I. Constitutional Interpretation & the Judicial Role

  1. DECLARATION OF INDEPENDENCE
  2. C’s Purpose: protect unalienable, natural rights
  3. Gov’t’s Purpose: promote equality and unalienable, natural rights
  4. 1st A’s Purpose: limit gov’t suppression of FS based on gov’t’s interest in suppression
  1. ROLE OF COURTS
  2. Judicial Supremacy: SCOTUS is supreme interpreter of the C (SoP)
  3. Federalist 78
  4. Hamilton wrote to justify Judicial Supremacy
  5. Argument: Courts will NOT be elevated above Congress, because the C is above both Courts and Congress, and the people are above the C
  6. Congress: exercise will of the people
  7. Courts: exercise judgment over that will
  1. SOURCES OF CONSTITUTIONAL INTERPRETATION
  2. The Text: start here, but often vague or ambiguous
  3. Original Understanding: effectuates framer’s intent, but may be out of date, or unclear
  4. Precedent: promotes stare decisis and stability, but precedent may be wrong, or the case may be one of first impression
  5. LegalTraditions: look to consensus of state action, but may be unclear, or non-existent
  6. ContemporaryValues: promotes idea of the “People’s C,” but constantly evolving, and promotes majority rule
  7. Policy: justice as the purpose of C, but creates blurry SoP, and differing policy beliefs lead to inconsistent outcomes
  1. ACTIVISM VS. RESTRAINT
  2. Activism: non-deferential to legislature; uses legal traditions, contemporary values, and policy to protect minority rights (Living C)
  3. Restraint: deferential to legislature; uses the text, original understanding, and precedent to protect majority rule (Historical C)
  4. Calder v. Bull (1798)
  5. I: debate over natural law
  6. J. Chase: judges can strike down laws violating natural justice
  7. Implicit Unconstitutionality
  8. Activism / Living C
  9. Blurry SoP
  10. J. Iredell: Courts can enforce ONLY the C
  11. NO implicit Unconstitutionality
  12. Restraint / Historical C
  13. Sharp SoP
  14. N: welfare state paradox
  15. J. Chase: although liberal, would see violation of natural rights, and t/f implicit UC, in taking $ from one and giving to another
  16. J. Iredell: although conservative, would NOT see violation, b/c NO express prohibition in C
  1. LIVING VS. HISTORICAL C
  2. Living: b/c C will last forever, must be flexible in order to reflect contemporary values and policy judgments
  3. Historical: purpose of C is to constrain and limit gov’t, so limit interpretation to text, original understanding, precedent, and older legal traditions (flexibility diminishes meaning; NOT an aggregate of suggestions)
  1. FREEDOM OF EXPRESSION
  2. Rationales for Protecting Free Speech
  3. Major Theories
  4. Marketplace of Ideas: truth will win out in the long run
  5. But . . . assumes people make rational decisions, and in the long run, we are all dead
  6. Democratic Self Governance: PS necessary to inform the people, who form the democracy
  7. But . . . only protects PS, and what if bad people win out (i.e. Communists), will lose democracy
  8. Individual Autonomy: human freedom requires the ability to express one’s self w/out gov’t censorship
  9. But . . . if all speech further autonomy protected, hard to draw line b/t expression and criminal conduct (i.e. terrorism)
  10. Minor Theories
  11. Checking Function: hold gov’t accountable, even in non-democratic gov’t
  12. Safety Valve: allow blowing off steam, so less likely to take drastic action
  13. Articles of Peace: where majority doesn’t censor minority, have civil harmony
  14. History of Free Speech
  15. 1st A Text
  16. “Congress shall make no law . . . abridging the freedom of speech.”
  17. Three Early Interpretations
  18. Blackstone @ CL / Federalists: no prior restraints, but subsequent punishment for BT (i.e. put gov’t in ill repute) OK
  19. Would NOT allow licensing schemes
  20. Minimalist view of FS
  21. Jeffersonian / Federalism: referencing text, Congress has NO power; rather, states have ALL the power
  22. Ex: even to prevent sinking American ship, can NOT suppress speech
  23. Ask states
  24. Madisonian: subset of Jeffersonians, but MUST protect PS for democracy to function
  25. Early Minority
  26. Sedition Act of 1798
  27. First federal limitation on speech prohibiting publication of false, misleading, or scandalous writing a/g gov’t w/ intent to defame
  28. Jeffersonians  UC, b/c federal law
  29. Madisonians  UC, b/c targets PS
  30. Demonstrates lack of speech protections at founding
  31. Important Quotes
  32. J. Harlan: if deviate from original understanding, violate / amend C
  33. J. Brennan: should read C in light of contemporary values
  34. J. Black: reference to policy usurps legislative authority

II. Freedom of Expression

  1. CONTENT BASED RESTRICTIONS - DANGEROUS IDEAS AND INFORMATION
  2. Advocacy of Unlawful Action
  3. Introduction
  4. Not much public support for WWI (opposition from isolationists and immigrants)
  5. Congress responds w/ Espionage Act, targeting…
  6. False stmts used to hurt US or help enemies;
  7. Insubordination, disloyalty, or refusal of duty in armed services;
  8. Obstruction of draft
  9. Important Elements in Analysis (ALL used by Brandenburg)
  10. Clarity of Harm
  11. Probability Harm will Occur
  12. Imminence of Harm
  13. Degree of Danger
  14. Intent
  15. Express Words of Advocacy
  16. Three Early Tests
  17. BT: “natural and probable tendency and effect of speech calculated to produce result condemned by statute”
  18. Pro: allows gov’t to prevent bad things from happening; supported by precedent (i.e. Federalists)
  19. Con: chills PS
  20. Express Incitement: express language of law violation
  21. Pro: objective; much more speech protective
  22. CPD:
  23. Different formulations

1)BT Type Test (flowery language)

2)CPD Speech Protective

3)CPD NOT Speech Protective

  1. Con: retrospective analysis; ambiguous application leads to self censorship
  1. Early Decisions
  2. Shaffer v. U.S. (9th Cir. 1919)
  3. H: upheld conviction under Espionage Act for publishing book linking patriotism too murder under BT Test
  4. T: gov’t can punish speech w/ BT

1)Constructive Intent  inferred from natural and probable consequences of speech

2)Lacks clarity, probability, imminence, and express language lang requirements (intent inferred)

  1. BL: NO FS protection if undermining war!
  1. Masses Publishing Co. v. Patten (S.D.N.Y 1917)
  2. H: postmaster’s refusal to deliver cartoon publication suggesting war opponents were good people was C-al
  3. T: Express Incitement (L. Hand)

1)BT test too broad (ALL PS)

2)Con: rewards clever speaker who doesn’t use express language; further, NO intent requirement

  1. Schenck v. U.S. (1919)
  2. H: upheld Δ’s conviction for circulating doc comparing the draft to slavery was under J. Holmes’ CPD Test
  3. T: Gov’t should be able to suppress speech creating CPD; however, speech must attempt to bring about substantive evils statute intended to prevent.”

1)Question of Proximity and Degree

2)If have intent, NO social harm needed

  1. Application of Early Tests
  2. Frohwerk v. U.S. (1919)
  3. H: upheld conviction of German paper writer for writing article opposing war under J. Holmes CPD / BT Test

1)“A little breath may be enough to kindle a flame,” i.e. gov’t need not wait for harm to occur if speech’s tendency is to incite law violation

  1. Debs v.U.S. (1919)
  2. H: upheld conviction of Socialist presidential candidate for speech proclaiming “man made for more than death on European front w
  3. T: natural tendency and R probability

1)NOT clear whether specific intent required

  1. Red Scare Cases
  2. Abrams v. U.S. (1919)
  3. H: upheld conviction of Δ for attempting to incite Russian immigrants to go on strike

1)Majority cites Schenck and Frohwerk

2)Intent inferred from words

  1. J. Holmes Dissent: abandon BT, and use CPD

1)Need significant level of clarity and imminence (no intent to effectuate CPD here)

2)First time see FS policy justification  marketplace of ideas

3)Considering Jeffersonians beat out Blackstonians, doubt BT is the best approach

4)Con: may only protect speaker when nobody listens (i.e. “puny anonymity)

  1. Gitlow v.New York (1925)
  2. N: first time 1st A incorporated to apply to state via 14th A
  3. H: upheld Δ Socialist’s conviction under state statute for distributing literature advocating violent gov’t overthrow
  4. T: R-ness  if legis belief on speech’s perniciousness is R, defer to their finding

1)Here, had speech specific statute

  1. J. Holmes Dissent: CPD Speech Protective Test

1)NO deference

2)Every idea is an incitement; only difference is speaker’s enthusiasm for result

3)Again, marketplace justification; but, if allow Communist to win, and violently overthrow gov’t, creates CPD

  1. Whitney v. California (1927)
  2. H: similar conviction to Gitlow challenged on freedom of association grounds, but upheld under R-ness Test
  3. J. Brandeis Concurs: Intent to Create CPD

1)High probability / imminence w/ high degree of danger of serious, substantive evil

2)Democratic Self Governance: real danger to democracy is an apathetic people; need engaged citizenry

3)Best remedy for bad speech is counter / good speech

  1. The Cold War Era
  2. Dennis v. U.S. (1951)
  3. N: R-ness test discredited in HAR cases
  4. H: reversed conviction under Smith Act, which prohibited “advocating” of gov’t overthrow (speech specific)
  5. T: L. Hand Fluid Balancing

1)Ask whether gravity of evil, discounted by its improbability, justifies invasion of FS

2)Pros:

i)Common sense

ii)Room to act (NO imminence requirement)

  1. J. Jackson Concurs: test better for “puny anonymity;” C is NOT suicide pact (citing dissent in Terminello)
  1. Modern Test
  2. Brandenburg v. Ohio (1969)
  3. F: at KKK rally, leader said “may have to take some revengence”
  4. H: conviction reversed, as statues was OB (further, no imminence)
  5. T: Imminent Lawless Action

1)Advocacy (express words)

2)Directed too (intent)

3)Inciting or Producing

4)Imminent Lawless Action (imminence / danger)

5)Which is Likely to Produce Such Imminent Lawless Action (clarity / probability)

  1. J. Black / Douglas Concur: too close to CPD

1)Want more absolute protection so courts don’t allow suppression in times of crisis

  1. Applications of the Modern Test
  2. Hess v. Indiana (1973)

1)F: “We’ll take the fucking streets later”

2)H: b/c lacked imminence, conviction reversed

  1. NAACP v. Claiborne Hardware (1982)

1)F: “If shop at stores, we’ll break your necks

2)H: lacked imminence and likelihood (conditional statement); further, lacked intent (hyperbole)

  1. Crowd + Speaker = Brandenburg
  2. One on One (or small group), No Political Context = NOT Brandenburg
  3. Solicitation vs. Advocacy

1)“Will you rob a bank w/ me?” = Solicitation  do NOT apply Brandenburg

2)“Lets rob a bank for a cause” = Advocacy  Apply Brandenburg

  1. Summary / Recap
  2. BT  Blackstone / Schaffer
  3. Express Incitement  L. Hand in Massses
  4. CPD Formulations

1)As BT Test  J. Holmes in Schneck

2)As Speech Protective (intent req.)  J. Brandeis in Whitney

  1. R-ness Test Gitlow and Whitney
  2. Fluid Balancing Dennis
  3. Imminent Lawless Action Brandenburg
  1. Hostile Audience Response
  2. Introduction
  3. I: Speaker provoking crowd to engage in unlawful conduct (think a/b advocacy elements)
  4. Look for express words of provocation
  5. Justifications
  6. Heckler’s Veto: if encourage crowd to get rowdy or violent b/f will arrest speaker, allowing crowd to limit speech
  7. Police Connivance: have duty to maintain law and order; h/w, don’t want them choosing sides and arbitrarily enforcing the law
  8. N: see greater protection in HAR cases
  9. Partially depending on the period, circumstances, dangerousness of circumstances, etc.
  10. Conspiratorial organizations vs. hot heads on street corner
  11. Early Cases
  12. Cantwell v. Connecticut (1940)
  13. H: reversed Δ’s conviction for playing recording of “virulent anti-Catholic nature”
  14. T: adopt CPD Test

1)Intent or express words of provocation;

2)To create CPD of riot, disorder, or interference w/ traffic on public streets, or other threat to public safety, peace, or order

3)But . . . can NOT suppress speech under guise of preserving peace

  1. A: no threat of violence; no express words of provocation
  1. Terminello v. Chicago (1949)
  2. F: Fascist preacher b/f friendly crowd (800 inside; 1K outside) calls critics slimy snakes and bead bugs
  3. H: jury instruction requiring “stirring public to anger” for disorderly conduct was UC under Cantwell
  4. J. Jackson Dissent: C is NOT a suicide pact; this was serious disturbance
  5. Feiner v. New York (1951)
  6. F: civil rights speaker b/f racially mixed crowd says “rise up and fight for equal rights;” people forced in streets, crowd members said “if don’t stop him, we will;” Δ arrested
  7. H: conviction upheld under CPD test
  8. A: danger of fight; traffic safety; defer to lower court on subjective GF of police (80 people; 2 cops)
  9. J. Black Dissent: NO deference to lower court

1)Police could call for backup

2)Affirmative duty to protect speaker (i.e. arrest person who made threat)

3)***Later cases follow J. Black’s approach***

  1. “A Far Cry from Feiner”
  2. Edwards v. South Carolina (1963)
  3. F: 180 segregation protesters, 200 onlookers, 30 cops
  4. H: conviction UC

1)Sufficient police presence to forestall any danger of disorder

2)Speech not as provocative as in Feiner (less grumbling, and more separation b/t sides)

  1. J. Clark Dissent: given circumstances (Southern Civil Rights Movement in 1960s), could have CPD in a heartbeat
  1. Cox v. Louisiana (1965)
  2. F: 2K segregation protesters, 200 onlookers, 75 officers
  3. H: conviction UC

1)No indication that mood of crowd was ever hostile, unfriendly, or aggressive

2)Police testified that could have handled crowd

  1. Gregory v. Chicago (1969)
  2. F: 85 protestors marching; 1K in crowd, 85 cops
  3. H: conviction UC

1)Conviction so totally devoid of C-al support that violates DP

2)Police should have acted on counter protesters, who caused CPD

i)Must first attempt to control crowd, unless that would create CPD

  1. ***Essentially overrules Feiner***
  1. HAR Test Today
  2. Paradox: 3 most recent cases do NOT mention CPD
  3. Two Options:
  4. Feiner CPD (citing Cantwell) (most doctrinally conservative)
  5. Brandenburg based on Provocation (maybe HAR and Advocacy areas are connected, as use HAR to arrive at CPD in Dennis)

1)Provocation (replace advocacy)

2)Directed to

3)Produce or incite

4)Imminent lawless action

5)Which is likely to produce such action

  1. Remember: police has duty to control crowd!
  2. N: can NOT pass crowd control costs to speaker (i.e. no cash version of heckler’s veto). See Foresight County
  1. Fighting Words
  2. Introduction
  3. Defined: inflict injury OR tend to incite immediate BoP
  4. Elements (from various cases)
  5. Abusive insults or epithets
  6. Likely to cause BoP to average member of community
  7. Directed to person
  8. Purporting to describe that person
  9. In a face to face encounter
  10. Objective test, i.e. likely to cause BoP to average member of community (unsettled whether nat’l or local std applied)
  11. N: if was subjective, would be duplicative of HAR, and FWs doctrine would collapse into HAR

1)W/ HAR, must show ACTUAL CPD

  1. Chaplinsky v. New Hampshire (1942)
  2. H: upheld conviction of Jehovah Witness for denouncing all other religions as rackets, and calling Marshall a “god damn fascist”
  3. Two Level Theory of Speech
  4. High Value
  5. Low Value (unprotected)

1)Slight social value to truth

2)NOT essential part of expression of ideas

3)Non-exhaustive list

i)Lewd

ii)Obscene

iii)Profane

iv)Libelous

v)Insulting

vi)FWs

  1. Application of Chaplinsky
  2. Street v. New York (1969)
  3. H: reversed conviction of AA who burned flag after learning Meridth was shot (“we don’t need no damn flag”)
  4. A: b/c remark was NOT inherently inflammatory, did not come w/in narrow class of FWs; further, NOT directed at any individual
  5. Cohen v. California (1971)
  6. H: reversed conviction for wearing “fuck the draft” shirt
  7. A: NOT directed at any individual
  8. Gooding v. Wilson (1972)
  9. H: reversed conviction for Δ saying to policy “White son-of-a-bitch, I’ll kill you,” as statute was OB
  10. Dicta: look to the actual person the words are addressed too (bad approach)
  11. N: NO FWs statute upheld since Chaplinsky (but assumed in RAV still valid doctrine)
  12. U.S. v. Stevens (2010)
  13. H: statute criminalizing depictions of animal cruelty OB, t/f UC
  14. N: 8 justices reinterpreted Chaplinsky Two Level Balancing Test
  15. NOT for Court to strike balance
  16. Rather, look to balance American history has struck
  17. Cantwell HAR vs. Chaplinsky FWs Doctrine
  18. Small groups ( < 5) or one-on-one encounters  FWs
  19. Focus: nature of words
  20. Crowds, and political context HAR
  21. Focus: actual HAR in that specific context
  22. Crowd of 5-10 and political context  mixed analysis
  23. BL: look at statute prosecuted under!
  1. Pure Criminal Speech
  2. Introduction
  3. Unprotected by 1st A
  4. NO category or case
  5. But . . . have crimes like conspiracy, solicitation, and aiding and abetting for accomplice liability
  6. N: political context does NOT remove from solicitation category (but may provide argument)
  7. Significance: does NOT get Brandenburg protection, which requires imminence
  8. Contours of Pure Criminal Speech
  9. Trad’l mens rea

1)Solicitation: intent for solicitee to commit crime

2)Conspiracy: intent that agreement will lead to crime

  1. Actus rea: typically through words / actions
  2. Individual or small group
  3. Context other than political
  1. U.S. v. Williams (2008)
  2. N: actual (but not virtual) child porn is unprotected
  3. H: upheld conviction for pandering virtual child porn under PROTECT Act
  4. NO distinction b/t real and virtual porn as to whether is a crime (like cocaine / talcum powder)
  5. NOT criminalizing porn itself, but the speech
  6. R: Offers to engage in illegal transactions categorically excluded from 1st A’s protection, w/o/r/t offer’s mistake a/b factual predicate of offer
  7. Under Chaplinsky, NO social value, whether court OR history does balancing
  1. True Threats
  2. Virginia v. Black (2003)
  3. F: Δ convicted for cross burning under statute w/ prima facie evidence of intent provision
  4. S: Defines True Threats
  5. Speaker means to communicate (subjective)
  6. A serious expression of (objective)
  7. The intent to commit an act of violence
  8. Against a particular individual or group

1)Split: whether must be directly communicated

  1. ***No imminence requirement; unclear whether intent to cause fear is required***
  1. PP Concerns:
  2. Social harm to threatened person
  3. Social disruption (bullet proof vests)
  4. May lead to actual violence
  5. Historically unprotected and punished, which is supported by Chaplinsky balancing
  6. Counter: BUT . . . is it not hyperbole, or a bluff?
  7. N: most true threat cases are pre-Black
  1. Watts v. U.S. (1969)
  2. H: reversed conviction of speaker who, at public rally, said “If I get drafted, first person in my sights is LBJ.”
  3. A:
  4. Serious expression? NO, political hyperbole, crowd reacted w/ laughter, and a conditional stmt.
  5. In some j(x)s, MUST be directly communicated to threatened person
  6. BL: Courts rarely find true threats in political speech before crowds
  7. Planned Parenthood v. ACLA (9th Cir. 2002)
  8. H: Nuremberg files website, which pictured abortion doctors in old-Western posters w/ “Wanted,” was unprotected as true threat
  9. Key: whether saying “we” or “someone should” kill you
  10. We  true threat (no imminence or intent requirement)
  11. Someone  advocacy, apply Brandenburg (fails imminence)
  12. T: would RPP understand this as an attempt to incite imminent lawless action?
  13. Hess v. Indiana (1973)
  14. H: “We’ll take the fucking streets later” during anti-war protest protected under Brandenburg
  15. Fails imminence
  16. NOT advocacy, but counsel of moderation
  17. Claiborne Hardware v. NAACP (1982)
  18. H1: “If you shop at those stores, we’ll break your necks” at political speech NOT true threat
  19. NOT directed at particular person, or particular group (100 people in audience)
  20. NOT serious expression, but hyperbole (before crowd almost always hyperbole)
  21. H2: NOT advocacy of unlawful conduct
  22. Fails imminence and clarity under Brandenburg
  23. Rice v. Paladin Enterprises (4th Cir. 1997)
  24. F: publish book entitled “Hit Man;” man read book, was hired as hit man, and killed someone. In wrongful death action, stipulated that book was intended for small group of hitman.
  25. H: although went out to large group, intended for small group, t/f solicitation
  26. Trad’l mens rea? Aid person in committing crime
  27. Trad’l actus rea? Publish book
  28. Political Context? NO
  29. Directed too few people? YES
  30. N: w/out stipulation, would be under Brandenburg (large group), and would lack imminence
  1. Hate Speech
  2. Introduction
  3. NOT per se category, but interacts w/ other categories
  4. N: Canadian, and most European courts DO recognize
  5. R: since no special test, apply default SS for CB restrictions (CB, b/c turns on hate)
  6. Gov’t must have CSI to censor;
  7. Censorship must be narrowly tailored
  8. ***Gov’t rarely wins, but hate crime sentence enhancers are C-al***
  9. Vehicles Used to Fight Hate Speech
  10. Libel -Beauharnais v. Illinois (1952)
  11. H: affirmed Δ’s conviction for distributing leaflets blaming AAs for social problems under statute prohibiting publishing materials putting other races in contempt, or likely to cause BoP

1)Libel does NOT contrib. to exposition of ideas