunction and Court of Appeals
grants the injunction. At same time, Washington Post began publishing materials
from the same report. Report had issues about our bombing of Cambodia. Justice
Department moved the same, but DC and Court of Appeals denied the injunction.
SC stayed the case. Held, the government has not met this burden of proving that
the papers can’t be published. Every member of the court wrote a separate opinion
(p. 95-96). Main Points: Prior Restraints are presumptively unconstitutional and it
is very difficult to overcome them – even if the military says something is
classified or a military trade secret, the court does not have to agree with them.
There are a number of separate opinions on 96-103
a. Bartnicki v. Vopper held that federal and state anti-wiretap statutes cannot
constitutionally be applied to a radio station that broadcasts the tape of an
unlawfully intercepted telephone call, where the subject of the call was a
matter of public concern and the broadcaster did not participate directly in
the unlawful wiretap, even though the broadcaster know that the material
had been obtained unlawfully.
v. U.S. v. The Progressive, Inc.
1. Govn’t sought an injunction against The Progressive magazine because it was
going to publish an article with scientific information about the H-bomb. Atomic
Energy Act prohibited the production of “restricted data.” Held, the govn’t has met
the burden of establishing that the prior restraint is necessary. (1) This case is
different than the NY Times case b/c that case contained historical date relating to
events that occurred some three to twenty years previously and a specific statute is
involved in the present case (The Atomic Energy Act). (2) While it may be true in
the long run that death is preferable to life without liberty, in the short run freedom
of speech, to worship, and of the press cannot be enjoyed unless one first enjoys
the freedom to live. (3) We must weigh the serious right to freedom of expression
against the possibility of thermonuclear annihilation for all of us, and the govn’t in
that regard wins. (4) The govn’t has met the requirements of the Atomic Energy
Act and the SC test in the New York Times case of “grave, direct, immediate and
irreparable harm to the United States.”
21
a. Other alternatives might have been possible in this case: rephrasing or
summarizing specific passages, omitting certain technical details or
references, or delaying publication
b. Haig v. Agee upheld the revocation of Agee’s passport b/c he engaged in
activities abroad that caused “serious damage to national security.” He
was a former CIA employee, and was engaged in a campaign “to expose
CIA officers and agents and to take the measures necessary to drive them
out of the countries where they are operating. Court stated that his
disclosures have the declared purpose of obstructing intelligence
operations and the recruiting of personnel. They are clearly not protected
by the Constitution.
vi. Terrorism and the 1st amendment
1. Look at the Smith Guidelines on 109
2. Ashcroft Guidelines on 109-110.
22
III.
Overbreadth, Vagueness and Prior Restraint
a. Overbreadth and Vagueness
i. Gooding v. Wilson (Brennan: 1972)
1. At an anti-war demonstration, police tried to move P away from the door and he
said “You white sons of bitches, I’ll kill you . . . I’ll choke you to death.”
Convicted under statute which stated, “Any person who shall, without provocation,
use to or of another, and in his presence opprobrious wods or abusive language,
tending to cause a breach of the peace shall be guilty of a misdemeanor.” State
says the statute is narrowly drawn only to apply to fighting words. Held, this
statute is overbroad b/c the plain languge reaches further than “fighting words” and
the Georgia Courts have construed it very broadly. (1) The constitutional
guarantees of freedom of speech forbid the States to punish the use of words or
language not within “narrowly limited classes of speech. [Chaplinsky]. Statutes
must be carefully drawn or be authoritatively construed to punish only unprotected
speech and not be susceptible of application to protected expression. (2) The
Georgia courts have not construed this statute to be limited in application to
“words that have a direct tendency to cause acts of violence by the person to
whom, individually, the remark is addressed.” (3) These decisions, along with the
statutory language “opprobrious” and “abusive”, in which the dictionary
definitions are broader than “fighting words,” make this statute overbroad.
a. Traditional method: “as applied” mode of judicial review tests the
constitutionality of legislation as it is applied to particular facts on a caseby-case basis.
b. The First Amendment Overbreadth Doctrine: Tests the constitutionality of
legislation in terms of its potential application.
i. Justified by Brennan as “necessary because persons whose
expression is constitutionally protected may well refrain from
exercising their rights for fear of criminal sanctions provided by a
statute susceptible of application to protected expression.”
1. The problem is that other people, who could assert their
rights, will be chilled from doing so by the statute
ii. Also, because this test minimizes the likelihood of selective
enforcement by minimizing the occasions for enforcement.
c. Criticisms of the Doctrine
i. It lets people go free b/c the court can conceivably come up with a
situation where the statute might reach protected speech, thus
frustrating legitimate state interests.
ii. It resolves questions outside of the record, and thus doesn’t allow
for the depth of treatment the factual background could provide.
iii. It allows the court to avoid “as applied” testing if it can come up
with a reason why the statute doesn’t work – judicial
disingenuousness.
iv. The doctrine lacks intellectual conherence b/c the court can say
that it doesn’t work without telling what would be a better drawn
statute.
d. The problem of Narrow Construction
23
i. Osborne v. Ohio (1990): Court upholds a child pornography
statute as construed by the state supreme court on appeal in the
same case; although the statute was overbroad as written, the court
held that it was saved from invalidation by the state supreme
court’s narrowing construction, and that the statue, as construed,
could be applied to conduct occurring prior to the construction,
provided such application affords fair warning to the defendant.”
e. Broadrick: Requiring “substantial” overbreadth
i. Broadrick v. Oklahoma (1973)
1. Under the over-breadth doctrine, “litigants are permitted to
challenge a statute not because their own rights of free
expression are violated, but because of a judicial prediction
or assumption that the statute’s very existence may cause
others not before the court to refrain from constitutionally
protected speech or expression.” However, at some point
this becomes mere guesswork, and thus “the over breadth
of a statute must not only be real, but substantial as well,
judged in relation to the statutes plainly legitimate sweep.”
a. Significant likelihood of deterring important first
amendment interests
ii. The impact of Broadrick:
1. It could mean two things:
a. Ratio of protected speech to unprotected speech
i. The statute punishes a small amount of
conduct that it can punish, and a large
amount that it can’t
b. Looks to the value of the speech in relation to how
much it encompasses
2. L.A. City Council v. Taxpayers
a. Substantial overbreadth is not readily reduced to an
exact definition, but the mere fact one can conceive
of some impermissible applications of a statute is
not sufficient to render it susceptible to an
overbreadth challenge. There must be a realistic
danger the statue will compromise the First
Amendment rights of parties not before the court.
ii. Vagueness
1. The Danger of Vagueness
a. As a matter of due process, a law is void on its face if it is so vague that
persons “of common intelligence must necessarily guess at its meaning
and differ as to its application.”
b. A vague rule may trap the innocent by not providing fair warning and
provided dangerous authority for policeman, judges and juries to decide
matters on an ad hoc basis.
24
c. In 1st Amendment cases, vague statutes have particularly salient
consequences because it operates to inhibit the exercise of those freedoms
and will lead unknowing citizens to steer clear of the statute.
2. How vague is too vague
a. It is imprecise – see above standard
b. Prior Restraint
i. General
1. When you are truthfully passionate about getting the word out, and you will do it
at the cost of going to jail, then you do not want prior restraint
ii. Lovell v. Griffin (Hughes: 1938)
1. Ordinance stated that you had to first obtain a permit to distribute literature in the
city of Griffin. Woman was distributing Jehovah’s witness pamphlets w/o a permit.
Held, the ordinance is facially invalid. (1) The ordinance in its broad sweep
prohibits the distribution of “circulars, handbooks . . . or literature of any kind.” (2)
The ordinance is comprehensive with respect to the method of distribution. (3)
Whatever the motive which induced its adoption, its character is such that it strikes
at the very foundation of the freedom of the press by subjecting it to license and
censorship.
iii. Licensing as a Prior Restraint:
1. General Problems with Licensing
a. The idea can’t get out at all
b. The censor is a professional, and thus he has an incentive to over-censor
b/c it is his job
c. Licensing is easier to do; it is more efficient and covers the entire universe
of ideas
2. Standardless licensing
a. The evils, from City of Lakewood v. Plain Dealers Ass’n:
i. First, the mere existence of the licensor’s unfettered discretion
intimidates parties into censoring their own speech, even if the
discretion and power are never actually abused.
ii. Second, the absence of express standards makes it difficult to
distinguish, as applied between a licensor’s legitimate denial of a
permit and its illegitimate abuse of censorial power.
b. Following Lovell, Court has held that “a state cannot vest restraining
control over the right to speak in an administrative official where there are
no appropriate standards to guide his action.”
3. Standardless licensing of expressive acts which are not themselves protected by the
first amendment”
a. In City of Lakewood, Court held that Lovell applies whenever a
Standardless licensing scheme has “a close enough nexus to expression, or
to conduct commonly associated with expression, to pose a real and
substantial threat of the censorship risks associated with this form of prior
restraint.”
i. Thus, the court held that that statute was subject to “facial” rather
than “as applied” review (this is the Lovell standard)
4. The objections to licensing (128):
25
a. Prior restraint normally brings more communication into govn’t than
subsequent punishment
b. Under prior restraint, the communication may be obsolete by the time it is
actually published
c. Prior restraint is so constructed that the govn’t will more likely rule
against free speech
d. Restraint is a matter of administrative rather than criminal procedure
e. E.g.
5. Freedman v. Maryland (Brennan: 1965)
a. Man showed a film w/o first submitting it to the state censorship boards.
The state conceded the film was not obscene. Statute said all pictures
must go through board approval. Held, the statute is invalid. (1) The
statute isn’t invalid b/c it might “prevent even the first showing of a film
whose exhibition may legitimately be the subject of an obscenity
prosecution,” but rather because the administrative of the censorship
system “presents peculiar dangers to constitutionally protected speech.”
(2) The court thus concluded that “a non-criminal process which requires
the prior submission of a film to a censor avoids the constitutional
infirmity only if it takes place under procedural safeguards designed to
obviate the dangers of a censorship system: (a) Burden of proving the film
is unprotected must rest on the censor; (b) The system can’t be
administered in a way that the decision will lend finality to the proceeding
– e.g. prompt judicial resolution.
iv. Near v. Minnesota (Hughes: 1931)
1. Minnesota law authorized abatement of “malicious, scandalous, and defamatory
statements” in a periodical. If charged, the D could present defense that “the truth
was published with good motives and for justifiable ends.” Local prosecutor
sought abatement of a newspaper, and the newspaper presented no defense. Held,
this statute infringes on the liberty of the press and is unconstitutional. (1) It is the
chief purpose of the 1st amendment is to prevent previous restraints upon
publication. However, even this protection [from previous restraint] is not
unlimited (Incitements to violence, or wartime, libel – you are responsible for what
you say and if you say something that hurts somebody, you can be punished for
it.). Also, the 1st amendment is not just limited to preventing prior restraints. (2)
The constitutional protection of previous restraint is not lost because it is a
business or because charges are made of derelictions which constitute crimes. (3) It
is not constitutional just b/c the person can prove truth – a person shouldn’t have to
be called in to prove the truth and good motives for what he has a right to do.
a. If it can be punished by damages, what is wrong with an injunction?
i. Procedural Protections of damages is better: there should be a final
judicial review; not administrative censorship
1. You have that in Near – a judge issued the injunction
ii. Look at the reasons in the book why licensing schemes are bad
iii. Note that many of the problems that arise in the licensing schemes
do not arise in injunctions
b. Is the Near Principle Absolute?
26
i. No, there are certain limits:
1. You couldn’t publish the sailing dates of transports, the
number and location of troops
2. Dicta on 132: this is the excerpt above
a. This is a National Security exception
ii. This dictum above is the dictum upon which Pentagon Papers was
fought
1. At a doctrinal level, the Pentagon Papers case is really
about whether there is an exception to the prior restraints
rule for national security
v. Injunction as Prior Restratint
1. Collateral Bar rule
a. One charged with contempt for disobeying an injunction cannot defend on
the ground that the injunction was unconstitutional
i. Theory: Orderly judicial process requires that injunctions be
obeyed until found to be invalid, although a statute may be ignored
with impunity by one who successfully gambles that it will be held
invalid.
b. Walker v. City of Birmingham: Court says that if the statute is facially
invalid, and the party had tried to challenge the statute in courts but had
met with delay, then the collateral bar rule might not apply.
2. Forfeiture as Prior Restraint
a. Alexander v. United States (Rehnquist: 1993)
i. Man transported lots of porn across state lines, and thus was
convicted of RICO violation and the govn’t seized all of his 31
businesses, confiscated $9 million in profits, and destroyed
millions of dollars worth of store inventory, most of which had
never been found legally obscene and thus protected by the 1st
amendment. Held, the forfeiture should not be analyzed as a prior
restraint, but rather as a subsequent punishment. (1) There must be
preservation of a distinction between prior restraints and
subsequent punishments. (2) To hold that the forfeiture order in
the present case was a prior restraint would blur the line separating
prior restraints from subsequent punishments to such a degree that
it would be impossible to determine with any certainty whether a
particular measure is a prior restraint or not.
1. Dissent: This is really de fact prior restraint. What we call
the thing is immaterial. In prior cases, we have held not
only that licensing schemes requiring speech to be
submitted to a censor in violation of the 1st amendment, but
also injunctive systems which threaten or bar future speech
based on some past infractions.
27
IV.
Content-Based Restrictions: Low-Value speech
a. General
i. Two-tiered level of analysis: some speech is “by its very utterance likely to inflict injury
or tend to incite an immediate breach of the peace.” This is not afforded as much
constitutional protection
ii. This chapter examines whether this system is even worthwhile:
1. “Does the determination that certain types of speech are of “slight social value as a
step to truth” compel the Court to make “value judgments concerned with the
content of expression, a role foreclosed to it by the basic theory of the First
Amendment.”
2. Defamation was mentioned in Chaplinsky as one of those types of speech that is
such a small step in the search for truth that . . .
b. False Statements of Fact (Defamation)
i. New York Times v. Sullivan
1. Full page ad taken out by civil rights activists in the NYTimes says they had
arrested MLK 7 times, that the police had padlocked the dining hall to starve the
students, and that the students sang the Start Spangled manner, etc. They had not
arrested MLK that many times, students were not expelled b/c they led a
demonstration at a lunch counter, not b/c they were protesting on the capital steps,
the police hadn’t padlocked the dining hall at any time, and the National Anthem
was sung instead of “My country tis of thee”. Sullivan was the elected
Commissioner, and said the statements were of and concerning him b/c he is in
charge of the law enforcement. Held, The Constitutional guarantees require . . . a
federal rule that prohibits a public official from recovering damages for a
defamatory false-hood relating to his official conduct unless he proves that the
statement was made with “actual malice” – that is, with knowledge that it was false
or with reckless disregard of whether it was false or not. Rationale: “We consider
this case against the background of a profound national commitment to the
principle that debate on public issues should be uninhibited, robust, and wideopen, and that it may well include vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials. People must be free to criticize,
and erroneous facts are inherent in criticism. (1) This is not of and concerning the
Plaintiff. (2) If you criticize an entity, it is not criticizing those individuals who
compose that entity. Importantly, the SC constitutionalized this niche of “of and
concerning,” and the 1st amendment applies even to private civil lawsuits. (3) A
public official suing for defamation of his official acts, the official must prove
actual malice.
a. Major Issue:
i. At what point do we, while respecting public discourse about
public officials, stop short of harming the reputation of public
individuals or the government?
b. Issues:
i. Just the idea of negligent liability for falsehood chills free speech
ii. Rationale for the standard:
1. You have to allow some false speech to ensure that you are
getting all the true information out there
28
2. False ideas contribute to public debate b/c it makes true
ideas more true when
3. False speech will enter into public debate nonetheless, so
we have to allow some go in order to get all of the true
speech out
a. We want the standard to be tolerant of some false
speech, and that is the main rationale for the actual
iii. This is Definitional Balancing
1. The Court employs balancing for the purpose of defining
which forms of speech are to be regarded as “speech”
within the meaning of the 1st amendment. By in effect
holding that knowingly and recklessly false speech was not
“speech” within the meaning of the 1st amendment, the
Court implicitly balanced certain competing policy
considerations.
2. Balancing: Public Interest v. Value of the Speech
a. The court engages in the balancing, and then sets
the threshold under which the speech will be
protected
c. Actual Malice:
i. You know it is false or you recklessly disregard whether it is true
or false at a time when you subjectively entertain serious doubts
about its truth
d. Is New York Times overprotective of false speech:
i. You could be flooding the market place of ideas with unnecessary
speech that is protected by actual malice standard
ii. NYTimes allows not only more true statement, but more false
statements to come out. A lower standard would definitely chill
more false speech.
iii. Also, there is false speech out there, and if it is not deterred well, it
lowers the value of ALL speech that comes from the press. People
will distrust the press.
iv. Newspapers shouldn’t have to pay for the costs of their speech.
When you injure someone, be them a public official or not, the
paper should pay for it.
v. NYTimes may drive public officials who are capable from
government. They will not want to run b/c they don’t want the
words about them.
e. Is it underprotective:
i. Concurring justices say that political speech is the core of the first
amendment, and that defamation law should be chucked out the
window on matters of public concerns.
ii. The fear of litigation itself could chill the speech
iii. If false ideas really contribute to public debate, then we should
love false ideas – they can only prove things more true
ii. Curtis Publishing Co. v. Butts; Assoc. Press v. Walker
29
1. Court holds that the New York Times standard is applicable to public figures as
well as public officials. Ra: “Public figures have as ready access as public officials
to mass media of communication, both to influence policy and to counter criticism
of their views and activities.”
a. The Pillars of NY Times
i. The Search For Truth is Upheld here
ii. However, self-governance is a bit of a stretch.
iii. Gertz v. Robert Welch, Inc. (Powell: 1974)
1. Policeman shot and killed a youth. In the civil trial, Gertz represented the family.
Respondent, publisher of American Opinion, said that Gertz was the architect of a
“frame up” of the policeman and that Gertz had a criminal record and longstanding
communist affiliation. Held, the New York Times standard doesn’t apply to all
discussion of a public issue. (1) Under the 1st amendment, there is no such thing as
a false idea. However, false facts belong to the category of speech that is no
fundamental value to free expression. (2) Private individuals are more vulnerable
to injury, and the state interest in protecting them is correspondingly greater.
Media are entitled to act on the assumption that public figures have voluntarily
exposed themselves to increased risk of injury from defamatory falsehoods
concerning them. (3) The extension of the New York Times standard to
defamatory falsehoods relating to private persons if the statements concerned
matters of general or public interest would abridge this legitimate state interest to a
degree that we find unacceptable. It would occasion the additional difficulty of
forcing state and federal judges to decide on an ad-hoc basis which publications
address issue of “general or public interest” and which do not. (4) The private
defamation plaintiff who establishes liability under a less demanding standard that
that stated by New York Times may recover only such damages as are sufficient to
compensate him for actual injury
a. The standard for ordinary people is “whatever the state wants to have” but
it has to have something more than strict liability – it could be as great as
actual malice
b. All Purpose Public Figures
i. Bill Gates, Wesley Clark, Micheal Moore, Wayne Newton
ii. These people have to prove actual malice
c. Limited Purpose Public Figure
i. The kind that injects themselves into the controversy in order to
sway the outcome of the issue – it is on one issue or one thing –
even if it is a really important thing
1. Monica Lewinsky, Robert Shapiro
d. How Far Down the chain of command for a public official:
i. Minor functionaries are not protected
e. Time Inc. v. Firestone
i. Firestone wife was not a “public figure” because she did not
assume a role of especial prominence in the affairs of society, other
than perhaps Palm Beach Society, and she didn’t thrust herself to
the forefront of a particular public controversy.
f. Wolston v. Reader’s Digest
30
i. “One who commits a crime does not become a public figure, even
for the purpose of comment on a limited range of issues relating to
his conviction.”
g. Hutchinson v. Proxmire
i. One who receives federal funds does not become a public figure
for the purpose which he received funds for.
iv. Dun & Bradstreet v. Greenmoss Builders
1. P, credit reporting agency, disseminated information that Re had voluntarily filed
for bankruptcy. State SC upheld an award in favor of Re on the grounds that Gertz
is inapplicable to non-media defamation defendants. Held, because this speech is
private and does not involve any issues of public concern, Gertz does not apply.
Powell’s plurality: It is issues of public, and not private, concern which is at the
heart of the 1st amendment. Also, P’s credit report involved a matter that was not
of public concern
a. The leading case on non-public-concern on private figures is Dun &
Bradstreet
i. Plurality opinion: court allows the punitive damages award b/c it
is not public speech
1. Private/Public Speech distinction: Public speech is
protected to a greater extent b/c it has more value in terms
of self-governance and the public debate issue
2. There is a great tort interest in protecting false private
speech – not a great 1st amendment issue
ii. Dissent: Gertz doesn’t make a distinction between public/private
speech. Gertz applies to public speech, and continues to do so, but
Gertz can’t be used to apply to private speech(?)
1. The standard can be different from Gertz b/c Gertz doesn’t
control
b. Breaking Down the Essence of the Plurality
i. The best we can do in Gertz is that you can have a standard less
than actual malice in matters of purely private concern
v. Hustler v.Falwell
1. Parody claims Falwell lost virginity to mother in an outhouse while drunk. Court
holds that you can’t get around defamation law by simply making an Emotional
Distress claim that the material is outrageous. Furthermore, when the material is
so unbelievable that nobody could regard it as a fact, you can’t win a defamation
claim for a false statement of fact.
a. Why is Rehnquist writing this?
i. Because he is in the majority, he can assign the opinion to himself
and write the opinion in the narrowest way possible – striking
down the verdict.
b. Court holds that public figures that sue other people seeking reputational
damages have to be able to show actual malice in order to recover.
i. Actual Malice is still the NYTimes term of art – not the state of
mind of maliciousness
c. Non-newsworthy disclosures of private information
31
i. Cox Broadcasting Corp. v. Cohn (White: 1975)
1. In relation to the prosecution of a crime, the name of a deceased rape victim
appeared in an article. Ga. Code makes it a crime to publish or broadcast the name
or identity of a rape victim. The reporter received the name from an inspection of
the indictments available in the courtroom. Held, the state may not impose
sanctions on the accurate publication of the name of a rape victim obtained from
public records – which are open to public inspection. (1) There is a zone of
privacy that protects every individual, a zone within which the State may protect
him from intrusion by the press, with all its attendant publicity. (2) The
prosecution of crime and the judicial proceedings arising from it are events of
legitimate public concern. (3) By placing the information in the public domain on
the official court records, the State must be presumed to have concluded that the
public interest was thereby being served. (4) If there are privacy interests to be
protected in judicial proceedings, the States must respond by means which avoid
public documentation or other exposure of private information.
a. The father claims it is not only an invasion of his privacy, but also a state
statutory violation.
b. Why is White concerned?
i. He believes it will chill media outlets from disseminating
information – we are concerned about the media and people need
to rely on the media to report newsworthy information
ii. The cosmic difference in this case is that this information is TRUE
1. The lines of reasoning get repeated here, though.
iii. In the context of public records, anything the press gets out of it
seems to be privileged
c. Does it matter that this is a member of the media?
i. It seems that it does
d. First Amendment Interests:
i. This is not a fact that is truly central to the administration of
justice. It is not an idea that contributes to the marketplace.
e. Privacy Interests:
i. This is about as strong as it goes.
f. The evolution of the “newsworthiness” doctrine:
i. A newspaper cannot be liable if it is “lawfully received” and
“newsworthy”
1. BJF v. Florida Star & Bartnicki v. Vopper
ii. Brisco v. Readers Digest Ass’n (Cal. 1971)
1. P had been convicted of hijacking a truck. After paying his debt to society, he
shaped up, had moved on, and was a part of respectable society. He sued Readers
Digest for publishing an article in which he was a part claiming that the public
disclosure of these private facts has humiliated him and exposed him to contempt
and ridicule. Conceding that the subject of the article may have been 'newsworthy,'
he contends that the use of his Name was not, and that the defendant has thus
invaded his right to privacy. Held, it is up to a jury to decide whether the
dissemination of this man’s name was necessary as a “newsworthy” item. (1) The
right to keep information private was bound to clash with the right to disseminate
32
information to the public eventually. (3) The central purpose of the First
Amendment 'is to give to every voting member of the body politic the fullest
possible participation in the understanding of those problems with which the
citizens of a self-governing society must deal (Meiklejohn). Freedom of discussion
must embrace all issues about which information is needed or appropriate to
enable the members of society to cope with the exigencies of their period. (4)
Particularly deserving of First Amendment protection are reports of 'hot news,’
items of possible immediate public concern or interest. (5) We have no doubt that
reports of the facts of past crimes are newsworthy. Media publication of the
circumstances under which crimes were committed in the past may prove
educational in the same way that reports of current crimes do. (6) However, the
state has a compelling interest in the efficacy of penal systems in rehabilitating
criminals and returning them as productive and law- abiding citizens to the society
whence they came. A jury might well find that a continuing threat that the
rehabilitated offender's old identity will be resurrected by the media is counterproductive to the goals of this correctional process.
iii. Florida Star v. B.J.F.
1. Court invalidated a state statute declaring it unlawful to publish the name of a rape
victim when the reporter found it in a publicly available police report. The court
makes the holding that if the material is (1) truthful, and (2) lawfully obtained, it
cannot be punished.
iv. Unlawfully obtained information
1. Bartnicki v. Vopper
a. Reporters were delivered an illegally wire-tapped phone call conversation
on a matter of public concern. Court held that b/c the broadcasters didn’t
participate in the illegal activity and it was a matter of public concern, the
reporters weren’t liable.
d. Commercial Speech
i. Early Cases
1. Valentine v. Chrestenson (1942)
a. Guy bought a submarine in Florida and realizes that people aren’t
interested in it. He sales the submarine from Florida to New York and
parks it on a pier by the East River and prints up handbills to show the
submarine to people. On the opposite side of the handbill, “I think it’s a
public outrage that the NY sanitary commission won’t let me park the
submarine where I want to park it.” This gets him in trouble under the
sanitary code. Held, The constitution imposes no restraint on govn’t with
respect to purely commercial advertising.
i. Thus, there is no protection for commercial speech
ii. Why does the Court not protect this speech?
1. It’s only economic speech; it doesn’t contribute to the
marketplace of ideas
2. The Court for the previous fifty years had embarked on an
experiment in protecting economic rights; that experiment
has been a disaster, then comes the New Deal, and these are
all justices for government regulation – This is POST –
33
LOCHNER, so the justices are for regulation. This is
Carolene Products. Thus, the court doesn’t want to
rejuvenate economic rights because it just put them to bed
four years earlier.
iii. Briar v. City of Alexandria (1951) – reaffirms Chrestenson
2. Bigelow v. Virginia really messes it up (1975):
a. advertising abortions were illegal, and the court invalidates his restriction
for illegally advertising a lawful product (Abortions were legal)
b. This is more Roe v. Wade (1973) speech than a commercial speech case
ii. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council
1. Virginia statute said that Virginia pharmacists couldn’t advertise the prices of
prescription drugs. Pharmacist publishes the price of his drugs and is convicted.
Held, the state cannot punish the dissemination of advertising that “does no more
than propose a commercial transaction.” (1) The “idea” the pharmacist wants to
communicate is that he will sell X prescription drug for Y price. (2) Those whom
the suppression of prescription drugs price information hits the hardest is the poor,
the sick, and particularly the aged. (3) These people have a strong interest, and
society has a strong interest in this information b/c they can make better informed
decisions if they know all the facts. (4) Because we are a free enterprise economy,
the allocation of our resources in large measure will be made through numerous
private economic decisions. It is a matter of public interest that those decisions, in
the aggregate, be intelligent and well-informed. (5) Some forms of commercial
regulation are permissible: (a) time, place, and manner restrictions, (b) false and
misleading advertising restrictions, (c) advertising illegal transactions, (d)
electronic broadcast media issues.
a. Court invalidates the statute and overrules the Chrestenson case. The
people challenging the law are merely consumers – they want to get ad’s
saying where they can get cheap drugs. Thus, this is really a RIGHT TO
LISTEN case; not a RIGHT TO SPEECH case
b. Commercial Speech is in between economic activity and the rest of speech
c. It is “speech that proposes a commercial transaction”; not speech with a
commercial motivation and not political speech by corporations
d. The theory is that it deals with the free enterprise economy; it is a matter
of public interest that our economic decisions in the aggregate be
informed. The free flow of economic information serves that goal.
e. This is mainly J. Holmes’s dissent in Lochner
f. What J. Rehnquist have done is write laissez-faire economics into the
Constitution
i. However, it’s clear that he doesn’t believe that economic ad’s can
NOT be regulated
ii. It doesn’t follow that b/c some economic decisions are matters of
public concern that all economic issues are matters of public
concern
g. Truthful, nondeceptive advertising after Virginia Pharmacy
i. Bates v. State Bar of Arizona: Held, no ban allowed on lawyer
advertising
34
ii. Linmark Associates v. Township of Willingboro: Held, ordinance
prohibiting the display of “For Sale” or “Sold” signs on all but
model homes.
iii. Central Hudson Gas v. Public Service Commission of New York
1. Court sets out the four part analysis.
a. If the expression is commercial speech (“Does nothing more than propose
a commercial transaction”), it comes within the meaning of the first
amendment if it concerns lawful activity and is non-deceptive.
b. Second, we ask whether the asserted government interest is substantial
c. Third, we must determine whether the regulation directly advances the
governmental interest.
d. Fourth, if the government interest could be served as well by a more
limited restriction on commercial speech, the excessive restrictions can’t
survive.
i. J. Rehnquist dissents again and insists the court is doing Lochner
all over again.
ii. SUNY v. Fox (this is still good law); the court clarified that prong
four is not a least restrictive means test – you have to show that the
alternative regulation (what it could have done to be less
restrictive) is substantially less restrictive of speech in order to
invalidate the regulation.
1. The court is reluctant to judge the legislature.
2. Also, the trend in these cases is that there is more
protection for commercial speech over time – from
Chrestenson till present
3. The question today is whether a meaningful distinction can
be made between commercial speech and core political
speech – the majority of the court says there is not a
meaningful distinction
2. Posadas De Puerto Rico v. Tourism Co of Puerta Rico
a. Court upholds statute that allows gambling but prohibits advertising the
gambling. The court holds that the power to completely ban casino
gambling necessarily includes the lesser power to ban advertising on the
issue.
3. 44 Liquormart v. Rhode Island
a. Court abandons the “bitter with the sweet” doctrine announced in Posadas
b. The legislature doesn’t have the broad power to suppress truthful, nonmisleading information for commercial purposes
c. Court intimates that it is rejecting the deferential Posadas posture and
arguably rejecting the deferential position of Central Hudson altogether.
i. Strict scrutiny applies where truthful information is being withheld
from consumers
d. This is a return to the anti-paternal instinct – Blackman’s Virgina
Pharmacy position – the state doesn’t have the right to protect its citizens
from truthful, non-misleading information.
4. Lorillard Tobacco v. Reilly
35
a. State bans tobacco advertising w/in 100 ft of schools. Court holds that
w/regard to cigarettes, it is pre-empted by federal law. W/regards to othert
tobacco products, it can’t pass the test. Would have banned advertising in
87%-91% of Boston.
i. Main Problems
1. Scope of Message: This regulation is too broad in terms of
the type of communication that it covers. Nothing
distinguishes between the billboards or certain price
advertising, etc. She links the scope to empirical studies. If
studies had proven that certain advertising was more
effective for children or moved children to a certain
lifestyle, then it could be possible to uphold this statute.
a. Problem with linking speech to empirical studies:
this might be a return to the “bad tendency” test – if
the govn’t can prove there is a bad tendency under
empirical evidence, then it can support basically any
speech restriction.
b. This would thus fly in the face of the strict scrutiny
the court is leaning toward.
2. (2) Geographic: This would also eliminate advertising in a
majority of the city (87%-91%). This is too much.
5. Thompson v. Western States Medical Center
a. Congress enacted the FDA Modernization Act, which, among other things,
exempted compounded drugs from the FDA’s standard drug approval
requirements if, but only if, the providers of those drugs don’t advertise
the use of specific compounded drugs. Held, this restriction on
advertising violations the first amendment. (1) Because obtaining FDA
approval for a new drug is a costly process, requiring such approval of all
drug products compounded by pharmacies for the particular needs of an
individual patient would, as a practical matter, eliminate the practice of
compounding, and thereby eliminate the availability of compounded drugs
for those patients who have no alternative treatment. (2) Several nonspeech related means of drawing a line between compounding and largescale manufacturing might be possible here. (3) Even if the fear is that
advertising compounded drugs would put people who do not need such
drugs at risk by causing them to convince their doctors to prescribe the
drugs anyway, that fear doesn’t justify the restrictions.
i. Violates the 1st amendment under the prong four “Reasonable fit”
tailoring inquiry of Central Hudson
1. Congress could have drawn a less speech-restrictive line
a. Could have banned the use of commercial scale
manufacturing for compounding drug products
b. Prohibited pharmacists from wholesaling
compounded drugs – anticipating customers before
prescriptions arrived
6. Complete Bans
36
a. The Court upheld a ban on all billboards in San Diego
7. Compelled Disclosure
a. The court has upheld compelled disclosure in certain advertising
[Zauderer v. Office of Disciplinary Counsel]
iv. Final Thoughts
1. Note there is a DEEPLY DIVIDED COURT ON THIS ISSUE?
2. What are consistently allowable regulations?
a. Ads for unlawful activity (buy crack for cheap, murder for hire, etc.)
b. False or Misleading Ads
i. The problem with these is that misleading may be truthful and the
fear that people will come to a bad decision is against the courts
economic Darwinism principles
c. Non-information ads: lifestyle ads, Joe Camel, Budweiser girls, etc.
3. Final Question: Why is there such a divided court on this subject? What’s at issue
here?
a. Different views of the purposes served by free speech.
i. Is it about self-governance, etc., or about privileging information
flows
b. Different views of the Government’s role in economic activity
e. Obscenity
i. Early Definitions
1. “The test of obscenity is whether the tendency of the matter is to deprave an
corrupt those whose minds are open to such immoral influence.” [Regina
v.Hicklin]
ii. Two Distinct Periods of Defamation
1. Roth (1957) -1973
a. Dominated by the Warren Court’s frustrating and largely unsuccessful
efforts to define obscnenity
b. Appeals to the “Prurient Interest”: marked by restless cravings – appeals
to the sexual desire – does it turn you on
2. Miller and Paris Adult Theater I (1973) - Present
a. Subsequent efforts to reformulate the doctrine
iii. Roth v. United States; Alberts v. United States
1. P Roth was convicted of violating a federal statute prohibiting any person to mail
an “obscene” publication. P Alberts was convicted of statute prohibiting any
person to write, print, or sell any obscene publication. Held, each of these
convictions is upheld. (1) Obscenity does not receive first amendment protection.
(2) Sex and obscenity are not synonymous. (3) The proper test is whether to the
average person, applying contemporary community standards, the dominant them
of the material taken as a whole appeals to the prurient interest.
a. Obscenity has no place in the marketplace of ideas
b. Degrades the morals of the citizenry
i. Protecting people’s morals or controlling thoughts are not good
justifications in other areas of 1st amendment law
iv. The freedom of Imagination
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v.
vi.
vii.
viii.
1. Rather than make an “art/entertainment/literature” distinction, we should say that
the first amendment protects the freedom of imagination.
a. The freedom to explore the world not present, creatively and
communicatively. It means the freedom to explore, without state penalty,
any thought, any image, any emotion, any melody, as far as the imagining
mind may take it.
Entertainment, art, literature and the 1st amendment
1. The court has generally assumed that non-obscene literature and entertainment is
entitled to full 1st amendment protection.
a. “What is one man’s amusement teaches another doctrine.”
Is obscenity of Only “low” first amendment protection
1. Arguments:
a. For:
i. It does not contribute to the marketplace of ideas b/c it is only a
physical stimulus
ii. It is of such slight social value as a step to truth that any benefit
that may be derived from it is clearly outweighed by the social
interest in order and morality
iii. It alters people’s perception by a process that is, like subliminal
advertising, both outside of one’s rational control and quite
independent of the relevant grounds for preference.
b. Against:
i. There is no reason whatsoever to believe that the freedom to
determine the sexual content of one’s communications or to be an
audience to such communications is not as fundamental to a
person’s self-mastery as the freedom to decide upon any other
communicative contents.
The state interests furthered by the suppression of obscenity
1. Attorney General Report concluded that there was a causal relationship between
exposure to sexually violent material and aggressive behavior toward women.
With respect to non-violent, degrading material, the commission found the
evidence more tentative, but concluded that substantial exposure ot material of this
type will increase acceptance of the proposition that women like to be forced into
sexual practices.
2. The state may suppress obscenity b/c it corrupts character, impairs mental health,
and has a deleterious effect on the individual from which the community should
protect him
3. The state may suppress obscenity to prevent the erosion of moral standards.
4. The state may suppress obscenity b/c it erodes moral standards by indirect
degradation of values
5. The state may suppress obscenity to protect individuals against the shock effect of
unwanted exposure to such expression b/c a communication of this nature,
imposed upon a person contrary to his wishes, has all the characteristics of
physical assault.
1957-1973: Developments in the law of obscenity
1. Page 203-204: The different views of the justices
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2. The definition of obscenity: material that is “obscene for minors.”
a. Ginsburg v. New York
i. The power of the state to control the conduct of children reaches
beyond the scope of its authority over adults;
ii. The claim of parents to direct the rearing of their children is basic
in the structure of our society, and the legislature could properly
conclude that parents are entitled to the support of laws designed to
aid discharge of that responsibility;
iii. The state has an independent interest in the well-being of its youth
and in seeing to it that they are safeguarded from abuses which
might prevent their growth into free and independent welldeveloped men and citizens
3. How bad the court got?
a. Redrup v. New York
i. The court begins summarily stating: The judgment of the Supreme
Court of Ohio is reversed
4. The interest furthered by the suppression
a. Stanley v. Georgia
i. Held, the mere private possession of obscene matter cannot
constitutionally be made a crime. (1) The right to receive
information and ideas, regardless of their social worth, is
fundamental to our free society.
b. United States v. Reidel
i. Held by the district court that a federal statute prohibiting the
knowing use of he mails for the delivery of obscene matter was
unconstitutional as applied to the distribution of such matter to
willing recipients who state they are adults.
ii. Supreme Court Reversed: Reidel is in a wholly different position
than Stanley – he has no complaints about governmental violations
of his private thoughts or fantasies, but stands squarely on a
claimed 1st amendment right to do business in obscenity and use
the mails in the process.
5. Miller v. California (Burger: 1973)
a. Man sent brochures through the mail that were categorized as drawings of
obscene nature. Held, obscene material is not protected by the first
amendment, it can be regulated by the states under the safeguards we list
here, and “contemporary community standards” defines what is obscene.
(1) We do not adopt as a constitutional standard the utterly without
redeeming social value test of Memoirs. (2) The basic guidelines are that
i. (a) the average person, applying contemporary community
standards would find that the work, taken as a whole, appeals to
the prurient interest; (Does it turn you on?)
ii. (b) the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and
(Does it gross you out?)
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1. Patently offensive representations or descriptions of
ultimate sexual acts, and
2. Patently offensive representations or descriptions of
masturbation, excretory functions, and lewd exhibitions of
the genitals.
iii. (c) The work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.
1. This is not left to the jury – these are community standards
b. (4) To equate the free and robust exchange of ideas and political debate
with commercial exploitation of obscene material demeans the grand
conception of the 1st amendment.
i. THIS IS THE NEW TEST
6. Paris Adult Theatre I v. Slaton (Burger: 1973)
a. In Atlanta, an adult theater was displaying adult films that the District
Attorney felt were obscene and filed civil charges. They made sure people
were over 21 when they entered and only consenting adults visited the
theatre. Held, state’s have the ability to suppress obscene material if it
lacks serious literary, artistic, political or scientific value. (1) We
categorically disapprove the theory that obscene films require
constitutional immunity simply because they are exhibited to consenting
adults (2) There are legitimate state interest involved in stemming the tide
of commercial obscenity: the interest of the public in the quality of life
and the total community environment, the tone of commerce in the great
city centers, and possibly the public safety itself. (3) Although there is no
conclusive proof that adverse qualities come from viewing adult films, it is
not for the Court to resolve legislative uncertainties – and we’ve ruled that
state’s can protect order and morality. (4) If we believe that reading
quality literature helps people – enriches the imagination, strengthens
character, uplifts the spirit – then we can believe that viewing obscene
material does the opposite. (5) We are not controlling people’s thoughts –
we can’t control a drug addicts fantasies but we can regulate the use of
drugs – this is the same thing. (6) The state’s have a right to maintain a
decent society.
b. Dissent (Brennan) (1) Our standards are too vague and create uncertainty,
and this can jeopardize the right to a fair trial, chill on protected
expression, and a severe stress on the judicial machinery. (2) There are
several options we can take: (a) we could say the state has a right to ban
all depictions of genitalia, etc., but this would be too broad, (b) The courts
approach today, which allows suppression if the material lacks serious
value, but this is too vague and Court’s across the country cannot reach a
consensus on what this means, (c) we can allow juries in total to determine
whether something is obscene, but the Constitution requires independent
review by appellate courts over whether something is obscene or not, or
(d) we can take Black and Douglas view that the 1st amendment bars all
suppression – but this is too broad also. (3) The justifications for
consenting adults are not the same as the justifications when consenting
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adults are in the picture: while I can’t say the interests of the State are
trivial or nonexistent, I am compelled to conclude that these interests
cannot justify the substantial damage to constitutional rights and the
judicial machinery that inevitably result from the state efforts to bar
distribution even of unprotected material to consenting adults.
i. The court “categorically disapproves” of the consenting adults
argument
1. First, if we believe that good things improve the mind, then
the state government can rely on the fact that bad books do
the opposite
a. Should the government be stating what the good
and bad books are – how do they decide these
things – this is the great debate
b. This would seriously fail under political speech; the
bad speech supposedly enriches the good speech
c. This leads to content regulation in the marketplace
of ideas that would regulate based on governmental
choice
2. We reject the claim that the State of Georgia is trying to
control the minds of those who patronize theaters – the
government can’t control the drug addict’s fantasies, but
they can control the sale of drugs to him/her
a. You could argue that Stanley doesn’t govern
b. He is saying this isn’t speech – this is inconsistent
with Stanley – there J. Marshall says it doesn’t
matter whether it is speech or not, we can’t regulate
what people do in their privacy – Burger simply
calls it “not speech” and gets out of the complicated
analytical doctrine for speech.
ii. Brennan’s Dissent
1. He writes that a strict rule protecting obscenity is
nevertheless the better rule
a. Too much protection hurts the judicial machinery
ix. The 1973 Reformulation and its Aftermath
1. Notes
a. Courts have made it known that the two examples provided in Miller are
not exhaustive.
b. Supreme Court (Jenkins, 1973) rejected a state courts depiction of Carnal
Knowledge as obscene. The Court stated that nudity is insufficient to
reach obscenity, and there are no depictions of the genitals during the
“ultimate sexual act” scenes.
2. Local v. National Standard
a. General
i. There has been some confusion over what the proper standard is,
which is problematic
1. communities are hard to define;
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2. people who distribute nationally can’t contemplate what
every standard will be and thus will censor themselves
3. appellate courts don’t have a benchmark to determine the
standards
ii. Jenkins v. California: jurors should only contemplate what there
own community standards are
iii. Pope v. Illinois: Trial Court may not use community standards to
determine what the value of work is, for the “value of a work does
not vary from community to community.”
b. On the internet
i. Ashcroft v. ACLU: Statute regulating obscene material on the
internet is not invalid on its face b/c it applies local community
standards to determine whether particular material is obscene, even
though a person posting on the internet has no control over who
will see it
1. There may be times when this is unconstitutional, but we
are going to leave those situations to ad hoc analysis
3. Intent
a. Smith v. California: Court holds a strict liability statute that punishes those
who have obscene material in their bookstore as invalid. “If a bookseller
is criminally liable w/o knowledge of the contents of what he carries, he
will tend to only sell those that he has inspected, which is horrible self
centorship.
4. Violence
a. American Amusement Machine Ass’n v. Kendrick
i. Violent video games express age old themes of literature. Most of
the violent games are stories. High and Low art has a fascination
with violence – to limit exposure until kids were 18 would leave
them unequipped to deal with the world as we know it.
5. Child Pornography
a. New York v. Ferber (White: 1982)
i. Proprietor was convicted of selling a film of young boys
masturbating to undercover police officers. The statute prohibited
promoting or exhibiting films that depict a sexual performance by
a child under 16. Held, pornographic depictions of children is
unprotected by the 1st amendment. (1) The state has a compelling
interest in safeguarding the physical and psychological health of its
children – and the use of children as subjects of porn is harmful to
the mental health of the child. (2) The distribution of these films is
related to the sexual abuse of children b/c (a) the materials produce
a permanent record of the harm to the child and (b) the distribution
must be shut down if the production of these films are to be
controlled; (3) The value of these movies is low. (4) The standard
is to adjust Miller: no need to find that the material appeals to the
prurient interest of the average person; it is not required that sexual
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conduct portrayed be done so in a patently offensive manner; and
the material need not be considered as a whole.
1. This is just categorical balancing – it concludes that this
doesn’t get any protection.
2. We may need to say that this is simply a case onto its own.
Justifying it in many other ways leads to a slippery slope
problem – we call this sui generus
3. Note: Punishing mere possession of the films doesn’t
matter – we can and should prohibit possession because not
doing so would drive up the market. Punishing possession
dries up the market b/c people won’t want to acquire it if
possessing it means jail time (you limit the market – this is
a chill upon people’s willingness to possess them)
b. Osbourne v. Ohio
i. Stanley v. Georgia does not extend to the private possession of
child pornography. The role of the law is not to control what
people see, but to destroy the national market in something that
victimizes children.
c. Aschcroft v. Free Speech Coalition (Kennedy: 2002)
i. Statute punishes alleged depictions of minors that are either adults
that look like children or made using computer imaging. Congress
felt that these pictures were problematic because: (a) they might be
used by pedophiles to encourage children to participate in the
activity – or the pedophile may “whet his sexual appetite” with the
images; or (b) as computer imaging becomes more sophisticated, it
will become too difficult to distinguish those people who use real
minors with those that do not. Held, statute that criminalizes
making pornography that appears to depict minors, but does not
use real children, is invalid. (1) This violates Miller: The sexual
abuse of children is a serious crime, but the prospect of crime does
not justify laws suppressing speech. (2) The first amendment must
be judged by considering the work as a whole – or we would be
eliminating some great works of art (Romeo & Juliet, Traffic,
American Beauty). (3) The harms sought to be prevented by the
statute does not necessarily flow from the speech, but depends on
some unquantifiable potential for subsequent criminal acts. It does
not protect the same harms that Ferber sought to protect. (4) We
cannot suppress speech because pedophiles will use it
inappropriately because many other things can be used
inappropriately also (candy, cartoons, etc.), and also we don’t
punish ideas that people have (like the pedophiles idea). Finally,
the government cannot suppress lawful speech as a means to
suppress unlawful speech – so the govn’t can’t ban because it will
be difficult to discern between lawful and unlawful speech.
f. The Lewd, The Profane, and The Indecent
i. General
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1. In Chaplinsky, the Court noted that the “lewd . . . [and the] profane” are not
protected because they “may incite a breach of the peace” and because “their very
utterance may inflict injury.”
2. Cox: The problem: “To assert that no restrictions against the communication of
particular ideas is ever constitutional unless the demanding test otherwise
applicable to censorship is satisfied implies that the state is powerless to protect the
sensibilities of an non-consenting audience against grossly offensive expression.
Conversely, any restriction upon expression narrowly tailored to protect sensibility
against gross assault is almost by definition tied to content and thus subject to
attack as discriminatory.”
ii. Cohen v. California
1. P walked into L.A. County Courthouse wearing a shirt that said “Fuck the Draft”
in front of women and children. He said he did this to inform the public of the
depth of his feelings about the draft. He was arrested under a statute that prohibits
“willfully and maliciously disturbing the peace and quiet of any neighborhood or
person by offensive conduct.” He went to jail for 30 days. (1) This case does not
present: (a) this is not about the message, but about the words he chose to use; (b)
this is not an obscenity case; (c) this is not a fighting words case – his protest
wasn’t directed at any one person; (d) this is not an exercise of the police power to
prevent someone from intentionally provoking a group to hostile reaction. (2) The
mere presence of unwitting listeners or viewers does not serve automatically to
justify curtailing all speech capable of giving offense – we are “captives” outside
the home and subject to objectionable speech.” (3) Those in the L.A. Courthouse
could effectively avoid further bombardment of their sensibilities simply by
averting their eyes. (4) The theory that the words use is inherently likely to cause
violent reaction is untenable b/c although one lawless and violent person may react
to the word, a supposition that others will act against the word is not enough to
remove the speech from dialogue. (5) The theory that the States, as guardians of
the public morality, may properly remove the offensive word from the public
vocabulary is also problematic. It is difficult to distinguish what words are
particularly offensive – and thus the theory is boundless. The Constitution leaves
matters of taste and style to the individual b/c legislatures are bad at this. Also,
government might seize upon unpopular words as a means of banning ideas.
a. Profanity, Cohen and the Captive Audience
i. General
1. Arguments for profanity on 229
ii. Profanity and Fighting Words
1. After Cohen, fighting words becomes only “an
unambiguous invitation to a brawl.” Also, Cohen
recognizes that fighting words and profanity are
analytically distinct: although fighting words typically
involve the use of profanity, this is not essential; although
fighting words usually involve insults directed personally
to the addressee, the problem of profanity is not so limited;
and although the fighting words doctrine is designed
primarily to forestall an addressee’s violent response,
44
government efforts to suppress offensive language are
designed primarily to raise the level of public discourse and
to protect the sensibilities of an unconsenting audience.
iii. Supreme Court on profanity mailings:
1. Rowan: Congress can enact a law authorizing any
homeowner who no longer wishes to receive mail from a
particular person or organization to instruct the Postmaster
to direct that person organization to refrain from further
mailings to the homeowner.
2. Bolger: Court invalidates a federal statute prohibiting the
mailing of unsolicited advertisements for contraceptives.
3. Consolidated Edison: Court invalidated a rule prohibiting
public utility companies from including in their monthly
bills inserts discussing controversial issues.
4. Rosenfeld: Public school board meeting attended by 150
people (40 were children); P used the phrase “motherfucking” on four occasions. Court remanded in light of
Cohen.
5. Shaker Heights: plurality opinion upholds city policy
permitting the display of commercial but not generally
more “controversial” political or public issue
advertisements in the interior of city buses.
iii. Erznoznik V Jacksonville
1. Held, ordinance that declares it a public nuisance for any drive-in movie theater to
exhibit any motion picture that shows nudity is invalid. (1) Although the city may
enact reasonable time, place, and manner restrictions applicable to all speech
irrespective of content, it may not do so based on the content of speech. (2) Also,
the ordinance is overbroad in the sense that it tries to protect children, b/c it is
against all nudity – and all nudity can’t be offensive to children. (3) Finally, the
city can’t justify this on the ground that it stops passerby motorists, b/c violence
and other things would slow them down, too.
iv. FCC v. Pacifica Foundation
1. George Carlin did a show which he talks about the most obscene words and this
was broadcast over an afternoon talk show. A dad and son heard this, and filed a
complaint with the FCC, who held that it was indecent and profane language.” (1)
This case involves the broadcast of patently offensive vulgarities, which offend for
the same reason as obscenity offends – “it reduces people to their basic functions.”
Because content of that character is not entitled to absolute constitutional
protection under all circumstances, we must consider its context in order to
determine whether the Commissions action was constitutionally permissible. (2)
We can’t deal with the argument that you can turn your head away from this, b/c
people can’t turn their heads away from offensive content when they tune in in the
middle and there is no warning its on. (3) Children cannot protect themselves,
also, b/c this material is too easily accessible.
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2. Dissent: The court is prude; words are important and mean important things – we
should not make someone say something in a different way if how they say it is
how they meant to say it.
a. The timing of the broadcast is inappropriate
b. Is this Cohen: one mans vulgarity is another mans lyric?
i. There is some tension between this approach to vulgarity and that
of Cohen in IV.B.
1. However, this section is Stevens + 2, so this is not the law
[just IV-B]
c. This analysis is ad hoc balancing test – it is not categorical
i. It is not a broad category of speech (radio, media, indecent), this is
case-specific speech (by George Carlin on the Radio at 2 O’Clock
heard by Father/Son)
d. Factors the Court focuses on:
i. One of the issues Pacifica raises is that this type of media is
targeted toward kids or more easily accessible by kids
ii. The nature of the media:
1. Radio is pervasive and we have relied on it for news, etc.;
2. Furthermore, if you are just tuning in you aren’t privy to
the warnings given;
3. Also, it is hard to avert your ears (it is like trying to avert
your body after you’ve already been punched);
a. This is in conflict with Cohen – the ability to avert
your eyes is central to Cohen
e. This is really social, and possibly political, satire. It is about making fun
of the FCC’s regulations on dirty words (they are arbitrary) and about
society’s fear of the words.
v. Sable Communications v. FCC
1. Court holds unconstitutional a federal ban on interstate “indecent” telephone
messages, noting that Pacifica dealt with the intrusiveness of a medium, where
telephone sex calls require the caller to take additional steps
a. Court says that even if kids can figure out how to use dial-a-porn, the 1st
amendment doesn’t force you to adapt language to the level that kids can
hear it
vi. Denver Area Educational Telecommunications Consortium v. FCC
1. Plurality opinion over § 10(a) of the cable act of 1984, which allowed cable
television stations to determine which ads were obscene and not show these
sections. Court invalidate provision § 10(b), which required cable operators who
choose to carry indecent programming to segregate such programming on a single
channel, to block that channel from viewer access, and to unblock it only on a
subscriber’s written request – it was not the least restrictive alternative.
a. Majority of Court determines protection of children is a govn’t interest;
i. Strikes down s 10(b) which required operators to segregate
indecent materials and people had to ask for them – it potentially
had a chilling effect for those that wanted these channels b/c they
46
vii.
viii.
ix.
x.
would be embarrassed to go ask for the channels for fear of being
on a list, etc.
b. Stevens is about needing to protect people in their homes
i. Although people can’t avert their eyes, he makes this about privacy
and people’s rights in their own homes
Reno v. ACLU
1. Court invalidates two sections of the Communications Decency Act of 1996
designed to protect minors from indecent and patently offensive communications
on the internet. § 223(a) made it illegal to communicating indecent material to
someone under 18, and § 223(d) dealt with sexual or excretory activities or organs
to people under 18. Held, these sections are invalid. (1) It is not like Pacifica b/c
accessing things on the internet requires affirmative steps; (2) It’s ambiguous
language would confuse many people; and (3) It’s overbroad.
United States v. Playboy
1. § 505 of the Telecommunications Act of 1996 was designed to prevent signal
bleed. Most cable operators didn’t have the technology to “fully” block out signal
bleed. Thus, if the cable people had to signal bleed, they could only air programs
from 10 p.m. to 6 a.m. The Court invalidated § 505. (1) It is a content-based
restriction that can only stand if it is narrowly tailored to achieve a compelling
government interest. (2) There is a less restrictive alternative – to fully block at
those households that request it.
a. The Problem of “Indecent” Expression
i. The court responded to Reno v. ACLU by passing COPA, which
said you can’t knowingly give indecent, using community
standards, material to children. An affirmative defense if you use
some sort of verification system.
Young v. American Mini-Theaters
1. Adult Theaters can’t be within 1,000 ft of any other “regulated” use (pool hall,
bars, adult bookstores, hotels and motels, etc.). City finds that too many in one
area bring bad quality of people, increase crime, and lower property values. Adult
owners challenged the ordinance as unconstitutional. Held, this statute is not
unconstitutional. (1) A city ordinance that directs people where they can locate,
but does not close the market for a certain type of speech, is not unconstitutional.
People can still get adult films. (2) This is not like political speech. Even thought
the 1st amendment protects communication in this area from total suppression, we
hold that the State may legitimately use the content of these materials as the basis
for placing them in a different classification from other motion pictures. (3) The
city’s interest in attempting to preserve the quality of urban life outweighs a
limitation on where an adult theater will be located. Dissent: (1) If the 1st
amendment turned on what we would “take up arms” to defend, the 1st amendment
would turn on popular opinion.
City of Renton v. Playtime Theaters
1. Ordinance prohibited adult theaters from locating w/in 1,000 ft of residential,
single or multi-family home, church, park, or school. Held, this ordinance is
Constitutional. (1) because the ordinance is aimed not at the content of the films,
but at the secondary effects of such theaters in a community, it is okay. (2) (a) It is
47
not unconstitutional b/c the city didn’t do its own studies. (b) It is not
unconstitutional b/c the ordinance doesn’t regulate other institutions that are likely
to have the same secondary effect like bars, massage parlors, and adult bookstores.
(c) It is not unconstitutional because it only leaves 5% of the city available to adult
theaters.
xi. City of Los Angeles v. Alameda Books (2002)
1. In 1977, city did a study that says where adult industries are, there is higher crime
rates. So they prohibited them w/in 1,000 ft of each other and 500 ft from a
church, school or public park. In 1983, to close a loophole, they amended the
statute to say that more than one of the businesses cannot locate in one building.
Owner of a combination adult video/adult arcade sued saying that combining these
two things doesn’t create higher crime. Held, Plurality opinion states that it is
constitutional, and Kennedy concurred in constitutional. (1) The city has complied
with the evidentiary requirement in Renton to withstand a motion for summary
judgment – the statute is designed to serve a substantial government interest and
reasonable alternative avenues of communication remain available. Kennedy
Concur: This should be seen as strict scrutiny.
a. Zoning and Nude Dancing
i. Schad v. Borough of Mt. Ephraim (1981): Ordinance that didn’t
permit adult entertainment anywhere in the Borough is held
unconstitutional – there is no showing that it is available nearby.
ii. There is a long line of cases that uphold ordinances that prohibit
nude dancing establishments from serving alcohol.
iii. Barnes v. Glen Theaters (1972): No opinion, but Court upholds an
ordinance prohibiting “nudity” in any public place. Also, the
requirement that such dancers wear G-strings and pasties doesn’t
violate the 1st amendment because the nudity statute was not
directed at nude dancing, and thus only had an “incidental effect”
on 1st amendment protected activity.
g. Hate Speech and Pornography
i. Beauharnais v. Illinois (Frankfurter: 1952)
1. P, president of the White Circle League, distributed a pamphlet which ridiculed
Blacks and called for one million white Chicagoans to unite against them. He was
convicted under an Illinois statute that made it unlawful for any person to
“distribute a publication that portrays depravity, criminality, unchastity, or lack of
virtue to a class of citizens . . . which exposes that class to contempt or derision . . .
which is productive of a breach of the peace or riots.” At trial, the judge refused to
instruct the jury that they must find the article a “clear and present danger” that
rises above the level of inconvenience, annoyance, or unrest. Judge also refused to
consider P’s attempt to prove truth. Held, it is not unconstitutional for a state to
punish libels directed at designated collectivities and flagrantly disseminated. (1)
Libelous statement are “no essential part of the exposition of ideas, and are of such
slight social value as a step to truth that any benefit that may be derived from them
is clearly outweighed by the social interest in order and morality.”[Chaplinsky].
(2) If the state can punish an utterance directed at an individual, we cannot say that
it can’t punish utterances directed at a group unless it is a willful and purposeless
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restriction unrelated to the peace and well-being of the State. (3) Because of the
extreme racial unrest in Illinois for the past century and b/c much of this unrest has
centered around character issues, it is reasonable for Illinois to make this speech
libelous. (4) As to whether truth as a defense is mandatory, Illinois, in line with
many other states requires both a showing of truth and good intent, and this is
permissible in criminal libel cases. (5) Finally, we don’t have to analyze “clear and
present danger” b/c this speech is unprotected speech – surely you wouldn’t have
to consider whether obscene speech had a “clear and present danger.”
2. Dissent (Black & Douglas): The Court’s analysis of “group” libel is misplaced, for
the reason libel is limited to individuals is so the state can only restrict libel
regarding purely private feuds. The Court’s reliance on Chaplinsky is also
misplaced, for even in that case the statue punished “fighting words” at an
individual.
a. Contrast New York Times v. Sullivan, where the Court says that “libel can
claim no talismanic immunity from Constitutional limitations.
b. Subsequent decisions (New York Times, Milkovich, Hustler, Hepps),
though not addressed in Beauharnais, have stated that libel is of “low” first
amendment value only insofar as it consists of false statements of fact.
Thus, the approach sanctioned in Beauharnais would probably not pass
muster today – it has had the rug pulled out from under it.
c. Notice that the judge doesn’t allow the jury to decide the “truth” – imagine
the shit that would be split if the jury said that these things were “true”.
d. Supporting the group libel doctrine:
i. Group libel is but an extension of fighting words.
ii. Application of the clear and present danger standard has no place
w/group libel b/c it operates not by persuasion but by insidiously
undermining social attitudes and false beliefs as evidence by the
experience in Nazi Germany.
iii. Group libel is of “low” First Amendment value because it is
incompatible with our fundamental commitment to human dignity
and equality. If anything, there is a clash of amendments, and the
first amendment must be read in light of the equally important
fourteenth amendment which guarantees equal protection under the
law.
iv. Racist speech is best treated as presenting an idea so historically
untenable, so dangerous, and so tied to perpetuation of violence
and degradation that it is properly treated as outside the realm of
protected discourse.
v. Hate speech causes its victims to curtail their own exercise of free
speech out of fear – thus, restrictions on hate speech may
maximize free expression in the aggregate.
vi. While the marketplace of ideas should be self-regulating, that
presupposes an equal starting point – one that has never been
realized in this country.
e. Against regulating hate speech:
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i. What proponents of hate speech regulation fail to recognize is that
the leading opponents of free speech in every generation hae
insisted that he 1st Amendment does not fully protect the right to
deny or criticize what their generation regards to be the
fundamental constitutional values.
ii. The invitation to balance the First Amendment’s values in free
public discourse against the Fourteenth Amendment’s value in
egalitarian ideals ought to be declined because the temptation to
balance rests on what might be termed the fallacy of immaculate
isolation – that is, no one issue can be isolated into these distinct
categories.
iii. The proponents of hate speech regulation fail to realize that the
Supreme Court permits all kinds of speech which many feel is
completely obnoxious and insulting: The Satanic Verses, jacket
that says fuck the draft, etc.
f. Doe v. University of Michigan
i. Statute proscribes stigmatizing an individual on the basis of race,
etc., when the “reasonably foreseeable effect may be to interfere
with the victim’s ‘academic efforts.” Held, this statute is
overbroad.
g. California past a law prohibiting its schools from punishing students for
speech unless a private school could prohibit the same speech.
ii. R.A.V. v. City of St. Paul (Scalia: 1992)
1. Teenager burned a cross on a black persons lawn. He was convicted under a
Minnesota statute that prohibit such actions that “arouses anger, alarm or
resentment in others on the basis of race, color, creed, religion or gender.” The
Minnesota Supreme Court found that the statute was not overbroad because other
states had construed similar language to limit the ordinance’s reach to fighting
words within the meaning of Chaplinsky. It also rejected the argument that the
statute was impermissibly content-based because it was narrowly tailoredto serve a
compelling governmental interest. Held, this ordinance is unconstitutional in that it
prohibits speech solely on the basis of the subjects the speech address. (1) We
accept the Minnesota Supreme Court’s conclusion that the statute reaches nothing
more than “fighting words” in line with Chaplinsky. (2) However, content based
regulations are presumptively invalid. (3) Those areas that the Court has found
proscribable (obscenity, defamation, etc.) are not categories of speech entirely
invisible to the Constitution. Thus, the government may proscribe libel; but it may
not make the further content discrimination of proscribing only libel critical of the
government. (4) When the basis for the content discrimination consists entirely of
the very reason the entire class of speech at issue is proscribable, no significant
danger or idea or viewpoint discrimination exists. (5) The Minnesota ordinance is
fine in prohibiting “fighting words,” just not in only prohibiting fighting words on
the basis of race, class, creed, religion, or color. The First Amendment does not
permit St. Paul to impose special prohibitions on those speakers who express views
on disfavored subjects. (6) One must wholeheartedly agree with the Minnesota
Supreme Court that it is the responsibility of diverse communities to confront such
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notions in whatever form they appear, but the manner of that confrontation cannot
consist of selective limitations upon speech. (7) While the needs of the state are
compelling, the manner of restriction does not directly serve those needs – an
ordinance not limited to the favored topics, for example, would have precisely the
same beneficial effect.
2. Dissent: (1) It is ridiculous that the government can prohibit the entire category of
fighting words but cannot prohibit a subset of that speech. (2) Furthermore, even
though the majority fucks with strict scrutiny review, this statute would pass
muster.
iii. Wisconsin v. Mitchell (Rehnquist: 1993)
1. After watching the movie Mississippi Burning, in which a young white boy beats a
young black boy, P (a black guy) urged a group to beat a young white boy who
was walking by. P was convicted of battery, but because of the state’s hate-crime
enhancement (if you intentionally select the victim of the crime because of the
protected class) he was sentenced to more years. P claims that the statute is
discriminatory because it prohibits The Wisconsin Supreme Court found that the
statute violated the First Amendment. Held, the penalty enhancement provision is
not overbroad because it is concerned with an unprotected area of conduct. (1)
This case is different from R.A.V. b/c that case was specifically aimed at
expression while this case is aimed at conduct unprotected by the First
Amendment (battery).
iv. R.A.V. and Mitchell
1. Several Hypotheticals to look at on 272-273.
2. The problem of distinguishing Mitchell from R.A.V. based on the fact that in
R.A.V. the cross burner was engaging in speech:
a. First, although the cross-burner was prosecuted for his expression, that
expression consisted of fighting words, which are not protected “speech”
within the meaning of the first amendment
b. Second, the act of beating an individual “because of his race” is a form of
expression – it communicates the Defendant’s views. Also, if it is just
conduct, what is burning a cross?
c. Third, the harms identified by the court in Mitchell would not occur if
what Mitchell did didn’t communicate a message.
v. Virginia v. Black (2003)
1. Virginia statute banned cross burning with “an intent to intimidate a person or
group of persons.” Provision said that burning a cross is prima facie evidence of
intent. Challenged by P’s who were convicted under it as being (1)
unconstitutional on its face – b/c it is analytically indistinguishable from the statute
in R.A.V. v. City of St. Paul, b/c it discriminates on the basis of content b/c it
selectively chooses only cross-burning b/c of the message it coneys; and that (2)
the prima facie intent section is overbroad b/c the enhanced probability of
prosecution under the statute chills the expression of protective speech. Held,
while Virginia may ban cross burning carried out with the intent to intimidate, the
provision in the Virginia statute treating any cross burning as prima facie evidence
of intent to intimidate renders the statute unconstitutional. Opinion of the Court:
(1) Cross burning is a symbol of the Ku Klux Klan. While sometimes cross-
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burning carries no intimidating message, at other times the intimidating message is
the only message conveyed – the history of cross-burning by the Klan shows that
the threat of injury or death is not just a hypothesized fear, it is a possible reality.
(2) The Constitution does not protect true threats [Watts] for they are of “such
slight social value as a step to truth . . .” Prohibition on true threats (a) protects
individuals from the fear of violence, (b) from the disruption that fear engenders,
and (c) from the possibility that the threatened violence will occur. Intimidation is
constitutionally proscribable if it amounts to a true threat. (3) Unlike the Statute in
R.A.V., the Virginia statute does not single out for opprobrium only that speech
directed otward “one of the specified disfavored topics.” As oppose to prohibiting
all intimidating messages, Virginia may choose to prohibit this subset of messages
because the basis for the content discrimination consists entirely of the very reason
the entire class of speech at issue is proscribable. (4) Plurality: The prima facie
evidence provision is overbroad b/c while it could mean the cross is being burned
with intent to intimidate, it could also be used for core political speech.
2. Thomas Dissent: This is conduct that is not expression. Just as one can’t burn
down someone’s house to make a point, one can’t burn a cross on someone’s lawn
to make a point. I don’t believe this is should be under the First Amendment, and
thus the inference the statute permits the jury to draw is not unconstitutional
3. Scalia and Thomas Dissent: This law is not overbroad b/c the sweep of it does not
substantially interfere with protected speech, because the class of people to who it
applies are extremely marginal.
vi. Pornography and the Victimization of Women
1. Some thoughts from the long exposition on 274-280:
a. Obscenity law is concerned with morals; the feminist critique is politics –
the fighting back of a subjugated group. Obscenity as such probably does
little harm; pornography causes attitudes and behaviors of violence and
discrimination which definie the treatment and status of half the
population.
b. Pornography has little to do with sex, and everything to do with the use of
sexuality as an instrument of oppression – it has everything to do with
feeding male fantasies and glorifies the traditional advantages that men
have had in the exploitation of female sexuality.
c. Studies show that as to pornography in which normal research subjects
seldom perceive violence, long-term exposure still makes them see women
as more worthless, trivial, non-human, and object-like, i.e., the way those
who are discriminated against are seen by those who discriminate against
them.
d. Pornography receives the support it does because the pornographic
environment is so profitable that those who oppose pornography are
effectively denied equal access to the public through mass media
communication forums.
e. For Pornography: For some, the validation of pleasure, desire, and
sexuality found in some pornography is a healthy attack on a stifling and
oppressive societal denial of female sexuality. It can be something to
celebrate, rather than something to condemn.
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2. The response to a claim that pornography is view-point based:
a. The legislation aimed at pornography is directed at harm rather than at
viewpoint. Its purpose is to prevent sexual violence and discrimination,
not to suppress expression of a point of view.
b. Several laws favor one side over the other (e.g. illegal to give someone
$100 to commit a tort, but it is legal to pay them $100 not to do so). This
is because the harm the statute seeks to prevent is so engrained we don’t
consider the other side. We could imagine a society in which the harms
produced by pornography were so widely acknowledged and so generally
condemned that an anti-pornography ordinance would not be regarded as
view-point based at all.
h. Final Thoughts
i. The categories of “low value” expression: express incitement, fighting words, threats,
technical military information, false statements of fact, non-newsworthy invasions of
privacy, commercial speech, obscenity, offensive language, offensive sexually oriented
expression, group defamation, hate speech, pornography.
ii. Has the Court articulated a clear line for what is “low value” speech?
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V.
Introduction to Content Neutrality
a. Hypo: Three Different Statutes and the Proper Level of Scrutiny
i. Statute Prohibits anyone from placing a message on a billboard critical of the Iraq War
(Really Really Bad)
1. Problem:
a. Limits the debate on one side of a matter of public concern
b. There are less restrictive means of restricting the speech
c. The government has skewed the debate – this undermines the search for
truth by warping the marketplace of ideas and impairs the processes of
self-government (Miekeljohn).
d. Current doctrine would classify this as a “viewpoint based” discrimination
and would apply strict scrutiny and strike it down absent the most
compelling government interest.
ii. Statute Prohibits anyone from putting something a billboard discussing the Iraq War
(Really Bad)
1. Problems:
a. Less threatening than viewpoint based because it doesn’t try to skew the
debate – both sides and all sides in between - are hampered
b. This is still in tension with the 1st Amendment; the government is still
suppressing speech on a matter of public concern on the basis of its
content
i. This is a “content-based restriction” and it deals with “high-value”
speech
ii. Thus, court will apply strict scrutiny and it will be struck down
absent a state interest of the highest-order
iii. A content-based (viewpoint neutral) rule is likely to have a
differential impact on who can speak.
1. Supporters of the war are not likely to post-billboards b/c
their policy views are being implemented (the status quo
favors inaction). However, those who are trying to change
others minds are likely to speak
iii. Statute Prohibits anyone from putting up a billboard (Bad)
1. Problems:
a. This is content-neutral. Speech is restricted, but all speech is restricted
without reference to the content of the speech.
b. Black Letter Law: Intermediate Scrutiny
c. Two main ways speech is restricted:
i. Any law that restricts a means of communication (billboards, etc.)
is likely to reduce the total volume of speech. “It will dampen the
vitality of the marketplace of ideas.” [Stone]
ii. (2) There can be a risk of disparate impact in viewpoint theory as
well: Certain types of people might like to use billboards to convey
their message – small business, etc.
1. E.g. The people who engage in “grafitti” are not likely to
be the enfranchised. Thus, we are handicapping a class of
people by prohibiting it. Similarly, a prohibition on
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handbills (anti-handbill law) prohibits speech by poor
people or labor organizers.
2. However, the risk of viewpoint based disparate impact is
lesser here then in other ways
b. General Principles
i. Wide Range: limits on expressive activity, use of loudspeakers, ban on billboards,
limitation on campaign contributions, mutilation of draft cards
ii. Time-place-manner restriction must:
1. Be justified w/o reference to the content of the speech
2. It must be narrowly tailored ;
3. To serve a government interest
4. And must leave open alternative channels of communication (balancing)
c. Case Law
i. Schneider v. State (1939)
1. App distributed leaflets, and people through them on the street. Convicted under
ordinance prohibiting any person to distribute leaflets in “any street or way.”
Held, ordinance is invalid. (1) Prohibitions against blocking a street, etc., are fine.
(2) Although the statute is designed to prevent littering, an ordinance that seeks to
do this by preventing people from distributing literature on the streets is
unconstitutional.
ii. Martin v. City of Struthers (1943)
1. Jehovah’s witness’ went door to door and was convicted under an ordinance that
prohibited soliciting someone in their place of residence for the purpose of
distributing handbills. Held, ordinance invalid. (1) Door to door distribution of
information is substantial to the poorly financed causes of little people. (2) A
person who doesn’t want to receive handbills can put up a “no solicitng” sign.
iii. Kovacs v. Cooper (1949)
1. Court upholds city ordinance prohibiting a sound truck or other instrument that
emits loud and raucous noises on any public street. Pluraily Opinion (4): (1) The
city has a right to prohibit the dissemination of ideas in this certain manner
because it is uncomfortable to people. Frankfurter concur: So long as a legislature
doesn’t prescribe what ideas may be noisily expressed, it is not for us to supervise
the limits it ay impose in safeguarding the steadily narrowing opportunities for
serenity and reflection.
iv. Metromedia, Inc. v. San Diego (1981)
1. City banned all outdoor advertising display signs. Held, ordinance invalid.
Plurality: Ordinance was an unconstitutional “content-based” restriction and it is
unnecessary to decide whether a content-neutral restriction on all outdoor
advertising would be constitutional. Other justices: some think that the city’s
interest doesn’t outweigh. Some think it constitutional
v. City of Ladue v. Gilleo (1994):
1. Held, city can’t prohibit people from displaying signs on their property. (1) We do
not believe that adequate substitutes exist for the important medium of speech that
Ladue has closed off. (2) Also, the home is private place, and people have the right
to express there views on their own property.
vi. Bartnicki v. Vopper (2001):
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1. No liability for person under federal and state wiretap laws for disseminating
intercepted cell phone call, when paper didn’t commit the act.
vii. The Search for Principles
1. Arguments for why content-based restrictions are worse:
a. They have the ability to distort the marketplace of ideas
b. They are more likely to be enacted for the impermissible purpose of
suppressing unpopular ideas
c. They are more likely to suppress speech because of its impact on others
viii. The Meaning of Content-Neutral
1. Complex Situtations
a. May appear content neutral, but in application turns on communicative
aspect.
i. E.g. law that prohibits anyone from making a speech that will
cause a breach of the peace
b. Secondary Effects
i. May be content-based on its face, but may be defended in terms
that are unrelated to its communicative impact
1. E.g. Renton – if it is defended as content-neutral, then it
may be classified that way by the court.
2. Courts have backed away from Renton-like reclassification
c. Impermissible Motives
i. May be content-neutral on its face, but may have been enacted for
the purpose of suppressing a particular message
d. Content-Differential effects
i. Content neutral on its face, but may have content differential
effects
d. Symbolic Conduct
i. General
1. E.g. Burning a Draft Card or mutilating a flag
2. Seemingly must be conduct that constitutes an expression; that communicates to
others
ii. U.S. v. O’Brien
1. Man burned his draft card in front of an audience. He said he did so because he
was trying to sway others to reconsider there positions on the war. This was in
violation of a 1965 statutory amendment that says if you “knowingly mutilate or
destroy” your draft card, you’re guilty. Court of Appeals held the amendment
unconstitutional as abridging freedom of speech. Held, the 1965 amendment is
constitutional as enacted and as applied. (1) A law prohibiting destruction of
Selective Service certificates no more abridges free speech on its face than a motor
vehicle law prohibiting the destruction of drivers’ license, or a tax law prohibiting
the destruction of books are records. (2) A limitless amount of conduct can’t be
considered speech simply because one claims they are expressing an idea. (3) We
think it clear that a governmental regulation is sufficiently justified if it is within
the constitutional power of the Govn’t; if it furthers an important or substantial
govn’t interest; if the govn’tal interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged 1st amendment freedoms is
56
no greater than is essential to the furtherance of the govn’t interest. (4) When
O’Brien deliberately rendered unavailable his registration certificate, he willfully
frustrated the government interest in efficient use of Selective Service; for this
non-communicative impact, and for nothing else, he was convicted. (5) We will
not inquire into legislative motives to make the determination as to what is and is
not constitutional; so we can’t determine whether the legislative motive was to ban
free speech.
iii. Draft Card Burning and The 1st Amendment
1. Stromberg v. California: Court invalidated a statute prohibiting any person to
display a red falg in a public place a symbol of opposition to government.
2. Tinker v. Des Moines: Court invalidated a suspension of three students who wore
black arm bands in protest of Vietnam.
3. Schact v. United States: Court reversed conviction of a man who was wearing a
military uniform, violating a statute prohibiting the unauthorized wearing of a
military uniform, in a skit against the war in Vietnam.
4. Wisconsin v. Mitchell: Court upholds statute that punishes someone for selecting
certain races, creeds, sexes, orientation, etc., for assaults. Court states than an
assault is not expressive content.
iv. Flag Desecration and Misuse
1. Street v. New York: (Flag Burning) After James Meredith (civil rights leader) was
shot, man burned his flag on a street corner and cursed the flag. Convicted under
New York statute that prohibited “mutilate[ing] . . . or casting contempt upon
either by words or acts any flag of the United States.” Held, it is unconstitutional
to convict a man for speaking defiantly about the flag.
2. Smith v. Goguen: Man was convicted for wearing a flag on the seat of his pants,
under statute that said you couldn’t treat contemptuously the flag of the United
States. Held, the statute is void for vagueness and this man isn’t convicted.
3. Spence v. Washington: (Flag Misuse) Man, to protest things at Kent State and the
invasion of Cambodia, hung a flag out of his window and attached to it, in tape, a
peace sign. Held, the statute was unconstitutional as applied because there was no
way that people would think the government endorse his view.
4. Texas v. Johnson: (Flag desecration Confronted) Johnson burned a flag at the
Republican National Convention to protest the policies of Ronald Reagan. He did
this violation of a Texas statute that prohibits people from treating the flag in a
way that will offend one or more persons. Held, this conviction should be
overturned. (1) Flag burning is conduct that is imbued with elements of
communication. (2) Because the expression is to show that we do not have unity as
one nation, and thus it is expressive. A statute cannot suppress ideas. Thus, this is a
content-based expression. (3)
5. United States v. Eichman: (Flag Burning Revisited): Flag Protection Act prohibited
the burning of flags in all instances. Held, this Act is invalid under the
Constitution. (1) The mere destruction or disfigurement of a particular physical
manifestation of the symbol, without more, does not diminish or otherwise affect
the symbol. The governement’s interest cannot be justified for its infringement on
1st Amendment rights.
v. Public Nudity Issues
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1. Barnes v.Glen Theatre, Inc.: Nude theater said that Indiana statute requiring no
nudity was unconstitutional (required G-strings and pasties on dancers.) Held, this
statute is constitutional. (1) Nude dancing is on the outer fringes of speech. (2)
Applying the four-part O’Brien test, we find that this statute is constitutional.
2. City of Eerie v. Pap’s A.M.: Court upholds ordinance that prohibits public nudity
because it finds it creates a bad environment (crime, violence, intoxication,
prostitution, etc.). Justifies it under the same principles as Barnes, but notes that
trying to prevent the secondary effects of nude dancing is allowable.
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G. Edward White: Free Speech and the Bifurcated Review Project
P. 100:
In the period between the world wars, the democratic model of politics, especially in the idealized versions of
democratic theory, progressively expanded in influence. At the same time the capitalist model of economics, it
its idealized late nineteenth-century version of a “laissez-fairre” economic marketplace characterized by the
absence of governmental regulation, receded in influence.
Bifurcated Review Project Defined: An effort to fashion a double standard of constitutional review in which
judges would defer to legislative regulation of the economy but scrutinize legislative regulation of noneconomic rights, including the right to free speech.
P. 101:
By fostering judicial deference in the area of economic regulation, the projecgt embraced the perceived truth
that unregulated economic activity actually infringed on the freedom of a significant number of actors in the
marketplace and reinforced rational regulatory policies that were based on that truth.
By fostering judicial scrutiny of legislative restrictions on speech and other non-economic liberties, the project
underscored the centrality of freedom as a modernist goal, at least when freedom could be associated with the
goals of democratic theory.
P. 103:
From Brandeis’s concurrence in Whitney to 1942, the very time interval in which the Lochner majority’s
approach to due process cases was rejected and the court increasingly sanctioned an expansion of congressional
and state power to regulate the economy, every Supreme Court case exhibiting an increased level of scrutiny of
a legislative regulation was a First Amendment case.
P. 104
“Preferred Position” means that First Amendment rights, in these cases, would receive greater judicial solicitude
than other rights.
From 1937 onward, those justices that realized free speech should get greater constitutional protection
recognized that the reason for the enhanced protection lay not only in the close connection between free speech
and democratic theory but also in the enhanced significance of democratic theory itself, as a defining
aspirational feature of American civilization.
As free speech became preferred in the late 30’s, it signified the power of the human actor in modernity,
liberated from the dominance of external forces, free to determine his or her individual destiny, required only to
respect the freedom’s of others.
P. 105: The sequence of preferred position cases
J. Stone seems to be implying that speech rights reinforced democracy in ways that economic rights did not
59