Speech and Press—Richards
Fall 2006
I.
The History and Philosophy of Free Expression a.
The History of Free Expression i.
English Background
1.
Licensing: Press was required to have the crown’s permission to run a printing press—they wanted to control what was distributed
2.
Constructive Treason: “Imagine the death of the king”—all you needed was the idea of committing treason and you could be punished
3.
Seditious Libel: Criminally punishes speeches or printing that brings government into disrepute a.
We want people to have faith in their government; in England could be punished even if the statement was true b.
Only one relevant in America ii.
Prior Restraint
1.
Blackwell said that the only things that were banned were orders or injunctions barring people from speaking—a gag order
2.
Can’t stop them from saying something, but can punish them after they say it iii.
Colonial Rules
1.
1 st Amendment
: “Congress shall make no law abridging the freedom of speech or press” a.
“Congress” has been expanded to include the entire federal government as well as states b.
“No law” has been abridged many times, though some absolutists argue that it truly means no law c.
“Of speech or of the press” means more than just oral and printed press; also means movies, video games, sports, flag burning
2.
Courts hold that 1) truth is a defense to libel ( Zenger ) and 2) no prior restraint allowed
3.
Otherwise it was quite unclear what the drafters of the 1 st
Amendment meant by freedom of speech iv.
Not many Free Speech Originalists exist—we do not want to live in a world with severe limits on what can be said b.
The Philosophy of Free Expression—Main Theories i.
The Search for Truth: Marketplace of Ideas *
1.
J.S. Mill; Holmes in Abrams –truth sold for highest price, falsehoods left to rot
2.
Original theory used by the Supreme Court—argues that there is a tangible truth and that it is key to a free society
3.
To find this truth, we need to allow all perspectives and eventually the truth will emerge—otherwise might ban truth
4.
“Marketplace of ideas”—ideas, both true and false, are like goods in marketplace—people debate them and eventually the truth is purchased
5.
Criticism a.
There might be things more important than the truth (comfort, material things, safety)
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b.
Truth might not capture all speech we want to protect—we also want things like art, literature, beauty c.
Truth is not absolute; who is to say there is only one truth d.
Marketplaces often need regulation to operate properly (just like in economy)—market failures happen ii.
Self-governance
1.
Free speech allows us to better govern ourselves—Brandeis
2.
Meikeljohn : Self governing citizens need to decide what sort of rules will govern society and to do that they need to discuss all options and ideas (town hall style—focuses on outcome of group debate) a.
People must have intelligence and sensitivity to understand what they are voting for and why b.
Criticisms: i.
Punishing bad speech isn’t necessarily bad in this model as long as we come to the correct conclusion ii.
Bork: Non-political speech should not be protected by 1 st
(should be regulated by society and representatives) iii.
Too confining, No point in only looking at politics alone—free speech affects every life decision so we should allow all of it
3.
Post : Speech is valuable because we are individual people and we define our own autonomy by speaking and debating in a democratic process
(focuses on individual speakers) a.
Criticism: Both can be seen as too narrow—much speech has to do with things other than self-government iii.
Self-fulfillment
1.
Cares more about the development of mature, autonomous people; enhances the spirit a.
Only by being exposed to all speech can we reach this state
2.
Criticism a.
Far too broad (Bork): It could include anything and there are some things that should not be allowable and are not necessary— not all speech of same weight b.
People can derive pleasure from many things—should we also allow those?
iv.
Checking Value
1.
Checks abuse of government power—a restraint against overbearing government—people can discuss problems and limits v.
Safety Valve
1.
Free speech leads to social stability—change the mind of the majority without violence a.
Better to fight with words than guns vi.
Tolerance
1.
Free speech carves out law for self-restraint
2.
Makes us tolerant of opposing viewpoints, so we can get along better and interact better
II.
Content-Based Restrictions: Dangerous Ideas and Information a.
Expression that Induces Unlawful Conduct i.
Incitement
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1.
Speech intended to persuade people to do something unlawful—cause people to do something unlawful ii.
Levels of Incitement
1.
Speech criticizing government—discussing issues of the day a.
“It is a pain to get screened at the airport” b.
Schenk
2.
Speech to persuade audience that law breaking may be necessary at some point to achieve political goal a.
Civil disobedience—MLK, Dec. of Independence
3.
Speech advocating violence at some point in the future a.
Gitlow calling for violence, but not saying it will happen imminently
4.
Speech advocating violence RIGHT NOW a.
Abrams —he is calling for a general strike imminently iii.
Espionage Act Cases
1.
The ability to say bad things about the government should be at the core of what we are as a democratic people
2.
Espionage Act of 1917 came after entry into WWI a.
The entry was controversial with many people (Germans, anarchists, socialists), so Congress attempted to silent dissent b.
The Act prohibited willfully obstructing the recruitment or enlistment service
3.
Schaffer v. U.S. (1919) a.
A publisher mailed a “treasonable, disloyal” book b.
Supreme Court upheld the Act using the Bad Tendency Test i.
There was no specific intent to harm recruitment here, but the book could (had the tendency to) harm the effort iv.
Does the 1 st Amendment allow incitement?
1.
Blackstone: No prior restraints a.
The Sedition Act doesn’t prevent people from speaking, but if they do speak then they can be punished
2.
Bad Tendency Test : Legislation can prevent substantive evil, so it can also punish speech that might have the tendency to cause that substantive evil a.
Any likelihood, no matter how remote, is enough to bring a ban on that speech—universal feeling in the 18 th
Century
3.
Masses Publishing v. Patten (1917) a.
Judge Hand looks at tradition of American people and decides that speech is illegal if it expressly advocates a violation of the law b.
Judge Hand draws a line between Mere Advocacy of Ideas and
Express Incitement
—absolute protection of advocacy (attempt at per se rule) i.
You can say the draft is stupid—generalized advocacy of an idea ii.
You cannot say: “Let’s do something to prevent the draft”—express incitement c.
Focuses on content rather than intent of speaker d.
Criticism:
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i.
Overprotective of clever speech: A clever person can incite without express incitement—can they avoid punishment simply by not outright mentioning the evil act?
4.
Schenck v. U.S
(1919) a.
A leaflet argued that the draft was wrong and asserts opinion about why people should assert their rights not to be conscripted i.
Court convicts defendants for violated the Act b.
Holmes says there is a clear and present danger— question of
“proximity and degree”—look at circumstances (war time) to see if what is said is a violation (factual test) i.
Kind of like Bad Tendency—advocacy can have the likelihood of causing incitement, but supposed to be more protective of speech c.
Under Bad Tendency i.
Clearly illegal because it had the tendency of bringing the draft into disrepute d.
Under Masses i.
Probably not incitement—mere advocacy not encouraging a specific action
5.
Abrams v. U.S. (1919) a.
Literature protesting U.S. intervention in Russia—called for general strike b.
Supreme Court uphold the conviction—there is an explicit call for action—direct incitement (Illegal under Blackstone, bad tendency and Masses ) c.
Holmes dissent i.
There was no clear and imminent danger—published by an unknown man and was too radical—no one would be hurt by it ii.
Highly protective of speech iii.
Two criteria for Holmes Clear and Present Danger test:
1.
Present danger of immediate evil
2.
Specific intent to create danger iv.
Holmes: marketplace of ideas—good ideas will compete with bad ideas in the marketplace—search for the truth is a guiding star d.
Rationales for clear and present danger: i.
Balances competing speech and societal interests—speech is important so should only be restricted in emergency ii.
Marks off a broad area of protected expression (doesn’t prohibit “every political agitation” as Hand feared iii.
Reduce the risk to the government will prohibit speech its doesn’t like under the guise of danger v.
Holmes and Brandeis
1.
Gitlow v. New York (1925)
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a.
Gitlow printed a manifesto that sought the “overturning of the government by force,” but there was no evidence that this happened i.
Speech may be more dangerous than before—not just saying war is bad, but advocating actual violence b.
Using the Bad Tendency Test the court upheld his conviction-claimed it was a threat to the general welfare and had a tendency to cause violence that a state properly restricted c.
The dissent (Holmes) said there was no clear and present danger because there was no immediate threat that enough people would read this piece and try to overthrow the government i.
“
Every idea is an incitement
” and will be acted upon if it is believed, but you cannot prohibit all ideas ii.
Danger must be obvious and actually likely—it must be
“present”—happening RIGHT NOW
2.
Whitney v. California (1927) a.
Whitney was a member of the Socialist Party and remained a member even after the group advocated overthrowing the government by force, though she did not support it b.
The court upheld the conviction because the legislature’s decision should be given great weight when public safety is at issue c.
Concurrence (Brandies) says speech can only be restricted if it would produce a “
Clear and Present Danger
”—danger at a particular time and in particular circumstances i.
A “reasonable ground to fear that serious evil will result is speech is made”—serious and imminent ii.
Clear=serious; Present=Imminent d.
Contributions to free speech theory i.
*Rationale for free expression—self-governance
1.
American people are self-governing and free speech is critical to deliberation that selfgovernment requires ii.
Counter Speech
1.
Remedy for bad ideas is more speech so good ideas will win out iii.
Deference
1.
Court should not defer to state legislation restricting free speech (restrictions on free speech like restrictions on property rights—anti-Locner) e.
Holmes and Brandeis saying that Clear and Present Danger was the test even though it hadn’t been upheld to this point vi.
Bifurcated Review Project : Different level of review for economic regulations and freedom of speech; First Amendment as a Preferential Right (“preferred position”)
1.
Lochner era (1870-1937): Deference to police power and legislature,
Court doesn’t has as much faith in unregulated American capitalism— laissez faire capitalism no longer accepted a.
Court does begin closer scrutiny of restrictions on speech; more protection of it
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2.
Caroline Products fn. 4—Court needs to protect “discrete and insular minorities”; their ideas and speech a.
Economic regulations will receive rational basis review, but will be more hands on when it reviews 1 st Amendment b.
End of Lochner -era deference on economics
3.
Democratic theory—economic freedom is bad for democracy because it leads to greater economic disparity, but free speech enables selfgovernment so free speech more important than economic freedom
4.
Between Whitney and 1937, speech become more protected—the S.Ct. begins to recognize importance of free speech a.
Stromberg v. California (1931)—first case strike down conviction under 1 st
Amendment
5.
1st Amendment has a Preferred position in the pantheon of rights vii.
Dennis v. U.S. (1951)
1.
Member of Communist Party of the US and they are going to create a national organization to teach communism and hopefully overthrow the government eventually
2.
The court upholds the conviction, because there was threat of overthrow, even though no imminent danger a.
Court adopts watered-down Clear and Present Danger Test standard for incitement cases (applies to Category III and IV;
Categories I and II—mere discussion of ideas—is protected) b.
No need to wait for the action—it may be out of control by the time you try to stop it
3.
Look to the gravity discounted by its improbability (Evil-
Probability)—if it is greater than the intrusion on free speech than it can be prevented a.
If risk (harm) is great enough, probability doesn’t matter (the slightest likelihood should be sufficient to prohibit) b.
No imminence required c.
Probability gives Congress much more deference
4.
Dissent: Merely teaching ideas we did not like, they were not going to act yet (not imminent at all) a.
Forsaking the marketplace of ideas—what will defeat
Communism is more speech (similar to Brandeis in Whitney ) viii.
Brandenburg v. Ohio
1.
Leader of the KKK gave speech saying that they would rise up if gov’t continued to suppress white people
2.
Court overturns conviction—mere advocacy isn’t enough to convict
( Whitney rejected) a.
Must prove imminent incitement—lawless action would happen immediately b.
Clear and present dead—that would have allowed prosecutions for loud and silly threats that may have been imminent, but not probable i.
Test was too malleable
3.
Incitement Test a.
Express advocacy of (as opposed to mere discussion of) i.
Must be intentional—good satire is protected
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b.
Immediate lawlessness c.
Likely to produce or incite such action (the person calling for it is not a lunatic or one man army) d.
Only Type IV speech (imminent danger/express advocacy of a crime) is punishable
4.
Seriousness falls out of discussion, but because speech is more protected it seems likely that threat must be relatively serious ix.
Modern Subversive Advocacy
1.
“Clear and Present Danger” eventually fails because didn’t protect people like it had been intended—far too malleable a.
The substance is still essentially the same in Brandenburg though
2.
Civil liability—cannot be sued just because you showed an illegal or dangerous action—were not intending to advocate them a.
Bad tendency might be a way to judge intent—if something you do has the tendency to make someone act then it is illegal b.
Speech that “Threatens” (“Do this or else”) i.
Bridges v. California (1941)
1.
A union leader will shut down work and tie up port if he is found guilty
2.
The convictions are overturned because there is no imminent threat
3.
Clear and present danger to judicial system—if the evil is extremely serious and degree of imminence is extremely high —high standard a.
Problem of hyperbole (“I’ll kill him”)—don’t necessarily mean it literally (not likely or imminent; neither clear nor present)
4.
Test a.
An individual intends to communicate a serious expression of a threat , b.
to commit an unlawful act of violence c.
to a particular group of individuals
5.
True threats are unprotected by 1 st
Amendment—must be scrutinized ii.
Threats occur when speaker threatens to do something, unless the listener does something against their will— in incitement they are just persuaded to do something c.
Provocation of a Hostile Audience Reaction (Someone will want to attack you) i.
Cantwell v. Connecticut (1940)
1.
Jehovah’s Witnesses used phonograph to play record of religious screeds for people who agreed to listen—sell literature to those who like it; they were polite and would stop bother people if asked to a.
Convicted of soliciting money for religious purpose without a permit and breach of peace
2.
Court overturns conviction— no clear and present danger to public order freedom ; legislature shouldn’t be allowed to arbitrarily license speech (much like prior restraint) a.
There was no danger or noise problem b.
The prosecution was Overbroad
; can’t limit speech just because someone might get upset—no prior restraint c.
Just because something is annoying doesn’t mean you have to listen to it
3.
Should be able to disagree with each other up to the point of public disorder—these people didn’t force people to listen or threaten violence
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4.
Early case of Bifurcated Review Project ii.
Feiner v. New York (1951)
1.
He criticizes crowd and gets it riled up; refuses police request that he stop and is arrested
2.
His conviction is upheld, but unclear under what theory—provocation, clear and present danger or insulting police officer
3.
Should the police try to protect the speaker by controlling the crowd or by quieting the speaker? a.
Perhaps an audience is being unreasonably rowdy—is it appropriate to quiet speaker?
iii.
Provocation —speaker is saying nasty things and the audience reacts because of it
1.
Clear and present danger modified by Brandenburg a.
Clear and present danger that immediate threat to public safety d.
Fighting Words i.
Chaplinsky v. New Hampshire (1942)
1.
Jehovah’s Witness speaking out against organized religion and audience is getting upset; police ask him to leave; he calls officer “fascist agent” and “god damned racketeer”
2.
The Court upholds the conviction because it properly excludes fighting words from protection of 1 st Amendment a.
Fighting words : words that by their very utterance inflict injury or cause an immediate breach of the peace ; words that would cause ordinary person to fight b.
Men of common intelligence know what they are; may change with time, place and manner (men no longer as likely to fight and terms have changed—norms of masculinity have changed) c.
These words have low social value—don’t bring anything to the search for truth; intended to inflict harm—balancing value vs. costs (value to discourse vs. injury or danger)
3.
Never overruled—still good law, but never used to uphold conviction a.
Test: Words that men of common intelligence would understand to be words likely to cause an average addressee to fight ii.
Terminiello v. Chicago (1949)
1.
Man giving speech and protestors outside getting upset, so he called them names to rile them up more
2.
Court says there was no clear and present danger of violence—if no immediate threat, then speech is protected by 1 st Amend.
3.
Provides easy test to determine if speech is merely annoying or dangerous iii.
Skokie (1977)
1.
Klansman marching and saying hateful things and wanting to march in parade
2.
Expression of hate is protected by 1 st
Amendment; cannot suppress because of the reaction of the audience iv.
Fighting words are unprotected because they are a true threat
1.
A serious intent to cause violence to an individual or group
2.
Low value speech e.
Gov’t Restriction on Disclosure of Confidential, Secret or Private Information
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i.
The 1 st Amendment says nothing about the gov’ts ability to keep truthful information secret ii.
The gov’t has two potential remedies to keep secrets under wraps
1.
Forbid by injunction (prior restraint) a.
Strong presumption against prior restraint
2.
Punish by damages or imprisonment (subsequent punishment) iii.
Confidential information can arise in many contexts
1.
National Security (Pentagon Papers) a.
NY Times v. U.S.; U.S. v. Washington Post (1971) i.
Documents re: Vietnam leaded to papers—classified but useful information to voters ii.
The Court said gov’t did not meet its burden to justify prior restraint (did not show national threat)
1.
Prior restraints presumptively unconstitutional, so hard to overcome iii.
Gov’t argued sufficient national security issue, but it was historical information and probably not real threat iv.
We cannot gag press; but criminal code allows to punish after they publish info re: national defense; probably punish leaker too v.
Need to balance need for security vs. public scrutiny
2.
Personal Privacy a.
Bartnicki v. Vopper (2001) i.
Radio station received a recorded conversation from anonymous source (no conspiracy) and the information is true and newsworthy ( matter of public concern ) ii.
Protected by 1 st
Amendment; though conviction possible for the leaker who made tape b.
Florida Star v. B.J.F.
(1989) i.
Newspaper published name of sexual assault victim obtained from publicly released police report ii.
Court overruled statute declaring saying you can’t punish for this because it was “ truthful
” and “ lawfully obtained
” c.
Cox Broadcasting v. Cohn (1975) i.
Woman raped and her name is used in the press, lawfully obtained
1.
If it was obtained lawfully, true and newsworthy , it can be published
3.
Judicial Secrets a.
Landmark v. Virginia (1978) i.
A judge was under ethical investigation and paper published true information about investigation ii.
The court overruled and saying state law was unconstitutional iii.
Court balances the need for confidentiality against value of suppressed speech (public concern)
1.
Confidentiality important here, but people need to know
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2.
No reason to hide court’s corruption iv.
If courts do not want information to leak, they need to be more careful with it (don’t be lazy) v.
Newspapers can print if lawfully obtained, truthful and newsworthy b.
Nebraska Press v. Stuart (1976) i.
Paper wants to publish confession made by accused murderer; court imposed injunction against publishing ii.
Court invalidates gag order; says there were less intrusive means to achieve interest without restricting speech
(change of venue, proper questioning of jurors, etc.) iii.
Interests
1.
1 st
Amendment right to publish information about crimes
2.
Defendant shouldn’t face prejudiced jury
3.
Two important rights at odds
4.
Dangerous technical information a.
The Progressive Controversy (1979) i.
The magazine published article about how to build an Hbomb using information that was publicly available ii.
A district court convicted saying there was no public need to know about building a bomb for the public debate— case dismissed before it went further
III.
Facial Challenges: Overbreadth, Vagueness and Prior Restraint a.
Prior Restraint (license and injunction) i.
This is about how speech is regulated rather than why ii.
Classic prior restraints are licensing systems (without license you can’t print or speak)
1.
Pre-approval of government censor was required to publish
2.
Blackstone (80 years after ban of licensing)—common law freedom of press is freedom from prior restraints iii.
Once something is called a prior restraint, it is immediately overturned iv.
Lovell v. Griffin (1938)
1.
Jehovah’s Witness handing out flyer without getting license and that is prohibited
2.
Court says the statute is invalid on its face a.
Freedom of press prevents this type of licensing—you should not be forced to get permission to speak b.
Licensing arrangement may become restriction on content of speech c.
If someone not allowed to speak, the information will never be allowed out i.
We want all information and ideas so we can govern ourselves effectively; don’t want truth suppressed (get ideas into the market) d.
Lack of standards—censor isn’t guided in what they are to ban— no clear guidance i.
Over-censorship —a zealous censor will be enthusiastic and might lead to too much speech being banned
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ii.
No procedural protection —there is no simple appeal if censor says no v.
Licensing as Prior Restraint
1.
Licensing scheme is only allowed if you have two things: a.
Clear standards to qualify for license b.
Procedural safeguards to protect speakers vi.
Near v. Minnesota (1931)
1.
County sought an injunction against a newspaper which had written things about police chief—statute said no malicious or scandalous printing—truth is a defense
2.
The Court said you can punish a paper if they print something wrong
(libel), but you can’t have prior restraint and prevent ideas getting out
3.
Dissent argues prior restraint better because injunctions require court actions, which means the case will have appeals and legal safeguards a.
Lack of standards and procedural protection b.
Over-censorship goes away because injunction is less comprehensive
4.
Ideas are important and dissemination of them critical—let it out because it is better than no speech a.
If the idea gets out and it is bad, we punish the speaker for hurting the listener; don’t stop the speaker first vii.
Injunction as Prior Restraint
1.
You can place such prior restraints when national security is at stake
( national security exemption )
2.
They can be allowed for an overwhelming gov’t interest viii.
What is wrong with an injunction?
1.
Procedural protections (appeal, court hearing)
2.
Speech gets out and is tested b.
Overbreadth and Vagueness i.
Gooding v. Wilson (1972)
1.
Antiwar protestor said “You son of a bitch, I’ll choke you to death” and
“White son of a bitch, I’ll kill you” while being removed by police— convicted under GA statute punishing “any person who shall use…opprobrious (outrageous, disgraceful) words…tending to cause a breach of the peace”
2.
Court overturned verdict because statute was overbroad
—people may refrain from exercising their speech rights for fear of criminal prosecution ( chilling effect ) a.
States must narrowly draw statutes to punish only unprotected speech (fighting words, etc.); courts did not have proper guidance to limit breadth b.
Can’t regulate ALL abusive language
3.
His conduct could be punished under fighting words doctrine, but gets off due to sloppy drafting—statute could cover words that are protected
4.
States need to define fighting words (which would require them to be written in a book by gov’t) ii.
Overbreadth
1.
Overbreadth tests the constitutionality of a statute categoriacally; it potential application
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2.
If a statute could possibly prohibit protected speech, it is overbroad a.
Might have a chilling effect and others would be fearful of using even protected speech i.
Protected speech might be discouraged b.
Even if the statute properly punishes a person, that defendant can challenge the part of the statute that is overbroad and have entire statute thrown out i.
Exception to the standing requirement—challenge something that does not effect you; allowed to assert the rights of others c.
No need to look at facts of the specific case (case-by-case review); statute itself will be invalid on its face i.
Ignores case and controversy clause d.
Super protective of 1 st Amendment—lets courts weed out constitutional defects—Big Benefit i.
Can invalidate entire provision rather than single conviction
3.
It protects against overzealous legislatures who engage in sloppy writing
4.
Harms a.
Guilty people go free ( Gooding ) despite committing a crime that could be properly punished i.
Courts interfere with state interest by allowing violators of legitimate state interests go free b.
Court can be very activist and shoot down statutes on an issue not even in the case c.
Courts are allowed to decide based on hypothetical scenario d.
Court can avoid complicated questions (Ex. should we have fighting words doctrine still) e.
Gives legislature no guidance about how they can cure defects in legislations
5.
Broadrick v. Oklahoma (1973) a.
Overbreadth must be “ substantial
”—not enough to imagine an obscure and virtually impossible hypothetical i.
The term substantial is vague; how do you implement?
**Must discuss in any overbreadth analysis ii.
Show a significant likelihood of deterring important 1 st
Amendment interests iii.
Vagueness
1.
A law is void on its face if it is so vague that persons of “ common intelligence must necessarily guess at its meaning
”
2.
We have the presumption that ignorance of the law is no excuse, but if no one can understand a law than it is unenforceable a.
If you are not sure what will be punished you might not do/say anything— chilling effect
3.
Invalidating statutes because they are vague ensures that legislatures will carefully scrutinize the language of statutes they pass iv.
Substantial overlap between overbreadth and vagueness
1.
An overbroad statute that is also vague could extend the possibilities of prosecutions of speech covered by 1 st
Amendment
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a.
No one knows what is prohibited exactly
IV.
Content-Based Restriction of “Low-Value” Speech a.
This is speech the government can regulate b.
Several types listed in Chaplinsky dicta (Pg. 139) c.
Defamation (False Statement of Fact) i.
Opinions are always protected because they rely on public debate to be proven incorrect—judges shouldn’t decide if opinion is true ii.
Modern tort law—slander (spoken) and libel (written); false statement of fact about another person
1.
Seditious libel was criminal, this is merely civil
2.
Central goal is protection of reputations that would be harmed by false statements iii.
Very hard to win libel suit as a plaintiff in US
1.
Need to figure out if public or private individual
2.
What sort of media is displaying message iv.
New York Times v. Sullivan
1.
NYT publishes ad written by blacks detailing police abuses that had minor errors; Police chief sued claiming his reputation was defamed because it was implied that he was at fault a.
Lower court convicts because of libel per se (it was false and there is no excuse)
2.
Court overrules and holds that state cannot award damages brought by public officials against their critics of official conduct , even if false, unless actual malice –both civil and criminal punishments deter public debate a.
Debate of public issues should not be inhibited, even if caustic
(just because it is effective doesn’t make it illegal) b.
Erroneous statements are inevitable in debate; people and press cannot be forced to prove all allegations—would self-censor
( chilling effect ) c.
Actual malice=Knowingly False; Reckless regard for truth must be proven with
“convincing clarity” —demonstrate they had a specific mental state when making error d.
“
The debate on public issues should be uninhibited, robust and wide open
…may well include vehement, caustic and sometimes unpleasantly sharp attacks
”
3.
Concurrence thinks “malice” too vague and press should have absolute immunity
4.
First time Court limits ability of states to impose damages for libel; allows a truth defense
5.
Definitional Balancing v. Ad-Hoc Balancing a.
Court balances the cost and benefit of ALL libel cases
(definitional), not just specific cases (Ad-hoc) b.
Definitional involves entire universe; entire category of low value speech and determine the line of when it is no longer protected
6.
Does the court get it right?
a.
Overprotective of false speech i.
Self-censorship would prevent falsities from entering marketplace—will improve quality of debate
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ii.
Malice is basically impossible to prove—some chilling would be good iii.
Worthy politicians may be reluctant to run for office if they fear false statements iv.
Overvalue reputation b.
Under protective?
i.
There should be an absolute right to speak
1.
Any ability to curb speech has chilling effect ii.
Doesn’t lower the costs of defending libel claims
1.
Free for public official to sue
2.
Threat of suit is enough to keep people quiet iii.
People will still sue if a chance for big award v.
Public Figure Defamation
1.
Same test applies to public “figures”-no difference between public official and public figure
2.
Curtis Publishing v. Butts (1967) a.
Non-politician, public figure accused of fixing a football game b.
Supreme Court extends actual malice standard to other public figures not a public official i.
Significant to the public, but not central to liberty or democracy
3.
Associated Press v. Walker (1967) a.
Walker accused of leading riot at Univ. of MS after desegregation—prominent man; given the same actual malice standard vi.
Who is a public figure ?
1.
All-purpose public figure— general fame or notoriety a.
Ex-presidents, Bill Gates, Wayne Newton
2.
Limited public figures— public in certain aspects of life a.
Only public in context of controversy/situation that makes them a public figure and nothing else b.
Monica Lewinsky
3.
“Minor” official is given more protection—distinction not that helpful d.
Defamation of Private Figures i.
Gertz v. Robert Welch (1974)
1.
John Birch Society published article about Gertz claiming he was architect of frame up of a man Gertz was suing—JBS claims he was a public figure, so no harm
2.
No such thing as a false idea, only false facts
3.
Gertz not a public figure (did not ask for public attention or public official) a.
States can apply any standard greater than strict scrutiny to private citizen libel—can be as great as actual malice if they want)— must prove some fault , but actual malice required for punitive damage
4.
Dissent argues that there is no reason to limit libel laws—it should be very liberal with private individuals who have not invited scrutiny; papers can afford to pay damages, victims should not bear risk ii.
Private Figures
14

1.
Public figures can rebut or combat false statements—they have access to the channel of communication a.
They can correct damage to good name w/o using courts
2.
Public figures assume the risk of defamation because of chosen career—they are in the public eye and asked to be scrutinized a.
Gertz had not thurst himself into the public eye iii.
Private Figure, private communication (not news broadcast)
1.
Dun & Bradstreet v. Greenmoss Builders (1985) a.
Private figures defamed on matters of private concern need not show actual malice for punitive or compensatory damages b.
Line drawing problem between public and private speech
2.
Hustler Magazine v. Falwell (1988) a.
Hustler published a very cruel mockup about Jerry Falwell and he sued for intentional infliction of emotional distress (don’t need to prove actual malice) i.
It is a parody and Court holds that satire/political cartoons are meant to challenge and critique—protected speech; they are important speech ii.
No one would believe that it is actually true iv.
Defamation questions to ask:
1.
Is it a public or private individual ?
2.
If it is a private citizen, is it a matter of public concern ?
3.
What type of damages are requested?
e.
Commercial Speech i.
Commercial advertising is the main thrust—how much protection should advertisements get? ii.
Valentine v. Christensen (1942)
1.
Man bought submarine and sold tickets for viewings; printed handbill advertisements and the other side was a protest against a gov’t action
2.
Court says that Constitution imposes no restraint on gov’t regulation of purely commercial speech a.
Does not add anything to the marketplace of ideas b.
Four years after Caroline Products said court won’t protect economic interests (postLochner interpretation) iii.
Virginia State Board of Pharmacy v. Virginia Citizen Consumer (1976)
1.
The state banned advertisements promoting the sale and price of prescription drugs a.
State interest—don’t want consumers to choose purely by price, want to determine based on good service, etc.
b.
Consumers wanted prices available because prices varied widely
2.
Court said this violated Constitution a.
People have a right to get information—access to information to make informed decisions ( Right to listen , more than right to speak) b.
Commerical speech protected unless false or misleader
3.
“ Free flow of commercial information” to sustain efficient market a.
*Consumer’s interest in free flow of information is critical and perhaps more important than his interest in the political debate b.
Not a marketplace of ideas and search for truth
15

i.
In the aggregate these decisions are important to democracy ii.
Dissent argues no need to protect capitalism—that is not required by the Constitution—majority tries to write laissez-faire policy into document (majority supports
Lochner )—no protection of economic rights
4.
Truthful, Nondeceptive commercial advertising after Virginia a.
Commercial speech not given the same protection as other areas; i.
False advertising
—strict liability okay ii.
Misleading advertising
—Same as false iii.
Advertising unlawful products
1.
If you can outlaw activity, you can ban promotion of it b.
Not worried about chilling effect —companies have economic incentive to publish information even if they might be liable
(profit motive makes commercial speech hardier) i.
Also not as many opinions so information is more verifiable iv.
C entral Hudson Gas v. Public Service Commission (1980)
1.
NY Public Service regulates utilities and allows informational advertising, but none to stimulate electricity use
2.
Court strikes down ban a.
Commercial speech protected, just not as much as political speech b.
Test—intermediate scrutiny to determine if state can regulate i.
Is it protected commercial speech (proposes commercial transaction) and not false or misleading or involve illegal activity (otherwise it is never protected because it has no information value) ii.
If it is commercial speech protected by 1 substantial gov’t interest ?
st
, is there a
1.
In Central NY it was conservation iii.
Determine if speech directly advances substantial gov’t
interest
1.
There seems to be positive causal effect in this case iv.
Is there a substantially less restrictive way to accomplish this goal
1.
Tailoring inquiry—no more restrictive than necessary
2.
Here they didn’t think of exceptions to rule— perhaps ads could have promoted efficient energy use
3.
Truthful, Nondeceptive commercial advertising after C. Hudson a.
4-part intermediate scrutiny test; this case is always cited in commercial speech cases v.
Toward Strict Scrutiny (Gov’t must show compelling gov’t interest to restrict)
1.
Posadas de Puerto Rico v. Tourism Co. of Puerto Rico (1986)
16

a.
Puerto Rico allows gambling, but doesn’t allow gambling ads targeted at local residents; Court upholds i.
Premise that people are better off with less speech which is troubling b.
Tailoring inquiry makes sure the regulation is not more burdensome than is necessary is not censorship in disguise c.
Greater power/lesser power argument—They have the power to completely ban gambling, have lesser power to ban advertising
2.
44 Liquor Mart v. Rhode Island a.
Court invalidates NH statute that banned price and strength advertising for liquor—can’t prohibit truthful, nonmisleading information b.
Commercial speech is now protected and Central Hudson is accepted
3.
Lorillard Tobacco v. Reilly a.
Statute prohibits advertising certain tobacco products w/in 1000 ft of school or playground—basically prevent it everywhere b.
There is a gov’t interest and this would advance that interest, but it was not narrowly tailored enough i.
It will prevent children from seeing it, but also prevents adults who have legal right to smoke—regulation is overbroad ii.
It doesn’t make a distinction between signs of different sizes—blanket ban on certain type of advertising iii.
They use social science to determine “bad tendency” c.
Thomas: Speech cannot be suppressed simply to protect children from images or speech that the legislature thinks is unsuitable
4.
Thompson v. Western States Medical Center a.
FDA says that company doesn’t need to get FDA approval
(expensive) if they do not advertise they don’t advertise compound drugs b.
Struck down under tailoring prong-other ways to draw line between the types of drugs than preventing advertising
5.
Deeply divided court on these issues a.
Disagree about purposes of first amendment b.
Different views about the gov’ts role in economics f.
Obscenity i.
Along with fighting words, this is the most common things not to be protected by 1 st
Amendment
1.
Chaplinsky included obscenity (“Lewd and obscene”) as unprotected speech—it can inflict injury
2.
How do we define obscenity? (Definition question)
3.
What interests justify suppressing it? (suppression question) ii.
History
1.
Common law definition: If the purpose it to deprave and corrupt those whose minds are open to such immoral influences ( Regina v. Hicklin) iii.
Roth v. U.S. (1957)
1.
He mailed erotic material including bestiality
17

a.
Court holds that the state can regulate this distribution of literature because it is obscene
2.
Obscenity definition: “Where the average person applying contemporary community standards would find the dominant theme of the materials taken as a whole (not just a passage) appeals to the prurient interests
” a.
Primarily aimed at arousing sexual desire b.
Vague definition subject to individual juries
3.
It lacks social value (no place in marketplace of ideas)—not furthering debate, self-government
4.
Does not leave much room for literary or artistic expression a.
Why allow gov’t or “community standards” guide me
5.
Seems to be adding morals to the state police powers (health, safety, etc.)
6.
Dissent: No originalist support for obscenity suppression—gov’t shouldn’t determine value of something for people
7.
Meiklejohn: Need novels, drama, painting, etc. because people will be called on to vote and need that information iv.
Memoirs v. Mass
1.
Test a.
The dominant theme of the material taken as a whole appeals to the prurient interest b.
The material is patently offensive because affronts contemporary community standards c.
Utterly without redeeming social value v.
Stanley v. Georgia (1969)
1.
You are allowed to look at material in your own home (1 st
Amend. and right to privacy)
2.
Limited to facts and does not apply to commercial distribution vi.
Miller v. California (1973)
1.
Man sent erotic ads through the mail
2.
Court says that if a state wants to prohibit obscenity, there are minimum standards (from Memoir and Roth ) a.
Average person would find the piece taken as a whole appeals to the prurient interests i.
Turns you on b.
Does it depict or describe in patently offensive way sexual conduct i.
Grosses you out--Offensiveness ii.
Local standard c.
Does the work lack serious literary, artistic or political or scientific value? i.
Stricter test than Memoir
3.
Local community standards, as determined by jury, will determine a.
This leads to regional variation—different protection in different parts of the country b.
Recognizes morals vary locally c.
You have protection of appeal—objective national standard
4.
Courts have generally accepted a local standard for the Internet as well
18

5.
Hard to define the third prong of the test—is “serious value” the proper standard vii.
Paris Adult Theater I v. Slaton (1973)
1.
Advertising on the outside of a building; said adult material inside and no minors allowed—city ordinance did not allow adult movie theaters a.
Can they restrict showing the movie even though it is to consenting adults (no chance for non-consenting adults to see them)
2.
State says showing the movie hurts morals; owner says that adults have the right to see material (Should Stanley apply ?
) a.
Court says there is a substantial gov’t interest at stake
(morality; public safety) and that commercial exploitation of obscene material has even lower protection b.
Rejects the “consenting adults theory”
3.
Berger dismisses Stanley and says that there is no mind control involved on gov’t behalf—speech has no value a.
Gov’t isn’t preventing people from having prurient thoughts, just regulating the access to material that gives you those thoughts
(like drugs—can’t control fantasies, but can prevent you from getting drugs that give them) b.
In reality, they are restricting supply of ideas (changes marketplace of ideas) viii.
1973 Reformulation and its Aftermath
1.
No more right of individuals to do anything they want behind closed doors (narrow exception on the facts of Stanley )
2.
Still law today, but VHS and the Internet changed things—distribution was much different and allowed easier access to obscene material a.
More socially acceptable now—attitudes have changed in important segments of American society—prosecutors see no point in prosecuting pornography and corporations involved in the business
3.
Miller and Paris are settled state of the law ix.
Child Pornography
1.
New York v. Ferber (1982) a.
Films were distributed of boys masturbating; not obscene according to jury b.
Court says it is illegal (categorical exclusion of child porn) i.
Related to child abuse
1.
Leaves a public record of what they did and will haunt them forever ii.
Sales will lead to more child porn; prosecuting will dry up market iii.
Value of speech is low if not de minimis; if there is some value and must be done, you can use adults who look young c.
Court is balancing (categorical)—high cost, low value i.
The harm is in the creation, not a viewing harm (like obscenity)— state can regulate creation harm
19

ii.
Court rejects the degradation of adult women in the films—not worried about the creation
2.
Ashcroft v. Free Speech Coalition (2002) a.
The overturned a law banned pornography that used adults who appeared to be minors i.
There was no harm in the production g.
Indecent (Lewd and Profane) Speech i.
Profane or offensive materials to listeners or readers
1.
Is this type of speech regulated because it is offensive or annoying and does it cause any harm? Is there a cost associated with it?
2.
Chaplinsky says “ may incite breach of the peace” and “by their very utterance inflict injury” ii.
Cohen v. California
1.
A man was wearing a jacked that says “Fuck the draft,” but not saying anything out loud; prosecuted for disturbing the peace—convicted of offensive conduct a.
Certainly a powerful statement about an important political issue b.
Gov’t interest would be to avoid offensiveness (not a good one) i.
“One’s man vulgarity is another man’s lyric”
(Harlan)
—gov’t shouldn’t determine taste and style for people
2.
There is no false statement (not libel); not fighting words (not directed at anyone; not likely to provoke); no incitement; no obscenity a.
Court effectively separates fighting words from indecency— fighting words need to be provocative to violence
3.
Court says there is not a captive audience— people can avert their eyes if they don’t like message; he isn’t forcing anyone to read his message
4.
One argument is that this is political speech and can’t be regulated a.
If the case had come out differently the government might be able to prohibit certain political speech by banning certain words
5.
Profanity and The Captive Audience a.
If people couldn’t avert their gaze, they might have a problem b.
Ex. Can’t have offensive ads on a city bus because you can’t avoid them while on the bus ( Lehman v. Shaker Heights ) iii.
Erznoznik v. Jacksonville (1975)
1.
City ordinance prohibiting drive-in theaters to show movies with nudity a.
Court says this is overbroad
—it does not allow for “offensive nudity,” but rather all nudity—1 st Amendment does not allow to single out an entire type of content i.
Could have placed time, manner and place restrictions
2.
State says it is protecting children and prevents distracting drivers a.
Court says that not all displays of nudity are offensive to children; possibly just erotic nudity; if you wanted to protect children you would ban more (overbroad and under inclusive) b.
Traffic safety is under inclusive—you would regulate against more iv.
FCC v. Pacifica (1978)
20

1.
Radio station broadcast George Carlin monologue in the afternoon and he used dirty words; there was warning before broadcast, someone complained
2.
Court upholds FCC warnings a.
This is indecent speech of low value b.
Must look at context of indecent speech
—here the context was inappropriate ( ad-hoc balancing )--arguments i.
Accessible to children—even children who couldn’t read could be exposed to words (not good argument) ii.
Privacy at home
—you can be subjected this in the privacy of your own home; you can’t expect to be insulated in public, but yes in your home
1.
It is very easy to turn off radio
2.
Also, these people were in a car in public, not their home iii.
Public nuisance
1.
The words are spread on a public common and you can’t really avoid it because they can’t have constant warnings iv.
Aversion of eyes—once you’ve heard words you’ve been hurt and can’t turn off your mind
1.
No different from seeing word on a jacket; don’t need to listen or look but once you’ve been exposed it is on your mind v.
Sable Communications v. FCC (1989)
1.
Law banned dial-a-porn commercial telephone messages, court said this law was unconstitutional a.
You have to make an affirmative action to make a phone call, so people are not exposed to it unless they choose b.
You need to allow adults to engage in mature discourse and it would be inappropriate to keep all discussion on children’s level vi.
Denver Area Educational v. FCC (1996)
1.
Court determines that the protection of children is valuable; cable operators can restrict programming they think is indecent vii.
Reno v. ACLU (1997)
1.
Court strikes down Act which banned indecent material from the Internet
2.
Strictest form of regulation governs Internet—it is like a newspaper, not the radio a.
Internet is an expressive media that is taken seriously and given a low of power; but also a lot of leeway when making message b.
It takes affirmative action to see a particular site and message c.
Statute vague and overbroad viii.
U.S. v. Playboy Entertainment (2000)
1.
Dealt with signaling—lag before indecent channels were blocked
2.
Court invalidated statute by applying strict scrutiny (narrowly tailored to achieve compelling gov’t interest) —the regulation was content based (ban on sexually explicit material, but nothing else); chilling effect—there were other ways to achieve interest ix.
The Problem of Indecent Expression
21

1.
How do you deal with indecent speech and sexually themed businesses without outright ban (which would be overbroad and possibly vague) x.
Zoning and Adult Business
1.
Young v. American Mini-Theatres (1976) a.
Adult theaters can’t be located within 1000 feet of other
“restricted use” establishments; Court allows b.
An adult theater is one which “adult material” is on display i.
It is very hard to regulate without becoming enmeshed in the subject itself—the legislature must consume it themselves in order to know what they are banning ii.
Moral judgment about what is decent and indecent— where do you draw the line?
c.
Gov’t interest is trying to prevent red light districts where crime and danger are high i.
Legitimate interest d.
Court says that these zoning laws have nothing to do with banning speech on their face i.
People can still find the adult material if they look for it; not an outright ban e.
Content based, but speech is of lower value, so it is okay to use as the basis of zoning them i.
Not viewpoint neutral (some will be hurt worse than others), which is not acceptable in political speech, but okay here f.
City not trying to restrict speech, just regulate where activity can take place
2.
City of Renton v. Playtime Theatres (1986) a.
Ordinance banned adult theaters for secondary effects—SCOTUS upheld; considered content-neutral since based on secondary effects b.
This speech is less valuable than commercial speech and can be banned, though it couldn’t be in other kinds of speech cases
3.
City of Los Angeles v. Alameda Books a.
Affirms Renton
—“Content correlated” speech (secondary effects correlated to speech ban) h.
Hate Speech i.
Defined: “Speech that is so offensive to particular and discreet groups with such a history as to treat the speech differently”
1.
Handicaps marketplace because not all are equal
2.
Recognizes injury associated with speech (like fighting words)
3.
Slight social value ii.
Beauharnais v. Illinois (1952)
1.
White supremacist produced a pamphlet calling for the gov’t to stop invasion of black people and for whites to unite and stand up to them a.
Court upheld conviction for distributing literature portraying criminality ofclass of citizens based on race b.
Group libel—low value speech under Chaplinsky
2.
Standard of review: Rational Basis
22

a.
The state has excellent reason to pass this law; there was a rational basis for it (long history of racism, damaged social structure) b.
Modern rights movement is protection of religious and racial minorities from majoritarianism—WWII had just ended and
Holocaust fresh in their minds c.
Rational Review Project
—deference to legislature
3.
Court allows this a.
Speech is very harmful—basically like libel of an entire group based on their race i.
Protect the reputation of people; it is a property right of ii.
the group iii.
Group Defamation and Hate Speech
1.
Group defamation—perhaps it hurts chance at job, social life, etc.—a bit of a stretch a.
Can’t assess damages to them very easily—harm is different than what individual libel protects against
2.
Libel usually involves factually false statements—the defendant here didn’t make fact-based statement; more like opinions a.
In any group some people will fit the description and some won’t—it is hard to say the statement was true or false b.
Not a good analogy
3.
Modern interpretation: a.
No longer Rational Basis—get some version of post-NYT standard (public or private figure?) and the statute probably unconstitutional i.
Hard to prove these are “false facts” ii.
This is arguably an opinion; even horrible opinions are protected iii.
Making a comment on a matter of public concern b.
Might argue that this was incitement (call to arms) i.
There was no imminent danger though—no specific time or place for incitement ii.
It was not a serious threat c.
Fighting words?
i.
It was not directed at a single person, so not really fighting words
4.
Perhaps hate speech deserves its own category a.
These words are harmful to group rather than individual; might be some contribution to debate, but not much i.
Arguably this speech handicaps free speech—stigmatize groups and make them less likely to participate
5.
Arguments against a.
Gov’t can’t regulate marketplace of ideas i.
Counter: They can in market failure though b.
This is speech of public concern; they are speaking on an important subject and we can’t handicap debate of all perspectives, even if obnoxious and insulting
23

c.
Turns 1 st Amendment on head—now protecting group against individual (not protecting minority interest) iv.
R.A.V. v. St. Paul (1992)
1.
A man burned a cross on the law of a black family a.
He has trespassed and committed arson (illegal), but no 1 st
Amendment problems
2.
He engaged in an expressive act and communicated a message a.
Could probably be punished under fighting words doctrine
(against an individual, inflicts injury and likely to result in a violent confrontation)—statute would need to be drafted carefully b.
Threatening speech i.
Threatens violence to a person c.
Here violated a statute punishing use of “specific symbols” that arouse alarm or resentment in others based on their race, religion, creed or gender i.
Viewpoint based regulation; discriminatory on its face
3.
Content based speech restrictions like this will usually be struck down unless low value speech a.
In this case, there were fighting words, but the statute itself is overbroad and certain protected viewpoints could fall under it— statute invalidated b.
Within content based distinctions, you have to ban an entire category i.
Ex. You can proscribe obscenity, but can’t ban only obscenity involving blue eyed actresses ii.
Can’t make further distinctions within category
4.
Problem is that by banning racist speech, those who combat racists can say whatever they like and that gives unfair advantage in debate a.
Favors tolerant speech over intolerant speech v.
Wisconsin v. Mitchell (1993)
1.
Blacks watching movie go out and beat up kid; their sentence was increased because it was a bias crime
2.
Court says assault isn’t speech so the sentence increase is constitutional a.
The law involved wasn’t directed at speech b.
What is being punished is racist assault, not speech i.
Once you prove elements of assault, you can increase sentence ii.
Why allow cross burning though, also racist motives
3.
Under Mitchell this is conduct rather than speech; under RAV it would be speech rather than conduct a.
Perhaps Mitchell could have argued he had been expressing viewpoint vi.
Virginia v. Black
1.
Banned cross burning with intent to intimidate a person or group;
Plaintiff burned cross and challeneged claiming it was like RAV a.
Court says state can ban cross burning, but the act itself cannot be prima facie eveidence of intent to intimidate (need more evidence) vii.
Pornography as Hate Speech
24

1.
Argument is that pornography subordinates, dehumanizes and suppresses women a.
Pornography is insidious i.
Should be low value speech because changes people’s attitudes in insidious manner ii.
Causes many harms—discrimination, subordination, rape b.
You could have counter-speech—if porn is bad, why not just have porn where woman is in power c.
What about porn produced and directed by women
V.
Content-Neutral Restrictions: Limitations on the Means of Communication a.
Content-based regulation vs. Content-neutrality regulation i.
Content Based : Regulate based on the message of the speech
1.
Usually get strict scrutiny; obscenity doesn’t (no scrutiny) a.
Presumptively invalid b.
Must show low value speech or compelling governmental interest
2.
Viewpoint based a.
Regulates only on one side of an issue i.
Receives heightened strict scrutiny
3.
Worse than content neutral a.
Ability to distort the debate (though content neutral—one side probably needs the speech less) b.
More likely to be enacted for impermissible purpose of suppressing popular ideas c.
More likely to suppress speech because of its impact on others ii.
Content-neutral : Government regulations that do not regulate speech on the face of the regulation (don’t regulate what is said), but still have some incidental effect on speech or expression
1.
Receives intermediate scrutiny—
Legitimate gov’t interest; substantially less restrictive means of regulation
2.
Ex. Regulation against burning of a draft card—says nothing about speech, it is about destruction of government issued property, but doing so would be expressive b.
General Principles of Content Neutral i.
Schneider v. State
1.
Court invalidates statute outlawing leafleting-failed tailoring stance a.
Just regulate littering if you want to keep streets clean ii.
Martin v. Struthers
1.
Court invalidated ban on handing out literature door-to-door under the guise of protecting against crime for tailoring a.
Could simply prohibit soliciting of homes that say no prohibiting iii.
Kovacs v. Cooper
1.
Court allows an ordinance regulating sound trucks a.
The speech is very effective here—can’t “avert eyes” b.
Time, place and manner restriction iv.
Metromedia v. San Diego (1981)
1.
Gov’t doesn’t meet burden of showing that ban on billboards addressed a harm closely enough
2.
Dissent: Gov’t can outlaw entire media as long as two things present:
25

a.
Gov’t has substantial interest b.
Gov’t leaves open ample alternative means
3.
The gov’t can suppress as to an extent as long as in content-neutal manner v.
City of Ladue v. Gilleo (1994)
1.
Ladue tries to ban all signs in yards of residents a.
People like signs because they are cheap, easy means to spread message; City argues they want clean city
2.
Court says there is an interest (maybe not substantial), but that the alternatives aren’t that attractive—must more expensive, harder to use— nothing is this easy a.
Ample alternatives is an important test b.
Residential signage historically important—no real reason to regulate them i.
Anti-littering is not a strong objection ii.
Home is you castle, can’t invade without good reason c.
You can avert your eyes if you choose—aren’t putting the signs in other’s homes vi.
The Meaning of Content-Neutrality
1.
Current 4-part test that replaced balancing test: a.
The regulation must be content neutral b.
Narrowly tailored to c.
A significant government interest (not compelling or legitimate) and d.
Leave open alternative channels of communication c.
Speech on Public Property: The Public Forum i.
1 st
Amendment doesn’t allow trespass in order to speak—people can’t enter living room just to spread message w/o permission
1.
What happens when gov’t owns that property?
a.
The answer is that the power to regulate changes depending on what kind of property is at issue i.
Public parks are open to the masses, but a gov’t office can be regulated and speakers can be evicted just like entering private space ii.
Hard to draw the line in these cases though ii.
Courts have divided public space into three categories
1.
Traditional public forum : things that have traditionally been dedicated to public use (streets, parks—even private street and parks if they are treated as public)
2.
Non-Public Forum
—government property that is constitutionally closed to all speech activity—president’s office, military base a.
May close if: i.
Reasonable ii.
In a content-neutral manner
3.
Limited (or Dedicated) Public Forum a.
Place the government could close speech, but voluntarily opens to speech as long as rules of traditional public forum followed b.
Ex. Public university campuses—can be used by student groups; if they are allowed for one group, must be allowed for everyone
26

iii.
Streets and Parks—Traditional Public Forum
1.
Commonwealth v. Davis (1895) a.
Initial answer to question of whether gov’t can regulate speech on its own property b.
Court says gov’t has absolute power to regulate speech in its parks and buildings
2.
Hague v. CIO (1939) a.
Changes the answer—streets and parks have been open since time immemorial and there is a 1 st
Amendment easement here b.
They are open except for weighty reasons
3.
Regulating the Public Forum a.
Gov’t is paying for the right for someone to speak (pay to keep up the park, clean up), so basically subsidizing speech i.
They do not have to have the park though, if they don’t want speech they can sell to private concerns ii.
If they have the park they must keep it open b.
Time, place and manner restriction s still in place—some sort of regulation available—regulate litter, noise level, time of day i.
General 4-part test applies to time, manner restrictions
1.
Regulation can’t burden substantially more speech than necessary
2.
Must be content neutral iv.
Other Publicly Owned Property
1.
Adderley v. Florida (1966) a.
Protestors evicted from prison because they are trespassing i.
State owns the property and has the ability to do what it likes—these are different from parks v.
Unequal Access and the Problem of Government Speech
1.
Legal Services Corp. v. Velazquez (2001) a.
The gov’t tries to prevent legal service lawyers it subsidizes from representing welfare cases i.
They are providing money to support litigation, but court says they can’t bar certain types of cases
2.
National Endowment for the Arts v. Finley (1998) a.
Attempt by Congress limit NEA grants to things that uphold
“general standards of decency for the diverse beliefs and values of the American public” b.
The Court upholds it i.
Arguably viewpoint discrimination—gov’t shouldn’t be in the business of judging decency ii.
Court says this limit is not an absolute bar on speech—the artist just won’t get public money, can still make statement (can restrict subsidies)
1.
Does make the speech more difficult though; basically content based discrimination c.
Dissent: Viewpoint discrimination i.
Gov’t shouldn’t be in business of deciding whether art is good or offensive
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ii.
We might get less art if they cut funding iii.
Where the gov’t has forum (money here, parks, etc.), they don’t have to give money, but when it does it cannot pick who gets it based on viewpoint d.
Symbolic Conduct i.
Conduct can convey a message and can be the most effective way of doing so
(peace signs, someone giving the finger)
1.
There must be limits—certain expression can be regulated (assassination is the ultimate expression of displeasure, but no problem prosecuting)
2.
You can enhance sentence because of the motive behind crime
3.
What makes difference between conduct we treat as expressive and that which we do not a.
Part of it is tradition—we have always treated these things different (ballet vs. assassination) b.
Perhaps more interested in protecting people’s physical being ii.
U.S. v. O’Brien
(1968)
1.
O’Brien burned his draft card to protest Vietnam war at a courthouse a.
Intent was to show displeasure with the war, political statement; prosecuted under statute that prevents desecration, destroying draft cards
2.
Court says this is protected speech, but can be suppressed if there is substantial government interest a.
Speech= 1) Message, 2) audience, 3) intent of the speaker to communicate b.
Here the burning causes another harm—need cards to identify those in selective service; advance important gov’t interest
3.
When someone does something in private, no one hears it so it is not meant to be expressive conduct
4.
Four factors to determine if the gov’t can suppress expression
(intermediate scrutiny) a.
Is it within the govt’s Constitutional power to regulate b.
Does the regulation further an important or substantial interest c.
Is the government interest unrelated to free expression ?
d.
Is the incidental restriction on speech no greater than necessary ?
5.
Can’t look to congressional intent (legislative motives) because the entire body did not vote one way for the same reasons (this basically ignores the fact that it regularly looks at intent) iii.
Flag Desecration and Misuse
1.
Texas v. Johnson a.
Court invalidates TX statute prohibiting burning of American flag i.
Viewpoint based—state is taking away symbol from only one side of the debate (doesn’t prevent all flag burning, just when offensive to others) ii.
Content based, so subject to strict scrutiny
2.
Eichman v. U.S.
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a.
Court invalidates Congressional Act prohibiting desecration of the flag b.
Court says gov’t can’t ban simply because it is offensive to people—it is expressive conduct iv.
Nude Dancing
1.
Law is unclear—can’t exotic dancing be as expressive as other dancing?
2.
What is the message put forth by strippers
3.
States can ban public nudity, why not a strip club?
4.
Barnes v. Glen Theatre (1991) a.
Nude dancing is speech but no core speech b.
Apply O’Brien test—the statute is constitutional
5.
City of Erie v. PAP’s A.M. a.
There is something incrementally expressive about taking off the last piece of clothing e.
Litigation, Association and the Right Not to Speak i.
Litigation
1.
NAACP v. Button (1963) a.
Prohibition in VA against organizations paying a litigator in cases where that organization has no pecuniary interest in the litigation b.
State seems to be targeting political organizations (like the
NAACP) who use litigation to advance their causes c.
Court invalidates the law— right of association is implied in
Constitution d.
Dissent: organizational lawyer necessarily has divided interests between client and organization—worried how that affects rights of litigants
2.
Litigation and the 1 st Amendment a.
Court says litigation is a form of political expression protected by the 1 st
Amendment; even legitimate interests of the state are insufficient to overcome that i.
Court protects against state applying the law in a nonneutral way to target certain organizations
3.
In re Primus a.
ACLU can ambulance chase for expressive speech; true ambulance chasers (for profit) cannot ii.
Association
1.
Is there a right to of association that allows groups to choose who can and cannot be members of the group?
2.
Roberts v. U.S. Jaycees (1984) a.
A group formed to advance men’s issues and did not allow women b.
Court said that women must be allowed—it won’t hurt the mission; those women who want to join do so because they are interested in the mission of the organization c.
State had a compelling interest is ending gender discrimination
3.
Association and 1 st
Amendment
4.
Boy Scouts of America v. Dale (2000)
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a.
NJ anti-discrimination statute unconstitutional because it forced groups to accept members they didn’t want and would have hurt their purpose i.
Forced inclusion would have been destructive to group’s message ii.
Sexual orientation is not a suspect classification like women, so Court not as worried about discrimination? iii.
Perhaps there should be an absolute right of private associations to exclude as long as they don’t have monopoly power (only the ones who can do something) iv.
If they could do that, how would it affect employers’ ability to exclude?
1.
Maybe not 1) Employment is commercial (don’t go to work to make a political statement); 2) monopoly power argument (people must have a job, so the workplace should be open to everyone) iii.
The Right not to Speak
1.
Pruneyard Shopping Center v. Robins (1980) a.
Protestors at a mall—do 1 st
Amendment rights mean they must be allowed to protest there?
b.
Court upholds the right to protest over the right to exclude i.
No risk the public will mistake protest message with that of the mall owners ii.
The state wasn’t forcing the message; determined by private actors—no compelled speech iii.
The mall was allowed to engage in counter speech—
(Brandeis answer in Whitney
—more speech to counter arguments
2.
West Virginia v. Barnette a.
Court held that government cannot compel flag salute or pledge b.
Government cannot compel speech
3.
Wooley v. Maynard a.
Court prevented NH from punishing people who covered license plate motto i.
Gov’t can’t compel speech iv.
Compelled Affirmation, Expression, Association
1.
Fair v. Rumsfeld a.
Solomon Amendment threatened to cut off federal funding if universities didn’t allow military recruiters on campus because of
“Don’t Ask, Don’t Tell” discriminatory practice b.
Law schools argued that they couldn’t be forced to associate with military recruiters; hiring process was expressive conduct c.
Court rejects the arguments—Solomon Amendment regulates conduct, not speech i.
Speech of recruiters not attributed to law school itself ii.
Recruiter speech to students not compelled (not forced to listen) iii.
Recruiter speech is not expressive
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iv.
Does not violate right to associate—the recruiters are only there for a day
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