ConLaw 4 Outline – Samaha 2008

  • Introduction
  • “Freedom of speech” considered a term of art – refers to a particular type of speech
  • Text of the First Amend only prohibits “Congress” from abridging free speech, but functional reading must include President
  • First incorporated to the states through the due process clause of the Fourteenth
  • SPEECH: Regulatory Interests and the Value of Communication
  • Theories of Value
  • Libertarian – autonomous individual decisions
  • Political – democratic decisions
  • Economic – info as public goods
  • Consequentialist – speech as an end in itself
  • Historical – fidelity to past decisions
  • Speech Inciting Lawbreaking – Early Doctrine
  • “Clear and Present Danger”
  • Schenck v US: circulation of pamphlet criticizing conscription to the army during WWIcould be prohibited by Congress during a time of war because it presented a “clear and present danger”
  • Rationale: though such language might normally be protected by the freedom of speech, in the context of a war it could be prohibited by Congress
  • Applying “Clear and Present Danger”
  • Debs v US: “intent” and “audience” key factors in determining clear and present danger
  • Abrams v US: focus on immediacy requirement in “clear and present danger” test
  • Deference to Legislature
  • Gitlow v NY: manifesto advocating the overthrow of gov’t could be criminalized by legislature, not protected by FOS
  • Rationale: deference to the legislature in this scheme, no longer a requirement of immediacy
  • Holmes’ Dissent: no realistic possibility of inciting violence in this case, no evidence that ppl were preparing to overthrow gov’t, thus protected speech
  • Whitney v CA: statute prohibiting “associating” w/ criminal syndicates not a violation of due process
  • Rationale: deference to the legislature again
  • Concurrence: there must be an inquiry into the immediacy and clarity of the danger
  • Reformulation of Clear and Present Danger: The Hand Formula
  • Dennis v US: highly organized communist group that was conspiring to overthrow gov’t not protected for promulgation of communist doctrine advocating revolt under FOS
  • Rationale: repudiation of Gitlow/Whitney standard of legislature deference; new standard – does gravity of ‘evil’ discounted by its probability require invasion of free speech?
  • Sleeper-Cell Problem: gov’t not required to wait until a speaker gives the signal to revolt; if the seriousness of the situation is grave then gov’t can intervene earlier to avoid being too late
  • Yates: speech protected if it advocates abstract doctrine which favors overthrow of gov’t/unlawfulness, even if speaker hopes audience will adopt such doctrine
  • Scales: require “specific intent” and “active membership” in organization that seeks to accomplish goals of group through violence
  • Emerging Speech Categories
  • Brandenburg’s Re-Re-Formulation: Speech Inciting Unlawful Behavior
  • BrandenburgvOH: participant in KKK rally threatening “revengeance” for gov’t action protected by FOS
  • Rationale: state cannot prohibit advocacy of force or law breaking unless such advocacy is
  • Directed at inciting/producing
  • Imminent lawless action; and
  • Is likely to produce such action
  • Application of Brandenburg
  • Hess v IN: “well take this fucking street later” stated while police clearing street of demonstrators
  • Rationale: protected by FOS b/c it wasn’t “intended to incite imminent disorder,” at best it was a “counsel to present moderation”
  • NAACP v Claiborne: FOS protects language inciting retaliation to certain persons b/c such retaliation happened months after language was spoken
  • Rationale: mere “advocacy” of violence not enough to fulfill Brandenburgelements, must be evidence of “imminent” lawless action, of which there was none b/c alleged action happened weeks after speech
  • Fighting Words
  • Chaplinsky v NH: FOS does not protect words that would “provoke the average person to retaliate or fight”
  • Rationale: court categorizes and balances
  • Categorization: fighting words outside the scope of the first amend
  • Balancing: fighting words do not have social value in comparison to their tendency to do harm; balancing at a general level, not on a case by case basis
  • Cantwell v CT: state has the power to prohibit situations that pose an “immediate threat to public safety, peace or orders…[but may not prohibit] free communication of views…under the guise of conserving desirable conditions.”
  • Rationale: “efforts to persuade” protected by FOS e/t they may be offensive to some
  • Gooding v Wilson: statute prohibiting “opprobrious words or abusive language tending to cause a breach of the peace” facially invalid b/c it swept in protected speech
  • Rationale: Chaplinsky mandates fighting words doctrine to be limited to words that have a “direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.”
  • TX v Johnson: burning the flag in front of a crowd of onlookers not subject to fighting words doctrine b/c no reasonable person would interpret the gesture as an invitation to fight
  • Rationale: fighting words doctrine limit to language directed face-to-face to individuals
  • Hostile Audiences
  • Feiner v NY: upholding speaker’s arrest because of crowd agitation given “imminence of greater disorder” and defiance of police by speaker
  • Dissent: police should have made all reasonable attempts to protect the speaker from the crowds disorder, which they did not do
  • But, see…
  • Edwards v SC: reversal of conviction for breach of peace; “[FOS] does not permit the state to make criminal the peaceful expression of unpopular views
  • Cox v LA: breach of peace conviction for protesting where no evidence of fighting words or violence by speakers
  • Licensing Alternatives: ordinances giving police sheriff discretionary power to refuse the right of citizens to speak on public streets violates FOS (Forsyth, Kunz)
  • Speech Injuring Reputation
  • NYT v Sullivan: mere false statements about a public official protected by FOS from damage awards under defamation claim
  • Rationale: fundamental need for robust political speech by the public which needs “breathing room” in the form of false statements
  • NYT Standard: for recovery by public official for defamation, must show
  • False statements; and
  • Actual malice
  • Defined as knowledge that the statement was false, or reckless disregard as to whether or not it was false
  • Identity of the individual
  • Public official: must show actual malice (NYT)
  • Public figure: must show actual malice (Butts)
  • Private figure: state law, no need for actual malice (Gertz)
  • Identity of defendant
  • Media: subject to actual malice standard (NYT)
  • Non-media: exempt from actual malice standard (Dun & Bradstreet)
  • Nature of matter discussed
  • Public concern: subject to actual malice standard (NYT)
  • Private concern: maybe not subject to actual malice standard (Dun & Bradstreet)
  • Speech injuring Feelings
  • Offensive Language
  • Cohen v CA: interest in “public morality” not substantial enough to outweigh the value of allowing freedom of expression to use curse words in public
  • Rationale:
  • No standard to distinguish which words are prohibited
  • Curse words contain a valuable emotive aspect of expression
  • Forbidding certain words runs a substantial risk of suppression viewpoints
  • Libertarian theme of self-help; turn-away
  • Emotional Distress
  • Public Figures may not recover for IIED w/o fulfilling the NYT standard despite speaker’s intent to do emotional harm
  • Privacy
  • [look over this stuff]
  • Racist Content
  • Beauharnais v IL: law prohibiting “group libel” through the posting of publications that attack a certain class of citizens is not a violation of FOS
  • Rationale: legislature may have legitimate interest in punishing racially driven hate speech in a multicultural community
  • Content-based discrimination
  • RAV v St Paul: statute prohibiting certain types of hate speech that might anger a listener unconstitutional b/c ordinance impermissibly discriminates based on content
  • Rationale: ???
  • True Threats
  • VA v Black: statute prohibiting the use of cross burning to intimidate unconstitutional b/c provision establishing cross burning as prima facie evidence on intent to intimidate was overly broad
  • Rationale: threats are not protected by FOS, but presuming intent to intimidate through cross burning may qualify using cross burning to make some other statement as threats
  • Sexually Explicit Content
  • Obscenity
  • Early Development
  • Roth: obscene material that appeals to the prurient interest
  • Redruping: case by case review for obscenity b/c no court consensus on a test
  • Miller/Slanton Formulation
  • Miller v CA: sexual obscenity is a category outside the scope of FOS, and authority to regulate obscenity can be exercised by the states under following guidelines for trier of fact
  • Whether average person under contemporary community standards would find that work taken as a whole appeals to the prurient interest
  • Whether work describes or displays, in a patently offensive way, sexual conduct specifically defined by state law
  • Whether work taken as a whole lacks serious literary, artistic, or political value
  • Paris Ault Theatre v Slaton: states can regulate obscene material in a public setting between consenting adults
  • Rationale: state has legitimate interest in stemming the flow of commercialized obscenity beyond the rationale for protection of minors; this is part of the rationale for excluding obscenity from FOS protection
  • Private Obscenity
  • Stanley v GA: state cannot regulate obscene material viewed in a private context for the purpose of protecting individuals from obscene thoughts
  • Rationale: first amend right to receive information regardless of the content of that information
  • Child Pornography
  • NY v Ferber: child pornography is a distinct category of material not protected by FOS; no need for material to be obscene
  • Rationale: compelling state interest in protecting the psychological well being of children; permanent record of abuse & distribution controls
  • Miller modification for child porn
  • Needn’t prove appeal to prurient interest
  • Needn’t be patently offensive
  • Not as a whole, though simple nudity insufficient
  • Osborne v OH: Stanleyruling inapplicable to child pornography, thus simple possession may be outlawed
  • Ashcroft v Free Speech Coalition: child pornography justifications do not extend to visual depictions of perceived child pornography w/ adults posing as children
  • Miscellaneous Sexually Explicit Expression
  • Nudity as Entertainment
  • Erznoznik v Jacksonville: ban on showing films displaying nudity at drive-in theaters unconstitutional b/c it prohibits a certain class of speech based on content
  • Rationale: drive-in movie theaters can be avoided if person would like to avoid the offensive material, libertarian self-help ala Cohen
  • Schadv Mount Ephraim: entertainment speech displaying nudity w/in protection of the FOS absent substantial gov’t interest
  • Zoning and Secondary Effects
  • Young v American Mini Theatres: “adult movie theaters” could be classified separately from general movie theaters based on content
  • Secondary Effects: substantial gov’t interest in limiting the negative effects that such theatres are associated w/
  • Renton v Playtime: adult theatre regulations are legitimate content-neutral regulations when the regulation is aimed at the secondary-effects that such theatres cause, not at the regulation of the content shown in those motion pictures
  • Captive Audiences & the Child Welfare Rationale
  • Captive Audiences
  • FCC v Pacifica: FCC may regulate certain “indecent” broadcasts w/o deeming those broadcasts “obscenity,” FCC has authority to “channel” broadcast to certain times to separate the adult audience from children
  • Rationale: invasion into the privacy of the home of broadcast television; accessible to children
  • Rowan v US Post Office: persons may exercise an opt out right to terminate delivery to their home of sexually explicit materials
  • Sable Communications v FCC: total ban on indecent telephone message prohibited b/c such messages are protected by FOS
  • US v Playboy: law requiring cable operators to scramble or confine to late night television sexually indecent programming unconstitutional b/c too much of a burden on cable operators
  • Rationale: cable, as opposed to broadcast television, can have certain channels blocked by viewers
  • Reno v ACLU: law prohibiting the display of indecent material to minors over the internet unconstitutional
  • Rationale: internet is not as invasive as broadcast television, and is a more expressive medium; impossible to define an “adult zone” on the internet, thus all speech will be reduced to speech appropriate for children
  • Speech Related to Commerce
  • Speech Threatening Commerce
  • Zacchini v Scripps-Howard Broadcasting: first amend. does not protect media when it infringes on a performers right to publicity
  • Eldred v Ashcroft: extension of copyright act does not burden expression, but does the opposite by securing adequate incentives for authors to create more expression
  • US v Genovese: FOS does not permit the sale of trade secrets for economic benefit
  • Cohen v Cowles: press not protected by first amend. from an action in promissory estoppel
  • Speech Promoting Commerce
  • Central Hudson Gas v Public Service Comm’n: state law prohibiting utility company from engaging in advertising to increase the demand for energy unconstitutional prohibition of speech because the law suppressed commercial speech not related to the gov’t interest asserted
  • 4 Part Analysis for Commercial Speech Restrictions
  • Is activity lawful/misleading?
  • Is the gov’t interest substantial?
  • Does regulation directly advance the interest?
  • Is the regulation narrowly tailored?
  • Florida Bar v Went for it, Inc: law restricting contact of accident victims by lawyers meets commercial speech restrictions
  • SPEECH: Regulatory Character and its Effect on Judicial Scrutiny
  • Generally
  • Defining Speech
  • Spence v WA: upside down flag meant to protest the invasion of Cambodia qualifies as speech
  • Rationale: speakers intent + context which audience would receive message
  • Problem: this definition doesn’t necessarily mimic the value we think certain speech has (Monet v Graffiti)
  • Hurley v GLIB: participation in parade qualifies as a form of “expression” protected by FOS
  • Rationale: no need for there to be a particularized message
  • Theme: a broad definition of speech is created here b/c it makes it harder for gov’t to regulate in these areas by claiming that certain things are not speech, and thus not subject to first amend scrutiny
  • Content-based or Content Neutral
  • Concept – regulator targeting speech b/c of a specific message
  • Sources – text, justification, motive
  • Significance – strict scrutiny
  • Viewpoint & Subject Matter
  • Subject-matter regulation: an entire topic of discussion
  • Viewpoint regulation: singling out ideas or a particular side of the debate
  • Both types of regulation trigger strict scrutiny
  • Strict Scrutiny: for regulation to pass, requires
  • Real and compelling state interest
  • Narrowly tailored regulation to serve the interest
  • Content-Neutral or Content-Based
  • US v O’Brien: statute prohibiting destruction of draft cards was primarily aimed at conduct and had an incidental restriction on speech, thus was subject to a reduced level of scrutiny
  • Rationale: burning of draft card had both “speech” and “non-speech” elements, and interest in regulating the non-speech element made the statute content-neutral
  • O’Brien Test of Intermediate Scrutiny
  • Asserted interest “unrelated to the suppression of free expression”
  • Regulation furthers an important gov’t interest
  • Incidental restriction on speech is “no greater than is essential” to the furtherance of the interest (need not be least restrictive)
  • Arcara v Cloud Books: closure of adult book store by the state for soliciting prostitution not a burden on the proprietor’s speech b/c the sale of books was incidental to the closure
  • Rationale: there seems to be no judicial scrutiny here
  • TX v Johnson: state statute prohibiting flag desecration invalidated under strict scrutiny standard
  • Rationale: gov’t interest in preserving “national unity” focused on the communicative aspect of flag burning, which amounted to a content-based regulation
  • Public Nudity Bans – Barnes v GlenTheatre, City of Erie v Pap’s AM (*21-22)

Judicial Scrutiny Flow Chart

  • Gov’t Friendly Contexts
  • Permissible Time. Place. and Manner Regulation
  • Ward v Rock Against Racism: gov’t may impose reasonable restrictions on time, place, and manner of speech in a public forum
  • Rationale: provides gov’t w/ a lot of power to regulate based on TPM, so long as they can show the regulation is content-neutral; identical to O’Brien standard for intermediate scrutiny
  • Ward Criteria for Permissible TPM Regulation – must be
  • Justified by a significant gov’t interest
  • Leave open alternate channels to communicate information
  • Content-neutral, not content-based
  • Impermissible Total Medium Bans
  • Schneider v State: total ban on leafleting invalidated e/t gov’t has substantial interest in reducing littering
  • Rationale: court applies a sort of strict scrutiny, and requires the city to adopt narrow means of regulation by outlawing littering instead of banning leafleting altogether
  • Martin v Struthers: total ban on door-to-door distribution of handbills invalidated b/c such distribution is essential to the cause of poor ppl
  • Rationale: again, the concerns that the city has in reducing crime and annoyance can be accomplished through more narrowly tailored regulation
  • City of Ladue: total ban on the display of most types of signs invalidated b/c it suppresses too much speech
  • Rationale: again, more moderate laws could solve the problem of “visual clutter” the city wanted to eliminate, important role signs play in political campaigns was a factor
  • Members of City Council v Taxpayers for Vincent: O’Brien scrutiny used to uphold ban on signs posted on public property
  • Rationale: court sees this as a content-neutral regulation that addresses the particular problem of too much signage on public property
  • Problem: unclear whether this is a TPM regulation of signage, or a TMB on signs on public property; makes it difficult to determine when there exists a TPM restriction, and when there exists a TMB
  • Gov’t Property/Forums – regulation specifics when dealing w/ gov’t property
  • Traditional – tradition requires these places be open to public debate/assembly (parks, streets); therefore gov’t may not prohibit all forms of communication
  • Designated – public property which has been opened for use of the public as a place for expressive activity; gov’t bound by rules of traditional public forum so long as this forum remains open/designated
  • Limited – nonpublic forum where the gov’t allows limited access for some expressive activity
  • Non-public – public property not by tradition or designation a forum for public communication; state may reserve this forum for its intended purposes so long as regulation is reasonable and not content-based
  • PEA v PLEA: teacher mailboxes at schools were non-public gov’t forums which could restrict access by rival union groups
  • Rationale: restriction was not viewpoint-based, but rather based on status as the rival group was not the official teacher’s union, and restriction was reasonable