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Law School Legal Outline Notes for Constitutional Law VI

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Law School Legal Outline Notes for Constitutional Law VI Powered By Docstoc
					I.

EQUAL PROTECTION A. INTRODUCTION AND OVERVIEW – 01-08-01: SEE Other Outline Mag’s Summary: a. 1A: 1) speech 2) religion b. Equal Protection - 14A (include state action and congressional enforcement). Mag’s Questions: Textual Sources:  p628-635  Chem at 526-532 Link to Last Semester: a. Divided govt is best mechanism to protect individual rights. b. Structual provisions of the Constituion (federalism, separation of powers, judicial review) can be seen as features of Constitution designed to protect individual rights. 14A Generally: a. New doctrine: not important until 20 th Century b. Initially 14A only applied in racial discrimination context – this initial limit effects development of 2-tiered scrutiny level (rational or strict) c. Factors to Determine scrutiny level. 1) Suspect classification: characteristic/identity of claimant 2) Fundamental interest: what is the benefit/burden this is being distributed unequally? d. Scope of Application: E/P allpies to states (14A) and federal govt (5A) and private action (maybe). e. Criticism of 2-Tiered Approach: 1) Making judgments and masking as constitutional decision 2) Marshall- should be a sliding scale--650 3) Stevens- one equal protection clause, one standard

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B. SCRUTINY OF MEANS IN ECONOMIC REGULATIONS: THE RATIONALITY REQUIREMENT – 01-10-01:

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Mag’s Summary: a. Over-and under-inclusive regulations (see graphic).

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Rationale Basis Test: .

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Mag’s Questions: Textual Sources:  P635-661  Supp at 78  Chem at 522-545 Equality is Difficult to Define – Use Under- and Over-Inclusiveness to Help Under-Inclusive  Law attacks only portion of people responsible for the problem  Unequal b/c burden is unfairly distributed  Rationale: (1) have to draw line somewhere; (2) no time, $ for research. Over-Inclusive  Law too broad - covers some who are not responsible for problem.  Rationale: (1) admin costs; (2) political compromise (politically unpopular group that you want to nail or does not fall on favored political group); (3) difficult to draw lines and problem is very significant; (4) spread cost so burden of compliance

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Railway Express (639) NY statute limiting ads on truckscan‘t put ads for others on your trucks

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Label May Not Effect Rational Basis Review: a. b. Even if court finds law is under or over, may still upheld under rational basis. Law can be both.

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Which is Worse? a. over-inclusive- denies benefit to some innocent bystanders b. under-inclusive- targets those responsible, but lets some guilty people off hook Rational Basis Review: a. Definition: b. Pros: 1) Deference - separation of powers

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2) Limited judicial review 3) Deference - federalism Arguments for stricter ―rationality review‖: 1) correct for systematic disadvantages- Douglas- Carolene Products fn – 644 2) prevent ―naked‖ preferences - Sunstein - naked political power not acceptable 3) require actual justification – Gunther- make government provide justification

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Cases

C. SUSPECT CLASSIFICATIONS: INTRODUCTION TO RACIAL DISCRMINATION – 0112-01: 1. Mag’s Summary: a. Theories of Inequality – what do we mean by ―inequality‖?

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1) Oppression of Minority 2) System of ―White Supremacy‖ 3) ―Color Consciousness‖ Evils – what evils are we trying to eradicate? 1) Racial animus (intent) 2) Discriminatory effects

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Mag’s Questions: Textual Sources:

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D. THE PURPOSE-IMPACT DISTINCTION IN THE SCHOOL DESEGRATION CONTEXT – 01-15-01: 1. Mag’s Summary: a. Two Themes from the Remedial Desegregation Cases: 1) De Facto v. De Jure Segregation: a) What‘s the evil?

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b) Green  Swann  Keyes  Milliken 2) Federalism and Finality: see Dowell. 2. 3. Mag’s Questions: Textual Sources:

E. AFFIRMATIVE ACTION IN EDUCATION – 01-17-01: 1. Mag’s Summary: a. Three Issues in Bakke: 1) Level of E/P scrutiny: implicates theory of equality arguments among the justices. 2) Ends: governmental interest behind AA cases. 3) Means: appropriate use of race-based criteria.

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2. 3.

Mag’s Questions: Textual Sources:

F.

AFFIRMATIVE ACTION IN EMPLOYMENT AND CONTRACTING – 01-19-01: 1. Mag’s Summary: a. Affirmative Action Post-Bakke: 1) Federal v. state programs (Fullilove and Adarand) a) Is this distinction principled? b) This distinction diminishes in importance as time goes by. 2) Elaboration of ―color consciousness‖ rationale: a) Croson: ―equal dignity and respect‖; ―politics of racial hostility‖.

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2. 3.

Mag’s Questions: Textual Sources:

G. SUSPECT CLASSIFICATIONS: GENDER DISCRIMINATION – 01-22-01: 1. Mag’s Summary: a. Why heightened scrutiny? Why not strict scrutiny? b. Actual differences? 1) Formal v. functional equality. Mag’s Questions: Textual Sources:

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H. SUSPECT CLASSIFICATIONS: GENDER DISCRIMINATION AND THE MODERN COURT – 01-24-01: 1. Mag’s Summary: Invidious Race Strict (Korematsu and Loving) Intermediate (Craig v. Borden) Benign Strict (Bakke and Adarand) Intermediate (Miss. v. Hogan and US v. Virginia)

Gender

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Mag’s Questions: Textual Sources:

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SOME OTHER POSSIBLE SUSPECT CLASSIFICATIONS: MENTAL INCAPCITY AND SEXUAL ORIENTATION – 01-26-01: 1. Mag’s Summary: a. Conventional Tiered Scrutiny: 1) Emphasis is on the characteristic: a) Suspect  heightened (govt. likely to lose). b) Non-suspect  rational (P likely to lose): (1) But see Justice White’s variation which requires serious ends scrutiny. b. Stevens’ Approach: 1) Emphasis is on the particular use of the characteristic: a) Rational  P loses. b) Irrational  govt. loses. Mag’s Questions:

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Textual Sources:

J.

EQUAL PROTECTION AND ―FUNDAMENTAL INTERESTS‖ - 01-29-01: 1. Mag’s Summary: a. [Possible categories of] fundamental interests under the E/P Clause: 1) Access to the polls. 2) Ability to travel interstate. 3) Access to the courts (see notes for 01-31-01). 4) Public education (see Rodriguez and Plyler). Mag’s Questions: Textual Sources:

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K. EQUAL PROTECTION AND ECONOMIC INEQUALITY – 01-31-01: 1. Mag’s Summary: a. E/P and Wealth /Poverty: 1) Wealth/poverty as suspect classifications? Why or why not? To what extent? 2) As a fundamental interest? Mag’s Questions: Textual Sources:

2. 3.

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II. STATE ACTION AND CONGRESSIONAL POWER TO PROTECT PERSONAL RIGHTS: A. CIVIL RIGHTS LEGISLATION AND STATE ACTION I – 02-02-01 AND 02-05-01: 1. Mag’s Summary: a. Post Civil War Amendments: 13A 14A 15A b. Subject Slavery E/P Due Process Privileges or Immunities ??? State Action Requirement? No Yes Yes

State Action Tests: 1) Public function test. 2) Nexus text (more commonly used). Possible Categories of State Action Nexus: 1) Lease (Burton)

c.

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2) 3) 4) 5) 6) 2. 3.

License (Moose Lodge) Encouragement/endorsement (Reitman) Authorization (Jackson and Flagg Bros.) Regulation (Blum and Rendell-Baker) Privatization?

Mag’s Questions: Textual Sources:

B. CONGRESSIONAL POWER TO REACH PRIVATE INTERFERENCES WITH CONSTITUTIONAL RIGHTS – 02-07-01: 1. Mag’s Summary: Private Under Color of State Law Mag’s Questions: Textual Sources: Criminal 18 USC § 241 18 USC § 242 Civil 42 USC § 1985(3) 42 USC § 1983

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C. CONGRESSIONAL POWER UNDER SECTION 5 OF 14A: VOTING RIGHTS CASES – 02-12-01: 1. Mag’s Summary – Congressional Enforcement Power Cases: a. South Carolina: literacy test ban – remedial. b. Morgan: literacy test ban – remedial or substantive? c. Mitchell: 18 year old to vote - remedial or substantive? d. Rome: denial of preclearance - remedial or substantive? Mag’s Questions: Textual Sources:

2. 3.

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D. SCALING BACK THE SECTION 5 POWER: ―CONGRUENCE AND PROPORTIONALITY‖ – 02-14-01: 1. Mag’s Summary - Congress’ Section 5 Power: a. South Carolina – strong remedial power. b. Rome – strong remedial power. c. Morgan – substantive power?? d. Boerne - ―congruence of proportionality‖; weakened remedial power. e. Kimel - ―congruence of proportionality‖; weakened remedial power. Mag’s Questions: Textual Sources:

2. 3.

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III. THE FIRST AMENDMENT: FREEDOM OF EXPRESSION:
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FREE SPEECH: HISTORY, THEORY AND JURISPRUDENCE – 02-16-01: 1. Mag’s Summary: a. Theories for why IA protects speech: 1) Self Government: free speech contributes to effective system of self-government – intricately tied to American government system. 2) Marketplace of Ideas: a) Compare regulation of the economic marketplace with regulation of the speech marketplace. b) Free speech facilitates the search for the truth. 3) Personal Fulfillment: a) Compare categorization and balancing approaches. Mag’s Questions: Generally: a. Text of 1A: ―Congress shall make no law abridging the freedom of speech‖ b. NOT an absolute right- some speech must be limited (bribery, libel, etc.) – must be able to draw lines b/w prohibited regulation of speech and allowed regulation of speech. c. Also watch theme of catergorization v. balancing – different ways to draw line b/w what is and is not protected – p1033-34. 1) Balancing: a) Good b) Bad: too flexible, no guidance. c) Definitional balancing:

2. 3.

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d.

(1) Sometimes the scrutiny standards function more like categorization than balancing: strict scrutiny review acts like a category in P‘s favor whiel rationality review acts like a category in govt‘s favor 2) Categorization: a) Good: provides clarity and guidance. b) Bad: not have adeqaute examination. Examples for the rest of class discussion: 1) large corporation opposes universal health care 2) public display of Mapplethorpe 3) article about the joys of hang-gliding

4.

Self-Government a. Definition: 1) Would avoid viewpoint discrimination. 2) Town-meeting model 3) Rationales accord. to Meiklejohn – free speech facilitate self-government b/c: a) Informs and improves making of public policy - b/c speech leads to informed and vigorous debate and thus, help govt to arrive at the ―best‖ policy choices; b) Prevents govt from enttrenching itself indefinitely; c) Prevents govt abuse of power; d) Promotes political stability by providing safety valve for dissent. 4) This is MIRROR IMAGE of personal-fulfilment theory. b. Is protecting right to speak or right to hear ideas more important? 1) Right to hear all ideas is more important: as long as all the ideas get out there, it does not matter who says them – no right for each individual to repeat an idea already out there. c. Is Speech protected as a means to an end or is speech protected for itself? 1) Speech is protected as a means to an end – end is self-govt: speech not protected for its own sake. d. Criticism: 1) Incomplete and too narrow: did not inititally include art and lit - limited to draw lines on what is and is not political speech. e. Which of three examples protected? 1) Political advertisement by large corporation opposes universal health care: yes but there may be an argument against it on quantity grounds (this view is already on the table). 2) Public display of Mapplethorpe: Meiklejohn orignially did NOT include art and literature in his theory but later added them if it helps public cast informed vote a) Shows that a theory of 1A that does not include art and lit will not satisfy many people. 3) Article about the joys of hang-gliding: probably not b/c this is not an ―idea‖ that will aid self-government. Marketplace of Ideas a. Definition: 1) Metaphor – job of 1A is to search for and arrive at truth. 2) There is no objective truth so we have to debate through expression of all ideas, we can determine what is true and know more conclusively that the idea is true. 3) False, unappealing ideas will die in marketplace. b. Is protecting right to speak or right to hear ideas more important? 1) Both are equally important. c. Is speech protected as a means to an end or is speech protected for itself? 1) Both. d. Criticism: 1) Truth is a malleable concept - difficult to define.

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e.

2) Assumptions underlying theory do NOT fit contemporary society a) Perhaps the metaphor is flawed - economic markets are different than an idea market. b) Campaign finance: doesn‘t this mean wealthy people are getting more ideas in and precluding other ideas from entering. 3) Court skeptical of government regulation of ideas so takes a hands-on approach. Which examples are protected? 1) Political advertisement by large corporation opposes universal health care: probably BUT . . . campaign finance concerns. 2) Public display of Mapplethorpe: maybe/maybe not - could just be the reflection of an individual‘s consciousness. 3) Article about the joys of hang-gliding: tough

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Autonomy/Personal Fulfilment: a. Definition: 1) Value speech as a way to determine your own destiny - focus on the value to the individual. 2) Only protects individuals. 3) This is MIRROR IMAGE of self-govt theory. b. Is protecting right to speak or right to hear ideas more important? 1) Protects both the right to speak and the right to listen c. Is Speech protected as a means to an end or is speech protected for itself? 1) Speech itself has intrinsic value (distinct from other two theories). d. Criticism: 1) Where do you draw the line on individual fulfilment – blackmail may be fulfilling. 2) Race to the botton theory: if we have a theory that protects everything, than nothing ends up being protected – broader class of protection means courts will more likely water down the quality of protection avaliable – this is why Meicklejohn drew line elsewhere. 3) Cannot have effective self-govt b/c every individual will think his interests trump. e. Which examples are protected? 1) Political advertisement by large corporation opposes universal health care: a) Corporation not an individual for this purpose - but perhaps individual shareholders are expressing their views. 2) Public display of Mapplethorpe: contributes to the self-fulfillment of artist and viewer BUT tension b/w personal fulfillment and personal revulsion. 3) Article about the joys of hang-gliding: contributes to the self-fulfillment of participant. Textual Sources:  p1022-1034.  Chem – p748-800.

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A. UNPROTECTED AND LESS PROTECTED EXPRESSION: Incitement to Lawless Action I: World War I and the Red Scare – 02-19-01: a. Mag’s Summary - Incitement: 1) 3 tests for when government can punish speech that incites without violating 1A: a) Holmes in Schneck – ―clear and present danger‖ b) ??? Learned Hand in Masses: c) Holmes in Abrams – immediate danger, specific intent. d) Brandeis in Whitney – immediate, serious violence against the state expected or advocated. Mag’s Questions: ??? Which is most speech protective? 1) Learned Hand in Masses: 2) Brandeis in Whitney – immediate, serious violence against the state expected or advocated. 3) Holmes in Schneck – ―clear and present danger‖ 4) Holmes in Abrams – immediate danger, specific intent. Holmes in Schneck v. US (US 1919) Holmes – p1036 – ―clear and present danger‖: 1) This test is moderately speech protective at best. 2) Test: punishing speech is permissible when there is a clear and present danger that speech will bring about unlawful action (one which Congress has a right to prevent). a) Application: (1) Clear: (a) Obvious, apparent, direct relationhip b/w speech about the issue and object/aim govt is trying to protect. (b) Causation – speech cause harm. (c) This is strongest part of test in this case. (2) Present: (a) Danger is immediate, proximate in time – cannot be remote.

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(b) Weak part of this test in the earlt formulation (Holmes will strengthen it later). (3) Consider speech in circumstances—we were at war. e. Holmes’ dissent in Abrams v. US (US 1919) – Clark – p1040 - ―immediate danger, specific intent‖. 1) Facts: guy advocating workers to stop making weapons to be used against Russia (US at war with Germany). 2) Held: upholds conviction. 3) Reason: not relevant that guy was talking only about Russia, we were still at war 4) Holmes‘ dissent: a) Statute (Espionage Act) requires intent. b) This was a ―silly leaflet by an unknown man‖ c) Adds stronger immediacy requirement – made test more speech protective then Schenck but Holmes also seems to be differentiating based on who is talking. d) Relies on marketplace of ideas metaphor – people should not be punished for their beliefs. 5) Compare to Masses Publishing Co. v. Patten (SDNY 1917) - Learned Hand – p1046. a) Facts: guy on trial for espionage for his paper with political cartoons. b) Held: struck down conviction. c) Reason: (1) Goes through the statute provision by provision. (2) Causation: speech must urge upon others that it is their duty to act - narrow construction. (3) Incitement: implies strong causal relationship - like lighting a fuse. (4) Expressions of opinion are NOT actionable. (5) Interpretation of 1A: strong, living document that trumps many state interests. d) Significance: provides alternative approach to interepreting the Espinoage Act. (1) Whereas Holmes focused on proximity of danger (likelihood that speech would produce danger), Hand focused on content of the speaker’s words. (2) Hand also focuses on precise causation. (3) *** Criticizes Holmes for setting up a conumdrum (accord to Holmes, speech is protected as long as it is not going to accomplisy anything) – this is not a strong 1A test. (4) Hand thought ―clear and present danger‖ test was too slippery in practical administration. Brandeis’ concur in Whitney v. CA (US 1927) - Sanford – 1054 - ―immediate, serious violence against the state expected or advocated‖: 1) Facts: woman member of communist party advocates a moderate position, but the radical overthrow position wins the day. She is prosecuted under state criminal syndicalism statute. State statute has specifically outlawed the advocating of force to overthrow the government 2) Held: majority upholds the statute and conviction (relying on Gitlow - workers of world case where court defers to legislative judgment of state). 3) Brandeis‘ concur: creates the doctrine that carries through to the present day a) Test: (1) Causation has to be tight. (2) Immediacy concept is very strong (a) ―must be reasonable ground to believe that the danger apprehended is imminent.‖ (b) Immediate means there is no room for debate (when there is no time for discussion, then govt can prohibit).

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(3) Nature of danger/evil: ―there must be reasonable ground to believe that the evil to be prevented is a serious one.‖ (a) Most pressing importance  Fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression.  There must be the probability of serious injury to the state (b) Serious danger to the STATE. (4) Intent: ―immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.‖ b) Most speech protective reaching version of incitement test: (1) ―no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.‖ c) Correction for false speech = more speech (marketplace for ideas) BUT if there isn‘t time for corrective action, then the state needs to step in and impose a cooling off period. g. Other Cases: 1) Fiske v. Kansas (US 1927) – Sanford – p1060: a) Held: state criminal syndicalism statute unconstitutional b) Reason: really rested on due process grounds- insufficient evidence for court to draw inference. 2) DeJonge v. Oregon (US 1937) – CJ Hughes – p1060: a) Held: reversed conviction based solely on first amendment b) Reason: participating in communist party meeting not enough for conviction 3) Herndon v. Lowry (US 1937) – Roberts – p1060: a) Held: reversed conviction of black communist in south – advocating selfdetermination for blacks b) Reason: no evidence of subversion or incitement and statute vague. Textual Sources:  p1034-1060.  Chem – p802-814.

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Incitement to Lawless Action II: Smith Act Prosecutions and the Modern Test – 02-21-01: a. Mag’s Summary – Elements of a Speech Protective Incitement Test: Brandeis’ Factors Intent or expectation Likelihood of action Imminence Seriousness of harm Action runs against state Mag’s Questions: Current Test: 1) Brandenberg is current state of law - speech protective incitement test. 2) Elements of Brandenberg: requires direct incitement to imminent lawless action. a) Intent/expectation b) Likelihood of action/probability c) Imminence d) Seriousness of harm e) Harm to state 3) Still a question as to whether C&PD test is anathema to 1A (this is question raised by Black and Douglas in concurrences in Brandenberg). 4) Context: cases in this section involve federal criminal syndicalism statute- Smith Act. The Smith Act Prosecutions - Dennis v. US (US 1951) – CJ Vinson - p1061: 1) Facts: prosecution of big leaders of Communist party 2) Held: upheld convictions. Dennis? NO NO NO YES YES Brandenburg? YES YES YES YES (YES)

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3) Reason a) Court (alters?) applies a balancing test version of Dennis: balance gravity of the harm to state (discounted by its improbability) and the interest of the speaker. (1) This was test set out by Learned Hand in court below. (2) Is the imminence requirement met? Court says it does not matter if anyone actually attempts to overthrow govt, the danger of communism is so great that the mere threat is enough. b) Court moves away from Whitney even though purporting to apply same test. c) Sort of a presumption of ―present‖ if clear element is met. d) Waters down the clear and present test. e) Were Justices fearful of McCarthy? 4) Jackson‘s concur: a) Dual standard: (1) Individual agitators: keep old C&PD test. (2) Large organizational agitators: use a balancing test when threat comes from a large organization like the Communist party – CP&D not apply here. 5) Frankfurter‘s concur: a) Likes the balancing approach. b) Strong deference to legislative judgment (policy). c) Judicial restraint - only step in when no rational basis for legislative judgment. 6) Black‘s dissent: a) Says the only way to affirm these convictions is to reject the C&PD test. b) This test is a rational basis test and thus, only protects speech that doesn‘t need protection. c) Very speech protective justice. 7) Douglas‘ dissent: a) Defendants were teaching doctrine that is available at public library 8) Retreat from Dennis: after Dennis, McCarthy dies and anti-communist fervor dies with him. Several note cases about prosecutions of lower level members of party and states attempted use of ―membership‖ clause of statute. 9) Learned Hand: how could the author of Masses (written 2 years b4 Court established C&PD test) have upheld these convictions – probably b/c he thought he was following Court precedent. e. The Modern Incitement Test – Brandenburg v. Ohio (US 1969) – Per Curiam – p1071: 1) Facts: leader of a KKK group prosecuted for advocating duty, necessity…crime, violence, terrorism, or voluntarily getting group together to advocate that. 2) Held: 3) Reason: a) Summation of Dennis and its progeny: ―These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.‖ (1) This is not an accurate summation, but the court is moving toward a more protective standard. (2) This reflects a tolerance for advocacy of lawless action b) Court overrules Whitney: (1) Rejects notion that a legislature may conclusively presume an entire category of speech dangerous without regard to individual context and ciccumstances c) Distinguish ―teaching doctrines‖: relies on Noto (note case) for proposition that teaching doctrine is not same as preparing group for violent action. d) Flavor of marketplace of ideas‖ theory

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4) Black‘s concur: reject the clear and present danger test as articulated in Dennis but supports standard set out here. 5) Douglas‘ concur: reject the clear and present danger test as articulated in Dennis in times of peace but supports standard set out here. f. Later Applications of Brandenberg Test: 1) Hess v. Indiana (US 1973) – p1074: overturn conviction of student agitator on basis of lack of imminence. 2) NAACP v. Clairborne Hardware Co. (US 1982) – Stevens - p1074: a) Held: court overturned damage award against Evers – for his role in advocating economic boycotts of white businesses. b) Reason: (1) Legal actions: Court noted the acts were legal - boycotts. (2) Fails ―imminence‖ requiremnt: violent acts that did follow were long time after. (3) Mere advocacy of violent acts not enough to make speech unprotected. Deference to legislative judgments as to dangerousness of speech: 1) Landmark Communications v. Virginia (US 1978) – p1075: deference to legislative judgments not proper when 1A rights at stake. ??? What level of activity, if any, should give rise to liablity for a ―conspiracy to overthrow the government‖? 1) Abstract advocacy: probably not. 2) Formation of a group: probably not. 3) Conception of specific plan: maybe. 4) Some preparation: yes. 5) Overt action: yes. 6) For what, if any, purposes may a liberal democracy properly punish adovacation of the overthrow of govt? Textual Sources:  P1060-1076  Chem - p802-814

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h.

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Fighting Words and Hostile Audiences – 03-05-01: a. Mag’s Summary: 1) Brandenburg - incitement is unprotected BUT . . .: a) Government can prohibit inciting speech when: (1) Knowledge or expectation; (2) Imminent and lawless action; (3) Serious threat; and (4) Threat has to run against the state. 2) Cohen – fighting words are unprotected BUT . . .: a) Key holdings (1) Government may restrict fighting words to perserve order but NOT morality. (2) ??? Government may restrict fighting words directed against a specific person. (3) Emotive character of speech is protected. 3) When does governmetn regulation of speech become govt regulation of ideas? b. c. Mag’s Questions: Fighting Words: 1) Analytical Approach = Categorization: categorically excluded from 1A protection. 2) Compare to Incitement: a) Incitemen dealth with speaker inciting audience to act against govt. b) Fighting words and hostile audience deal with speaker inciting audience to act against the speaker. 3) Key Principles From the Cases: a) Cantwell/Chaplinsky: (1) speech that injures or threatens breach of peace (2) regulation to preserve order or morality b) Cohen: (1) Emotive character of speech protected (2) Speech must be directed at a specific individual (3) Regulation to preserve order only (4) Court tends to limit fighting words to those that cause a face to face provocation to a brawl 4) Background of Fighting Words: a) General Principles from Cantwell and Chaplinsky:

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(1) Fighting Words Defined: fighting words by their very utterance inflict injury or tend to incite an immediate breach of the peace (p1078) (2) Fighting words have low social value. (3) Govt can regulation speech to preserve order. (4) Govt can regulation speech to preserve public morality (this changes in Cohen). b) Cases: (1) Cantwell and Chaplinsky result in different outcomes but are constitent. (2) Cantwell v. Conn (US 1940) – Roberts - p1076: (a) Facts: Jehovah‘s witness on street corner ripping on Catholics. Moved when asked. Did NOT get noisy, overbearing, offensive, no threat of bodily harm, no intent to ―insult or affront‖ audience. No state law involved. (b) Held: Court overturned his conviction (c) Reason i. Implied that if he did not move when asked, he might have been guilty. ii. Questions to think about: Would court have more room to proscribe speech if listener threatened to assault? If speaker knew, or should have known, his speech would incite? (3) Chaplinsky v. NH (US 1942) – Murphy - p1077: (a) Facts: state law involved (b) Held: Court upheld conviction of Jehovah‘s witness (under state statute) for words ―civil servants are fascist bastards‖ (c) Reason: i. D did get noisy, overbearing, offensive, no threat of bodily harm, no intent to ―insult or affront‖ audience. ii. State law involved. iii. ―It has been well observed that such utterances are no essential part of any exposition of ideas, and 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 interest in order and morality. ‗Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution.‘ (citing Cantwell). iv. Analysis has elements of categorization and balancing (1078). (d) Other Holding: fighting words are not protected - still good law for that part, but the zone in which fighting words applies has been limited by Cohen.) 5) Current Approach: a) Cohen v. CA (US 1971) – Harlan - p1081: (1) Facts: ―Fuck the Draft‖ case - written on jacket worn in federal courthouse. No issue of conduct- case only involved speech (2) Held: overturn conviction. (3) Reason: (a) Emotive character of speech protected. (b) Govt cannot regulate to preserve public morality - Privacy/captive audience: i. We are often captives outside the sanctuary of the home and subject to objectionable speech. ii. The ability of government, consonant with the Constitution to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. iii. People can avert their eyes.

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(4) Blackmun’s dissent: (a) This was NOT speech, it was conduct. (b) Can be regulated under Chaplinsky. b) Principles From Cohen: (1) Court, in Cohen, tries to distinguish Chaplinsky BUT departs significantly from doctrine of Chaplinsky. (2) Govt can restrict speech to perserve order BUT not to perserve public morality. (a) Rationale: concern about govt regulation of ideas. (b) Instead, avert your eyes. (3) Speech must be directed against a specific purpose if govt is going to regulate it. (4) Emotive character of speech is also protected (b4 Cohen, this did not seem to be true) – see quote on p1084. d. Hostile Audience: 1) Generally: a) Arises when audience is provoked either by the form of the message or by the message itself. b) ??? Analytical approach = balancing (because it is not the form of the speech that is pivotal) 2) Terminello v. Chicago (US 1949) – Douglas - p1085 a) Held: Court reversed conviction - but on error in jury instruction. b) Reason: (1) Free speech under our system of government is to invite dispute. (2) Uses clear and present danger test- maybe modified. 3) Feiner v. NY (US 1951) – CJ Vinson - p1086: a) Facts: guy on street encouraging people to come to rally, advocate rights for blacks, call president a bum. Guy in audience says to police ―if you don‘t get him, I‘m going to throw him off the street.‖ b) Held: Court upheld the conviction but said that it was because of the reaction to his speech, not the actual speech. c) Black’s dissent: police should first try to protect speaker 4) Distinguishing Feiner: a) Street demonstrations: (1) Edwards v. SC (US 1963) – p1088: civil rights demonstrators ordered to disperse. Court found violation of First Amendment as applied to state—―the 14th amendment does not permit a state to make criminal the peaceful expression of unpopular views.‖ (2) Cox v. La. (US 1965) – p1088: peaceful demonstrators, civil rights sit ins. Court overturned conviction - no evidence of violence, threats of violence, and no fighting words. (3) Gregory v. Chicago (US 1969) – p1089: like Edwards, can‘t be arrested for refusal to disperse from peaceful rally. b) Permits—are they prior restraint/censorship?: (1) Kunz v. NY (US 1951) – p1090: Court invalidated the permit system here because it was impermissibly standardless discretion. (2) Forsyth County v. Nationalist Movement (US 1992) – p1090: invalidated a permit fee in advance to help cover law enforcement expenses - impermissibly standardless discretion in hands of county administrator (issuer of permits), also - equivalent to heckler‘s veto.

27

c)

Right to heckle: 1) People clapping and chanting during a speech. CA court held that to be a violation the disruption must ―substantially impair[] the conduct of the meeting by intentionally committing acts in violation of implicit customs or usages or of explicit rules for governance of the meeting, of which he knew, or as a reasonable man should have known.‖

5) Who Should Bear the Cost of Ensuring that a ―Hostile Audience‖ Does Not Harm a Speaker – the speaker or the state? e. Textual Sources:  p1076-1091  Chem – p814-828.

28

4.

Hate Speech – 03-05-01: a. b. Mag’s Summary - None: Mag’s Questions: 1) Is there any constittuional justification for regulating hate speech on its content? 2) Was the RAV Court correct to prohibit the govt from choosing to regulate a particular subset of unprotected speech b/c of its content? Were the Court‘s exceptions to this prohibition principled? Did the exceptions ameliorate the practical problems with the prohibition? 3) Was Stevens, concurring in the judhment in RAV, correct to disavow the Court‘s strict prohibiution on ―conten-based‖ regulation of speech? Would Justice Stevens ―more complex and subtle analysis‖ adequately protect against governmental attempts to censor ideas through content-based regulation? ??? General Rules: 1) ??? What is role of overinclusive and underinclusive regulations? 2) Under RAV (now limited to viewpoint-selective laws aimed expressly at otherwise unprotected words or symbols): a) Govt cannot regulate by distinguish between types of speech based on content – but there are 3 exceptions. b) Govt may create an underinclusive regulation of unprotected speech based on criteria other than content (e.g. secondary effects) c) Govt may not create a content based regulation of unprotected speech. 3) Under Mitchell, govt may create a content based regulation of unprotected conduct. Arguments For and Against the Regulation of Hate Speech – p1109. The Current Articulation - R.A.V. v. City of St. Paul (US 1992) – Scalia – p1115: 1) Facts: kids burn cross on lawn of black family and violate city ordinance that bans placing object that he knows or should have known would cause anger, alarm, …on the basis of race… a) Contrast standing requirements for 1A and E/P challenges: (1) 1A: you can make an overbreadth argument EVEN IF your conduct is properly prohibited. (2) E/P: if you make an overbreadth argument, your conduct must be conduct that the government can not constitutionally prohibit. 2) Held: ordiance struck down. 3) General Rules: govt cannot regulate by distinguish between types of speech based on content – but there are 3 exceptions. 4) ??? Exceptions: a) State can prohibit the most extreme in a category: (1) Rationale: when the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. (2) Example: a state might choose to prohibit only that obscenity which is the most patently offensive in its prurience (a) Thus, you can prohibit the most obscene obscenity. (b) BUT, can you prohibit the most obscene fighting words? Can you use one prohibited characteristic to prohibit a different category?

c.

d. e.

29

b) The subclass happens to be associated with particular secondary effects of the speech, so that the regulation is justified without reference to the content of the speech: (1) Example: sexually derogatory fighting words may produce a violation of Title VII‘s general prohibition against sexual discrimination in employment practices. (2) In Title VII case, conduct is prohibited directly, speech is prohibited indirectly. c) Speech can be prohibited on basis of secondary effects. 5) White‘s concur: 6) Blackmun‘s concur: 7) ??? Stevens‘ concur: a) Agrees with Scalia that viewpoint discrimination is bad but disagrees on how to define it. (1) Scalia: statute allows people on one side of argument to use fighting words, but not people on other side (bigots) - Bigots v. equality proponents. (2) Stevens: we prohibit speech based on content all the time – it should be ok to prohibit a part of unprotected speech - Anti-black bigots v. anti-jew bigots. b) Argues that was an example of fighting words and should be able to be prohibited f. Restraining Nazi Demonstrations - National Socialist Party v. Skokie (US 1977) – p1112: 1) Held: Court will not prohibit the display of the Swastika based on fighting words exception to free speech - citizens of Skokie have to avert their eyes. Regulating Racial and Other Bigoted Speech On Campus – the Stanford Experience: 1) CA state court struck down the statute – staute said a private university may not impose limitations on speech that would violate the 1A if imposed by public university. 2) Supreme Court – Stanford standard – overbroad - impermissibly regulates on basis of content (prohibits bigoted insults but not other insults). Distinguishing the Regulation of Hate Speech from the Regulation of Hate Crimes Wisconsin v. Mitchell (US 1993) – CJ Rehnquist - p1123: 1) Facts: state law enhances criminal penalty for bias motivated assault 2) Held: upheld increase in sentence based on state law. 3) Reason: a) Distinguish RAV b/c it dealt with speech and this case deals with prohibited conduct – do I buy this distinction? 4) ??? Significance: limits the holding of RAV to viewpoint selective laws aimed expressly at otherwise unprotected words or symbols. Textual Sources:  p1109-1125  Chem - p

g.

h.

i.

30

5.

Obscenity and Child Pornography – 03-07-01: a. Mag’s Summary: 1) Obscenity is term of art – includes: a) Obscenity – not get 1A protection. b) Child porn – not get 1A protection. c) Regular porn – gets some 1A protection. 2) General Rule: if speech is sexually explicit but it is NOT obscene and does not constitute child porn, it is within the realm of 1A protection but court has struggled with question of whether it should occupy a subordinate position as ―lower value speech‖. 3) Miller Obscenity Test – applied by fact finder – p1133: a) Would the average person, applying contemporary community standards, find that the work, taken as a whole, appeals to the prurient interest: b) Does the work depict or describe, in a patently offensive way, sexual conduct that is specifically defined by the applicable state law c) Does the work, taken as a whole, lack serious value (literary, artistic, political, scientific)? Mag’s Questions: 1) Why is the democratic majority justified in restricting sexually explicit speech based on its content? To how much and what sort of sexually explicity speech do the justifications extend? What reasons, on the other hand, would support striking down most or all restrictions on sexually explicit speech? 2) Does the Miller test provide an adequate basis for placing ―obscene‖ speech entirely outside the protection of 1A?What problems might vairous aspects of the test create? 3) Should the 1A protect material that otherwise fits within the Ferber definition of ―child porn‖ if the material has serious literary, artistic or scientific value? Why or why not? Review of Categorization Approach – unprotected categories of speech: 1) Rationale: outside of First Amendment protection because it is of such slight social value as a step to truth that any benefit that may be derived from it is outweighed by the social interest in order and morality 2) Understand pros and cons of categorical approach: a) Pros: clarity and guidance. b) Cons: (1) Arbitrary at best (2) Imposition of value judgments of judge or judges or factfinders at worst – should a judicial systeme be based on historical value judgments? 3) Categories: a) libel b) fighting words c) obscenity d) child pornography Applying Miller: 1) Miller v. CA (US 1973) – CJ Burger – p1132: a) Would the average person, applying contemporary community standards, find that the work, taken as a whole, appeals to the prurient interest: (1) Average person: what or who is this? (2) Community standards: (a) Subjective standard. (b) No national standard for obscenity b/c nation too diverse – community standard may be determined by LOCAL standard – FEDERALISM.

b.

c.

d.

31

(c) How to define ―community‖? i. Defense will try to define community broadly. ii. Prosecution/govt will try to define community narrowly. (d) ??? Pros and Cons: i. ??? Pros: ii. Cons: how can we be using ―community standards‖ (which ususally advocates POPULAR ideas) to assess when 1A should apply (purpose of 1A is to protect UNPOPULAR ideas)? (3) Taken as whole: look at work in context – bigger message. (4) Prurient interest: abnormal interest in sex – not much guidance. b) Does the work depict or describe, in a patently offensive way, sexual conduct that is specifically defined by the applicable state law (1) Patently offensive: (a) Easily manipulated: not very concrete guidance. (b) Most important test: determines how obscenity will be judged. (2) Sexual conduct and specifically defined are threshold requirements for application. c) Does the work, taken as a whole, lack serious value (literary, artistic, political, scientific)? (1) Taken as a whole: look at bigger message. (2) Lack serious value (literary, artistic, political, scientific): (a) Works as safe harbor to protect speech. (b) Objective standard (compare to community values standard). 2) Legal preconditions to apply Miller: a) Sexual conduct; AND b) State statute must specifically define the word ―obscene‖. (1) This is speech protective element of Miller test (2) Rationale: Court worried about chilling speech. 3) TENSION b/w protecting speech and maintaining a set of community values. a) Individual‘s privacy interest: should be able to possess in your own home whatever you want (Stanley) v. national community standards. b) Should adults be limited to what is appropriate for children. 4) Obscenity test has NOTHING to do with secondary effects. 5) Justifications for Restraining Sexually Explicit Speech – p1125. 6) Paris Adult Theater I v. Slaton (US 1973) – CJ Burger – p1136: a) Held: Court upheld injunction preventing showing of movies in ―adult theather‖. b) Reason: states have legitimate interest in regulateing commerce in obscene material and in regulating exhibitiions of obsence material in places of public accomodation. (1) ??? Court seems to be saying state can regulate obscene material for public morality – but this was prohibited in Cohen in fighting words context. c) Brennan’s Dissent: 7) Arguments For and Against Obscenity Regulations: a) For – p1140: (1) Debasement of individual character. (2) Offense to unwilling onlookders. (3) Inducement of criminal conduct. (4) Eroding moral standards. (5) Harming social fabric. b) Against:

32

(1) Non-political (2) Non-cognitive (3) Not susceptible to counterspeech. e. Child Porn Distinct from Obscenity: 1) ??? General Rule – minus some key Miller elements: a) Does the work depict or describe sexual conduct that is adequately defined by the applicable state law? b) Does the work lack serious value (literary, artistic, political, scientific)? 2) NY v. Ferber (US 1982) - - p1145: a) Held: upheld NY law that prohibited distribution of material depicting children engaged in sexual conduct – did not require than material be legally ―obscene‖. b) O’Connor’s concur: c) Brennan’s concur: 3) Focus of test is more on regulation of SECONDARY EFFECTS. a) Pending issue: what if we have child porn that does not involve children but instead involves adult actors or visual depictions? f. Textual Sources:  p1125-1126, 1132-1149  Chem - p

6.

Pornography – 03-09-01: a. Mag’s Summary – Hudnut‘s pornography ordinance. 1) Con: a) Overbreadth b) Vagueness

33

c) Viewpoint-based discrimination 2) Pro: a) Prevents subordination of woman b) Pornography is sub-rationale c) Pornography is not part of marketplace of ideas. 3) Pornography is ―low value‖ speech. b. c. Mag’s Questions: Compare ―porn‖ to ―obscenity‖ 1) Unlike obscenity (clearly unprotected), porn is NOT a term of art – it is just another category of sexually explicit speech some of which may be protected. 2) Compare ―porn‖ and ―obscenity‖ ordinances: a) Area of overlap and then outlaying areas for each. b) Dworkin ordinance covers some protected speech: what constitutes ―porn‖ under this ordinance would NOT necessary constitute ―obscenity‖ under Miller ordinance. c) Does not have a serious social value safe harbor provision. Arguments FOR Dworkin Ordinance: 1) Prevents subordination of woman – see definition of porn (p1151). 2) ??? Pornography is sub-rationale. 3) Pornography is not part of marketplace of ideas. a) Porn is not speech/idea – it is injury. b) Easterbrook’s response: this only shows power of porn as speech. 4) Low value speech. Arguments AGAINST Dworkin Ordinance 1) Overbreadth. 2) Vauguness. 3) Easterbrook‘s Approach in American Booksellers Ass’n v. Hudnut (7th Cir. 1985) aff‘d mem. (US 1986) – p1151: a) ??? ―Content‖ v. ―viewpoint‖ discrimination – I do not understand this argument – see p1150. (1) Like RAV debate b/w Scalia and Stevens. b) Very speech-protective stance: even if there is proof that speech causes harm, it is still protected ??? Compare Hudnut and Miller Methodologies: 1) Miller methodology focuses on community standards while Hudnut focuses on a functional approach. 2) Which is better? Sexually Explicit But Non-Obscene Expression 1) Erznoznik v. Jacksonville (US 1975) – Powell – p1156: a) Held: state ordinance - prohibiting drive-ins with screens visible from public roads from showing films containing nudity - is unconstitutional. b) Reason: (1) Content-based discrimination. (2) See general principles – p1156 c) CJ Burger’s dissent d) Other 2) Live Nude Dancing: 3) Low Value Speech:

d.

e.

f.

g.

34

4) Secondary Effects – see Renton v. Playtime Theathers, Inc. (US 1986) – p1162. h. Textual Sources: 1) p1149-1164. 2) Chem - p

7.

Indecency Bans on the Communications Media – 03-12-01: a. Mag’s Summary – Sexually Explicit Speech Pendulum: 1) Miller – obscenity regulation okay. 2) Erznornik – total ban on sexually explicit speech impermissible. 3) Pacifica – ―indecency‖ regulation is okay for broadcasting. 4) Reno v. ACLU – no ―indecency‖ regulation of Internet.

35

Govt cannot absolutely ban all non-obscene sexually explicit speech (Erznoznik) Bright line rule b.

―Erogenous Zoning‖ cases

Miller Test for obscenity

Grey area – balancing test

Bright line rule

Mag’s Questions: 1) What elements of the broadcast media led the Pacifica Court to permit regulation of ―indecent‖ but non-obscene material in broadcasting? Can Pacifica be extended to permit ―indecency‖ regulation in other media? 2) What would Congress have had to do in order to make the Communications Decency Act, which the Court struck down in Reno, constitutional? 3) What does ―indeceny‖ mean? Do the Court‘s decisions leave much room for categorical prohibitions on non-obscene, sexually explicit speech? Textual Sources:  P1164-1174  Supp – p  Chem – p ―Indecency‖ Regulation is Okay for Broadcasting: 1) FCC v. Pacifica Foundation (US 1978) – Stevens – plurality - p1164: a) Facts: Carlin‘s broadcast limited to FCC regs. b) Issue: whether 1A denies govt any power to restrict public broadcast of indecent language in any circumstances. c) Held: uphold FCC regs limiting broadcast to certain hours. d) Reason: (1) Court rejects community standards approach and adopts a balancing approach: (a) Protect children – this interest wins out. (b) Preserve adults‘ 1A rights. (2) Broadcast media deserves less protection b/c it: (a) has a uniquely pervasive presence in lives of all Americans; AND i. offensivness confronts people in privacy of home – rejects ―avert your ears‖ argument. (b) is uniquely accessible to children. (3) Stevens says this is low social value speech but others say this is political speech (political satire). e) Powell’s concur f) Brennan’s dissent: (1) Govt may not reduce the adult population to reading only what is fit for children. (2) Worried about slippery slope and govt cleansing of ideas – adverse effect on markertplace of ideas. g) Stewart’s dissent: 2) ??? Limits on Pacifica: a) Not apply to total bans. b) Not apply to other mediums. 3) To what extent can govt regulate adults‘ access to info in an effort to protect children? 4) Problems with Stevens‘ ―low social value‖ approach: a) It is very hard to categorize speech.

c.

d.

36

b) Go back to idea than way idea is expressed is also protected – from Cohen. e. Captive Audiences – Pacifica’s privacy invasion rationale – p1169: 1) Rule: a) No Captive Audienve Rationale in the PUBLIC SQUARE: in Cohen, Court rejected the captive audient rationale in the public square – avert eyes. b) Captive Audienve Rationale May Work in the HOME: Court will allow govt to rely on captive audience rationale when applied to the HOME but this is still a limited rationale. Total Indecency Bans: 1) Rule: total indecency bans are generally not allowed (especially in dial-a-porn industry). 2) Sable Communications v. FCC (US 1989) - White – p1171: a) Held: struck down indecency component of law prohibiting dial-a-porn services. b) Reason: (1) Distinguish Pacifica: (a) This is a total ban. (b) Different medium – requires active steps to use – no violation of privacy in home concerns. (2) Although recognize govt’s interest in protect children, Court finds prohibition was insufficiently narrowly tailored. (3) Prohibite had ―invalid effect of limiting the content of adult telephone conversations to that which is suitable for children to hear‖. Authorizing Cable Operators to Regulate Indecent Programming: 1) ??? Rule: cable is treated differently than broadcast medium. 2) Denver Area Educ. Tele. Consortium v. FCC (US 1996) – Breyer – p1171: a) Issue: could Congress authorize cable operators to decline to show indecent programming on stations where they would not ordinarily have editorial discretion? b) Held: (1) Upheld 10(a): authorized cable operator to enforce a written and published policy of prohibiting programming that the cable operator reasonable believes describes or depicts sexual or excretory conduct . . . in patently offensive manner as measured by contempory community standards. (2) Struck down 10(b): blocking requirement on any indecent leased access programming the cable operator opted to show. (3) Struck down 10(c): authorize FCC to promulgate regulations permitting cable operators to prohibit ―obscene material, sexually explicit conduct, or material soliciting or promoting unlawful conduct,‖ and the FCC defined ―sexually explicit conduct‖ in the much the same way as 10(a). c) Reason: applied reasoning of Pacifica to cable TV media d) Much divisions on holding – very complex. e) ??? bottom line? 3) US v. Playboy Entertainment Group (US 2000) – Kennedy – p112supp: a) Held: invalidated provisions of federal tele law that required cable operators either to fully scramle sexually explity programming or, if they unable to do so because of ―signal bleed‖, to confine such programming to late-night hours when children were unlikely to view it. b) Reason: strict scrutinty c) Stevens’ concur d) Thomas’ concur e) Scalia’s dissent: f) Breyer’s dissent No ―Indecency‖ Regulation of the Internet:

f.

g.

h.

37

1) Rule: no indecency regulation on the Internet – Court shoots CDA down in very strong terms. 2) Reno v. ACLU – (US 1996) - Stevens – p113supp: a) Facts: CDA b) Held: struck down two provisions of CDA – p115supp. c) Reason: overbreadth. (1) Distinguishes Ginsburg v. NY (US 1968) – p116supp b/c that statute was much narrower. (2) Court reluctant to extend Pacifica – distinguiseh b/c: (a) Different medium: requires affirmative steps – less risk of accidential exposure - like dial-a-porn. (b) Different nature of regulation: Pacifica was just a time ban not a total ban. (3) Distinguish Renton v. Playtime Theaters (US 1986) – p1162. (4) Puts more weight in adults’ 1A interest in balancing. d) O’Connor’s concur/dissent: does not think CDA is overbroad. e) Shows what happens when Congress is sloppy.

8.

Commercial Speech – 03-14-01: a. Mag’s Summary: 1) Interests: a) Consumers – accurate information. b) Society – efficient allocation. 2) Distinctions from other speech: a) More objective (more easily subject to verification) b) ―Hardier‖ 3) Central Hudson test – like intermediate scrunity: a) Elements – if any of these were not met: (1) Truthful, non-misleading, lawful activity [this is pre-condition – if any of these are NOT met, then speech is not protected]. (2) Means-Ends Balancing: what govt must show to sustain the reg:

38

(a) Substantial government interest [government must show this to retain the regulation]. (b) Directly advanced [government must show this to retain the regulation]. (c) No more restrictive than necessary [government must show this to retain the regulation]. b. Mag’s Questions: 1) Why should comm speech get 1A protection? Why should comm speech get LESS 1A protection? How much do your answers depend on how the Court interprets ―comm speech‖? 2) What competing societalinterests might justify restrictions on advertising? Are those interests different from interests offered to justift restrictions on other kinds of speech? With whose rights is the Court concerned in the commercial speech cases – advertisers or consumers? 3) Does Central Hudson strick a porper balance b/w competing soceityal interests? What alternative approach would be preferable? Textual Sources: 1) P1157-1185, 1189-1195, 1198-1202 2) Supp at p123-126 3) Chem at p Court’s Approach: 1) Categorical: obscenity, fighting words, incitement, 2) Balancing: hate, libel, porn. a) Fairly permisive of govt regs in these circumstances. 3) Special test for commercial speech: categorically less protected speech. Defining Comm Speech: 1) Majority‘s Defintion - Narrow: Speech which ―does no more than propose a commercial transaction‖ – VA Pharmacy. a) Does NOT include all speech produced for profit. 2) Minority Defintion - Broad: ―Expression related solely to the economic interests of the speaker and its audience‖ – Central Hudson. a) Some argue this is too broad. Can Comm Speech be Principally Distinguished From Other Speech? 1) Arguments that Comm Speech is Distinguishable(qualitative and quantitative): a) Advertising is different b/c purpose of speech is to get consumer to buy the product. b) We want it to be RELIABLE c) More objective (more easily subject to verification) d) ―Hardier‖ e) It is lower value: this is very debatable. 2) ??? Arguments that Comm Speech is NOT Distinguishable: a) But if it is more objective why should we need to regulate it at all. Arguments FOR 1A Protection for Comm Speech – VA Pharmacy: 1) ??? Consumer has interest in accurate info (how is this argument for protection). 2) Societal interest in free flow of info – efficient allocation. 3) Note that focus is on listeners‘ autonomy – not the speakers. Arguments AGAINST 1A Protection for Comm Speech - VA Pharmacy: 1) States‘ interests. 2) Race to bottom

c.

d.

e.

f.

g.

h.

39

3) Billboard problem 4) Joe Camal Problem (advertistig that manipulates consumer behavior) a) But then worry about partenalism. b) Hudnut idea that speech is working. 5) False advertising. i. Impact of VA Pharmacy: 1) Prior to VA Pharmacy: comm speech has NO protection. 2) VA Pharmacy (US 1976) – Blackmun – p1176: a) Held: there is some 1A protection for comm speech. b) Reason: (1) Does not set out a test but does set out categories that state can regulate – see below. (2) Balance Arguments for 1A protection and Arguments Against 1A Protection. c) Rehnquist’s dissent 3) Post VA Pharmacy – p1179, 1183: a) Govt can regulate, thus, 1A protection does NOT extend to: (1) Advertisements for illegal transactions (2) Factually false or misleading statements (3) Time, place and manner of comm speech (4) Prior restraint (okay here). b) Govt cannot regulate: Central Hudson (US 1980) – Powell – p1189 1) Test Elements: see above. 2) Court is Leaning Away From Central Hudson: majority of Court seems to want to extend full protection to comm speech but has not done so yet. ??? Distinguish from Lochner – p1191: 1) See Blackmun‘s concur in Central Hudson. 2) Speech not just activity. 3) Interest of consumer, listener. Notes 1) P1193- Billboards and Newsracks – may commercial speech be treated differently? 2) 44 Liqurmart Inc v. RI (US 1996) – Stevens – p1198: shows there is much confusion about how to define comm speech and what test to apply. 3) Paternalism and Comm Speech – p1202. 4) What standard of scrutiny – p1201.

j.

k.

l.

40

B. HOW GOVERNMENT RESTRICTS SPEECH: Content-based Regulations; Symbolic Conduct – 03-16-01: a. Mag’s Summary – when can government regulate speech that undeniably gets 1A protection? 1) Viewpoint-based regulations: virtually per se invalid. 2) Content-based regulations: strict scrutiny (means/ends). a) 2 exceptions: (1) Commercial advertising [Central Hudson test (intermediate scrutinty)]. (2) Non-public forum [rational basis test]. 3) Content-neutral regulations: less scrutiny a) 2 categories: (1) Time, place & manner restrictions. (2) Symbolic conduct [O’Brien 4-part test] (a) Regulation of conduct that has incidental effect of regulating speech. Mag’s Questions:

1.

b.

41

1) What distingushes content-neutral, content-based and viewpoint-base regs on speech? Which sort of restrictions poses the least or greatest threat to expressive freedom? Why? 2) How closely should Court scrutinize govt restrictions on speech? What factors should determine the level of scrutiny in a particular case? 3) What distinsgishes expressive conduct from ordinary conduct? Does every action have an expressive component? Is there nevertheless some way to extend 1A protection to expressvie conduct without banning all govt reg of conduct? c. Textual Sources: 1) Text at p1203-1219; 1230-1234. 2) Chem at p758-763; 867-873. Rationale for Distinctions: 1) Do not want government picking and chosing ideas – worry about government suppresion of unpopular ideas and government manipulation of the public debate through coercion rather than persuasion (p759C). 2) Content-based regulations can be viewpoint-based regs in disguise. 3) The categories pose different threats to expressive freedom. Determining Which Category a Reg Falls Into: 1) Generally (p760-761C): a) Viewpoint neutral means the government cannot regulate speech based on the ideology of the message. b) Subject matter neutral means government cannot regulate speech based on the TOPIC of the speech. c) A law can be content-based on its face but CT may label it content neutral if its purpose/justification is content neutral (Renton v. Playtime Theaters, Inc (US 1986 but there is much criticism – CT has mostly distinguised Renton in later cases). 2) Two Types of Evidence Courts Rely On to Determine Category: a) Legislative Intent: (1) CT in O’Brien says this courts cannot look at motive but O’Brien test itself requires some analysis of legislative motive – thus, although CT forbids such inquiry, it is an important source of evidence. b) Effect of Regulation: (1) This is probably most significant kind of evidence. (2) Problem is that you may end up condemning regs that have important effects and just an incidental burden. 3) Too much focus on either category is NOT good. f. Content Neutral Regs - Symbolic Conduct: 1) Definition: regulation of conduct that has incidental effect of regulating speech. a) Concern that all activity could be considered ―communicative conduct‖. b) Elements (p868C): (1) Intent to convey a specific message. (2) Substantial likelihood that message would be understood by those receiving it. 2) Line drawing problems: very difficult to distinguish b/w speech and conduct. Content Neutral Regs - O’Brien Test: 1) Elements: a) Reg within constitutional power of government; b) Reg advances an important and substantial government interest; (1) Like intermediate scrutiny level in E/P jurisprudence. c) Government interest must be unrelated to the supression of free expression; and (1) This is KEY element.

d.

e.

g.

42

(2) Performs switching function at threshold: (p1217) (a) If the state‘s interest is RELATED to the supression of free expression, strict scrutiny is required unless the speech is in an unprotected category. (b) If the state‘s interest is UNRELATED to the supression of free expression, then apply balanceing test. d) Government restriction on speech must be no greater than essiential/necessary to accomplish the important and substantial government interest. (1) This is like the Central Hudson test. (2) This is NOT a least restrictive means test. h. Cases: 1) US v. O’Brien (US 1968) – CJ Warren – p1213: a) HELD: upheld as constitutional facially and as applied the 1965 Amendment to the Act prohibiting draft card desstruction. b) REASON: establish and apply 4-part test. c) NOTE: CT assumes O‘Brien‘s conduct was symbolic conduct without deciding the matter. 2) Barnes v. Glen Theatre, Inc. (US 1991) – CJ Rehnquist – p1231: a) HELD: Indiana ban on nude dancing is constitutional. b) REASON: (1) In this case, nude dancing = expressive conduct. (2) Government wins after apply O’Brien test (this is content neutral statute): (a) Reg is within constitutional power of government. (b) Reg advances an important and substantial government interest – Rehnquist says morality = substantial governmental interest – DO WE BUY THIS ARGUMENT? (c) The government interest here is unrelated to the supression of free expression – it is attempting to prevent public nudity. (d) The reg is no greater than essiential/necessary. c) Scalia’s CONCUR: say no 1A interests are implicated. d) Souter’s CONCUR: upholds statute by applying O’Brien but says state‘s purpose was to prevent secondary effects of public nudity not morality. e) White’s DISSENT: says O‘Brien does not apply here b/c statute was aimed at communicative content of nude dandcing - state cannot regulate method of expression – it is part of the expression‘s content. f) NOTE: the majority‘s analysis seems to skip the third element – there is no evidence that the statute is unrelated to suprression of speech.

43

2.

―Time, Place, Manner‖ Regulations in the Public Forum – 03-19-01: a. Mag’s Summary: 1) Substantial interest? Unrelated to the suppression of speech? 2) Truly content neutral? 3) What does ―no more restrictive than necessary‖ mean? Mag’s Questions: 1) What reasons should justify govt in restricting expressive activity in public areas? Does 1A affirmatively obligate govt to make public streets and sidewalks availbable for speech? Is so, to what extent? 2) Are ―time, place and manner‖ regs of speech truly neutral, or do they tend to restrict the speech of particular types or classes of speakers? 3) Should Court require govt to regulate time place and manner of speech in the ―least restrictive manner‖? Would such a standard unduly undermine govt‘s regulatory authority? Does a lesser standard undermine free speech protection? Textual Sources:  P1234-1235; 1244-1267  Supp at p128  Chem at Generally 1) There are two categories of content-neutral regs: a) Reg of conduct that have incidental burden on free expression – applu O’Brien test. b) Time, place and manner regs – apply O’Brien test.

b.

c.

d.

44

e.

Categories of Time, Place and Manner Regs: 1) Public Order and Safety: 2) Aesthetics – Members of City Council v. Taxpayers for Vincent (US 1984) – Stevens - 1249: a) FACTS: CA law prohibits postings on public property. b) HELD: law is constitutional. c) REASON: this is content-neutral reg that passes O’Brien. d) Brennan‘s DISSENT: wants stricter scrutiny, worried that government can easlity fool courts by come up with content-neutral purpose. e) NOTE: is this really content-neutral? (1) CT glides over issue that this law will have disparate impact on low-income speakers so doesn‘t that make the law content-based? (2) But if you label this reg content-based, then every reg can be content based. 3) Aesthetics – Clark v. CCNV (US 1984) – White – p1254: a) FACTS: homeless protestors cannot sleep on Mall b/c of National Park Service reg. b) HELD: upheld Park Service reg. c) REASON: ??? Seems to come up with a different test – p1255 d) Marshall‘s DISSENT: 4) Tranquility, Privacy and Repose – Ward v. Rock Against Racism (US 1989) – Kennedy – p1260: a) FACTS: shows that bad facts make bad law. b) HELD: upheld noise reg. c) REASON: reinterpret last prong of O‘Brien – government only needs to show that the reg promotes a substantial government interest that would be achieved less effectively absent the reg. d) Marshall‘s DISSENT: ??? Substantial interest? Unrelated to the suppression of speech? Are These Regs Truly Content Neutral? 1) Look deeper at regs and look to see if they are really content neutral – even if it is just a time, place and manner reg, some of these laws prevent specific messages from ever getting out. 2) Method of communication is part of communicative content and when the method is prohibitied, the message is prohibitied as well. 3) See Vincent and CCNV. 4) Big Theme: a) The way courts characterize the reg depends upon how seriously the courts take the discrimination argument. b) ??? If we only look at legislative intent to determine category, then the holdings make sense BUT if you look at effect, then there are some problems. ??? What Does ―No More Restrictive Than Necessary‖ Mean? 1) This is NOT a least restricitive means test. 2) ??? Government need only prove that ―the regulation promotes a substantial government interest that would be achieved less effectively absent the reg.‖ Does Government Have an Affirmative Duty Under 1A? 1) Does government have an affirmative duty to make freedom of expression available? 2) This theme is more articulated in public forum debates.

f. g.

h.

i.

45

3.

The Public Forum Doctrine – 03-21-01: a. Mag’s Summary: 1) See Handout Mag’s Questions: Textual Sources:  p1267-1288; 1292-1293  Chem at Teaches’ Mailboxes – p1277 1) Perry Ed (US 1983) – White – p1277: a) Held: upheld CBA K provision restricting access to teachers‘ mailboxes to incumbent U b) Reason: sets out forum categories and finds this is non-public forum. Charitible Campaigns in Federal Offices – p1279 1) Cornelius (US 1985) – O‘Connor – plurality - p1279: a) Facts: NAACP wants access to combined federal campiagns. b) Held: no 1A violation b/c this is non-public forum and reg is content-based – rational basis. Public TV Station - Forbes: Other Places: 1) Libraries – p1268 2) Jails – p1269 3) Schools – p1271 4) Public Transportation – p1272

b. c.

d.

e.

f. g.

46

5) 6) 7) 8) 9) 10) 11) h.

Theaters – p1273 Military base – p1274 Mailboxes – p1276 Post office sidewalks – p1281 Airport terminals – p1283 Solicitation – p1287 1A rights to private property – p1292

Criticisms of Court’s Approach – p1287

4.

Speech Subsidized by Public Funds – 03-26-01: a. Mag’s Summary – Govt Subsidies of Speech: 1) Taxation – US 1983) – Rehnquist - p1319: segregable – condition upheld. 2) League of Women Voters (US 1984) – Brennan - p1320: non-segregable – condition struck down 3) Rust (US 1991) – CJ Rehnquist - p1321: govt as speaker – condition upheld. 4) ??? Rosenberger (US 1995) – Kennedy - p1324: govt as patron – condition struck down. 5) ??? Finley (US 1998) – O‘Connor – p132supp: govt as patron – condition upheld. Mag’s Questions: Textual Sources:  p1318-1325  Supp at p132  Chem at General Rule: govt benefits may not be conditioned on reliquishing 1A rights BUT there are many exceptions. Penalties v. Non-Subsidies: 1) Court tries to distinguish denials of benefits that operate as ―penalities‖ from those that operate as mere ―non-subsidies‖ 2) Chart: Penalties/Subsidies Govt as regulator Strict or intermediate scrutiny Non-Subsidies Govt as manager, educator, boss Minimal scrutiny

b. c.

d.

e.

 

 

47

5.

Overbreadth, Vagueness, and Prior Restraints – 03-28-01: a. Mag’s Summary – Impermissible Methodologies: 1) Impermissible Methodologies: a) No ―substantial overbreadth‖. b) No vague restrictions. c) No prior restraints: (1) Licensing scheme. (2) Injunctions. 2) Reason these methods are prohibitied = CHILLING EFFECT. 3) Problem: line drawing and defining the government interests. Mag’s Questions: Textual Sources:  1325-1332; 1337-1349.  Supp at p136  Chem at These are procedural flaws: govt went about things the wrong way even if the speaker might constitutionally be restricted if govt used different means. No Substantial Overbreadth: 1) Definition: a) ―a govt‘l purpose to control . . . activities constitionally subject to regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedom‖ – p1326. b) ??? Compare to E/P: (1) P can challenge law on its face rather than as applied. (2) Exception to usually rules of standing. 2) Rationale: chilling effect and – overbroad law may cause others to refrain from constitutionally protected speech or expression – p1327. 3) ??? Remedy:

b. c.

d.

e.

48

4) Benefits: a) Judicial modesty b) Respect for federalism 5) Criticisms – p1328: a) Lack of case or controversty requriement gives Court roving commission to remedy constitutional wrongs. b) Too speculative c) Gives wrongdoers a free ride: permits individual whose 1A rights have not been violated to enjoy free ride unless and until appropriate legislation comes along. 6) Limitations: must be SUBSTANTIAL – Broadrick (US 1973 – White – p1329. f. No Vague Restrictions: 1) Definition: a) Cannot tell what conduct is convered by statute. b) ―Law will be void on its face for vaguness if persons of common intelligence must necessarily guess at its meaning and differ as to its application‖ – p1337. c) ??? Compare to overbroad: a law can be specific and still violate overbroad rule. d) Compare to Due Pro vagueness doctrine: 1A vagueness has greater bite than due process vagueness. 2) Rationale: chilling effect, notice, equality, separation of powers - p1337. 3) Remedy: courts will usually strike down entire statute. No Prior Restraints: 1) Definition: a) Presumption against constitutionality - especially disfavored under 1A – Framers‘ intent was clear (strict originalists say this is all 1A protects against). b) Facial challenge lies whenever a licensing law gives a govt official or agency substantial power to discriminate based on content or viewpoint of speech by suppressing disfavored speech or disliked speakers. c) ??? 2 kinds- are there different rules?: (1) Licensing (2) Injuctions d) Only a limit on govt action b4 publication: after publication, govt can act. 2) Rationale: chilling effect 3) Limitations: 4) Near v. Mn (US 1931) – CJ Hughes – p1345: a) Held: injunction violates 1A. b) Reason: looks like censorship in totalitarian regime. c) Other: presumptions against prior restraints from licensing now extended to judicial prior restraints. 5) Licensing schemes also generally unconstitutional with obvious exceptions – Lakewood – p1340. 6) Why is prior restraint any worse than post-publication restraint? a) Troubling question b) At least get idea into marketplace.

g.

49

C. RIGHTS ANCILLARY TO FREEDOM OF SPEECH: 1. The Right Not To Speak and the Right to Associate – 03-30-01: a. b. c. Mag’s Summary: incorporated in chart below. Mag’s Questions: Textual Sources:  p1361-1366; 1371-1379; 1383-1386; 1391-1395  Chem at Generally: 1) These rights are NOT absolute – subject to strict scrutiny. 2) There is something expressive, conscience-based at the root of these rights. 3) Intuitively these rights seem to go along with free speech. Summary Chart: RIGHTS RELATED TO FREE SPEECH Key Case Related to 1A Barnett (US 1943) – Jackson –  Not speaking is itself p1362 expressive  Implied in rt to speak.  Faciliates other 1A rights McIntyre (US 1995) – Stevens - p1364 Right to speak anonomously


d.

e.

Right Right NOT to speak or freedom from compelled speech



Notes See also Wooley (US 1977) – p1363: license plate case.

Facilitates free speech

  

Tradition of anonomous political speech. Distinct from Barnette b/c this is not at all expressive. Stevens likens this right to right against compelled speech (having to sign name means govt is compelling you to speak) Shelton v. Tucker (US 1960) – Stewart – p1377: extended right to

Right NOT to disclose membership (for orgs and

NAACP v. AL (US 1958) – Harlan - p1376

 

Implied in right to speak Facilitates free speech



50

individuals)


individuals. ??? No right to compelled access of a parade – Hurley (US 1995) – Souter – p1371. Not necessarily an ancillary right – actually part of right to free speech Association for litigation may be most effective form of political association. Reminscent of comm speech doctrine

NAACP v. Button (US 1963) – Brennan - p1383 Right to engage in organizational activity

  

Expression Implied in right to speak Facilitates free speech

 



Freedom from loyalty oaths 2.

Keyshian (US 1967) – Brennan - p1394



???

Money and Political Campaigns – 04-02-01: a. Mag’s Summary:

Buckley v. Valeo (US 1976) – Per Curiam – p1400
Limitation On Contributions to Candidates Independent expenditures (including parties) ―Coordinated‖ expenditures Self-financing Expenditures by campaign and by candidate Disclosure Requirements Public Financing Requirements Mag’s Questions: Textual Sources:  p1400-1420  Supp at 144-146  Chem at Key Issues: 1) Is money = speech? Is money not expressive at all? Or is it in b/w? a) Key determination: this determination determines rest of analysis – scrutiny level. b) Core premis of Buckley is that money = expressive conduct (1) Given this determination, looks like Congress is trying to directly suppress free speech and expressive activity. 2) What = ―political party‖? 3) What level of scrutiny does Court apply? a) O’Brien is NOT proper standard here. 4) Which of the govt‘s interests does Court acccept? Upheld? Y N Y (but maybe not including political parties) N N Y Y

b. c.

d.

51

a) Prevent actuality or appearance of corruption – yes. b) Equalize ability of individuals to influence political process – NO – p1410. e.

Buckley Holdings:
1) Limitation on Contributions to Candidates UPHELD: a) Balancing Interests – Govt Trumps: (1) Govt‘s interest in the actuality or appearance of corruption. (2) 1A interests. b) Rationale: (1) Can still speak, just cannot speak ―a lot‖. (2) This is NOT a serious interference with free speech – debatable? c) If limits are set so low, then may have serious interference with free speech. 2) Limitation on Independent Exependitures STRUCK DOWN: a) Definition: expediture by 3d party individual/PAC on behalf of a candidate without ask for candidate‘s input [issue ad]. b) Rationale (1) Congress can only regulate expenditures for direct candidate ads. (2) Congress has no control over issue ads – BIG HOLE. c) ??? Also see Colorado Republican (US 1996) – p1412. 3) Limitation on ―Coordinated‖ Expenditures UPHELD: a) Definition: expenditure by 3d party individual/PAC on behalf of a candidate with candidate‘s input [candidate ad]. (1) May not include politcal parties. b) Criticism: no point in having limits on candidates if parties can use PACs to get around the rules. (1) Soft money problem. 4) ??? Limitation on Self-Financing STRUCK DOWN: 5) ??? Limitation on Expenditures by Campaign and Candidate STRUCK DOWN: 6) Disclosure Requirements UPHELD: a) May be an exception for minor party candidates. b) Rationale: less threatening to free speech rights than other provisions. c) A lot turns on this holding. 7) Public Financing Requirements UPHELD:

f. g.

??? Rationale – why does 1A protect campaign monies? Contribution/Expediture Distinction – Principle? 1) Lesser danger of corruption with expenditures . 2) Would be draconian to limit independent expeditures. a) Court will allow limits on uncoordinated expenditures but only rarely. Consequences of Buckely - Should the Court Reconsider? 1) FEC v. National Conservative PAC (US 1985) – Rehnquist – p1412: struck down a provision of federal act prohibition PACs from spending more than $1,000 on behalf of a presidential candidate who elects to receive public financing under the Act. 2) Colorado Republican v. FEC (US 1996) – Breyer – p1412: held that politcal parties, like individuasl, candidates and PACs, have a 1A right to make unlimited independent expenditures.

h.

52

3) Nixon v. Shrink (US 2000) – Souter – p144supp.

3.

Freedom of the Press I: Media Access to Government Information and Government Demands for Media Information – 04-04-01: a. Mag’s Summary: 1) Whay is ―the press‖? 2) When does 1A compel govt to give info to the press? 3) When does 1A protect the press from giving info to govt? Mag’s Questions: Textual Sources:  p1420-1440  Chem at 949. Generally: 1) Focus today is on print press. 2) How is this right distinguished from other ancillary rights? 1) Expressly contained in 1A What is ―the press‖? 1) Key issue: what, if anything, is different about the press when its comes to freedom of expression? Does ―freedom of press‖ include something more than, or different from, freedom of speech.? 2) 2 distinguishing features but NO bright line rules: a) Gather info b) Disseminated speech 3) Arguments that Press Gets Different Protection: a) Watchdog function/4th Branch. (1) Underlying premise = press serves the public (is this accurate?) (a) Affirmative duty of govt to aid free speech. (2) Impact: protection of press‘ expressive freedom is more important than individual‘s right to free speech (3) Justices: Brennan, Powell and Stewart (4) Objections: (a) Originalists/Framers (b) Concern about abuse (yellow journalism) (c) Profit motives: economic incentives will conflict with public interest premise

b. c.

d.

e.

f.

53

i. Highly concentrated industry. b) Becauses of job requirements, press needs different (not necessarily greater) protection under 1A than individiauls (e.g., to protect sources). (1) Media might need different things from 1A than individuals do. c) ??? B/c press is fairly powerful, govt has greater incentive to suppress speech by the press than speech by individuals – thus, press needs greater protection from govt. (1) Many prior restraint cases. g. When does 1A compel govt to give info to the press? 1) 1A and 6A collision. a) Press has 1A and 6A rights (confusing) b) D has 6A rights. 2) Rule: press has right to be present at criminal proceedings (access rights under 1A) but govt/public interest may trump 1A rights – trial court‘s discretion – see Richmond Newspapers (US 1980) – CJ Burger - p1426: a) Held: absent an overriding interest, the trial of a criminal D must be open to public b) Compare to Gannett Co (US 1979) – Stewart - p1425: no 6A right for public to insist on public trial. c) ??? Thus, NOT a core constitutional right. d) Govt interests that may overcome 1A rights: (1) Jury selection/influence (2) Rape cases, sexual offenses, child. (3) Govt secrets, spying (4) NOT an exhaustive list – just examples. When does 1A protect the press from giving info to govt? 1) Majority Opinion in Branzberg: a) Under majority view in Branzberg, 1A will rarely protect press but see Powell‘s concur (more speech protective and press friendly). b) Press is NOT special – same as individual speakers. c) Logical problem with this reasoninig: if sources stop talking, then it does not matter if we give govt this right b/c press will not have the info anymore. 2) Powell‘s Conditional Privilege Balancing Test – majority approach now: a) Govt cannot get the info any oher way b) Govt must show that it has a reasonable probability that press has the info

h.

54

4.

Freedom of the Press II: Problems of Access to the Mass Media – 04-09-01: a. Mag’s Summary – Free Speech and Mass Media Issues: 1) Broadcast: scarcity, public trust – regulation? 2) Public Broadcast: editors or govt? 3) Cable: not scarce, but threats flow of info? 4) Internet: access/allocation issues? Mag’s Questions: Textual Sources: 1) p1449-1460. 2) Supp at p146-147 3) Chem at Theme – changing focus of 1A: 1) Originally, 1A focused on censorship 2) Then focus shifted to access and scarcity 3) Now, focus is on censorship again (Internet) Theme – affirmative v. negative 1A: 1) Private speech should be free and unfettered 2) 1A imposes on govt an affirmative obligation to facilite/provide forum for free speech 3) Both ideas are right – how to reconcile? Reflects problems in public forum and campaign finance discussions. ??? What is Rule from Red Lion? Broadcast – Scarcity/Public Trust – Regulation? Rationale for Giving Less 1A Protection to Broadcast Media Than Print: 1) ??? Fairness doctrine 2) Clash of 1A rights on both sides. 3) Distinguishing Feature: a) Scare technological resource. b) Govt controlled licensing c) Public trust 4) If govt controls medium, it has greater power to regulate. a) Criticism: (1) Editorial discretion (2) Concerns with viewpoint discrimination. (3) Just b/c govt is already regulating does NOT mean it is entitled to other regs or additional regs. 5) See Red Lion (US 1969) – White – p1450 6) FCC has repealed the ―fairness doctrine‖.

b. c.

d.

e.

f. g. h.

55

i.

Public Broadcast - editors or govt (conduits of speech)? 1) Public TV is non-forum. 2) General Approach: Court will permit govt to control access (Turner I) but will not say Constitution mandates access under the ―fairness doctrine‖ (Forbes). 3) Is there really a difference b/w private and public broadcasters? a) Should govt have greater authority to regulate speech when govt subsidizes speech? Cable - not scarce, but threats flow of info? 1) Rule: Red Lion not apply in Cable TV context b/c no technological scarcity 2) O’Brien intermediate scrutiny applies to govt reg of cable. Internet - access/allocation issues? 1) No scarcity or access problems - concern now is censorship.

j.

k.

56

IV. THE FIRST AMENDMENT: RELIGION: A. OVERVIEW OF THE RELIGIION CLAUSES – 04-11-01: Mag’s Summary: FE THE RELIGION CLAUSES AND THEORIES ESTB CL WEAK PROTECTION
  

1.

  

Non-discrimination Permissive accommodation Mandatory accomodation STRONG PROTECTION

Non-preferentialism Non-endorsment Separation

??? how is this strong protection on ESTB CL side – protection of what? Mag’s Questions: Textual Sources:  p1461-1471.  Chem at

2.

3.

57

B. FREE EXERCISE OF RELIGION I – 04-13-01: Mag’s Summary: a. Chart

1.

b.

Accommodation of Religion 1) Compelled by FE? 2) Barred by ESTB CL? 3) Up to govt discretion?

2.

Mag’s Questions: Textual Sources:  p1471-1489  Chem at

3.

58

C. FREE EXERCISE OF RELIGION I: EMPLOYMENT DIVISION V. SMITH – 04-18-01: Mag’s Summary – Major Issues in Smith: a. Stare decisis – distinguishing precedent b. Scalia’s objections to strict scrutiny in FE. c. Legislative v. judicial balancing and problem of minority religions. 1) Shifts 1A regime from mandatory accomodation to permissive accomodation. Mag’s Questions: Textual Sources:  p1489-1500  Supp at p149.  Chem at

1.

2.

3.

59

D. THE ESTABLISHMENT CLAUSE I: ENSHRINING OFFICIAL BENEFITS IN PUBLIC SCHOOLS – 04-20-01: Mag’s Summary – Lemon Test: a. Test 1) Primary Purpose: 2) Effect: a) Non-endorsment (O‘Connor). b) Non-coercion (Kennedy) 3) Non-entanglement: b. Problems: how to reconcil primary purpose and non-entanglement prongs. Mag’s Questions: Textual Sources:  p1500-1519  Supp at p151  Chem at

1.

2.

3.

60

E. THE ESTABLISHMENT CLAUSE II: DISPLAY OF RELIGIOUS SYMBOLS AND GOVERNMENT AID TO RELIGION – 04-22-01: Mag’s Summary: a. Modes of Analysis: 1) Lemon test 2) Endorsement test (O‘Connor in Lynch) 3) Non-preferentialist test (majorities in Lynch and Mueller) b. Issues: 1) Lynch: public display and religious symbols. 2) Mueller: financial aid to religious schools. Mag’s Questions: Textual Sources:  p1519-1540; 1548-1553  Supp at p152-161.  Chem at

1.

2.

3.

61


				
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