Political Speech:

Buckley v. Valeo – Issues the court must decide

 Contribution limits (Caps $ given directly to a candidate)
 Expenditure limits (Caps $ spent on behalf of candidate)
 Disclosure requirements and public financing of presidential elections
Does $=Speech?
 Courts views: virtually every means of communicating in today’s society requires the expenditure of money from the distribution of the humblest
handbill to the expensive modes of communication
Is there a difference between making a contribution (giving money) or expending money to pay for ads for the same candidate?
 YES…although both ‘impose direct quantity restrictions on political communications
o Expenditures represent “substantial” restraints
o Contributions represent “marginal” restraints
 So, court upholds contribution limits but strikes down expenditure limits
Justification for limits…prevent pro quo corruption
Disclosure Requirements…provides valuable info for voters, detect actual corruption and avoid the appearance of corruption by exposing large contributions to
public, means of gathering info to detect violations of contribution limits
Buckley Holds…
 Contribution limits constitutional, disclosure agreements constitutional, public financing of pres. Elections constitutional
 Expenditure limits unconstitutional…also expenditure limits on candidate’s personal funds are unconstitutional
Citizens United v. FEC - By a 5-4 vote, Court found McCain-Feingold abridged Citizens’ First Amendment freedoms, Court holds independent corporate
expenditures from general treasury funds cannot be limited, court uphold disclosure requirements
Equal Opportunity Provision –
 Section 315 of 1934 Communications Act
 If a broadcast entity offers time to any qualified candidate, equal opportunity (not time) must be afforded other qualified candidates
 Does not include candidate appearances in: Bona fide newscast, news interview, documentary or on-the-spot coverage of a bona fide news event
Who are qualified candidates? – must publically announce intention to run for office, candidates meets legal qualifications, must have qualified to be on the
ballot of publically committed to being a write-in
Commercial Speech - Government need only demonstrate a “substantial” or “important” interest
Political Speech - Government must often demonstrate “compelling” interest to justify restriction
Lower status of commercial speech
 Falsehood in political arena
o Considerable falsehoods tolerated in political arena
o Censorship is viewed as worse than false political speech
 Falsehood in commercial arena
o Gov. may constitutionally ban false or misleading commercial promotions
Regulating commercial speech – sources of regulation in advertising
 Self-regulation (by industry), federal regulation (Federal Trade Commission), State law
Virginia Board of Pharmacy
 Legal Reasoning
o “Where a speaker exists…the protection afforded is to the communication, to its source and to its recipients both”
 Court recognizes reciprocal nature of speech
o Freedom of speech includes the right to receive information
Central Hudson
Is the speech commercial expression protected by the First Amendment?
o Accurate? Promote a lawful product or service?
Government must assert a substantial interest in regulating expression
o Often met on grounds of preserving health, safety, aesthetic quality of the community
Whether the regulation directly advances the governmental interest asserted
o Is there a rational connection between the law and what the government is trying to achieve?
Government must have evidence that the law will do what it is intended to do.
o Court then determines if the regulation is sufficiently narrow
o Are there less restrictive ways for the government to achieve the same result?

Unfair – one that causes or likely to cause substantial injury to consumers which is no reasonably avoidable by consumers themselves and not outweighed by
countervailing benefits to consumers or to competition
Deceptive – likely to mislead a reasonable consumer with a material statement or omission
o Prospective – FTC can provide staff opinion letters, advisory opinions, industry guidelines and rules
o FTC can halt advertisements – consent decrees, cease-and-desist orders, injunctions
o FTC may also order corrections – disclosures or corrective advertising
Obscenity and Indecency
O: Obscenity- A narrow class of hard-core pornography so offensive and so lacking in social value as to be denied First Amendment protection Unprotected in
all media
I: Indecent materials are less graphic or erotic than obscenity fully protected in print media and on internet but may be restricted in more intrusive broadcast
media (e.g. network tv, radio)
Miller Test- must meet all three steps
o Step one: An average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest
o Step two: Work must depict sexual conduct in a patently offensive manner specifically defined by law
o Step three: the work taken as a whole lacks SLAPS (serious, literary, artistic, political, scientific value)
FCC v. Pacifica – Supreme courts rationale for allowing more gov. interference in broadcasting
o Limited # of frequencies make the airwaves scarce
o Owners of broadcast stations have a fiduciary responsibility to the public
o Prevents those who have money from dominating marketplace of ideas
 o Broadcasting is an “intrusive” medium – it’s hard to escape or shield children from it
Pacifica – George Carlin “Seven dirty words” – FCC can regulate broadcast speech that is indecent but not legally obscene
Media & The Judiciary
Ways to limit prejudicial publicity
o Change of venue (move trial)
o Change of venire (import jurors)
o Expand voir dire (enlarge jury selection)
o Continuance of trial (delay it)
o Sequester the jury (shelter it)
o Admonitions to the jury (educate it)
When is a gag order appropriate? 3 part test for justifying prior restraint????
o An examination of the nature and extent of the pretrial news coverage.
o Whether there are alternative ways to alleviate the effects of pretrial coverage.
o How effective a gag order would be in preventing an unfair trial.
Can the press be gagged? In practice it is difficult for judges to gag the press, to justify a gag. Less-restrictive alternatives would have to be ruled out
Richmond Newspapers v. Virginia
o The Court held that the right to attend criminal trials was "implicit in the guarantees of the First Amendment."
o The First Amendment encompasses not only the right to speak but also the freedom to listen and to receive information and ideas.
o Historically, presumption that criminal trials in U.S. will be open to the public.
Important Cases
Near v. Minnesota 1931 -- Effectively ends prior restraint
NY Times v. Sullivan 1964 -- Sets forth actual malice standard, thus giving wide latitude for press to cover public officials
NY Times v. U.S. 1971 -- Press couldn’t be suppressed from publishing Pentagon Papers
Richmond Newspapers v. Virginia 1980 -- Recognized constitutional right of press to access information (court proceedings)
Florida Star v. B.J.F. 1989 -- Press enjoys virtually unlimited protection when publishing information of public importance if info is truthful and lawfully
obtained
Bartnicki v. Vopper 2001 -- Media aren’t liable when disseminating info illegally obtained (if third party violated the law)
State law of reporters privilege – statutes: “shield” laws, constitutions…limited common-law privilege
Branzburg v. Hayes- U.S. Supreme Court rejected blanket reporter’s privilege to refuse to testify before court proceedings.
o First Amendment does NOT give journalists immunity from the law.
o However, close 5-4 decision sent mixed message to lower courts.
o Majority opinion
o No evidence that refusal to recognize privilege would hinder the ability of press to disseminate news
o Assertion of privilege wasn’t even made until 1958, yet the press flourished
o Effect of branz on lower courts However, some lower state courts have recognized reporter’s privilege and adopted the dissent’s rationale for non-grand
jury proceedings
Dissent -- Right to publish is central to 1st Amend, Corollary right to publish must be right to gather news, Right to gather news implies a right to confidential
relationship
Branzburg 3-part test – Reporters should be compelled to testify if:
1. Probable cause reporter has info clearly relevant to a specific violation of law
2. Info cannot be obtained by other means less destructive to First Amendment
3. There is a compelling and overriding interest in the information
FOIA Freedom of information act – passed in 1966 as a bipartisan effort to increase public access to federal documents
o Amended in 1996 via Electronic Freedom of Information Acts…extended open records law to digital info held by fed. agencies
o Requires federal agencies to provide any person access to records that are not specifically exempted
o Applies to any executive department, military department, agency, gov’t controlled corp. (e.g. U.S. Postal Service) or other establishment of the
executive branch
o Doesn’t apply to the President, Congress or federal courts
o Exemptions: national security, agency rules and practices, statutory exemptions, catchall – anything congress has exempted, confidential business info,
financial info of regulated businesses, internal documents (personnel, medical, similar files)
o Be aware that states provide similar access in the form of state “sunshine” laws
Public records: County property listings, Mug shots of inmates in the county jail, Salaries of public employees, Donations to political candidates, Court
information, People who have filed for bankruptcy, Agendas and minutes of public meetings

Hypothetical Case:
A. – Briefly discuss the “competing” constitutional rights East must consider.
a. First amendment right of press vs. 6th amendment right of defendant
i. 6th: guarantees the right to legal counsel at all significant stages of a criminal proceeding. This right is so important that there is an
associated right given to people who are unable to pay for legal assistance to have counsel appointed and paid for by the
government.
B. – Identify and briefly describe four options East may take to limit the possible effects of prejudicial publicity.
a. Change of venue, change of venire, enlarge jury selection, continuance of trial, sequester the jury (shelter), admonitions to the jury (educate)
C. – East’s trusty assistant, Dr. Dre, tells East news media have no constitutional right to even be in the courtroom, and advises East to simply close
pretrial proceedings and the trial to all media. Briefly discuss whether Dre is correct that the press enjoy no constitutional right to attend and report on
a trial? Justify your response.
a. No, see Richmond Newspapers with reasonable explanation why we have open court proceedings.
D. – East decides to allow print reporters to attend pretrial proceedings, but “gag” them from publishing anything obtained during pretrial proceedings.
Discuss and decide if East is permitted to take these actions.
a. Not likely. Per the Court’s position in Nebraska Press Assoc. v Stuart, the judge would have to examine:
i. An examination of the nature and extent of the pretrial news coverage. Whether there are alternative ways to alleviate the effects
of pretrial coverage, how effective a gag order would be in preventing an unfair trial, in line with the second prong, he would have
to first try alternative ways to combat pretrial coverage less destructive to the rights of the press
Freedom of the press protects the right to obtain and publish information or opinions without government censorship or fear of punishment.