CONSTITUTIONAL LAW SPRING 2007 – PROF. FISCHER
Outline for Class 30: Classification Based on Gender
(continued), Alienage, Illegitimacy, Disability, Age and
Wealth
1. CENTRAL THEME: substantive limits on government provided by
the Equal Protection Clause in the XIV Amendment with respect to
gender classifications, alienage classifications, illegitimacy
classifications (discrimination against nonmarital children), disability
classifications, age classifications, and wealth classifications
2. GENDER DISCRIMINATION CONTINUED: Proving gender
discrimination
A. Facial gender classifications (see outline for Class 29)
B. Facially gender neutral laws: require both discriminatory
impact and discriminatory purpose Personnel Administrator of
Massachusetts v. Feeney (1979) (CB p. 803)
C. There must be a gender classification to get more than
rational basis review: Geduldig v. Aiello (1974) (CB p. 793)
(effectively overruled by Pregnancy Discrimination Act, 42 U.S.C.
§ 2000(e)(k).
D. Sex-specific Statutory Rape Laws: Michael M. v. Superior
Court (1981) (CB p.794)
E. Military registration and the combat exclusion: Rostker v.
Goldberg (1981) (CB p. 796)
F. Gender Classifications Benefiting Women Because of
Biological Differences Between Men and Women: Caban v.
Mohammed (1979) (CB p. 799), Parham v. Hughes (1979) (CB p.
800), Nguyen v. INS (2001) (CB p. 800)
3. ALIENAGE CLASSIFICATIONS: No “person” shall be denied
equal protection of the laws (XIV Amendment)
A. Discrimination against noncitizens as opposed to national
origin
B. Relationship to preemption analysis Toll v. Moreno (1982) (CB
p. 813)
C. Before 1971 Court was very deferential to discrimination
against aliens as long as it related to a “special public interest.”
D. As of 1971: strict scrutiny Graham v. Richardson (1971) (CB p.
811).
E. Graham applied: Sugarman v. Dougall (1973) (CB p. 811), In
1
re Griffiths (1973) (CB p. 811)
F. Is strict scrutiny is appropriate for review of discrimination
against aliens?
G. The governmental exception to strict scrutiny: Foley v.
Connelie (1978) (CB p. 812) (police officers); Ambach v. Norwick
(1979) (CB p. 812) (public school teachers); Bernal v. Fainter
(1984) (CB p. 812) (exception inapplicable for restriction on
notaries public
H. Is the governmental exception to strict scrutiny justified?
I. Deference to federal laws that discriminate against aliens
Mathews v. Diaz (1976) (CB p. 814); Hampton v. Wong (1976) (CB
p. 813)
4. ILLEGITIMACY CLASSIFICATIONS (DISCRIMINATION
AGAINST NONMARITAL CHILDREN)
A. What level of scrutiny is used? Clark v. Jeter (1988) (CB p.
817)
B. Laws that provide benefits to marital children but deny them
to ALL nonmarital children. Levy v. Louisiana (1968) (CB p.
815), Trimble v. Gordon (1977) (CB p. 816)
C. Laws that provide a benefit to some nonmarital children, but
deny to others: Labine v. Vincent (1971) (CB p. 815), Mathews v.
Lucas (1976) (CB p. 816)
5. CLASSIFICATIONS FOR WHICH COURT HAS RULED
RATIONAL BASIS REVIEW IS APPROPRIATE: AGE,
DISABILITY, WEALTH
A. Age: Massachusetts Board of Retirement v. Murgia (1976) (CB p.
823)
B. Disability: City of Cleburne, Texas v. Cleburne Living Center, Inc.
(1985) (CB p. 818)
C. Wealth: Harper v. Virginia Board of Elections (1966) (CB p. 824),
James v. Valtierra (1971) (CB p. 825)
D. San Antonio School District v. Rodriguez (1973) (CB p. 873) (I will
just tell you about these unassigned cases in brief)
6. CLASSIFICATIONS BASED ON SEXUAL ORIENTATION:
Supreme Court has not yet ruled on appropriate level of scrutiny
A. Romer v. Evans (1996) (CB p. 825): rational basis review used,
significance
2
CONSTITUTIONAL LAW SPRING 2007 – PROF. FISCHER
Outline for Class 31: Classifications Based on Illegitimacy,
Disability, Age, and Weath: State Action
1. CENTRAL THEMES: (a) substantive limits on government provided
by the Equal Protection Clause in the XIV Amendment with respect to
gender classifications, alienage classifications, illegitimacy classifications
(discrimination against nonmarital children), disability classifications, age
classifications, and wealth classifications; (b) requirement for state action
2. ILLEGITIMACY CLASSIFICATIONS (DISCRIMINATION
AGAINST NONMARITAL CHILDREN)
A. What level of scrutiny is used? Clark v. Jeter (1988) (CB p.
817)
B. Laws that provide benefits to marital children but deny them
to ALL nonmarital children. Levy v. Louisiana (1968) (CB p.
815), Trimble v. Gordon (1977) (CB p. 816)
C. Laws that provide a benefit to some nonmarital children, but
deny to others: Labine v. Vincent (1971) (CB p. 815), Mathews v.
Lucas (1976) (CB p. 816)
3. CLASSIFICATIONS FOR WHICH COURT HAS RULED
RATIONAL BASIS REVIEW IS APPROPRIATE: AGE,
DISABILITY, WEALTH
E. Age: Massachusetts Board of Retirement v. Murgia (1976) (CB p.
823)
F. Disability: City of Cleburne, Texas v. Cleburne Living Center, Inc.
(1985) (CB p. 818)
G. Wealth: Harper v. Virginia Board of Elections (1966) (CB p. 824),
James v. Valtierra (1971) (CB p. 825)
H. San Antonio School District v. Rodriguez (1973) (CB p. 873) (I will
just tell you about these unassigned cases in brief)
4. CLASSIFICATIONS BASED ON SEXUAL ORIENTATION:
Supreme Court has not yet ruled on appropriate level of scrutiny
A. Romer v. Evans (1996) (CB p. 825): rational basis review used,
significance
5. STATE ACTION
A. What is the doctrine of state action?
3
B. Civil Rights Cases (1883) (CB p. 888): Fourteenth Amendment’s
protections apply only to state and local government action, not
private conduct. “Individual invasion of individual rights is not
the subject-matter of the [Fourteenth] amendment . . . The
wrongful act of an individual, unsupported by any such authority, is
simply a private wrong or a crime of that individual. [I]if not
sanctioned in some way by the State, or not done under State
authority, [the injured party’s] rights remain in full force, and may
presumably be vindicated by resort to the laws of the State for
redress.”(Justice Bradley) (at CB p. 889).
C. According to Justice Bradley, did Congress have power to enact
the Civil Rights Act of 1875 under § 5 of the XIV Amendment
and/or the XIII Amendment? (note that only Justice John
Harlan dissented; he was the sole dissenter in the Plessy v.
Ferguson case) (1896) (CB p. 671).
D. Note that Justice Bradley’s interpretation of the XIII
Amendment has been overruled in subsequent cases.
E. Justice Bradley’s interpretation of § 5 of the XIV Amendment
was reaffirmed in United States v. Morrison (2000) (this aspect of
the decision is mentioned at CB p. 175; you can read that portion
of the decision (not assigned) at CB p. 970 if you are interested)
F. Is the holding of the Civil Rights Cases as to state action still valid
constitutional law?
G. Why is there a state action requirement? (text, history, policy
justifications)
H. What are the dangers of a state action requirement?
I. When is an entity part of the government? San Francisco Arts &
Athletics, Inc. v. United States Olympic Committee (1987) (CB p.
922)
J. Exceptions and qualifications to the state action doctrine
(historical trends: 19402-1960s expansive application of state
action; from 1960s narrower application of doctrine)
1. XIII Amendment directly regulates private conduct
2. Public functions exception (tasks that have traditionally
been done only by the government): Marsh v. Alabama
(1946) (CB p. 894) (company town)
a. Are shopping centers covered by the public
functions exception? Amalgamated Food Employees
Union v. Logan Valley Plaza (1968) (CB p. 895);
Lloyd Corp v. Tanner (1972) (CB p. 895); Hudgens v.
4
NLRB (1976) (CB p. 895). Note that in PruneYard
Shopping Center v. Robins (1980) Court held that
California could create a right in the state
constitution to access private shopping centers for
speech purposes, even if there was no such right in
the United States Constitution.
b. Are parks? Evans v. Newton (1966) (CB p. 896)
What about an amusement park or golf course?
c. Are elections public functions? White Primary Cases
(Nixon v. Herndon (1927) (CB p. 897), Nixon v.
Condon (1932) (CB p. 897), Grovey v. Townsend
(1935) (overruled in Smith v. Allwright (1944) (CB p.
897), Terry v. Adams (1953) (CB p. 898)
d. Private utility company Jackson v. Metropolitan
Edison Co. (1974) (CB p. 898)
e. Private creditor’s self-help repossession Flagg
Brothers v. Brooks (1978) (CB p. 899)
3. Entanglement exception (government authorizes,
encourages, or facilitates conduct)
a. Judicial and law enforcement actions Shelley v.
Kraemer (1948) (CB p. 901) (enforcement of
restrictive covenants). [ Note: Court has only rarely
applied Shelley to find state action. See, e.g. Evans v.
Abney (1970) (CB p. 904), Bell v. Maryland (1964)
(CB p. 906)]. Lugar v. Edmonson Oil Co. (1982) (CB
p. 921) (court issue of writ of prejudgment
attachment); Edmonson v. Leesville Concrete Co.
(1991) (peremptory challenges)
b. Government licensing and regulation of activity.
E.g. Burton v. Wilmington Parking Authority (1961)
(CB p. 907); Moose Lodge No. 107 v. Irvis (1972)
(CB p. 911), CBS v. Democratic National Committee
(1973) (CB p. 912)
c. Government financial support: Gilmore v. City of
Montgomery (1974) (government assistance);
Government subsidies: Blum v. Yaretsky (1982) (CB
p. 920), Rendell-Baker v. Kohn (1982) (CB p. 920)
d. What about where state is encouraged by a private
party? Is that private party a state actor NCAA v.
Tarkanian (1988) (CB p. 922)
5
4. Federal statutes, such as Civil Rights Act of 1964 (what is
the basis for congressional power to enact such statutes?)
6
CONSTITUTIONAL LAW SPRING 2007 – PROF. FISCHER
Outline for Class 32: State Action Exceptions, Freedom of
Expression I – Less Protected and Unprotected Expression
1. Central Themes: (a) exceptions to requirement for state action(b) The
history and purposes of the First Amendment, speech as a fundamental
right, types of expression that is u protected or less protected by the First
Amendment (incitement of illegal activity and fighting words)
2. STATE ACTION
K. What is the doctrine of state action?
L. Civil Rights Cases (1883) (CB p. 888): Fourteenth Amendment’s
protections apply only to state and local government action, not
private conduct. “Individual invasion of individual rights is not
the subject-matter of the [Fourteenth] amendment . . . The
wrongful act of an individual, unsupported by any such authority, is
simply a private wrong or a crime of that individual. [I]if not
sanctioned in some way by the State, or not done under State
authority, [the injured party’s] rights remain in full force, and may
presumably be vindicated by resort to the laws of the State for
redress.”(Justice Bradley) (at CB p. 889).
M. According to Justice Bradley, did Congress have power to enact
the Civil Rights Act of 1875 under § 5 of the XIV Amendment
and/or the XIII Amendment? (note that only Justice John
Harlan dissented; he was the sole dissenter in the Plessy v.
Ferguson case) (1896) (CB p. 671).
N. Note that Justice Bradley’s interpretation of the XIII
Amendment has been overruled in subsequent cases.
O. Justice Bradley’s interpretation of § 5 of the XIV Amendment
was reaffirmed in United States v. Morrison (2000) (this aspect of
the decision is mentioned at CB p. 175; you can read that portion
of the decision (not assigned) at CB p. 970 if you are interested)
P. Is the holding of the Civil Rights Cases as to state action still valid
constitutional law?
Q. Why is there a state action requirement? (text, history, policy
justifications)
R. What are the dangers of a state action requirement?
7
S. When is an entity part of the government? San Francisco Arts &
Athletics, Inc. v. United States Olympic Committee (1987) (CB p.
922)
T. Exceptions and qualifications to the state action doctrine
(historical trends: 19402-1960s expansive application of state
action; from 1960s narrower application of doctrine)
1. XIII Amendment directly regulates private conduct
2. Public functions exception (tasks that have traditionally
been done only by the government): Marsh v. Alabama
(1946) (CB p. 894) (company town)
a. Are shopping centers covered by the public
functions exception? Amalgamated Food Employees
Union v. Logan Valley Plaza (1968) (CB p. 895);
Lloyd Corp v. Tanner (1972) (CB p. 895); Hudgens v.
NLRB (1976) (CB p. 895). Note that in PruneYard
Shopping Center v. Robins (1980) Court held that
California could create a right in the state
constitution to access private shopping centers for
speech purposes, even if there was no such right in
the United States Constitution.
b. Are parks? Evans v. Newton (1966) (CB p. 896)
What about an amusement park or golf course?
c. Are elections public functions? White Primary Cases
(Nixon v. Herndon (1927) (CB p. 897), Nixon v.
Condon (1932) (CB p. 897), Grovey v. Townsend
(1935) (overruled in Smith v. Allwright (1944) (CB p.
897), Terry v. Adams (1953) (CB p. 898)
d. Private utility company Jackson v. Metropolitan
Edison Co. (1974) (CB p. 898)
e. Private creditor’s self-help repossession Flagg
Brothers v. Brooks (1978) (CB p. 899)
3. Entanglement exception (government authorizes,
encourages, or facilitates conduct)
a. Judicial and law enforcement actions Shelley v.
Kraemer (1948) (CB p. 901) (enforcement of
restrictive covenants). [ Note: Court has only rarely
applied Shelley to find state action. See, e.g. Evans v.
Abney (1970) (CB p. 904), Bell v. Maryland (1964)
(CB p. 906)]. Lugar v. Edmonson Oil Co. (1982) (CB
p. 921) (court issue of writ of prejudgment
8
attachment); Edmonson v. Leesville Concrete Co.
(1991) (peremptory challenges)
b. Government licensing and regulation of activity.
E.g. Burton v. Wilmington Parking Authority (1961)
(CB p. 907); Moose Lodge No. 107 v. Irvis (1972)
(CB p. 911), CBS v. Democratic National Committee
(1973) (CB p. 912)
c. Government financial support: Gilmore v. City of
Montgomery (1974) (government assistance);
Government subsidies: Blum v. Yaretsky (1982) (CB
p. 920), Rendell-Baker v. Kohn (1982) (CB p. 920)
d. What about where state is encouraged by a private
party? Is that private party a state actor NCAA v.
Tarkanian (1988) (CB p. 922)
4. Federal statutes, such as Civil Rights Act of 1964 (what is
the basis for congressional power to enact such statutes?)
3. FREEDOM OF EXPRESSION UNDER THE FIRST
AMENDMENT
A. Text: “Congress shall make no law . . . abridging the
freedom of speech, or of the press. . .”
B. Historical background: suppression of speech in England
(licensing, seditious libel)
C. Purposes of the First Amendment
D. First Amendment theory: why should freedom of speech be
a fundamental right? (a) self-governance (b) the
marketplace of ideas (Holmes), (c) personhood and
autonomy (d) promoting tolerance (e.g. Bollinger)
E. Some types of speech are unprotected or less protected by
the First Amendment. Today we will look at two:
incitement of illegal activity and fighting words
4. LESSER PROTECTED SPEECH - INCITEMENT OF
ILLEGAL ACTIVITY
A. Cases developing “clear and present danger” test: Schenck
v. United States (1919) (CB p. 998), Frohwerk v. United
States (1919) (CB p. 999), Abrams v. United States (1919)
(CB p. 1002) (dissent of Holmes, joined by Brandeis)
B. Red Scare cases: Gitlow v. New York (1925) (Holmes, joined
9
by Brandeis, dissenting) (note: first case indicating the First
Amendment applied to the states through incorporation
under the XIV Amendment), Whitney v. California (1927)
(Brandeis, joined by Holmes, concurring) – Court later
retreats from Gitlow-Whitney approach in cases like
Herndon, not in the assigned material.
C. McCarthy era cases: Dennis v. United States (1951) (CB p.
1023): a move away from speech protective model of clear
and present danger test (plurality opinion of Chief Justice
Vinson) – how does it differ from Holmes-Brandeis model of
clear and present danger?
D. Back to Holmes-Brandeis more speech protective approach
approach: Brandenburg v. Ohio (1969) (CB p. 1033)
E. Applying Brandenburg ( very few cases have applied or
explained it): Hess v. Indiana (1973) (CB p. 1036), NAACP
v. Claiborne Hardware Co. (1982) (CB p. 1036).
5. UNPROTECTED SPEECH - FIGHTING WORDS
A. Chaplinsky v. New Hampshire (1942) (CB p. 1040)
B. Requirement of direction to specific person, likely to
provoke violent response: Cohen v. California (1971) (CB p.
1043), Texas v. Johnson (1989) (CB p. 1042)
C. Cases overturning fighting words laws: Gooding v. Wilson
(19720 (CB p. 1041), Rosenfeld v. New Jersey, Lewis v. New
Orleans, and Brown v. Oklahoma (1972) (CB p. 1041)
10
CONSTITUTIONAL LAW CLASS 33: FIRST AMENDMENT –
INJURY TO REPUTATION AND SENSIBILITY – FROM
UNPROTECTED SPEECH TO LESSER PROTECTED SPEECH
1.
2.
3.
CENTRAL THEMES: Types of expression that is unprotected
or less protected by the first amendment (expression that
injures reputation, privacy and sensibility)
GROUP LIBEL: Is group libel protected by the First
Amendment? Beauharnais v. Illinois (1952) (CB p. 1054)
premised on theory that defamation liability is unlimited by
the First Amendment. Is that still a valid premise?
i.
Unwillingness of courts to follow Beauharnais: Skokie
controversy (CB p. 1077)
ii.
Recent efforts to revive Beauharnais: hate speech,
pornography (we will consider later)
LIBEL
i. Common law tort: In general defendant must prove falsity
except in cases of absolute or qualified privilege
ii. New York Times v. Sullivan (1964) (CB p. 1056) (First
Amendment limits on tort liability)
iii. Sullivan and its progeny: a complex series of rules designed
to balance the need to protect reputation with safeguarding
free expression.
iv.
Public officials: Sullivan “actual malice test” (Plaintiff
must prove)
v.
Standard of proof in defamation cases involving public
officials: “clear and convincing evidence” of falsity and
actual malice – Sullivan, Bose (1984) (CB p. 1062)
vi.
Plaintiff has burden of proof as to falsity of the
statement: Philadelphia Newspapers v. Hepps (1986) (CB
p. 1062)
vii. Extension of Sullivan to public figures: Curtis Publishing
Co. v. Butts and Associated Press v. Walker (1967) (CB p.
1062)
viii. Private figures: Rosenbloom v. Metromedia (1971) (CB p.
1064) : Court initially extends Sullivan standard to suits
by private figures involving matters of public concern,
Gertz v. Robert Welch (1974) (CB p. 1064) (rejects
Rosenbloom) (private figures need only prove falsity of
11
4.
5.
statement and negligence to recover compensatory
damages for libel – not actual malice – although actual
malice is required for punitive or presumed damages –
no guidance in Gertz or later cases as to who is a private
figure)
ix.
Private figure: speech on a matter of public conern: Dun
& Bradstreet, Inc. v. Greenmoss Builders (1985) (CB p.
1067) (plurality) (Gertz requirement of actual malice for
presumed and punitive damages only applies in suits that
involve private figures and matters of public concern)
NON-DEFAMATION TORTS
i.
False light privacy tort: Time, Inc. v. Hill (1967) (CB p.
1070) Does Sullivan actual malice standard apply?
ii.
Intentional infliction of emotional distress: Hustler
Magazine v. Falwell (1988) (CB p. 1067) does Sullivan
actual malice standard apply?
iii. Public disclosure of private facts: Cox Broadcasting Co.
v. Cohn (1975) (CB p. 1071), Florida Star v. B.J.F. (1989)
(CB p. 1071) – can truthful publication ever be punished
consistent with the First Amendment?
iv.
Truthful publication of information illegally obtained
from private nongovernmental sourcse: Bartnicki v.
Volper (2001) (CB p. 1071) – does freedom of speech
outweigh privacy interests at issue?
v.
Right of publicity: Zacchini v. Scripps-Howard
Broadcasting Co. (1977) (CB p. 1073)
vi.
Copyright law: Harper & Row v. Nation Enterprises
(1985) (CB p. 1074)
HATE SPEECH
i.
Fighting words: R.A.V. v. City of St. Paul (1992) (CB p.
1079)
ii.
Cross burning: Virginia v. Black (2003) (CB p. 1090)
iii. Penalty enhancement for hate crimes: Wisconsin v.
Mitchell (1993) (CB p. 1088)
12
CONSTITUTIONAL LAW CLASS 34: FREEDOM OF EXPRESSION
– LESS PROTECTED AND UNPROTECTED SPEECH: HATE
SPEECH, CHILD PORNOGRAPHY, OBSCENITY, SEXUALLY
EXPLICIT EXPRESSION, INDECENCY
1. CENTRAL THEMES: TYPES OF EXPRESSION THAT IS
OUTSIDE THE PROTECTION OF THE FIRST AMENDMENT
OR HAS LESS PROTECTION
2. TEXT: “Congress shall make no law . . . abridging the freedom of
speech or of the press . . .”
3. HATE SPEECH:
A. Fighting words: R.A.V. v. City of St. Paul (1992) (CB p.
1079)
B. Cross burning: Virginia v. Black (2003) (CB p. 1090)
C. Penalty enhancement for hate crimes: Wisconsin v. Mitchell
(1993) (CB p. 1088)
4. OBSCENITY
A. Obscene speech is outside of First Amendment Protection:
Roth v. United States (1957) (CB p. 1096) (Brennan, J.)
(obscene material is “material which deals with sex in a
manner appealing to prurient interest”), Paris Adult Theatre
v. Slaton (1973) (CB p. 1104)
B. Should obscene speech be outside of First Amendment
protection? Should the government be able to decide what is
moral? Does obscenityn cause antisocial behavior?
C. What is obscenity? Court struggled, in the years after Roth,
to define it. One example: Justice Potter Stewart in
Jacobellis v. Ohio: “I shall not today attempt further to
define the kinds of material I understand to be [obscene];
and perhaps I could never succeed in intelligibly doing so.
But I know it when I see it, and the motion picture involved
in this case is not that.” From 1976-1972, Court overturned
obscenity convictions 30 times in per curiam decisions
without opinions.
Current test for what is obscene: Miller v. California
(1973) (1102): “the basic guidelines for the trier of fact
must be (a) whether the average person, applying
13
contemporary community standards would find that
the work, taken as a whole, appeals to the prurient
interest (b) whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically
defined by the applicable state law; and (c) whether the
work, taken as a whole, lacks serious literary, artistic,
political or scientific value”
5. CHILD PORNOGRAPHY
A. Can the government prevent the exhibition, sale or
distribution of child pornography even if it doesn’t meet the
test for obscenity? New York v. Ferber ((1982) (CB p. 1114)
(Justice White)
B. Did Ferber define child pornography?
C. Can child pornography be banned if it has serious socially
redeeming value? (compare Justice O’Connor
(concurrence) v. Justice Brennan (concurrence) in Ferber)
D. Can the government ban the mere possession of child
pornography? Osborne v. Ohio (1990) (CB p. 1117)
(compare with Stanley v. Georgia (1969) (CB p. 1099)
E. Virtual child pornography: Ashcroft v. Free Speech
Coalition (2002) (CB p. 1118) – to be child pornography,
must real children be used in its production?
6. PORNOGRAPHY: Catherine MacKinnon and Andrea Dworkin have
argued that there should there be a new exception to the First
Amendment for pornography on the ground that it amounts to sex
discrimination or the subordination of women: American Booksellers
Ass’n v.Hudnut (7th Cir. 1986) (CB p. 1122)
7. PROTECTED BUT LOW VALUE SEXUAL SPEECH
a. Zoning ordinances: Yuong v. American Mini-Theaters, Inc.
(1976) (CB p. 1130), City of Renton v. Playtime Theatres, Inc.
(1986) (CB p. 1133)
b. Nudity: Ernoznik v. City of Jacksonville (1975) (CB p. 1127)
c. Nude dancing : Schad v. Mount Ephraim (1981) (CB p. 1129)
8. INDECENCY AND THE COMMUNICATIONS MEDIA
A. BROADCAST MEDIA The “seven dirty words”: FCC
14
v. Pacifica (1978) (CB p. 1036)
B. TELEPHONES: Sable Communications v. FCC (1989)
(CB p. 1145)
C. CABLE TV: Denver Area Educational
Telecommunications Consortium v. FCC (1996) (CB p.
1146). United States v. Playboy Entertainment Group
(2000) (CB p. 1149)
D. THE INTERNET: Reno v. ACLU (1997) (CB p. 1150),
Ashcroft v. ACLU (2004) (CB p. 1157)
15
CONSTITUTIONAL LAW OUTLINE - CLASS 35: Lesser Protected
Speech – Indecency, Commercial Speech
1. CENTRAL THEMES: TYPES OF EXPRESSION OUTSIDE THE
PROTECTION OF THE FIRST AMENDMENT OR THAT HAS
LESSER PROTECTION: INDECENCY, COMMERCIAL SPEECH
2. Text: Amendment I: Congress shall make no law . . . abridging the
freedom of speech, or of the press.
3. INDECENCY AND THE COMMUNICATIONS MEDIA
A. BROADCAST MEDIA: The “seven dirty words”: FCC v.
Pacifica (1978) (CB p. 1038)
B. TELEPHONES: Sable Communications v. FCC (1989) (CB p.
1145)
C. CABLE TV: Denver Area Educational Telecommunications
Consortium v. FCC (1996) (CB p. 1146); United States v. Playboy
Entertainment Group (2000) (CB p. 1149)
D. THE INTERNET: Reno v. ACLU (1997) (CB p. 1150), Ashcroft
v. ACLU (2004) (CB p. 1157)
4. COMMERCIAL SPEECH
A. From 1942-1975: Court held that commercial speech was not
protected by the First Amendment: Valentne v. Chrestensen
(1942) (CB p. 1159), Pittsburgh Press (1973) (CB p. 1159)
B. In 1975, the Court changed its position in Bigelow v. Virginia
(CB p. 1159) and reiterated that commercial speech is protected
by the First Amendment in Virginia State Board of Pharmacy v.
Virginia Citizens Consumer Council, Inc. (1976) (CB p. 1160). If
the speaker has a financial interest in the speech, is that a legitimate
factor in deciding whether the speech is protected?
C. Should commercial speech be protected by the First
Amendment? What are some arguments pro and con?
D. What is commercial speech? When does it go beyond
adveritising for a product or service? Is there a clear definition?
i. Virginia State Board of Pharmacy (1976): expression that
“does no more than propose a commercial transaction” (CB
p. 1168)
16
ii. Central Hudson Gas & Elec. Corp. v. Public Service
Commission (1980) (CB p. 1173): “expression related solely
to the economic interests of the speaker and its audience.”
iii. Bolger v. Youngs Drug Products Corp. (1983) (CB p.
1168): advertisement, “reference to a specific product”,
“economic motivation” [of speaker]
iv. Board of Trustees, State Univ. of New York v. Fox (1989)
(CB p. 1168)
E. When can the government regulate commercial speech?
i. Central Hudson 4 part test – (Justice Powell, writing for
the majority) (CB p. 1173): “At the outset, we must
determine whether the expression is protected by the First
Amendment. For commercial speech to come within that
provision, it at least must concern lawful activity and not be
misleading. Next, we ask whether the asserted government
interest is substantial. If both inquiries yield positive answers,
we must determine whether the regulation directly advances
the governmental interest asserted, and whether it is not more
extensive than is necessary to serve that interest.” What level
of scrutiny is this? Who has the burden of proof?
ii. Modification to part 4 of the Central Hudson test: that
regulation be no more extensive than necessary to achieve
the government purpose. Must the government use the least
restrictive alternative? Board of Trustees of the State
University of New York v. Fox (1989) (CB p. 1176)
iii. Rubin v. Coors Brewing Co. (1995) (CB p. 1181) Is this
case consistent with Fox?
iv. 44 Liquormart v. Rhode Island (1996) (CB p. 1182)
v. Greater New Orleans Broadcasting Ass’n v. United States
(1999) (CB p. 1187): narrow tailoring
F. Is advertising of illegal activities protected by the First
Amendment? Pittsburgh Press Co. v. The Pittsburgh Commission
on Human Relations (1973) (CB p. 1159)
G. Is false and deceptive advertising protected by the First
Amendment? Central Hudson
H. Is true advertising with an inherent danger of deception
protected by the First Amendment? i. laws barring professionals
from advertising/practicing under trade names: Friedman v.
Rogers (1979) (ii) laws barring professionals from soliciting
clients– compare attorneys (Ohralik v. Ohio State Bar Ass’n (1978)
17
(face-to-face solicitation) (CB p. 1170), In re Primus (1978) (CB p.
1170)(offer to represent client free of charge), Zauderer v. Office
of Disciplinary Counsel (1985) (CB p. 1170) Shapero v. Kentucky
Bar Ass’n (1988) (CB p. 1171) (direct mail solicitation), Florida
Bar v. Went for It, Inc. (1995) (CB p. 1172) (bar on direct mail
solicitation for 30 days after an accident)) and accountants:
Edenfield v. Fane (1993) (CB p.1171) (direct in-person
solicitations) Is there a principled distinction between attorneys
and accountants?
I. regulation of commercial advertising to achieve other
government interests, e.g. decreasing gambling
a. government interest in preventing panic sales of homes
and white flight from a city: Linmark Associates, Inc. v.
Township of Willingboro (1977) (CB p. 1169)
b. government interest in promoting traffic safety:
Metromedia, Inc. v. City of San Diego (1981) (CB p. 1177),
City of Cincinnati v. Discovery Network, Inc. (1993) (CB p.
1177)
c. government interest in reducing alcohol consumption:
Rubin v. Coors Brewing Co. (1995) (CB p. 1181), 44
Liquormart, Inc. v. Rhode Island (1996) (CB p. 1182)
d. government interest in reducing gambling: Posadas de
Puerto Rico Associates v. Tourism Company of Puerto Rico
(1986) (CB p. 1179), United States v. Edge Broadcasting Co.
(1993) (CB p. 1180), Greater New Orleans Broadcasting
Ass’n v. United Sttes (1999) (CB p. 1187),
e. goal of decreasing tobacco consumption: Lorillard
Tobacco Co. v. Reilly (2001) (CB p. 1189)
f. contraceptives and abortion: Bigelow v. Virginia (CB p.
1159), Carey v. Population Services International (1977) (CB
p. 1169), Bolger v. Young Drug Products Corp. (1983) (CB p.
1168)
g. regulation of advertising by lawyers and other
professionals: Bates v. State Bar of Arizona (1977) (CB p.
1169), Re R.M.J. (1982) (CB p. 1170), Zauderer v. Office of
Disciplinary Counsel of the Supreme Court of Ohio (1985)
(CB p. 1170), Peel v. Attorney Registration and Disciplinary
Commission of Illinois (1990) (CB p. 1171), Ibanez v. Florida
Dep’t of Business and Professional Regulation Board of
Accountancy (1994) (CB p. 1171)
18
h. preserving effectiveness and integrity of federal
government’s drug approval process: Thompson v. Western
States Medical Center (2002) (CB p. 1190).
19
CONSTITUTIONAL LAW OUTLINE - CLASS 36:
1. CENTRAL THEMES: What speech can be regulated by the
government? (i) Example of a type of speech with lesser protection:
commercial speech (ii) Difference in scrutiny afforded content-based
and content-neutral speech (iii) regulation of expressive conduct (such
as flag burning or nude dancing)
2. TEXT: Amendment I: Congress shall make no law . . . abridging the
freedom of speech, or of the press.
3. REGULATION OF COMMERCIAL SPEECH
F. Is advertising of illegal activities protected by the First
Amendment? Pittsburgh Press Co. v. The Pittsburgh Commission
on Human Relations (1973) (CB p. 1159)
G. Is false and deceptive advertising protected by the First
Amendment? Central Hudson
H. Is true advertising with an inherent danger of deception
protected by the First Amendment? i. laws barring professionals
from advertising/practicing under trade names: Friedman v.
Rogers (1979) (ii) laws barring professionals from soliciting
clients– compare attorneys (Ohralik v. Ohio State Bar Ass’n (1978)
(face-to-face solicitation) (CB p. 1170), In re Primus (1978) (CB p.
1170)(offer to represent client free of charge), Zauderer v. Office
of Disciplinary Counsel (1985) (CB p. 1170) Shapero v. Kentucky
Bar Ass’n (1988) (CB p. 1171) (direct mail solicitation), Florida
Bar v. Went for It, Inc. (1995) (CB p. 1172) (bar on direct mail
solicitation for 30 days after an accident)) and accountants:
Edenfield v. Fane (1993) (CB p.1171) (direct in-person
solicitations) Is there a principled distinction between attorneys
and accountants?
I. regulation of commercial advertising to achieve other
government interests, e.g. decreasing gambling
a. government interest in preventing panic sales of homes
and white flight from a city: Linmark Associates, Inc. v.
Township of Willingboro (1977) (CB p. 1169)
b. government interest in promoting traffic safety:
Metromedia, Inc. v. City of San Diego (1981) (CB p. 1177),
City of Cincinnati v. Discovery Network, Inc. (1993) (CB p.
1177)
20
c. government interest in reducing alcohol consumption:
Rubin v. Coors Brewing Co. (1995) (CB p. 1181), 44
Liquormart, Inc. v. Rhode Island (1996) (CB p. 1182)
d. government interest in reducing gambling: Posadas de
Puerto Rico Associates v. Tourism Company of Puerto Rico
(1986) (CB p. 1179), United States v. Edge Broadcasting Co.
(1993) (CB p. 1180), Greater New Orleans Broadcasting
Ass’n v. United Sttes (1999) (CB p. 1187),
e. goal of decreasing tobacco consumption: Lorillard
Tobacco Co. v. Reilly (2001) (CB p. 1189)
f. contraceptives and abortion: Bigelow v. Virginia (CB p.
1159), Carey v. Population Services International (1977) (CB
p. 1169), Bolger v. Young Drug Products Corp. (1983) (CB p.
1168)
g. regulation of advertising by lawyers and other
professionals: Bates v. State Bar of Arizona (1977) (CB p.
1169), Re R.M.J. (1982) (CB p. 1170), Zauderer v. Office of
Disciplinary Counsel of the Supreme Court of Ohio
(1985) (CB p. 1170), Peel v. Attorney Registration and
Disciplinary Commission of Illinois (1990) (CB p. 1171),
Ibanez v. Florida Dep’t of Business and Professional
Regulation Board of Accountancy (1994) (CB p. 1171)
h. preserving effectiveness and integrity of federal
government’s drug approval process: Thompson v. Western
States Medical Center (2002) (CB p. 1190).
4. REGULATION OF CONTENT AND SYMBOLIC
EXPRESSION
A. Content-based laws (regulation of speech based on its content):
Court has often said that the core of the First Amendment prevents
the government from restricting expression based on its content, e.g.
Police Dep’t of Chicago v. Mosley (1972) (CB p. 1194) (Marshall
J.)(“[Above] all else, the First Amendment means that the government
has no power to restrict expression because of its message, its ideas, its
subject matter, or its content]”)
B. What does it mean to be content-neutral? (i) viewpoint neutral,
e.g. R.A.V. v. St. Paul (1992) (CB p. 1079) (regulation was not
viewpoint neutral) (ii) subject-matter neutral, e.g. Carey v. Brown
(1980) (CB p. 1194)
C. Standard of scrutiny:
21
i. Content-based regulations are subject to strict scrutiny (unless
the speech falls into one of the unprotected or less protected
categories we have discussed, e.g. obscenity child pornography,
incitement of illegal acts, fighting words, defamation), e.g. Simon
& Schuster, Inc. v. Members of New York State Crime Victims
Board (1991) (CB p. 1195) (challenge to “Son of Sam” law),
Republican Party of Minnesota v. White (2002) (CB p. 1197). Strict
scrutiny requires that the government show that regulation is the
least restrictive way to serve a compelling government interest.
ii. Strict scrutiny doesn’t mean all content-based restrictions on
speech will be invalidated. E.g. Burson v. Freeman (1992) (rare
case in which strict scrutiny satisfied) (plurality opinion of Justice
Blackmun)
iii. Court has held that a facial content-based restriction will be
treated as content-neutral if it is motivated by a content-neutral
purpose, e.g. desire to control secondary effects of adult movie
theaters like crime Renton v. Playtime Theaters, Inc. (1986) (CB p.
1133). Renton was distinguished in Boos v. Berry (1988) (CB p.
1199). The content-neutral justification must be unrelated to the
desire to suppress speech and it must only cover the suppressed
speech.
iv. Regulations unrelated to the content of speech are subject to
an intermediate level of scrutiny. These could be aimed at a wide
range of behavior that has only an incidental effect on speech
(United States v. O’Brien (1968) (CB p. 1203), or they could be
time, place and manner regulations
v. Test for content-neutral regulations: government must show
that they are closely tailored to serve a substantial or significant
(not compelling) government interest. State does not have to use
least restrictive means to enact/enforce content neutral law.
D. Why the difference in approach between content-based regulation
and content-neutral regulation?
E. Supreme Court has protected conduct that is communicative
under the First Amendment, e.g. Stromberg v. California (1931) (CB
p. 1203) (state ban on displaying a red flag), West Virginia Bd. of Ed.
v. Barnette (1943) (CB p. 1203) (state requirement that public school
children salute flag).
F. When is conduct communicative enough to be protected? 2
factors (i) intent to convey a specific message; (ii) substantial
22
likelihood that message would be understood by those receiving it,
e.g. Spence v. Washington (1974) (CB p. 1211)
G. Just because conduct is communicative, doesn’t mean it can’t be
regulated. It can be regulated if “it furthers an important or
substantial government interest, if the government interest is unrelated
to the suppression of free expression, and if the incidental restriction
on First Amendment freedoms is no greater than is essential to the
furtherance of that interest.” O’Brien. (intermediate scrutiny)
H. Is flag burning and/or flag desecration constitutionally protected
expression? When can it be regulated? Street v. New York (1969) (CB
p. 1210), Smith v. Goguen (1974) (CB p. 1211), Spence v. Washington
(1974) (CB p. 1211), Texas v. Johnson (1989) (CB p. 1212) (strict
scrutiny required) United States v. Eichman (1990) (considered
constitutionality of Flag Protection Act of 1989, applied strict
scrutiny) (CB p. 1219), later efforts to amend constitution (all
unsuccessful so far)
I. Is nude dancing communicative conduct? When can it be
regulated? Recall that Court has treated sexually oriented speech as
being of lower value: Court has upheld ability of local governments
to use zoning ordinances to regulate location of adult movie theatres
and bookstores (e.g. Young v. American Mini-Theaters, Inc. (1976)
(CB p. 1130) (content based), City of Renton v. Playtime Theaters, Inc.
(1986) (CB p. 1133) (content-neutral)). Barnes v. Glen Theatre (1991)
(CB p. 1221) (plurality (written by Rehnquist J.) applied O’Brien
test), Scalia concurred because law not specifically directed at
expression, Souter concurred (O’Brien appropriate test, but law
justified under Renton secondary effects rule), dissent (White, joined
by Brennan, Marshall, Blackmun) disagreed that it was content
neutral, City of Erie v. PAP’s A.M. (2000) (CB p. 1225) (O’Connor’s
plurality opinion (joined by Rehnquist, Kennedy, Breyer) based on a
secondary effect rationale, without requiring proof of adverse effects
as dissents of Souter and Stevens noted; Scalia (joined by Thomas)
concurred on same reasoning as in Barnes)
23
CONSTITUTIONAL LAW SPRING 2007 CLASS 37
FIRST AMENDMENT: PUBLIC FORUM DOCTRINE
1. CENTRAL THEMES: To what extent does the nature of property
where expressive activity occurs affect its First Amendment protection?
2. SPEECH ON GOVERNMENT PROPERTY – Original view was that
government was equivalent to private proprietor: Massachusetts v.
Davis (1897) (Supreme Court affirmed Justice Holmes Mass. Supreme
Judicial Court decision). This view changed in 1930s. NOW A. Level of First Amendment protection depends on classification of
property as PUBLIC FORUM, DESIGNATED PUBLIC FORUM,
NONPUBLIC FORUM, See Perry Education Ass’n v. Perry Local
Edcuators’ Ass’n (1983) (CB p. 1274)
B. WHAT IS A TRADITIONAL PUBLIC FORUM? Hague v. CIO
(1939) (dictum of Justice Roberts). Example: streets, sidewalks and
parks. What about municipal theaters? Southeastern Promotions,
Ltd. v. Conrad (1975) (CB p. 1269)
C. MODERN APPROACH TO PUBLIC FORUM: Government can
only regulate speech in public forum if regulation is content neutral
unless content restriction is justified by strict scrutiny (although the
government regulation need not be the least restrictive means if
narrowly tailored) Content neutral regulations must be reasonable
time, place or manner restriction that serves an important government
interest and leaves open adequate alternative places for speech.
Licensing or permit systems for use of public forum must have clear
standards that leave virtually no discretion to licensing authority.
D. IS THE ISSUE GUARANTEED ACCESS OR EQUAL ACCESS
(e.g. Hague v. CIO (1939) (CB p. 1229), Saia v. New York (1948) (CB
p. 1229)? Licensing cases, e.g. Cox v. New Hampshire (1941) (CB p.
1230)
E. TOTAL MEDIUM BANS:
24
a. In 1930s and 1940s some courts invalidated these, e.g.
Schneider v. State (1939) (CB p. 1231), Martin v. Struthers
(1943) (CB p. 1232), compare Kovacs v. Cooper (1949) (CB p.
1233)
b. IN LATER CASES, Court upheld some apparent total
medium bans by characterizing them as “time, place and
manner regulations” subject to intermediate scrutiny, e,.g.
Heffron v. Iskcon (1981) (CB p. 1239). See also Frisby v. Schulz
(1988) (CB p. 1255) IN the same period, the Court was hostile
to content-based bans on access to public areas (on equality
grounds), e.g. Mosley (1992) (CB p. 1196), Carey v. Brown
(1980) (CB p. 1194)
(iii) Resurrection of Schneider: City of Ladue v. Gilleo (1994)
(CB p. 1235)
(iv)
Watchtower Bible & Tract Society (2002) (CB p. 1236)
F. TIME PLACE AND MANNER RESTRICTIONS: Heffron v. Int’l
Society for Krishna Consciousness (1981) (CB p. 1239), Kovacs v. Cooper,
Madsen v. Women’s Health Center, Inc. (1994) (CB p. 1257), Schenck v.
Pro-Choice Network of Western New York (1997) (CB p. 1260), Hill vl
Colorado (2000) (CB p. 1261), United States v. Grace (19830 (CBp. 1263)
G. LEAST RESTRICTIVE MEANS? Ward v. Rock Against Racism
(1989) (CB p. 1254)
H. OTHER GOVERNMENT PROPERTIES THAT ARE
NONPUBLIC FORUMS
(i) Jails: Adderly v. Florida (1966) (CB p. 1265)
(ii) Military Bases Greer v. Spock (1976) (CB p. 1270)
(iii) Charitable Campaigns in federal offices Cornelius v. NAACP (1985)
(CB p. 1276)
(iii) Airports International Society for Krishna Consciousness v. Lee
(1992) (CB p. 1280)
I.
LIMITED OR DESIGNATED PUBLIC FORUM: Good News
Club v. Milford Central School (2001) (CB p. 1561), Perry
25
Education Ass’n v. Perry Local Educators Association (1983)
(CB p. 1274), Lehman v. City fo Shaker Heights (1974) (CB p.
1268)
J. RELIGIOUS SPEECH AND THE FIRST AMENDMENT –
RELIGIOUS GROUP ACCESS TO SCHOOL FACILITIES
 Widmar v. Vincent (1981) (CB p. 1289)
 Lamb’s Chapel v. Center Moriches Union (1993) (CB p.
1290)
 Good News Club
3. SPEECH ON PRIVATE PROPERTY – e.g. movie theaters, lawn of
private home: Speech is protected for full extent called for under the
First Amendment (content based restrictions are subject to strict
scrutiny, content neutral restrictions subject to intermediate scrutiny):
Logan Velley (1968) (CB p. 1293), Lloyd Corp v. Ranner (1972) (CB p.
1293), Hudgens v. NLRB (1976) (CB p. 1294)
26
CONSTITUTIONAL LAW SPRING 2007
CLASS 38: FIRST AMENDMENT AND SPEECH IN DESIGNATED
FORUMS AND PUBLIC SCHOOLS; UNCONSTITUTIONAL
CONDITIONS DOCTRINE
1. GENERAL THEMES (i) To what extent does the nature of
property where expressive activity occurs affect its First Amendment
Protection? A. what is a limited or designated public forum and
when can the government restrict speech there? B. To what extent
is a school a public forum or nonpublic forum? When can the
government restrict speech in public schools? (ii) Principle that
government benefits may not be conditioned on relinquishing free
speech rights (unconstitutional conditions doctrine) – but why can’t
the government do this when it is free not to give any benefit at all?
2. TEXT: “Congress shall make no law . . . abridging the freedom of
speech, or of the press . . . ”
3. LIMITED OR DESIGNATED PUBLIC FORUM: (a place that
the government could close to speech but voluntarily opens to
speech)
A. Some cases hold that if government opens such places to speech it
will have to comply with same rules as public forums (can’t
discriminate based on content): e.g.
Perry Education Ass’n v. Perry Local Educators Association (1983)
(CB p. 1274), Widmar v. Vincent (1981), Lamb’s Chapel v. Center
Moriches Union (1993) (CB p. 1290), Lehman v. City of Shaker
Heights (1974) (CB p. 1268) (hard to reconcile)
B. Recently, Justice Thomas indicated that test for a designated
public forum is different: “The restriction must not discriminate
against speech on the basis of viewpoint and the restriction must ‘be
reasonable in light of the purpose served by the forum;” - Good News
Club v. Milford Central School (2001) (CB p. 1561): does this sound
like the test for a public forum or a nonpublic forum?
4. SPEECH IN PUBLIC SCHOOLS – To what extent is a school a
public forum or nonpublic forum? When can the government restrict
speech in public schools?
A. Material disruption doctrine: Tinker v. Des Moines Independent
Community School District (1969) (CB p. 1294) (Justice Fortas: “It
can hardly be argued that either students or teachers shed their
27
constitutional rights to freedom of speech or expression at the
schoolhouse gate.”
B. Burger and Rehnquist Court cases upholding educators’
discretion to limit speech:
i. Bethel School Dist. No. 403 v. Fraser (1986) Need for schools to
inculcate social values
ii Hazelwood School District v. Kuhlmeier (1988) Educators’
authority over curricular activities that are not public forums
(e.g. school sponsored publications, theatrical publications and
other expressive activities that might be reasonably perceived to
“bear the imprimatur of the school.”).
C. Removal of material from school libraries: Board of Education v.
Pico (1982) (CB p. 1296)
D. Recent case pending before the Court (oral argument heard
March 19, 2007): Morse v. Frederick (see handout)
5.SPEECH SUBSIDIZED BY PUBLIC FUNDS
A. Unconstitutional conditions doctrine: “government may not deny
a benefit to a person because he exercises a constitutional right.”
Regan v. Taxation with Representation of Washington (1983) (CB
p. 1320) (quoting Perry v. Sinderman (1972); Speiser v. Randall
(1958) (CB p. 1319)
B. Unconstitutional conditions conundrum: government would be
free not to confer benefit at all.
C. To resolve this conundrum, the Court has distinguished between
benefits that amount to “penalties” on speech (e.g. Speiser) as
opposed to mere “nonsubsidies” (government does not have to pay
for speech with which it disagrees) (e.g. Regan).
D. Note that the distinction is similar to distinction Court draws
between public forums (strict scrutiny given to most government
restrictions on speech) and non-public forums (deferential to
government restrictions on speech) or non-curricular aspects of
public schools (strict scrutiny given to most government
restrictions on speech) and curricular aspects of public schools
(deferential to government restrictions on speech)
E. Cases applying unconstitutional conditions doctrine: FCC v.
League of Women Voters (1983) (CB p. 1321), Legal Services
Corporation v. Velazquez (2001) (CB p. 1322)
F. A case that is hard to reconcile with the unconstitutional
conditions doctrine: Rust v. Sullivan (1991) (CB p. 1322)
28
G. A case that is hard to reconcile with Rust: Rosenberger v. Rectors
of the University of Virginia (1995) (CB p. 1324) (also found
providing funds to the religious group would not violate the
Establishment Clause: Kennedy (accommodationist))
H. When the government MUST make choices based on content of
the speech they may do so, as long as the government is viewpoint
neutral: N.E.A. v. Finley (1998) (CB p. 1326)
I. Conditions on public libraries’ Internet access (rejected argument
that unconstitutional condition): United States v. American Library
Association (2003) (CB p. 1332)
29