CONSTITUTIONAL LAW II – Lupu – Spring 2011:

I.  First Amendment: Congress shall make no law…abridging the freedom of speech…

  1. History:
  2. Rule against English regime of licensing the press
  3. Control who gets to publish, rather than what gets published
  4. Religion (core speech)
  5. Politics (core speech)
  6. English law of seditious libel: crime at CL to make speech that puts gov’t or officers of gov’t in disrepute
  7. Truth not a defense
  8. Zenger trial: argued truth as a defense, acquitted
  9. Alien and Sedition Acts: Jefferson pardoned the convicted, Congress repealed
  10. Purposes:
  11. Protect core political speech/Dissent as a form of self governance
  12. Attempt to replace elected officials by criticizing their performance
  13. Converse about public affairs
  14. Create marketplace of ideas/Part of wider society’s search for truth
  15. Justifies certain interventions because of “market failure”
  16. E.g. can’t shout fire in a crowded theater
  17. No time for deliberation, debate, discourse
  18. No value because no fire
  19. Protects rights of privacy, dignity, self-expression, and autonomy
  20. Covers art that falls outside of political culture, and is not made in search for truth, but involves autonomous self expression
  21. Speech Regulations

i.  Content-Based or Non-Content-Based?

  1. If Content-Based:
  2. Must meet strict scrutiny OR
  3. Compelling gov’t interest?
  4. Narrowly tailored?
  5. DO have to use least restrictive means
  6. N.B. Burden on gov’t to find alternative means of regulation, to regulate most narrowly
  7. Must fall into category of unprotected speech
  8. Incitement, Fighting words, True threats, Defamation, Obscenity, Child pornography
  9. If Content-Neutral: (Time, Place, Manner: medium/means of communication)
  10. Less demanding standard of review for TPM restrictions/kind of intermediate scrutiny
  11. Content neutral?
  12. Substantial/significant gov’t interest?
  13. Narrowly tailored?
  14. DO NOT have to use least restrictive means
  15. Leaves open ample alternative channels of communication?
  16. Alternative channels of communication need not be equally good as one restricted
  17. N.B. Burden on speakers to say things at other times/in other places/in other ways
  18. Content-Based: Republican Party of MN v. White (2002): announce clause prohibits candidates for judicial election to announce views on disputed legal and political issues
  19. Strict Scrutiny
  20. Compelling gov’t interest?
  21. Yes/No: impartiality/appearance of impartiality: Court debates relevant meaning of impartiality in judicial context
  22. No bias against parties to proceeding
  23. Not at issue here
  24. No preconceived legal viewpoint
  25. Judges have views on legal issues: transparency
  26. Willingness to consider opposing views
  27. Underinclusive: can announce views before candidacy and after election
  28. Narrowly tailored?
  29. Might have to use least restrictive means
  30. No: can use motions for recusal to remove judges that are not impartial, e.g.
  31. Content neutral: Renton v. Playtime Theaters (1986): zoning ordinance prohibits adult movie theater from locating within 1,000 feet of residential zone, family dwelling, church, park, school
  32. NOT content-based because focused on secondary effects of theaters on community, not on content of films themselves
  33. Primary effects: arouse viewers, entertain
  34. City not concerned with effect on viewers of material
  35. Not worried about harassing women, committing sex crimes, e.g.
  36. Distinguishable from Boos v. Barry (1988): DC regulation prohibiting negative placards within 500 feet of embassy
  37. Was concerned with primary effect of angering/ embarrassing diplomats who saw signs
  38. N.B. Hybrid: Place: 500 ft., Manner: placards, Content: negative
  39. Secondary effects:
  40. City concerned with ambience of neighborhoods, protecting children from seeing inappropriate movie names, posters, etc.
  41. See also dispersal zoning of certain kinds of businesses in Detroit held constitutional
  42. Adult films protected but low value speech
  43. TPM regulation: regulates place of adult movies theaters, does not ban completely
  44. N.B. Renton something of outlier case
  45. Zoning case AND
  46. Adult film case (protected but low value speech)
  47. Content-Based Restrictions: Categories of Unprotected Speech

i.  Incitement: A says to B, “Go do something to C.” Promotive.

  1. Brandeis concurrence in Whitney v. California (1927):
  2. First defense of freedom of speech for political radicals
  3. Marketplace of ideas
  4. Remedy for evil counsels is good ones
  5. Balancing risks of repression with risks of speech:
  6. Concerns go underground if not expressed, don’t go away
  7. Concerns may be legit, and society will miss out on hearing them because expressed in angry/violent terms
  8. Can only justify suppression of speech in market failure situation
  9. Advocates stricter rule than Brandenburg:
  10. Incitement to imminent lawless action
  11. Representing serious/grave harm to state
  12. Brandenburg v. Ohio (1969): Leader of KKK convicted under criminal syndicalism statute for advocating crime/violence as means of political reform, and for assembling with group to teach/advocate those doctrines. Local reporter called to attend and film KKK rally at farm. Cross burning, disparaging remarks about blacks and Jews.
  13. RULE: Gov’t cannot prohibit advocacy of crime/force unless:
  14. Directed toward inciting or producing imminent lawless action AND
  15. Likely to cause such action
  16. Ohio statute unconstitutionally overbroad because not narrowly limited to speech that fits within this rule
  17. N.B. Because law overbroad, Court does not look to Brandenburg’s speech to see if incitement
  18. “If things keep going this way, there might have to be some revengeance taken” not imminent:
  19. Spoken on farm, far away from anyone to harm
  20. Conditional
  21. Compare Sipsey Street Irregulars blog post: Break their windows. Break them now!
  22. Directed toward inciting or producing:
  23. Imminent
  24. No: time for reflection and counterspeech
  25. Lawless Action AND
  26. Yes
  27. Likely to cause such action:
  28. Questionable: Paradigm incitement case is the lynchmob: guy on the steps of the jail, speaking to the mob, with a rope in his hands
  29. Physical proximity
  30. Can act immediately
  31. Speaker directly in front of crowd
  32. N.B. Incitement is about urging others to act.
  33. No imminence requirement for charge of conspiracy to plot acts of terrorism
  34. Harm is in pledge to go forward with act
  35. No imminence requirement for charge of aiding and abetting a crime
  36. Harm is in giving material aid to person who is likely to commit crime e.g. seminar about how to cheat on taxes

ii.  Fighting Words: A says to B something that provokes B to fight A. Reactive.

  1. Chaplinsky v. State of NH (1942): Statute as construed prohibits words with direct tendency to cause violence by person to whom, individually, remark is addressed.
  2. Objectively defined: what men of common intelligence would understand as words likely to cause average addressee to fight
  3. Here, “damned racketeer” and “damned Fascist”
  4. N.B. MUST be uttered face to face, or with such physical proximity that chance of market failure/imminent violence is high
  5. N.B. Most likely has to be a personal insult.
  6. Other types of speech, like wearing a Bin Laden t-shirt to a 9-11 memorial might have a direct tendency to cause violence but are not addressed to an individual
  7. Protects many valuable general political statements that make people angry
  8. E.g. Marches in Civil Rights Movement
  9. But see Cohen v. California (1971): Disturbing the peace conduct statute applied to Cohen wearing Fuck the Draft jacket in courthouse unconstitutional
  10. “Fuck” not directed to individual as personal insult
  11. Not intended to provoke and did not provoke violence
  12. Protecting sensitive hearers does not justify restriction on speech
  13. Not captive audience, no expectation of privacy or seclusion
  14. E.g. soundtrucks blaring outside houses
  15. Burden on hearers to look away if offended, not to react with violence
  16. State cannot regulate choice of words as matter of morality
  17. Dual communicative function of words:
  18. Ideas AND
  19. Emotions
  20. Severe fair warning problem:
  21. What words are prohibited and what are not?
  22. Enforcement problem:
  23. Might only enforce against unpopular messages
  24. E.g. Not against Fuck the draft dodgers
  25. People will just get around the prohibited words
  26. E.g. Muck Fizzou
  27. N.B. As-applied adjudication: Statute not held facially overbroad because is conduct statute applied here against speech acts
  28. NOT hate speech generally
  29. R.A.V. v. City of St. Paul (1992): Ordinance prohibiting placing symbol/object/etc. on public property that KoshK arouses anger/alarm/resentment on basis of race/color/creed/religion/gender as disorderly conduct unconstitutional. RAV burned cross made of broken chair legs in black family’s yard.
  30. Distinguishing Virginia v. Black: not charged with threat (unprotected category)
  31. Problems with ordinance:
  32. Concurrence: Overbroad: Covers more than just fighting words
  33. E.g. alarm/resentment
  34. Proximity problem here: not uttered face to face
  35. Covers speech on matters of public concern/with 1A value
  36. E.g. Hillary Back in the Kitchen, Repeal the 14th Amendment, Catholics Hide Pedophile Priests
  37. **Underbroad: Does not prohibit all fighting words**
  38. Content-based: Race/color/creed/religion/gender
  39. Viewpoint-based: Prohibits signs saying black people suck, but allows signs saying people who don’t like black people suck.
  40. N.B. Plurality: Even though unprotected category of speech, gov’t cannot make laws discriminating based on content and viewpoint within category
  41. This line of reasoning has not had generative power outside of anti-bias laws.
  42. But cf. Hate crime sentencing enhancements (non-speech crimes, victims selected on basis of membership in protected class): Wisconsin v. Mitchell: Motive for crime always relevant to criminal law
  43. E.g. Malice aforethought sentence enhancer for homicide
  44. Have a 1A right to malice, and to express it in certain ways, but not to act on it.
  45. But, evidence problem: Dawson v. DE: cannot introduce evidence of white supremacist literature found at D’s house without independent evidence of bias in victim selection

iii.  True Threats

  1. Virginia v. Black (2003): KKK gathering and cross burning on private property. Convicted under cross burning statute that made it illegal to burn a cross with the intent of intimidating any person or group of persons.
  2. H: True threats are unprotected category, but law was overbroad, because burning cross cannot be treated as prima facie evidence of intent to intimidate
  3. May be done to express hate, group values and not to intimidate (this would be constitutional).
  4. RULE: Speaker means to communicate:
  5. Serious expression of Intent* to commit an act of unlawful violence
  6. to Particular individual or group of individuals
  7. Speaker need not actually intend to carry out threat
  8. Forestalls defense of “I didn’t intend to”
  9. No imminence requirement—I will get you in 2013 is a threat.
  10. No face-to-face requirement—Threats can be anonymous, over phone/mail/email.
  11. Distinguishing R.A.V.: State can outlaw threat of violence to a group but not expressions of hatred about group
  12. No content/viewpoint discrimination: burning cross with intent to intimidate anyone is illegal
  13. In practice, probably would not burn cross to intimidate white person
  14. Harm different: fear of bodily harm itself is harm, is more disturbing than feeling unwelcome or hurt
  15. Victim may restrict freedom of action
  16. Victim may expend resources to protect freedom of action
  17. Greater possibility of violence:
  18. Extra-lawful self help: get him before he gets me
  19. Likelihood of following through with violence greater after threat: must follow through to keep credibility
  20. No additional speech can cure harm, except credible withdrawal of threat by threatener
  21. Harm still exists in time before withdrawal

iv.  Defamation: Libel and Slander

Person? / Concern? / Standard for liability
Public official / Official conduct / Actual malice
Public official / Public concern
e.g. accused of crime in private life / Actual malice
Public official / Private concern / ?
Public figure* / Public concern / Actual malice
Public figure / Private concern / ?
Private figure / Public concern / Negligence
Private figure / Private concern
e.g. Dunn & Bradstreet: Company falsely defamed when lenders saw false credit report on company trying to borrow $ / Strict Liability

Standards give press guidance about whether to publish/not based on liability risk

Standards balance public’s right to know with person’s harm/ability to respond with reparative counterspeech

  1. *Must be voluntary public figure
  2. New York Times v. Sullivan (1964): Montgomery, AL Commissioner sued over ad in NYT that described alleged conduct by Southern officials, alleging libel
  3. Court adopts actual malice standard:
  4. Burden on P to prove statement was made with actual malice:
  5. Knowledge that statement was false OR
  6. Reckless disregard as to truth/falsity of statement
  7. High bar: e.g. information in hand that makes it highly probable that statement is false
  8. Rationale: Dangers of self-censorship arising from potential tort liability
  9. Err on the side of publishing, not on the side of not publishing
  10. Better to get out false stories than to leave true stories on cutting room floor
  11. Marketplace of ideas/more speech can cure harm
  12. Particularly for public officials/figures, if they are criticized in press, they will then have opportunity/attention from press to respond
  13. N.B. Mistrust of juries in this line of cases: To have case sent to jury:
  14. P must prove defamation/injury to reputation
  15. P must prove falsehood
  16. P must prove actual malice by clear and convincing evidence
  17. Appellate review of falsehood and actual malice is de novo
  18. But cf. Intentional Infliction of Emotional Distress
  19. Harm/cure different from defamation
  20. Defamation: Reputational harm/cured by more speech, correct information
  21. IIED: Emotional distress/cured by tort damage award
  22. More speech cannot cure the harm in IIED
  23. Hustler v. Falwell (1988): Parody ad
  24. When P is a public official/figure, D is immune from suits for IIED
  25. Reasoning: Protecting cartoon/parody/satire
  26. People voluntarily opened themselves up to it by stepping into public sphere
  27. Reasoning: Danger of jury discretion about what is decent/indecent, what is outrageous
  28. Particular problem of local juries protecting locals from embarrassment by outside press
  29. Snyder v. Phelps (2011): WBC protests military funeral, other places, with signs mixing public and private concern. Immune from suit for IIED.
  30. Reasoning for constitutionality: Protest in public place, where protestors had a right to be
  31. No intrusion on seclusion
  32. Not captive audience
  33. Reasoning: Speech on a matter of public concern
  34. “Predominant thrust and concern of message” must be matter of public concern
  35. Speech on matter of public concern must not be pretext for private vilification
  36. Lurking constitutional question: Why do public place and public concern immunize here?
  37. E.g. would be liable for defamation/incitement/fighting words in a public place on a matter of public concern
  38. Distinguishable because of jury discretion problem: Content-based tort with vague standards—driven by local community norms, won’t be uniformly applied
  39. Harm is different: One person vs. broader public harm
  40. Even in defamation, harm is to the public discourse in some ways

v.  Obscenity

  1. Roth v. United States (1957): Obscenity an unprotected category.
  2. Definition from Miller v. California (1973):
  3. whether the average person, applying contemporary community standards would find that the work, taken as a whole appeals to the prurient interest
  4. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law AND
  5. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
  6. N.B. Obscenity problems:
  7. Serious vagueness/fair warning problem: very little guidance to publishers and authors as to what juries will think it prurient
  8. Contemporary community standards vary by locality
  9. But Court says standards for what material has value must be uniform nationwide.
  10. Problem of harm:
  11. 50s arguments: Promotes antisocial conduct
  12. Proof problem
  13. Must be imminent lawless sexual conduct
  14. Debases the culture of marriage/sex/family
  15. State cannot shape the culture coercively by suppressing alternative views
  16. Threatens the Protestant work ethic
  17. Feminist critique: Obscene material shapes the way culture views women
  18. Obscenity doctrine basically made irrelevant by advances in technology and changes in culture

vi.  Child Pornography