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of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent? Dennis Test Sliding Scale The Test The US constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the US may seek to prevent o Gravity of the evil discounted by its improbability justifies such invasion of free speech as is necessary to avoid the evil Gravity of evil – improbability = necessary to avoid the evil Can‟t sanction speech is when you have low value evil and highly improbable speech therefore it is not necessary to prevent the evil o If no substantial evil don‟t even get to weighing the gravity of evil Fair Trials guaranteed by the 6th amendment Apply the Dennis Test The test used was clear and present danger test the substantial evil of an impartial jury and its affects on a prejudicial process on a fair trial o The evil Must ensure that justice is not compromised by pretrial publicity This power of preventing evils is greater in the time of war because war time opens dangers that do not exist in peace o Also, there must be some likelihood of success of the actions in order for it to be imminent and substantial danger And if fail to punish the activity, the evil must be evident and must be guaranteed to ensue The Burden The governmental entity has the burden of proof and must show that the evils does exist in order to justify the regulation of the speech
modern test replaced the Clear and Present Danger Test (KKK case) In order to justify invading rights of free speech must meet this test—use when government is punishing you for your anti-government speeches We can not punish speech that advocates crime unless such advocacy is… o Is Intended to incite or produce The speaker intended to have that effect Or there is a natural tendency of words that have that effect o Imminent Lawless Action—must call for immediate law violation Must ask whether the speaker used speech to cause (unthinking, immediate, lawless action) If yes, states significant in preventing the lawless action
Imminence relates to the beginning stages of the lawless action not its fulfillment o That is Likely to occur (objective consideration given here) The words (advocacy of imminent lawless) and circumstances (likely hood that it will occur) are important Depending on the political and social climate likelihood may be affected Brandenburg applies when someone is urging others to do something. Constitutional guarantees of free speech/press do NOT permit a state to forbid actions except when there is a possibility of imminent violence We do not have to wait and see whether immediate violence occurs or not. [Even if later it does not happen but it was likely to happen the conviction should be upheld.] Can be punished for advocating action, but not for advocacy of belief. Mere advocacy is okay & mere abstract teaching is okay. o Mere teaching is not the same as preparing a group for violent action If regulation punishes advocacy of belief it is facially overbroad Advocacy is not enough unless there is some proof of a substantial likelihood of evil coming about imminence of violence o Advocacy even passionate advocacy must be protected
PRIOR RESTRAINTS Prior Restraint Defined: Stopping/preventing speech before it hits the marketplace. Examples of prior restraint: Injunction, license, gag order etc. Prior restraints are viewed as highly suspect and scrutiny is high. The government has the burden of justifying a prior restraint. o Must show that No less restrictive alternatives were available because if there were the prior restraints will fail o Alternative to Prior Restraint: Subsequent Criminal Prosecution. It's less restrictive to punish after the speech has hit the marketplace. When is a prior restraint permissible? If the press is about to publish troop movements at a time of war, obstruction of recruiting services (compelling governmental interest), and regulating areas of unprotected speech, i.e., obscenity.
Overbreadth - where the government is trying to regulate too much, it encompasses speech not intended to be protected.
Overbroad on it's Face: court ignores the facts of the case, and concentrates on the language and constitutionality of the statute and it is overbroad because it reaches too far. Overbroad as Applied: Court looks at the facts of the case, looks at the statute as applied to the speaker When the statute is found to be invalid as applied, the statute is still good, but the speaker will receive protection and thereby wins.
MEMORIZE THIS: Measures validity of the statute by applying the GOVERNING TEST
Facial Overbreadth Challenge: 1. Has there been a prior narrowing interpretation of the statute by a lower court making the statute‟s reach less sweeping? 2. If not, could the court narrow the statute's meaning during the present challenge? A statute as construed may be applied to conduct occurring prior to the construction, provided such application affords fair warning to the . 3. Where expressive conduct is concerned, is the statute substantially overbroad? Will fail if it applies only to a tiny fraction of the material within the statutes reach If statute is overbroad, it is considered unconstitutional! End of story.
Standing Requirement Exception: A on a facial overbreadth challenge can raise rights of a 3rd party. Normally, to have standing, that individual must be the one injured. Not here, one applying this doctrine can raise the rights of a 3 rd party. NOTES: Overbreadth means unconstitutional or invalid If facially overbroad, don‟t apply the applicable test cause facts are ignored (e.g. Brandenburg, Fighting Words, etc) Somebody who‟s own speech could be punished under a properly written statute overbroad as applied, could go unpunished because statute is too broad, therefore unconstitutional.
Powers of Taxation as Applied to the Press The tax operates as a (prior) restraint in two ways; 3
o 1) to curtail the amount of revenue made from advertising o 2) the direct effect is to restrict circulation Selective application of sales tax is unconstitutional Not allowed to create a tax that singles out a specific group. Allowed to have a general tax that applies to everyone o Taxation on the press creates a chilling effect because by uping their expenses makes it harder to distribute information in the market place of ideas A tax that singles out the press places a heavy burden on the state to justify its action The constitutional requirement for a tax to be valid o The use tax rate can never exceed the lowest sales tax rate in the state The ct concluded that the state‟s extension of its generally applicable sales tax to cable tv services alone while exempting the print media does not violate the 1st amendment o This tax was not set up as a penalty for certain cable tv services and furthermore it was not content based Can tax different entities of the media differently from one another as long as the reasons are not related to speech (TV vs. Print Media) Can NOT tax members within one area of a medium differently If the tax creates two classes one subject to the regulation and one that is not subject to the regulation o To justify the tax requirement the government has the burden to prove that it is justified by a compelling governmental interest
DEFAMATION and LIBEL Defamation - by its definition is false. The Court is giving 1st amendment protection to false statements of fact against an individual‟s reputation. Libel when written, Slander when spoken Doesn‟t matter if is media or otherwise
1st 2nd 3rd -
Determine what type of Plaintiff you have: [ must be either a,b or c] Show speech is a false statement of fact When said knowinglymakes it false with reckless disregard Must be false statement of fact. Cannot be punished for stating an opinion. Prove ∆ made statement with either: a. actual malice – (1) knowledge stmt was false (2) reckless disregard as to whether it was true or false o reckless disregard - high degree of awareness of falsity [subjective showing] purposeful avoidance of the truth Failure to investigate reckless disregard b. negligence – only for private figure 4
NOT a libelous per se standard implies legal injury from the bare fact of publication itself But the ct found this standard to be constitutionally deficient for failure to provide safeguards for freedom of speech/press required by the 1st and 14th Amendments A. PUBLIC OFFICIAL: is someone who has substantial responsibility over the conduct of government affairs. [Means not every government employee is a public official!!] Must prove: (1) Must be Public Official (2) Prove case by Clear and convincing evidence (3) Falsity of statement (4) Actual malice (def knew stmt was false or acted with reckless disregard for whether stmt was true or false THE SULLIVAN TEST: Prohibits a public official from recovering damages for a defamatory false statement relating to his official conduct UNLESS he proves that the statement was made with “actual malice” that is with knowledge that it was false or with reckless disregard of whether it was false or not o Negligence is not enough for a state official to recover punitive damages because of the chilling effects o This would create self-censorship (would never criticize public officials) and a chilling effect in fear of being prosecuted criminally and dampening public debate False speech also has value defense of the truth o Based on a factual basis Do not necessarily have the duty to investigate and do more research about statement if it would be common knowledge o False light(the play case) the right of the individual to recover in this type of caseneed to apply a higher standard (not just negligence) because of the chilling effect even because they are a private person B. PUBLIC FIGURE: 2 categories. 1. General Purpose Figure: general fame or notoriety (i.e. - movie star) 2. Limited Purpose Figure: someone who voluntarily thrust himself into the spotlight, But not necessarily a public figure in all parts of your life, involvement in community does not rendered that person a public figure for all purposes 3. They will be treated as a public figure, for defamation purposes, as to that issue or controversy only. But once retired no longer public figure. Court recognizes that it may be possible for someone to become a public figure involuntarily ( through no purposeful action of his ownrare.) Must Prove: the false statement was made with actual malice or with reckless disregard for the truth. Clear and convincing standard C. PRIVATE FIGURE: an average person who is not famous or outside the spotlight. 1. Private person and matter of public interest states can impose any model of liability except no fault for compensatory damages (negligence standard); actual malice standard applies to punitive damages
2. Private person and matters NOT of public concernstates can impose any model of liability except no fault system for both compensatory and punitive damages (negligence standard) NOTES: Private individuals are more vulnerable to injury by defamation since they lack available access to channels of communication in order to rebut statements made by them through public debate Thus the state‟s interest in protecting private individuals is substantially greater The media cannot be held liable for broadcasting the tape of a private conversation so long as the subject matter of the conversation involved a matter of public concern and the media itself did not illegally obtain the conversation
ASK: Whether there are 1st amendment limitations on government to punish a speaker who has uttered a threat? Must determine whether a true threat was made & not a joke [i.e. threat on the President] If it is a true threat, government has a compelling interest for the state to protect Balance government‟s interest v. speaker‟s interest (Government has a compelling interest in protecting the safety of its President and allowing him to perform his duties w/o interference from threats of physical violence) Treated by courts separately from advocacy of crime. Applies to both ordinary individuals and government officials. Since threats are not constitutionally protected speech, threat cases most always lose.
DefinitionFighting words are directed to a particular person, is a type of speech which will provoke them with an immediate breach of the peace response When passing a statute banning fighting words, the government must do so in a content neutral fashion Can not forbid particular words without running a substantial risk of suppressing ideas “Avert your eyes” o Penalty enhancement associated with conduct and are NOT protected by 1st amendment o Fighting words regulated by 1st amendment because associated with speech
Speech is considered to be fighting words if:
Directed to a particular individual or group Personal Insult 6
Likely to produce an immediate violent reaction.
Ask: Would the average listener react to these words violently? IF YES: Men of common intelligence would understand these would be words likely to cause an average listener to fight. Do not pay attention to the speaker or the specific person, but to the average listener; o example: an average listener would not have taken the words “fuck the draft” on his jacket to be a direct personal insult Doesn‟t include written words or by telephone only Face-toFace words Exception: sensibility of an unwilling audience even if the personal insult to the average person would have spurred a violent reaction looking at this specific audience and not likely to fight back this would still qualify as fighting words Example: screaming insults at Burris‟ mother, she‟s not likely to fight back but the words are still fighting words Argument for not constitutionally protecting fighting words they have no social value. An offensive word is not a strong enough government interest to punish the speaker Court is does NOT apply fighting words analysis in context of political speech [if audience becomes hostile and speaker intends to incite a riot for political speech, apply Brandenburg Test] EXAM TIP: - Argue both ways -Keep an eye out for overbroad regulations here Statutes passed that punish those for using fighting words will only be upheld as constitutional if they are content neutral Statutes that punish those that committed acts with knowledge that they will arise anger, alarm, or resentment for others on the basis of race, color, religion… o This was NOT content neutral (content based) because it punished those for using fighting words when motivated by race or religion Fighting words doctrine the government may not regulate even fighting words based on hostility or favoritism towards the underlying message expressed The statute in RAV punished those who committed acts with knowledge that it would arouse anger, alarm, resentment based on race, gender, etc. o This was not content neutral b/c it punished motives of race you cant pass a statute that prevents words that create anger and resentment dealing with race, But could pass same statute if only limited to anger and resentment and left the race element out (b/c it doesn‟t punish you for the motive of why you are saying the words it just b/c you said them)
SCHOOLS AND SYMBOLIC SPEECH Schools: 7
1) Tinker Test (black arm band) unless the state can prove student‟s speech or expression will cause a “material and substantial interference with the normal operation of school” it will not be punished o 1) Must always look at the context to determine if it is even speech Arm bands were expressive speech o 2) A principal can NOT act and interfere with speech on the mere chance that there may be an interference can ONLY act when there has been a material and substantial interference with the normal operation of school Can‟t be a speculative interference But if violence is threatened don‟t have to use the Tinker test clear and present danger test principal can protect student body immediately don‟t have to weight until violence actually ensues 2) Pedagogical views of school if activity concerns a pedagogical event at school, the school‟s decision to invade speech and censor must be reasonably related to ensure that the pedagogical goals o Ie: principal took out newspaper when articles interfered with the pedagogical goals of the school The purpose was to teach students how to be writers, not the inclusion of the articles 3) If engage in speech activity that creates a clear and present danger obviously can sanction speech o i.e. gang activity in school can sanction this behavior under clear and present danger o There must be a threat of violence in order for the principal to act immediately to prevent injury and protect his student body
SYMBOLIC SPEECH To determine whether Strict Scrutiny or O'Brien Test applies: 1. Test whether act symbolizes speech (whether conduct is a form of expressive speech): a. Actor‟s conduct must have intent to convey a particularized message b. The likelihood is great that the message would be understood by those who viewed it. (Look at context) 1. If the answers produce yes then move, if not speech then no 1st amendment inquiry
Look at the government‘s interest in justifying the conviction/actions: a. Is the government‟s interest related to the suppression of expression/speech
If the government‟s interest is not related to the suppression of Speech (content neutral) apply the O'Brien Test If the government‟s interest is related and the regulation is content based (i.e. - gov't is restricting 's speech b/c of the content of the message) strict scrutiny applies.
Gov‟t regulation is justified if… 1.
If yes to all 4 prongs, gov‟t action will be upheld
Government regulation of conduct is sufficiently justified if it is within constitutional power of government always within Federal gov‟ts power to regulate It furthers Important or Substantial gov't interest ( compelling) If gov't interest is NOT related to the suppression of speech/expression Content neutral * if Yes (unrelated) continue w/ O'Brien * if No (gov‟ts interest is related) strict scrutinybased on speech the flag case arrested based on the views and expression he was conveying *If it is content based must apply strict scrutiny (compelling) And if incidental restriction on alleged 1st amendment freedom is no greater than is essential to furtherance of that interest t is Narrowly tailored (no more extensive than necessary)
We need to know if the gov'ts interest is related to the suppression of speech. Many statutes, on their face, do not regulate speech, but we must ask: is the government's regulation as directed to this actor, regulating speech? If passes O‟Brian then the regulation is content neutral. This is NOT the end of the analysis reasonable, time, place and manner test may be applied Time, Place, and Manner restrictions are constitutional as long as they are: o 1) Content neutral o 2) Narrowly tailored to serve a significant governmental interest, and o 3) Leaves open ample alternative channels for communication of the information
First Amendment in Specific Environments: The government may constitutionally impose conditions on its subsidies that are reasonable as long as they don‟t shut off the ability of the speaker to give out the information nor do they restrict the ability of the person who seeks the information to get it o Hospitals and lawyers gov‟t can control the message of that entity don‟t have to be viewpoint neutral PUBLIC EMPLOYEE’S RIGHT TO FREE SPEECH WHILE ON THE JOB RULE: The determination of whether a public employer has properly discharged an employee for engaging in speech requires “a balance between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” o If public employee makes comments on public issues and these interests outweigh the government‟s interest in promoting services state must show actual malice and reckless disregard for the truth only then if they do then can justify firing Pertinent considerations are: o 1) Whether the statement impairs discipline by superiors or harmony among coworkers o 2) Has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary o 3) Or impedes the performance of the speaker‟s duties or interferes the regular operation of the enterprise
Examples: 1) Government employees may NOT be punished for speech/expression concerning matter of public concern unrelated to their jobs or duties o An exception exists for policy making position where comments on other matter of public concern (even if true) may undermine the public‟s faith in the ability of the policymaker to continue in public employment (to do his job) Interests are greater for the employer 2) A government employee may not be punished for speech/expression concerning matters of public concern related to his or her job or employer as long as the comments are substantially correct AND the employee is not in a confidential position. o Interests are greater for the employee‟s free speech protection due to the confidential position it would be impossible to run together and work effectively 3) A government employee may communicate privately with his employer rather than to express his views publicly and still be protected by the 1st amendment o Have the right to communicate grievances even those of a public matter in a private setting do not waive 1st amendment rights when communicated privately 10
Interests are greater for the employee
4) The interests of the government employee in 1-3 are balanced against the interest of the government employer, in promoting the efficiency of the public services it performs through its employees o If the speech/expression is a matter of personal of non public concern, then the balance shifts in favor of the government employer‟s interest and NO 1st amendment protection and does not dismissal 5) Mixed Motives if employee is dismissed because made statements about public concern and private matter. When there is mixed motives in a government‟s employer justifications for dismissal must prove that the 1st amendment component is not the substantial factor in firing o He would still be fired regardless of speech element
Books in School Local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and School can regulate books that are educationally inappropriate before they come into the library o The burden is on the board of the education and must justify the result of disallowing books into the library because of the student‟s first amendment rights for students to be exposed to the ideas and not just only what the teacher says but to be able to go to the library and pull it down Problems in defining VULGAR PERMITS AND PUBLIC FORUM PERMITS Procedural safeguards in granting permits if give too much discretion to one person who is in charge in issuing permits odds are that it won‟t be content neutral time place and manner restriction o Can‟t make decisions to grant/not grant a permit on the basis/content of the speech permits must be issued uniformly regardless of the content of the speech o Can‟t give one person unfettered discretion in how much to charge for permit high presumption against him because no opportunity to use public forum Nominal fees are constitutional or place content base fee structure on needed resources With-holding permits are prior restraints are highly suspect and issuing them falls under the time, place and manner analysis Anytime have a procedural process as to when denied permit must have 3 procedural safeguards for appeal process: A system of prior restraints runs afoul of the 1st amendment if it lacks certain safeguards: o 1) The burden on instituting judicial proceedings and of proving that the material should be unprotected must rest on the censor (the city holds the permit) 11
o 2) Any restraint prior to judicial review can be imposed only for a specified brief period and only for the purpose of preserving the status quo (it can only be for the time being and preserve the status quo) o 3) A prompt final judicial determination must be assured (there must be a quick hearing on this) TIME, PLACE, & MANNER REGULATION (law must be necessary to achieve a significant governmental interest) 1. Must be content neutral (if content based must pass strict scrutiny) 2. Narrowly tailored to a but need not be the least restrictive means available 3. Significant government interest (i.e. aesthetics, parks, streets, traffic hazards); and 4. Must leave ample alternative channels open for communication. - ex. Arcara v. Cloud Books Inc, final prong of this test. A. Prongs 2 & 3 are basically intermediate scrutiny legitimate gov‟t interest
TRADITIONAL PUBLIC FORUM Definition: government property which has historically been used for speech purposes 3 Types: streets, sidewalks and parks. outside post office where it interferes with business. public area of airport terminal Usual rules regarding speech apply - content based, content neutral, defamation, etc.
Public Property visual blight and suppression of speech: Ie: littering case Is there a content neutral mechanism where can address the issue of littering but at the same time not engage in chilling the speech Aesthetic value is not sufficient to justify the shut off of dissemination where the ct says is a perfect place for communicative access Are these reasonable time, manner and place constraints Aesthetic values legitimate governmental interest but not enough to functioning ban them Streets are natural and proper places for the dissemination of information 1) Scope of Restriction: Ie: Utility poles are not a traditional public forum for expressing speech, its intended use was to provide electricity o The incidental restriction on expression is justified as a reasonable regulation of the time, place or manner of expression if it is narrowly tailored to serve that interest Therefore, this regulation is perfectly valid because you are not improperly restricting expression
2) OverbreadthThe ordinance curtails no more speech than is necessary to accomplish its purpose 3) Ample alternative means/mode of communications available available
B. LIMITED OR DESIGNATED PUBLIC FORUM Definition: Is this a forum which was intentionally created or opened up by the government to the public for purposes of expressive speech. A state may designate property to be a public forum. Once it does so, it may remove forum from public connotation status, returning the property to its non-public forum status. if it is merely a place the gov't has opened up to the public - that means nothing. It must have been opened up for the purpose of expressive activity. They must intentionally open a non-traditional forum for public discourse. When open to some speakers, on some topics Must show the gov't intentionally opened the forum for some speech. While some discrimination is inherent, we must look at the government's intent - did they intend for this property to be used for purposes of expression.
Ask: Is the Challenger within the category or class to whom the forum has been opened? determine the type of forum… If yes (within the designated class) then treat as traditional public forum, and apply strict scrutiny. If no then treat as a non-public forum apply reasonable time place regulation test and determine whether it was viewpoint neutral.
1. If property is determined to be a traditional or limited forum, then If it is a limited forum can use content based restrictions as long as it furthers the purpose of that limited forum 2. Determine whether the statute or regulation is content based or content neutral 3. And apply the appropriate test (strict scrutiny or time, manner and place reg.) NON-PUBLIC FORUM (ie: jail) Definition: Not open to public for expressive activity. There is no access to this governmentally controlled property for the purpose of expressive activity therefore the Gov't may discriminate on the basis of content! Content based regulations are valid as long as done as part of preserving the intended use of the forum o However, the use of the non-public forum must be administered in a viewpoint neutral manner
Viewpoint neutrality protects against discrimination based on the speaker‟s specific motivating ideology, opinion, or perspective, not the actual content of the speaker‟s message Ie: pro gay, anti gay
If the court deems the property to be a Non-Public Forum, the government will probably win this challenge, if: 1. The regulation is reasonable, and 2. There is no viewpoint discrimination. NOTE: if the challenger proves that the regulation is unreasonable and is based on viewpoint discrimination, the government loses. D. PRIVATE PROPERTY owned privately 1) Is it a reasonable time, place, manner restriction o There is a special respect for individual liberty in the home The need to regulate temperate speech from the home is much less pressing 2) Must look at whether it is content neutral need a significant gov’t interest that is narrowly tailored (ie: size limitations of all the signs must be reasonable) o If it is content based strict scrutiny and need a compelling governmental interest Regulation does NOT need to be the least restrictive means of accomplishing the interests must be narrowly tailored to serve the government‘s legitimate content neutral interests 3) Ample alternatives for channels of communication 4) Overbroad The means chosen are sufficiently broader than needed to sustain the interest Can‟t extend buffer zone into private property only related to public property (the street) Broadcasting Broadcasting and regulation can be viewed as a public forum, but once the licensee begins operation then it seems the court is treating it as a type of private forum subject to more extensive regulation o Because of the scarcity of the broadcasting frequencies There is nothing in the 1st amendment that prevents that government from requiring all licensee to share his frequency with others This justification does not apply to cable or satellite broadcasters because no scarcity of access exists Right to reply statutes can‟t impose duty to publish a reply to an article in a newspaper BUT in other media context (ie traditional broadcasting) a requirement of balanced presentation can be imposed because of the lack ease of market entry to compete o Natural monopoly The imposition of must carry rules and public access obligations can be imposed on cable operators because these are utility type regulations not aimed at the content of speech 14
o But this regulatory activity runs afoul runs afoul of the 1st amendment if it requires cable operators to exercise editorial control School funds for activities Use of mandatory activity fund money to fund expressive activity in a university environment is permitted and does not constitute endorsement o The court noted that in such cases the means for distributing the money must be viewpoint neutral.
Whether government action coerced someone into expressive activity…need a compelling gov‘t interest to do so If there are less restrictive means and the standard is strict scrutiny coercion fails Must be ideologically neutral If school officials helped draft the resolution for religious speech, then Lee v. Weissman -- girl exposed to prayer in graduation ceremony that school officials helped rabbi draft. This is state sponsored & directed religious exercise. Students had no choice to leave given the significance of high school graduation in our culture
Kennedy - coercion to participate in a religious activity is an obvious indication that the gov't is endorsing or promoting religion. Religious Expression will not violate the establishment clause where it is: Purely private Occurs in a public forum (traditional or designated), publicly announced & open to all on equal terms (i.e. religious symbols) Note on Standing under EC: Mere emotional or psychological injury of disagreeing with the views does not count as standing. Look to see if the person had to alter their behavior as a result of the gov't action. [e.g. - Cannot challenge "in God we Trust on Coin" - b/c no standing.]
REGULATION OF POLITICAL CAMPAIGN SPEECH I. Corruption or the appearance of corruption This justifies the imposition of campaign contribution limitation and reporting requirements, but not to the expenditure limitations or limitations on contribution to campaign by the candidate It is important to note that these interests are not sufficient to justify a prohibition on anonymous campaign literature. 15
Similarly the interest in protecting against fraud and crime did not justify imposing a registration requirement on political canvassers (supporter)
Political speech is at the core of the First Amendment concerns. The Court applies strict scrutiny when a state undertakes to regulate the content of speech during an election campaign.
Monetary Contributions (whether by cash or by tangible assets) to a political campaign are in and of themselves speech. Therefore, strict scrutiny is appropriate where the government has a compelling interest in managing the appearance of corruption as well as the actual occurrence of corruption. Furthermore, the government has a compelling interest in protecting election outcomes from dirtiness [narrowly tailored to interest articulated].
o o o
A limit on the amount a person or group can spend “necessarily reduces the quantity of expression,” impacting on the quality and diversity of speech. Limitations on contributions, on the other hand, impose only a marginal restriction on the contributor‟s ability to communicate. Limiting the contribution (make a contribution not exceeding $500) is ok but to say you can give a contribution of $500 you cant give an contribution to anyone else is not ok.
The federal law limiting individual contributions to candidates was implemented by: Constitutional Provisions: 1. Reporting (that you have to report how much you spend): related to the two articulated dangers (corruption and the appearance of corruption); at the very least reduces the appearance of corruption. So, you have to report contributions. 2. Contributions: related to the two articulated dangers; in that the government had a compelling governmental interest in limiting contributions. Caveat: Court specifically made a finding that where a candidate speaks with their own money no threat of corruption occurs so there is no limit on how much a candidate can endorse their own campaign. 3. Public Funding of Presidential Campaigns: every candidate receives the money and therefore, creates fairness. Unconstitutional Provisions: 1. Expenditure: not related to the two articulated dangers; not narrowly tailored; because shuts off speech. Contributions are considered speech.
Public Referendums are different:
The anti-corruption interest of the government that was used to uphold spending limits on contributions is not applicable to spending limits on contributions in referenda.
Example: A local ordinance placing a $250 limitation on contributions to committees formed to support or oppose ballot measures submitted to a popular vote was held unconstitutional. A referendum is considered diff than elections so you cant limit the contributions because it is a referendum and it is a popular vote. The anti-corruption interest is not there with referendums so you don‟t need the safeguard. COMMERCIAL SPEECH
DEFINITION: speech which does no more than propose a commercial transaction. In order to determine constitutionality of commercial speech, we must apply the…
Whether the Speech/advertising is a Lawful activity and whether it is protected? It is not if a. The ad is untruthful or misleading b. It promotes an illegal transaction, good or service NOTE: If yes to either, the speech is not protected, gov‟t wins & analysis is over, if it is protected go to step 2)
Whether gov't have a Substantial interest in regulating this ad?; AND Substantial – intermediate scrutiny- significant or important but NOT compelling [This is why SS is never applied as to commercial speech]. NOTE: There has not been a case where a substantial government interest has not been found 3. Whether the regulation directly Advances the gov‟t interest?; AND Government has the burden of proving this element. Analogous to narrow fit analysis can‟t be overbroad
NOTE: Recent trend for this prong is harsher toward the government; it requires the government to present evidence that the speech prohibition will significantly advance the government interest. 4. Whether the regulation is no more Extensively than necessary to further the interest? Regulation cannot be overinclusive because than government is regulating more that is necessary, if so test fails & law will be stricken overbreadth Regulation can be underinclusive so long as it directly advances the government interest. [minimizes chance of establishing 3rd prong b/c will probably be veiwpoint based]
NOTE: does not have to be the least restrictive means but the court is using proof of existence of less restrictive means to show the 4th prong is not met.
Regulation of commercial speech is always content based but you never apply SS
NOTES: Prong 1given much more weight [If answer to 1 is no, gov't wins, challenger loses] Prongs 2-4Heart of analysis Government must pass prongs 2, 3, AND 4 to win. Government is very protective of freedom of speech If government can ban a product or service, then it can also ban its advertising No Facial Overbreadth Challenge: a statute being struck down as applied to a particular challenger this does not invalidate the regulation as to all other advertisers. Modern Application : Hudson is still the test used, but Court doesn‟t want to keep people in the dark about product or service information. When there is a non-speech element (symbolic speech) must apply the O‘Brian Test
OBSCENITY Miller is modern test for determining if speech/expressive activity is legally obscene. If speech is legally obscene then it may be banned and violations may be punished criminally and civil. This is a VERY narrow and difficult test to satisfy because of its based on content assessment (except when involving children)
Whether the Average person, applying “contemporary community standards‖, would find that the work, Taken as a whole, appeals to the Prurient interest; AND Whether the work depicts or describes, in a Patently Offensive Way, sexual conduct specifically defined by applicable state law, AND Whether the work taken as a whole, lacks Serious Literary, Artistic, Political or Scientific value. [susceptible to facial overbreadth invalidation]
Contemporary Community Standards: no definite standard; jury instruction may be to use the standard of the nation, or standard of the state etc. Since states have little success in prosecuting obscenity cases the states have turned to indirect regulation of sexually oriented speech/expression o Ie zoning regulations reasonable time, place or manner cases or symbolic speech cases to find the regulations are constitutional because of the nonspeech oriented regulation
Obscenity – Material that deals with sex in a manner appealing to the prurient interests. Prurient Material having a tendency to excite lustful thoughts S.L.A.P.S. is determined through the eyes of a reasonable person Obscenity may be: written, spoken, film or photography. Person cannot be punished for possessing obscene material in the home, but can be punished for selling, buying or sending, receiving (by mail) obscene material. The power of the state to control the conduct of children reaches beyond the scope of its authority over adults.
Individual‟s interests 1.right to receive info & ideas, regardless of their social worth 2. Right to be free, except in very limited circumstances, from unwanted governmental intrusions into one‟s privacy Government Interest for Prohibiting Obscenity: 1. publics quality of life, morals 2. total community environment 3. public safety itself Child Pornography use watered down Miller (Miller Lite) (2) need not be patently offensive (3) need not appeal to the prurient interest can‟t be banned if completely in words or if animated b/c there is no harm (no victim) strongest challenges (1) overbreadth – must be substantial (part of statute covering unprotected speech is trivial) (2) vagueness – reasonable person reading statute doesn‟t know whether/not his/her conduct is protected or not EXAM TIP: Keep an eye out for content based or viewpoint based regulations here 1st AMENDMENT ANALYSIS
Is there state action? (ex – government regulation) Content Based or Content Neutral Regulation?
a. CONTENT BASED REGULATION: discriminates on the basis of content/speech.
STRICT SCRUTINY (law must be necessary to achieve a compelling governmental interest) 1. Must be a compelling state interest 2. Law must be a narrowly tailored a. tight fit b/t means (statute) and end (state interest) b. Must be the least restrictive means necessary not narrowly tailored to accomplish the government interest if statute is: 19
Overinclusive: law regulates more than necessary to accomplish interest. Underinclusive: law regulates less than necessary to accomplish interest.
Logical Approach of Analysis: Under/Over Not Narrowly Fails Strict Law is Law is Overbroad. Inclusive Tailored Scrutiny Unconst. b. CONTENT NEUTRAL: Gov't is not regulating content of speech, but rather when, where and how it is said. NOTE: Effects Doctrine: If statute is content based but has a possible secondary effect on quality of community, morals, etc Ct is going to treat as content neutral ( c.b.) b/c of secondary effect. This converts a content based regulation to content neutral, thus lowering the level of scrutiny. (ex – Young v. American Mini Theatres – it‟s not the message in the films shown in the theatre being regulated we‟re concerned with, but the vices that the theatres bring to the neighboorhood) Both Content Neutral and Content Based? – If so, then it is content based, and content based trumps time, place and manner. Go to strict scrutiny. BEYOND OBSCENITY 1. Over the Internet Reno v. ACLU Made it a crime to knowingly make indecent materials available to minors. [Indecent is a vague word, - ct rejected vagueness argument because vagueness is a due process problem because persons of common intelligence would have to guess what it means] Same statute would have been OK cause if it sought to prohibit obscene materials
CONTENT BASED [ because indecent material is unprotected] FAILS STRICT SCRUTINY A. least restrictive means exist Government didn‟t meet burden in proving no others exist. Didn‟t matter that the least restrictive way (which is the use of access codes and credit cards) is not an effective method & hard to implement. there really is no effective way to keep children away from this material. 20
B. Affirmative Steps Internet is an invited intruder [steps are necessary to reach sites on internet]. chances of stumbling onto a pornographic site on the internet are slim. This distinguished internet from radio.
C. “Cant reduce the adult population to only what is fit for children”
NOTE: Is this an independent principle that will trump strict scrutiny? It would mean that this court would not allow the gov't to regulate in a way that totally bars adults from having access to constitutionally protected material in the name of trying to shield children from that material. The court might bar this material, even though the gov't has a compelling interest - protecting kids from porn is a compelling state interest, But, it fails strict scrutiny b/c it bars access to adults as well as kids. [Adults have a right to see it] The mere fact that the statute burdens adults as well as kids does not necessarily render the statute fatal. NOTE: If the material is obscene, the government will have no problem suppressing it FREEDOM OF RELIGION ―Congress shall make no laws respecting the establishment of Religion, or prohibiting the free exercise thereof.‖ A. Establishment Clause
1. Go through Lemon Test 2. Then ask whether Government would survive the Excessive entanglement element . 3. Finally, ask whether government action involved coercion. used when the statute applies to all religions. (PNEUMONIC – PEE Peter Eats Eggs) Ask: A statute or practice does not violate the establishment clause if it: a. Has a SECULAR legislative PURPOSE. Secular – means non-religious Look at intent of the legislators. if there is a mixed purpose, both non-secular purpose and some secular purpose the gov't wins this prong. b. Has SECULAR EFFECT - does not advance religion. 21
if it is advancing - it does not have a secular purpose and fails 1st prong. Primary Effect must be to educate all students and ensure that they receive benefits equally, not advance religion. The primary effect does not advance religion if: [must answer yes to both to pass 2nd prong] 1) benefit of gov‟t $ goes to all? 2) $ doesn’t go directly to school [e.g. goes to parents, public school teachers instead]
c. Does not foster an EXCESSIVE ENTANGLEMENT between church and state. This prong suggests the government must have some real human involvement, as: i. Financing religion, or ii. Administratively helping religion (i.e. monitoring). Religious Symbols are not excessive entanglement because no ongoing human interaction [e.g. nativity scene] Excessive Entanglement means ongoing support Thorough monitoring (daily or weekly) is excessive entanglement but periodic monitoring (monthly or yearly) MAY not be because it‟s not pervasive, BUT: [Even if there were no monitoring required, its assumable a teacher at a religious school would interject religious views into his teaching of a secular subject.] Government‟s interest plays no role here
NOTE: When government discriminates in favor of one religion over the other, STRICT SCRUTINY applies, not Lemon test. Rendering Financial Assistance to Private School cases: i. ii. Here, the state never loses based on the 1st prong b/c the purpose is usually nonsecular. Concern is that the funding devoted to secular teaching at religious schools may creep over and wind up paying for non-secular teachings - then it would fall under primary effect - 2nd prong - even if purpose of gov't aid is not in assisting religion. If state says "no that won't happen b/c we'll monitor it" -- then they have violated the 3rd prong - excessive entanglement.
Gov't Recognition of Religious Holidays and Symbols Lynch v. Donnelly - nativity scene in public park. Court was split - was both secular and non-secular - when that happens state will win. So long as there is some secular purpose. This case promted O'Conner's in establishing the Endorsement Test.
She says that in looking at Lemon, there is the concern that excessive entanglement is sending a message to those who are not involved with the chosen religion and made to feel like an outsider. She says the question should be: Is the state favoring religion? a way to prove entanglement Ask: Whether government would survive the endorsement test? If the government is favoring religion then it would not survive this test To determine whether government is favoring religion, their action must not: 1. Have a purpose to endorse religion Look at the motivation of the state? Are they permitting the action 2. Have the effect of endorsing religion? NOTES: If either is true – government loses due to excessive entanglement. Test is applied through the reasonable observer. (would a reasonable person viewing a display (Christmas trees) conclude that the gov‘t is endorsing religion?) This is endorsing religion when the gov‟t allows you to up things that have one religious connotations this is an endorsement because favoring a specific religion If display seasons greetings this would not be endorsement Although the gov‟t is not responsible, allowing a religious sect to do so on gov‟t property thus endorsing that religion B. FREE EXERCISE CLAUSE Secular = non religious ie: educational/economical being applied in schools Sectarian = religious THRESHOLD QUESTION: ASK: Whether government is imposing a substantial burden of the free exercise clause by prohibiting you from practicing your religion as long as it is doing so in a generally applicable fashion to ALL religion 1. Whether challenger‟s alleged belief is or is not a religion. court cannot inquire as to the truth or accuracy of their beliefs, BUT court can inquire as to the sincerity. court can inquire as to the religious nature of one‟s beliefs [except in extreme cases where it is obvious that it is a bizarre claim the court should not question the religious nature and treat the belief asserted as a religion] 2. Whether statute [or practice in question] is neutral. a. If yes, then there is no exception & challenger loses b. If no, apply STRICT SCRUTINY 3. Whether an exception exists.
If challenger is asking for an "exception" to the law, AND the government made other exceptions, apply STRICT SCRUTINY. [e.g. – Bablu v. Hialeah – state can’t prohibit activity engaged in by a specific religious group while allowing other religious groups to engage in that activity – animal sacrifice by Santeria religion] If you can characterize the statute as one that already provides exemptions then use those exemptions No exception will be made for religious activity that includes criminal conduct [Peyote case – no exception will be carved for Native American religious practice of engaging in illegal use of peyote]
religious beliefs are absolutely protected, religious conduct is not
Constitutional Law II Outline: Rogow
I. What Speech is Not Protected?
A. Phrases: 1. clear + present danger (Schenck) – i.e. can‟t shout fire in a crowded theater 2. advocacy 3. incitement 4. attempt 5. imminent lawless action 6. likely to incite or induce B. Clear + Present Danger: Schenck v. US (1919) D was charged and convicted with
conspiracy to violate the Espionage Act by causing and attempting to cause insubordination in the military and the naval forces of the US and to obstruct the recruiting and enlistment service of the US – D had mailed leaflets to men eligible for military service asserting that the draft violated their 13th amendment rights (leaflets called for peaceful measures and didn‟t explicitly advocate illegal resistance to the draft) 1. Issue: Was D‟s speech protected by the 1st amendment? NO! 2. Test: whether the words used are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. (factual issue ---looks to the probable effects of advocacy) a. upholds convictions and restraint on free speech as necessary to prevent grave and immediate threats to National Security b. the character of every act depends on the circumstances under which it is done (i.e. speech here took place during wartime – probably could be protected in times of peace) 2. Analogy of unprotected speech: shouting “fire” in a crowded theater 24
Note: all that‟s needed is a “tendency”/ probability to produce harm – no requirement of success needed
C. Debs v. U.S. (1919) D made a speech opposing the First World War ----SC upheld
conviction for obstructing military recruitment --- no showing that anyone in the audience in fact inferred more (such as call to illegal action) nor was there any evidence that any obstruction of recruitment actually occured as a result of the speech 1. Test Applied: (attempted to apply “clear + present danger” test) words must have as their “natural tendency and reasonably probable effect” the obstruction of recruitment Note: seems like a bad decision – difference b/w addressing a general audience and mailing opposition letters directly to draftees in Schenck
D. Learned Hand Test: Masses Publishing v. Patten (1917) speech consisted of antiwar cartoons and text which criticized the War and the draft and which expressed great sympathy for draft resisters –ct. held that materials were beyond Congress‟ power to prohibit or punish 1. Test: “direct incitement of illegal acts” test --- focuses solely on the words spoken and not on the surrounding circumstances ---words could be punished if they “counsel or advise others to violate the law as it stands” but not if they are merely critical of the law
E. Abrams v. US (Holmes Dissent): an actor does not „intend‟ a consequence unless that
consequence is the aim of the deed ---Congress is justified in limiting expressions of opinion on public matters only where there is: (1) present danger of immediate evil or (2) an intent to bring it about‟ Note: suppression applies when expression so imminently threatens immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country
F. Statutes Directly proscribing Speech: Gitlow v. NY NY criminal statute banned
advocating (orally or in writing) the overthrow of a government by assassination or other violent means. D published pamphlet which advocated establishment of a dictatorship through mass strikes and other revolutionary actions. ---SC upheld conviction 1. Clear + Present Danger Test N/A: test only applies in those cases where the statute merely prohibits certain acts involving the danger of substantive evil without any reference to the language itself – here, on the other hand, the legislature already determined that certain types of language posed a risk that substantive evils would result
G. Statute Directly Proscribing Speech: Whitney v. CA D convicted of CA Act which
made it a crime to organize, assist in organizing, or knowingly becoming a member in any
group that advocated crime as a means of accomplishing political change. (D attended a convention + SC upheld conviction) 1. Analysis: the legislature‟s conclusion that mere knowing membership in an organization advocating criminal syndicalism was substantively dangerous and must be given great weight 2. Dissent: clear + present danger test applies –to justify suppression of speech there must be reasonable ground to: a. fear that serious evil will result if free speech is practices b. the danger apprehended is imminent c. the evil to be prevented is a serious one Note: above implies only an emergency can justify suppression
H. Modified Test: Dennis v. U.S. (1951) D‟s were convicted under Smith Act of
conspiring to advocate the overthrow of the US government and conspiring to reorganize the communist party in the US. ---conviction upheld by SC 1. Learned Hand Balancing Test: whether the gravity of the evil discounted by its improbability justifies such invasion of free speech as is necessary to avoid the danger. Note: above reshapes the Holmes test and abandons Masses test 2. Analysis: under the above test, if the potential harm is sufficiently great, such as overthrow of the government, the speech may be suppressed even if it is highly improbably that it will bring the harm about probability of success no longer the basis for determining whether the danger is clear and present the greater the gravity of the act advocated the less clear and present danger needed to justify government intrusion
I. Retreat from Dennis : Yates v. US (1957) D convicted under Smith Act of conspiring
to advocate and teach the necessity of overthrowing the federal gov‟t by violence and organizing the communist party to carry out this revolution. 1. Analysis: Congress meant to prohibit only advocacy directed at promoting unlawful action (now or in the future) not to prohibit advocacy of “abstract doctrine”. The essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather then merely believing in something
J. Scales v. US (1961) SC construed the Smith Act as allowing conviction based on
membership in the communist party only where: the D himself has the specific intent to carry out the aims of the organization by resort to violence or illegal means
K. The Modern Standard: Brandenburg v. Ohio (1969) D was leader of KKK and was
charged with violating OH statute which forbade the advocacy of crime or violence as a means of accomplishing industrial or political reform ---SC struck down OH statute 1. New Test: speech advocating the use of force or crime can be proscribed when (2) conditions are satisfied:
a. the advocacy is directed to inciting or producing imminent lawless action
i. Does the speaker use speech to cause unthinking, immediate lawless
action? (if yes, state has significant interest in preventing the lawless action) b. the advocacy is also likely to incite or produce such action i. Did the words used by the speaker objectively encourage and urge incitement? --would a reasonable person think it likely that dangerous action would occur? Note: mere advocacy of abstract doctrine still not enough!! Note: case overturned Whitney
II. Reputation and Privacy
A. Public Officials and Seditious Libel: NY Times v. Sullivan P was a public official
one of whose duties was supervising the Alabama police department. P alleges that the D newspaper had libeled him by printing an advertisement that stated that the Alabama police had attempted to terrorize Martin L. King and his followers(P was not named in the advertisement but under AL libel law, criticism of the department of which he was in charge was deemed to reflect on his reputation) SC reversed damage award against the D 1. Actual Malice Rule: the constitutional guarantees require a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that statement was made with actual malice – with K that it was false or with reckless disregard of whether it was false or not. a. privilege: there is a 1st amendment „privilege‟ to publish something about public officials unless the P can show „actual malice‟ 2. Analysis: a. Is someone a public figure? b. Which standard applies? NY Times or other standard (i.e. negligence)
B. Public Figures: Curtis Pub Co. v. Butts the University of Georgia football coach and
a prominent retired Army General were held to be public figures and subject to the NY Times test 1. NY Times Test Applies: public figures like public officials often play an influential role in ordering society and as a class have a read access to the media to counter criticism of their views and activities
C. Private Figures: Gertz v. Welch P was a locally well-known layer who represented
the family of a youth who was killed by a policeman. D, publisher of a magazine, falsely attacked P as having helped „frame‟ the policeman and as being a communist. 1. Negligence Standard Applied: in libel actions brought by private figures, the 1st Amendment does not forbid use of a simple negligence standard or other standard
---so long as strict liability standard not used (states are free to adopt their own standards) 2. Reasoning: private individuals are more vulnerable and more deserving of recovery for defamation then public figures for 2 reasons: a. public figures have significantly greater access to the media and use that access to counteract false statements AND b. public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehoods unlike private persons Note: key inquiry is to find out if P is a public or private individual
D. Defining ‗Public Figure‘: Time Inc. v. Firestone Time magazine incorrectly reported
that one of the grounds for P‟s divorce was adultery. SC held she was not a „public figure‟ even though she had held some press conferences during the divorce trial and even though the trial itself had been widely reported in the newspapers. 1. Key inquiry: Did the P assume a role of especial prominence in the affairs of society? a. look at the individual facts of each situation to see if someone meets the above profile
E. False Light Privacy: Time Inc. v. Hill P sued publisher for publishing an erroneous
but not defamatory report about private individuals involved in an incident of public interest –family‟s hostage situation was turned into a film and falsely reenacted (exaggerated what really happened) 1. Holding: NY Times standard applies even though this isn‟t a defamation action b/c this was a “newsmaking event” 2. Zacchini v. Scripps Differentiated: P performed as a human „cannonball‟ and D filmed him w/o his permission and showed the footage on the news. this case is differentiated b/c P‟s claim was not based on privacy or reputation but in protecting his propriety interest – issue was not whether P‟s act would be available to the public but was whether who gets to do the publishing
F. Disclosure of Private Facts: FL Star v. B.J.F concerned the constitutionality of a FL
statute which makes it unlawful to print/ publish in mass communications the name of the victim of a sexual abuse 1. Analysis: a. Did the newspaper lawfully obtain truthful information about a matter of public significance? b. Is there a compelling state interest for imposing liability on the D? i. privacy of victims of sexual abuse ii. physical safety of victims iii. goal of encouraging victims of such crimes to report the offenses w/o fear of exposure a. Is the statute narrowly tailored to achieve the governmental purposes?
G. Ownership of Speech: Harper & Row v. Nation SC held that so long as the material
in question is copyrighted, 1st amendment principles are irrelevant, even if the material involves matters of public concern 1. Factors in considering ‗fair use‘: (no copyright infringement if fair use found) a. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes b. the nature of the copyrighted work c. the amount and substantiality of the portion used in relation to the copyrighted work as a whole d. the effect of the use upon the potential marker for or value of the copyrighted work
H. Emotional Distress: Hustler Magazine v. Falwell magazine published a parody
which portrayed P (Reverend Falwell) as a drunken hypocrite who had sex with his mother. The ad contained a legend at the bottom stating: „ad parody not to be taken seriously‟ ---SC overruled award of damages for intentional infliction of emotional distress 1. Analysis: even when a speaker or writer is motivated by hatred or ill-will his expression is protected by the 1st amendment – political parody and satire is an important element of political speech 2. Recovery for emotional distress: public figures and public officials may recover for the tort of intentional infliction of emotional distress by reason of publication such as the one here in issue by showing that the publication contains a false statement of fact which was made with actual malice ---w/ K that the statement was false or with reckless disregard as to whether or not it was true Note: there is a big difference b/w taking from the original + making fun of the original (i.e. 2-live-crew song in class) vs. taking the original + making fun of somebody else (i.e. political song in class)
A. Florida Statute 847.001 Obscenity: „obscene‟ means the status of material which: 1. the average person, applying contemporary community standards, would find,
taken as a whole, appeals to the prurient interest 2. depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein AND 3. taken as a whole, lacks serious literary, artistic, political, or scientific value
B. FS 847.011 Prohibition of certain acts in connection with obscene, lewd, etc.
materials: 1. penalty: a person who knowingly in his/ her possession, custody, or control has an obscene book, newspaper …… without intent to sell, lend, give away, distribute, transmit, show, or advertise the same is guilty of a misdemeanor of the 2 nd degree
2. Proof: a D knowingly committed any act or engaged in any conduct above by
showing that at the time such act was committed or conduct engaged in the D had actual K if the contents or character of the material OR by showing that he/she had K of such facts + circum. as would put a person of ordinary intelligence and caution on inquiry as to such contents or character
C. Roth v. US (1957) D was convicted under a federal obscenity statute for mailing
obscene advertisements and an obscene book 1. Significance of Case: laid out that obscenity is not within the area of constitutionally protected speech or press ---- however, 1st amendment concerns, as explained below, limit the acceptable definition of obscenity 2. Test for Obscenity: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest” a. prurient: that which excites lustful thought, itching, longing, uneasiness with desire or longing, morbid or lascivious longings of desire, curiosity, propensity, lewd…. 3. Redeeming Social Value: the portrayal of sex in art, literature, and scientific works is afforded full constitutional protection --- all ideas having even the slightest redeeming social importance are to be protected 4. Douglas Dissent: would give speech in case 1st amendment protection –„I have the same confidence in the ability of our people to reject noxious literature as I have in their capacity to sort out the true from the false in theology, economics, politics, or any other field‟
D. Private Possession by Adults: Stanley v. Georgia (1969) D convicted for possessing
obscene materials in his home –SC overruled the conviction 1. Rule: mere private possession in one‟s home of obscene material cannot constitutionally be made a crime. However, regulation of such matter outside the home is still permitted --- i.e. Roth -----the state may prohibit an individual from transporting and receiving of the material for private use Note: so long as one can buy the material and get it home they are o.k. 2. Balancing Test: state interests v. individual interests (1st amendment interest in having free access to ideas AND privacy interest) Note: exception to Stanley exists w/ child pornography Note: SC has limited Stanley to its facts ---does not protect the mailing of obscene material to consenting adults or the transporting or importing of obscene materials for private use E. No exception for consenting adults: Paris Adult Theater v. Slaton (1973) an adult theater made clear that you had to be 21 to enter and had sign which read „if viewing the nude body offends you Please Do Not Enter‟ --- SC held that the showing of the films in the theater was NOT constitutionally protected (ct. refused to grant an exception for such consenting-adult-only displays) 1. State Interests in banning sale of display of obscene materials to consenting adults: 30
a. evidence of a link b/w obscenity and the commission of sex crimes b. state has an interest in maintaining the quality of life in he total community
environment as well as an interest in the „tone of commerce‟ ---commerce trade in obscenity is at odds with these interests c. gov‟t has an interest in the general „moral tone‟ of society
F. Modern Framework for Obscenity: Miller v. CA (1973) D was convicted under CA‟s
obscenity law for mass mailing of unsolicited pictorial advertising brochures depicting men and women in a variety of group sexual activities. 1. Present Obscenity Test: (all parts must be met for identifying material which may be banned as obscene) a. the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest AND b. the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law AND i. states may only ban as obscene depictions or descriptions of „hard core‟ sex –states must be specific in what sexual conduct is being banned here! c. the work, taken as a whole, lacks serious literary, artistic, political, or scientific value i. i.e. medical books would survive the test ii. proper inquiry is NOT whether an ordinary member of any given community would find serious literary, artistic…value BUT whether a reasonable person would find such value in the material taken as a whole 2. Community Standards: what „appeals to the prurient interest‟ or is „patently offensive‟ should be determined by reference to local community standards vs. a national standard 3. Examples of conduct under part (b) of test: i. patently offensive representation or description of ultimate sex acts, normal or perverted, actual or simulated ii. patently offensive representations or descriptions of masturbation, excretory functions, lewd exhibition of genitals, etc. Important Note: pornography is NOT obscenity (don‟t get these confused!)
G. Other Obscenity Arguments: 1. vagueness obscenity statute is vague 2. overbroadth obscenity statute is overbroad (i.e. Miller)
IV. ‗Fighting Words‘, Offensive Words and Hostile Audiences
A. Fighting Words: Chaplinsky v. NH (1942) D was a Jehovah‟s witness who called the
city marchall a „goddamned racketeer and damned fascist‟ and then got into a fight with him on the sidewalk –D was convicted under statute and SC affirmed. 31
1. Statute: no person shall address any offensive, derisive, or annoying word to any
other person who is lawfully in any public street…not call him by any offensive or derisive name 2. ‗fighting words‘ defined: „those which by their very utterance inflict injury or tend to incite an immediate breach of the peace‟ (likely to cause an act of violence) --these words are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interesy in order and morality. 3. Test for ‗offensive‘/ ‗fighting‘ words: what men of common intelligence would understand would be words likely to cause the average addressee to fight 4. Importance of Case: „fighting words‟ receive no 1st amendment protection 5. Words Forbidden: a. face-to-face words b. words that have a direct tendency to cause acts of violence by the person to whom, individually they are directed Note: should „truth‟ be a defense? Note: inquiry are the above words = a slap in the face Note: decision means that states are free to ban „fighting words‟ w/o a demonstration of additional justifying circumstances.
B. Categories of Speech: (ranked by their level of 1st amendment protection) (1) first tier political, religious, economic, and scientific speech (2) second tier entertainment, music, and humor (3) third tier libel, obscenity, profanity, and commercial pornography C. Offensive Words: Cohen v. CA (1971) D wore a jacket into the courthouse that said
„fuck the draft‟ protesting the Vietnam War –CA statute prohibited maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct –SC reversed conviction on 1st amendment grds. 1. Rationale: there was no showing that anyone who saw the jacket was violently aroused AND no person likely to be present could have reasonably regarded the words on his jacket as a direct personal insult 2. Counter-argument: D‟s expression was thrust upon unwilling or unsuspecting viewers --- ct. responded by saying that those present could simply have averted their eyes Note: gov‟t can‟t restrict speech merely b/c it would offend others --- „one man‟s vulgarity is another man‟s lyric‟
D. Hostile Audiences: Terminiello v. Chicago (1949) D made a race-baiting speech
which attracted an angry crowd and the D denounced the crowd as „snakes‟ and „slimy skum‟ –SC reversed D‟s conviction 1. Statute (for breach of peace): speech which stirs the public to anger or invites dispute as well as speech which creates a disturbance --- SC held statute overbroad on its face 2. Rationale: speech which „stirs the audience to anger or invites dispute‟ is protected under the 1st amendment --- this speech may best serve its purpose, in
fact, when it induces a condition of unrest, creates dissatisfaction with conditions, or even stirs people to anger 3. Rule: not enough that a speaker‟s words make the listeners angry ---incitement to violence is necessary!
E. Hostile Audiences: Feiner v. NY (1951) D made a street corner speech calling
Truman a „bum‟ and said that blacks should „rise up in arms and fight for legal rights‟ one member of the crowd said that if the police did not get that „son of a bitch‟ off the stand he would do it himself. D refused to heed requests from police to stop speaking and he was arrested for disorderly conduct and the SC affirmed. 1. Rationale: D‟s conduct constituted incitement to riot and his arrest was motivated by police‟s legitimate desire to prevent a fight, not by disagreement w/ the content of D‟s message. Note: questionable here whether police were justified in making the arrest on the basis that they couldn‟t control the crowd
F. Racial Hate Speech: State v. Harrington obscene or abusive language spoken w/
intent to annoy or alarm is not an historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then demonstrably were not intended to reach
V. Should New Categories Be Created?
A. Harm to Children and the Overbreadth Doctrine: NY v. Ferber (1982) SC upheld the
conviction of a seller of films depicting young boys masturbating under NY law for “performing a sexual performance” defined as “any performance which includes sexual conduct by a child under 16” 1. Issue: To precent the abuse of children who are made to engage in sexual conduct for commercial purposes, could the NY legislature consistent with the 1st amendment prohibit the dissemination of material which shows children engaged in sexual conduct, regardless of whether such material is obscene? YES!! 2. ‗Overbreadth‘ Argument/ Rule: a law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications ----ct. held that statute was not substantially overbroad even though the statute reached children depicted in medical books and educational books 3. State‘s compelling state interest: to prevent the sexual exploitation and abuse of children who are photographed for prodiction of such materials. (prevents sexual abuse of children also) 4. No less restrictive means: merely banning the production of child porno would not have solved the problem b/c of low profile of producers NOR would banning only obscene materials suffice b/c regardless a child may be physically or psychologically harmed Note: 1st amendment value in child porno is de minimis Note: application of the statute to materials w/ serious artistic, scientific, or educational value (i.e. medical books) would 33
violate the 1st amendment according to Brennan who concurred in the opinion. Note: rule of case applies only to visual depictions of children engaged in sexual conduct but NOT a book describing such conduct (since no actors are being harmed by production of the work) Note: case creates an additional category of unprotected speech
B. Private Possession of Child Porno: Osborne v. Ohio (1990) SC upheld a statute
criminalizing most private possession of nude pictures of children – statute made it a crime for a non-parent to possess any nude photo of a minor except for „proper purposes‟ such as medical or scientific ones 1. Overbreadth Claim: D contends that it was inpermissible for the OSC to apply its narrowed construction of the statute when evaluating his overbreadth claim. ----rule though is that a statute as construed may be applied to conduct ocuring prior to the construction, provided such application affords fair warning to the D. ----here D had fair warning that child-porno was illegal 2. Balancing Test Used: state‟s interest in preventing the pornogrpahic exploitation of children is much stronger than the interest in protecting the mind of adults –any 1st amendment interest in possessing nude pictures of children is outweighed by this anti-child-exploitation interest
C. Pornography as Subordination of Women: American Booksellers v. Hudnut
ordinance treated porno as a practice that discriminated against women and defined porno to include “graphic sexually explicit subordination of women” including the presentation of „women as sexual objects who enjoy pain or humiliation or who experience sexual pleasure in being raped, etc…” 1. Statute not Content-Neutral: the ordinance discriminates on the ground of the content of the speech. Speech treating women in the approved way, „in sexual encounters premised on equality‟, is lawful no matter how sexually explicit. Speech treating women in the disapproved way, on the other hand, is unlawful no matter how significant the literary, artistic, or political qualities of the work taken as a whole. --- the Constitution forbids the state to declare one perspective right and silence opponents
VI. Distinguishing b/w Content and Manner Regulations: Unconventional Forms of Communication
A. Draft Card Burning: U.S. v. O’Brien (1968) D and several others burned their draft
cards in public as part of a protest against the war in Vietnam. They were convicted of violating an amendment to the draft laws making it a crime to „knowingly destroy or mutilate‟ a draft card –the law on its face dealt w/ conduct having no connection w/ speech
1. Test: conduct combining „speech‟ and „non-speech‟ elements can be regulated if
(4) requirements are met to show a sufficient gov‟t interest: a. the regulation was within the constitutional power of the government gov‟t has constit‟l power to raise and support armies and pursuant to this is needed a system of registration through draft cards b. it furthered an important or substantial governmental interest continuing availability to each registrant of their draft card substantially further the smooth and proper functioning of the gov‟t system to raise armies in case of emergency c. the interest above must be unrelated to the suppression of free expression limited to preventing the destruction of cards so as not to hinder smooth functioning --- nothing to do w/ speech d. the incidental restriction on 1st Amendment freedoms was no greater than is essential to the furtherance of the governmental interest just don‟t destroy the card i. counter-argument how about drivers license or birth certificate as ID instead 2. Content Neutral: statute was content neutral b/c statute‟s interests were limited to the noncommunicative aspect of D‟s conduct and least restrictive means used Note: argument could be made that Congress‟ motive in enacting the ban on draft card destruction was to suppress public dissent and therefore the statute is NOT content neutral and subject to strict scrutiny analysis
B. Flag Desecration: Texas v. Johnson (1989) D participated at a political
demonstration where he set an American flag on fire --- D was charged with violating the desecration statute and the SC reversed finding that the statute violated the 1 st amendment 1. Statute: it‟s a crime to „intentionally or knowingly desecrate a state or national flag‟ „desecrate means to deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action‟ 2. Content Based Statute Analysis: a. determine whether D‟s burning of the flag constituted expressive conduct permitting him to invoke the 1st Amendment in challenging his conviction ---“whether there is an intent to convey a particularized message was present and whether the likelihood was great that the message would be understood by those who viewed it” b. if the conduct is found to be expressive, next decide whether the state‟s regulation is related to the suppression of free expression (ask: what are the state‟s asserted interests in support of the conviction?) i. if not then apply test above from O’Brien ii. if yes then apply strict scrutiny test c. if related to expression ask if statute is content based here it is b/c one could burn the flag to dispose of it OR to convey an offensive message –the content based nature of the statute was illustrated by the fact that particular
conduct was covered only if an observer‟s likely reaction would be to be seriously offended 3. Asserted State Interests in Present Case: (1) preventing breaches of the peace and (2) preserving the flag as a symbol of nationhood and national unity 2nd interest here is related to the suppression of expression so strict scrutiny applies 4. Viewpoint based Statute: the gov‟t may not prohibit the expression of an idea simply b/c society finds the idea itself to be offensive or disagreeable Note: Kennedy concurring: „it is poignant but fundamental that the flag protects those who hold it in contempt‟
C. Analysis of Various Statutes:
Time-Place-Manner Content Neutral Incidental effect on speech narrowly drawn reasonable substantial state interest generally applied unrelated to speech narrowly drawn/ least restrictive means
D. Content-Neutral Regulation: Clark v. Community for Non-Violence SC held that a
National Parks Service ban on sleeping in public parks did NOT violate the 1 st amendment rights of demonstrators who wished to sleep in tents in (2) D.C. national parks in order to dramatize the plight of the homeless. 1. O’Brien Test Applied: regulation was valid under the (4) part test --- SC found a substantial governmental interest in maintaining the parks in the heart of our capital in an attractive and intact condition and concluded that the ban on sleeping furthered this interest by limiting the duration of demonstrations like the one involved here –in addition, ct. thought that complete ban was least restrictive alternative 2. Time-Place-Manner Regulation: although there was symbolic speech, the regulation here was a T-P-M regulation --- not related to the expression or content of speech ****REFER TO HANDOUT FOR EVALUATION OF STATUTES*****
*****What about “near obscene speech” p.239-266???*****
VII. Commercial Speech
A. Degree of Protection: political speech receives a higher degree of protection then
B. Defined: speech that advertises a product or service for profit or for business purposes –
expression that is solely related to the economic interests of the speaker and its audience
C. Test for Commercial Speech: Central Hudson (1980)NY banned all promotional
advertising by electric utilities ---SC held that ban was more extensive than necessary to further governmental interest
1. Test: a commercial speech regulation must meet factors below to be protected by
1st amendment a. speech must be truthful + not misleading (must pertain to a lawful activity) b. the governmental interest in support of the regulation must be substantial c. regulation must directly advance the governmental interest asserted d. regulation must be reasonably tailored/ reasonable fit – must not be more extensive than necessary to serve interest above (need only be a reasonable means – does not have to be the least restrictive means of advancing the important gov‟t interest)
Note: political speech is afforded more protection b/c there you need a compelling state interest to restrict
D. Pure Commercial Speech: VA Board of Pharmacy (1976) involved the
constitutionality of a state statute making it “unprofessional conduct” for a pharmacist to advertise prescription drug prices –SC held statute unconstitutional 1. Rationale: society has a strong interest in the free flow of commercial information --- a state may not regulate a profession by keeping the public in rance of lawful advertisements of prices that competing professionals are offering a. asserted state interest: high degree of professionalism for licensed pharmacists 2. Permissible Forms of Commercial Speech Regulation: a. time, place and manner restrictions b. false or misleading, deceptive advertisements Note: footnote suggests that the differences b/w professions may require consideration of quite different factors. Physicians and lawyers, for example do not dispense standardized products, they render professional services with the consequent enhances possibility for confusion and deception if they were to undertake certain kinds of advertising.
E. Regulation of Lawyers: Bates v. State Bar (1977) SC held that states may not ban all
newspaper advertising of legal services of which certain routine services will be performed 1. Rationale: the services which lend themselves to advertising are the routine ones (i.e. uncontested divorce) – disallowing such advertising denies the consumer relevant information needed to make a choice
F. Newspaper Advertising for Lawyers: Zauderer SC held that a state may not
discipline attorneys who solicit legal business through newspaper advertisements containing truthful and nondeceptive info. and advice regarding the legal rights of the potential clients or for the advertising use of accurate and nondeceptive illustrations
G. Soliciting Employment for Pecunary Gain: Oralik v. Ohio State Bar (1978) SC
upheld suspension of attorney for soliciting accident victims to obtain employment (ambulance chasing case) 1. Rule: a state may forbid in-person solicitation for pecuniary gain 37
H. Protected Solicitation: In re Primus (1978) SC held that ACLU lawyer could not be
punished for writing letter to woman who had been illegally sterilized where the letter offered the ACLU‟s free services in filing a lawsuit on her behalf 1. Right of Association: the litigation was an attempt to further the lawyer‟s political and ideological goals and her conduct implicated her interest in political expression as well as freedom of association --- these 1st amendment interests were sufficiently strong that the state could not use prophylactic measures b/c of the mere potential for overreaching or fraud (no showing here that solicitation in fact led to some harm!!)
I. CPA Solicitation: Edenfield (1993) SC held that direct personal solicitation of
prospective business clients by CPA‟s is protected under the 1st amendment b/c state failed to show that a ban on in-person solicitation was reasonably tailored to serve substantial state interest in preventing fraud Note: the vulnerability of a client plays a role in whether the solicitation is allowed (i.e. solicitation by lawyer to a business probably allowed)
J. Regulation of Hate Speech: RAV v. St. Paul case where teenagers burned cross in
yard of black family –SC held that statute prohibiting such behavior violated the 1st amendment on its face 1. Statute: “whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including but not limited to a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor” (statute found to be intended to apply only to fighting words NOT to bias speech which would not threaten an immediate breach of peace) 2. Content Based: statute is content-based b/c it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses –strict scrutiny applies BUT there are adequate content-neutral alternatives which exist: i.e. prohibiting ALL fighting words (overbreadth problems may exist here though!!) NEED: a. compelling state interest b. narrowly drawn to combat harms association w/ state interest 1. Rule: even when the government is regulating an unprotected category of speech such as fighting words, it may not do so in a content-based manner 2. Viewpoint Based: where two opposing sides had a confrontation concerning a matter of race or religion, one side could use fighting words while the other could not --- i.e. one could hold up a sign saying “all anti-catholic bigots suck” but not one which says “all papists such” b/c the later would insult and provoke violence on the basis of religion. --------------------------------------------------------------------------------------------------
K. FL Bar v. Went for It, Inc. (1995) targeted direct-mail solicitations by personal injury
attorneys to victims and their relatives for (30) days following an accident are not protected under the 1st amendment 1. lawyer advertising is commercial speech 2. regulation was not content-neutral 3. substantial state interest here though i. image of legal profession ii. protecting privacy and tranquility of personal injury victims 4. Narrowly Tailored: was sufficiently narrowly drawn to pass Central Hudson intermediate scrutiny of restrictions on commercial speech; rules were reasonably well targeted at stated objective of eliminating targeted mailings whose type and timing were source of distress to state residents, distress which caused many of them to lose respect for the legal profession, and the many alternative channels for communicating information about attorneys were sufficient. Note: narrowly tailored doe NOT mean least restrictive means!!
L. Distinctions B/w Commercial/ Non-Commercial Speech: City of Cincinnati v.
Discovery Network (1993) statute permitted 2,000 newsracks throughout the city for publications not classified as commercial speech, but refused to allow an additional 62 newsracks that contained two publication classified as commercial speech ---- SC held statute violated 1st amendment
M. Private Places: Metromedia v. San Diego SC found permissible a ban on outdoor
“offsite” advertising billboards but permitted “onsite” advertising signs identifying the owner of the premises and the good sold or manufactured on the site. 1. Rationale: only the onsite signs served both the commercial and public interest in guiding potential visitors to their intended destinations –substantial state interest is traffic safety
N. Posadas v. Tourism Co. SC upheld a facial challenge to a PR regulation that
restricted advertising of casino gambling to just tourists, and not to the residents of PR. – prohibited advertisements of casinos in local media addressed to inviting the residents to casinos 1. Rationale: it is up to the legislature to choose to reduce gambling by suppressing in-state casino advertising rather than engaging in educational speech
O. Liquormart v. RI (1996) SC held unconstituional a prohibition against advertsing the
retail price of alcoholic beverages. 1. Rationale: the state has presented no evidence to suggest that its speech prohibition will significantly reduce market-wide consumption (regulation does not directly advance substantial governmental interest!) –additionally, the state cannot satisfy the requirement that its restriction on speech be no more extensive than necessary (i.e. increasing prices more viable alternative) 2. Posadas Unworkable: Posadas erroneously performed the 1st amendment analysis --- the casino advertising ban, rather, was designed to keep truthful,
nonmisleading speech from members of the public for fear that they would be more likely to gamble if they received it
P. Alcohol Content Advertising: Rubin v. Coors Brewing SC held unconstitutional a
state statute which banned beer manufacturers from listing their beverage‟s alcohol content on the label. 1. Rationale: unconstitutional b/c ban is only on beer labels and not other alcohol AND ban only exists on labels and not in advertising
Q. Lottery Advertising: US v. Edge SC upheld legislation prohibiting the broadcast of
lottery advertising if the broadcaster is licensed in a state that does not permit lotteries (even in circum. where 92% of the broadcaster‟s audience resided in a state that permitted lotteries)
VIII. Private Speech
A. Dun v. Bradstreet the 1st amendment places less value on “private speech” then upon
public speech ---SC held that award of punitive damages may be given in private speech case even absent a showing of „actual malice‟
IX. Labor Speech
A. Debartolo v. FL Gulf Coast union members peacefully handed out handbills to those
who entered a mall –SC held that this speech did not constitute commercial speech and therefore was entitled greater protection 1. Analysis: “had the union simply been leafletting the public in general including every shopping mall in town in an annual effort then such activity might pose a substantial issue of validity under the 1st amendment --- NOT the case here though!!!!
X. Prior Restraints
A. Various Types: 1. licensing requirements 2. injunctions 3. contempt proceedings/ order B. What is a prior restraint? In this area one is looking to stop speech before it ever occurs
Note: prior restraints are looked at skeptically 40
C. Injunctions: Near v. Minnesota SC held as an unconstitutional infringement of free
speech a state procedure used for closing down as a public nuisance any “malicious, scandalous and defamatory newspaper” which was used to permanently enjoin the publication of a newspaper which criticized local officials. 1. Rationale: the aim of the 1st amendment is to prevent pre-publication restraints (proper remedy is a post-publication libel action) – “every freeman has an undoubted right to lay what sentiments he pleases before the public. To forbid this would be to destroy the freedom of the press – if one published what is improper, mischievious or illegal, he must take the consequence of his own temerity” 2. Rule: there is a heavy presumption against prior restraints –allowed only in exceptional cases
D. Film Censorship: Times Film v. Chicago code required submission of all motion
pictures for examination prior to their public exhibition - The prior restraint here is review. It is be prevented because it hasn‟t been reviewed and not b/c of obscenity. It was okay. 1. No Absolute Privilege: those who wish to exhibit films do NOT have an absolute privilege against prior restraint. Film licensing requirements, then. Will not be struck down simply on the grounds that they in fact constitute prior restraint -----preventing obscenity in motion pictures may be sufficient grounds for a prior restraint says court
E. Informal Prior Restraints: Bantam Books v. Sullivan SC held unconstitutional the
activities of a government commission that would identify „objectionable‟ books (some not even obscene), notify the distributor in writing, inform the distributor of the Commission‟s duty to recommend obscenity prosecutions to the Attorney General, and that the Commission‟s list of objectionable books was distributed to local police departments. 1. Rationale: in characterizing these practices as a system of prior restraints rather than mere legal advice the SC observed that it did not mean to foreclose private consultation b/w law enforcement officers and distributors so long as such consultations were genuinely undertaken with the purpose of aiding the distributor to comply with the laws and avoid prosecution Note: mere legal advice is probably NOT a prior restraint
F. Gag Orders: Nebraska Press case where trial judge issued an order prohibiting the
press from reporting any confessions or admissions by the D until after impaneling the jury. –SC held unconstitutional 1. Rule: a restraint should be allowed only of the gravity of the evil discounted by its improbability is greater than the damage from impairment of 1st amendment rights (in this case damage to D‟s rights was merely speculative in nature) Note: refer to 39.467(4) handout for permissible regulation
G. Licensing: Lovell v. Griffin SC invalidated on its fact an ordinance prohibiting the
distribution of handbooks, advertising or literature within a city w/o obtaining written permission of the City Manager.
1. Rationale: liberty of the press includes a right to publish w/o license – the
ordinance is unconstitutional b/c it is not tied to the avoidance of littering or disorderly conduct or to regulation of time and place
G. Injunctions in printed-matter Cases: Kingsley Books v. Brown SC held that so
long as an injunction scheme offers adequate procedural safeguards it will not be held a violation of the 1st amendment even though it constitutes a prior restraint. ---injunctive procedure ONLY ALLOWED AFTER a judicial trial has found some material to be obscene!!! 1. Rationale: instead of requiring a bookseller to dread that the offer for sale of a book may w/o prior warning subject him to criminal prosecution, the civil procedure assures him that such consequences cannot follow unless he ignores a court order specifically directed to him for a prompt and carefully circumscribed determination of the issue of obscenity. Until then, he may keep the book for sale and sell it on his own judgment. a. notice of hearing b. judicial determination of obscenity w/i 3 days c. This is narrower than previous case b.c. it dealt with only 14 books that were receiving the injuction.
H. Licensing Professionals: Riley v. Natioal Federation of the Blind SC invalidated a
scheme for licensing professional fundraisers who were soliciting on behalf of charitable organizations. Requirements: 1. State Interest: no state interest substantiating need for license – no valid, time, place, or manner restriction here! 2. Brief Waiting Period Required: assuming that the State‟s interest does justify requiring fundraisers to obtain a license before soliciting, such a regulation must provide that the licensor will within a specific brief period issue a license or go to court
I. Prior Restraints & National Security: NY Times v. US unsuccessful attemt to obtain
from the judiciary an order enjoining the media from publishing material the government regarded as prejudicial to America‟s defense and foreign policy. 1. Burden: the government carries a heavy burden of showing justification for the imposition of a prior restraint 2. Rule: classification of a document as top secret is not enough ; the government must prove that publication of the material would so prejudice the defense interests of the U.S. or result in such irreparable injury to the US as would jusitfy the restraint of a publication (danger must be inevitable, direct, and immediate)
J. Recognized Exceptions to Prior Restraint: 1. publications creating a clear and present danger to National Security 2. judicially determined obscene publications 3. publications which incite violence
Note: refer to HANDOUT Rule 4-7.5(d)(4) for prior restraint example 42
XI. The Public Forum
A. What is a public forum? The question of when person can speak on public property and
how the government may restrict speech in these places 1. Examples: a. protestors on street subject to time-place-manner regulations b. newspaper vendors probably commercial speech ---- governmental interest in protecting the safety of vendors + flow of traffic.
B. Hague v. CIO use of the streets, sidewalks, and parks for assembly and debate of
public questions has from ancient times been a part of the privileges, immunities, rights and liberties of citizens
C. Mandatory Access: Schneider v. NJ SC invalidated several ordincances prohibiting
leafeting on public streets or other public places 1. Jurstification: the purpose to keep the streets clean and of good appearance is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it a. methods of punishment: may prevent littering on other ways such as the punishment of those who actually throw papers on the street
D. Parading: Cox v. NH SC upheld convictions of (68) Jehovah‟s witnesses for parading
w/o a permit along the sidewalk in single file carrying signs and handing out leaflets. 1. Rationale: licensing procedure said to afford opportunity for proper policing, prevent confusion by overlapping parades, and to secure convenient use of the streets by other travelers and to minimize the risk of disorder Note: above probably too intrusive now – however, an ordinance prohibiting the blocking of a sidewalk is probably o.k.
E. Charging for Use of Public Forum: Central FL v. Freeze held that leafleters may NOT
be charged for the costs of cleaning up liter
F. Time-Place-Manner Restrictions: Ward v. Rock even in a public forum the
government may impose reasonable restrictions on the time, place or manner of protected speech provided that: 1. restrictions are justified w/o reference to the content of the regulated speech. 2. restrictions are narrowly tailored to serve a significant governmental interest 3. restrictions must leave open ample alternative channel for communication of the information
G. Equal Access: Chicago Police v. Mosley SC invalidated an ordinance which banned
all picketing w/i 150 feet of a school building while the school is in session and one halfhour afterwards except “the peaceful picketing of any school involved in a labor dispute” 43
1. Non-Content Neutral: the ordinance describes peaceful picketing in terms of its
subject matter --- government may not select which issues are worth discussing or debating in public facilities. Note: time, place, manner regulations affecting protected expression must be content neutral!!
H. Polling Zones: Burson v. Freeman SC upheld statute which prohibited either the
soliciting of votes or the display or distribution of campaign materials w/I 100 feet of the entrance to a polling place. 1. Rationale: the 100 foot zone is a public forum and the regulation is based on the content of the speech --- the state is required to show that the statute is necessary to achieve a compelling state interest and narrowly drawn to achieve that end – this is a rare case in which strict scrutiny against content regulation was satisfied!!! Note: Carey v. Brown involved a statute which prohibited picketing residences or dwellings except when the dwelling is used as a place of business or a place of employment involved in a labor dispute or when a person is picketing his own dwelling, or place of meeting commonly used to discuss subjects of general public interest Note: Mills v. Alabama – prohibition on election day editorials found unconstitutional
I. Public Forum and the Private Residence: Frisby v. Schultz SC upheld ordinance
prohibiting picketing on or about any residence (interpreted ordinance to apply only to focused picketing taking place solely and in front of a particular residence) 1. Analysis: there is a difference b/w focused picketing vs. residential picketing – the former is entitled to privacy and violating this constitutes a form of harassment 2. Test Applied: ordinance is content neutral, narrowly tailored to serve a significant government interest, and leaves open amply alternative channels of communication Note: if an ordinance is NOT content-neutral then stop w/ analysis above and apply strict scrutiny
J. Airport as Forum: International Society Krishna v. Lee Krishnas wanted to hand out
leaflets and make demands for money at airport –SC held ban constitutional 1. Issue: Is an airport terminal a public forum? NO!! 2. Rule: the government may limit speech in the non-public forum even if less restrictive means are readily available and even if the restriction chosen is not the most reasonable 3. Requirements: government regulation of expression in non-public forum must me a. reasonably in light of the purpose served by the forum AND b. viewpoint neutral (can‟t restrict speech by preferring some messages or perspectives over others)
K. Aesthetic Interests as Basis for Restricting Speech: Vincent upheld a city ordinance
prohibiting the placing of signs on public property as applies to the signs of a political candidate on the cross-arms of utility poles
L. Government as Proprietor: where the government is acting as a proprietor, managing its
internal operations, rather than acting as lawmaker with the power to regulate or license, its action will not be subjected to the heightened review to which its actions as a lawmaker may be subject 1. Greenburgh held that post office could prevent individuals from placing unstamped material in residential mailboxes 2. Greer military could bar a presidential candidate from speaking on a military base even though members of the public were free to visit the base, the President had spoken on the base, and other speakers had spoken by invitation on the base 3. Lehman upheld a ban on political advertisements in city-operated transit vehicles even though the city permitted other types of advertising on these vehicles 4. Lamb’s Chapel school could not exclude religious groups from access to school property for after school meetings so long as it held the property generally open for meetings by social, civic and recreation groups 5. Cornelius upheld an executive order that included organizations providing direct health and welfare services to individuals or their families in a charity drive in the federal workplace while excluding legal defense and political advocacy organizations.
M. Access to the Mass Media: Miami Herald v. Tornillo struck down a FL “right of
reply” statute which required any newspaper that assails the personal character of a candidate in any election to print, on demand and free of cost, any reply the candidate may make to the charges. 1. Rationale: the statute violates the paper‟s freedom of the press and would have the newspaper tend to avoid subjects that would trigger the right to reply with the effect of limiting the press coverage of public events
N. Private Forums: Marsh v. Alabama Jehovah‟s witness was charged w/ criminal
trespass for distributing religious literature in a town wholly owned by a corporation. –SC held that since town was like any other town that the operation of the town was a public function
O. Logan Valley SC held as unconstitutional act of state court which enjoined peaceful
picketing of supermarket located within shopping center on the sole ground that it constituted a trespass on the property of the owners of the center. 1. Rationale: shopping center analogous to town in Marsh
P. Schools: deals w/ children‟s rights --- Tinker, Hazelwood (newspaper publications) Q. Buses: Lehman v. Shaker Heights buses that are part of a municipally owned transit
system fall within the category of non-public forum facilities Note: there is a great concern for children in the broadcast area 45
R. Parades: the right not to associate allows private parties who conduct a parade to
exclude unwanted members or at least unwanted messages from the parade
S. Public Employment: Pickering a public employee does not relinquish 1st amendment
rights to comment on matters of public interest by virtue of governmental employment
XII. Establishment Clause
A. Purpose: prevents coercive religious beliefs by state NEED: 1. laws must have a secular legislative purpose 2. its principle or primary effect must neither advance nor inhibit religion 3. it must not foster an excessive government entanglement with religion a. the law must also not create an excessive degree of political division among
B. Voluntary Silent Prayer: Wallace v. Jaffree SC struck down statute which authorized
a one-minute silent period at the start of each school day which was to be used for meditation or voluntary prayer 1. Rationale: legislator‟s sole purpose in enacting the statute was to endorse religion –1st prong of test violated!
C. Teaching of Evolution: Edwards v. Aguilard SC held unconst. Statute which forbade
the teaching of evolution in public schools unless that teaching was accompanied by instruction in “creation science”. 1. Analysis: statute does not have a secular purpose – purpose of statute is to advance the religious viewpoint that supernatural being created humankind
D. Kiryas v. Grumet SC held as unconstitutional statute which created special school
district for Jewish disabled students 1. Analysis: here the benefit flows only to a single sect -- neutrality amongst religions must be honored!!
E. Tax Benefits: Mueller v. Allen upheld statute which allowed state taxpayers to claim a
tax deduction for various expenses incurred in educating their child in public or private schools –expenses for tuition, textbooks and transportation 1. Analysis: provision had a primarily secular effect –deduction available to all parents
F. Sign-Language Interpreter: Zobrest v. Catalina SC held that a state funded
provision of a sign language interpreter to assist a deaf student who attends religious school falls on the “impersonal” side of the line and is thus allowable
1. Analysis: funds do not participate directly to religious indoctrination – important
here that school would not have saved costs if gov‟t did not provide interepreter – simply would not have paid for it
G. Funding of Student Activities: Rosenberger v. Univ VA a public university may fund
student-run religious publications w/o violating EC so long as non-religious publications are also funded and so long as the funds are given to 3 rd parties (i.e. the printer) for services to the publication rather than to the publication itself. 1. Significance: when a state disburses funding, the neutrality of the overall program is by itself practically enough to overcome any EC problems!
H. Nativity Scenes: Allegheny County SC held creche displayed in county courthouse
unconstitutional 1. Test: whether a reasonable observer seeing the display would believe that the government was endorsing a religious or sectarian message i. no other non-religious symbols nearby (such as santa clause, etc.) ii. location of creche important iii. religious messages attached to display important Note: Agostini case (financial aid to religion case) in supplement held that later EC cases have so undermined Aguilar that it is no longer good law!! --where public school teachers teach in religious schools – no longer true that the primary effect is to advance religion!
FINAL EXAM REVIEW
A. Forms of Restrictions on Speech: (under color of state law) a. state statutes b. local ordinances c. regulations and rules – i.e. FL Bar Rules d. court order e. lawsuit for damages B. Enforcement Vehicles: a. criminal prosecutions b. injunctions c. restrictions on privileges – i.e. restriction on license to practice law d. contempt C. Methods of Challenging: a. motions to dismiss
b. jury instructions c. affirmative defenses/ civil cases (i.e. truth) d. burdens of proof D. Offensive Ways: lawsuit for declaratory judgment or injunctive relief
Note: 1st amendment is a restraint on government action only!!
E. What kind of speech is protected? Presumably all speech is protected F. Unprotected Speech: a. obscene speech b. child pornography c. advocacy of illegal action d. fighting words e. defamatory speech G. What constitutes obscene speech? 1. Miller v. CA 2. Pope v. Ill 3. Burden of Proof: beyond a reasonable doubt H. Fighting Words: 1. must be plainly likely to cause immediate breach of peace by the addressee 2. checked by notions of vagueness/ overbreadth/ content neutrality 3. refer to RAV case! I. Advocacy of Illegal Action: 1. Defined: that which is aimed at the government ---- checked by the clear + present
danger test 2. Test: whether the speech present a clear + imminent danger of substantive evil which the state may prevent 3. above is a jury questions – must be proven beyond a reasonable doubt
J. Child Pornography: 1. the substantive evil is harm to children 2. Miller test is modified --- no need to find purient intent or patently offensive 3. overbreadth doctrine is a check --- i.e. certain picture of child coming our of bathtub
should be o.k. a. can‟t have a statute prohibiting all child nudity --- pic of child must have some scientific value 4. Need: a graphic focus on a child‟s genitalia or private parts Note: always ask : “what is the state interest?” Note: high state interest in preventing hate/ race speech --- hate speech is different from „fighting words‟, hate speech often runs afoul of content neutrality, may be able to justify enhanced sentence for hate crime – see WS v. Mitchell 48
K. Defamatory Speech: 1. truth is always a defense 2. Are there some other protections? (assuming truth is not a defense) a. defamatory speech about public officials --- NY Times v. Sullican i. must show actual malice (reckless disregard or K of falsity) by clear +
convincing evidence) –also applies to summary judgment
L. Defaming Public Figures: people who thrust themselves into the public light or benefit
by the public by virtue of their activities ---- NY Times applies here also!!
M. Private Plaintiff‘s Involved Public Issues: i.e. homeowner objecting to building of
stadium which becomes a public issue 1. private P‟s have no general fame or pervasive involvement in society, no special role of prominence in the community 2. standard P needs to show actual negligence --- punitive damages allowed only if „reckless disregard for truth‟ found
N. False Light: what about a private P being portrayed in a false light – Time Inc. v. Hill
NY Times standard applies here!
O. Emotional Distress: i.e. Hustler v. Faldwell --- NY Times standard applies P. Disclosure of Private Facts: i.e. where private persons have facts disclosed – i.e.
names of children charged w/ crimes or sexually molested 1. if info. above is true then may be published – see FL Starr case
Q. Copyright: protection is defined by the copyright law §107 – see Harper v. Rowe 1. Standard: a. education use or commercial use b. nature of work c. amount used – how much of the work is infringed? d. effect on the market value R. Expressive Speech: (looks more like conduct) 1. O’Brien – law was content neutral vs.
i. substantial interest in maintaining order 2. Texas v. Johnson law here also content neutral i. interest in preventing breaches of the peace ii. interest in preserving the flag as a symbol 3. Clark (sleeping in mall case)
S. Zoning Laws/ Areas: 1. here government claims to protect aesthetics/ community standards – incidental
restrictions allowed (simply moving this speech to another area rather than restricting speech) 49
2. Young v. American Mini Theaters 3. Renton
- Court states that it is regulating a form of expression or speech but they are doing it because they want to prevent the secondary effects 4. Barnes v. Glen Theater – law bars public nudity --- neutrality of law VERY IMPORTANT
T. Commercial Speech: 1. Inquiry: Does the speech address lawful activity and is truthful and not misleading
? if yes it is presumably protected unless: a. substantial government interest b. regulation directly advances the government interest c. regulation no more extensive then necessary to advance that interest 2. NOTE: something which is inherently misleading is not protected even though it is truthful 3. FL Bar v. Went-for-it Inc. there were alternate ways to get the information
U. Prior Restraints: (getting permission b/f you speak 1. licensing must be reasonable time-place-manner restriction --- ordinance can‟t
give discretion to person making decision b/c would give this person power to suppress speech a. Requirements: i. must be content neutral ii. must no allow discretion 2. injunction a court may not issue an injunction against protected speech unless there is a present danger that will affect an interest of the highest order – i.e. national security i. National Women Center ii. look at factual record!! 3. Exclusion Orders a. gag orders difficult to sustain b. there is a collateral bar rule --- if you violate a closure order then you are in contempt c. schools, jails limitations
V. Public Forums: 1. includes parks, streets, sidewalks – subject to time-place-manner restrictions 2. if political activity then no arrangement to pay – can‟t charge people for protection
UNLESS for commercial purpose
3. Mosley 4. semi-private: i. content-neutral ii. least restrictive
Con law outline – Rohr
Some notes from the Introduction
The Supreme Court did not crystallize the law of freedom of speech until the beginning of the 1970s We know that certain things such as are not protected under the first amendment: True threats (relatively recent addition) Defamatory speech Obscenity Fighting words ******These last 3 came from Chaplinsky v. New Hampshire (1942) Even some speech is not considered speech as protected under the first amendment: Swank v. Smart (Page 8) – The court said the purpose of free-speech clause is to protect the market in ideas…to an audience whom the speaker seeks to inform, edify, or entertain. Casual chit-chat between two persons or otherwise confined to a small social group is unrelated, or largely so, to that marketplace, and it is not protected. The Court is open to the notion that nonverbal conduct is protected under the first amendment Intrinsic expressed activities Picketing Instrumental music Dance Prior restraint Ex. Preliminary injunctions Prohibiting a speaker from saying something before he even makes the speech This is thought to be worse than having a criminal statute that says IF you do this, you will be prosecuted
1. Advocacy of lawlessness
A Historical Background
Schenck v. United States (1919) This case was about a man who advocated those who have been drafted to resist the draft Clear and present danger was the test used by the court Clear and present danger that the words will bring about the substantive evils that Congress has a right to prevent The Brandenburg test has replaced this test Abrams v. United States (1919) Justice Holmes (Dissent): It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. The ultimate good desired is better reached by free trade in ideas. I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe…unless the so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.
He went on to say that only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command that Congress shall make no law abridging the freedom of speech.
Whitney v. California (1927) Every presumption is to be indulged in favor of the validity of the statute and it may not be declared unconstitutional unless it is an arbitrary or unreasonable attempt to exercise the authority bested in the State in the public interest. Denis v. United States (1951) No majority opinion here 11 members of the Communist party were prosecuted under the federal Smith Act. The men were convicted because they are part of a group that wanted to overthrow of the government. However, all of their desires were someday…nothing imminently planned by them. Yates v. United States (1957) This time the Communists prevailed This case is historically significant because the decision effectively put an end to the Communist prosecutions Court majority states that the essential distinction is that “those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something.” This is a first amendment principal Abstract Advocacy aka Advocacy of belief – can‟t be punished consistently with the first amendment for “mere advocacy” – you can‟t be punished for having someone believe something Vs. Advocacy of action
ANALYSIS Yates Test
Abstract Advocacy aka Advocacy of belief – This is always protected under the first amendment so if you can prove this, you win Vs. Advocacy of action – For advocacy of action, you have to prove this and then move into the Brandenburg test.
-no one can be punished today for urging someone to believe something. “mere advocacy is ok” Brandenburg would not even come into play if the speaker was merely participating in advocacy of belief. Modern Law
a. Brandenburg test i. Speaker may not be punished unless the 1. Speech must be directed to inciting or producing imminent lawless action a. (focus seems to be on what the speaker actually said) 2. AND the imminent lawless action must be likely to occur a. (focus is on the surrounding circumstances or conduct of the audience) b. Basically, you have to let the guy speak, unless he‟s urging people to break the law NOW c. You get to urge people to break the law unless you‟re talking to a responsive audience that will act immediately d. The court stated that mere abstract teaching or the moral propriety or even moral necessity for resort to force and violence is not the same as preparing a group for violent action and steeling it to such action
e. BOTH prongs have to be satisfied to validly punish the speaker f. In Brandenburg – court never ruled whether speaker‟s test satisfied Brandenburg test – rather, the court ruled that his speech was unconstitutional – “facial overbreadth” Court never made a determination if his speech should be provided first amendment protection. The decision had nothing to do with his speech at all!!! The court disregarded the facts of the case and just looked at the statute The entire decision was based on the Ohio statute. “Advocating…the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform and for voluntarily assembling with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism” The Ohio statute caught permitted constitutional speech in its web Therefore, the court said the statute falls within the condemnation of the First and Fourteenth Amendments g. In a Brandenburg type question – make a challenge to the statute using facial overbreadth i. Used when the court chooses to ignore the facts of the case itself and instead that the statute ITSELF violates the first amendment ii. Determine that the statute is overly broad by lining up the words of the statute with the words of the Brandenburg test – If the statute doesn‟t line up with the test then it goes too far iii. In a case where someone could make a speech that could violate the statute, but NOT satisfy the Brandenburg test – that‟s facial overbreadth iv. Is there intent required here for this test? This is an undecided question. v. A very speech protected test vi. This is a case in which the SC rules in favor of the D, not by focusing on what he said or did but rather by applying this test to the statute. vii. Courts can decide to ignore the facts of the case. viii. Facial overbreath: “facially overbroad” “overbroad on its face” this means in the abstract by just looking at the words. If you can say that this statute is capable of prohibiting freedom of speech and if so then it cannot stand. ix. “mere advocacy” : if I were to say to you “please join me in embracing the idea that… one day over thrown by force.” This is just urging you to believe something. x. h. Advocacy of action v. advocacy of belief i. Abstract advocacy aka Advocacy of belief is completely protected by first amendment 1. Can‟t be punished at all for merely advocating others to believe in the propriety of some unlawful action ii. Advocacy of action 1. Can be punished in a limited way 2. Apply Brandenburg to determine iii. But it seems you never get to Brandenburg unless the speaker‟s action can be characterized as advocacy of action Page 36 - Is Brandenburg a good test? 1. At what point in time is “likely to occur” end? This remains unresolved 2. Directed to inciting – does that mean that the speaker must have intent? Or could a speaker that didn‟t mean it constitutionally be punished? Ambiguous 3. Imminent is vague Immediately? A week?
****Even 40 years after Brandenburg, we still not have much information about what the Brandenburg test means, but it remains the test Is this test too much protection? What if someone says it will come up a time when it will be needed to blow up the federal government? HYPOs on Page 37: (i) Suppose a young black man has been short and killed by a white policeman in a large city. The policeman is prosecuted, but acquitted. Many black citizens are outraged. At a large gathering in a public park outside the courthouse, one speaker is particularly passionate and persuasive. Supposed he decries for the lack of justice for black citizens and urges the crowd to burn down the courthouse now. Under the Brandenburg test, may he be constitutionally punished? A. If the crowd does so? Yes B. If the crowd begins to take action, but the police step in and disperse the crowd preventing any harm? Yes C. Nothing happens because the speaker was wrong in thinking that the crowd would act on his words? Remains unresolved At what moment in time does “likely to occur” become resolved? (iv) If Florida has a statute exactly like the Ohio statute in Brandenburg, and if D makes a speech to an angry, sympathetic crowd in Miami intending to immediately start a riot and succeeding, predictably in doing so immediately. If D is prosecuted under that statute, does the Brandenburg decision suggest the D will have a good argument under the First Amendment for avoiding conviction? Yes, this is the worst guy under the Brandenburg test. However, the court is so protective of freedom of speech that they will knock down a statute that discourages the good and law abiding people from speaking (when in fact they would be partaking in protective speech). The court says that Whitney v. California and Dennis v. United States gave rise to this test, but Rohr thinks this is the first time the court has used a test anything even close to this In Denis, there was no requirement that the Communists had imminent lawless action and its says nothing about “likely to occur” For some strange reason, the writer of the Brandenburg test wanted to make it look this the test used in this case was nothing new Hess v. Indiana (1973) Uses the Brandenburg test as well – one of the only cases in which the court uses the Brandenburg test In this case, they applied the Brandenburg test TO THE FACTS Hess said that they would “take the fucking street later” The Court did not consider these words to be obscene, fighting words, nor a public nuisance A court can decide whenever they want to go overbroad on its face or overbroad as applied to the defendant. “Later” was not imminent enough for the Supreme Court The Court said there was no evidence or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder. Therefore, his words could not be punished by the state on the ground that they had a tendency to lead to violence. Page 40: Does Brandenburg apply to all Advocacy and Teaching of Crime?
In a number of cases involving prosecution for aiding and abetting or the advocacy of teaching of the filing fraudulent tax returns, Brandenburg has failed to provide a First Amendment defense (for the person that urged the other party to cheat on his tax return) The courts didn‟t even get to the point to ask whether the act was imminent Also, Solicitation, conspiracy, or threats to commit crimes cases – courts haven‟t applied the Brandenburg test Therefore, Brandenburg does not have the effect in the real world that one might think! This highly speech protecting Brandenburg test is illusory Given the undeniably political character of virtually every case in which the Supreme Court has utilized Brandenburg, it is difficult to believe that that literal, unqualified assertion that ALL advocacy of criminal action enjoys First Amendments protection was ever intended.
Rice v. Paladin Enterprises (4th Cir. 1997) Guy wrote a book that taught how to teach killing The court narrowly applies Brandenburg and doesn‟t apply it here Brandenburg could not have been intended to apply to crimes across the board The court said that the Brandenburg case only applies to advocacy – speech that is part and parcel of political and social discourse The court said that the Supreme Court in Brandenburg clearly held the mere abstract teaching of principles and mere advocacy are protected.
2. True Threats
a. General rule – TRUE threats do not receive first amendment protection The burden is on the government to prove a true threat Watts v. United States (1969) Page 50 general use of the objective test (rpp test), however some cases apply the subjective approach, it is not clear today whether you should use sub or obj test. Everyone agrees that once a true threat is found, there is no 1st amendment argument accepted. b. Violence and threats of violence fall outside the protection of the first amendment because they coerce by unlawful conduct, rather than persuade by expression, and play no part in the marketplace of ideas (Page 48) Mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment NAACP v. Claiborne Hardware Company (1982) c. A prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur d. Virginia v. Black (2003) – true threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Defendant doesn’t have to have the ability to do it Defendant doesn’t have to follow through Doesn’t matter if the victim was aware of it Doesn’t have to be imminent e. Must determine whether a true threat was made and not a joke (ie, threat on President). i. If it is a true threat, then govt has a compelling interest for the state to protect f. Applies to both ordinary individuals and govt officials g. Threats can be either explicit or implicit (holding a website that had physicians‟ names crossed off who had already been shot or killed by anti-abortion activists was a implicit threat) Planned Parenthood of the Columbia v. American Coalition of Life Activists
3. Fighting words
Fighting words – Personal insult, face-to-face, that tends to provoke an immediate violent reaction by the average addressee OR words which by their very utterance inflict injury (this second part doesn’t appear anymore and its seems like it is no longer part of the rule) 2nd part is basically words that hurt feelings of the listener. (top of page 53). a. (seems to be talking about personal insults, aka, personally abusive epithets) b. c. NO INTENT IS NEEDED d. Speaker does not have to want a violent reaction. e. Fighting words are an unprotected category of speech This speech has so little value and the value that it does have is outweighed by social interest f. Does not use “reasonable person” standard – uses “average addressee” g. Doesn‟t really matter if the physical retaliation does or does not occur h. Person making the fighting words and the person that throws the punch because of the fighting words could both be arrested i. Words… “which by their very utterance inflict injury” – most of the time this phrase just doesn‟t appear anymore, and we are left wondering if this second part is still part of the fighting words rule What does injury mean? If it means hurt feelings it seems as though it should be protected by the first amendment What injures one person may not hurt another person Does it matter who the addressee is? We have no answer at this time Speech is considered to be fighting words if: i. Personal insult (In Cohen this was not the case and maybe is the reason why the court does not convict on appeal) ii. Insulting “fighting words” over phone would not be considered this, it has to be face to face. iii. Face to face (immediate) iv. Directed to a particular individual or group v. Likely to produce an immediate violent reaction to the average addressee Ask – would the average addressee react to these words violently? i. Do not pay attention to what a particular addressee thinks ii. Test is what men of common intelligence would understand the words likely to cause an average addressee to fight. iii. Exception: sensibility of an unwilling audience 1. Ex: screaming insults at Rohr‟s mother; she‟s not likely to fight, but the words are still fighting words An offensive word is not generally strong enough for govt to punish the speaker “Fuck the draft” jacket worn in court was not fighting words because the defendant did not engage in, nor threaten to engage in, nor did anyone as a result of his conduct commit or threaten to commit any act of violence. Court said this is not an obscenity case because the in order to be obscene, the expression must be in some significant way, erotic. Cohen v. California (1971) Doesn‟t include written words or by telephone – only face to face Face to face means immediate
Gooding v. Wilson (1972)
Georgia statute that said “Any person who shall….use to or of another and in presence…opprobrious words or abusive language, tending to cause a breach of the peace shall be guilty of a misdemeanor” was held overbroad on its face by the Supreme Court. The court said the it is clear that the standard does not limit the application of the statute to fighting words defined by Chaplinsky Texas v. Johnson (1989) Court said that setting the American flag on fire does not amount to fighting words They would extend fighting words to an invitation to fight such as, “Hey, you want to fight me?” Is this far fetched that burning an American flag could draw a violent reaction? No No case extends fighting words to encompass political speech They only apply it to private personal insults Once again, we have so little guidance from the Supreme Court as far as fighting words goes. Sum up, in the 1970s there were 2 cases (Lewis v. New Orleans and Gooding v. Wilson) In which the statutes go to far – facially overbroad Therefore, the court does even get to apply the law to the facts Occasionally we do see fighting words cases (Comment K – Page 59 10 Cir. Court held a guy who called his superior a laying mother fucker had resorted unprotected fighting words Why no fighting cases? Not reported Cops don‟t see it (not at the right place at the right time)
The Related Problem of the Hostile Audience
This problem arises frequently in real life, though not reported in case law – in which a political speaker or demonstrator elicits a hostile response from some members of his audience who threaten to respond violently against the speaker. This describes the audience instead of the speaker We aren‟t going to call a political speech fighting words!! Even back in 1951, they didn‟t think that If the speaker is ever in danger, should the police be allowed to tell the speaker that he has to stop speaking? We don‟t have a definite answer…not clear rule has been formulated See Feiner v. New York (1951) – arrested for failing to stop speaking when the police told him to. It was based on the police‟s belief. Has not been overruled or reconsidered at the Supreme Court level It was portrayed as an extremely dangerous situation
4. Obscenity (HE JUST TOUCHED ON OBSCENITY) In order to be obscene, the expression must be in some significant way, erotic Cohen v. California (1971) Most prosecutors don‟t give a high priority to garden variety obscenity During the early 20th century, the law of obscenity progressed in at least three respects: 1. Courts moved from focusing on the effect of the work on particularly susceptible individuals to focusing on the average or reasonable person 2. The work must be evaluated in it‟s entirety, not merely by the use of selected excerpts
3. It was now permissible to look to the literary value of the work in making the determination of obscenity Roth v. United States (1957) Test: Whether to an average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. If speech is obscene, then it is not protected under the First Amendment‟s freedom of speech and press. Not enough value for it to be protected under the First Amendment The court said that the protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people Obscene material is material which deals with sex in a manner appealing to a prurient interest (however, obscenity is not synonymous with sex) The portrayal of sex in art, literature, and scientific words is not itself sufficient to deny the material constitutional protection of freedom of speech and press. The decision was based on a combination of: History Original intent of the First Amendment Value of the material Regarding the Privacy of the Home Stanley v. Georgia (1969) You can‟t be prosecuted and convicted just for having obscene material in the privacy of your own home. The mere private possession of obscene matter cannot constitutionally be made a crime Why is it, if you can get it in your front door, it falls under the cloak of immunity? The Court said that it is now well established that the Constitution protects the right to receive information and ideas. This freedom of speech and press necessarily protects the right to receive This right to receive information and ideas, regardless of their social worth, is fundamental to our free society. Also, there is a fundamental right to be free, except in very limited circumstances, from unwanted governmental intrusions into one‟s privacy The Court held the First and the Fourteenth Amendments prohibit making mere private possession of obscene material a crime. The Court said if the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own home, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men‟s minds Other than Lawrence v. Texas, there is no other case like this out there Side note: In United States v. Reidel (1971), the Court says it do not go as far as to say that you could distribute or sell obscene material. Miller v. California (1973) Adopted the definition for obscenity that has stayed with us: (3 part test in purple)
1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest Prurient – sexual responses over and beyond those characterized as normal. I.e. shameful or morbid interest in nudity, sex, or excretion. The primary concern with requiring the jury to apply the standard of the average person applying contemporary community standards is to be certain that it will be judged by its impact on an average person rather than a particularly susceptible or sensitive person – or indeed, a totally insensitive one. 2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law Patently – clear and unambiguous manner ****First two prongs must be assessed through the prism of contemporary community standards The court said nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable national standards when attempting to determine whether certain materials are obscene as a matter of fact. However, it is ok to use a national standard *****Supreme Court has never seen a community standard they didn‟t like 3. Taken as a whole, the work lacks serious literary, artistic, political, or scientific value (not to be determined by the community standards, this is by the reasonable person standard.) Here, they made it easier for the prosecution The Court said that the First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent. ***** At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literacy, artistic, political, or scientific value to merit First Amendment protection *****The Court said that states have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles. There is a strong enough government interest for the government to ban obscene materials See Paris Adult Theatre I v. Slaton (1973) The Court said the states have a long-recognized legitimate interest in regulating the use of obscene material in local commerce and in all places of public accommodation, as long as these regulations do not run afoul of specific constitutional prohibitions. The Court said that commercial exploitation of depictions, descriptions, or exhibitions of obscene conduct on commercial premises open to the adult public falls within a state‟s broad power to regulate commerce and protect the public environment. Reasoning that it‟s the state‟s right to maintain a descent society. Holding that the states have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accommodation, including so-called adult theatres from which minors are excluded. The court used the Rational Basis Test here!! “legitimate interest” Government interests the Court in Paris Adult Theatre uses in its opinion: Quality of life Total community environment Public safety Says there is a correlation between obscene material and crime (antisocial behavior) 59
Brennan, in his dissent, says that we need to have a definition for obscenity that isn‟t vague. He thinks that they need to rethink things and maybe obscenity should be protected under the First Amendment. Hamling v. United States (1974) The Court said it is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributed and that he knew the character of the nature of the materials. To required proof of a defendant‟s knowledge of the legal status of the materials would permit the defendant to avoid prosecution by simply claiming he had not brushed up on the law. The Court said the principal concern in requiring a judgment be made on the basis of contemporary standards is to assure that the material is judged neither on the basis of each juror‟s personal opinion, nor by its effect on a particularly sensitive or insensitive person or group. Jenkins v. Georgia (1974) The Court could apply community standards without even defining the community The Court said that a state may choose to define a obscenity offense in terms of contemporary community standards as defined in Miller without further specifications, as was done here, or it may choose to define the standards more precise geographic terms United States v. Thomas (6th Cir. 1996) The general principle in cases involving interstate transportation of obscene material is that juries are instructed to apply community standards of the geographic area where the materials are sent. Obscenity is determined by the standards of the community where the trial takes place. Hamling Community standards criterion as applied to the Internet means that any communication available to a nation-wide audience will be judged by the standards most likely to be offended by the message. American Booksellers Association, Inc. v. Hudnut (7th Cir. 1985) This case shows that a regulation, which would have banned non-obscene materials, is very hard to uphold against a constitutional challenge. The Court said under the First Amendment there is no such thing as a false idea so the government may not restrict speech on the ground that in a free exchange, truth is not yet dominant. Gertz v. Robert Welch, Inc. The First Amendment requires that we protect some falsehood in order to protect speech that matters
5. Defamation Page 114: hypo on defamation:
-not a public official, not a public figure. there are three categories: 1. public official: someone employed by government (must prove actual malice); spoke in a way that they would not deserve 1st amendment protection.
2. public figure: how do we know? Someone who puts himself (on own actions) in the public spotlight. Assume roles of special prominence. (mostly voluntary) a. limited purpose: a person who is treated as a public figure sometimes but not always. Voluntarily put himself in the public light with regard to one particular thing, treated as a public figure when the defamatory comments are related to his conduct that put him in the public eye. If the comments have no relationship then treated as a private figure. b. general purpose public figure: fame in society (ex: Britney spears) must prove “actual malice” , treated just like a public official. Rationale: if you are that famous people are naturally going to discuss you. 3. Private figure: must provenegligence, “liability w/out fault”, the lowest level of culpability. The most favored plaintiff. Even here you must still prove that the person was at fault, you can win actual compensatory damages with proving negligence. A higher standard is required to get punitive damages “actual malice” needed. Actual Malice: “knowledge that it was false”, must know this. OR “reckless disregard for the truth” reckless disregard for the truth: “high degree of awareness of probable falsity” “willful blindness” mere failure to investigate is not reckless disregard, it is mere negligence. The court is requiring more to hold someone responsible. Number 4 page 114: this would make him a limited purpose public figure, he testified before congress. This is an example of “lppf” when defamation is related to that status.
a. You have to establish state action before you have a constitutional issue – remember this! State action can be the involvement of the court Through the mechanism of the state and the civil justice system, the officers who enforce the judgment in civil action. This all amounts to the action of the state. The court can be said to be punishing speech in this way if there is an award in a defamation case. b. Defamation – by its definition is false. i. Libel when written; slander when spoken ii. Used to be like strict liability (before SC got into it) c. The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood Gertz d. Erroneous statement is inevitable in free debate and must be protected if the freedoms of expression are to have the breathing space that they need to survive New York Times v. Sullivan (1964) Needs to be something more (Page 96) e. A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions leads to self-censorship Sullivan f. Not checking for accuracy supports, at most, a finding of negligence, but is constitutionally insufficient to show the recklessness that is required for actual malice. g. What a state may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. Sullivan
h. Identity of the defendant/speaker does NOT matter
In a defamation case, you have to show (in order to win) that what the defendant said about you is demonstrably false! First, show which category the plaintiff falls into – public official/public figure/private figure i. PUBLIC OFFICIAL 1. Someone in the hierarchy of government employees that has substantial responsibility or control, or appears to have substantial control, over government affairs 2. Not every govt employee is a public official a. The janitor at the governor‟s mansion is not a public official b. But the Dean of state university may be 3. A individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs 4. A person remains a public official, for the actual malice standard, even after he left office – at least with regard to the stories that refer to that person’s conduct while he was in office 5. Public official who is a plaintiff in a defamation case must prove actual malice – that is, with knowledge that it was false OR with reckless disregard of the truth (malice can be satisfied either way) (subjective test) a. Basically, for the public official to overcome the protection of freedom of speech, the public official as plaintiff will have to show that the defendant acted with knowledge of falsity or with a reckless disregard of the truth (makes it hard for a public official to win a defamation case) Actual malice does NOT mean bad intention b. Reckless disregard – Reckless disregard is a high degree of awareness of probable falsity “High degree of awareness of probable falsity” - We aren‟t really sure what this means There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication St. Amant v. Thompson (1968) Recklessness may be found where there are obvious reasons to doubt the authenticity of the informant or the accuracy of his reports A mere failure to investigate is not enough to constitute reckless disregard However, purposeful avoidance of the truth could support a finding of actual malice Negligence does NOT mean reckless disregard This is NOT measured by whether a reasonably prudent man would have published or would have investigated before publishing. 6. If using phrase “actual malice” always explain it AND reckless disregard ii. PUBLIC FIGURE a. Someone who is really famous in our society – (I.e. Celebrities) Not a govt official 1. General purpose public figure a. An individual who achieves such pervasive fame or notoriety that he becomes a public figure for all purposes in all contexts.
General purpose public figure who is a plaintiff in a defamation case must prove actual malice – that is, with knowledge that it was false OR with reckless disregard of the truth (subjective test) a. Basically, for the general purpose public figure to overcome the protection of freedom of speech, the general purpose public figure as plaintiff will have to show that the defendant acted with knowledge of falsity or with a reckless disregard of the truth (makes it hard for a general purpose public figure to win a defamation case) Actual malice does NOT mean bad intention b. Reckless disregard – Reckless disregard is a high degree of awareness of probable falsity “High degree of awareness of probable falsity” - We aren‟t really sure what this means Recklessness may be found where there are obvious reasons to doubt the authenticity of the informant or the accuracy of his reports A mere failure to investigate is not enough to constitute reckless disregard Negligence does NOT mean reckless disregard If using phrase “actual malice” always explain it AND reckless disregard General purpose public figure is the same analysis as used for public officials 2. Limited purpose public figure a. One who voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues (this is more common) b. The alleged defamation must have been connected to the plaintiff’s participation in the controversy with respect to which he has placed himself in the public eye c. You have to ask whether the alleged defamation did or did not have relate to the controversy with in which the public figure has made himself a figure (plaintiff must prove) d. Depending on the circumstances, the limited purpose public figure may be treated as a public figure OR if the defamation has nothing to do with the reason why the individual was thrust into the spotlight, then the defamation plaintiff will be treated as a private figure e. Note: a person can be a general purpose public figure in one instance and a limited purpose public figure in another instance iii. PRIVATE FIGURE 1. This is the most favored plaintiff – this is everyone else (ordinary people) 2. Private figure can win compensatory damages in a defamation action just by showing that the speaker was negligent a. Negligence is much easier to prove than actual malice Private individuals are more vulnerable to injury because they have less access to channels of effective communication and hence have less opportunity to counteract false statements Private individuals have not voluntarily exposed themselves to increased risk of injury from defamatory comments concerning them b. If plaintiff can prove actual malice – then he can get presumed or punitive damages Gertz It is appropriate to require that state remedies for defamatory falsehood reach no farther than what is necessary to protect the legitimate interest involved
Therefore, it is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth or compensation for actual injury Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship. c. Private figure plaintiff doesn’t have to have to prove actual malice for presumed or punitive damages if the false statement made about him did NOT involve a “matter of public concern” Court hasn‟t given us much guidance as to what is a matter of public concern In Dun & Bradstreet v. Greenmoss Builders (1985), the court said the builder‟s credit report was not a matter of public concern 3. So long as the state does not impose liability without fault, the states may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual. Gertz (at minimum this is negligence) Still have to show falsity and negligence to recover Side Notes: Public vs. private – the idea is that you have to take more hits as to people talking about you. Therefore, we make it really hard for public officials and public figures to win defamatory cases. Absent clear evidence of general fame or notoriety in the community, and persuasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of life. A private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention. An individual cannot before a public figure just by engaging in criminal conduct, which attracts public attention The 4th Circuit has said that an involuntary public figure has pursued a course of conduct from which it was reasonably foreseeable, at the time of the conduct, that public interest would arise. k. Second, show that the speech is a false statement of FACT i. Opinions (statements that cannot reasonably be interpreted as stating actual facts) are protected by the First Amendment and cannot be the basis for a defamation claim. ii. In Hepps (1986), the Court made clear that the plaintiff must bear the burden of proof with respect to the falsity of the defamatory statement. iii. Customary types of proof of actual harm inflicted by defamatory falsehood include: Gertz Impairment of reputation and standing in the community Personal humiliation Mental anguish and suffering
6. Non-obscene speech that offends an unwilling audience
a. Federal statute which allowed any householder to require a mailer to remove his name from the mailer‟s mailing list was unanimously upheld by the Supreme Court. Rowan (1970) b. Cohen (1971) – “fuck the draft” jacket in court – protected speech under the First Amendment The court said that the government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue and at the same time have consistently stressed that we are often captives outside the sanctuary of the home and subject to objectionable speech.
The result would probably be different had they been spoken words. The fact that they were written on his jacket made this case a lot easier to decide. When the government, acting as a censor, undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others, the First Amendment strictly limits its power. Erznoznik v. City of Jacksonville (1975) Such selective restrictions have only been upheld when the speaker intrudes on the privacy of the home or the degree of capacity makes it impractical for unwilling viewer to avoid exposure. The court said an outdoor theatre is not so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Court will not generally silence speech just because it offends someone. Exception: Pacifica Foundation FCC v. Pacifica Foundation (1978) The Supreme Court said that the radio station did not have the right to pay the 12-minute Filthy Words monologue at 2pm in the afternoon. The Court said although the filthy words ordinarily lack literary, political, or scientific value, they are not entirely outside the protection of the First Amendment. The fact that society may find some speech offensive is not a sufficient reason for suppressing it. However, the protection afforded to offensive messages does not always embrace offensive speech that is so intrusive that the unwilling audience cannot avoid it. If there was reason to believe that the offensive nature of the monologue could be traced to its political content then First Amendment protection might be required. Although the First Amendment protects newspaper publishers from being required to print the replies to those whom they criticize, it affords not such protection to broadcasters who must give free time to the victims of their criticism. This is because patently offensive, indecent material presented over the airwaves confronts the citizen in the privacy of his own home and Because people are constantly turning in and out, prior warnings cannot completely protect the listener (unlike live performances, movies, books, and records) Broadcasting is uniquely accessible to children (increase their vocabulary in an instant) Court looked at three important elements: (Read Page 128-29) Kids can hear it (time of day) Come into your home Unique nature of broadcasting media Cable television can be distinguished from broadcast television because: Community Television of Utah, Inc. v. Wilkinson (District Court 1985) It is not an uninvited intruder Cable table has a higher level of voluntariness than broadcast television You subscribe to cable and tell them which stations you would like But see: Denver Area Educational Telecommunications Consortium v. FCC (1996) this plurality made a suggestion that there is no difference between cable television and television broadcasting Consolidated Edison Co. v. Public Service Commission of New York (1980) The Court said when customers receive a objectionable marketing insert in their bill, they can avert their eyes and transfer it to the trashcan Hustler Magazine, Inc. v. Falwell (1988) Public figures and public officials may not recover for the tort of IIED by reason of publications without showing that the publication contains a false statement of fact which was made with actual malice. I.e. with knowledge that the statement was false or with reckless disregard as to whether or not it was true.
However, isn‟t it exactly what happened in this case!!! (printed a parody of the minister that portrayed him and his mother as a drunk and suggested that he preaches only when he is drunk) Since he was a public figure if probably made all the difference in the world Public figures and public officials are expected to take more hits since they are in the public spot light NY appellate court held that a woman who was identified her, on the air, by two radio disc jockeys as the winner of the ugliest bride contest could bring an action against them for IIED. (Page 144) j. Basically, if it offends – the court says „avert your eyes‟ k. When it comes to mail – SC is consistent – just throw it away l. When it comes to seeing something out (jacket, drive-in movie, etc) – just don‟t look 7. Child Pornography (HE SAID HE DOES NOT TEST ON CHILD PORNOGRAPHY) Actual use of a child in the portrayal of a sexual act (don‟t have to actually be having sex) and/or a lewd showing of a child‟s genitals Even if it is for an artistic or literary purpose Example – pictures of kids in a sexual manner New York v. Ferber (1982) Child pornography is a category of material outside the protection of the First Amendment The Court said as with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by applicable state law, as written or authoritatively construed. Unlike obscenity, child pornography is not judged as a whole – if it has a child portraying sexual acts, it is child pornography It is irrelevant whether the work, taken as a whole, contains serious literary, artistic, political, or scientific value – if it has a child portraying sexual acts, it is child pornography The court said that if it were necessary for literacy or artistic value, a person over the statutory age who looks younger could be utilized. Since the NY statute was arguably facially overbreadth, the court didn‟t even look at the facts of the case In the end, the court held that the statute was NOT substantially overbroad. The statute would prohibit the showing of any play or movie in which a child portrays a defined sexual act, real or simulated, in a nonobscene manner. It would prohibit the sale, showing, or distributing of medical or educational material containing photographs of such acts. The court said how often it may be necessary to employ children to engage in conduct clearly within the reach of the statute in order to product educational, medical, or artistic words cannot be known with certainty The Court says it seriously doubts that these arguably impermissible applications of the statute amount to no more than a TINY FRACTION of the materials within the statute‟s reach. Osborne v. Ohio (1990) Osborne was convicted when the police found child pornography in his home The Court concluded that the holding in Stanley was not controlling here because the interests underling child pornography prohibitions far exceed the interests justifying the Georgia law at issue in Stanley. Ashcroft v. The Free Speech Coalition (2002) Computer animated imagery of adults, who looked like children, were involved in sexual acts Virtual child pornography is not intrinsically related to the sexual abuse of children Once a work has been described as child pornography, the taint remains on the speech in the hands of subsequent possessors, making possession unlawful even though the content otherwise would not be objectionable The government cannot ban speech fit for adults simply because it might fall into the hands of children.
The merely tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The government cannot constitutionally premise legislation on the desirability of controlling a person‟s private thoughts. The government may not suppress lawful speech as a means to suppress unlawful speech. The Constitutional gives significant protection FROM overbroad laws that chill speech within the First Amendment‟s vast and privileged sphere. The Court said the statute is unconstitutional on its face if it prohibits a substantial amount of protected expression Classic facial overbreadth opinion (under this statute, if films contain a single graphic depiction of sexual activity within the statutory definition, the possessor of the film would be subject to severe punishment without further inquiry into the work and this is inconsistent with the First Amendment) The objective of the statute is to prohibit illegal conduct, but this restriction goes well beyond that interest by restricting the speech available to law-abiding citizens. Therefore, the Court strikes down the statute on its face with no reference to the facts in the case No attention is paid to who the plaintiff is or what they do – instead, the court focuses on hypotheticals of what COULD happen as a consequence of how far the statute could be taken.
The overbreadth doctrine prohibits the government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.
8. Overbreadth Doctrine
a. Facial overbreadth i. Court ignores the facts of the case and concentrates on the constitutionality of the statute because it reaches too far 1. This is what happened in Brandenburg, court considered statute overbroad and didn‟t apply the Brandenburg test to the speech, but struck down the statute on its face ii. If facially overbroad, don’t apply the applicable test because the facts of the case are ignored (ie, Brandenburg, fighting words, etc) iii. Overbreadth means unconstitutional or invalid; somebody who‟s own speech could be punished under a properly written statute, could go unpunished because the statute is too broad – and is therefore, unconstitutional iv. Rohr said that it seems to him that explicitly or implicitly, a finding of facial overbreadth always involves a determination that the statute bans a substantial amount of protected speech without sufficient justification. v. Supreme Court has often struck down a law as unconstitutional “on its face” because the law was seen as overly restrictive of freedom of speech, despite the fact that in the particular case at hand, punishment of the speaker‟s own speech would have been constitutional vi. Key aspect of facial overbreadth doctrine – is that the court resolves the case without paying any real attention to the speech that was originally punished. The court ignores the facts and strikes down the statute, thus resolving the case vii. The overbreadth doctrine is strong medicine – it has been employed by the Court sparingly and only as a last resort viii. The scope of the First Amendment overbreadth doctrine, like most exceptions to established principles, must be tied to the circumstances which facial invalidation of a statute is truly warranted. Ferber ix. First amendment needs breathing space and statutes attempting to restrict or burden the exercise of first amendment rights must be narrowly drawn x. Is this very speech protective tool a good think for First Amendment litigation? Never mind that this person could be punished for this speech – the statute goes too far. The statute lets the person go in order to protect the permissible speech of all the good people
xi. Litigants are permitted to challenge a statute not because their own rights are violated, but because of a judicial prediction or assumption that the statute‟s very existence may cause others not before the court to refrain from constitutionally protected speech/expression 1. This is an exception to standing doctrine (which only applies to freedom of speech) 2. This doctrine does not replace the Article III requirements that must be met in order to sue xii. Bottom line – facial overbreadth doctrine requires that a statute be seen as substantially overbroad in order for a statute to be struck down as overly broad Although Broadrick appeared to create its substantial overbreadth requirement only for cases involving regulation of expressive conduct, Ferber and later cases make clear that the requirement applied to cases involving “pure speech” as well xiii. The facial overbreadth concept can be see in three different types of cases: 1. The facial overbreadth concept is easiest to understand in cases where the validity of the statute is measured by a specific definition or test 2. As in Ashcroft, where the Court never said the speech was unprotected speech, rather, the Court rejected the suggested justifications for suppressing this protected speech. 3. In Hudnut, the Court seems to simply say (without applying any real rule, test, or definition) that the statute sweeps within its grasp speech that the Court will simply not allow to be prohibited – as if to say – “surely the state cannot prohibit this kind of speech!” There is danger in these cases because the court may simply be making a gut-level decision about freedom of speech, but one should always try to identify the reasoning that has led to the court‟s overbreadth ruling. b. Overbroad “as applied” i. The alternative to a facial challenge is an “as applied” challenge ii. Court looks at the facts of the case, looks at the statute as applied to the speaker 1. When the statute is found to be invalid as applied, the statute is still good, but the speaker will receive protection and thereby wins Whereas a successful “facial” challenge results in the invalidation of the statute generally, the consequence of a successful “as applied” challenge is that the law cannot, as a matter of constitutional law, be applied to the challenger. iii. That is, one either challenges a law as being unconstitutional on its face or as being unconstitutional as applied to the challenger iv. Overbroad “as applied” means the same thing as saying that the law is unconstitutional on its face (it‟s a matter of semantics) v. The normal rule is that partial (“as applied”), rather than facial, invalidation is the required course. Despite this rule, the Court has continued to utilize the approach of finding a statute to be overbroad on its face as seen in Ashcroft vi. See Hess v. Indiana and Cohen v. California Once a lawyer determines that a law is overbroad, he must see if the statute has been subjected to a prior narrowing interpretation. c. 2ND STEP: Narrowing constructions as a cure for facial overbreadth i. Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute ii. A prior OR A PRESENT narrowing construction may save a statute form being facially overbroad
Ex.: In order to protect the constitutionality of the statute, the Court can narrow it in the present case and say that the narrowed application applies to the defendant and therefore the defendant loses Our cases have long held that a statute as construed may be applied to conduct occurring prior to the construction provided such application affords fair warning to the defendant ) Osborne v. Ohio Occasionally, the court had refused to allow a present narrowing construction to happen iii. What ever the highest court of the state interprets it to mean – that is what it means Chaplinsky – No person shall address any offensive, derisive, or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name The state statute was already narrowly construed by the Supreme Court of New Hampshire – they limited it to fighting words (Page 53) iv. The problem with narrowing construction is that it allows a broadly-worded statute to remain on the books and even the courageous and knowledgeable challenger is taken by surprise, possibly at great cost. d. Vagueness i. Vagueness is not technically a first amendment problem (it is a due process problem) ii. Law is vague when persons of common intelligence would have to guess its meaning iii. Overbroadness and vagueness often rise together iv. It‟s so unpredictable when a vagueness challenge will succeed v. One to whose conduct a statute clearly applies may NOT successfully challenge it for vagueness vi. Don‟t make a vagueness argument on final – it‟s not a first amendment issue
9. Content-based v. content-neutral
If no special First Amendment rule, test, or definition governs with respect to the kind of speech at issue, we must first ask whether the regulation is content-based or content-neutral. (Content-based and content-neutral rules are the default rules when no other rules apply) a. As a way to find out if a particular statute is constitutional, if you have a statute regulating speech (speech that does NOT fall within the particular categories – threats, fighting words, etc) then the first thing to ask is if the statute is content-based OR content-neutral i. Content-based – whether the regulation embodies content discrimination 1. Content-based if its application depends on the content or message of the prohibited speech ii. Content-neutral – whether it is a reasonable time, place and manner regulations (TPM) 1. Content neutral if its applicability has nothing at all to do with the speaker‟s message iii. Time, Place and Manner: Content neutral - - significant government interest still must be narrowly tailored. iv. Must leave ample lternative channels of communication. v. EXAM TIP: you must first start by addressing the government interest that may be plausible significant then ask about narrowly tailored. vi. Narrow tailored is best shown by under and over inclusiveness. b. Compelling gov interest is the highest level of magnitude c. Content-based i. If the statute regulating speech is content-based, then it receives strict scrutiny ii. (show how its content-based and then apply the strict scrutiny test) iii. Whether it embodies content discrimination Content-based regulation discriminates on the basis of what the speaker is saying
iv. Content-based if its application depends on the content or message of the prohibited speech v. If the regulation and the applicability of the regulation depends in ANY way upon the contents of the speech, then the regulation is content-based and that controls 1. The fact that it may look or feel like a TPM regulation along with regulating the content – don‟t be seduced, it‟s still a content based regulation 2. In other words, a content-based regulation may also embody some regulation of time, place, or matter, but the time, place, or manner is NOT what governs vi. Can‟t be content-based and content-neutral – has to be one or the other vii. More likely to be invalidated than a content-neutral regulation viii. If the applicability is to the content in any way, it is content-based ix. Viewpoint discrimination is when the regulators allow one side of an issue to speak, but they don‟t allow the opposing side on an issue to speak ALL VIEWPOINT DISCRIMINATION IS CONTENT-BASED DISCRIMINATION However, not all content discrimination is viewpoint discrimination This is regarded as worse than content discrimination Government cannot prohibit speech because it disagrees with its message Ex. It would be viewpoint discrimination to keep the religious groups from using the school facilities that they have opened up to other groups. x. As soon as you try to single out messages in certain ways, you have moved into the area of content-based and strict scrutiny xi. Strict scrutiny – applies to content-based regulations 1. MUST be compelling government interest! AND a. Health b. Safety c. Preservation of life d. Preserving the well-being, tranquility, and privacy of the home (Page 193) e. Emotional and psychological well being of a child (Page 186) f. Ensuring the victims of crime are compensated by those who harm them (page 183) g. Ensuring that criminals do not profit from their crimes h. Protecting the community from bias-motivated threats to public safety and order i. Ensure basic human rights of members of groups that have historically been subjected to discrimination j. Right of such groups members to leave in peace where they wish k. National defense and the raising of armies l. Eradicating racial discrimination in education m. Government assuring mandatory and continuous participation in and contribution to the social security system n. NOT: Person getting their feelings hurt o. NOT: The Government substituting itself for informed and empowered parents 2. A “tight fit” between means regulation and the compelling state interest (means to end) a. Highest level of justification b. Law must necessary to accomplish the compelling govt interest Law must be the least restrictive means of accomplishing that compelling state interest
Sable Communications of California v. Federal Communications Credit cards, access codes, and scrambling means were introduced as less restrictive means to keep the kids away from the materials. The Court wants to know why the Government does not use it. The Government must prove that the less restrictive means are not going to work.
United States v. Playboy Entertainment Group A possible less restrictive means would be to let parents decide which channels they would like to keep and have the parents would request the channels they would like to have blocked When a plausible, less restrictive alternative is offered, it is the Government‟s obligation to prove that the alternative will be effect to achieve its goals. This is a key aspect of strict scrutiny – the burden shifts to the Government The Government did not meet the burden here c. Not too overinclusive or substantially underinclusive ***Very difficult for content-based regulation to survive strict scrutiny Exam tip: Best way to try to argue that regulation is NOT narrowly tailored is to try to demonstrate that it is over- or underinclusive (Page 169 and 178) Narrowly tailored should mean NOT over- and NOT underinclusive Overinclusive – when a law regulates more speech than would be required to accomplish the compelling govt interest (this is more serious) In Simon & Schuster v. New York Crime Victims Board, the statute applies to those criminals who are accused, but not necessarily convicted. Also, it applies to persons who admit to committing a crime, but who are not accused or convicted. Also, it applies to works on any subject, provided that the person expresses any thoughts or recollections about his crime Finally, it taxes the press who is completely unrelated to the victims Side note: Underinclusive – when a law regulates less speech than would be required to accomplish the compelling govt interest Nature of underinclusive argument is that the law should be invalidated because it regulates too little this is not an intuitive argument (like overinclusive) See Erznoznik v. City of Jacksonville (holding the ordinance was underinclusive since the Court said that the government would need to regulate more than just nudity (that the ordinance prohibited) in order to met its compelling government interest
Had the ordinance said, “No drive in theatre within the city can have a screen that can be viewed from a city street,” it would have probably been contentneutral See Simon & Schuster v. New York Crime Victims Board where the court should have said that it was overbroad since it was underinclusive because there were other ways in addition to taking profits from criminals for the government to reach its compelling interest The Court has frequently upheld underinclusive classifications on the sound theory that at legislature may deal with one part of a problem without addressing all of it however, this presumption has less force when a classification turns on the subject of subject matter of expression 3. Govt must also prove that there’s a real problem that needs to be solved This is an additional element of strict scrutiny introduced in United States v. Playboy Entertainment Group xii. Analysis – (from outline) 1. Under/overinclusive not narrowly tailored fails strict scrutiny law is overbroad/invalid d. Content-neutral i. If the statute regulates speech in a content-neutral way, then the statute receives intermediate scrutiny (show how its content-neutral and then apply the intermediate scrutiny test) ii. The principal inquiry in determining content neutrality, in speech cases is whether the government has adopted a regulation of speech because of disagreement with the message it conveys The state‟s interest must be unrelated to the content of the speech in order for it to be content-neutral iii. Content-neutral deals with whether it is a reasonable time, place, and manner regulation iv. Govt is not discriminating on the basis of what is said, but rather when, where and how it is said v. Law is not focusing on the speech‟s message, rather, the law is focusing on the time, place, and manner of the speech The law is neutral as to the content of the speech vi. Essentially – the hours and places of public discussion can be controlled vii. Crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time viii. Courts are much more tolerant of this than they are of content-based regulations ix. NO regard to content what so ever x. Frisby v. Schultz The ordinance makes it unlawful for any person to engage in picketing before or about the residence or dwelling of any individual in the town. The Court said that even protected speech is not equally permissible in all places and at all times The Court said public streets are a model of the traditional public forum Just because public streets run through neighborhoods, they do not lose their status as a traditional public forum The Court said that individuals are not required to welcome unwanted speech into their homes and that the government may protect this freedom – there is no right to force speech into the home of a unwilling listener
1st element to be met: The government had a substantial interest to protect the well-bring and privacy of the home 2nd element to be met: The Court interprets the ordinance more narrowly than the district court did so that it targets and eliminates no more than the exact source of the evil it seeks to remedy - so it was narrowly tailored. The Court said a complete ban can be narrowly tailored, but ONLY IF each activity within the prohibition’s scope is an appropriately targeted evil. (such as here) rd 3 element to be met: Also, the ordinance leaves open ample alternative channels of communication. Therefore, the facial challenge to the ordinance must fail (ordinance upheld) Since the content-neutral ordinance passed intermediate scrutiny, it was constitutional and thus upheld xi. City Council v. Taxpayers for Vincent People we attacking campaign signs to telephone poles Getting rid of clutter was a substantial government interest By banning these signs, the city did no more than eliminate the exact source of evil it sought to remedy There were ample alternative modes of communication in the city Therefore, since the content-neutral ordinance passed intermediate scrutiny, it was constitutional and thus upheld xii. Hill v. Colorado 8 foot limitation within 100 feet of an entrance to a health care facility was held to be content-neutral by the Court The right to avoid unwelcome speech has special force in the privacy of the home, and its immediate surroundings, but can also be protected in confrontational settings No one has the right to press even “good” ideas on an unwilling recipient The First Amendment protects the right of every citizen to reach the minds of willing listeners and to do so there must be opportunity to win their attention. Substantial interests were the right of every person to be let alone, the right of passage without obstruction, controlling the activity around certain public and private places A valid TPM regulation here, do you agree? TPM was narrowly tailored The regulation did not entirely foreclose any means of communication Doesn‟t have to be the least restrictive means The court noted that a bright-line prophylactic rule may be the best way to provide protection and, at the same time, by offering clear guidance and avoiding subjectivity, protect speech itself Since the content-neutral ordinance passed the intermediate scrutiny test, it was held to be constitutional xiii. Intermediate scrutiny for content-neutral regulations 1. Must be a significant/substantial govt interest 2. Law must be narrowly tailored to accomplish significant govt interest? a. TPM regulations do NOT need to be the least restrictive means of accomplishing the regulation Ward v. Rock Against Racism
b. A time, place, or manner regulation may NOT burden substantially more speech than is necessary to further the government‟s substantial interest
c. It seems like the narrow tailoring for intermediate scrutiny is less than it is for strict scrutiny (we don‟t really know what it is, but we know what it is not) However, you would make the same arguments as you would in strict scrutiny Overinclusive Underinclusive d. Of course, must take in account the place to which the regulations apply in determining whether these restrictions burden more speech then necessary. e. Narrow tailoring is the best way to invalidate a time, place, and manner regulation 3. Requirement that the regulation leaves open ample alternative channels of communication a. Meaning that the govt must allow that speech to be available somewhere somehow in that area – it can‟t be a complete ban on expression, it might simply ban a method of expression xiv. Despite the fact that the time, place, and manner test (occasionally referred to as a form of intermediate scrutiny) was formulated in the 1980‟s, it has not always been the test the Court has applied to content-neutral regulations of speech O‟Brien test (typically used in cases that deal with regulation of signs) xv. Permit Requirements and the problem of “unfettered administrative discretion” Rules governing “permit” ordinances are quite independent of the conventional time, place, and manner analysis The Court has said that the authority of the municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties Even if the government may constitutionally impose content-neutral prohibitions on a particular manner of speech, it may not condition that speech on obtaining a license or permit from a government official in that official‟s boundless discretion. There is nothing unconstitutional about this requirement to get a permit. Unfettered (unlimited) administrative discretion will not be tolerated in the realm of speech and press. (Page 211) The law cannot give the administrative official the ability to say no for no reason There has to be some objectionable and reasonable standards that govern the official who decides if he will give you the permit or not. Such as: conflicting with some other event using the same piece of property Has to be some traffic related basis for saying no Watchtower Bible and Tract Society of New York v. Village of Stratton The Court struck down an ordinance requiring canvassers and solicitors to register and obtain a solicitation permit from the mayor‟s office before engaging in door-to-door advocacy of any kind. The Court said it is offensive that in the context of everyday public discourse that a citizen must inform the government of her desire to speak to her neighbors and then obtain a permit to do so.
The Court found the ordinance to be overinclusive as regards to fraud, privacy, and the prevention of crime because the ordinance was not tailored to those interests Government authorities may condition the grant of the permit of an advance payment that would compensate the local government for the costs of administering the permit system and/or providing the police protection to the demonstrators However, the amount of the payment cannot be influences by the extent to which hostile counter-demonstrators are expected to be present. This would require the payment to be based on the content of the speech Speech may not be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob. Thomas v. Chicago Park District raised the question of whether a municipal park ordinance requiring individuals to obtain a permit before conducting large scale events must contain certain procedural safeguards as discussed in Freedman In Freedman, the court held that a film licensing process must contain certain procedural safeguards to avoid constituting a invalid prior restraint: 1. Any restraint prior to judicial review can be imposed only for a specified brief period 2. Expeditious judicial review of that decision must be available 3. The censor must bar the burden of going to court to suppress the speech and must bear the burden of proof once in court xvi. A final note on time place and manner regulations The minimal scrutiny prong of intermediate scrutiny has led to an unfortunate diminution of First Amendment protection The Court has overlooked the fact that content-neutral restrictions are also capable of unnecessarily restricting protected expressive speech The Court fails to realize that public officials have a strong incentive to overregulate even in the absence of an intent to censor particular views. e. Some thoughts about overbreadth, strict scrutiny, and intermediate scrutiny A. Content-based: Rohr says that it may be accurate to say that when a court applies strict scrutiny to a content-based regulation of speech and finds that the law fails strict scrutiny (for any reason), the law is overbroad; since the court typically applies strict scrutiny to the regulation without focusing on the facts of the case, it may be fair to say that the law has been found to be overbroad (invalid) on its face (Page 216-217) i. “Overbroad” might thus be understood in essence as a synonym for invalid. And again, overbreadth is a conclusion that we would reach by applying whatever constitutional rule, test, definition or level of scrutiny the Supreme Court has instructed us to apply to a particular kind of regulation of speech
1. Given these observations, it follows that if one properly applies strict scrutiny to a content-based regulation of speech, there is no further need to engage in a separate facial overbreadth analysis
If a content-based regulation fails strict scrutiny because it is underinclusive, and therefore not sufficiently narrowly tailored, the law is overbroad on its face. Thus, a law can be overbroad (invalid) because it is underinclusive. If a content-based regulation fails strict scrutiny because it is overinclusive and not narrowly tailored to accomplish its objective, it too can be overbroad on its face
Thus, a overinclusiveness can lead to a finding of overbreadth as well B. Content-neutral: Rohr states that Court has never fully explained the relationship between the facial overbreadth doctrine and the application of its time, place, and manner analysis. i. When the Court employs the TPM test, it virtually always used the test in regard to the regulation generally and not to the application of the regulation to the specific fact situation that gave rise to the situation. Therefore, the analysis of the validity of a time, place, and manner regulation tends to be a facial analysis rather than an applied analysis. ii. When we apply the TPM test to a regulation, and consider whether the regulation itself is constitutional, we are essentially engaging in facial overbreadth analysis. The facts of the dispute that led to the litigation will typically be discussed, but will not make the difference in the determination of whether the regulation is nor is not invalid.
Given this, all one needs to do is apply the TPM test. - No separate overbreadth analysis should be required
Blurring the distinction between content-based and content neutral regulations: The “Secondary Effects” Theory City of Renton v. Playtime Theatres, Inc. The city ordinance prohibited adult motion picture theaters from locating within 1000 feet of residential zones, churches, parks, schools etc. The city said the ordinance was designed to prevent crime, protect the city‟s retail trade, maintain property values, protect and preserve the quality of the neighborhoods, and the quality of urban life. The court noted that the ordinance merely proved that the theatres may not be located within 1,000 feet of any residential zone, church, park, or school and is therefore properly analyzed as a form of time, place, and manner regulation Secondary effects: The court reasoned that because the city was not responding to the content, but rather to its belief that these adult theatres show films that have certain secondary effects on the surrounding neighborhoods, the law should be content-neutral rather than content-based The ordinance is not aimed at the content of the films shown at adult motion picture theatres, but rather at the secondary effects of such theatres on the surrounding community The District Court found that the City Council‟s predominate concerns were with the secondary effects of adult theatres and not with the content of the adult films themselves. Supposed secondary effects from the adult theatres: harmful effect on the area and contribute to neighborhood blight Therefore, the Court said the ordinance is consistent with content-neutral speech regulations as those that are justified without reference to the content of the regulated speech. Zoning ordinances designed to combat the undesirable secondary effects of such businesses are to be reviewed under the standards applicable to content-neutral time, place, and manner regulations American Mini Theatres The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities as long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses There is a strong underinclusive argument here – The Court states that Renton chose first to address the potential problem created by one particular kind of adult
business in no way suggests that the city has singled out adult theatres for discriminatory treatment. Thus, the Court makes the argument they the city will regulate one-step-at-atime This is generally seen in Equal Protection, but NOT in speech This was a very important decision because it gave the green light to other cities around the country to put in place ordinances such as this one. However, the impact of Renton “secondary effects” analysis has in fact been relatively confined, at the Supreme Court level, in terms of the factual contexts to which it has been found applicable. In forming an ordinance, the city can act because of the secondary effects of speech so long as the justifications for the regulation have nothing to do with content Listeners‟ reactions to speech are not the type of secondary effects that the Court was referring to in Renton The emotive impact of speech on its audience is not a secondary effect In City of Eerie v. Pap‟s A.M., the Court did rely on the secondary effects theory in upholding the application of an ordinance banning public nudity to a nude dancing establishment. Scalia – Argues that this is not speech, it is conduct! Therefore there is no protection. He wants O‟brien overturned. City of Los Angeles v. Alameda Books – 16 years after Renton and the Court was entirely made up of new justices The ordinance in this case prohibited more than one adult entertainment business in the same building The Court held the holding in Renton to be sound The concurrence said these (including Renton) such ordinances are content based and we should thus call them so. The concurrence said that a zoning restriction that is designed to decrease secondary effects, and not speech, should be subject of intermediate rather than strict scrutiny (however, this was view from the concurrence with the plurality)
talking about situations where someone is not literally speaking, it does not involve the spoken or written word. The challenger argues that although he was engaged in conduct, he was trying to express something with this conduct. Should this be treated as speech. Texas v. Johnson: The TEST: page 235, 1. ask whether an intent to convey a message was present and the 2. Was the likelihood great that a message would be relayed. Symbolic speech AKA expressive conduct When if ever should conduct be treated as speech? a. Conduct that is intrinsically NOT expressive but under certain circumstances it will be treated as speech Therefore, this does NOT refer to dancing The Court has said that not just any action taken with respect to our flag is expressive It must be considered in the context in which it occurred b. Hint – if there are ONLY words, that is NOT symbolic speech – that is ACTUAL speech
c. Under the First Amendment, the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable – even if the flag is involved. In United States v. Eichman, the O‟Brien test did not apply since the government‟s interest to preserve the flag as a symbol for certain national ideals is implicated only when a person‟s treatment of the flag communicates a message to others that is inconsistent with those ideas. (related) d. Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (Holding that parades are a form of expression and therefore, the private parade organizers did not have to include in their parade the gay group because it would have conveyed a message that they did not wish to convey) e. R.A.V v. City of St. Paul The Supreme Court has to take the interpretation given by the highest court of the state. We would have thought it would save this amendment, but it doesn‟t The prohibition against content discrimination that the First Amendment requires is not absolute
Some forms of content discrimination do not violate the First Amendment
Exception for content discrimination: When the basis for content discrimination consists entirely of the very reason the entire class of speech at issue is prohibited, no significant danger of viewpoint discrimination exits (not here) (See middle of Page 255) Having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, it is also neutral enough to forum the basis of distinction within the class Exception for content discrimination: The Court may allow content discrimination when the content discrimination is aimed only at the secondary effects of the speech (not here) Exception for content discrimination: Content discrimination can be justified it if is narrowly tailored to serve a compelling state interest (didn‟t pass strict scrutiny here) The court finds this ordinance to be content-based and it thinks there are clearly content-neutral alternatives (wasn‟t necessary and therefore, didn‟t pass strict scrutiny) The court found content discrimination within the category of fighting words Put forth the theory that even within unprotected speech (such as fighting words) content discrimination is presumptively unconstitutional and you have to apply strict scrutiny Note: There are no special rules for hate speech – there is no clear definition Hate speech is currently protected by the First Amendment Even though the four Justices who rejected the majority‟s analysis, concur with the majority‟s result? They understood that the ordinance went too far and is overbroad on its face The concurrence thinks that the mere fact that expressive activity causes hurts feelings, offensive, or resentment does not render the expression unprotected. Goes back to Chaplinsky: “Words by their very utterance inflict injury” – again, makes it look like there isn‟t anything left of this This decision hasn‟t had very much real world effect, but it popped up again in Virginia v. Black. How would the Justices react to a ban on “pure” hate-speech which expresses negative feelings toward a particular ethic or religious group? Probably struck down
Virginia v. Black The Court said that intimidating in the constitutionally proscribable sense of the word is a type of threat, where the speaker directs a threat to a person or a group with the intent of placing the victim in fear of bodily harm or death However, unlike R.A.V. the Virginia statute does not single out to prohibit only that speech that is directed toward one of the specified classifications (I.e. race, gender, religion, etc.) The Court held that the First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly harmful form of intimidation. The Court uses the first exception for content discrimination listed in R.A.V.: When the basis for content discrimination consists entirely of the very reason the entire class of speech at issue is prohibited, no significant danger of viewpoint discrimination exits (See Page 264) Having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, it is also neutral enough to forum the basis of distinction within the class The Court reasoned that just as a state may regulate only that obscenity which is the most obscene due to its prurient content, so too may a state choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm. 4 justices thought the part of the Virginia statute that stated that “such burning of the cross shall be prima facie evidence of an intent to intimate a person or group of persons” was unconstitutional These 4 justices, like the concurrence in R.A.V., say that anger or hatred is not sufficient to ban all cross burnings This is more evidence that shows there is a constitutional right to express your racist thoughts g. In this areas of First Amendment law, a statute will not be struck down, as violating freedom of speech, just because a factual showing that the legislature that enacted it was motivated by desire to suppress speech Under the Establishment Clause, a governmental action will be found unconstitutional if the relevant government entity was motivated solely by a desire to promote religion Thus, when challenging the constitutionality of a statute, there are times when courts will consider legislative motive and times when the won‟t h. The government usually has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. It is not simply the verbal or nonverbal nature of the expression, but the governmental interest that helps to determine whether a restriction on that expression is valid Thus, where speech and nonspeech elements are in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech can justify incidental limitations on First Amendment freedoms. – The O‟Brien test would determine if the governmental regulation is sufficiently justified) i. First - Threshold question is whether this conduct is symbolic speech/expressive conduct? (2 prong test to determine if a conduct should be considered expressive conduct) i. Does the actor, by his activity, intend to communicate a viewpoint? AND (actor will tell that he intended to convey a message) ii. And likelihood would be great that his audience would understand the message sent by the conduct? (this second prong will be harder to prove)
It seems as though the court treats this prong lightly – seems as though the message doesn’t have to be very clear Next, once we have determined the conduct was expressive we **ask whether the government interest in suppressing the behavior is unrelated to the suppression of speech (the message) (threshold question) If it is related, the regulation is content-based and strict scrutiny is applied If it is not related, the regulation is content-neutral and the O‟Brien test is applied (the arcara stringent standard) O’Brien test - government regulation is sufficiently justified if: (Symbolic speech is the only time we use the O‟Brien test) O‟Brien Test: 1. Gov‟t has power to regulate: Rohr thinks this is a useless prong, it is either a requirement that encompasses everything that follows or he just put that prong on the list because the case involved the federal government, that is not really a free speech concern. Rohr puts an X by this prong. 2. Substantial gov‟t interest: 3. Interest unrelated to suppression of speech 4. reg. is no more extensive than necessary i. Regulation in question must be within the constitutional power of the govt? (not always an important element) ii. Must further an important/substantial govt interest iii. ** Govt interest must be UNRELATED to the suppression of free expression (aka, is it content-neutral – it is if govt interest is unrelated to the suppression of speech) iv. The regulation of speech must be no greater than is essential to the furtherance of that interest 1. Basically – this is a ban on overinclusiveness If all 4 prongs of the O‟Brien test are met, then govt action will be upheld Thus, O’Brien is a variation on intermediate scrutiny (however, we will not use the O‟Brien test for intermediate scrutiny) i. Basically, if the answer to question 3 is that the govt interest is unrelated to the suppression of free expression – stay with O’Brien ii. If the answer to question 3 is that the govt interest IS related to the suppression of free expression – then strict scrutiny will apply Not a lot of cases on this, mostly dealing w/ the American flag. Where do we go after the TX v. Johnson opinion? The MODERN TEST: take the 3 rd prong of the O’Brien test and make it a threshold question. In order to determine whether to use O’brien at all. If you are saying “who cares, we thought you would start a fire. If however the __________ then use strict scrutiny.
11.Access to the non-traditional forum: When is government Property Available for Freedom of Expression?
a. Issue: When is Government property available and when it is not available for expressive activity? Arises when people want to speak on government controlled property Talking about government controlled properties or channels of communication i. It‟s most easily identified when real property is involved – like the jail or military base case where clergymen and theatrical plays were allowed, but politicians were not allowed to speak Jails, prisons, and military bases are not public forums The facts that other kinds of speakers and entertainers were sometimes allowed to used the government controlled property does NOT, by itself, convert it into a public forum
b. The govt as government in control of the property or channel of communication is saying “not here” c. This is NOT about govt regulation of speech that occurs on private property IT ONLY PERTAINS TO GOVERNMENT PROPERTY. WE ARE NOT TALKING ABOUT PRIVATE PROPERTY d. The state, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated e. We are not talking about physical access – we are talking about access to the people to engage in expressive activity f. The United States Constitution does not forbid a State to control the use of its own property for its own lawful nondiscriminatory purpose. g. When state action exists, the policies and practices governing access must not be arbitrary, capricious, or invidious. h. Constitution forbids a state to enforce certain exclusions from a forum generally open to the public, even if it was not required to create the forum in the first place. Widmar v. Vincent (Christian org. won) Instead of a Christian school organization, suppose it was a local chapter for a political organization that wanted to use the classrooms – this would be different provided that the school does not allow other outside organizations to use the classrooms i. We are not talking about valid time, place, and manner regulations in these cases j. The theme we see in the cases before the concrete rules are laid down in Perry in 1983 is that the government is allowed, with regard to certain property, to take it off the table k. The existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue l. Public forum categories i. Traditional public forum 1. Places by which traditionally have been devoted to citizens for expressive activity such as assembly and debate i.e. public streets, public sidewalks, public parks, etc 2. This is govt controlled property that is available to citizens for expressive activity 3. With regard to traditional public forums, the rights of the state to limit expressive activity is sharply restricted 4. Lower courts are starting to create a few other things as traditional public 5. Governed by the usual rules Have to ask if the regulation is content-based or content-neutral Content-based regulations held to strict scrutiny (the usual rules apply) Content-neutral regulations held to intermediate scrutiny (the usual rules apply) ii. Designated public forum 1. The government has opened some property for some expressive activity even though it did not have to (not a street, sidewalk, or park) 2. The law is not really clear about this category 3. 2 subsets of designated public forums a. Open to entire general public i. Not necessarily physically, but as relating to speech ii. There are no examples of this at the Supreme Court level (Extremely rare) b. Limited public forum i. Limited to certain speakers and some topics
ii. Non-traditional public forum that the govt has intentionally opened up, but the expressive activity is limited to certain groups or to the discussion of certain subjects iii. In a limited public forum, government is free to impose a blanket exclusion of certain types of speech, but one it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre iv. When determining what kind of forum it is, the question will be is it a limited public forum or a non-public forum v. We know if it is a limited public forum by looking at the govt‟s INTENT – First, did the govt intend to open up the property for purposes of expression? Key – govt intent controls (the government does not create a forum by inaction) This approach favors the government – if govt didn‟t intend to open up the non-traditional forum for purposes of expression, then its not opened up Selective access on behalf of the government does NOT transform government property into a public forum The very fact that a speaker has been excluded from the forum may be seen as evidence of intent not to create a public forum The court has examined the nature of the property and its compatibility with the expressive activity to discern the government‟s intent vi. Next, have to ask: To whom or what has the forum been opened (what category of speakers or what topics has the forum been opened to (favored))? (Page 290) 1. If the challenger or topic IS within the favored category then treat as public forum and apply usual rules 2. If the challenger or topic is NOT within the favored category then treat as non-public forum and apply the rule **Must ask about nature of speaker to see if strict scrutiny applies, if the forum is open to public and they exclude someone then it must pass strict scrutiny. vii. Analysis 1. If property is determined to be a limited purpose forum, and the challenger or topic is within the class to whom the forum had been opened for, then 2. Determine whether the statute or regulation is content-based or content-neutral 3. And apply the appropriate test (strict scrutiny or intermediate scrutiny) iii. Non-public forum 1. Government controlled property or channel of communication that has not been open for expressive activity 2. Not open to public for expressive activity and therefore the govt may make distinctions in access on the basis of subject matter and speaker identity Low level of judicial review since its not a public forum
Very helpful to government to be a non-public forum 3. Do NOT equate non public forum with “private property” it‟s NOT the same 4. Basically, if it involves a non-public forum, the govt will win as long as the regulation on speech is: (2 part test) a. Government has to act reasonably in taking its position AND b. Government has not participated in viewpoint discrimination This makes it seem like viewpoint discrimination is never acceptable Final note on viewpoint discrimination: It is simply not tolerated It is not always held to strict scrutiny though
When there is viewpoint discrimination – game over – no need to move to strict scrutiny
Concept of viewpoint discrimination pertains to government as a regulator – not to the government as a speaker Ex. It would be viewpoint discrimination to keep the religious groups from using the school facilities that they have opened up to other groups. 5. BUT, if the challenger proves that the regulation is unreasonable OR is based on viewpoint discrimination, then the govt loses 6. Perry Education Ass‟n v. Perry Local Educator‟s Ass‟n School mailboxes were considered a non-public forum In addition to the one union selected, the mailboxes were open to Cub Scouts, YMCA, and Parochial Schools The Court said this type of selective access does not transform government property into a public forum; it indicates the property is a non-public forum When the govt acts as a gatekeeper where people have to ask permission to come in, it indicates the property is a non-public forum The selective access that defeats a finding of limited public forum may be either random access or access that is extended only to persons or groups that fall into a defined class of speakers The court said even if it assumes that granting access to Cub Scout and YMCA has created a limited public forum, the constitutional right of access would in any event extend only to other entities of similar character. Presumptively, this means the forum must be open to those of similar character of those who the government has already opened access 7. Hazelwood School District v. Kuhlmeier High school newspaper was a non-public forum That that the paper was distributed in a public forum did not convert the forum into a public forum School officials did not intend the paper to be anything more than a non-public forum
12.Over the internet
1. To what extent can Congress rule the Internet in order to protect children? 2. These are content based regulations that are in the realm of strict scrutiny 3. Reno v. ACLU – made it a crime to knowingly make indecent materials available to minors Sexual expression which is indecent, but not obscene is protected by the First Amendment Parent‟s consent would not avoid application of the statute; did not apply to just commercial transactions; did not define or limit its terms, and applied to an entire universe of cyberspace Burden on adult speech is unacceptable if less restrictive alternatives would be as least as effective in achieving the legitimate purpose that the statute was enacted to serve Government may not reduce the adult population to reading only what is fit for children This means a lot of the court Seems to have some real force here The Court said that it has repeatedly recognized the governmental interest in protecting children from harmful materials, but that interest does NOT justify an UNNECESSARILY broad suppression of speech addressed to adults The community standards criterion as applied to the Internet means that any communication available to a nation wide audience will be judged by the standards of the community most likely to be offended by the message The Court said the Internet is not as invasive as radio or broadcast television It was a content-based regulation on speech The court says the breadth of this content-based restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective as the supposed regulation. It has not done so. Also, the Court said the regulation lacked the precision that the First Amendment requires when a statute regulates the content of speech (not narrowly tailored) Same statute might have been ok if it sought to prohibit only obscene materials 4. Analysis for Reno a. Content based – because regulation tries to control “indecent” material, which is protected under the First Amendment b. Fails strict scrutiny i. Less restrictive means exist 1. If challenger suggests a least restrictive means the burden shifts to the government to prove that it is not the least restrictive means. ii. Affirmative steps 1. Internet is an invited intruder – steps are necessary to reach sites on the internet 2. Chances of stumbling upon a porno site are slim 3. This distinguishes internet from radio
iii. “can‟t reduce the adult population to only what is fit for children” 1. The court might bar this material, even though the govt has a compelling interest – protecting kids from porn is a compelling state interest 2. But it fails strict scrutiny because it bars access to adults as well as kids, and adults have a right to see it 3. Especially if there are alternative, less restrictive means 5. Ashcroft v. ACLU Content regulations on speech are presumed invalid and the Government bears the burden of showing their constitutionality
A statute that suppresses a large amount of speech that adults have a constitutional right to receive is unacceptable if less restrictive alternative means would be as least as effective in achieving the purpose that the statute was enacted to serve. The burden is on the government to prove the proposed
alternatives will not be as effective as the challenged statute
It must be the least restrictive means among available, effective alternatives
The need for parental cooperation does not automatically disqualify a proposed less restrictive means The court knocks this statute down because there is a less restrictive means Blocking and filtering – are less restrictive and may be more effective than COPA – requires parents to use it if they wish Since blocking and filtering rely on the parents, Rohr doesn‟t think this is really a less restrictive means that is just as effective Unlike in Reno, the less restrictive means is defined here
13.Beyond obscenity and fighting words
a. Racial speech that offends or insults i. Hate speech 1. Overbreadth and viewpoint discrimination is the best way of deciding this stuff is unconstitutional 2. Viewpoint discrimination is per se unconstitutional 3. Govt can‟t punish someone just because someone‟s feelings are hurt b. Protection of minors from harmful or offensive (but not obscene) speech i. On radio or tv 1. Carlin case 2. Court considered factors: a. Comes into the home – when you‟re in public, you can avert your eyes and ears, but in the home you shouldn‟t have to. Once you put the radio on – too late, you‟ve already heard it. b. Time of day the program is aired – kids are home and can hear it, we want to protect kids from hearing this stuff in afternoon i. No alternatives ii. No warnings iii. Outcome may have been different if program was aired at 2am c. Uninvited intruder i. Streams into the home unsolicited
ii. Cable tv is not an uninvited intruder 1. Must contact cable company and ask for services 2. Requires affirmative steps – you pay for it d. Paid for setting i. Carlin probably would not have been punished had he performed in a private setting where people paid for the tickets ii. Through the mail 1. Have the right to receive information 2. Lewd publication may not be forced on people iii. Over the phone 1. Ban of indecent messages – content based discrimination, strict scrutiny applies‟ 2. Protecting a child from harmful psychological effects is a compelling interest 3. Less restrictive means to shield kids were found to exist, therefore, not narrowly tailored to serve compelling interest and law is therefore overbroad
a. Commercial speech – speech that does no more than propose a commercial transaction Rohr says it means commercial advertising b. All regulations on commercial speech are content-based, but you use the test mentioned below rather than strict scrutiny c. In Bates, the Court said that the justification for the application for overbreadth analysis applies weakly, if at all in the ordinary commercial context Since advertising is linked to commercial well-being, it seems unlikely that such speech is particularly susceptible to being crushed by overbroad regulation. d. Bolger v. Youngs Drug Products Corporation The mere fact that pamphlets are conceded to be advertisements clearly does not compel the conclusion that they are commercial speech Reference to a specific product does not itself render the pamphlets commercial speech Fact that there is a economic motivation for mailing the pamphlets would clearly be insufficient by itself to turn materials into commercial speech However, the combination of all these characteristics provides strong support for the conclusion that the informational pamphlets are characterized as commercial speech. e. Test for commercial speech i. First prong, is the expression protected by the first amendment? This is the threshold question!!! (if the speech is not protected, govt wins, game over) 1. Speech is NOT protected if: a. It is false or misleading – if it is, he has no protection – game over b. If the speech or advertisement promotes illegal product or service ii. Next prong, we ask whether the govt has a substantial interest in regulating this ad 1. (this is usually not a roadblock, steps 3 and 4 are where the problems come up) 2. There has never been a case where a substantial govt interest has not been found (substantial – significant or important, but not compelling) 3. Almost half the court thinks that this is not a substantial government interest to suppress truthful advertising about a legally available product. Concurrence in several cases thinks that “In cases such as this, in which the government‟s asserted interest is to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace, the balancing test adopted in Central Hudson should not be applied.”
iii. If both answers are yes, then we ask whether the regulation directly advances the govt interest asserted 1. “The burden of justifying a restriction on commercial speech is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” Government MUST prove there is a real problem After 1993, we see this heightened scrutiny as to this third prong Common sense approach – After 1993, no longer is it taken as a given that if advertising would increase demand then a regulation that decreases advertising would automatically decrease demand. (As seen in Posadas, Hudson, and Edenfield) This alone is not enough; must have proof iv. And finally, whether it is not more extensive than necessary to achieve that interest 1. Fit between the restriction and the govt interest does not have to be perfect, but it does have to be reasonable fit between its regulation on speech and its government interest In theory, it does not actually have to be the least restrictive means In practice, if you can suggest alternatives, that‟s a good way to show it wasn‟t a reasonable fit and winning the 4th factor against the government Does need to be narrowly tailored: Regulation CANNOT be overinclusive because then govt is regulating more than is necessary; if so – it fails and the law will be stricken After 1993, we see that the regulation CANNOT be underinclusive Proof of underinclusiveness will help show that the government did not advance its government interest f. NOTE – Regulations of commercial advertising are ALWAYS content-based regulation, but do NOT go to strict scrutiny – ALWAYS got to the 4 part commercial speech test g. These cases basically deal with commercial advertising – even advertising has some value and is therefore deserving of first amendment protection h. This deals with the right to receive information i. Consumer group may challenge a statute restriction commercial speech because they want the benefit of the information in that advertisement j. Essentially i. If answer to first prong is no – govt wins ii. If answer to prongs 2, 3, 4 is no – challenger wins
15.Two Special Kinds of Speakers
i. Public School Students On public school grounds, we will never reach strict scrutiny since its not a public forum Students nor teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate Cases are broken up intro two situations: 1. Tinker like cases – student has to be allowed to speak unless it‟s disruptive Undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression
There must be a showing that the forbidden conduct materially and substantially interfered with the requirements of appropriate discipline in the operation of the school. 2. Hazelwood like cases - Speech in a school sponsored activity Power of the officials is sufficiently heightened and students have less First Amendment rights in this situation Comes down to reasonableness School officials were allowed to regulate the contents of the school paper in a reasonable manner The First Amendment rights of students in public schools are not automatically coextensive with the rights of adults in other settings The rights of the students must be applied in the light of the special characteristics of the school environment School is allowed to prevent students from advocating drugs (Morse) It seems as though viewpoint discrimination is not out-of-bounds in the school setting – as long as it does not involve political discrimination (Morse) When the First Amendment is concerned, the tie goes to the speaker 3. Fraser – Ad hoc case – if child is being profane, school can come down on him Schools have the power to teach civility in public discourse
ii. Public Employees 1. Public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of public or government employment 2. State‟s interests as an employer in regulating speech of its employees differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general 3. Analysis 1st part of analysis - Threshold question – speech must be seen as addressing a matter of public concern If it doesn‟t address a matter of public concern, the case is over and the employee loses In determining whether the speech addresses a matter of public concern, the court must look at the whole record. (Content, form, and context of the given statement) Personal grievances are not of public concern Matters of personal interest are not matters of public concern When public employees make statements pursuant to their official duties, the employees are NOT speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. (this is not a matter of public concern) The inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern Expressing your views inside the office, rather than publicly, does not automatically prevent the speech from being a matter of public concern nd 2 part of analysis - it does involve an issue of public concern, move on to balancing test from Pickering Have to balance the interest of the employee vs. that of the public employer Balance between the interest of the employee in commenting upon matters of public concern and the interest of the employer in promoting efficiency of the public services it performs through its employees. In weighing the state‟s interest, some attention must be paid to the responsibilities of the employee within the company or agency Deal with confidential information, policymaking, public contact role, etc. When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the emplo yer‟s judgment is appropriate Even if you are addressing public concern, if the speech you engaged in that got you in trouble was part of your job, employee loses When employee speech concerning office policy arises from employment dispute concerning the very application of that policy to the speaker, additional weight must be given to the supervisor‟s view that the employee has threatened the authority of the employer to run the office
16.The Establishment Clause
a. Congress shall make no law respecting an establishment of religion – First Amendment Made applicable to the states through the 14th Amendment b. This is NO INQUIRY into the government‟s interest under the Establishment Clause c. Challenge to the Establishment Clause is when someone thinks that Government is promoting religion d. When a government actor has allowed persons to privately engage in speech and it occurs in a traditional or designated public forum, publically announced and open to all on equal terms – the religious expression does not violate the Establishment Clause e. Establishment of religion clause of the first amendment means at least this: A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government favored churches and the Establishment Clause is intended to prevent this from occurring here.
i. Neither a state nor the federal govt can set up a church ii. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another iii. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion iv. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance v. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion vi. Neither a state nor the federal govt can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa vii. In the words of Jefferson, the Clause against establishment of religion by law was intended to erect a “wall of separation” between church and state Everson (1947) f. Exception to the general rule of no federal taxpayer standing Person has standing when they say his tax dollars are being used to support religion and thus violates the Establishment Clause See Schempp – children were directly effected so they therefore had standing (INJURY) Impressionable schoolchildren were subjected to unwelcome religious exercises or were forced to assume special burdens to avoid them Court has refused to extend this exception to gifts of real property! g. Exception to the general rule of no federal taxpayer standing Federal courts have, with few exceptions, found that plaintiffs challenging the constitutionality of governmental sponsorship or the use of religious symbols have standing to bring those challenges Plaintiffs have alleged that they have in some way altered their behavior in an effort to avoid the contact with the offending religious symbol The Supreme Court has essentially ignored the question of standing in Establishment Clause cases of this kind h. State can use tax-raised funds to reimburse parents for bus transportation to school; this includes kids who attend Catholic schools The First Amendment requires that the state be neutral in its relations with groups of religious believers and nonbelievers The First Amendment does not require the state to be they adversary State power is no more to be used so as to handicap religions than it is to favor them Dissent asserts that no tax, in any amount, can be charged to support any religious activities (Everson 1947) (this prevents excessive taxation) i. Public school is allowed to permit its students during the school day to leave the school and go to religious centers for religious instruction The Court said that the First Amendment does not say that in every and all respects there shall be a separation of church and state Otherwise, they would be aliens to each other The government must be neutral when it comes to competition between sects The government may not coerce anyone to attend church (Zorach 1952) The Court said the school could adjust its schedule in order to accommodate the religious needs of people j. Establishment Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions (McGowan 1961) k. Principal is not allowed to read a prayer to its students (Engel 1962)
The Establishment Clause, unlike the Free Exercise Clause, does not depend on any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not The Constitution was intended too avert the dangers that resulted from the union of the church and state in Europe by leaving the government of this country in the hands of the people rather than a monarch Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can save it from the limitations of the Establishment Clause l. Ten Commandments cannot be read at the opening of public school (1963) The Court said the while the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the state to practice its beliefs. (Schempp 1963) m. Court has upheld a law that grants property tax exemptions to religious organizations for religious properties used solely for religious worship (Walz 1970) The Court reasoned that the purpose of a property tax exemption is neither the advancement or the inhibition of religion; it is neither sponsorship nor hostility (sponsorship) The Court said that granting tax exemptions to churches affords and indirect economic benefit and gives rise to some, but yet a lesser, involvement than taxing churches. (involvement) (financial support) Minimal and remote involvement that would complement and reinforce the desired separation n. Lemon test – used when the statute/law/regulation applies to ALL religions (1971) i. First, the statute must have a secular legislative purpose 1. Secular means not religious 2. Secular purpose must be sincere; not a sham 3. Secular purpose must be the predominate purpose 4. Endorsement Test Question (This occurred around 2002) Asking whether the govt actor had or appeared to have the purpose of endorsing religion When analyzing the government‟s purpose, proper application of the endorsement test requires that the “reasonable observer” be deemed more informed than the causal passerby. The reasonable observer in the endorsement inquiry must be deemed aware of the history and context of the community and forum in which the religious display appears. When something has been around for many years without anybody rejecting – it doesn‟t send a message of endorsement (influential at Supreme Court level) Might send more of a moral or historical message instead Applies in validity of prayers cases and govt sponsorship of religious displays cases Not in school aid cases 5. If the purpose is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power 6. Some of the cases have nothing to do with statutes; sometimes the challenge is to a practice or something that has no relation to a statute
7. Look to see if what the government considers a “valid secular objective” can be accomplished though reasonable alternatives (this could help to circumvent entanglement) Larkin 1982 Instead of a ban on liquor stores within 50 miles of churches Make it a ban of liquor stores within 50 miles of churches, schools, and hospitals 8. Example of a secular purpose - trying to be even handed and letting ALL the school organizations use the school facilities 9. The purpose of the Establishment Clause does not encompass the sort of financial benefit, ultimately controlled by the private choices of individuals, that eventually flows to parochial schools from the neutrally available tax benefit 10. It is a secular purpose to alleviate significant governmental interference (accommodate religion and let them do their thing) and does not the primary effect of advancing or inhibiting religion (1987) Example: When the government acts with the purpose of lifting a regulation that burdens the free exercise of religion (Religious entities can discriminate even when it comes to their nonprofit activities) 9. In 1984, the Court held as long as there was a secular purpose in addition to a nonsecular purpose, the government would win. However, in 1987, the Court said that if the primary purpose was religious, then the government would be in violation of the Establishment Clause. 10. In 1987, the Court says the question is if government abandons neutrality and acts with intent of promoting a particular part of view in religious matters ii. Second, its principal or primary effect must be one that neither advances nor inhibits religion 1. There must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion However, not every law that confers an indirect, remote, or incidental benefit upon religion is, for that reason alone, constitutionally invalid Lynch (1984) 2. Neutrality is an overriding concept here Neutrality means without sponsorship and without interference (1987) First amendment requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be the adversary. State power is no more to be used as to handicap religions than it is to favor them. 3. Endorsement Test Question (This occurred around 2002) And whether the govt action had the effect of endorsing religion Endorsement has everything to do with “what message is being sent?” In religious display cases, you must look at context in which the contested object appears At times, the court has said that endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and to adherents that they are insiders, favored members of the political community
4. 5. 6.
Validity of prayers cases and govt sponsorship of religious displays cases Not in school aid cases Helping religion – In the realm of the violating the Establishment Clause Hindering religion – In the realm of the Free Exercise Clause as well The primary effect does not advance religion if: a. Benefit of govt money goes to ALL to ensure they receive benefits (neutral) And money doesn’t go directly to the school, but rather to the parents or the college student (private choice) Mueller (1983) In Witters, (1986) the court held that the government program flowed to religious institutions only as a result of the genuinely independent and private choices of aid recipients b. The government is trying to be even handed and let all the school organizations us the school facilities Widmar The mere appearance of joint exercise of legislative authority by church and state provides a significant symbolic benefit to religions in the minds of some by reason of the power conferred Larkin (1982) In 1987, the Court said, for a law to be struck down under the effects prong, the government itself must advance religion through its own activities and influence.
Establishment Clause - School Aid Cases (1990‟s) EFFECT prong tends to be the focus Neutrality Benefits available across the broad class of citizens without reference to religion Private choice Individual decides where to spend the money Ex.: An instance where the amount of aid given to schools depends
on number of kids attending the schools – assistance is following the children Ex.: Payments made to parents and then endorse it over to the school
These cases never turn on the purpose prong This is a radical change from the 1970’s Helping the schools teach religion is not a concern anymore Entanglement concern has been greatly minimized Present majority of court doesn‟t share those views of the 1970s Hint that they might have a problem if money was given directly to
iii. Finally, the statute must not foster an excessive govt entanglement with religion 1. The Court has said that total separation is not possible in an absolute sense – some relationship between government and religious organizations is inevitable
2. The courts usually won‟t find excessive entanglement between church and state unless there‟s some kind of an ongoing human relationship between representatives of the govt and representatives of the church
3. You will not find a court ruling that we have excessive entanglement between church in state in simply a symbolic case. Excessive entanglement is found in ongoing human interactions between government and religion. 4. In Lemon, the Court said that the potential for political divisiveness related to religious belief is aggravated by the Pennsylvania and Rhode Island programs because the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow… This reasoning was again used regarding school elections in which majority vote would determine if there would be prayer at the football game (2000) Rohr said that the majority doesn‟t use political divisiveness analysis anymore, but sometimes dissent brings it up 5. Thorough monitoring (weekly, monthly, or annual) may be excessive entanglement (1960‟s and 1970‟s view ONLY) Court said it created a necessary and continuing relationship between church and state I.e. Monitoring of private school accounting procedures I.e. A teacher, unlike a book, would have to be constantly under surveillance State providing secular textbooks to students in public and private schools is NOT considered excessive entanglement
1997 STARTS A NEW TREND
6. Starting in 1997, the federal appellate courts appear to be converting the Lemon test into a two-part test: (Especially in school aid cases) 1. Purpose 2. Effect Excessive Entanglement 7. NOW: There is no longer the assumption that the presence of teachers in religious classrooms will, without more, create the impression of a symbolic union of church and state (1997) We no longer presume that public employees will inoculate religions simply because they are in a sectarian environment Pervasive monitoring of teachers is no longer required (entanglement concern has been greatly minimized) Radical change from the 1970‟s - Present majority of court doesn‟t share those views of the 1970s 8. By delegating a governmental power to religious institutions, the government has inescapably implicated the Establishment Clause Larking (1982) o. Govt has to win EVERY prong of the Lemon test, or else the govt loses p. Stone v. Graham (1980) Holding (It is no defense to urge that the religious practices may be relatively minor encroachments on the First Amendment in striking down the posting of the Ten Commandments in public school) q. When government discriminates in favor of one religion over another, STRICT SCRUTINY applies, NOT the Lemon test (discrimination among religions) Government sponsorship of religious displays – do NOT apply strict scrutiny r. School that is open for use by student groups is a prime example of a limited public forum. When it prevents the religious organization for using the school facilitates, its content-based discrimination must survive strict scrutiny Widmar v. Vincent (1981)
The Court reasoned that any religious benefits of an open forum at the University would be incidental within the meaning of its cases Court held the University does violate the Establishment Clause by letting religious groups use the government facilities NOW, we know that it would be viewpoint discrimination to keep the religious groups from using the school facilities that they have opened up to other groups. Good News Club (2001) Viewpoint discrimination - game over. Court doesn‟t even move on to strict scrutiny s. Once in a blue moon the Court will not employ the Lemon test. See Marsh v. Chambers (1983) Regarding prayer in the legislature, the Court reasoned that the same generation that adopted the First Amendment was doing it, so how can it be wrong t. In 1984, the Court held that the Establishment Clause affirmatively mandates accommodation, not mere tolerance, of all religions and forbids hostility towards any religion. Lynch v. Donnelly (1984) The Court expressly held that the Constitution does not require complete separation of church and state The Court states that in each Establishment Clause case, the inquiry calls for line drawing; no fixed per se rule can be framed In the line-drawing process, the Court often finds it useful to apply the 3 prongs of the Lemon test; however, the court stated their unwillingness to be confined to any single test in this area The Court stated that it has invalidated legislation or governmental action on the ground that a secular purpose was lacking only when it has concluded there was no question that the law was motivated wholly by religious considerations This makes it seem like if the governmental actor is seen as having both a secular and a non-secular purpose for its action, then the government seems to prevail But see O‟Connor in her concurrence says the inquiry of the first prong should not be the mere existence of some secular purpose, however dominated by religious purposes, but rather whether the govt intends to communicate a message of endorsement or disapproval of religion But see Edwards v. Aguillard (Holding that because the PRIMARY PURPOSE of the Act was to endorse a religious doctrine, the Act furthered religion and was therefore, in violation of the Establishment Clause.) (1987) NOW WE KNOW FOR SURE THAT THERE MUST BE A PREDOMINATE SECULAR PURPOSE Regarding the effects prong, it reasons that the display merely happens to coincide or harmonize with the tenets of some religions The Court compared this case to prior holdings and says since we didn‟t find a primary effect in those cases then there is not one here (Page 43-44) Does it come down to a judges conclusion about when the line has been crossed? Yes Justice O‟Connor (concurrence) introduces the Endorsement Approach here that caught on in later cases O‟Connor says that endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and to adherents that they are insiders, favored members of the political community Central question is whether the government is endorsing religion (must look at first two prongs of Lemon test) Regarding the first prong, the crucial question is whether the government intends to communicate a message of endorsement or disapproval of religion.
Regarding the second prong, the crucial question is whether the government has the actual effect of communicating a message of government endorsement or religion. u. In Wallace v. Jaffree (1985), in applying that Lemon test, the Court said it is appropriate to ask whether government‟s actual purpose is to ENDORSE or disapprove of religion O‟Connor in Concurrence: The relevant issue is whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of prayer in public schools. Later she changes this to a “reasonable observer” Proper application of the endorsement test requires that the “reasonable observer” be deemed more informed than the causal passerby. The reasonable observer in the endorsement inquiry must be deemed aware of the history and context of the community and forum in which the religious display appears. Pinette (1995) The comments she makes about reasonable observer are not always picked up by other members of the court Rohr said you might get a different result depending on who the reasonable observer is Rehnquist in Dissent: Suggests that based on the actions of the first few Presidents and people involved at the time the Bill of Rights was adopted did some things helpful to religion – promoted God. He thinks we ought to take this in account. He said the Establishment Clause did not require neutrality He said there is no indication that the Framers intended to make a wall of separation He said that only thing that would violate the Establishment Clause is favoring one religion over another one or establishing a National religion This has never taken a majority view v. In County of Allegheny v. ACLU (1989), it is pretty clear that the endorsement approach has been brought into the Lemon analysis under the first and second prong Under the purpose prong, you are analyzing the government‟s purpose for communicating a the message Under the effect prong, endorsement has everything to do with “what message is being sent?” In order to answer this question, in religious display cases, you must look at context in which the contested object appears Endorsement precludes the government from conveying, or attempting to convey, a message that religion or a particular religious belief is favored or preferred At the very least, the Establishment Clause prohibits government from appearing to take a position on questions or religious belief or from making adherence to a religion relevant to a person‟s standing in the political community The Establishment Clause does not limit only the religious content of the government‟s own communications. It also prohibits the government‟s support and promotion of religious communication by religious organizations. O‟Connor (Concurrence) Longstanding government acknowledgments of religion do not, under this test, convey a message of endorsement. She is saying that something that has been around along time has lost its religious meaning over time (traditional rather than religious) Kennedy and Scalia do not like her Endorsement test because they think it has to be twisted and stretched in order to uphold the practices that have been permitted in the past.
w. Services, facilities, or materials such as bus transportation, school lunches, public health services, and secular textbooks, even teachers now (1997), are not thought to offend the Establishment Clause If aid to schools is neutrally available and, before reaching or benefiting any religious school, first passes through the hands of numerous private citizens who are free to direct the aid elsewhere, the government has no provided any support of religion (2000) Neutrality and private choice is the key here x. Endorsement Test i. Endorsement seems to get superimposed on the first 2 prongs of lemon – it‟s not limited to endorsement of a particular religion – just endorsement of religion in general ii. Asking whether the govt actor had or appeared to have the purpose of endorsing religion iii. And whether the govt action had the effect of endorsing religion iv. Applied mostly in cases in which it makes intuitive sense to ask about endorsement: 1. Validity of prayers cases and govt sponsorship of religious displays cases (here it’s pretty foreseeable that the court will discuss endorsement) 2. Not in school aid cases y. Coercion Test - Govt may not coerce anyone to support or participate in any religion or its exercise (1992) DON‟T TAKE TO FAR, IT IS NOT SIMPLY HAVING TO BE THERE, IT IS COERCION TO PARTICIPATE! i. Coercion – coercion to participate in religious activity ii. The act of standing or remaining silent is an act of participation in the Rabbi‟s prayer iii. What matters is that a reasonable dissenter could believe that the group exercise signified her own participation or approval of it. iv. The emphasis is on participation, not simply forced exposure Rohr doesn‟t think that being forced to listen means participating He doesn‟t think being forced attend is participating v. The age of the children and their susceptibility to peer pressure was important vi. Obviously, if govt coerces people to participate in religion – that‟s a violation of establishment clause vii. The state can not require one citizen to forfeit his own rights and benefits in order to conform to state-sponsored religious practice viii. This test is used in prayer cases ix. HYPO: If you allow the students‟ to vote whether there should be prayer at graduation, should that survive the Establishment Clause? Majority vote would determine if there would be prayer at the graduation. Courts of appeal are split on this Supreme Court hasn‟t taken one of these cases iv. Some justices say this is not the coercion that counts. Elk Grove School District v. Newdow They say coercion that matters is the kind that threatens that you will be thrown in jail. aa. Scalia and Thomas say only things that violate the Establishment Clause are: Establishment of national religion Governmental preference between religions ******Rehnquist embraced this idea years ago bb. At a minimum, 3 justices have said government can prefer religion as opposed to the absence of religion. Scalia, Thomas, and Kennedy Also, there are two young justices we haven‟t heard from as of yet. Thus, we don‟t know where the Establishment Clause will go in the upcoming years.
cc. Public Finances to Religious Schools We have reached a point where the majority is willing to allow almost anything. They focus on neutrality and private choice. Not much that government is likely to do that the Supreme Court would not allow in this area. dd. However, we are at the other end of the spectrum as regard to prayer in school. ee. In between both of these is religious displays and we have seen opinions go both ways. This is the area, the Establishment Clause, in which the court has been least predictable.
17.Free exercise clause
a. Free Exercise Clause protects individuals against congressional interference with the right to exercise their religion b. Free Exercise Clause is about an individual saying hey, government you are requiring me, or prohibiting me, from doing something that my religion mandates. c. Sometimes the person making the claim is a member of an obscure or little known religious group and the question arises – is that a religion? i. Courts cannot inquire into the truth of the challenger‟s religious beliefs ii. Case law also tells us that the judge is not supposed to question the challenger about the accuracy of his theological beliefs iii. But the court may inquire into the sincerity of the challenger‟s alleged religious beliefs iv. Courts does sometimes get into the business of, is this really a religion Can be difficult The Supreme Court has never been down this path Lower courts have however d. Before Smith in 1990 The question was whether there was a substantial burden to the exercise of the right of religion What was at issue was the government‟s refusal to make and exception The challenger was never saying the regulation should be struck down as unconstitutional Strict scrutiny was used and meant: Govt has a compelling interest in refusing to make an exception Is it the least restrictive means? There was no aspect When strict scrutiny was used, the government usually won. This is very different than right now! Free exercise analysis starting with Smith in 1990: i. We ask whether the requirement at issue is: Neutral (with respect to religion – content neutral) AND Generally applicability The two prongs are interrelated and the failure to satisfy one requirement is a likely indication that the other has not been satisfied If both prongs are met, then the free exercise challenge fails This is NOT strict scrutiny ii. Bottom line – if we have a neutral and generally applicable legal requirement, we are not going to make an exception for someone who tells us that it‟s against their religion 1. Ex: drivers license photo iii. Government no longer has to have a very important reason!!!
Used to, the government at least had to have a justification and they would still win a lot of the cases!! This cut the heart out of the Free Exercise Clause. So much so, it makes hard for an individual to prevail. e. Is there any situation to use strict scrutiny in free exercise problem? i. If the law is not neutral because it discriminates on the base of religion (content based) or its not generally applicable This is the strict scrutiny that we are used to now The use of strict scrutiny is rare in Free Exercise Clause cases ii. When we have an administrative agency that has a system in place for individual exemptions for benefits, it may not refuse to extend that system to cases of religious hardship without a compelling reason. See Sherbet Modified strict scrutiny is used to evaluate the refusal to provide an exception by the governmental actor Compelling interest Least restrictive means