Katz
Professor Richards – Fall 2006
UNIT I: SUPPRESSION OF DANGEROUS IDEAS AND INFORMATION
 When may the gov’t restrict speech because it might harm to the gov’t, private, individuals, or society in general?
FOUR PROBLEMS IN SUPPRESSING SPEECH:
A. Expression that induces unlawful conduct
B. Expression that criticizes the judicial process
C. Expression that provokes a hostile audience response
D. Expression that disseminates confidential information
A. EXPRESSION THAT INDUCES UNLAWFUL CONDUCT

May the gov’t constitutionally restrict expression because it might persuade, incite, or otherwise “cause” readers or listeners to engage in unlawful conduct?
-This reaches to the very core of the F.A. because it is so similar to the problem of restricting seditious libel
BASIC TEST:
-Speech advocating force or breaking of the law is unprotected when:
1. Directed to inciting or producing
2. Imminent lawless action
3. And is likely to produce such an action
Policy Background to Suppressing this Type of Speech
-Perceived harm justifies the suppression of the speech
-And the likely harm is imminent
-This unprotected area is very narrow
-Speech that praises or urges illegal conduct
OVERVIEW
Four Types of Speech that Induces Unlawful Conduct:

1. Speech that criticizes gov’t policy and discusses public issues generally
-Perhaps SCHENCK (might be under #4)
2. Speech that urges that breaking the law is moral or necessary to achieve political goals
-Civil Disobedience: MLK Jr., Ghandi, Dec. of Indep.
3. Speech that advocates law breaking some time in the future
GITLOW
-
“Bad Tendancy Test”
4. Speech that expressly advocates breaking the law now!
ABRAMS “Let’s strike right now!”
-Let’s seize the Dean’s suite and turn those tyrants out!
ESPIONAGE ACT OF 1917

Crime to willfully obstruct the recruitment or enlistment of the U.S. Military
SHAFFER (20)
-Shaffer mailed a book of seditious utterances against the military
BAD TENDENCY TEST

If the incited activity has the tendency to lead to substantial evil, the gov’t may regulate the incitement
Held : Court determined probably bad tendency of decreasing enlistment
MASSES (21)
-Postmaster prevented Masses from sending out revolutionary magazine because it violated the Espionage Act
-J. HAND: distinguishes between mere advocacy of ideas and express incitement
-Held : Masses is granted injunction against postmaster because speech did not rise to level of inciting people to break the law
SCHENCK (24)
-Schenck was convicted for sending mailings to drafted men allegedly calculated to cause insubordination among the troops, breaking Espionage Act of 1917
-J. HOLMES rejects J. BLACKSTONE’S ban on only prior restraints
(needing gov’t permission to print) in favor of the Clear and Present
Danger Test
-The test is just trotted out, not actually explained
-The test is intended to be more protective
-Is it just an extension of Bad Tendency Test or is it something new?
-It’s a question of proximity and degree!

-The test standards change depending on times of war or times of peace, certain things said in peacetime might not fly in wartime…AMBIGUOUS
Held: Guilty for violating the act
CLEAR AND PRESENT DANGER TEST:

Whether the words used in the particular circumstance will bring about a particular clear and present danger of evils
Congress has the right to prevent
*Considering Shaffer, SCHENCK, and Masses
-J. HAND’s mere advocacy of ideas and express incitement theory:
-Under-protective of free speech?
-Over-protective of the clever inciter?
-One who incites without explicit words of incitement
-Over-protective of the dangerous speaker?
-People outside Monsanto yelling, “Drug makers are baby killers!”
*** Masses WAS REVERSED ON APPEAL AND J. HAND ABANDONED OPINION!
DISSENTING TRADITION
DEBS (29)
-Debs gave anti-war speech, said he could not openly say what he wanted, but that he was proud of those who dodged the draft (allegedly violating Espionage Act)
-It was clear that his language, though not explicit, was to obstruct the draft
-His intent was to obstruct the draft and would not have given his speech minus this intent
-However, J. HOLMES: SCHENCK disposed of this F.A. claim: not guilty because words, as their natural tendency and reasonably probable effect did not obstruct the recruiting service
Held : Not Guilty; unanimous court felt praising socialism and express admiration for draft-dodgers is not in violation of the F.A.
-J. HOLMES makes no reference to the Clear and Present Danger Test
-WTF?!?!?!
ABRAMS (30)
-Group of Russian immigrants, self-proclaimed anarchists/socialists believing U.S. was trying to crush Russian proletariat revolution, published materials for the purpose of obstructing the war
Held: Conviction upheld, relying on SCHENCK
-Majority: the judiciary constructed an intent for Abrams
-Where intent is absent the judiciary can construct the reasonable intentions present

-DISSENT: J. HOLMES: Abrams is a silly man, had no intent to disrupt anything
-*** Clear and Present Danger Test should be used!!! (The test emerges here!!!)
C.P.D. TEST:
1. Must be imminent danger present
2. Specific intent for this danger must be present
-Rationale:
-Relies on the MARKETPLACE OF IDEAS rationale that in the marketplace various ideas purport to be the truth and fight it out, then truth ends up being something different than what we thought it was..flat earth?
-Speech should protected unless there is a “clear and present emergency”
-Broad protection of speech marked off easing J.HAND’s worry that the gov’t would be able to restrict any agitated speech that can be shown to create seditious tempers
GITLOW (35)
-Test designed to reduce gov’t’s ability to suppress expression because it disapproves of its content
-C.P.D. TEST CONSIDERED HIGHLY SPEECH PROTECTIVE!!!
-Gitlow was convicted of Criminal Anarchy crimes. Published extreme left-wing Marxist revolutionary material encouraging overthrow of the gov’t (violated a criminal anarchy law)
Held : Conviction upheld
-It is right to restrict speech in order to prevent the harm that could be caused by this overthrow
-This manifesto is a direct incitement
-Extinguish the sparks before they start a blaze!
-DISSENT: J. HOLMES: applied Clear and Present Danger Test to show that subversive advocacy is not present- not going to happen immediately!
-Majority was overbroad!
-Only difference betw a theory and incitement is the speaker’s enthusiasm for the result
-Every idea is an incitement

offers itself for belief and if believed is acted upon
-Futile and too remote to regulate this
***Four categories of speech measuring: “Present”
1. Criticizing Gov’t
2. Law breaking may be necessary
3. Law breaking may be necessary in the future
4. Law breaking is necessary NOW
Gitlow is #3, only #4 should be barred!!!

WHITNEY (41)
-Moderate socialist convicted of criminal syndicalism statute for extreme left wing’s call for uprising
Held : Was a proper exercise of police power, gov’t has the power to prevent criminal syndicates which are inherently evil and dangerous
-J. BRANDEIS (HOLMES) CONCURRING: Applies Clear and Present
Danger Test to hold that she should be convicted a. CLEAR: incitement cannot be punished unless the resulting harm is serious b. PRESENT: express advocacy cannot be punished unless it rises to the level of incitement ( category #4 – call to arms now!) c. RATIONALE FOR FREE SPEECH: self-governance
-J.HOLMES: Marketplace/Search for Truth
-Search for the truth necessary to our fundamental rights, must not suppress this search
-Best reason to allow speech in the market place of ideas is to allow people to discover what is FALSE d. DEFERENCE: courts shouldn’t defer to economic rights and not defer to fundamental rights (anti- J.LOCHNER)
-With Criminal Syndicates there is a substantial threat to the gov’t, these Criminal
Syndicates may be punished when they threaten the gov’t
-States are allowed broad powers to fight violence, although the threat of violence alone is not enough to suppress speech
-There must be reasonable ground for the suppression
-Use Clear and Present Danger Test
*** J. HOLMES v. J. BRANDEIS
-J.HOLMES: Pro Free trade in ideas
J. BRANDEIS: Pro Development of faculties and the deliberative process, and suggests that public discussion is a political duty, and that the greatest menace to personal liberty is an inert people
-J. MIECKELJOHN owes much to J. BRANDEIS
-Post WHITNEY , court reversed several cases involving convictions of subversive advocacy
-Employed Clear and Present Danger test for 25 years from WHITNEY until
DENNIS
-Still had a problem with subversive advocacy issues however
-Communist Cases

COURTS GIVE MORE WEIGHT TO THE FIRST AMENDMENT (POST
WHITNEY)
-Capitalism is generally on the decline though it still remains important…as 20 th century goes on, capitalism becomes viewed as less important
-Modernism and democratic theory focus more on speech, expression and human fulfillment, less on finance
-POLITICAL RIGHTS BECOME VIEWED AS MORE IMPORTANT!
J. LOCHNER (1905): Old fashioned view of how courts should approach rights claims
-Policy of Laissez Faire Jurisprudence
-Legislature must be neutral;
-It cannot discriminate against one class of citizens for the benefit of another like a minimum wage law
-Taking profit from one group extending it to another
Between Whitney and 1937, INVALIDATION of Three Cases
FISKE (Supp. 2)
-Court invalidates conviction for incitement to overthrow gov’t on lack of evidence that organization actually wants to overthrow
HERNDON
-Court invalidates conviction of soliciting members for communist party on grounds that there wasn’t sufficient evidence to convict him of incitement for insurrection
(and being a member) and assisting in a meeting where there is no evidence about what it was about
-The question is the purpose of the meeting!
-Are these cases consistent with SCHENCK, WHITNEY, etc…
DEJONGE
-Court invalidates conviction of assisting in conduct of meeting called by communist party
-Court distinguishes meeting where there is incitement to revolt
-These cases are the mere application of established principle
-There just wasn’t enough evidence in FISKE and HERNDON
-The court is facially DEFERRING to WHITNEY , but it is really just taking a closer look a the cases and the record
-
Shift in the court’s attitude!
(1927-1937)
-MALLEABILITY OF OLD DOCTRINE
-There is some indeterminacy in the old doctrine
-In DEJONGE
, the court didn’t know what the meeting was about

-You can manipulate it to reach different results!!!
CPD Test Based on the CONTEXT and
GUESSES about future harm
STROMBERG (Supp. 2)
-State statues forbidding exhibition of red flag as symbol of opposition to the gov’t. Red flag was waived at communist children’s camp.
-Where a statute reaches to punish mere opposition to the gov’t w/o any wish to overthrow it, it is overbroad and must be invalidated
-FIRST SUP. CT. CASE STRIKING DOWN SOMETHING AS
VIOLATING THE F.A.
CAROLENE PRODUCTS (Supp. 2)
-Economic Regulation gets more deference, less J. LOCHNER laissez faire attitude
-Rational basis review
-Court upholds Filled Milk Act
-Prohibits shipment of skim milk compounded w/ something other than milk fat
-J. STONE it talking about F.A. and citing F.A. cases
-Is going to treat F.A. rights more seriously!
1. There is a textual commitment in the Bill of Rights
2. Free speech rights are naturally tied to democratic political rights
3. Tied to racial groups
MODERN SUBVERSIVE ADVOCACY – BLACK LETTER LAW
THE COMMUNIST CASES (1958- )
DENNIS (48) [Category 3 Speech]
-P’s are leaders of Communist party engaged in assembling and teaching members principles of communism
-P’s are advocating to overthrow gov’t by force
-Violated Smith Act (subversive advocacy)
-Was a highly organized with rigidly disciplined members ready to heed their leaders’ calls
Held: Conviction upheld because they WATERED DOWN CLEAR AND PRESENT
DANGER TEST (could also be a MODIFIED BAD TENDANCY TEST )
-J. HAND’s formulation adopted:
-The gravity of the evil less it improbability must be greater than the harm caused by invasion of free speech
-No need to wait until overthrow occurs to censor activity, still
“imminent”
-No need to fight fair!
-Highly deferential to Congress
-CONCURRENCE: J. JACKSON: Severity of harm warrants deference to
Congress; there is a national conspiracy to overthrow gov’t present

-DISSENT: J. BLACK: We must repudiate the CPD Test because it changes with time and is impossible to determine what is truly a clear and present danger
- DISSENT: J. DOUGLAS: Should have considered the case on evidentiary grounds because overthrow of the gov’t was NOT imminent!
-Commies are “miserable merchants of unwanted ideas”
-In the market place of ideas, their ideas will get dominated by democracy
-Free speech is what defeats Communism
-Similar to J. BRANDEIS CONCURRENCE in WHITNEY
-Different from HOLMES-BRANDEIS Clear & Present Danger Test
-More deferential to Congress
-CONCURRENCE: J. FRANKFURTER: Defer to Congressional findings on dangers of Communism
-No imminence

Subversives go to jail, but LAW BECOMES MORE LIBERAL
-Court rejects GITLOW
’s extreme deference to legislature
-Court agrees that express advocacy of legal action is protected to some extent
-Court agrees that WHITNEY and GITLOW are no longer good law
-Court suggests that express advocacy is entitled to less protection than other speech (inciting people to action gets less protection)
-Majority of court adopts some version of CPD Test
-More speech protective than bad tendency test
BRANDENBURG (59) (1961 MODERN)
-Leader of the KKK convicted for his message that white separatists will have their
“revenge” on gov’t for embracing Blacks and Jews
-Convicted under Ohio Criminal Syndicalism statute
Held: Per Curiam: Conviction was wrong
-NEW TEST: Subversive Advocacy must be directed to INCITING OR
PRODUCING IMMINENT LAWLESS ACTIVITY THAT IS LIKELY TO
PRODUCE SUCH ACTION
-CONCURRING:
-J. BLACK: CPD is dead!
DENNIS only cited showing GITLOW and WHITNEY are overturned
-J. DOUGLAS: CPD is dead because its DENNIS version was:
1. Too malleable
2. Overregulated speech
SUBVERSIVE ADVOACY – FOUR TESTS
1. Bad Tendency – If the incited activity has the tendency to lead a substantial evil, the gov’t may regulate incitement
2. Holmes-Brandeis Clear & Present Danger – Must be serious (clear) and imminent
(present) danger to regulate the advocacy of speech
-CATEGORY FOUR SPEECH ONLY

3. Dennis Clear & Present Danger - The gravity of the harm, discounted by its improbability, must be greater than the harm of the invading speech
-ADOPTS J. HAND’S FORMULATION
4. Brandenburg – Must be (1) express advocacy of violation of the law, (2) that calls for immediate action, and (3) is likely to occur
-SERIOUSNESS IGNORED, but maybe under factor 1
THREATS AND PROVOCATION
THREATS
BRIDGES (66)
-Two cases here
-(1) Union president threatened to cripple the West Coast port with a strike if the
Secretary of Labor enforced a new law
-(2) LA Times Editorial guilty of contempt when it said it would be a big mistake for elected judges to let off two “union goons”
Held : Convictions overturned under J. BLACK’S CPD TEST
-The substantial evil must be EXTREMELY SERIOUS and the degree of
IMMINENCE EXTREMELY HIGH before utterances are punishable
-Defers greatly to the right of free speech
-J.BLACK: convictions may not be upheld because promoting censorship does not make the judiciary more respected
-Enforced silence would probably create resentment
-Also it’s completely legal for Bridges to start a strike
-Judge must have had this in his mind when he convicted him
-Arguments for unfair administration of justice:
1. Judges could be influenced by public opinion
2. Impartiality negatively effected
3. On the other hand, LA Times threatened future criticism
-Judges know they will be criticized
WATTS (69)
-Portential draftee not convicted for saying, if drafted he would go after LBJ
-Speech is only a hyperbole (political hyperbole here) if CPD test is satisfied
-Here speech was not likely nor imminent
-Not clear or present!

PROVOCATION
CANTWELL (Supp. 3)
-Jehovah’s Witness was convicted for selling material on Cassius Street without a license and for disturbing the peace by playing records (which pronounce Catholics “enemies” and where presently in a heavily Roman Catholic area)
Held : Overturned because the regulation was OVERBROAD
-Speech is too important to hinge on a bureaucrat’s ability to arbitrarily regulate speech via a license
-Requiring a license sounds like a PRIOR RESTRAINT!!!
-Here it was a prior restraint!
-Where there is no clear and present danger of riot, disorder, or interference w/ traffic, and merely an effort to persuade others, the State does not have the power to prevent such speech
-Court rejects GITLOW deference to legislators
-Statute must be narrowly drawn
-Links religious freedom to democracy – self governance depends on acceptance of disagreement
-Free exercise case (or more broadly as a F.A. case) – polite people may persuade people of the error of their ways even if those beliefs are deeply held, like religion
-The F.A. may not limit speech purely because it is deemed wrong or offensive
-F.A. protects no more against majority oppression than against runaway gov’t
-This is not a “fighting words” case – Cantwell was being polite
-Overbreadth: regulation sweeps too broadly
-Lays down doctrinal elements
-Prior restraint
-Clear and present danger
-Fighting words
-Preferred freedoms doctrine
-bifurcated review/ CAROLENE PRODUCTS
-Time, place & manner restrictions
-Bastion of privacy vs. free speech
-Right not to listen
-Free exercise jurisprudence – act v. exercise
FEINER (76)
-Man convicted for breach of peace during a protest, calling blacks to rise up against whites; made derogatory statements concerning President, American Legion, Mayor of
Syracuse
-Policeman asked him to stop three times
Held : Conviction upheld under CLEAR AND PRESENT DANGER TEST
-WATERED-DOWN version of test: when clear and present danger of immediate threat to public safety appears, the State may regulate or prevent the speech

-DISSENT: If a police officer is silencing speech, it is the police officer who is violating the law, not the speaker!
-It is one thing to say that the police cannot be used as an instrument of oppression, it is another to say when as here, THE SPEAKER PASSES THE BOUNDS OF
ARGUMENT OR PERSUASION AND UNDERTAKES INCITEMENT TO RIOT!!!

Implicit/if not explicit implications of FEINER :
1. There is a clear and present danger
2. There is incitement to riot
3. There is disobedience to a police officer
THREATS – CLEAR AND PRESENT DANGER TEST
Threat:
An individual (1) intends to communicate a serious expression of a threat (2) to commit an unlawful act of violence (3) to a particular individual or group of individuals
True Threats: UNPROTECTEDs
Some threats are protected – The substantive evil must be (1)
Provocation- extremely dangerous and (2) the degree of imminence must b extremely high before the utterances are punishable
CLEAR AND PRESENT DANGER TEST: when clear and present danger of immediate threat to public safety appears, the State may regulate or prevent the speech
***BUT THAT WAS LAID OUT BEFORE BRADENBURG
FACTORS CHANGED THE TEST!!!***
FIGHTING WORDS
CHAPLINSKY (83)
-Jehovah’s Witness convicted for calling a cop a “godamned racketeer” under a statute
(so construed by the state courts) to disallow only face-to-face fighting words
TEST
: Gov’t may regulate words that men of common intelligence would understand to be words likely to cause an average addressee to fight
-Subjective (thus narrower protection)
-Categorical
-Fighting words defined: words that (1) inflict injury and (2) incite an immediate breach of peace merely by their utterance
Held : The state has power to limit words in public places which are likely to cause a breach of the peace
-Rationale:
-Fighting words are LOW VALUE SPEECH

-Likely to provoke average person to assault (breach of peace)
-Words are intended to injure – more similar to slapping someone than to a constitutionally protected idea or opinion
-Court is engaged in a categorical approach as opposed to CPD which is case-by-case
-RICHARDS: state statute here is OVERBROAD! You could tell someone they have an ugly shirt and be guilty under the statute
-There are some things your manhood just won’t let go, it’s not reasonable to expect listeners not to fight
-As the norms of masculinity have changed, we realize people don’t challenge each other to fights like they used to, and they can resist such words (courts have since narrowed the doctrine to a point where it is almost meaningless)
-Arguably CPD should take care of this – if you are saying things that are likely to incite people into a rage, then CPD should handle this
GOODING (87)
-P called someone a “white son of a bitch”
– Statute overbroad on its face because state court didn’t limit statute to only face-to-face fighting words
-Fighting words doctrine only applies to words that cause an IMMEDIATE breach of peace, NOT those that may cause a breach of peace at a FUTURE
TIME
-No conviction upheld under fighting words since CHAPLINSKY
-Philosophy
-Posner: lots of conventional ideas today were once radical
-Marketplace of ideas should do the work
-What’s to say this provocative idea may not be right?
-There should be a wide latitude for offensiveness
-Alternate: Some speech just shouldn’t be protected if it neither adds to process of self-government nor adds to the search for truth
TERMINIELLO (72)
-Jury instructed to convict if his speech included expression that would stirs up anger, invites dispute, incites unrest in the audience, or causes a disturbance
Held : Jury instruction violates F.A.!!!
-The function of free speech is to invite dispute
-*Can only be halted if presents a clear and present danger!!!*
***STANDS FOR THE PROPOSITION THAT SPEECH MAY NOT BE HALTED
BECAUSE THE IDEAS EXPRESSED OFFEND THE AUDIENCE***

SKOKIE CONTROVERSY (89)
-Leader of National Socialist Party wanted to hold march through Skokie to protest city’s requirement that a $350k bond be put down before assembly could be held in a part of the city, socialists wasted to wear Nazi uniforms, Skokie tried to enjoin demonstration
-State court eventually held that march could go on
-City tried to pass laws prohibiting march but they were invalidated
-Perhaps court should try to master a capacity for tolerance here
-Confront the problem and exercise more self-restraint
CONFIDENTIAL INFORMATION
GENERALLY:
-Gov’t has two remedies
1. Preventing disclosure by prior restraint (injunction)
-Alternatives to prior restraints:
-Criminal punishment of publisher
Bartnicki
-Criminal punishment of leakers
-Properly screen employers
2. Engaging in subsequent punishment
*Only talking about true information
-Defamation is dissemination of false information
CONTEXTS FOR CONFIDENTIAL INFORMATION:

National Security
PENTAGON PAPERS
-NY Times and WA Post obtained copy of events leading up to ‘Nam, gov’t sought injunction to prevent both parties from publishing them under rationale that it will pose danger to troops/hurt ability to negotiate settlement
Held : Injunction denied
-Executive Branch could outlaw activity in a more narrow way by outlawing the leaking of information
-In order to grant an injunction it must be the most narrow solution possible


Privacy
COX (1975)
-Newspaper identified rape victim based on info learned in court proceedings
-Court refused to prevent or punish information lawfully obtained and newsworthy
-If this is bad, it’s up to the states to do something about it so to avoid public filings of this type of info
Pro Argument: Do not want to chill the media
Con Argument: This fact not central to the administration of justice, it is not an idea that contributes to the market place
***NEWSWORTHY DOCTRINE – BARTNICKI – A newspaper cannot be liable if it is “lawfully received” and newsworthy

Due Process – Disclosure to media where constitutional rights are in danger
(jury impartiality)
NEBRASKA PRESS (1976)
-State judge entered gag order prohibiting press from publishing facts about newsworthy murder trial
-Court refused to uphold gag order because:
1. Prior restraints are disfavored
2. Less restrictive means exist to prevent leak of info about multiple murders in NE
-Ct applies DENNIS style CPD Test
-Does the gravity of the evil minus improbability justifies such a restriction of free speech as to avoid danger?
-Alternative means
-Venue change
-Better juror selection
-Juror oaths to avoid press coverage

Judicial Administration (Ex: judge is being investigated for corruption)
LANDMARK COMMUNICATIONS (1978)
-Paper which published info about a judge was sanctioned
Held : Court refused to punish the press that leaked info about the state ethics board’s report on “crooked judges” because:
1. It’s a matter of public concern
2. It’s important for people to know whether elected or appointed judges are corrupt
-IN DECISIONS POST LANDMARK , THE COURTS HAVE CONSISTENTLY
HELD THAT A STATE MAY NOT RESTRICT THE PUBLICATION OF
TRUTHFUL INFO ABSENT A STATE INTEREST OF THE HIGHEST
ORDER


Dangerous Technical Information
PROGRESSIVE
-Publication of nuke secrets that were already publicly available, gov’t sought injunction, Atomic Energy Act prohibited production of “restricted data”
-Press allowed to publish instructions on how to make an H-bomb on technicalities
-Court granted preliminary injunction because the do-it-yourself article to make an H-bomb could speed up medium sized nation’s development and that is bad
-PRIOR RESTRAINT NECESSARY HERE TO PREVENT LOSS OF LIFE!!!
-Gov’t made it past heavy burden
-Different than PENTAGON PAPERS because involves historical date involving issues twenty years ago and there is a specific statute on point
FACIAL CHALLENGES – OVERBREADTH, VAGUENESS, & PRIOR
RESTRAINT
PRIOR RESTRAINTS
GENERALLY:
-Even if speech can be regulated, maybe there are some ways you can regulate it that good ways to regulate; maybe there are some procedural ways that are bad
-J. BLACKSTONE: liberty of the press under the common law was freedom from prior restraints
KEY ISSUES TO CONSIDER:
-What is so special about prior restraints – why are prior restraints as to require extraordinary constitutional disapproval?
-Pro Argument: you get notice, chance for appeal, and no punishment unless you disobey the order not to speak
-Why is it worse to impose a prior restraint than a subsequent punishment?
LICENSING:
LOVELL (1938)
-Statute gave city manager in GA discretion to grant permission for distributing literature on city streets
Held : Licensing is only allowed if there are:
1. Clear standards by which to qualify for the license
2. Procedural safeguards
-Reasons licensing is bad: a. Idea doesn’t get out, there is societal need for ideas to get out b. Overinclusiveness: in addition to speech which is prosecuted there is also speech chilled

c. Lack of standards: there is no principal guidance restraining the licensor/censor; city manager can decide who gets to talk and who doesn’t d. Overcensorship: gov’t is scrutinizing speech; people who are going to become censors are people who like to censor e. Absence of procedural protections (similar to lack of standards, above)
-Censorship is an administrative rather than a criminal procedure
-All of the constitutional criminal procedures protections don’t apply (due process)
-There might not be a remedy against arbitrary censorship
BLACK LETTER LAW : Licensing systems are not per se unconstitutional, but they face a heavy presumption of unconstitutionality to be constitutional, licensing systems require not only (c.) clear standards but also (e.) procedural safeguards
-State can’t vest restraining control over right to speak in an administrative official where there are not clear standards to guide his action
INJUNCTIONS
NEAR
-MN state statute allowed injunction against “malicious, scandalous, or defamatory” publications
Held
: Statue invalidated, calling it “the essence of censorship”
-Content-based prior restraints are highly disfavored
-MN legislature could have punished this speech after the fact
-This is not a case where there is a total lack of standards,
-The problem is no procedural safeguards,
-The standards may err in overcensorship
***Exceptions to when prior restraints are bad
-National Security
PENTAGON PAPERS
-Allowed to publish facts of the past but how do you know where troops are headed in the future?
-How do you know what’s going to happen if the info gets out?
-Obscenity
-Requirements of decency may be enforced
-Subversive advocacy
-Security of community life may be protected against incitement to acts of violence & overthrow by force of orderly gov’t

OVERBREADTH
BACKGROUND:
-Traditional Method:
-“As Applied” mode of judicial review tests the constitutionality of legislation as it is applied to particular facts on a case-by-case basis
-“FIRST AMENDMENT OVERBREADTH DOCTRINE”:
-Tests the constitutionality of legislation in terms of its potential application
-Claimant is challenging some hypothetical F.A. challenge that he hasn’t done; involves asserting the rights of hypothetical third parties
Rationale:
-F.A. is so important that we’re going to allow ourselves to root out Constitutional defects, even ones that aren’t implicated by this particular case
-We don’t care about GOODING we care about
Fred b/c we are worried about the Fred’s of the world that might get chilled, we are going to let
GOODING bring the case on Fred’s behalf
-Arguments against Overbreadth Doctrine”
-
-
GOODING
GOODING
allows guilty people to go free
allows unwarranted judicial activism
-This is not how we like judges to normally behave
-Court is deciding hypothetical cases w/o factual basis to support them
-Court is imagining facts
-Judicial Dishonesty: overbreadth allows judges to dodge deciding difficult questions regarding constitutionality of the statute
-Overbreadth provides legislations w/ no guidance of how to re-draft statutes
-Doctrinal Points:
-
-Overbreadth currently does not apply to commercial speech
BROADRICK must be cited every time you analyze overbreadth
-Requires showing of significant likelihood of deterring F.A. interests before you can invoke overbreadth
-You could look to ratio of protected to unprotected speech
-The statute punishes a small amount of conduct that it can punish, and a large amount that it can’t
-Looks to value of speech in relation to how much it encompasses

GOODING (1972)
-GA Statute prohibits saying any “abusive words” to other people, anti-war protestor is convicted for saying he would cut the officer to pieces
Held : Conviction invalidated, statute overbroad – Can’t cover ALL abusive language!!!
-Punishes protected and unprotected speech
-Similar statute to CHAPLINSKY except that statute was construed narrowly by the state courts to cover only fighting words
-Sup Ct. declined to follow CHAPLINSKY on procedural grounds
-in that case the state limited what was an overbroad statute to only fighting words
-This statute punishes someone who utters protected speech down the line
-Even though here the D’s speech is clearly unprotected
-Definitions of opprobrious or abusive are very broad\
-RICHARDS: striking down whole statue is much more of an incursion than just limiting it into contours of F.A.
-J. BRENNAN can’t limit statue in this instance, Sup. Ct. has no jurisdiction to mess with state statute
-GA’s options:
-Enact a new statute and let GA sup ct. limit it
-Or draft statute and use language in CHAPLINSKY
-That adheres to the CHAPLINSKY opinion
-J. BRENNAN may be worried about selective enforcement against people who oppose ‘Nam
VAGUENESS

Persons of common intelligence must be able to know what is punishable under the law before they are punished
BACKGROUND:
-Tries to alleviate fairness concerns where law is not clear
-Requires that a person of common intelligence must be able to figure out what a low prohibits before you can convict anyone of the statute
-Rationale: Given special constitutional considerations that you see in the context of the F.A., invalidating vague statutes b/c they violate F.A. ensures legislatures will scrutinize F.A. speech of any kind they punish
-Considerations: chilling effects are important; some speakers will not walk close to the line if they don’t know where the line is
-Court has not made it clear as to how the figure out what vagueness is!!!
-Combining Vagueness & Overbreadth:
-Substantial overlap b/w the two doctrines
-Most, but not all vague statutes are overbroad!
-Vague but not overbroad: “no person may engage in any speech that the state my constitutionally restrict”

-Overbroad but not vague: “No person may expressly advocate criminal conduct”
-Overbroad b/c if it’s not imminent, etc., it would be allowed - BRADENBURG
LAX
-LAX banned all F.A. activities (Overbroad!); limiting construction: it only reaches activities which are unrelated to airport purposes
-This is vague!
What is an airport purpose?
-Police have ability to determine what it is
CONSOLIDATING PRIOR RESTRAINTS, OVERBREADTH, VAGUENESS
 Statutes that facially regulate the content of speech must be precisely drawn
-When legislatures decide to regulate speech, the following must be true: a. No prior restraints
-There cannot be blanket bans on speech b. No overbreadth
-They cannot regulate substantially more speech c. No vagueness
-Statute has to be clear so that average person knows exactly what is prohibited
-Policy Concerns: a. Notice to speakers b. Fear of selective enforcement c. Fear in licensing/censorship d. Fear of chilling effects
Statutes that facially regulate speech must be drawn with precision
NO PRIOR RESTRAINTS –either in licensing (LOVELL) or injuction
(NEAR)
NOT OVER BROAD – can’t regulate too much speech (GOODING)
NOT VAGUE – can’t regulate without clear language that allows regulation
CONTENT BASED REGULATION OF “LOW-VALUE” SPEECH
BACKGROUND
-We see the gov’t is allowed to regulate based on content
DEFAMATION:
-Generally:
-Modern category of tort law that includes two similar but distinct forms
-Refer to false statements in fact about another person

1. Libel: written
2. Slander: spoken
3. Seditious Libel (used to be a third category): even if statement is true, you can still be put in jail
-Always been concerned about protection of people’s reputations
(values) against false statements of fact

PUBLIC FIGURES:
NYT v. SULLIVAN (1964)
-Elected AL Police Commissioner alleged libel for advertising in the NYT based on false statements of facts regarding civil rights violations by “police” under his supervision
(though he is not mentioned by name, he felt injure though)
Held : reversed holding THERE MUST BE “ACTUAL MALICE” TO SUSTAIN
LIBEL AGAINST A PUBLIC OFFICIAL/FIGURE
-Actual malice manifested either: a. Knowingly false b. Or with a reckless regard for the truth of the matter asserted
-Actual Malice is underprotective
-There is an absolute right to speak!!!
-Any ability to cub speech chills wide-open speech rights
-Actual Malice is overprotective
-Sup Ct. undervalues reputation
-Maybe chilling false statements isn’t bad!
-Might drive sensitive people out of politics
-Cheapens the F.A. to extend actual malice too far
-Floods marketplace with ideas with unnecessary speech not meeting std.
-Applies to “PUBLIC FIGURES” as well
-GA Athletic Director (Butts) could not claim libel to reputation when he was accused of rigging a game b/w GA and AL unless there is ACTUAL
MALICE
CURTIS PUBLISHING CO. v. BUTTS
-UGA football coach alleged to fix games; P is high profile employee of the state
Held : The NYT standard was applicable to “public figures” as well as “public officials”
-Public officials are involved in issues of important public questions b/c of fame
-Public figures can influence policy and counter criticism of their views/activities
-This could be cheapening the Actual Malice Standard
-THIS IS NOT CORE POLITICAL SPEECH
-Self-Governance is a STRETCH
-This is the pillars of NYT
-Upholding the search for truth here

-Two types of PUBLIC FIGURES
1. All-purpose
-Bill Gates, Michael Moore, etc..
-Must prove Actual Malice
2. Limited Purpose
-Monica Lewinsky, etc..
-Concerned in one public issue
-Injects self into one issue to sway the conclusion
-Officials as public figures
-“Major” officials are
-“Minor officials are not (they are private figures)
-But this distinction isn’t very helpful in line-drawing

PRIVATE FIGURES:
GERTZ (1974)
-Police shot and killed a youth, in civil trial Gertz represented the family, D publisher of magazine said Gertz framed the officer and had a criminal record and communist affiliation
Held : NYT std. doesn’t hold up to all discussions of public issues
-Actual malice does NOT control b/c Gertz is not a public figure
-But ACTUAL MALICE IS REQUIRED FOR PUNITIVE
DAMAGES
-Each state may create its own std. for defamation, but it must be a lower standard than NYT
’s actual malice (for compensatory damages!)
-J. POWELL: Public figures and public officials have greater access to channels of communication so they can combat false statements more easily
-Public figures & officials assume the risk of some defamation by taking their role in society!!!
DUN & BRADSTREET (1985)
-D supplied five subscribers w/ financial info about a business, info contained false report that P had filed voluntary petition for bankruptcy
Held : Plurality of the court decided that private figures defamed on matters of private concern need not show actual malice for punitive or compensatory damages

USE THIS CASE TO CONTROL PRIVATE FIGURES BEING
DEFAMED
-LESS THAN ACTUAL MALICE STD. FOR BOTH
COMPENSATORY AND PUNITIVE DAMAGES
-otherwise use NYT for matters of public concern involving
All-purpose public figures or limited-purpose public figures
-PUBLIC FIGURES HAVE NO PRIVATE LIFE!!!

-DISSENT: There is a malleability to public/private speech line!!!
-This is a big power for judges to have
HUSTLER MAGAZINE v. FALWELL (1988)
-Hustler published a “parody” of advertisement concerning public minister Jerry Falwell saying he lost his virginity to his mother in an outhouse while drunk
Held : No recovery!
-Public figures/officials may not recover for IIED tort by reason of publication such as the one here at issue w/o showing in addition that the publication contains a false statement of fact which was made w/ ACTUAL MALICE
-Falwell pleads IIED to get around defamation law
-He won’t win under NYT
-Public figures suing each other must show Actual Malice
-RICHARDS: you could create a category of really bad speech (such as this) put policing that line would be really really tough
-Furthermore, when material is so unbelievable that nobody would believe it as fact, you cannot win defamation claim for false statement of fact
FOR DEFAMATION, THREE QUESTIONS:
1) Is it a public official or figure or is it a private individual? (NYT)
2) IF it is a private individual, is the speech on a matter of public concern? (DUN &
BRADSTREET)
3) If it is a private individual and the speech is a matter of public concern, are the requested damages compensatory or punitive? (GERTZ as limited by DUN &
BRADSTREET’s plurality by J. POWELL, REHNQUIST, & O’CONNOR, concurred by WHITE & BURGER who want to wholly overrule GERTZ)
GERTZ does not make a distinction between public/private
-Best we can take from it is that you can have a std. less than Actual
Malice in a private concern
COMMERCIAL SPEECH
EARLY CASES:
VALENTINE v. CHRESTENSEN (1940)
-Businessman buys submarine, sails it to NY and sells tix to see sub; printed on handbills advertising attraction and handed out on pier; on other side was protest against gov’t for not letting him dock at another pier
Held
: THE CONSTITUTION IMPOSES NO RESTRAINT ON GOV’T AS RESPECT
TO PURELY COMMERCIAL ADVERTISING!!!
-Advertising is economics, doesn’t contribute to the IDEAS MARKETPLACE

-This is left to legislature
-Court had protected economic rights for the past 50 years which was a disaster
-These are all new justices under the New Deal, all PRO gov’t regulations!!!
Post-LOCHNER , this follows in the footsteps of CAROLENE PRODUCTS
-Court does not to rejuvenate economic rights after putting them to bed
BRIAR (1951)
-Reaffirms VALENTINE
BIGELOW (1975)
-Really mess up VALENTINE
-Invalidates VA restriction on abortion ad
-Invalidates restrictions on ads for legal products
Held : The ad “did more than simply propose a commercial transaction. It contained factual material of clear ‘public interest’
-This is more ROE v. WADE speech than commercial speech…
VA STATE BOARD OF PHARMACY (1976)
-VA statute banned advertising/promotion of prices of prescription drugs
Held: Commercial speech is protected by the F.A. with EXCEPTIONS (may not be false or misleading!!!) [Content-based!!!]
-EXCEPTIONS:
1. Advertising for unlawful products
2. False advertising
–Actual Malice does not apply; strict liability is sufficient
3. Misleading advertising
-We want to protect easily influenced minds
4. Time, place, and manner restrictions
-State cannot punish advertising that does no more than “propose a commercial transaction”
-COURT INVALIDATES THE STATUTE AND OVERRULES VALENTINE v.
CHRESTENSON
-This is a RIGHT TO LISTEN case more than a RIGHT TO SPEECH case
-The people want to find out where to get their drugs cheapest
-Commercial Speech lays in b/w Economic Activity and the rest of Speech
-J.BLACKMUN’s new F.A. Rationale:
Free flow of information to sustain an efficient market!!!
-Different than search for truth or self-governance
-Market Economy Theory: decisions will be intelligent & well informed w/ free flow of information

-J. REHNQUIST DISSENTS
-Constitution doesn’t mandate capitalism or protection of capitalism
-Consumers might not be fit to make self-governing decisions
-Commercial speech is further from the type of speech we care about
-Commercial speech is hardier b/c there is profit motive
-Commercial speech is more objectively viable
VA PHARMACY DOES NOT TELL US EXACTLY HOW MUCH PROTECTION
COMMERCIAL SPEECH GETS
-
BATES
Held : no ban on lawyer advertising
-Gets same analysis as VA PHARMACY analysis on pharmacists
CENTRAL HUDSON GAS (1980)
-Public Service Commission prohibited promotional advertising, only allowed to advertise where material was informational rather than promotional D engaged in promotional advertising designed to stimulate use of electricity
Held : Ban on promotional advertising is too extensive, fails NEW INTERMEDIATE
SCRUTINY TEST (Four Pronged Test)
1. Commercial speech must be lawful, not misleading
2. Gov’t must have a substantial interest in regulating activity
3. Regulation must directly advance gov’t purpose
4. Regulation must be no more restrictive than necessary
-J. REHNQUIST DISSENTS again and says the court is doing LOCHNER all over again
SUNY v. FOX (1989) (THIS IS STILL GOOD LAW)
The court clarified that prong #4 is not a Least Restrictive Means test
-You have to show that the alternative regulation (what it could have done to be less restrictive) is substantially less restrictive of speech in order to invalidate the regulation
-The court is reluctant to judge legislature
-Today, the question is whether a meaningful distinction can be made between commercial speech and core political speech
-The majority of the court says no meaningful distinction can be made
Intermediate Scrutiny :
-Permits regulation of content w/o compelling gov’t interest
-Allows things you wouldn’t allow in terms of content-based speech criticizing gov’t
-Less protective than VA Pharmacy
-There’s more room here for regulation

-Truthful commercial info cannot be regulated based on some adverse effect it’s going to have on the listener
-REHNQUIST: This is LOCHNER – increased scrutiny for economic rules which the court says we should leave alone
POSADAS (1986)
-PR prohibits advertising of gambling but does not prohibit gambling
-J. REHNQUIST used “ greater includes the lesser
” rationale, noting that PR can prohibit gambling so they can also prohibit advertising
Uses CENTRAL HUDSON test
-If gov’t has the authority to ban the entire activity outright, also has the less power to ban the advertising of that activity
-RICHARDS: but if the lesser power infringes on a separate constitutional right, you don’t have the power to do it
-Ex: Gov’t could ban tobacco products and the ads
-RICHARDS: tobacco speech is political speech
-REHNQUIST: this is an economic right
44 LIQUORMART (1996)
-State bans advertising for liquor
-REJECTS POSADAS
’ “greater includes the lesser” argument
-Ct is leaning towards applying strict scrutiny where truthful info is being kept form consumers under an anti-paternalism principle ( VA
PHARMACY )
INTERMEDIATE v. STRICT SCRUTINY
-Intermediate:
-Free flow necessary for consumers to make rational decisions
(right to advertise)
-Strict:
-Gov’t is trying to keep info from citizens who want/need to make informed decisions (censorship)
LORILLARD (2001)
-Mass scheme – state bans advertising of tobacco products w/in 1,000 ft. of public playground/elementary/secondary schools
Held : The regulation is too geographically broad
-Ct. does not need to use strict scrutiny, instead uses CENTRAL HUDSON
-Gov’t has substantial interest, but regulation is too broad geographically
(prong 4)

THOMPSON (2002)
-Congress enacted FDMA, exempted compounded drugs from FDA’s std drug approval requirements if, but only if, the provides of those drugs don’t advertise the use of specific compounded drugs
Held : Violates Prong 4 of reasonable fit, tailing inquiry under CENTRAL
HUDSON
-Congress could have drawn a less restrictive line
-DISSENT: the court is LOCHNER-izing
-Second guessing judgments of legislature regarding how best to regulate economic activity
CENTRAL HUDSON intermediate scrutiny test is lower std than VA PHARMACY which barred regulation on ANY lawful, non-misleading ad (per BLACKMUN)
-Close to strict scrutiny

and thus very protected
Intermediate Scrutiny under CENTRAL HUDSON
1. Commercial speech must be lawful, not misleading
2. Gov’t must have a substantial gov’t interest in regulating the speech
3. The regulation must directly advance the gov’t interest
4. The regulation must be a “reasonable fit” (SUNY)
Regulations tend to fail on this ground despite SUNY’s deference
(LORILLARD)
-Consolidating LORILLARD & THOMPSON :
-Gov’t cannot restrict commercial advertising b/c it is reasonably afraid that people are going to make bad decisions based on truthful info
-Still EXCEPTIONS:
-Advertising of illegal product or transaction
-False or misleading commercial speech
-Ads that convey image – non-informational ads (Joe Camel, Bud)
-Court is divided over purposes served by free speech; different conceptions of appropriateness of gov’t activities and decisions
-Is free speech about self-governance or about privileging info
OBSCENITY flows
-Different views on gov’t’s role in regulating economic activity
EARLY DEFINITIONS:
HICKLIN : The test is whether the material has the tendency to deprave & corrupt those whose minds are open to such immoral influences
GENERALLY:
-Two distinct periods of defamation

1. ROTH (1957 – 1973)
-Dominated by J. WARREN’s frustrating and largely unsuccessful attempts to define obscenity
-Appeals to “Prurient Interest” marked by restless cravings
-Appeals to sexual interest
DOES IT TURN YOU ON?
2. MILLER

DEFINITIONAL
& PARIS ADULT THEATERS (1973 – Present)
-Subsequent efforts to reformulate the doctrine
ROTH (1957)
-Federal statute prohibited the mailing of any obscene publications
Held : Conviction affirmed
-Obscenity is NOT protected under the F.A.
-The publication as a whole appeals to the prurient interests of the avg. person under community standards
-OBSCENITY

Whether to the avg. person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest (does it result in sexual arousal?)
-RICHARDS: Too broad!
-Applies to works that turn you on but are still good to have
-Still it is thought out and well crafted
-Obscenity has no place in the marketplace of ideas
-Degrades the morals of citizenry
-Protecting peoples’ moral or controlling thoughts are not good justifications in other areas of F.A. law!!!
-F.A. protects the freedom of imagination
-Entertainment/literature/art that is not obscene generally has full F.A. protection
-***“ What is one man’s amusement teaches another’s doctrine.***
Arguments:
For: a. It does not contribute to the market place of ideas b/c it’s only a physical stimulus b. It is of such slight social value as a step to truth that any benefit that may be derived from it is outweighed by the social interest in order and morality c. It alters peoples’ perception by a process that is, like subliminal advertising, both outside of one’s rational control and quite independent of relevant grounds for preference

Against: a. There is no reason whatsoever to believe that the freedom to determine the sexual content of one’s communications or to be an audience to such communications is not as fundamental to a person’s self-mastery as the freedom to decide upon any other communicative contents.
-State interests as furthered by the suppression of obscenity:
-Attorney general report concluded there is a causal relationship b/w sexually violent material and male aggressiveness towards women
-Morality, blah, blah, blah, etc...
MEMOIRS (NY attempt to suppress a book)
-Obscene material (1) has a dominant theme as a whole that appeals to the prurient interests, (2) is patently offensive to the community, and (3) with “utterly without redeeming social value”
STANLEY : It is constitutional to possess obscene matter, you can watch porn when you’re alone in your own living room
MILLER (1973)
-D mailed sexually explicit advertising brochures
Held : Obscene material is not protected by the F.A.
-It can be regulated by the states under the safeguards listed here and by
“contemporary community standards” that define what is obscene
-OVERBROAD? COMMUNITY STANDARD? MAYBE!
-How does one fit in?
-The “utterly” without redeeming social value test of MEMOIRS is disposed of
-Basic Guidelines:
1. Whether the avg person, applying contemporary community stds would find that the work, taken as a whole appeals to the prurient interest
-Must be turned on
-Local, subjective std
2. Whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the state law; and
-Must be grossed out
-Local,subjective std
3. Whether the work, taken as a whole, lacks serious literally, artistic, political, or scientific value
-National, objective std
-***Something wrong when court becomes the CRITIC!!!
-Thwarts this test by something educational right before porn

PARIS ADULT THEATERS (1973)
-Adult theater displayed adult films to consenting adults, attorney general filed suit
Held : States have the right to suppress obscene material if lacks serious literary, artistic, political, or scientific value
-No immunity merely b/c shown to consenting adults
-Legitimate state interest here because legislature says porn causes evils
-Not court’s place to argue against legislative research
-Even when no conclusive proof
-“Arguable correlation” passed court review
-This isn’t mind control, it’s like regulating drugs
-States have the right to maintain a decent society
-DISSENT: J. BRENNAN: Stds too vague/uncertain, may chill protected speech, stress judicial machinery, jeopardize right to fair trial!
MILLER & PARIS
-Gave the states power to regulate/control obscene materials
-Has the state engaged in thought control? – NO
-Social attitudes about obscenity have changed
-Prosecutors don’t want to bring lawsuits and jurors don’t want to convict people like MILLER
-Corporations have gotten into porn business
-Porn channels, porn in hotel chains
-Now that “obscenity” is defined in MILLER , the questions is how much suppression of obscenity is allowed?
CHILD PORN
FERBER (1982)
-Adult bookstore sold videos of boys masturbating, NY statue prohibits anyone to knowingly produce, promote, direct, exhibit, or sell any material depicting a “sexual performance” by a child under age of 16
Held : Child porn is categorically excluded from the MILLER test
-NO CHILD PORN ALLOWED
-Court engages in classic categorical balancing ( NYT ) creation of harm
-Sale makes it more likely that children will be used in child porn
-Child porn is abusive to children
-Prosecuting possession of child porn will dry up the market
-Societal value is de minimis
-No safeguards for depcitions which have serious literary, artistic, scientific, or medical value (National Geographic, medical book)
-Court eliminates third prong of MILLER test???
-Maybe just for this case?
-May use older actors who look young/simulated/etc…

ASHCROFT v. FREE SPEECH COALITION (2002)
-Congress outlawed having of-age actors who look younger, but Sup. Ct. invalidated law b/c it went beyond FERBER
-No harm to children under these facts
-Erotic themes with children is motif in literature: Romeo & Juliet
INDECENT SPEECH
COHEN (1971)
-P convicted for disturbing the peace with offensive conduct when he only wore a jacket that said “Fuck the Draft” inside a courthouse in protest of ‘Nam
Held : Conviction denied, relying on SELF-GOVERNANCE rationale
-Not libel, fighting words, hostile audience/incitement, obscenity
-Captive audience
-People are trapped and cannot leave, such that your freedom of speech infringes on their privacy
-Here people can simply “AVERT THEIR EYES”
-No captive audience problem
-Streets are different than from your home
-Court distinguishes sound cases which bombards unwilling ears
-*** J. HARLAN: “
ONE MAN’S VULGARITY IS ANOTHER
MAN’S LYRIC”***
-Impossible to distinguish what words are offensive
-For states too!!!
ERZNOZNIK
-Sup Ct invalidated Jacksonville’s ordinance banning drive-in theaters from showing nudity in movies because the law was too broad to fulfill the gov’t interest of protecting the public from offensive materials
-Rather than regulating public nuisance broadly, it picks one specific thing and regulates it

Lots is offensive besides nudity!!!
-F.A. does not allow you to single out one particular form of expression
-RICHARDS: the reason its okay to regulate more b/c if you single out one thing then its likely something beyond the gov’t interest is being advanced
-HYPO: If statute didn’t allow offensive things on movie screens/billboards
-This would violate COHEN
-You cannot prohibit that on the streets
INDECENCY
PACIFICA FOUNDATION (1978)

-Sup Ct allowed FCC to regulate when radio station broadcasted Carlin’s “Seven Dirty
Words” bit by
AD HOC BALANCING: Court weighs injury from particular speech against value of speech given these specific facts
-One man’s lyric is another man’s vulgarity (inverse of COHEN dictum)
-Impossible to “avert eyes” after hearing it
-But this conflicts with Cohen’s captive audience rejection
-Held: Ad Hoc: Where the injury from indecent speech outweighs the value of speech, it may be prohibited
***EXTREMELY NARROW HOLDING; THIS CASE IS ABOUT AN EVENT
HAPPENING ON THE RADIO AT 2 pm WITH CARLIN***
-Thus, man driving with son is offended and contacts FCC!!!
Ad Hoc:
-Uniquely accessible to children – nature of broadcast is such that little kids get insulted by words (anyone can turn on the radio at 2 pm)
-Privacy of home – something comes directly into your home is more intrusive
COHEN is square with this
-J.STEVENS: FCC needs to protect people in homes, too late to avert their eyes
-Broadcast media is uniquely accessible to children
-You can either not monitor radio or turn it on
-Can’t avert eyes ( COHEN : you get one free shot to offend someone; this might be contrary)
-Nature of penalty: ( COHEN could go to jail; PACIFICA just has to play this at a different time of day – sounds like prior restraint?)
-Low value speech
-Is it?
-Nature of medium: really hard to give warning on the radio
-Alternative: the court is not banning George Carlin
-Time of day
-***RICHARDS: the assumptions which the holding rests are WRONG!!!***
-This isn’t really low value speech
-Satire of our cultural norms is core political speech just like COHEN !!!
-This is political satire on restricting dirty language, satire of regulatory regime which is used to restrict it
DENVER AREA (1996)
-
Plurality opinion over § 10(a) of the cable act of 1984, which allowed cable television stations to determine which ads were obscene and not show these sections. Court invalidate provision § 10(b), which required cable operators who choose to carry indecent programming to segregate such programming on a single channel, to block that channel from viewer access, and to unblock it only on a subscriber’s written request – IT WAS
NOT THE LEAST RESTRICTIVE ALTERNATIVE!!! a. Majority of Court determines protection of children is a gov’t interest; i. Strikes down s 10(b) which required operators to segregate indecent materials and people had to ask for them – it potentially had a chilling effect for those that wanted these channels b/c they

SABLE (1989) would be embarrassed to go ask for the channels for fear of being on a list, etc. b. Stevens is about needing to protect people in their homes i. Although people can’t avert their eyes, he makes this about privacy and people’s rights in their own homes
-Sup Ct invalidates fed law outlawing dial-a-porn services
PACIFICA does not govern this
-Telephone is different than radio
-You have to take an affirmative step with phone sex
-W/ radio you have to opt-out (easier for kids to listen to the radio
-The radio is always on and there’s usually not phone sex lien which is blowing in the background of people
-It’s not okay for everything to be kept down to what is suitable for children to hear!!!
RENO (1997)
-Communications Decency Act Statute says, on internet, it’s illegal to communicate indecent material to minors/other statute dealt with sexual or excretory activities or organs with minors...INVALIDATED Communications Decency Act!!!
-F.A.: Treat internet like a newspaper and not like the radio
-Echoes holding in SABLE: keeping public discourse at an adult level is more important than protecting children
-VITALLY important to have adult discourse
-The internet is given full protection
-J. O’CONNOR: zoning portions of the internet for adults is possible; material can be obscene to minors
-Is it okay to penalize knowing sending of materials to minors?
ASHCROFT v. ACLU (2004)
-COPA prohibits knowingly sending any minor indecent material (given community standards) for commercial purposes; statute creates affirmative defenses for age verification, use of credit card, etc.
Held : COPA is UNCONSTITUTIONAL
-Ban was invalidated b/c it was not the least restrictive alternative (filtering software) (insufficiently tailored)
-Filtering is more effective
-Can restrict content coming from overseas
-Verification system can be subject of evasion/circumnavigation
-DISSENT:
-The fact that filtering cannot be required does not matter
-It can still be encouraged
-Statute only modestly burdens protected speech
-The Act does not censor; the restriction only results in monetary costs and possibly embarrassment; they can still access material
- 32 -

-The Act furthers a compelling interest
-It provides more blocking on top of filtering
-Filtering is the status quo
-So it is obviously less restrictive
-Four major inadequacies
1. Faulty
2. Costly
3. Not reasonable for parents to decide whether or not to enact software
4. Lack precision
PLAYBOY (2000)
-§505 of Telecommunications Act of 1996 – designed to prevent signal bleed; requires cable operators to either fully block or limit to nighttime hours sexual content
Held : §505 is unconstitutional
-Applied strict scrutiny (content-based restriction) – there are less restrictive alternatives (to fully block at those households that restrict it)
-Adults want to receive this during the day
-Can’t just block for everyone
ZONING & NUDE DANCING
BACKGROUND
Zoning

channel speech from times or places where it is most damaging to other times when interest is lesser; full benefits of lower forms of speech can still be recognized
Content-Based Restrictions : (regulations which regulate speech based on content; subjecting people to liability b/c it is defamatory, etc.; strict scrutiny review) vs. Content-Neutral Restrictions (restrictions that regulate something and have an incidental impact on speech; generally get intermediate scrutiny )
YOUNG (1976)
-Detroit restricts/disperses adult theaters by zoning regulations
-Believes adversely affects property values/crime
-Sup Ct allows since porn houses are low value speech, even though it’s content-based speech
-Constitutional to for ordinance to direct people to where they can locate w/o restricting market for certain type of speech is constitutional
-City’s interest in preserving urban life outweighs a limitation on were adult theater will be located
-COMPARING TO LORILLARD : argument here is directly contrary; maybe the argument was never raised that there is nowhere else for adult establishment owners to go
- 33 -

RENTON (1986)
-Ordinance prohibited adult theaters due to the secondary effects of the theaters
Held : Sup Ct considered the regulation content-neutral since it was based on the secondary effects of the film not the content of the film and allowed the ordinance
-AFFIRMED by ALAMEDA
-Four justice DISSENT calls this “content correlated” not content neutral or content based
-Court views this as a time, place, & manner restriction (content neutral) – applied intermediated scrutiny
NUDE DANCING
-Outmost bounds of F.A. protections
BARNES (1972) Requirement that dancers wear g-strings & pasties doesn’t violate the
F.A. b/c the nudity statute wasn’t directed at nude dancing, and thus only had an incidental effect on F.A. protected activity (secondary effects)
-Is nude dancing speech?
-Court has to say that it is expressive, symbolic speech
HATE SPEECH
DEFINED:

“Speech that is so offensive to particular and discreet groups with such a history as to treat the speech differently”
1. Handicaps marketplace of ideas (since not all are equal)
2. Recognizes injuries associate with speech (as with fighting words)
3. Slight social value to speech
BEUHARNAIS (1952)
-P distributed leaflet trying to halt/raise awareness of encroachment of Blacks, leaflet included application for White Circle League
Held : Sup Ct upheld conviction of White Circle League president for group libel
-This is libel, so low-value speech under CHAPLINSKY
-The courts defer to the states power to punish
-Received RATIONAL BASIS review;
-Considered odd holding today
-Nature of harm is different with a group than an individual
-Nature of the statement is different with a group than an individ.
-Contemporary doctrine ( NYT ) would ask whether defamed subjects (Blacks) are a public official or figure
-Strange question here!
-Actual Malice test may have worked
-J. FRANKFURTER defers to IL legislature:
CAROLENE PRODUCTS
-Created strict scrutiny for legislation which discriminated against racial/religious minorities!!!
- 34 -

PROS vs. CONS of REGULATING HATE SPEECH
Pros:
-Handicaps marketplace of ideas
-Stigmatizes and silences certain groups to not participate
-You need to REGULATE the marketplace in order to have balanced playing field!!!
-Races don’t all start at equal starting point!!!
-Really offensive
-Similar to fighting words
-Little contribution to exchange of ideas
-14 th
Amendment (Equal Protection of Rights) these might be more important than free speech rights (state action problem)
Cons:
-Marketplace of ideas
-This contributes so we don’t regulate it
-What is so bad about this compared to other speech (equality?)
-F.A. equals individual rights, not collective rights
-This is speech on matter of public concern
-McCarthy: same arguments made by anti-communist regulators about communist speech
R.A.V.
(1992)
-Sup Ct invalidated St. Paul law that made it illegal to use symbols that arouse resentment based on race, creed, religion, or gender, because these ordinances are VIEWPOINT
BASED and thus discriminatory on their face!
-P burned cross on black family’s lawn
Held : Unconstitutional because it prohibits speech solely on the basis of the subjects the speech address
-P prosecuted for his expression that was a subset of fighting words
(C HAPLINSKY )
-Content based regulations are presumptively invalid
-Content based regulations are typically suspect and held invalid unless it involves low value speech
-Viewpoint based discrimination/classifications are even worse
-Viewpoint based is a narrow subcategory of content based; regulates speech not just upon the nature of the speech but upon the particular viewpoint
-Regulations that are almost always struck down
-None of the content based restrictions hinge upon a viewpoint
-While the needs of the state are compelling, the manner of restriction does not directly serve those needs
-An ordinance not limited to the favored topics, for example, would have precisely the same beneficial effect
- 35 -

Dictum : The ordinance here should have been broadened to all fighting words or to a specific offensive mode of expression (fighting words which communicate ideas in a threatening manner)
-Statute can draw lines on the basis of content to set out those categories if those lines are related to why the speech has low value
-It is a separate question as to the lines drawn w/in those categories
-J. SCALIA: Statute doesn’t disallow cross burning; it only disallows racist cross burning
-Statute prohibits messages based on notions of white supremacy
-DISSENT: It is ridiculous that the gov’t can prohibit the entire category of fighting words but cannot prohibit a subset of that speech
-Furthermore, even though the majority fucks with strict scrutiny review, this statute would pass muster
WISCONSIN v. MITCHELL (1993)
-Black kid assaults young white boy w/ group of black friends
-Hate crime statute enhanced the max penalty for an offensive whenever the D intentionally selects the person against whom the crime is committed b/c of race, religion, color etc…
Held : The penalty enhancement provision is not overbroad because it is concerned with an unprotected area of conduct
-The case is different from R.A.V. based on the fact that the cross burner was engaging in speech
-This case concerns conduct unprotected by the F.A.: battery
R.A.V. is thought control, this case is just conduct not expression
-Otherwise a lot of criminal law is jumbled!!!
TRUE THREATS
VA v. BLACK (2003)
-VA makes it unlawful for a person w/ intent to intimidate another person or group of persons, to burn cross on property of another, a highway, or other public place
-It is prima facie evidence of intent to intimidate when burning a cross
Held : While VA may ban cross burning carried out with the intent to intimidate, the provision in the VA statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional
-Court defines cross burning with intent to intimidate a true threat
True threats are not protected by the F.A.
Def:

Statements where speaker means to communicate a serious expression of unlawful act of violence to a particular individual or group of individuals
-Squared with R.A.V.
: the statute fits within the exception of R.A.V.
-Everyone is regulated equally under the subcategory
- 36 -

-RICHARDS COUNTER: cross burning is largely a tool of white supremacy
-Statute does not single out a particular disfavored topic
-VA can prohibit subset of intimidating msg’s b/c of cross burnings long
& pernicious history as a signal of impending violence
-PLURALITY:
-VA statute criminalizes burning crosses; cross burning is presumed to intimidate
-What about situations where someone is burning a cross as part of lawful political speech?
-DISSENT: J. THOMAS: This is conduct not expression…unprotected!
-You can’t just burn down someone’s house to prove a point
-CONCUR/DISSENT: J. SCALIA: The majority opinion is not in line w/ overbreadth jurisprudence, which begs the question whether individuals who engage in protected conduct can be convicted under a statute, not whether they might be subject to arrest/prosecution
-Not overbroad because the sweep of it doesn’t substantially interfere with protected speech b/c the class of people to who it applies is extremely marginal
PORNOGRAPHY AND THE VICTIMIZATION OF WOMEN
-Two arguments to view pornography as hate speech:
1. INSIDIOUSNESS: Pornography does not act on orderly, rational basis
-It acts through images upon people’s sub-conscious to promote these negative stereotypes of women
-Subliminal advertising
-Counterargument: Satire & Parody act insidiously
2. HARM: Perpetuates harming of women
-Causes people to act in a bad way
-Counterargument: This sounds like the bad tendency test
-If you buy this argument you junk a lot of modern F.A. jurisprudence
-Counterargument: Marketplace of ideas; there’s conflicting evidence that porno causes people to act in bad ways
3. WHAT ABOUT WOMEN WHO FIND PORNO LIBERATING?
-Statute which prohibits porno:
-There is a viewpoint discrimination problem
-You cannot use sexual imagery to promote subordination of women
-But you can use for equality of women
-However, maybe not viewpoint because directed at preventing harm not at a viewpoint
-Purpose is to prevent sexual violence and discrimination not to suppress expressions of a point of view
- 37 -

-Argument for the statute:
-There’s no problem regulating here b/c the marketplace is not functioning
-The debate is skewed from its inception
-The gov’t is evening the debate out
-The harm of porno is ingrained in society
-What unites low-value speech?
-It is far from central concern of the F.A.
-Distinction b/w cognitive and non-cognitive aspects of speech
-Purpose of speaker is relevant
-In certain areas, gov’t is unlikely to be acting for constitutionally impermissible reasons
LOW VALUE EXPRESSION CATEGORIES LIST:
-Express Incitement
-Fighting Words
-Threats
-Technical Military Information
-False Statements of Fact
-Non-Newsworthy Invasions of Privacy
-Commercial Speech
-Obscenity
-Offensive Language
-Offensive Sexually Oriented Expression
-Group Defamation
-Hate Speech
-Pornography
CONTENT NEUTRAL RESTRICTIONS
CONTENT NEUTRALITY
Content Neutral

Regulation that has an incidental effect on speech but is not intended to regulate speech based on what is said
-Receives Intermediate Scrutiny
-Watch for Differential Impact in suppressing one side over the other based on the favorability of some opinions in the marketplace
Content Based

Speech regulated based on what is in the speech itself
-Receives Strict Scrutiny

Viewpoint-based
-Regulates speech on only one side of an issue
-Receives heightened version of strict scrutiny
- 38 -

HYPO: THREE DIFFERENT STATUTES AND THE PROPER LEVEL OF
SCRUTINY
1. Statute prohibits anyone from placing a message on a billboard critical of the Iraq War
(REALLY, REALLY BAD)
PROBLEMS:
-Limits the debate on one side of a matter of public concern
-There are less restrictive means of restricting the speech
-The gov’t has skewed the debate
-This undermines the search for truth by warping the marketplace of ideas and impairs the processes of self-government
(MIEKELJOHN)
-Current doctrine would classify this as “ Viewpoint Based
” discrimination and would apply strict scrutiny and strike it down absent the most compelling gov’t interest
2. Statute prohibits anyone from putting something on a billboard discussing the Iraq War
(REALLY BAD)
PROBLEMS:
-Less threatening than viewpoint based b/c it doesn’t try to skew the debate; both sides and all sides b/w are hampered
-This is still in tension with the F.A; the gov’t is still suppressing speech on a matter of public concern on the basis of its content
-This is a “ Content-Based Restriction” and it deals with “ High-
Value
” speech
-Thus, court will apply strict scrutiny and it will be struck down absent a state interest of the highest order
-A content-based (viewpoint neutral) rule is likely to have a differential impact on who can speak
-Supporters of the war are not likely to post billboards b/c their policy views are being implemented (the status quo favors inaction)
-However, those who are trying to change others’ minds are likely to speak
3. Statute prohibits anyone form putting up a billboard
(BAD)
PROBLEMS:
-This is “ Content-Neutral
”; speech is restricted, but all speech is restricted w/o reference to the content of the speech
-BLACK LETTER LAW: “ Intermediate Scrutiny
”
-Two ways speech is restricted:
- 39 -

1. Any law that restricts a means of communications (billboards, etc.) is likely to reduce the total volume of speech
-“It will dampen the vitality of the marketplace of ideas
(STONE)
2. There can be a risk of disparate impact in viewpoint theory as well
-Certain types of people might like to use billboards to convey their message (small businesses, etc.)
-E.g. People who engage in grafitti are not likely to be the enfranchised; thus we are handicapping a class of people by prohibiting it
-Similarly a prohibition on handbills (anti-handbill law) prohibits speech by poor people or labor organizers
-However the risk of viewpoint-based disparate impact is lesser here than in other ways
GENERAL PRINCIPLES
-Wide Range:
-Limits on expressive activity
-Use of loudspeakers
-Ban on billboards
-Limitation on campaign contributions
-Mutilation of draft cards
-Time-Place-Manner Restrictions Must:
1. Be justified w/o reference to the content of the speech
2. It must be narrowly tailored;
3. To serve a gov’t interest
4. And must leave open alternative channels of communication
(balancing) ( CITY OF LADUE )
SCHNEIDER (1939)
-Sup Ct. invalidated an ordinance outlawing leafleting because it failed the tailoring required
-Just regulate littering if the goal is to keep the streets clean!
-Prohibitions against blocking a street etc. are fine
-Although the statute is designed to prevent littering, an ordinance that seeks to do this by preventing people from distributing literature on the streets is unconstitutional
-Anti-littering should not be elevated over the rights of speakers
-Less restrictive regulatory alternatives
-The streets are an important place for the dissemination of information/opinions
- 40 -

MARTIN (1943)
-Sup Ct. invalidated ban on handing out literature door-to-door under the guise of preventing crime and protecting the homeowner from unwanted intrusion
-Unconstitutional because door to door distribution of info is substantial to the poorly financed causes of little people
-A person who doesn’t want to receive handbills can put up a no soliciting sign
-Narrower Tailored: Law could have just prohibited soliciting those who don’t want to be solicited
-The right of the home owner to exclude unwanted speakers from the home does outweigh the right of the speakers to speak (this is not troublesome)
KOVACS (1949)
-Sup Ct allows an ordinance regulating sound trucks
-PLURALITY: the city has a right to prohibit the dissemination of ideas in this certain manner b/c it is uncomfortable to people
-CONCURRING: J. FRANKFURTER: This has the potential to be an intrusion on privacy, this definitely is a valid interest, so ong as legislature doesn’t prescribe what ideas may be nosily expressed
METROMEDIA (1981)
-Sup Ct invalidated a San Diego ordinance that banned all billboards for the purpose of traffic safety and aesthetics
-J. BRENNAN: No link to safety and not comprehensive enough to qualify under aesthetics argument
-Unconstitutional Content-Based restriction
-DISSENT: J. STEVENS: Gov’t has a substantial interest and there are ample means of alternate expression
-Almost a split court on the constitutionality
-Some think this is content-neutral dispute and not content-based!!!
CITY OF LADUE (1994)
-Sup Ct invalidated ordinance that banned all yard signs using J. STEVENS rationale in
METROMEDIA dissent
-TIME, PLACE, & MANNER RESTRICTIONS MUST:
-Be justified without regard to content (facial content neutrality)
-Be narrowly tailored
-Be a significant gov’t interest
-Allow ample alternate means for exercising speech
-Outlawing entire categories is allowed, but there must be ample alternative means of communication
-This is a common means of speaking and there are no adequate substitutes for it
-Displaying these signs is particularly poignant:
-Signs provide info about the identity of the speaker
- 41 -

-They are usually cheap and convenient form of communication
-RICHARDS: court’s rationale doesn’t necessarily apply in LaDue (affluent area) people can afford alternative means of communication
BARTNICKI (2001)
-No liability for person under federal and state wiretap laws for disseminating intercepted cell phone call, when broadcaster didn’t commit the act
-The interests behind the wiretap laws are not served here
-Removal of incentive to wiretap private conversations; speech by a law abiding possessor of info cannot be suppressed in order to deter conduct by a non-law abiding third party
-Privacy of communications; this is a matter of public info & is truthful
***Freedom of the press wins here; there’s not a F.A. interest when people are discussing criminal conduct***
PUBLIC FORUM & SPEECH ON PUBLIC PROPERTY
BACKGROUND:
MARTIN : F.A. problems w/ application of trespass law to unwanted speakers, you can boot them out of your house
-What happens when the owner of the property is the gov’t and not a private person?
-EXTEREMELY CONFUSING DOCTINE
-Two Main Questions:
1. Does the gov’t have the same right as the homeowner to restrict speech?
-No, although the initial answer was yes in DAVIS
2. If the answer to question 1 is no, and it probably is, how does the gov’t ownership of property exclude unwanted speakers on property?
-This is a Line Drawing Exercise
-While public parks might be required to be open to public speech, the bathroom of the president is not
EARLY DOCTRINE:
COMMONWEALTH v. DAVIS, DAVIS v. MA (1897)
-MA ordinance forbade any public address on publicly owned property except in accordance w/ permit form mayor
Held
: The gov’t has the power to dictate how its land is used, much as a private property owner
-Since the gov’t has the greater power to exclude all to use its property, it has the lesser power of restricting speech
- 42 -

HAGUE (1939)
-Ordinance forbid all public meetings in the streets and other public places w/o a permit
-Citizens have a F.A. easement in this property since they have been using it for so long for the purposes of speech
-Or this could be a public trust doctrine
-Regulation must be justified
-Adverse possession or public trust used as rationale for requiring speech rights on public lands
-Regulation must be justified
SCHNEIDER (1939)
-Ordinance prohibited distribution of leaflets on public property
-Ordinance is unconstitutional! State is not free to do what it wants on its own property
-If the city wants to close its parks there’s no federal constitutional provision to stop it from doing so
-If it keeps its parks open though, it must allow speech in it
THREE CATEGORIES OF GOV’T PROPERTY
1. Traditional Public Fora: gov’t property that gov’t is constitutionally mandated to hold over for speech
-Streets & Parks
-Privately owned streets & parks
MARSH : corporation which owns land/small city
-Where private actor takes over traditional state functions, F.A. applies
-Courthouse corridor in COHEN
-This was not a content neutral restriction thus that analysis did not apply
MOSLEY
-Ordinance prohibited non-labor related picketing
-Unconstitutional b/c it makes an impermissible distinction b/w labor picketing and other peaceful picketing
-This is CONTENT BASED restriction
-Predictions about imminent disruption are appropriately made on an individualized basis not by broad classifications
-This statute should be more narrowly tailored focusing on the abuses & dealing even handedly w/ picketing regardless of subject matter
APPLY FOUR PART TEST w/ traditional public fora:
1. Justified w/o reference to content of speech
2. Narrowly tailored
3. Significant gov’t interest
4. Leave open ample alternative means of communications
- 43 -

2. Non-Public Fora: gov’t property that gov’t is allowed to close to all speech activities
TEST : Regulation must be:
1. Reasonable, and
2. Content neutral
-Ex’s: president’s bathroom, secret depths of Area-51
ADDERLY (1966)
-Student protestors protest outside of jail. Occupied part of jail entrance/driveway normally used by sheriff for transporting prisoners and for commercial concerns servicing jail, ordinance declared unlawful every trespass upon the poroperty of another, committed w/ a malicious and mischievous intent
-Statute is Constitutional
-Sheriffs didn’t object to what was said, protestors occupied space reserved for jail users
-DISSENT: There are not sufficient alternatives for these protestors to communicate, may not be able to control TV or radio’
-Ct cannot equate a private owners rights w/ that of the gov’t
3. Designated Public Fora; parks; public university campuses (where student groups/public are allowed to hold meetings after hours); public funds
LEHMAN v. CITY OF SHAKER HEIGHTS (1974)
-P south to promote political candidacy by purchasing car card space on transit system
-Ordinance banned political ads
-Where the city must minimize the chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience, the city has the discretion to develop and make reasonable choices concerning the types of ads placed in vehicles
-These are reasonable legislative objectives
-DISSENT: J. BRENNAN: The city voluntarily established this form of communication
VELAZQUEZ (2001)
-Ct invalidates federal funding restriction on challenges to federal welfare laws
-gov’t is not restricting a forum it is speaking thru those funds
-State can rationally favor childbirth over abortion
FINLEY (1998)
-NEA makes grants to promote public knowledge, appreciation of arts, etc.
-Congress directs NEA to take into consideration general stds of decency & respect for diverse beliefs/values of American public in judging artistic merit
-Ct upholds grant
-RICHARDS: This is clearly viewpoint discrimination
-Ct responds: this is not an absolute bar to indecent speech
-The NEA is not a true forum – it’s not a student activity fee
- 44 -

-CONCURRING: J. SCALIA: This is a subsidy rather than an abridgment of speech (viewpoint based discrimination is fine)
-Denying a subsidy essentially suppresses speech
-Opposite to opinion in R.A.V.
-“Viewpoint discrimination is real bad!
-DISSENTING: J. SOUTER: This is impermissible viewpoint discrimination
-Gov’t is powerful speaker which is skewing the debate
SYMBOLIC CONDUCT

Burning of a draft card, mutilating a flag, etc.
BACKGROUND:
-Can state regulate conduct w/ a symbolic component?
-One car argue that it is all a matter of conduct & the F.A. does not speak to that
-Lot of actions are deeply intertwined w/ symbolic content
-Sign language; marching/protests
-KEY ISSUE: what explains the difference b/w expressive conduct which we treat as core political speech and expressive conduct which we regulate and throw people in jail for?
-Balancing of the Harms: we recognize murder as harm
-Tradition: we think about traditional modes of expression
-Regulation is allowed for murder/assault
-Policing this line is very difficult
-You have to have both symbolic expression & criminal law

CONTENT NEUTRAL RESTRICTIONS UNRELATED TO SPEECH
O’BRIEN
(1968)
-Sup Ct refused to consider burning of a draft card as “symbolic speech” when federal statute prevents knowingly destroying the card
-SPEECH: (1) message (2) audience, and (3) “intent” of the speaker to communicate
-Intermediate Scrutiny Test:
1. Constitutional power to regulate speech
-Here power to raise armies
2. Regulation furthers a substantial gov’t interest
-Proof of draft registration
-Remainders on card (when moving, e.g.)
3. Regulations is unrelated to suppression of speech
-Doesn’t stop protests, only burning cards
4. Burdens are no greater than necessary to fulfill gov’t interest
-If you buy the arguments under #2 no problem here
- 45 -

TEXAS v. JOHNSON (1989)
-RICHARDS: This prong has problems
-Sup Ct invalidated a TX statute prohibiting burning of American flag when a protestor of Regan’s policies burned a flag at ’84 GOP convention in TX
-Gov’t is taking away symbols only from one side of the debate like R.A.V.
-TX doesn’t prohibit all burning the flag, but only when it is offensive to others
-CONTENT-BASED so subject to strict scrutiny
-No gov’t interest in protecting only one side of the argument
-Distinguished from
O’BRIEN
:
-States concerns blossom on when a person’s treatment of the flag communicates some message, and thus are related to suppression of expression
EICHMAN (1990)
-Sup Ct invalidated Congressional Act prohibiting desecration of the flag
-No singling out certain ideas and banning them based on their successful communicative event
-Though written so as not to be content based restriction, it still aims to suppress expression out of concern for its likely communicative impact
-Gov’ts interest in preserving the flag as a symbol for certain national ideals
-Strict Scrutiny: Gov’ts interest does not outweigh F.A. rights
NUDE DANCING
-Morality issue is revisited
MILLER : J. BURGER: There is a problem w/ the state prescribing a hierarchy of values
-Morality is important b/c gov’t says nudity is immoral (this destroys values)
-IS AN ORDINANCE BASED ON MORALITY CONTENT NEUTRAL?
-Judges concerned with slippery slope
-If they say stripping is speech, then others will say what they are engaged in is speech also
-We could see the court deal with this in terms of secondary effects doctrine previously
BARNES (1991)
-Nude dancing is speech but not core speech
-IN Public Indecency Statute prohibits anyone to appear in a state of nudity in public
-Constitutional!
-Application of Four Part O’BRIEN Test
-Prong 3: interest is unrelated to suppression of expression
-Court argues erotic message is conveyed w/ or w/o pasties
- 46 -

PAP’S A.M.
(2000)
-There is something incrementally expressive in taking off the last piece of clothing
-Ordinance bans nudity, city concerned w/ public, safety, health, welfare by providing an atmosphere conducive to violence, sexual harassment, etc.
-Statute does not violate F.A.!
-Rests upon secondary effects doctrine application of O’BRIEN Test
-Not content neutral to look to a particular business’ effects in banning business
-DISSENT: J. STEVENS: You can’t apply secondary effects doctrine b/c you are singling out particular content; majority is not zoning or moving people around but they are engaging in content ban, this is not content neutral b/c it is singling out strip clubs!!!
LITIGATION, ASSOCIATION, AND THE RIGHT NOT TO SPEAK
LITIGATION

Is there a right to associate for the purposes of litigation?
NAACP v. BUTTON (1963)
-Sup Ct invalidated VA law that prohibited interest groups from bank-rolling individuals
(lawyers), allowing them to make legal challenges in connection w/ litigation to which it was not a party and had no pecuniary right or liability
-Law was passed to prevent NAACP from doing this – strategic litigation
Held : The right of association is an implied right necessary to support F.A.
-For the NAACP litigation is not a resolution of private disputes, but POLITICAL
SPEECH
-Statute risks selective enforcement against groups like NAACP
-MAJORITY: J. BRENNAN: Noted that statute was vague and broad
-State’s Interest: What happens when the interests of the organization which pays the attorney’s bills diverge from that of the client’s (state wants to uphld stds for attorneys & judicial process
PRIMUS : Sup Ct held the ACLU may ambulance chase since theirs is an expressive/associative purpose
OHRALIK : Sup Ct held (on same day as PRIMUS ) that true ambulance chasers are not protected from OH Bar sanctions because theirs is not an expressive (but an
ECONOMIC) purpose

NAACP and PRIMUS involve expression for motivated political activism
OHRALIK does not involve this type of expression
- 47 -

RIGHTS OF ASSOCIATION AS EXPRESSION
ROBERTS v. U.S. JAYCEES
-Sup Ct invalidated a social networking group restriction that prohibited women from being full members (“Young Boys Club”)
-Only men b/w 18-35 can vote
-Jaycees have the right to association including the right to exclude, but MN’s anti-discrimination policy does not violate that right to association. Jaycees failed to show how having women around world thwart their expressive purpose
Factual Tailoring here: this particular group does not need to exclude women from full voting membership in order to continue to substantially promote its msg
-A state may infringe on a group of individuals’ right to associate if the infringements
1. May be justified by regulations adopted to serve compelling state interests
2. Are unrelated to the suppression of ideas
3. That cannot be achieved through means significantly less restrictive of associational freedoms (seems like strict scrutiny)
BOY SCOUTS OF AMERICA v. DALE (2000)
-Sup Ct accepted at trial BSA’s assertion that homosexuality is contrary to the group’s beliefs such that being forced to accept a gay as a scoutmaster violated the group’s right to free association (including the right to dis-association
-Different than Jaycees b/c forced inclusion here would be destructive to the group’s expression
-Prong 3 of JAYCEES Test
-Forcible inclusion of a gay scout leader has a more expressive impact (more disruptive to org. msg.) than forced inclusion of women into Jaycees
RIGHT NOT TO SPEAK
 Compelled speech: Is there a right not to speak; a right not to have the gov’t force you to express speech where that speech is against your convictions, or under any circumstances for that matter?
PRUNEYARD
-Sup Ct prevented a private shopping center from excluding student leafleting when alleged only a right to dis-associate
-J. REHNQUIST: Just put a sign that says you don’t agree
-It’s clear that the message is the students, not the center
-Counterspeech is available
- 48 -

BARNETTE
-Sup Ct held that gov’t cannot compel flag salute and pledge
-The state is forcing an affirmation of a political belief
-Overrules GOBITIS
PRUNEYARD involved preventing speech; this is COMPELLING speech
WOOLEY
-Sup Ct prevented NH from punishing people who covered their license plates (“Live
Free or Die”) when the motto offended NH residents
-Gov’t can’t compel speech
-State has no business forcing people to engage in endorsement/expression
-Reconciling PRUNEYARD w/ BARNETTE & WOOLEY
PRUNEYARD is allowed to engage in counterspeech; BARNETTE students are not
PRUNEYARD : there is not compelled speech; something about public accommodation context is different
-There has to be an opt-out
-BLACK LETTER LAW: pledge of allegiance can be said, but it cannot be mandated
FREEDOM OF THE PRESS
FOUR MAJOR QUESTIONS
1. Is there special treatment for the press? GENERALLY, NO!
PENTAGON PAPERS, BARTNICKY, NYT :
-Press is D in these cases
-Role of the press is to inform
-Press does have a structural role
-J. STEWART RATIONALE: Free press clause extends protection to an institution; the publishing business is the only organized private business that is given explicit constitutional protection
-Press is a “fourth” wing of the gov’t
-C.J. BURGER: (1) History suggests originally “Freedom of Speech” and
“Freedom of Press” were synonymous and (2) creates extraordinary definitional problem in determining what is and is not “press”
-But who qualifies as the press?
-Line drawing issues
-Should we read the fact that the press is mentioned in the Constitution as giving it special protection?
2. Is there a F.A. right to gather news? Are there other F.A. protections of the press?
- 49 -

BRANZBURG (1972)
-Sup Ct held that a reporter does not have F.A. right to refuse to testify before a grand jury in protection of his confidential sources
-Reporter can:
(a) be a martyr and go to jail,
(b) seek protection under applicable state laws, or
(c) use a motion to quash
-Motion to quash always available if prosecutor is:
(a) singling out the reporter or
(b) are frivolous to the issue in the case
General Principle
: Laws of general applicability which don’t place special burdens on the press apply to the press just like everybody else
-RICHARDS: Ct makes what amounts to be a faulty empirical argument
-Reporters will not be deterred
FOOD LION
-Press is not protected from tort damages in gathering news, but press is protected from any incremental increase in damages as a result of the publication
COHEN v. COWLES
(???)-Sup Ct refused to create “legally binding confidentiality” when press reneged on pledge to keep confidentiality in exchange for hot gossip about the MN governor
(OK)

Where the press breaches an oral contract by printing a truthful, newsworthy story, it can still be held liable under a promissory estoppel claim
-Generally applicable laws apply to the press just like everyone else
-Creates a legally enforceable promise of confidentiality: binding promise enables confidential sources to confide to reporters, confident that they won’t divulge their identity
PELL & HUTCHENS (1974)
-Press has no right to receive info that is not available to the public
RICHMOND NEWSPAPERS (1980)
-There is a basic presumption in our society that trials should be open to the public, thus the press cannot be barred from a criminal proceeding
(1) This isn’t a special press right, it’s a public right
(2) RATIONALE:
-Criminal trial has historically been open to the press and general public
-Right of access to criminal trials plays a particularly significant role in the functioning of the judicial process and gov’t as a whole
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GLOBE (1982)
-Trials should be open to the public
-Both GLOBE and PELL & HUTCHENS hinge on right of PUBLIC not PRESS, which prevents line-drawing in (1) who is the press and (2) what special info they deserve
-Where a state has a compelled interest in denying the right of access to a criminal trial, the denial must be narrowly tailed to serve that interest
(1) Here, there is a tailoring problem, there’s no need for a mandatory closure rule; this should be decided on a case-by-case basis
(2) DISSENTING: J. BURGER/REHNQUIST: The public and the media still have access to information; children deserve this limited protection
HOUCHINS v. KQED (1978)
-There is an undoubted right to gather news from any source by means w/in the law, but that affords no basis for the claim that the F.A. compels other - private persons or gov’ts
– to supply information
-CONCURRING: J. STEWART: Press required more frequent visits than typical person; but they still should not have been given access to areas where public was denied access to
-DISSENTING: J. STEVENS: There is no reason for denying press’ access to the prisons; concealing knowledge of prison operation abridged F.A.
3. Can laws single out the press for special regulatory burdens or punishments? (Laws which single out the press for special regulatory burdens/punishments)
-GENERALLY, NO
-Viewed as highly suspicious
MN STAR
-Can’t single out and treat the press differently because laws must be of general applicability
-Here a tax on ink and paper used in newsprint
4. Can the gov’t regulate the press to improve the “marketplace” of ideas?
-GENERALLY, NONT UNLESS THE MEDIUM IS SCARCE
1. MIAMI HERALD
-Gov’t can’t compel “equal” editorials
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2. RED LION
-Radio airwaves are scarce, so gov’t holds them in public trust and may regulate content
PACIFICA
3. TURNER BROADCAST SYSTEMS
-Gov’t cannot regulate cable channels, which are more like newspapers than radio stations in terms of a lack of scarcity
4. ACLU v. RENO
-The Internet too is more like newspapers/cable channels in terms of scarcity
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