I.
II.
Speech, Press, and the Constitution
Professor Richards, Spring 2006
History, Theory, and Procedure of 1st Amendment
Theories that Support Freedom of Speech a.
Historical Perspective i.
Constitution writers concern with history of licensing and its replacement, punishment for seditious libel (bringing govt. into disrepute)
1.
Bill of Rights not included in Constitution because separation of powers and federalism were thought to be sufficient checks on government power
2.
Constitution ratified only b/c Bill of Rights would be included ii.
Language of the Constitution
1.
“Congress” refers to all government
2.
“No law” has never been interpreted to mean no law whatsoever
3.
“Of Speech or of the press” includes dancing, pictures, and act b.
Search for Truth Rationale - Need to allow all perspectives in search for truth i.
Holmes in Abrams – the search for truth is the very core of free society ii.
Marketplace of ideas is the essential metaphor that guides search for truth
1.
Usually we regulate where there is market failure, potentially problematic if we are trying to create inquiry free from government interference
2.
Truth may not be absolute, if there are multiple true ideas search for truth may not be a proper goal
3.
If truth is the only goal where does nonpolitical speech fit c.
Self-governance Rationale – protect free expression b/c it allows people to better govern selves i.
Output focused view: Meiklejohn (p11)
1.
Metaphor: Government at a town meeting
2.
Self-governing citizens need to make the best decisions and need the best information; regulation of speech cuts off supply of information
3.
Major problem is that this idea rests on the distinction between public speech and private speech; doesn’t protect literature, arts, other expressions a.
Response: Self-govt only exists to extent that voters are educated ii.
Input focused view: Robert Post participatory theory says speech is valuable b/c acting in governing ourselves defines us as individuals (many factions define selves in this way) d.
Self fulfillment and autonomy rationale (Post’s theory w/o governance - flawed) i.
Only by reading, speaking, and arts can we have fulfilled creative individuals ii.
Flaws: Gardening, sex, etc. might fulfill, but these don’t go to individual rights iii.
Criticism: Just sophistry to get porn and nude dancing under 1st amendment e.
Minor theories i.
Checking valve: free speech keeps government within the limits of its authority ii.
Safety valve: People can persuade or at least vent rather than revolution and violence iii.
Tolerance: Shapes society’s intellectual compass and area of law for self-restraint
Subversive Advocacy a.
The English Tradition i.
Three forms of restraint: Licensing, Constructive Treason and Seditious Libel
1.
Only Seditious libel relevant to America ii.
Blackstone (1769): English common law only outlawed prior restraint, can punish later
1.
Sedition Act and Patterson case in US adopted this tradition iii.
Zenger trial in colonies – truth became symbolic defense to seditious libel
1.
England – outlawed criticism of govt. even if truthful b.
Early Cases – Bad tendency plus the impact of Zenger i.
Sedition Act of 1798 upheld, but truth was defense and lapsed w/ pardons 1800 ii.
Patterson v. CO (1907): Holmes upholds conviction of news editor who commented on pending CO SCt cases
1.
Main purpose of free speech is to prevent prior restraints
2.
Bad tendency test: Govt has power to punish speech that has any tendency, however remote, to bring about violations of the law

c.
Espionage Act – crime to obstruct success of the army or recruiting process i.
Shaffer (1919) – Conviction upheld for mailing book saying war is immoral even w/o intent to harm war effort ii.
Masses (SDNY 1917) – As district judge, Hand draws line between expression of ideas and express incitement and says can’t stop mailing of revolutionary ideas, reversed above
1.
Doesn’t reject bad tendency, construes law based on tradition of free expression
2.
Is Hand overprotective of the clever speaker? iii.
Schenck (1919) – Holmes upholds conviction for publishing opinion that draft was worse than conviction, applying bad tendency test using clear and present danger language
1.
Holmes assumes that first amendment applies to more than prior restraint for the sake of argument; this is read as law by future cases
2.
Clear and present danger test: Whether speech brings clear and present evil that
Congress has a right to prevent is question in every case a.
Later construed as different test, but really just restating bad tendency
3.
Holmes also writes opinions upholding two convictions of individuals critical of the draft in Frohwerk and Debs iv.
Abrams (1919) – Conviction for protesting involvement in revolutionary Russia upheld
1.
Holmes’ Dissent:
arguably most important text in American free speech a.
Bad tendency is correct test in war, but clear and present danger is correct test in this case (specifically says previous cases were right) b.
Only existence of clear and present danger makes past convictions OK
2.
Clear and Present danger test (as interpreted by Holmes): Can convict if a.
Clear and present danger of immediate harm i.
Not here b/c surrepticious minor publication b.
OR specific intent to create such a danger i.
Nothing urged against war in Germany to fit Espionage Act
3.
New idea of letting the marketplace evaluate truth or falsity of idea a.
Persecution of opinions is logical way to keep power if you know you are right, but men have learned that the ultimate goal of truth is better reached through the free trade of ideas – p32 b.
Best test of truth is power to get accepted by competition in market
4.
Holmes may be right, but power dynamics often determine “truth” d.
State laws prohibiting types of speech i.
Gitlow (1925) – Conviction upheld for publishing Manifesto of Socialist calling for proletariat to mob government and seize control
1.
Factual Differences a.
Assumes that 1st Amend w/in “liberty” protection of 14th amendment i.
This allows reach to NY criminal anarchy statute b.
No call to arms now, but eventual need to overthrow the government c.
Speech is outside of wartime i.
Argue: Wartime needs more civil liberties or we have lost ii.
Argue: Need to win war takes precedent, then back to normal
2.
Categories of Speech from innocuous to very critical of govt. a.
Criticize government policy (like Shenck) b.
Law breaking may be necessary to achieve political goals c.
Urges listener to accept proposition that we should break law sometime in the future d.
Lawbreaking is necessary now (Dec. of Independence)
3.
Holmes Dissent a.
Line should be: govt. can only regulate when lawbreaking imminent b.
Teeth into the immediacy element of Holmes dissenting tradition
4.
The issue of deference a.
State determined that speech was bad rather than outlawing an act and convicting for speech that threatens to cause act i.
Majority defers to determination b.
Holmes implicitly rejects deference, Brandeis considers in Whitney

c.
Today, unquestionably no deference to legislature ii.
Whitney (1927) – Conviction for being part of socialist revolutionary group upheld
1.
Defer to state unless arbitrary use of police power, ass’n criminally punishable
2.
Brandeis Dissent: w/ Holmes in intellectual project advocating free speech a.
Imminence – express advocacy cannot be punished unless rises to level of imminent lawbreaking b.
Seriousness – must be reasonable ground to fear serious harm
3.
Rationale for free speech a.
Americans are self-governing which requires deliberation -Meiklejohn b.
Holmes – marketplace is end in itself, Brandeis – marketplace is element of self-governance
4.
Deference and the Beginnings of Bifurcated Review a.
Deference should be minimal b/c power of court to strike down personal rights should be no less than property rights i.
Lockner – protects property rights, strikes down restrictions ii.
If we scrutinize property restrictions, should also scrutinize rights fundamental to our government iii.
Between Whitney and Dennis Court invalidates 3 subversive advocacy convictions
1.
Fiske (1927) – invalidates KS criminal syndicalism conviction b/c only evidence was preamble of group – no evidence group wanted to overthrow govt.
2.
Herndon (1937) – invalidates conviction b/c evidence insufficient to show that group advocated forcible subversion, membership recruitment not enough
3.
DeJonge (1937) – Invalidates criminalization of Communist Party; invalid law as applied to non-member when no evidence about what meeting entailed
4.
Each applies Gitlow-Whitney, but defendants don’t have necessary culpability
5.
Taking a closer look: Cases analyze evidence to make sure people aren’t imprisoned just for being associated with the wrong people
6.
Shows change in understanding and the malleability of the doctrine
7.
Stromberg (1931) – court invalidates conviction for raising red flag at children’s camp, because of overbreadth. Out of line with cases of the time
8.
Carolene Products (1938) – Economic regulation gets rational basis review, but narrower presumption of constitutionality w/ textual commitment to rights such as Bill of Rights e.
Dennis (1951) – leaders of Communist party in US convicted of advocacy and conspiring to overthrow the government with a plurality opinion i.
People believed that struggle between capitalism and communism was coming and the movement toward change was abandoned for conviction in HUGE case ii.
Vinson’s plurality opinion
1.
Incitement to action punishable under clear and present danger test a.
Court considers gravity of evil discounted by probability b.
Invasion of speech justified if necessary to avoid danger
2.
Imminence and non-deference from Holmes/Brandeis not present a.
Historically revolution wasn’t imminent, but Vinson says that revolution is so bad we don’t wait until eve of destruction b.
Court defers to Congress finding that communist party is real danger iii.
Frankfurter’s super deference in concurrence rejects bifurcated review iv.
Douglass’ Dissent
1.
The enemy is the one who burns books, and we are doing the same thing by stopping the teaching of the four books used by communists
2.
Free speech is what will defeat the doctrine a.
Communist books not purchased in marketplace of ideas v.
State of the law after Dennis
1.
Possibly bad tendency for really dangerous actions a.
Clear and present danger is either very malleable allowing judges to reach decision they like, or its same as bad tendency
2.
Subversives go to jail but law gets more protective – Justices opinions

III.
a.
7/8 reject Gitlow’s extreme deference (even if not w/ result), give some protection to express advocacy (balancing), and agree that Gitlow and
Whitney are not the law b.
6/8 express advocacy is due less protection than other speech c.
Majority adopts some form of clear and present danger f.
The Brandenburg formulation i.
Brandenburg v. Ohio (1969) – KKK convicted of advocating crime on TV reversed ii.
Per Curium Opinion
1.
Whitney has been thoroughly discredited
2.
Constitutional guarantees of free speech and press don’t permit a State to proscribe criminal advocacy except where such advocacy is directed to inciting
1) imminent lawless action and 2) is likely to produce such action
3.
Most speech protective test that has been developed iii.
Douglass concurrence – Clear and present danger test should be out altogether
1.
Clear and present danger punishes loud and silly threats
2.
It is TOO MALLEABLE for judges making it a political trial iv.
Black – makes clear that he believes clear and present danger should be out even if the court positively cites Dennis v.
State of the Law after Brandenburg: In order to curtail speech
1.
There must be advocacy of law violation
2.
The violation must be immediate
3.
Violation must be likely g.
Restatement of the tests for dangerous ideas: Imminent v. Future Danger, Advocacy v. Mere Ideas i.
Bad tendency – everything is punishable, now matter how remote or trivial ii.
Holmes and Brandeis would punish if danger is imminent. Even mere ideas punishable b/c there is no time for counterspeech iii.
Dennis would punish express advocacy whether imminent or not under C&P Danger iv.
Brandenburg only punishes if imminent and express advocacy AND lawbreaking likely
1.
Seriousness is not part of Brandenburg, but Dennis cited favorably
2.
Since Brandenburg there have been no criminal syndicalism cases, but there have been civil suits for damages when people copy movies a.
Usually likeliness established b/c it already happened b.
Usually immediately after the movie c.
Turns on whether there was advocacy of law violation v.
Cynical view: The court always grants just enough protection to seem better than the past, but not enough to cover the case at hand (Stone)
Threats and Provocation ( intro to concepts of low value speech) a.
Threats i.
Bridges v. CA (1941) – Conviction for threatening to cripple west coast w/ strike if court decision enforced against him is reversed using Clear and Present Danger
1.
Black uses C&P danger test (later condemns for being malleable) a.
Substantive evil must be extremely serious and degree of imminence extremely high before utterances can be punished
2.
Arguments that speech should be punishable a.
Respect for role of judiciary: censorship is no way to earn respect b.
Influence on judicial decisions: Taking away impartiality is a serious concern, but judge knows he will be criticized – no influence
3.
Frankfurter argues for punishment if there is pressure on judiciary – like bad tendency ii.
Watts (1969) – Conviction for threatening President reversed b/c saying that first man he wants to shoot is LBJ is hyperbole iii.
LAW: True threats are excluded from 1st Amendment protection
1.
Virginia v. Black defined true threats: Communicates a serious expression of an intent to commit an act of unlawful violence to another (or group)
2.
Line drawing is difficult and many threats are protected: Public threats on matters of public concern tend to get protection

3.
When we place things outside of the 1st Amendment court must be careful not to put important things outside of the protection b.
Provocation: Speech that Provokes Hostile Reaction i.
Cantwell v. Conn. (1940) – Conviction of Jehovah’s Witnesses playing phonograph for statute prohibiting solicitation of funds and for common law breach of peace reversed
1.
Requirement of permit to solicit is rejected under free exercise of religion clause- very unusual, could have been eliminated as prior restraint
2.
Common law breach of peace application is overbroad b/c phonograph is peacefully saying that Pope is an agent of Satan a.
Cites Thornhill which protects labor picketing against AL statute because statute would stop even peaceful quiet picketing b.
Statute must be narrowly drawn to not interfere with core speech c.
While record may be rude, polite people can persuade people of the error their ways even if based on their most deeply held beliefs ii.
Terminello v. Chicago (1949) – Conviction for giving speech that stirs protesting public to anger reversed under C&P danger b/c can’t restrict speech b/c ideas offend audience iii.
Feiner v. NY (1951) Court upholds conviction of Feiner when asked, told, and ordered to stop preaching before arrested - Not clear if arrested for C&P danger or breach of peace
1.
Black argues that policeman is to blame, Feiner should have every right to speak
2.
Law breaker is the person threatening violence iv.
Skokie controversy: Court invalidates injunction of Nazi march in Jewish neighborhood
1.
Should Nazi group should get as much protection as black civil rights group a.
Does protecting one make a judgment as to which idea is better b.
European approach – we have never been wrong in condemning hatred v.
Test for provocation is Clear and Present Danger, but last hostile audience came before
Brandenburg in 1969 c.
Fighting Words and Provocative Epithets i.
Chaplinsky v. NH (1942) – Conviction of JW for calling a police officer a damned racketeer and a fascist under statute prohibiting offensive language that could incite violence upheld b/c the language was fighting words
1.
Fighting words are category of speech not protected under 1st Amendment a.
Not protected b/c they inflict injury merely by being said and tend to incite breach of peace
2.
Fighting words are words that men of common intelligence would expect to incite breach of peace a.
Don’t know if C&P danger b/c we don’t know how the person provoked feels or acts
3.
Gooding (1972) eviscerates this decision with facts very similar to Chaplinsky, suggesting that Chaplinsky’s words would be protected today a.
Suggests that Fighting words are extremely small category ii.
Categorical balancing approach rather than case by case clear and present danger test
1.
Definitional problem in that we don’t know what fits into this category
2.
Fighting words are worthy of categorical exception b/c a.
Likely to provoke average person to assault which fails C&P danger b.
Doesn’t contribute to marketplace of ideas or self-governance c.
Verbal assault is just intended to injure, like physical assault iii.
Fighting words today
1.
Chaplinsky never overruled, always implicitly accept Chaplinsky in dicta
2.
Today free speech doctrine is more robust, we expect more tolerance b/c of changing cultural norms – reject mid-century understanding of masculinity d.
Broader arguments i.
Many conventional ideas were once radical, we only progress by allowing them in market
1.
Supported by argument that we should be taught how to be tolerant ii.
Some ideas don’t contribute to debate, speech just intended to injure can be real offense that state can protect with tort law
1.
If no speech injury what happens to intentional infliction of emotional distress

IV.
V.
2.
Difficult to extricate offensive components from those that offer something
Expression that Discloses Confidential Information a.
National Security: Pentagon Papers (1971) – Court rejects govt. application for injunction to stop
NY Times and Wash Post from publishing policy papers about Vietnam war i.
Wiretapping cases currently don’t allow injunctions for this reason ii.
Potential to stop publication of secrets w/o prior restraint
1.
Criminal punishment for those who publish classified documents
2.
Criminal punishment for those who leak information as govt. employees a.
Free speech rights of govt. employees limited b/c of need for internal government confidentiality b.
Privacy: Cox Comm. (1975) and Florida Star (1989) – Broadcaster cannot be held liable in damages for publishing rape victim’s name i.
Private truthful info lawfully obtained by press can’t be punished if newsworthy
1.
Court defers to press interpretation of what is newsworthy
2.
Reluctance to second guess due to chilling effect ii.
Individuals need to rely on press for accurate public information iii.
Bartnicki (2001) – wiretapping law can’t be applied to stop broadcast of intercepted phone call even if radio knew it was acquired illegally c.
Due Process: Nebraska Press v. Stuart (1976) – Reversed NE injunction of press publishing confessions or other things that would possible take away right to fair trial i.
Due process rights of accused at issue, so Constitutional rights on both sides
1.
Clear and Present Danger Test used to invalidate ii.
Less restrictive means on free press available – could advance compelling govt. interest in due process in better ways d.
Judicial Administration: Landmark Comm. v. Virginia (1978) – Conviction of newspaper for accurately reporting that VA was contemplating a investigation of state judge invalidated under balancing test i.
Balance comparing importance of public speech vs. government’s ability to ensure incorrect information does not get out ii.
Burger uses categorical balancing similar to Bridges e.
Dangerous Technical Information: US v. Progressive (1979) – publication of info about how to build a H-bomb enjoined until others produced same info i.
Newspaper argued that public concern for point that secrecy is bad when a few experts control nuclear policy ii.
No clear answer as to how to deal with this type of speech f.
To what extent should publishers refrain even if there is a legal right? i.
Political cartoon of Muhammad with bomb in turbin ii.
To protect speech we push legal limits all the way to border and allow restraint
1.
Prevents govt. from setting expectation of views and getting it wrong
2.
Law operates on backdrop of culture and culture is more important
Overbreadth, Vagueness, and Prior Restraint – procedural restraints toward higher protection of speech a.
Prior restraint – people rallied against prior restraints against background of licensing; Blackstone
– liberty of press is freedom from licensing requirements (advancement for his time) i.
Lovell v. Griffin (1938) – Invalidates GA law making pamphlets nuisance unless licensed b/c that reason for 1st Amendment is to eliminate prior restraints
1.
Licensing systems are not per se unconstitutional, but they face a heavy burden a.
To be const’l - must have clear standards and procedural safeguards ii.
Seven reasons licensing is bad
1.
Idea doesn’t get to public (societal need for info not individual right)
2.
Over-inclusive: censorship very efficient in stopping all speech a.
Subsequent punishment stops punished and chilled speech but this is only a subset of all speech stopped in licensing
3.
Lack of standards: No principled guidance stopping censor
4.
Over-censorship: Censors have zealous interest in censoring b/c it is there job and the job attracts people who want to censor

5.
Absence of procedural protections – administrative rather than criminal procedure so constitutional protections don’t apply
6.
Easier to enforce prior restraint b/c of small burden of proof
7.
Informal system limits the public appraisal and increased chance of abuse iii.
Near v. MN (1931): Court reverses MN grant of injunction against newspaper that had already produced scandalous, defamatory things b/c it is prior restraint
1.
Brings cultural distaste for licensing to injunctions
2.
Even if over-inclusiveness, lack of standards, and absence of procedural protections do not apply to injunctions, they still have negative qualities a.
Over-censorship w/ collateral bar rule (injunction must be obeyed until set aside and disobeyer cannot defend w/ wrongness of injunction)
3.
While injunction gives more notice and opportunity to respond than punishment, distaste for suppression of ideas wins out – need to ensure ideas get out
4.
Near rule against injunctions is not absolute, but exceptions are narrow a.
Exception for national security, obscenity, and subversive advocacy disappear over time b.
Overbreadth i.
Gooding v. Wilson (1972) Conviction for calling police son of bitch and saying he will cut them into pieces overturned b/c of state court interpretation of the law was overbroad
1.
Overbroad if it forbids expression that can’t be constitutionally forbidden
2.
Attack as overbroad with no requirement that person attacking the statute demonstrate that his own conduct could not be regulated
3.
Possibly turns Chaplinsky on its head
4.
State court can narrow construction of statute, but must give adequate warning ii.
Justifications of overbreadth
1.
Must highly protect 1st amendment b/c persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions – possible chilling effect
2.
One of the evils of an overbroad statute is potential for selective enforcement and the overbreadth doctrine minimizes this danger by restricting enforcement iii.
Costs of the overbreadth doctrine
1.
Unjustifiably frustrates legitimate state interests because it allows individual whose own rights have not been violated to go free
2.
Enables court find and cure unconstitutionality beyond scope of judicial review
3.
Requires the decision of constitutional questions not fully presented
4.
Escapes difficult questions as applied by using potential problems to invalidate
5.
Leaves the legislature with little or no guidance as to how to avoid problems iv.
Broadrick v. Oklahoma (1973) – Statute is not UC overbroad unless the overbreadth is not only real, but substantial as well, judged in relation to the statutes plainly legit sweep
1.
The overbreadth doctrine is strong medicine and must be only invoked if there is a significant likelihood of deterring important first amendment speech
2.
Possible question about overbreadth in regard to low value speech
3.
Substantial overbreadth defined in Taxpayers for Vincent – there must be a realistic danger that the statute itself will significantly compromise recognized
Firsdt Amendment protections of parties not before the court v.
Cases of overbreadth
1.
Houston v. Hill – statute prohibiting abuse or interruption of police overbroad
2.
Jews for Jesus – statute prohibiting 1st amend activities in LA airport overbroad
3.
Ferber –Child porn statute upheld, slight overbreadth to by dealt w/ case by case
4.
NEA v. Finley – Grant application statute with standards not overbroad b/c facial invalidation is generally disfavored c.
Vagueness i.
Law is void on its face if it is so vague that persons of common intelligence must necessarily guess at its meaning and defer to its application
1.
Concerns present for all laws, but special bite in 1st amendment ii.
Degree of tolerable vagueness is not calculatable w/ precision

I.
Content Based Regulation of “Low Value” Speech
Defamation – tort law dealing with false statements of fact; libel = written, slander = spoken a.
New York Times v. Sullivan (1964) – Libel damages for ad for financial support of civil rights recounting police acts in Alabama w/ false statements are UC b/c there is no actual malice i.
Majority fears use of tort of defamation to squash civil rights movement ii.
Debate on public issues should be robust and open, strict liability defamation law works against this need iii.
The level of fault necessary for state to impose liability is ACTUAL MALICE
1.
Actual malice satisfied w/ knowledge that statement is false
2.
OR Reckless disregard of whether the information is false
3.
Strict liability and negligence standards are not available iv.
Actual malice standard is difficult standard to prove
1.
Very few actions actually brought b/c of difficult standard of proof
2.
Push the line for exam question b.
Reasons to protect false speech i.
Need to get uninhibited robust and complete criticism of govt. which requires breathing space to debate matters of public concern
1.
Limited criticism if we force people to think about what they say
2.
Breathing space leads to open debate where truth will prevail – market of ideas
3.
Duty of citizens to criticize b/c of need for self-governance ii.
Footnote 10: False speech brings clearer perception of truth – silly argument c.
Is actual malice a good standard for defamation liability i.
No, it is underprotective of the values it attempts to protect
1.
Black concurrence: criticism of public officials should have absolute immunity
2.
Chilling effect – fear of being sued even when person doesn’t meet the standard will stop people from speaking b/c of cost of defense
3.
FN 10: If falsities bring truth then we should protect and encourage false ideas ii.
No, it is overprotective
1.
Undervalues people’s reputations, actual malice makes it functionally impossible to litigate actual damages to reputation
2.
Chilling effect on false statements is positive, negligence standard would have greater positive effect b/c value gained in chilling false statements outweighs value lost by chilling true statements
3.
Many capable administrators driven out of politics if reputation is at stake d.
To whom does the actual malice standard apply i.
Actual malice applies to all purpose public figures and limited public purpose figures w/in the scope of their public prominence, but not private figures
1.
Gertz (1974) –attorney for murder suspect wins libel action against newspaper and Court finds that 1st amend doesn’t require actual malice for private figures a.
Public figures have a greater burden b/c they have greater access to channels of communication to fight defamation w/ counterspeech b.
Also by entering the public sphere individuals assume the risk that their lives will be scrutinized
2.
States are free to impose lower standard than actual malice for private figures so long as it is greater than strict liability
3.
For punitive damages actual malice is mandatory even for private figures b/c these are like punishment for speech, standard needed to avoid self censorship ii.
Lesser standard than actual malice OK for punitive/presumed damages in defamation suits concerning private speakers comments on matters of private concern
1.
Dun and Bradstreet (1985) – Court affirms punitive and presumed damages in defamation suit using less than actual malice standard b/c less protection needed a.
Plurality opinion w/ little agreement b/c public speech vs. private speech distinction is dangerous line drawing activity for judges

II.
iii.
Private person doctrine in Gertz and private concern doctrine in Dun and Bradstreet represent significant cutback to NY Times actual malice doctrine e.
Avoiding defamation and libel cases b/c of 1st amendment roadblock i.
Hustler Magazine v. Falwell (1988) –Damages for intentional affliction of emotional distress reversed b/c actual malice standard must be met even outside of defamation
1.
Intentional infliction of emotional distress gets around NY Times in state court, but Supreme Court unanimously reverses for actual malice standard
2.
Actual malice applies to all speech criticizing public figures ii.
While there may be injury that should be compensated and there is plausibly some speech that is outside the line, policing the line is impossible w/o prejudiced decisions,
1.
Categorical balancing f.
It is very hard to prevail as libel plaintiff b/c of NY Times, except in narrow case of private figure libel where 1st amendment doesn’t reach tort law.
Commercial speech a.
Beginnings of Commmercial Speech regulation i.
Valentine (1942) – Commercial advertising can be regulated just like other econ activity
1.
After Lockner Court is uncomfortable striking down economic regulation ii.
Bigelow (1975) – Court invalidates law prohibiting abortion advertisement
1.
Best seen as extension of Roe v. Wade, not commercial speech case iii.
Lockner is continually in the discourse for commercial speech b.
Virginia Pharmacy (1976) – Invalidates VA law making it illegal to advertise the price of prescription drugs b/c there is first amendment interest in the free flow of commercial information i.
Commercial speech is advertisements not books and info purchased for money ii.
Private decisions allocate resources in market economy. Matter of public interest that decisions are intelligent and well-informed, free flow of information is indispensable
1.
Utmost importance to the poor who are hit hardest by lack of information
2.
In market economy than we need free flow of commercial info
3.
Anti-paternalism iii.
Commercial speech protected but some categories are excluded from protection
1.
Advertising for illegal products is illegal
2.
False advertising can be regulated
3.
Misleading advertising can be regulated iv.
More regulation of commercial speech allowed than of core political speech
1.
Commonsense differences between types of speech
2.
Commercial speech is hardier than political speech, economic incentives make this type of speech less susceptible to chill
3.
Commercial speech more objectively verifiable than core political speech v.
Rehnquist dissent b/c Constitution does not mandate free market economy, Judiciary has no place in making Constitutional decisions about how legislature can/can’t regulate it c.
Central Hudson (1980) – Creates four part test for commercial speech cases i.
To determine whether commercial speech is protected
1.
First determine whether expression is protected under first amendment a.
Cannot be false ad, misleading ad, or ad for illegal products
2.
Second, the asserted govt. interest should be substantial
3.
Third, if expression protected and govt. interest is substantial, determine whether the regulation directly advances govt. interest
4.
Fourth, the restrictions must be no more restrictive than necessary a.
SUNY v. Fox (1989)– doesn’t need to be least restrictive i.
Challenger must show substantially less restrictive method b.
Intermediate Scrutiny ii.
An example of intermediate scrutiny, has some bite, but leaves room for regulation iii.
Definitely takes the analysis to lower level than Virginia Pharmacy, but is not necessarily clearer than Virginia Pharmacy: still a very malleable doctrine – substantial interest, etc. d.
Reevaluating and Reusing Central Hudson i.
Posadas de Puerto Rico (1986) – Court (Rehnquist) upholds law restricting advertising of gambling using Central Hudson Test in his own way – defers to legislature

III.
1.
If PR has power to regulate gambling it can regulate advertising thereof
2.
Rehnquist is anti-commercial speech protections and he uses Central Hudson 6 years after saying the court was Locknerizing 1st Amendment
3.
Deference to legislature to choose what to allow in commercial speech ii.
44 Liquormart (1996) – Plurality rejects greater includes the lesser argument of Posadas, rejects deference in Posadas, opinions suggest strict scrutiny rather than Central Hudson
1.
Possibly also rejecting Central Hudson test
2.
Suggests strict scrutiny applies when state regulating truthful information
3.
Return to anti-paternalistic principles of Virginia Pharmacy iii.
Lorilard (2001) – Invalidates Mass. law disallowing cigarette ads around playgrounds and schools b/c restrictions more restrictive than necessary under Central Hudson
1.
While Central Hudson is not the best test, strict scrutiny not needed in this case because law is more restrictive than necessary
2.
Normally when first three prongs are met, legislature wins under intermediate scrutiny, but not here b/c law restricts advertising in 87% to 91% of the state
3.
Minimalism – court only does what is necessary so as to preserve arguments as to whether to move to strict scrutiny when issue framed iv.
Thompson v. Western States Medical Center (2002) – Invalidates law outlawing advertising of compounded drugs under prong 4 of Central Hudson
1.
Court finds FDA could have employed other means like prohibiting large scale manufacturing of compounded drugs
2.
Dissent says that Central Hudson is being misapplied with two much necessary to satisfy the no more restrictive than necessary prong a.
Commercial ad restrictions do not automatically violate 1st Amend e.
Commercial Speech today i.
Disagreement as to whether Central Hudson intermediate scrutiny or strict scrutiny
1.
Central Hudson is law but suggestion to move to strict scrutiny and court has been more searching in prong 4 of Central Hudson ii.
Court is divided
1.
Could be division over different reasons for protecting speech
2.
Could be division over whether ads are speech or economics (Lockner) iii.
Three areas of law that would be particularly affected by assimilating commercial speech into fully protected speech (Sullivan) – the exceptions to commercial speech in VA Phar.
1.
Ads of an illegal product or transaction
2.
Ads that are false or misleading
3.
Ads that create an image rather than promoting fact iv.
Justifying regulation of commercial speech on basis of empirical evidence
1.
If govt. can regulate speech based on evidence – starts to look like bad tendency
Obscenity – How do we define obscenity? What interests justify excluding it from protection? a.
Roth v. US (1957) – [Brennan] Conviction for mailing collection of erotic literature (unicorn and
Venus) upheld b/c obscenity is outside the protection of the first amendment i.
A work is obscene if “the average person applying contemporary community standards would find that the dominant them of the work as a whole appeals to the prurient interest”
1.
Work as a whole narrows definition to exclude books with obscene parts
2.
Improvement to legal definition, but still can be overbroad ii.
Two reasons for excluding obscenity from 1st amendment protection
1.
Historically it has been suppressed – originalist arguments have little traction in free speech law and a lot that wasn’t protected now is
2.
Obscenity lacks social value: doesn’t contribute to marketplace, self-governance a.
Can argue that it contributes to search for truth b/c sexual matter can be of interest to mankind, but Brennan carves out space for this true interest by separating sexual matter from the obscene b.
All literature can be described as not contributing to search for truth or self governance i.
Meiklejohn argues that things that bring better concept of beauty or human intuition help make better citizens (obscene?)

ii.
To argue that obscenity makes better citizens based on empirical support goes against marketplace b/c in marketplace of ideas govt. has no role in choosing what is best c.
Fred Schauer argues that obscenity is not speech b/c speech has cognitive or emotive content, porn just produces physical like vibrator i.
The difference between these two is artificial, Schauer minimizes porn or overemphasizes the value of lit
1.
Tearjerkers to cry, comedy to laugh ii.
Cannot simply categorize into two groups – line drawing iii.
Government is categorically balancing to protect morals
1.
Whether government has a place in morals is contested b.
From Roth to Miller i.
Court unable to agree on answer to definitional or suppressive question
1.
Did not attempt to define, just reversing per curium (I know it when I see it) ii.
Memoirs (1966) – 3 justices agree on 3 elements to make work obscene
1.
Dominant theme appeals to prurient interest (Roth)
2.
Material is patently offensive b/c if affronts contemporary comm. standard
3.
Material is utterly w/o redeeming social value iii.
Stanley v. Georgia (1969) – Combination of 1st amendment and right to residential privacy in 4th or 14th protects reading the obscene in your own home c.
Miller v. Califonia (1973) – Conviction for mailing obscene ad upheld under new obscenity test; lays out the constitutional minimum for punishing obscenity i.
Elements of the Miller test
1.
Average person applying contemporary community standards would find the work taken as whole appeals to prurient interest (turns you on)
2.
Work depicts or describes in patently offensive way, sexual conduct specifically defined by the applicable state law (grosses you out and is carefully drafted)
3.
Work taken as whole lacks serious literary, artistic, political or scientific value a.
Like utterly w/o value from Memoirs, but less protective i.
Utterly becomes lacks value and social value further defined ii.
Local community standards are used – different definition of prurient interest by place
1.
Different standards dangerous, but Brennan says morals differ by community
2.
Protections from danger of having separate standards (prong 3 balances prong 1) a.
Specificity required in law b.
Appellate review of prong 3 – lacking value as a whole c.
Objective nature of prong 3 – lacking value as a whole iii.
Community Standards, Obscenity, and the Internet
1.
Ashcroft v. ACLU (2002) – plurality finds that internet is not sufficiently different from other medial to justify elimination of local standards a.
When putting things on the internet you must comply w/ standards wherever your speech may travel i.
Argue that nature of internet makes complying w/ community standards impossible b.
ACLU argued that standard should be people capable of sophisticated computer use
2.
Should one community be able to censor national business by forcing national distributors to self-censor to avoid suits? iv.
Thwarting the Miller test - Skit about constitution followed by porn; find work as whole didn’t have value to avoid this problem d.
Paris Adult Theaters (1973) – Remands case about theater exhibiting potentially obscene materials for Miller test b/c exhibition for consenting adults only doesn’t gain constitutional immunity i.
State interests are not limited to regulating exposure of obscene materials to children and unconsenting adults
1.
Court rejects argument based on Stanley (can do what you want in your home) and the idea that theater is only for consenting adults a.
FN 15: No right for adults to do whatever they want

IV.
V.
2.
Obscenity is w/o protection even if consenting adults b/c state interest in regulating commercialized obscenity for quality of environment, tone of commerce, and public safety ii.
If govt has power to claim that content s completely w/o what affects on 1st amendment
1.
Dissent is worried about mind control, but this has not come to fruition b/c a.
Social attitudes have changed about obscenity (pros. discret. and jury) b.
Technological change makes porn easier to obtain c.
Big corporations got into the business of porn
2.
While only 4 federal obscenity prosecutions during Clinton, Bush has made it a goal with task force and this could become a much larger issue
Child Pornography a.
NY v. Ferber (1982) – Upholds conviction of adult bookstore for selling child porn i.
Court categorically excludes child porn from the Miller test because
1.
The child is harmed
2.
There is a permanent record of the child’s abuse
3.
Punishing possession of the child porn is a way to stop the trade ii.
Categorical balancing finding no value in using children b/c young looking actors, simulation or other methods can be used to meet literary needs
1.
Creation of harm balanced against artistry which is different than normal balancing of the harm of viewing against artistry iii.
Drying up market as a reason for prohibiting speech is inconsistent w/ 1st amend theory
1.
State can’t normally ban work if something illegal done in its creation b.
Ashcroft v. Free Speech Coalition (2002) – Invalidated Child Porn Protection Act which extended prohibition against child porn to films that appear to depict minors i.
None of the illegal child abuse concerns present if adults pretending to be children
1.
Safety valve given in Ferber is eliminated and artistic depictions blocked
2.
Erotic nature of children is theme of history and court won’t eliminate ii.
Legislation focused on effect of viewer and drying up the market, this focuses the negative aspects of Ferber on the child abuse and the record of the abuse c.
17 USC 2257: Creators of child porn must keep records of birth certificates i.
Attempt to over-regulate and reduce market supply – constitutional? At what point is over-regulation restriction ii.
Used to go after adult obscenity?
Lewd, Profane, or Indecent Speech – protected speech, unlike obscenity, but regulateable as low value a.
Cohen v. CA (1971) – Invalidates conviction for wearing the Fuck the Draft jacket in LA
Courthouse b/c speech is core political speech and govt. cannot control the form of speech i.
Classifying “Fuck the Draft”
1.
Not libel, b/c speech is not false, not fact, and not about anyone
2.
Not fighting words b/c not directed at particular listener, not likely to provoke a.
Severs from indecency, fighting words must provoke violence
3.
Not hostile reaction b/c not provocative of violence to a group
4.
Not obscenity b/c no appeal to prurient interest or sexual conduct, has pol. Value ii.
Can’t regulate exact words b/c court is not the judge of what words are acceptable
1.
Unlike sound trucks that can be regulated when they bombards unwilling listeners, we can expect a person to turn away if offended a.
Some govt. interest in protecting unwilling listeners, but this is public place and the need for free speech is more important
2.
Regulation of form of words reaches the content b/c words have emotive content
3.
Cannot regulate even if it is just form b/c decisions about appropriateness and decency are left to an individual not the government a.
Harlan notes that we have no French Academy
4.
Government has great difficultly in making principled distinctions in this area such that Constitution left matters of taste and style to the individual iii.
Categorical balancing finds stronger interest in free choice of words than in protecting unwilling listener b/c there is emotive impact of words and ability to turn away iv.
Conflicts

1.
Conflicts w/ Burger’s contention in Paris Adult Theater that govt. is rightly in business of promoting higher level speech in hierarchy
2.
Potentially conflicts w/ Jacobs Heights allowing regulation of ads in busses b.
Erzonik v. Jacksonville (1975) – Invalidates statute prohibiting nudity in drive in theaters b/c statute impermissibly picks on a form of expression and regulates i.
Court invalidates b/c category doesn’t match stated interest
1.
Regulates nudity rather than all nuisance speech
2.
Regulating all nuisance would be better b/c then govt. doesn’t make decision as to what is good for the people a.
When singling something out there is greater risk that more than stated govt. interest is being advanced; if govt. regulates all then it ensures that govt. is really attempting to protect the stated interest ii.
Content neutrality questions if govt. regulates all nuisance speech c.
FCC v. Pacifica (1978) Upholds FCC prohibition of dirty words broadcast during daytime hours i.
Majority ad hoc balancing of injury inflicted vs. value of speech considering
1.
Broadcast uniquely accessible to kids, therefore stronger govt. interest
2.
Privacy of Home – focus on this aspect could have avoided violence to Cohen
3.
Can’t avert your eyes from the nuisance – limited context of this media, probably not consistent with Cohen
4.
Nature of penalty, Cohen could go to jail, Pacifica stopped from broadcasting
5.
Low value speech
6.
Nature of media makes it very difficult to give a warning for those in and out
7.
The time of day is the only thing blocked, there are alternatives to access speech ii.
Three justices say that protection afforded need not be the same in every context, there is a range in the value of speech and where it is acceptable
1.
This puts the determination of when speech is acceptable in hands of judge iii.
Difficult issues of Pacifica
1.
Is Carlin’s speech really low value or is it core political speech a.
Could argue that it is satire critical of govt. and society or use selfgovernance to argue it is core speech
2.
Does the right to privacy in the home support the outcome a.
Privacy may include the right to hear what you want in your home b.
Sable Comm. (1989) - Court invalidates phone sex provision i.
Distinguished b/c of affirmative step in dialing phone
3.
Does the unique accessibility to children support the outcome a.
Books in library and store are uniquely accessible to children i.
Not OK to keep discourse to a level that children understand b.
Reno v. ACLU (1997)- Invalidated prohibition of indecency on internet i.
Court characterized internet like phone rather than radio ii.
Keep discourse at level of adult outweighs protecting kids iv.
US v. Playboy (2000) – Invalidated law requiring cable operators to fully scramble or limit transmission of sexually explicit channels between 6am and 10pm
1.
Strict scrutiny applied, individual should not be able to get speech if wanted d.
Young v. American Mini Theaters (1976) – Upheld Detroit statutes prohibiting the location of adult theaters w/in 1000ft of other regulated uses or w/in 500ft of residential areas i.
Specificity and Subjectivity
1.
In order to regulate porno material, must define w/ specificity
2.
Choosing specific material to regulate brings problems of subjectivity ii.
Secondary effects doctrine: court allows city to regulate the speech b/c having this speech together brings secondary effects of crime, trash, etc. iii.
Majority finds that regulation does not stop speech and b/c it is low value regulation OK
1.
Govt interest in protecting city from secondary effects outweighs low speech
2.
No serious 1st amend risk b/c many areas where this speech can take place a.
Contrary to Lorilard and commercial speech is lower value speech i.
Is advertising no longer low value, was argument not raised?
3.
Govt. is still being viewpoint neutral b/c it is regulating entire category

VI.
a.
Argument that viewpoint is disproportionately blocked when you regulate a category of speech
4.
LOW VALUE theory drives the outcome e.
Developing the Secondary Effects Doctrine i.
Renton v. Playtime Theaters (1986) Upholds adult theater zoning under secondary effects doctrine: if regulating secondary effect, can regulate regardless of content of speech
1.
Possibly overcomes Lorilard idea that there must be room for low value speech ii.
City of Alemeda (2002) – Upholds secondary effects doctrine in splintered court iii.
Secondary Effects doctrine could swallow all of first amendment protection
1.
Can only be stopped by containing to sexually explicit speech which is categorized as different and lower value
2.
Secondary effects would not be applied to protest b/c of litter or Grateful Dead concert due to drug use
3.
Nude dancing is the outermost bounds of speech a.
Impossible to exclude due to line drawing, but less problem regulating
Hate Speech – What is hate speech, why regulate, why shouldn’t we regulate a.
Beauharnais (1959) – Allows group libel action against leader of White Circle League for publishing leaflet to unite against “rapes, robberies, and knives of the Negroes” i.
Frankfurter upholds citing Chaplinsky that libel is not essential part of expression
1.
Due to seriousness of problem court defers to legislature ii.
Greater deference to laws that reach issues of protection for racial and religious minorities b/c of history in the area
1.
FN 4 Carolene Products suggests protection for racial and religious minorities iii.
Analogy to libel law is weak
1.
Nature of the harm – individual libel protects property in reputation, where group libel protects a more generalized and unquantifiable right
2.
Required knowledge – individual libel has actionable facts, group libel statements more difficult to determine truth or falsity iv.
Today some heightened level of review would apply to the statute b.
Classification of hate speech i.
Not fighting words b/c no target, no immediate violence, matter of public concern ii.
Not incitement b/c Brandenburg had worse facts and Brandenburg wasn’t incitement iii.
Not libel b/c unquantifiable harm and difficult to prove actionable facts c.
Arguments that hate speech should have less 1st Amendment protection i.
Handicaps the marketplace of ideas by further silencing marginal groups and it must be regulated for the marketplace to achieve its goals ii.
Hate speech is just really offensive – similar to arguments about profanity iii.
Like fighting words iv.
Should be subject to regulation b/c it causes injury – similar to indecent speech on fringes of obscenity regulated by secondary effects v.
Little contribution to the exchange of ideas – even though it tells us what lunatic is thinking, the damage justifies regulation of something w/ so little value vi.
Conflicts w/ 14th amendment freedom from discrimination and this outweighs first amendment – state action problem d.
Arguments that hate speech should have full first amendment protection i.
Basic marketplace of ideas: contributes and truth will win in the end ii.
Hate speech is only singled out for equality, but 1st amendment is about individual rights not the collective right to protect all people iii.
Speech is about matter of public concern: race relations iv.
McCarthy: Arguments about why hate speech is undeserving of protection are the same arguments made by McCarthyists e.
RAV v. City of St. Paul (1992) – Invalidates conviction for display of “symbol that arouses anger, alarm, or resentment on the basis of race, color, creed, religion or gender i.
While the state court limited statute to fighting words, Supreme Court invalidates b/c the statute singles out particular form of speech based on viewpoint

1.
Even if speech unprotected, state cannot engage in viewpoint discrimination w/in the category ii.
You can draw lines on the basis of content to set up proscribable categories, but w/in these categories you can only draw lines based on content if the lines are related to the very reason that the category gets low value characterization
1.
Cross burnings could be particularly bad version of fighting words except that the statute only covers one viewpoint of cross burning
2.
Also possibly punishing all cross burnings is overbroad – White concur iii.
Wisconsin v. Mitchell (1993) – Increased sentence for racial motive upheld when black kids who just watched Mississippi burning beat a white kid
1.
Difference from RAV (other than switch races) b/c Mitchell punishes conduct which is unprotected by 1st Amend (murder not expressive) and physical harm iv.
Virginia v. Black (2002) – Upholds law on cross burning w/ intent to intimidate b/c intent is subcategory of unprotected true threats based on same reason that true threats regulated
1.
Plurality holds that part of statute making cross burning prima facie evidence of intent to intimidate is unconstitutional
2.
With this presumption, VA is really prohibiting cross burnings rather than cross burnings with intent to intimidate
3.
Content based restriction problematic w/in category if it is overbroad f.
Pornography as Hate Speech (porn and feminism) i.
Two basic arguments classifying pornography as hate speech
1.
The insidiousness of porn acts through images to subordinate women in nonrational sub-conscious ways a.
Argument against this is that many things act this way such as parody and satire which makes this viewpoint discrimination b.
Also this fails in respect to porn made by women
2.
Harm of pornography to the actresses in the films, watchers of the film and it leads men to harm women in form of sex discrimination, subordination, and rape a.
Analytically indistinguishable from bad tendency test ii.
Arguments against classifying porn as hate speech
1.
Difficult to separate porn from other forms of subordination in images
2.
Some women view pornography as liberating
3.
Viewpoint discrimination: can use sexual images to support superiority of women, but not to support subordination of women iii.
Feminists contest that marketplace of ideas isn’t working, regulation just evens the playing field against multimillion dollar industry
VII.
Summarizing Low Value Speech a.
Categories: Fighting words, threats, defamation, commercial speech, profanity, obscenity, indecency, and hate speech b.
Sunstein: 4 elements that tie these together i.
Speech that is far afield from the central concerns of the 1st Amendment ii.
Distinction between the cognitive and non-cognitive aspects of speech iii.
Purpose of the speaker is relevant: if communicating a message, speaker treated more favorably than if he is not iv.
Various classes of low value speech reflect judgment that in certain areas, govt. is unlikely to be acting for constitutionally impermissible reasons or producing constitutionally troublesome harms c.
Lessons from Low Value Speech and Its overall impact i.
Low value doctrine demonstrates sharply limited efficacy of judicial controls on censorship by the majority, for it defines speech as unworthy of protection in precisely those cases where it most seriously threatens majority values, where protection needed ii.
Low value doctrine has served salutary function, operating as critical safety valve that allows court to deal sensibly with somewhat harmful, but relatively significant speech without running the risk of diluting the protection accorded expression at core

I.
iii.
Low value theory is marked by vacillation and uncertainty. Highly result oriented approach that is susceptible to endless expansion of list of low value categories whenever another kind of expression gains renewed disfavor
Content Neutrality a.
Definitions
Content Neutral Restrictions and Special Topics i.
Viewpoint based restrictions are a narrow subcategory that regulate speech not just upon the nature of the speech, but also upon the perspective the speaker takes on the subject
1.
No person may billboard a message critical of war in Irag ii.
Content based restrictions regulate speech by the subject matter
1.
No person may billboard a message mentioning the war in Irag iii.
Content neutral restrictions regulate speech without regard to its content
1.
No person may put up a billboard b.
The Treatment and Rational for the categories of restrictions – difference best explained by the risk of differential impact and government control of speech i.
Viewpoint based restrictions are dealt with under strict scrutiny and almost never win
1.
RAV indicates that even viewpoint based restriction on unprotected speech UC
2.
Less speech is affected, but it is extremely bad b/c it reduces the opportunity for one side to make speech in a public debate
3.
Prohibited b/c marketplace of ideas is not allowed to function properly and people don’t receive the info necessary to become fully independent actors
(Meiklejohn’s self governance) ii.
Content based restrictions receive strict scrutiny for high value speech
1.
Not as bad as viewpoint restrictions b/c it doesn’t directly skew the debate, nonetheless problematic b/c it suppresses the debate a.
Reducing the total quantum theory is OK, but this argument fails in content neutral law analysis
2.
Also the suppression of a matter of debate may have a differential impact a.
Opponents of the status quo need speech to initiate change and content based restrictions handicap this process b.
Compares to arguments about using public thought as baseline
3.
Strict scrutiny is strong presumption better explained by differential impact iii.
True content neutral speech restrictions receive intermediate scrutiny
1.
Content neutral statutes remove a method of speech and may have a differential impact (think ability of poor to communicate ideas – handbills, soundtrucks) a.
The risk of differential impact is less
2.
Developed as a formal theory in the Burger Court (1969-1986) c.
Four-Part Test for Content Neutral restrictions which has replaced baseline balancing i.
Time, place and manner restriction must
1.
Be justified w/o regard to the content of the speech
2.
Be narrowly tailored
3.
Have a significant government interest
4.
Leave open ample alternative means of communication a.
Not a least restrictive means test, intermediate scrutiny b.
This and govt. interest can be seen as continuing baseline d.
Groups of cases that describe the history and understanding of content neutral law i.
Handbill distribution cases
1.
Schneider v. State (1939) – anti-leafleting statute to keep the streets clean a.
Invalidated b/c power to prevent littering doesn’t outweigh the right to speak freely with leaflets b.
Statute could be better suited to punish actual littering c.
Unclear whether the court finds speech more valuable than preventing littering or whether statute is overbroad and improperly tailored
2.
Cantwell v. Connecticut (1940) – application of statute to convict individuals for going door to door to pass out pamphlets overturned

II.
a.
Power to regulate must not unduly infringe upon rights b.
Secretary’s discretion in providing license has differential impact
3.
Martin v. City of Struthers (1943) – invalidates anti-door to door leaflet statute a.
Govt. interest in protecting privacy, eliminating nuisance, and prevention of fraud are substantial, but law not well tailored b.
Right of individual homeowner to exclude outweighs right to leaflet, but trespass law protects this interest i.
Trespass is a narrower basis for the law which could fully vindicate homeowner rights c.
Case is still vital precedent used in do not call list case
4.
Kovacs v. Cooper (1949) – Upholds ordinance prohibiting use of soundtrucks a.
Attempt to distinguish from Martin and Schneider i.
Greater govt. interest in protecting privacy ii.
Magnitude of injury is greater iii.
Impact on speech is less b/c can still leaflet or talk iv.
Effectiveness of the speech b.
Black (dissent): regulation can be more narrowly tailored ii.
Baselines: Handbill cases problematic in that court relies on baseline to evaluate interests
1.
Court never identifies basis for evaluating interests, rather it borrows from other areas of legal doctrine in making assumptions about what laws are acceptable a.
Where states depart too far from baseline statute is invalidated
2.
If determination of when state goes too far has meaning only in reference to baseline of other laws, inquiry is essentially conservative, protecting status quo a.
Different from NY Times where clean theory destroys previous law
3.
Baselines in handbill cases a.
Schneider – allowing free speech in street and putting up w/ some mess b.
Martin – protection of the home w/ trespass law c.
Kovac – nuisance law and the right not to be offended and disturbed i.
Unlike baselines in Schneider and Martin, this baseline offends concepts of 1st amendment law
1.
Can’t regulate b/c annoying or law offends ii.
1st Amendment damns comfort and convenience – see Cohen iii.
Frankfurter (concur) refers back to baseline of sanctity of home where state can regulate to protect quiet
1.
This raises privacy to level of 1st amendment which puts 1st amendment on both sides of the balance
4.
Current doctrine is 4 part test, but balancing still plays a role a.
Bartnicki (2001) – freedom of the press was baseline to invalidate app. of wiretapping law to radio that played illegally tapped phone convers. iii.
Billboard cases
1.
Metromedia v. San Diego (1981) – court invalidates anti-billboard statute a.
Example of demanded empirical evidence in intermediate scrutiny case b.
Stevens (dissent) says that state has power to outlaw entire expression if there is a valid govt. interest and theres ample means to speak i.
This has become the majority view of Supreme Court c.
Argument against outlawing entire category of speech is that we are so accustomed to something that we protect it; baseline argument
2.
City of Ladue v. Gilleo (1994) – invalidated law that prohibited homeowners from displaying signs on their property a.
Stevens (majority) finds something special about signs that makes it impossible to outlaw them and leave adequate speech i.
Effective means of speech for poor people – good rationale b.
Suggests that you can outlaw whole class of speech except that there must be ample means of communication at least equal in effectiveness
The Public Forum Doctrine –confusing doctrine b/c doctrine confused or incoherent a.
Two main questions for the public forum doctrine

III.
i.
Does the government have the same rights as homeowner to restrict speech?
1.
Initial answer – yes: Commonwealth v. Mass (1897) a.
Just as private owner has absolute discretion, so does the state in choosing how the property will be used b.
Unsurprising outcome in 1897 – no robust 1st amend juris
2.
Court had to readdress after the Holmes and Brandeis project a.
Hague v. CIO (1939) plurality dictum – b/c street used for speech “in time memorium” people have a right either as a trust or an easement ii.
If the government does not have the same rights, how does government ownership of property affect its power to exclude unwanted speakers?
1.
It depends on what type of property is at issue explains cases
2.
While President’s bathroom and parks are easy cases, line drawing for categories has been truly elusive b.
Three categories of government property and the free speech rules that apply i.
Traditional (Quintessential) Public Fora – property which the govt. is constitutionally mandated to hold open for speech
1.
Eg. streets and parks must be left open to all groups and types of speech
2.
In some cases even privately owned streets and parks can count a.
Marsch v. Alabama (1946) – where private actor takes over traditional public functions – 1st amendment applies b.
Limited to company towns – not shopping malls
3.
Courthouse in Cohen is arguably in this category, but the analysis didn’t apply b/c it was not a content neutral restriction
4.
Police Dept of Chicago v. Mosley (1972) – invalidates statute restricting peaceful picketing outside of school to labor disputes
5.
The government can close the park (swimming pool cases), but as long as it is open, the government must allow speech a.
Government subsidy for speech ii.
Non-public fora – govt. property that the govt. can close to some or all public
1.
Government may restrict so long as there is a reasonable basis and there are no content based restrictions
2.
Adderly v. Florida (1966) - found the truck entrance to a jail to be non-public fora, but decision possibly imported wrong doctrines
3.
Practical line drawing problem has caused court to draw back iii.
Limited or designated public fora – govt. could close to speech, but voluntarily holds it open so speech rules from traditional fora apply
1.
Public university campuses, especially if students can hold meetings in classrooms after hours
2.
Public funding can be limited public fora
3.
NEA v. Finley – Finley’s project to cover herself in chocolate and parade artistically was denied NEA funding a.
Restriction to funding for general decency upheld b/c not an absolute restriction on indecent speech – just a thumb on scale b.
Court finds subsidies different, but is this viewpoint restriction
Symbolic Speech - Conduct can be a very efficient way of conveying a message, but limits needed b/c if all conduct wrapped in 1st amendment, assassination or terrorist attacks protected a.
Separating expressive protected conduct from nonprotected conduct i.
Some balancing of harms: state interest in deterring murder so great that we don’t balance ii.
Some analysis goes to traditions of regulations and allowances
1.
Baseline concept is throughout content neutral law
2.
In this case tradition may be directed by real state interests iii.
Communicative intent as a separator gives rise to serious questions of proof b.
O’Brien (1968) – Upheld draft card burners’ conviction under law prohibiting desecration of card i.
1st Amend only protects conduct that is restricted based on message, conduct or audience
1.
Question is whether it is conduct that govt. can regulate notwithstanding incidental impact on speech

ii.
O’Brien test:
1.
4 requirements for constitutionally valid law applied with intermediate scrutiny a.
Must be within the constitutional power to regulate i.
Can the govt. do this other than 1st Amendment (commerce?) b.
Must further an important or substantial govt. interest c.
Whether govt. interest is unrelated to the suppression of ideas i.
Deference to legislature is questionable ii.
Deference appears in content neutral cases d.
Whether incidental restriction on freedoms is no greater than is essential to the furthering of the interest (tailoring element)
2.
Test does not include ample means of expression from TMR test, but later cases have suggested that the two tests have merged a.
Regulation of conduct is content neutral in terms of ideas b.
Both tests regulate speech that is incidental to regulatable conduct iii.
Cases apply O’Brien test but are more faithful to intermediate scrutiny c.
Flag burning case study i.
TX v. Johnson (1989) – Invalidates Johnson’s conviction under statute makes burning flag w/ intent to offend those likely to observe illegal
1.
Rehnquist dissent argues that restrictions dont take away an important message a.
Similar to the argument that hate speech is unimportant, but has trouble because this fits w/in core political speech
2.
Offends prong makes this statute independently troublesome and easy case ii.
States v. Eichman (1990) – Invalidates Flag Protection Act that did not have any provisions for the actor’s motive, message, or likely effects of his conduct
1.
Govt. interest is related to the suppression of free expression and concerned w/ the content of that expression
2.
Cannot single out action based on communicative impact (in Acts language and history) b/c of disproportionate affect on specific viewpoint d.
Nude Dancing i.
Barnes (1991) – Upholds statute requiring pasties and G-string b/c nude dancing is in the outer perimeter of 1st amendment – incomprehensible opinion ii.
Eire v. Pap’s AM (2000) – Upholds statute banning public nudity under secondary effects
1.
Taken on to clear up Barnes, but case still ends in plurality
2.
Nude dancing is speech, but it is far away from first amendment concerns
3.
Scalia (concur) argues that this is just a neutral law regulating public nudity
4.
Justices don’t buy sex positive message arguments – they have 2 concerns a.
Slippery slope to ballet and other forms of dancing or to literary works that require nudity in the play b.
Reluctant to say that dancing is not speech iii.
Driving force behind these laws is the role of morality in public nudity laws
1.
Cannot ban just based on offensiveness – see TX v. Johnson
2.
Public health concerns and destruction of values a.
Cohen says we cannot set a hierarchy of values
3.
Singling out strip clubs for special treatment relies on secondary effects doctrine a.
Secondary effects doctrine was meant solely for zoning iv.
Squaring this w/ other areas of 1st Amendment law is extremely difficult e.
Litigation – Is there a right to associate for the purposes of political litigation i.
NAACP v. Button (1963) – Invalidated Virginia statute against third party w/o an interest in the litigation bankrolling cases as applied to the NAACP’s activities
1.
NAACP finds individuals w/ the right facts and encourages them to bring the case, by paying for an attorney – VA law enacted to stop this practice
2.
Brennan (majority) recognizes implied right of association under 1st Amend a.
Law is vague and overbroad, selectively enforced to oppress
3.
Harlan (dissent) organizational lawyer necessarily has divided interests between goals of organization and the individual

a.
No finding that NAACP used individuals to promote interests while taking advantage of clients, but technique definitely used by Jehovah’s b.
Offers for huge settlement for the case to go away presents conflict
4.
Nature of the right that Supreme Court recognizes a.
Violation in selective enforcement? b.
Litigation as type of speech? ii.
In Re Primus (1978) – ACLU allowed to protect sterilized women, invalidates law stopping organization from seeking cases, recommending suit, and taking suit as applied
1.
Ohralik (1978) law not invalid as applied to a personal injury lawyer a.
Ohralik would have less of a conflict of interest than Primus b.
Giving this right would essentially recreate Lockner
2.
Court seems to be saying that NAACP and ACLU are expressive organizations a.
Purpose of being is to effect change through litigation as speech i.
Accepted and protected means of political expression f.
Association – Is there a right of association in first amendment which allows groups to exclude people? If so what is the relationship between this right and discrimination law? i.
Roberts v. Jaycees (1984) – Upholds MN law punishing Jaycees for restricting voting membership to 18-35 yr old men as not restricting right to association
1.
Jaycees argue a right to promote their message, but court finds that “right is not absolute” and that MN law meets strict scrutiny
2.
Court finds no significant impact on Jaycees message, if significantly impacted the court would come out the other way
3.
Not just a subordination of liberty to equality – there must be an interest of the group that is completely lost by admitting the person in question ii.
Boy Scouts of America v. Dale (2000) – Upholds the removal of former GLB president from the boy scouts against public accommodation challenge
1.
Rehnquist (majority finds that forcible inclusion would have destructive effect on message of organization iii.
Squaring Roberts and Boy Scouts – Looking at groups objectively, Jaycees arguably more inherently all male than Boy Scouts inherently all straight – how do we square
1.
Possible distinction is evidentiary – Jaycees didn’t prove inherent message
2.
Possibly more protection and higher scrutiny for sexism than sexual orientation a.
This is doctrinal difference in equal protection law
3.
Possibly the impact of the role of protecting children from pernicious influences a.
Expressive part of parents message b.
OR discriminatory fear that people may turn their children gay
4.
Different level of forced subversion: Possibly difference in that Jaycees not sending “we hate women” but Boy Scouts are sending “we hate gays” message
5.
Possible legal difference in the level of deference to the message iv.
Epstein suggests that if you need to join group in order to get ahead, there should be equal protection for membership, but if not govt. can’t tell us who our friends are v.
Title VII is not UC as restricting the first Amendment b/c it protects employment which is about economics, everyone should have access to employment b/c of great importance g.
Compelled Speech (the right not to speak) – Is there a right not to have the govt. force you to speak or appear to endorse particular beliefs? i.
Pruneyard v. Robbins (1980) – Invalidates private shopping center’s prohibition against distributing leaflets
1.
Under 1st Amendment law there is a right to exclude in trespass over the right to speak, but CA constitution gives greater first amendment interest a.
If Pruneyard has fed. 1st amendment claim they win under supremacy i.
They argue they have interest in not being compelled to associate with the leaflet message
2.
Rehnquist (majority) finds that public would not associate message w/ center b/c it is a public place a.
Not compulsion b/c state law is content neutral b.
Not compulsion b/c there is opportunity for counter-speech

ii.
WV Bd of Ed v. Barnette (1943) – Invalidates mandatory flag salute b/c state cannot dictate/ mandate an ideological view iii.
Wooley v. NH (1977)- Invalidates punishment for covering “Live Free or Die” b/c state cannot force people to speak this indoctrination iv.
Squaring Pruneyard w/ Barnette and Wooley: Either Pruneyard is not compelled speech or public accommodation makes it different
1.
In Pruneyard there is no forced message or proscribed content and the center can engage in counterspeech
2.
In Barnette and Wooley there is forced speech by participation in indoctrinated message
3.
Rehnquist finds available counterspeech in Wooley which shows that counterspeech cannot carry the day on its own v.
Today the law allows a motto or pledge, but it must provide an opt out possibility, it cannot mandate over an objection h.
Freedom of the Press i.
Does the press occupy a preferred place in first amend? Should it get special protection or are there protective rules for the press?
1.
Bartnicki gives deference to the press about what is newsworthy
2.
NY Times v. Sullivan – press as a defendant matters; Black’s opinion rests on the theory that press has the role to inform a.
While press being involved help drive the outcome, rules created b/c of press are couched in press neutral terms
3.
Justice Stewart: Press should be given special protection as additional check a.
While arguments for protection apply w/ greater force to press, there is no reason to give press more protection than the lowly pamphleteer i.
Press not distinguished b/c of need for right b.
Definitional problem if press has more rights – who is press i.
All or nothing results in broad protection for everyone
4.
BLACK LETTER: Burger in Richmond Newspapers a.
If goal is to promote open discussion then it should be applied broadly
5.
Press separate in constitution b/c it was meant to cover spoken and written word a.
Historical difference between slander and libel ii.
Is there a first amendment right to gather news or are there special applications of law
1.
Branzburg v. Hayes (1972) – Reporter does not have constitutional right to refuse to testify before grand jury in order to protect confidential sources a.
Govt interest in needs of criminal justice outweigh interest of press b.
Remedies are available to stop govt. use of press i.
Press can argue that identity of source is irrelevant (quash) ii.
Protections if reporter is being singled out by grand jury
2.
Underlying Principle - For laws of general applicability the press gets NO special treatment a.
While we carve out special protections for attorney-client, parent-child, etc. press-source relationship does not have this level of importance
3.
Line drawing problem w/ who is the press: Can draw no line or arbitrary line a.
Must choose either everyone or no one is the press b.
In this case the no line option of providing protection would result in courts not getting any information
4.
Majority says there is no deterrent, but dissent gets better end of this argument
5.
What protections for the press if not given special laws a.
Broader social norms about censorship and free press supply the press with power of becoming a martyr b.
States pass testimonial privilege laws protecting confidential sources i.
Doesn’t work for federal case b/c of supremacy clause c.
Protect source by saying source is in danger d.
Powell (swing vote) says Branzburg is qualified decision and balancing should be done on a case by case basis

6.
Food Lion – 60 minutes infiltrates supermarket a.
Where press commits tort in search for news, no liability protection b.
Where damages increased or punitives added for publication, protection
7.
Cohen v. Cowles Media – Cohen promised dirt so long as identity protected a.
No 1st Amendment bar to promissory estoppel claim even where liability consisted of printing truthful and newsworthy story b.
Case good for press b/c it gives sources confidence to give story
8.
Pell and Hutchins a.
No special right to receive information not generally available to public iii.
Laws that engage in differential treatment of the press
1.
These laws generally are UC, deep and abiding scrutingy from the court
2.
Minneapolis Star (1983) - MN sales tax on ink and paper invalidated b/c it singled out the press for more taxes – UC b/c against the press iv.
Regulating the press to improve the marketplace of ideas
1.
Miami Herald (1974) – Invalidated law that forcing newspaper to give space to those it criticized b/c it penalized criticism by forcing use of space and $
2.
Red Lion (1969) – Upheld FCC requirement of providing time for both sides b/c scarcity of broadcast spectrum means govt. has greater hand in regulating a.
This is why FCC can fine for Janet Jackson or Howard Stern b.
Still good law, but very controversial
3.
Turner Broadcast case – Court reverted to Miami Herald b/c no scarcity of broadcast spectrum for cable
4.
ACLU v. Reno – Content regulation of internet analogized to newspaper brining in the tradition of Miami Herald