Constitutional Law II:
Professor Williams
Fall 2002
(Potential exam questions)
PART I: FREE SPEECH
I.
First Amendment Doctrine: General
a. Doctrine
i. 2 Questions
1. Scope of right – whether 1st amendment applies to particular
repression of speech; depends on variables below
2. Strength of right – assuming 1st amendment applies, what level of
protection is afforded; depends on variables below
3. Definitional balancing – using the strength of a right to define its
scope; ie. a weaker speech category may be curtailed easier (e.g.
libel)
4. Religion – same 2 questions; note that Establishment clause applies
to scope
ii. Variables
1. Character of speech – what category is the speech in?
2. Nature of governmental regulation – content neutral,
time/place/manner, etc.
3. Importance of state interest – compelling state interest for strict
scrutiny
b. Themes
i. Values served by free speech and dangers of suppression: why is it worth
protecting? What should we protect? See theories below
ii. Expression vs. action
iii. Content neutrality and non-discrimination: mode vs. speech itself
iv. Categorization: can we draw lines between categories of speech? If not,
why not?
v. Role of government as facilitator: equalizing voices – is that abridgement
of speech or ensuring equal right to speak?
c. General Issues in Constitutional Law
i. Political: countermajoritarian problem of appellate courts determining
constitutionality; note constitution itself is countermajoritarian because it
sets limits on majority’s will
ii. Linguistic: ambiguity of words in the constitution, and the court’s ability
to interpret language
iii. Sociological: change vs. stability, progress vs. framers’ intent
iv. Challenges:
1. As applied – only looks at the particular case at bar and says the
law should not be applied to me. Does not strike down law.
2. Facial – looks at entire restricted class and says unconstitutional as
applied to anyone. Strikes down law, but higher standard of
scrutiny than as applied challenges
II.
3. Overbreadth – special to constitutional issues; can argue that even
if the law is OK as applied to me, there is a potential person out
there who would be wronged by it. Chill problem. Strikes down
law when it is substantially overbroad (Broadrick v. OK), ie.
substantial universe of possible speakers must be chilled for
overbreadth to work. NOT USED for lower protected speech.
4. Vague – notice problem; strikes down law.
d. Types of Effects
i. Communicative: those harms that stem from speaker sending a message
and that message being received by the listener; ask whether harm occurs
through the mind of the listener
ii. Non-communicative: those harms that happen regardless of message;
memory aid: if the speech was in a foreign language nobody understood,
would the harm still happen?
iii. Primary: direct effect of message – communicative harms
iv. Secondary: indirect effect of mode of speech – non-communicative harms
e. General Levels of Scrutiny
i. Strict Scrutiny: compelling government interest, least restrictive means
ii. Content Based: substantial government interest, narrowly tailored,
adequate alternatives
iii. Time, place & manner: content neutral, reasonable government interest,
narrowly tailored, with adequate alternatives
iv. Rational Basis: reasonable government interest
History of Free Speech
a. Framers’ Intent
i. Blackstonian theory: government regulation prohibited as prior restraint,
but free to regulate after publication. Idea is that individuals should be
responsible for harms they cause, but can say what they want anyway.
Can’t decide if something’s harmful before it is said – hence no prior
restraint.
ii. Seditious libel: a subsequent punishment for inflammatory speech against
the government (Chafee, Levy)
1. What was Framers’ intent?
a. Historical evidence – problem being evidence is never clear
cut
b. Availability of other means of criticism – not enough to
restrict criticism to voting, because slower, inefficient, and
only majority views. Also, free speech necessary for
informed voting.
c. Limit – clear and present danger
2. Zenger principles: Levy believes Framers initially accepted libel
prosecutions so long as these principles applied
a. Truth as a defense – but hard to prove truth of opinions
b. Jury trial required – but jury is not always impartial to
unpopular opinions
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III.
c. Intent to cause injury to government established – too easy
to establish from speech against government
3. Democratic theory: Political view of government – does state
control people, or vice versa? Chavee says no libel possible
because people are master of the state, so state can’t control what
people say.
4. Is seditious libel central?
iii. Federalism: (Levy) Because the federal government is of limited powers
according to intent of Framers, it could not regulate speech even without
the 1st amendment. A surety more than necessary. States, however, could
regulate speech
iv. Impact of Alien & Sedition Acts: (Levy) changed Framers’ intent because
it threw out the Federalism idea. Political power struggles based on
shifting focus from British vs. colonial to inter-American politics caused
this, the prior/subsequent restraints idea was dumped, and the 1st
amendment took off.
v. Relevance of Press Practice: (Rabban) More freedom of press occurred
during Framers’ time than showed in constitutional harangues; what’s
more important, theory or practice?
b. Why is Framers’ Intent Relevant?
i. Objectivity
1. Value – stable objective starting point for meaning of clause
2. Possibility –
a. Levels of generality – what might have been general intent
can differ from specific intent
b. Historical evidence is shaky
ii. Binding: social contract theory – intent of “parties” to k is important in
interpreting boundaries of the state’s ability to regulate for the better wellbeing of all. But do we sacrifice progress?
c. Alternative Sources of Constitutional Restraint
i. Natural Law: moral basis for law; if constitution matches natural law, then
it is right. Hard to tell what natural law is – different for each person
ii. Social Engineering: utilitarian theory - maximize welfare in the same way
that murder crime does; but are we bound to punish innocents to maximize
welfare?
iii. Social Cohesion & Identity: commonality and identity creation – nation
building
Theories
a. Truth Theory (Mill, Milton)
i. The Way It Works: The purpose of free speech is achieving truth. All
opinions must be expressed to get there.
1. True Opinions – suppressing truth would be antithetical to purpose,
but must keep true opinions constantly open to challenge because
of fallibility. Distinction between allowing speech because we
recognize our fallibility and allowing ourselves to act even though
infallible because we can speak against actions and correct
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ourselves later. Critical examination is therefore key.
Suppression also intimidates, and stunts social
capacities/intellectual faculties – enhances fear to think, similar to
self-fulfillment theory here.
2. False Opinions – valuable in strengthening arguments for true
opinions; keeps truth from becoming stale. Keeps people open to
change toward truth, especially where opinions are partially true,
partially false. Over-emphasis of unpopular views gets majority
attention and moves us all toward truth via change.
ii. Assumptions
1. Fallibility – we are not infallible, and therefore don’t know truth
when we see it to regulate it; but along with fallibility comes
ability to correct ourselves.
2. Value of truth – truth theory believes truth is the highest goal, and
the way to self-fulfillment.
3. Ability of people to recognize & accept truth – truth theory
assumes that people will recognize and accept truth over false
opinions (otherwise too risky to allow false opinions).
iii. Criticisms
1. Application
a. Market imperfections: in a perfect market for speech,
truth would win, but in reality many imperfections keep us
from that goal (distortion based on power, money, etc.);
also, sheer quantity of information is too much for people
to handle.
b. Time: do we always have time to talk? Clear and present
dangers
2. Theoretical
a. Empirical claim: not possible to determine if free speech
leads to truth because:
i. Time problem – have to know what is true
beforehand
ii. Ambiguous causation – can’t tell that expression of
ideas was what caused change
iii. Evaluation of progress – is flat world going around
sun -> round world at center of universe a move
toward truth?
b. Analytical claim:
i. Implausible assumptions
1. Is truth the only goal? What if a statement is
true but runs against other strong values?
Ex. study showing men smarter than
women.
2. People don’t necessarily accept truth –
psychological studies showing reluctance to
change; exposure to ideas is insufficient
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3. Reason leads to truth, but we are infallible,
so how do we know that reason is leading to
truth?
ii. Tautalogical – if truth is whatever people believe
after free discussion, then truth never bears relation
to external reality
iv. Implications
1. Countermajoritarianism – protect minority for the good of
majority and minority; speaker protection not only for speaker but
listener as well
2. Ambiguity – narrow view of truth as only prepositional would cut
out protection of art, music, etc. Also, if we only care about truth,
then we can channel speech to make it more difficult and not be a
serious abridgement – even content based.
3. Change vs. tradition – tradition has no value in itself – must
change toward truth
b. Democracy Theory
i. Liberal vs. Republican Theory
1. Liberal Theory
a. Deontology: moral values are subjective, endowed with
reason to choose values
b. Most important value: equal liberty to express yourself
c. Respect capacity for choice – majoritarian democracy
(Locke)
2. Republican Theory
a. Teleology: moral values are objective, and purpose of life
is finding truth
b. Discovery of common good can only happen in societies,
through participation and facing of other opinions
c. Must promote common good by creating virtuous citizens
who put common good ahead of their own personal desires
(Rousseau)
ii. Meiklejohn
1. Argument
a. Democracy means people control – state is by and for the
people, so citizens need free speech to govern. Certain
powers are delegated to government, but power to vote is
retained solely in the people.
b. People need speech to control
i. Information - Information gathering purpose of
free speech (similar to Mill)
ii. Participation – people play dual roles: public
citizens as voters, private citizens as those who
submit to laws created. Important to speakers so
they can participate in government and raise new
ideas
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c. Purpose of speech is to protect speech necessary for
democratic government – so focus on public role as voter.
Necessary to fulfill constitutional requirements – so not
really a fundamental right, but only that because the
constitution chooses democracy, we must have free speech
to be in keeping with that
2. Criticisms
a. Ambiguous definition of democratic regulation/value
choice – line between useful and not useful speech is
ambiguous
b. Public/private distinction – problematic, because private
speech has indirect effects on public discourse (where do
you draw the line)
c. Decision to suppress – when is danger enough to suppress?
Doesn’t government have ability to protect citizens from
immediate violence before it occurs? Too late.
3. Implications
a. Countermajoritarian – minority view is cut out under either
deontological or teleological theories, and become
suppressed – so doesn’t protect speech for all
b. Ambiguity
i. Scope of right – critical speech is protected, as well
as private speech that protects the politus
ii. Types of speech – doesn’t like clear and present
danger because balancing danger against speech,
and speech in a democracy is vital to the
government; only when incitement to violence is
immediate could the state step in
iii. Type of environment – some areas are protected
more than others (prisons, military schools are not
protected because not democratic societies)
iii. Bork & Sunstein
1. Bork:
a. Value of free speech is search for political truth – political
truth = will of the majority
i. Scope of right: speech must be political (ie. about
how we are governed) to be protected – either
content is political/has political effect, or the form
is political (ie. speech at the courthouse), or has a
political intent
ii. Explicitly political speech: highest protection goes
to explicit political content speech, then form, then
intent
iii. No advocacy of illegality: must work within the
law, can’t go around it, because if you go around
the law you go around the Constitution which
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protects speech in the first place. Must use
democratic process to change law.
b. Criticisms –
i. Scope doesn’t match value: political speech may
not spread political truth
ii. Value is not unique to speech: political truth may
be found in other ways than speech
iii. Advocacy of illegality serves value too: will of
majority (ie. political truth) is always changing, so
advocacy of illegality must be protected to change
2. Sunstein:
a. Republican model of democracy – political process is for
finding common good, and must have adequate information
to do this. To have adequate information you need political
equality of citizens (esp. voting) and participation by all
citizens.
b. Role of speech within republican democracy – free market
model – need free speech to give information
c. Criticisms –
i. Not in touch with reality: manipulation of process
is routine so no equality, and not perfect flow of
information.
ii. Everyone has a different view of what the common
good is.
iii. Free market model is problematic because new
ideas do not have the demand to be heard (ex. of
press sensationalism & agendas) – mass market
problems. Can say that government may regulate
speech market, but in reality there is strong distrust
of government.
c. Utilitarian & Tolerance Theories
i. Utilitarian Theory
1. Arguments (Schauer)
a. Mental fitness – max. utility is achieved through move
toward truth, which is facilitated by free speech (like Mill).
Utility of free speech is in sound mind achieved through
clash of ideas. Teleological.
b. Suppression doesn’t work – curiosity of citizens in
suppressed speech makes falsehoods stronger – assumes no
100% suppression possible
c. Social stability – free speech reduces use of violence
because it lets off tension, enhances trust in government,
participation makes people inclined to follow rules even if
they don’t agree,
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d. Dangers of censorship – breeds violence; censorship is
poorly done; human need to suppress ideas we disagree
with
2. Criticisms
a. Doubtful assumptions –
i. Assumes people know truth from falsehood
ii. No empirical data for counterproductivity of
suppression
iii. Assumes distrust in government (because
suppression enhances interest)
iv. Assumes speech does not fuel anger or violence
b. Limited application – does not work for non-propositional
speech; only looks at utilitarian values
ii. Tolerance Theory (Bollinger)
1. The Theory
a. Intolerance as expression – both tolerance and intolerance
(ie. regulation) are expressive responses to speech. Also,
push toward intolerance for fear of what tolerance might
indicate – weakly held beliefs, uncertainty, etc.
b. Applies to all acts – but single out speech as enclave of
tolerance because it causes less harm than acts
c. Free speech teaches tolerance – by providing one area of
perfect tolerance, it teaches us to be tolerant in other areas
of life too
2. Criticisms
a. Scope – extreme tolerance in this one area is possible
because it is a smaller area – as opposed to requiring total
tolerance across the board. But where do you draw the line
between speech and act? Not a clear boundary.
b. Strength – should be absolute if extreme tolerance, though
Bollinger says some regulation allowed – inconsistent.
c. Timing – is intolerance more acceptable in war time, etc.?
d. Countermajoritarian in that extreme tolerance protects
minority views against the majority’s will to intolerance.
d. Self-Realization Theory
i. The Theory
1. Value defined: For Baker, self-fulfillment and the expression of
that value, participation in social change. All other values are
subsumed in these two values. For Redish, self-fulfillment
through realization of an individual’s potential and abilities and
realization of an individual’s goals, destiny. More focus on
controlling individual’s life – speech helps define our goals.
2. Source of value:
a. Philosophy (Baker) - Basis of a legitimate government is
respect for citizens – basis for society. Deontological basis,
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because high respect for reason and truth is chosen, not
discovered.
b. Choice of democracy (Redish) – constitution commits us to
democracy, which is focused on individual control of our
daily lives and decisions. Also, participation in political
process moves us toward full potential. Democracy and
speech are means to self-realization. Teleological basis.
3. How free speech serves: least coercive, destructive method of
changing others’ views, because it works through the mind.
Speech that is a part of coercion is not protected.
a. Coercion is defined as leaving the listener with fewer
options than he has a right to expect, or illegitimately
changing those options – illegitimate means are those that
do not respect listeners’ autonomy
4. Two Step Analysis (Baker):
a. Voluntary? If not voluntary, then analysis stops because
speech must be voluntary to be self-expressive.
b. Non-coercive? Only harm considered is harm to autonomy
(not respect, property, etc.)
5. Scope of right: Baker suggests new categories a. Self-expressive speech – includes that speech that noone
else ever sees, and that without intent to change views.
b. Creative speech – not communication but participation in
culture
c. Commercial speech is left out because he assumes it is
driven by the market, not creativity or self-expression
6. Strength of right:
a. Absolute (deontology) – because if abridged then
government legitimacy is undermined.
b. Not absolute (teleology) – could be outweighed by other
goods than free speech
ii. Criticisms
1. Values controversial: and based on one version of what legitimates
government – if you don’t buy the underlying values, then you
can’t buy this argument at all.
2. Speech harms are not the only kind that work through the mind;
example of theft not harmful without concept of ownership.
Possible distinction, however, is that with theft “listeners” have no
choice as to whether the harm will be inflicted. With advocacy of
burning draft cards, or obscenity causing listener to rape, some
listener has choice.
3. Scope:
a. Has no distinction between speech and action for either
theorist
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IV.
b. Is non-voluntary speech without value as defined here?
Teleological response would say that distinction between
voluntary and non-voluntary is not clear
c. Value hierarchy problem, because my self-expression
might harm others’ personal growth
4. Strength: absolute is hard to sell, but balanced right requires a line
drawn that is hard to do.
e. Elements of a Theory:
i. Specify values – what does self-fulfillment mean?
ii. Find source for values - problems of ambiguity in constitution and
controversial nature of moral/political theories
iii. Define scope of right – how does speech serve those values, and why do
unprotected activities and speech not serve those values?
iv. Define strength of right – justify level of protection that the theory leads
to, balancing other concerns against the right, depending on the source of
values (deontology/teleology)
v. Do theories explain each of the categorical exclusions the Court has
created?
Government Regulation of Speech on the Basis of Content
a. Categories Government May Regulate Based on Content
i. Subversive Speech
1. Consequences of speech
a. Clear & present danger vs. tendency
b. Interpretive issues –
i. Immediacy of harm gleaned from nature of speech;
ii. Likelihood of harm occurring; Schenck look to
totality of the circumstances
iii. Size of the harm
iv. Relationship between the other variables
2. Roll of intent
a. Evidence of danger
b. Attempt analogy – Schenck, Debs (1919) uses attempt
analogy to explain why they punish speech instead of
waiting for harm to occur; requires nexus between speech
and crime, which is clear & present danger test
c. Statutory interpretation vs. const’l requirement – legislature
has sometimes included intent requirement, but it’s not in
the Constitution (Debs)
3. Character of speech – incitement vs. advocacy (Masses,
Brandenburg)
a. Statutory interpretation vs. const’l requirement – move
toward including intent requirement in constitutional
analysis
b. Judicial competence – better able to deal with language
than determining causal harms
4. Application (court vs. legislature)
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a. General judgment of harm – Gitlow reliance on legislature
to determine harm; Brandenburg, court decides
Situation
Legislature proscribes action
and D hauled in for speech
leading to action
Conspiracy to cause harm
proscribed by legislature
Law Applied
Schenck, Debs
Outcome
Clear & present danger 4 part test –
will speech lead to proscribed end
Dennis, Yates
Legislature proscribes speech
itself as dangerous, and an
individual is prosecuted
Brandenburg (over Gitlow,
Whitney)
As applied challenge only if harm is
not present in this particular case
(but under Dennis not even this);
possibly an overbreadth
challenge/vague, but no cases to
date. Question as to importance of
size of harm to Dennis analysis.
Constitutional interpretation:
directed to producing or inciting
imminent lawless action and likely
to produce such action.
ii. Libel and Privacy Invasion
1. Group Libel – Beauharnais: rational basis review, very low,
because libel is not protected speech – historical basis, and so little
value that it is overwhelmed by interest in protecting reputation of
citizens; question with regard to application to hate speech laws.
Requires a defined group and P to fit in that group.
2. Individual Libel
a. Character of P
i. Public figure – NY Times: libel against public
figures is only punishable if done with actual
malice; otherwise, public figures should be hardy
enough to survive it. Ltd. vs. general public figure
distinction – should/do general public figures have
any privacy?
ii. Private figure – Gertz: only actual damages, no
actual malice required.
iii. Character of D – media vs. not media
3. Privacy – Florida Star: statutes that protect privacy must:
a. Concern private figures;
b. Apply to everyone;
c. Not apply to public issues;
d. Concern illegally obtained information
e. Falwell – emotional distress is not enough to uphold
privacy claim against speech
4. Explanation
a. Purpose of false speech – anti-chill
b. Government interest – reputation of citizens
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c. Theories of speech – Mill, Meiklejohn
*LIBEL*
Public figure
Private figure
*PRIVACY*
Public issue and private figure
Private issue and private
figure
Issue of Public Concern
New York Times, Curtis,
Rosenbloom – actual malice
for liability; presumed and
punitive damages
Gertz – no actual malice for
actual damages
Case
Issue not of public concern
Ltd. figure – if in the ltd. role
then in NY Times; if outside then
Dunn or Gertz
General figure – NY Times
Dunn & Bradstreet; common law
question, no std. for actual
damages – just show damages
Result
Actual malice std.
Statute only OK if 1. concerns
private figures; 2. applies to all
D; 3. Not applied to public
issues; 4. concern illegally
obtained info. Strict scrutiny std.
Public figure, protected speech Falwell
Emotional distress is not enough
to stop speech
iii. Fighting Words, Offensive Speech, Hostile Audiences
1. Fighting Words
a. Definition (Chaplinsky)
i. Those that by their very utterance inflict injury or
tend to incite an immediate breach of the peace.
Does not have to be face to face or directed to an
individual in Chaplinsky, but later cases limit it as
such.
b. Explanation
i. Value of speech – in promoting ideas is outweighed
by the government interest
ii. Government interest – in promoting order and
morality
2. Hostile Audiences
a. Clear & Present Danger (Terminiello)
i. Intent relevant? Cases are pre-Brandenburg, so
likely intent to incite would be relevant now
ii. How likely the harm? imminent
b. Control crowd vs. control speaker – should police have
the duty to protect speakers from unruly crowds?
3. Offensive (but not obscene) (Cohen)
a. Offensive speech is not enough to justify content based
regulation of speech unless the listener’s right to privacy is
high and offensiveness is achieved in an essentially
intolerable manner. Two concerns: 1. Where offense
Time
Florida Star
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takes place (public vs. private) and 2. How hard it is to
escape the offense.
b. Is it less dangerous to regulate based on method of
expression of speech, rather than the ideas the individual
expresses?
iv. Obscenity and Porn
1. Obscenity Defined
a. Elements
i. Average person applying community standards sees
the work, taken as a whole, goes to prurient interest
(Roth)
1. Community standards depend on locality
(Miller), though the constitution provides a
floor (nudity is not enough by itself).
Community is made up of adults, unless
work is directed to or reasonably expected to
get to kids
2. Prurience is a shameful or morbid interest in
sex
ii. Sexual conduct must be specified in regulating
statute (Miller) – notice requirement, but
ambiguous
iii. Without serious social value (Miller) – ambiguous,
lesser std. such that speech with small social value
is abridged
b. Problems
i. Vagueness
ii. Overbreadth
2. State Interests
a. Moral interests
i. Individuals’ thoughts – not allowed (Stanley)
ii. Moral tone of communication – changes tone of
speech, eventually changes culture b/c expected
responses, etc. Change vs. stability
b. Other
i. Preventing crime
ii. Preventing offense to unconsenting adults
iii. Protecting minors
iv. Physical changes in communication
3. Justifications
a. Lacks contribution to purpose of speech
b. Method: physical vs. mental/emotional - an obscene
movie is more immediate and bypasses rational faculties –
is this a reason to exclude (cf. art)
Situation
Case
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Outcome
Obscenity in commercial
transactions
Private viewing of obscene
materials
Miller
No protection, rational basis
review
Higher than rational basis
review because lower harms,
etc.
Stanley
4. Child Pornography
a. State interest:
i. Distribution vs. production: Ferber
ii. Distribution vs. possession: Osborne
iii. Real children only: Ashcroft
b. Social value: Ferber
c. Overbreadth issues: doesn’t work here because government
interest in protecting children overrides any “good” reason
for the speech
Situation
Child porn is produced or
distributed
Child porn is privately
viewed/owned
Virtual child porn
Case
Ferber
Osborne
Ashcroft
Outcome
Just about any regulation goes,
very low standard; perhaps an
overbreadth argument?
State may regulate
Must pass Miller standard for
obscenity
5. Harm to Women:
a. Consent: in Ferber, harm was assumed because kids can’t
consent. Question as to whether this would carry over to
adult women.
b. Reasons to have statute: gender discrimination, rape,
copycat acts, silencing and decredibilizing of women,
keeps men from having good relations with women.
Theories supporting this?
c. If we allow free speech, is there an attaching duty to
remedy the gender inequality in another way? If we stop
speech, acknowledge that we are inhibiting it for some
other social purpose. Balance 1st and 14th amendments.
6. Near-Obscene Speech
a. Character of sp: lower value (Am Mini’th)
b. Nature of regulation:
i. Subject not viewpoint based
ii. Restriction not ban: (Schad, Papps)
c. Nature of gov’t interest
i. Primary effects: communicative only if (Pacifica)
1. Privacy and/or
2. Intolerable manner
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ii. Secondary effects: non-communicative
1. Content neutral, e.g. noise is OK
2. Content based, e.g. urban blight is OK
(Renton)
Case
Result
American Minitheaters,
Low protection: substantial
Renton
government interest, and
reasonable alternatives
Situation
Sexually explicit speech that
does not meet obscenity
definition is zoned but not
banned
Sexually explicit speech that
Schad
Low protection: substantial
does not meet obscenity
government interest, narrowly
definition is banned
tailored
v. Commercial Speech:
1. First Amendment value –
a. Misleading speech or illegal activity excluded (VA
Pharmacy)
b. True and legal protected but lower value - does no more
than propose commercial transaction; free flow of
information
c. Not fully protected because verifiable, durable (no chill b/c
market driven), low risk of self-interested censorship; are
these always true though?
2. Government interest –
a. Substantial
b. Must be purpose other than the fact that the object is lower
value speech (Discovery Network; compare Breard with
Martin – once there is a separate legitimate purpose, it is
easier to regulate lower value speech (Breard) than fully
protected speech (Martin)).
c. Paternalism per se illegitimate because not the
government’s place to regulate flow of information (VA
Pharmacy, 44 Liquormart)
3. Nature of regulation –
a. Content distinction must be directly related to state interest
b. Narrowly tailored (44 Liquormart) – directly related to
state’s end and no more extensive than necessary (Fox).
Situation
Regulation of commercial
speech
Total Ban of commercial
speech
Case
Ohralik, Bates
44 Liquormart, CENTRAL
HUDSON, VA Pharmacy
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Result
Important state interest,
reasonable alternatives
1. protected by 1st Amendment
(concerning lawful activity
and is not misleading); 2.
government interest is
substantial; 3. regulation
directly advances the
Hybrid of commercial and
political speech
Misleading speech or illegal
activity
government interest; 4. not
more extensive than necessary
Higher protection due to
higher first amendment value
No protection (dicta)
In re Primus
VA Pharmacy
vi. Hate Speech
1. Group libel – Beauharnais?
a. Limits: problematic b/c not all hate speech is libelous; also
may not be good law b/c of NYTimes standard or Gertz
2. Fighting Words – (Chaplinksy)
a. Could fit if directed at an individual, but signs or symbols
wouldn’t be covered. Also, may not actually incite
violence
b. Content discrim. in excluded category?
3. New Category – (Ferber)
a. Need to indicate high state interest and low value of
speech; but note that this would be viewpoint
discrimination, so higher standard
b. Symbolic speech gets protection (Collin – “Skokie”)
4. Context
a. University – less tolerance because of need to provide good
learning environment?
b. General public/public spaces
5. How would you draft a constitutional regulation?
Situation
Regulation of excluded
category
Regulation of fully protected
speech
Case
RAV
Collin
Result
Content-based regulate must
equal boundary of category to
get rational basis review,
otherwise strict scrutiny
Content based regulation
receives strict scrutiny
b. Enforced Speech – Right to Silence
i. Explanation
1. Misinterpretation of identity, discredit voice (Wooley)
2. Hateful support – appropriation of speech
ii. Gov’t speech vs. coerced speech
1. Collection of factors
2. Affirmative vs. support
3. No ‘establishment’ clause for speech (Barnette)
Situation
Regulation compels individual
Case
Barnette, Wooley, Abood
16
Result
Depends on harms
speech
Regulation compels
acceptance of speech on
private property
Activity is speech
Pruneyard
Commercial activity involved
Glickman, United Foods
Hurley
(misinterpretation,
appropriation): either strict
scrutiny or not
Depends on nature of property
and harm to owner – open to
public, likely regulation OK
Owner must have control over
content
Coercive speech is OK within
general regulatory framework
and where there is no
ideological speech involved
c. Government Control of Speech in Exchange for Benefits
i. Right vs. privilege: initial view of question (changed now)
ii. Main question: is this a penalty for speaking or is it a refusal to fund
speech?
iii. Unconstitutional condition doctrine: (Spizer)
iv. Continuum of state subsidized speech:
Public forum: individual
expression of pt. of view,
vwpt discrim. not OK
(Scalia)
*Can meaningful sp. happen without
funding? (determine baseline of
support expected from gov’t)
*Purpose of program to create forum
or carry gov’t message?
*Competitive structure of program
based on subject or vwpt. discrim?
Situation
Funding is to promote
government speech
Case
Rust, N.E.A.
Funding is to promote private
ideas
Rosenberger, Velazquez
Result
Content discrim (both subject
and vwpt) is OK, unless only
meaningful way of funding
speech (b/c then penalty) –
refusal to subsidize speech
Content discrim is not OK –
strict scrutiny – penalty for
exercise of fundamental right
Government Regulation of Speech That Is Content Neutral (TPM)
d. Traditional Public Forum
i. Content neutral – test:
1. On its face
17
Gov’t as speaker: paid
for by gov’t, vwpt
discrim. OK (Souter)
a. Viewpoint vs. subject matter discrimination
b. Not the most important inquiry (Hill)
2. Non-communicative harm (Mosley)
3. No discretion (Cox)
ii. Narrowly tailored significant state interest
iii. Adequate alternatives – considerations:
1. Cost of convenience
2. Format bans (Schneider) – ban on an entire method of
communication. If strong enough interest in that method, strict
scrutiny applies
e. New Forums
i. Non-traditional Public Places
1. Unlimited designated forum – treated like traditional public
forum
2. Limited designated forum – if the regulation is at the same line as
the boundary of the forum, then OK; if not, then strict scrutiny.
ii. Private Property
1. Character of property
a. Openness to public – choice of owner, up to point where
speech disrupts purpose of property, except where geared
toward the purpose of the property and no other way to get
speech across
b. Essentially government function – degree it looks like
traditional public function or forum (Marsh)
2. Speaker’s rights/adequate alternatives
a. Scarcity and relative market power – not quantifiable
b. Relation to particular speech – need for access to particular
property for particular speech (Amalgamated Foods)
3. Owner’s rights
a. Property
b. Speech/silence
18
19
Government owned?
Yes
No
Yes
Looks like
traditional public
forum (Marsh)?
Traditional public forum?
No
Yes
Content based =
strict scrutiny
(Mosley)
No
Content neutral =
TPM or minimum
access claim
(Schneider)
Designated public
forum?
Yes
Yes
Limited
Unlimited
Content based =
strict scrutiny
Content neutral =
TPM but no
minimum access
No
Non-public forum =
reasonableness std.
except vwpt. discrim.
might get strict
scrutiny (Krishna)
Discrim. inside
boundary
Discrim.
outside
boundary =
reasonableness
std.
Content
based =
strict
scrutiny
Forum Determination
Content
neutral =
TPM but
no min.
access
No 1st
amendment
protection
(Hudgens)
V.
Government Regulation Not Aimed at Speech – Symbolic Speech
a. When action is expressive (Spence)
i. Intent to convey message
ii. Receipt of message possible by audience
b. O’Brien standard
i. Substantial state interest – note that preserving national symbol is not
enough (Johnson) unless it’s the only one of its kind (ex. Kennedy flame),
in which case using it as speech would impede enjoyment by others.
ii. Unrelated to suppression
1. Non-communicative harm
2. Government interest in national symbols
iii. Narrowly tailored
c. Relation to other standards
i. TPM
1. Court says same and applies same cases (Clark)
2. Criticisms
a. Different problems: facilitative vs. expressive
b. O’Brien should be higher than TPM
c. Ignores precedent
ii. Secondary effects
1. Erie majority says related
2. Erie dissent distinguishes
d. Incidental regulations
Situations
Regulation unrelated to
speech, focusing on secondary
effects
Case
O’Brien, Clark
Regulation of lower value
symbolic speech
Erie
Generally applicable
Arcara, Minneapolis Star
regulation of another activity
that falls disproportionately
upon a particular speech
activity
Regulation of symbolic speech Johnson
directly
Result
Rational basis & adequate
alternatives; note distinguish
between speech and
facilitative action
Rational basis & adequate
alternatives; note distinguish
between speech and
facilitative action
Strict scrutiny (prior
restraint?)
Treated as speech generally,
based on forum, content
neutrality
VI.
VII.
VIII.
Prior Restraints
a. Definition – preventing speech before uttered, rather than subsequently punishing
the speech. Court is hostile to prior restraints because
i. Truth will never get out unless people can speak
ii. Too much discretion in licensors
b. Standard of Review (either/or)
i. Direct, Immediate & Irreparable – if it meets this standard, then prior
restraint is OK. Brandenburg plus analysis – also, no intent required.
ii. Deference to Executive – in determining dangerous nature of speech,
balance deference to executive with judicial determination.
c. Procedural Safeguards – censor’s decision can’t be final, must have expedited
review. Freidman v. Maryland. Some leniency in this toward lower value
speech; for example, some states require viewing of near-obscene films to see if
they are saleable.
d. Interpretive Issues
Freedom of Association
a. Why protect? Where a means of furthering speech and ideas, then first
amendment association with protection. Private interference with right to
associate is enough to invalidate a government requirement of disclosure of
affiliation. NAACP v. Alabama (1958). Not certain this would be extended to
other contexts today. Note that there is no differentiation of direct and indirect
impact on association – all get strict scrutiny.
b. Kinds of Association
i. Intimate – small, selective, and exclusive private groups, such as families
and neighborhood associations. Protected under the 14th amendment.
ii. Expressive – purpose of furthering speech and sharing of ideas
c. Standard of review – strict scrutiny
i. Jaycees, Rotary Club – compelling state interest in gender equality, and
clubs could say what they wanted to say while being forced to include
women.
ii. Hurley, Boy Scouts – no compelling state interest in sexual orientation
equality, and boy scouts said their speech had to exclude homosexuals. 54 decision with strong dissent.
Money in the Political Process
a. Speakers’ identity
i. Individual
ii. Political party
iii. PAC
iv. Corporation
1. For profit
2. Not for profit & advocacy
3. Media
b. Political activity regulated
i. Candidate related
1. Campaign contribution
2. Coordinated contributions
22
3. Contribution to multi-candidate PAC
4. Independent expenditures
ii. Issue related
1. Ballot initiative
2. Contribution to issues PAC
c. State’s interest
i. Corruption
ii. Democracy
iii. Closing loopholes
iv. Protecting shareholders’ 1st amendment rights
(See next page for diagram of campaign finance reform)
23
24
Individual
Campaign
contribution
Coordinated
contribution
Contribution
to multicandidate
PAC
Independent
expenditures
Limit OK
(Buckley)
Limit OK
(Buckley – OK
as long as tied
to the
candidate; CO
Rep. Fed.
Campaign
Comm.)
Limit OK
Political Party
Not-for-profit For Profit
Corporation
Corporation
Media
Limit OK
(Austin)
Limit OK
(Austin; CO
Rep. Fed.
Campaign
Comm.)
Limit OK
(Austin)
Limit OK
(Austin; CO
Rep. Fed.
Campaign
Comm.)
?
Limit OK (CO
Rep. Fed.
Campaign
Comm.)
Political
Action
Committee
Limit OK
(Nixon)
Limit OK (CO
Rep. Fed.
Campaign
Comm.)
Limit OK
Limit OK
Limit OK
Limit OK
?
Limit OK if not
segregating
funds (Austin)
?
Limit
Limit
Limit
?
unconstitutional unconstitutional unconstitutional
(Buckley)
(CO Rep. Fed.
(NC PAC)
Campaign
Comm.)
Ballot
initiatives
Contributions
to issue PAC
Limit OK
(Nat’l Right to
Work Comm.)
?
Limit
?
unconstitutional
(Bellotti;
Austin
requirement of
segregated
funds)
?
Action or speech? (Spence)
Character of
speech
Fully protected
Lower Value:
commercial,
near obscene
Not
protected:
libel, child
porn, fighting
words,
obscenity
No
CB distinction?
No
Yes
What forum?
CB distinction?
Yes
CB distinction?
No
Traditional public: TPM
(Clark, Krishna); see
other chart
Penalty?
Refusal to
subsidize:
Rust, Finley,
Velasquez
Character of
regulation,
forum
No
CB distinction same as
category boundary?
Yes
Rational Basis
Designated public:
see other chart
Yes
CB distinction same as
category boundary?
Yes
Non-public: see other
chart
No
Legitimate government
interest?
Private property: see
other chart
No
No
Yes
Yes
Illegitimate: false idea,
moral corruption,
indoctrinate ideas,
insulate national symbol,
equalizing voices, etc.
Legitimate compelling
state interest
RAV – strict
scrutiny
Near-obscene:
communicative
harm or not?
Yes
What forum?
Public: strict
scrutiny.
Mosley, or
Brandenberg for
subversive
speech
No
American Minitheaters
Designated, non-public,
and private forums: see
other chart
Commercial speech: VA
Pharmacy definition, Central
Hudson 4 part test, 44
Liquormart against paternalism
Pacifica, Cohen (see forum
analysis)
Overbreadth, vagueness, prior restraint, theories of speech, and freedom of
association apply across the chart.
28
PART II. RELIGION CLAUSES.
I.
II.
Purpose of Religion Clauses
a. Enlightenment Liberalism (Madison, Jefferson)
i. Nature of religion –
1. duty to God, which comes first before duty to the State; also a matter of
conscience, so impossible to force compliance.
a. Locke concept – cannot coerce belief, the substance of religion – only
practice. Protestant view of religion being an internal, personal
activity. State, by contrast, is a limited social contract, separate from
natural rights under divine law. Religion, being internal, is irrelevant
to secular regulation of behavior.
2. Discrimination between sects is impermissible – historical impetus.
3. Government involvement in religion robs religion of its energy – dead dogma.
4. Religion is a fundamental right
ii. Nature of the state
1. Less respect for laws if noxious to many citizens – judges cannot play God.
2. Slows flow of immigration to the US – practical concerns
iii. Anti-clericalism – suspicion of clerics based on Locke’s view that belief is
internal, and therefore clerical established external institutions were due
suspicion.
b. Protecting Faith (Williams)
i. Different assumptions – religion “garden” must be protected from “wilderness”
of the state.
1. State would corrupt religion, so establishment clause actually keeps the state
from “helping” religion, which would corrupt it.
2. Free exercise clause keeps state from attacking religion.
ii. Different implications
1. Points to ceremonial deism to show no fear of religion harming politics.
c. Secularism/Neutrality (Curland)
i. Laws are OK that make no reference to religion at all – neither helping nor
hindering individuals based on religion. Religion may not be used to categorize
people.
d. Three Values in the Doctrine
i. Voluntarism - idea that freedom of individual conscience (ie. personal choice) is
important and intended to be protected by the religion clauses
ii. Separation – of church and state for mutual benefit.
iii. Neutrality – of government action with regard to religion.
Establishment Clause
a. Financial Aid to Religious Institutions
i. Discrimination vs. aid to all religion
1. Everson – Discrimination between religions is no worse than discriminating
between religious and non-religious.
2. Waltz – tax exemptions are not aid to religion because not government
money.
3. Zellman – neutrality most important.
III.
ii. Lemon test:
1. Secular purpose
2. No primary effect of benefiting religion
a. General laws vs. targeted laws
b. Private choice vs. direct aid to religion
c. Endorsement
d. Supplementing vs. supplanting
e. Aid used for core religious activity: religious content and/or diversion
3. No entanglement
a. New part of effect analysis?
b. Political divisiveness issues
b. Government Use of Religious Symbols
i. Endorsement – apply Lemon test
1. Whose perspective?
2. Message of hostility?
3. Individual vs. government speech
ii. Coercion
1. Free expression vs. establishment
2. What kind of coercion?
3. How much coercion?
iii. Neutrality
1. No preference?
2. Accommodation – allowed, and if so what kind?
iv. Government purpose
1. Purpose vs. motive
2. Evidence requirement
3. Should this be part of test?
v. Historical Practices
1. Relevance to interpretation
2. Political problems with invalidation
c. Institutional Entanglement
Free Exercise Clause
a. Definition of Religion
1. Statutory cases – decision based on a statute (see conscientious objector
statute)
2. Constitutional cases – decision based on reading of the Constitution;
interpretation of terms through Constitution, rather than statute itself.
3. Can be religion of one, and does not have to be logically consistent. Must
only be sincere, as evidenced by prior actions.
b. What is a burden?
1. Government action places a burden on free exercise of individual’s religion
2. Laws facially directed at religion
a. No discrimination between religion (Hialeah)
b. Strict scrutiny even where non-sectarian
3. Facially neutral general laws
a. Internal government action (Lyng)
30
IV.
b. Impact on believer’s own action – disparate impact claims
i. Reynolds – initially not sympathetic to believer – polygamy in
UT banned.
ii. Sherbert – 7th Day Adventist denied unemployment benefits;
unconstitutional because forced a burdensome choice between
religion and entitlements. No establishment clause problem
when free exercise requires an accommodation. See also
Hobby.
iii. Smith - as long as impact was incidental to generally applicable
neutral law, the law receives no heightened scrutiny.
iv. Religious Freedom Restoration Act – response to Smith;
required strict scrutiny for religious exemption claims. Struck
down in Flores. 6 justices in favor of Smith reading.
v. City of Borne
vi. What next?
Conflict Between Clauses - Accommodation
a. After Smith, not required
b. No establishment if –
i. Lifts burden imposed by government (Amos, Sherbert) – so no establishment
clause problem with free exercise accommodation.
ii. No tendency to coerce or influence religion – choice
iii. No burden placed on others to support accommodation (tax, draft)
iv. No endorsement of a particular religion or sect, or religious practice (Thorton)
31