Constitutional Law II Chemerinsky
|Constitutional Law II|
Constitutional Law [Connected Casebook] (Aspen Casebook)
|Taught by||James Sample|
Joseph Richard Hurt
Sharon E. Rush
Fredric G. Levin College of Law
|Taught at||Hofstra University School of Law|
Florida A&M University College of Law
Substantive Due Process
Substantive Due Process*
- Procedural Due Process is a Focus on what kind of procedure the government must provide prior to depriving a person of life, liberty, or property.
- The distinction between substantive and procedural due process -
- Substantive =Government’s Purpose
- Procedural = Process Government must Use
Substantive Due process boils down to the sufficiency of the Government’s Justification for the action being taken by the Government.
Fundamental Rights – When a law limits a fundamental right, it will be analyzed under strict scrutiny.
Fundamental Rights include:
Right to Travel,
First Amendment Rights.
All other rights are analyzed under rational basis review.
Due Process v. Equal Protection
Due Process – Question involves a law that applies to everyone. (i.e. bans everyone from acquiring birth control).
Equal Protection – Question Involves a law that applies to specific groups. (i.e. bans unmarried people from adopting).
Generally where a law limits the liberty of all persons to engage in some activity, it is a due process question.
If it limits the liberty of a specific group of persons to engage in some activity, it is an equal protections issue.
|Levels of Scrutiny –||From Lowest to Highest|
|Rational Basis||Law Must Serve:
Legitimate government purpose (any legitimate purpose will suffice)
Law Must be
Rationally Related to that Purpose
|Burden is on:
||For Equal Protection:
Alienage (many exceptions)
|Intermediate||Important Government Purpose
Substantially Related to that purpose.
|Government||Gender (Possibly Orientation)
|Strict||Compelling Government Purpose
Narrowly Tailored to achieve that goal.
|Government – Ask if there was a less restrictive or less discriminatory way to achieve the purpose. If yes, the law is invalid.||National Security
Alienage (unless Federal, or State self-governance)
Narrowly Tailored - The regulation must be narrowly tailored (i.e., it may not burden substantially more speech than is necessary to further the significant government interest). However, the regulation need not be the least restrictive means of accomplishing the goal.
Lochner Era – The Lochner Era was characterized by a great degree of focus on freedom of contract and Laissez Faire economics. Nearly all economic laws were struck down at this time and the court used the Due Process clause of the 5th and 14th to do this. *
The case law from Lochner (1905) until 1937 was very unfavorable of any limitation on economic rights. During this time the court did not uphold almost any economic regulations (except for in Nebbia v. New York, where the court upheld a minimum price law for milk due to safety concerns of allowing milk price reductions and potential corner cutting. Also the New York milk industry had historically been subject to regulation).
End of Lochner Era
In 1937, the Court, as an effort to prevent FDR’s Court packing plan, capitulated and began to allow regulation of economic activities and applied only rational basis review. *
- Footnote 4 of this case established the levels of scrutiny.
Economic Due Process since 1937
The court has not invalidated a economic regulation for unconstitutionality under Substantive Due Process under the 5th or 14th amendment since 1937.
Economic Due Process Applied to Punitive Damages
Though the court has been hesitant to invalidate economic regulations under a substantive due process claim, punitive damages will be invalidated if they are excessive.*
The Supreme Court applied three factors in making this determination:#
- the ratio to the compensatory damages awarded (actual or potential harm inflicted on the plaintiff); and
- Comparison of the punitive damages award and civil or criminal penalties that could be imposed for comparable misconduct.
SUBSTANTIVE DUE PROCESS
The Right to Privacy – The Court found a right to privacy in the case of Griswold v. Connecticut. The right is not specifically enumerated within the constitution, but using a combination of different rights, a penumbra, the court determined that the constitution provides people with a right to privacy. PRIVACY IS A FUNDAMENTAL RIGHT!!!*
Right to Abortion – The Court has held that a woman has a right to abortion, which was a fundamental right in the aftermath of Roe v. Wade, but has since been reduced in status to a lower level of right. In Planned Parenthood v. Casey, the court upheld 3 out of 4 challenged provisions of a law that limited the availability of abortions in the state. The court found that a law will be invalidated if it constitutes a substantial burden to abortion. *
The court has upheld many abortion regulations since Casey. These include a post viability ban, partial birth abortion bans, and a law that required abortions to be performed only by physicians.
Right to Refuse Treatment
The Court has found that a right to refuse treatment exists. The court found that a person’s liberty interest requires that the court not permit involuntary treatment. *
Right to Physician Assisted Death
The Court has not found a right to a physician assisted death and in the two cases that are most applicable, the court rejected the right. If one requires medical treatment to live, they are free to reject treatment, however, if you require assistance to die, the law can forbid allowing a physician to administer the death causing treatment. *
Sexual Orientation and Activity*
Right to Marry
The court has determined that the right to marry is a fundamental right.*
Equal Protection – Equal protection is the guarantee that the law will be applied equally to all members of society. This guarantee is subject to differing levels of scrutiny depending on the type of classification that is being made.*
Strict – Applies to classifications that are made on the basis of race, religion, national origin, or alienage. These are called suspect classifications.
Intermediate- Applies to classifications made on the basis of gender, or legitimacy of birth. These are called quasi-suspect classifications.
Rational Basis – Applies to all other classifications – age, disability, wealth, political preference, political affiliation, or felons.
Rational Basis does not even require the purpose used for analysis to be the actual purpose of the law, it can just be a purpose that is conceivable.
When analyzing an Equal Protection issue, Ask 3 Questions:
What is the Classification?: Determining the classification will allow you to determine the level of scrutiny that will be applied.
What is the appropriate level of Scrutiny?: This will allow you to know how the court will analyze the classification.
Does the Government Action Meet the Level of Scrutiny?: Apply the level of scrutiny you determined in step two to analyze the law. If its purpose and design are sufficient, the law will be upheld, but if not, it must be invalidated.
Race based classifications are extremely difficult to convince the Court to uphold, except for affirmative action programs, however, even those are subject to strict scrutiny.
Rational basis review is very tolerant of both underinclusive and overinclusive laws.
Under rational basis the ways to invalidate laws are by demonstrating that the law is unreasonable, arbitrary, or invidiously discriminatory.
Strict Scrutiny for Race – Race based classifications are subject to strict scrutiny, however the court will first need to determine if race was used to make a classification.
Facial Classifications – The text of the law draws a distinction based on race.
Classification by Administration or Impact – The Court will only hold that a classification exists in these circumstances if a discriminatory purpose can be proven. *
- McCleskey v. Kemp – The court upholds a state capital punishment verdict even with proof that blacks are far more likely to receive such a punishment than whites who commit similar crimes. A statistical study showing that black defendants in capital cases are much more likely to receive the death penalty than are white defendants in a state will not in itself establish that a particular black defendant was denied equal protection by being sentenced to death for murder in that state. The statistical study is insufficient to prove purposeful discrimination.
Laws that burden both minorities and whites – The court has found that laws that burden both blacks and whites, but on the basis of race, such as statutes that prohibit interracial marriage, are unconstitutional as well. These laws are enacted under the assumption that minorities are somehow inferior to whites and this is not a permissible purpose.
The case that defines race based classification and the application of strict scrutiny is Brown v. Board. *
Government Acts Benefiting Minorities - While the Court is willing to grant a public university deference as to the importance of diversity in a student body, it has held that courts should not give universities deference on the issue of whether a particular scheme for assuring diversity is narrowly tailored to that purpose. Strict scrutiny applies, so to pass constitutional muster, a university must show that no workable race-neutral alternatives would assure the diversity sought.
Alienage – Subject to Strict Scrutiny only if classified by STATE LAW! Congress has plenary power over aliens, thus any federal classification based on alien status is only subjected to rational basis review.
State and Local laws - State/local laws are subject to strict scrutiny if based on alienage. A “compelling state interest” must be shown to justify disparate treatment. For example, a state law requiring United States citizenship for welfare benefits, civil service jobs, or a license to practice law will be struck down because there is no compelling interest justifying the requirement.
IMPORTANT EXCEPTION FOR STATE LAWS REGARDING ALIENS! – Participation in Self-Government Process.
State laws that involve alien participation in the function of State Government – These laws are subject only to rational basis review.
Examples: A state can validly refuse to hire aliens as police officers and primary and secondary school teachers (because such teachers influence the attitudes of young minds toward government, the political process, and citizenship, as well as provide an example for civic virtues) and for all other positions that have a direct effect on the functioning of government.
The Court has held that states cannot forbid illegal alien children from receiving an education in the public school system - The Supreme Court has found that undocumented aliens are “persons” within the protection of the Fourteenth Amendment and that it would be fundamentally unfair to punish children for the crimes of their parents (i.e., illegally coming into the United States). Moreover, the Court found that refusing to educate children of undocumented aliens would hinder their lives in a way that would work a punishment on them. Therefore, the Court held that it is not rational for a state to deny children of undocumented aliens a free public education unless the state can show that the denial furthers a substantial state interest. Moreover, the Court held that the cost saved in not educating such children is not a sufficient interest.
Gender Classifications are Subject to Intermediate Scrutiny – However, this is modified by the requirement that the government must proffer an “exceedingly persuasive justification” for any gender discrimination.
The Court will almost never uphold a law that intentionally discriminates against women. However, when classifications indirectly have discriminatory effects against women, the court generally upholds those classifications. *
Deciding upon Intermediate Scrutiny- The Court, in Craig v. Boren decided that intermediate scrutiny applies for decisions that classify based upon gender. *
Ratcheting up the level of Scrutiny
The newest level of analysis that the court uses in gender classification/discrimination cases is the “exceedingly persuasive justification” standard, which seems to fit in an area between intermediate and strict scrutiny. This was first used in the case of United States v. Virginia, where the court did not allow Virginia Military Institute to remain single gender when the plan was to establish a lesser school for women.
United States v. Virginia - When a state military school’s policy of admitting only men was challenged, the state justified the policy, claiming that: (i) offering a diversity of educational approaches within the state (e.g., some schools having men only, some having women only, and some having both) yields important educational benefits, and (ii) females generally would not be able to meet the school’s physical requirements and would not do well under the school’s adversative approach to education. The Supreme Court found these arguments unavailing. There was no evidence that the single-sex school in question was established or had been maintained with a view toward fostering a diversity of educational opportunities, and there was some evidence that some women could meet the school’s physical requirements and thrive under the school’s adversative approach.
Affirmative Action Benefiting Women- Classifications benefiting women that are designed to remedy past discrimination against women will generally be upheld. Examples:
1) Social Security and tax exemptions that entitle women to greater benefits to make up for past discrimination in the workplace are valid. [Califano v. Webster, 430 U.S. 313 (1977)]
2) A Navy rule granting female officers longer tenure than males before mandatory discharge for nonproduction is valid to make up for past discrimination against females in the Navy. [Schlesinger v. Ballard, 419 U.S. 498 (1975)]
The following have been upheld under the Equal Protection Clause despite their discriminatory intent:
a) Law punishing males but not females for statutory rape (sexual intercourse with a minor) [Michael M. v. Superior Court, 450 U.S. 464 (1981)—classification was found to be substantially related to important interest of preventing pregnancy of minors];
b) Male-only draft registration [Rostker v. Goldberg, 453 U.S. 57 (1981) classification was found to be substantially related to important interest of preparing combat troops]; and
c) A law granting automatic United States citizenship to nonmarital children born abroad to American mothers, but requiring American fathers of children born abroad to take specific steps to establish paternity in order to make such children United States citizens.
Distinctions drawn between marital and non-marital children are also reviewed under the intermediate scrutiny standard. Such classifications “must be substantially related to an important governmental objective.”
No Punitive Purpose
When the Court examines a classification based on illegitimacy, it gives greater attention to the purpose behind the distinction. It will not uphold discriminatory legislation intended to punish the offspring of illicit relationships.#
- Statute of Limitations on Paternity Suits May Be Discriminatory The Supreme Court struck down a state statute that required nomarital children to bring paternity suits within six years of their birth while allowing marital children to seek support from parents at any time. The Court found that the law was not related to the state interest of preventing stale or fraudulent claims. [Clark v. Jeter, supra]
Age is not a suspect class. Thus, government action based on age will be upheld if there is a conceivable rational basis for the classification. [See, e.g., Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976)—police officer can be forced to retire at age 50, even though he is as physically fit as a younger officer; Gregory v. Ashcroft, 501 U.S. 452 (1991)—a state constitution that requires state judges to retire at age 70 does not violate the Equal Protection Clause]
Wealth Not Suspect The Court has never held that wealth alone is a “suspect classification.” However, the lack of wealth, or the inability to pay a governmentally required fee, cannot be the sole basis upon which a person is deprived of a fundamental constitutional right. Example: The government will be required to waive a marriage license fee or divorce court fee for a person who cannot afford to pay that fee. Marriage and divorce rights are part of the right of privacy.
First Amendment - Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Freedom of Expression is a Fundamental Right – Freedom of expression is a fundamental, but not absolute right. The court has allowed for certain restrictions of speech, but these restrictions generally must satisfy strict scrutiny. Many exceptions to the strict scrutiny analysis exist, but generally as a fundamental right, speech is very well protected.
Content and Viewpoint Based Restrictions – The Court will scrutinize very closely any sort of content-based or viewpoint-based restrictions on speech.
- Content Based Restriction – This is a restriction on speech that is due to the content of the speech. i.e. a law that restricts any type of political message from being expressed in a public place.
- Viewpoint Based Restriction – This is a restriction on speech that is due to the viewpoint expressed by the speaker. I.e. any law that restricts someone from expressing a specific political viewpoint, such as support for Donald Trump or Barack Obama.
Content Neutral Laws – Laws that restrict speech in a content neutral manner are generally analyzed under intermediate scrutiny, in that they must serve to advance an important government purpose and must be substantially related to that purpose.
Exception—Unprotected Categories of Speech - The Supreme Court has previously determined that certain categories of speech (e.g., obscenity, defamation, and “fighting words”) generally are proscribable despite the First Amendment. Even in these cases, however, the Court is less likely to uphold a prior restraint (i.e., a regulation prohibiting speech before it occurs) than a punishment for speech that has already occurred.
In a case that demonstrates the intense level of scrutiny applied to content-based restrictions, Reed v. Town of Gilbert indicates that it is extremely difficult for a law that restricts speech based on its content to survive.
Reed v. Town of Gilbert - In 2005, Gilbert, Arizona adopted a municipal sign ordinance that regulated the manner in which signs could be displayed in public areas. The ordinance imposed stricter limitations on signs advertising religious services than signs that displayed "political" or "ideological" messages. The Court held that the town's sign ordinance imposed content-based restrictions that did not survive strict scrutiny because the ordinance was not narrowly tailored to further a compelling government interest. Justice Thomas’ majority opinion also clarified that strict scrutiny should always be applied when a law is content-based on its face.
Boos v. Barry - A District of Columbia law prohibited the display of any sign within five hundred feet of a foreign embassy if that sign tended to bring that foreign government into “public odium” or “public disrepute.” In matters affecting the dignity of American citizens, prior rulings have frequently held that such citizens must tolerate insulting, even outrageous, speech in order to adequately protect First Amendment freedoms. This same standard applies to foreign diplomatic personnel. Thus, the District of Columbia law does not pass strict scrutiny as it unconstitutionally restricts First Amendment freedoms.
Williams-Yulee v. Florida Bar - A state may ban personal solicitation of campaign funds by judicial candidates. *
City of Renton v. Playtime Theaters - A city ordinance limiting adult entertainment establishments to one corner of the city occupying less than 5% of the city’s area was deemed constitutional. *
Unprotected and Less Protected Speech
Incitement of Illegal Activity – This type of speech does not receive first amendment protection.
Clear and Present Danger – The Clear and Present Danger test was the first test devised to allow the government to restrict incitement of illegal activity.
Schenck v. United States - Schenck (defendant) was indicted by the United States Government (plaintiff) for the charge of “conspiracy to violate the Espionage Act” after he mailed literature to draftees during World War I that criticized the draft. Schenck was convicted in federal district court, but appealed his conviction on the grounds that the Espionage Act violated his First Amendment right to freedom of speech. The Court found that the court did not violate his first amendment rights because the government has a strong interest in preventing obstruction of the draft.
- Reasoning - The required question in every case dealing with this issue is whether the words used are expressed in such circumstances and are of such a nature as to create a clear and present danger. Congress has the right to prevent substantive evils. Schenck’s speech intending to incite draftees to obstruct the draft can be seen as representing a clear and present danger because the nation is at war.
Post World War I, the Test Changed to the Reasonableness Approach
Reasonableness Approach – During this time, the court upheld laws restricting incitement to imminent lawless actions so long as the government’s law and prosecution were reasonable.
Gitlow v. New York - For purposes of this decision, the First Amendment’s freedoms of the press and speech are considered liberty interests protected by the Fourteenth Amendment Due Process Clause. The New York statute limited these freedoms not through a general restriction of ideas, but rather through restrictions on concrete speech that have the effect of advocating, advising, or teaching the overthrow of organized government by unlawful means. Gitlow’s conviction is upheld.
- Reasoning - Gitlow’s conviction is affirmed, because it is reasonably foreseeable that public harm could follow from speech advocating criminal anarchy.
Whitney v. California - Whitney (plaintiff) was a member of the Communist Labor Party of California and was prosecuted for violating the CCSA after she actively participated in organizing a Communist Convention. Issue - Whether a state law prohibiting syndicalism violates the First and Fourteenth Amendments.
- Reasoning - No. The freedom of speech guaranteed by the First and Fourteenth Amendments was never held to be absolute. States are free to use their police powers to punish those who abuse the freedom by using speech to harm the public welfare, incite crime, disturb the public peace, or endanger the foundations of organized government by advocating for its overthrow by unlawful means.
Risk Formula Approach – This was the test used in the post World War II era. The court takes it upon itself to define “Clear and Present Danger” by adopting the Risk Formula. The case that is used to demonstrate this approach is Dennis v. United States – In which a conviction for the under the Smith Act was upheld using this test.
- Risk Formula – “There is obviously no need for the government to wait until the last possible moment before a conspiracy to unlawfully overthrow the government is carried out. It is too risky and imprudent to hold that only success or probability of success of the conspiracy constitutes a clear and present danger. Chief Justice Learned Hand in the lower court articulated a more correct standard when he stated that “in each case, courts must ask whether the gravity of the ‘evil,’ discounted by its improbability, justified such invasion of free speech as is necessary to avoid the danger.”
Dennis v. United States - Dennis and other leaders of the Communist Party of America (defendants) were arrested and charged with violating the SA by willingly and knowingly conspiring with the organization of the Communist Party and by knowingly and willfully advocating the necessity of overthrowing and destroying the government of the United States by force and violence. Issue - Whether the Smith Act, which made it a crime to teach about and advocate the overthrow or destruction of the United States Government, violates the First Amendment’s protection of free speech.
- Reasoning - No. The purpose of the SA was to protect the government from change by violence, revolution, and terrorism. This type of protection is well within the constitutional powers of Congress. In applying the Risk Formula the court finds that the Smith Act does not inherently, as construed or applied in the present case, violate the First Amendment. Dennis’ convictions in the lower courts are affirmed.
Brandenburg Test – By the 1960’s the court had moved to be far more protective of speech. Post Brandenburg, the test became imminent incitement to lawless activities, rather than a foreseeable incitement at some future date.
Brandenburg v. Ohio – Brandenburg, a Klan leader, was arrested after inviting a news reporter to attend a Ku Klux Klan rally. The reporter filmed Brandenburg in Klan regalia, burning a cross and uttering speech that was derogatory to African Americans and Jews. Brandenburg was convicted in Ohio state court and was fined and sentenced to ten years’ imprisonment. Issue -
Whether an Ohio statute that criminalizes syndicalism violates the First and Fourteenth Amendments.
- Reasoning – The statute violated the first and fourteenth amendments. A state may only forbid speech that advocates violence or the use of force if that speech is directed and likely to incite imminent illegal activity without abridging the freedoms of speech and the press. The OCSA cannot be sustained because it punishes the mere advocacy and teaching of violence for accomplishing a political goal as an abstract concept.
THIS IS THE MODERN TEST!!!!!
Court Draws a Line Between Mere Advocacy and Providing Material Support
Holder v. Humanitarian Law Project - A federal law that prohibits individuals and groups from giving “material support” to certain foreign organizations designated as engaging in terrorist activities does not violate the First Amendment.
- Reasoning - The statute does not prohibit independent advocacy or other expression of any kind. Plaintiffs are free to say what they want about the PKK and LTTE. They are also free to become members of the organizations. Congress has not sought to suppress ideas or opinions. Rather, it has prohibited “material support” which often does not take the form of speech at all.
Fighting words are a category of unprotected speech. – Fighting words can be punished due to the potential for immediate breach of peace that accompanies such words.
True Threats - First Category that is always punishable is “true threats,” these are words or expressive conduct that indicate to the recipient of the words or expression that the speaker is about to conduct some form of violent act upon the recipient. The government has an interest in preventing such expression, because of the conduct associated.
Words That are Likely to Incite Retaliation – This is a category of speech that the government can punish, but has been severely limited in scope over the past decades. An early case that addresses this category of speech, Chaplinsky v. New Hampshire, lays down a very broad application of the concept, but as jurisprudence developed, the scope has been severely limited.
Chaplinsky v. New Hampshire – Chaplinsky called a police officer a damned fascist and a racketeer. He was convicted by the State of New Hampshire (plaintiff) for violating a New Hampshire law prohibiting speech directed at a person on public streets that derides, offends or annoys others. The Court upheld the conviction because the words constituted “fighting words” and the government has an interest in promoting peace.
- Reasoning - Even under the broadest reading of the First Amendment, the freedom of speech cannot be said to be absolute. Punishment of certain narrow categories of speech has never been questioned under the Constitution. These categories included lewd and obscene, profane, and libelous speech, as well as insulting speech or “fighting words”—those that, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.
Rule of Law Coming out of Chaplinsky - States are free to ban the use of “fighting words,” i.e., those personally abusive epithets that, when addressed to the ordinary citizen, are inherently likely to incite immediate physical retaliation.
Chaplinsky has never been specifically overruled, but it has been narrowed almost to the point of non-existence.
New Standard – Court will only uphold a conviction if the words constitute a “face-to-face direct invitation to engage in fisticuffs with the speaker.”
Court Will invalidate Laws that are Overbroad - While this classification of punishable speech continues to exist in theory, the Court rarely upholds punishments for the use of such words. Statutes that attempt to punish fighting words will tend to be overbroad or vague; the statute will define the punishable speech as “opprobrious words,” “annoying conduct,” or “abusive language.” Such statutes will fail, as their imprecise terms could be applied to protected (nonfighting words) speech. Such a statute could not be used to punish a person for saying to a police officer, “White son of a bitch, I’ll kill you.”
Gooding v. Wilson - Wilson (defendant) was convicted in Georgia (plaintiff) on two counts of using “opprobrious words and abusive language” to insult two Georgia police officers in violation of a Georgia statute, when he said “White son of a bitch, I’ll kill you.”
- Holding – The language of the statute can easily be interpreted to cover words that are protected by the first amendment, thus the law must be invalidated. The Georgia statute, in criminalizing “opprobrious” and “abusive” speech, is over-inclusive because it encompasses more speech than just “fighting words.”
R.A.V. v. City of St. Paul, Minnesota – R.A.V., a minor was convicted under a St. Paul, MN ordinance for burning a cross on the lawn of a black family. The Ordinance prohibited the placement of hateful symbols, including burning crosses, “which one knows or has reasonable grounds to know arouse . . . anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” Issue - Whether a state ordinance prohibiting expressions of hateful speech violates the First Amendment.
- Reasoning - A statute that regulates the content of speech on its face will only survive a constitutional challenge if it is necessary to serve a compelling state interest. Since the law was content based, it was struck down. The city could have prosecuted the minor under a bunch of different laws, trespassing, unlawful burning, etc… but this specific one is impermissible.
Rule of Law to Get From R.A.V. –
- Statutes Cannot Be Viewpoint-Based—Limits Hate Crime Legislation - Although the general class of “fighting words” is proscribable under the First Amendment, the Supreme Court generally will not tolerate in fighting words statutes restrictions that are designed to punish only certain viewpoints (i.e., proscribing fighting words only if they convey a particular message). [R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)—ordinance that applies only to those fighting words that insult or provoke violence on the basis of race, religion, or gender is invalid]
Hostile Audience – The court in recent years has applied something more protective of speech than the clear and present danger test when analyzing a hostile audience fact pattern. In Feiner, Justice Black dissented from the court’s application of the clear and present danger test to a hostile audience case. Black’s dissent has become the rule applied in modern jurisprudence.
Hostile Audience Cases – A person is permitted to express an unpopular point of view and the police can only arrest the person if the police presence is unable to manage the hostile crowd. Freedom of expression trumps the inability of people to control themselves.
Hate Speech – Generally, hate speech is a protected class of speech. However, there are limits to hate speech and it is possible to convict someone if their speech reaches the point of becoming libelous or slanderous.
Beauharnais v. Illinois - Beauharnais distributed leaflets which called in part upon the mayor and alderman “to halt the further encroachment, harassment, and invasion of white people…by the Negro; violated law which made it illegal to distribute any publication that “exposes the citizens of any race, color, creed, or religion to contempt, derision, or obloquy.” Issue – Whether the law is a violation of the first amendment protection of free speech.
- Reasoning – The speech constituted libel, which is not a protected class of speech and the conviction was upheld.
Court case demonstrating that Hate Speech is Protected generally – Virginia v. Black demonstrates that the court will not allow a law to create a presumption of illegality for hate speech.
Virginia v. Black – In this case, Black was a member of the Klan, and he burned a cross on his own property. He was arrested and convicted under a Virginia law that made it illegal to burn a cross with the intent to intimidate persons. However, the statute also made cross burning prima facie evidence of intent to intimidate. Issue – Whether the first amendment will tolerate a law that places the burden on the prosecuted individual to prove they did not intend to intimidate.
- Reasoning – The prima facie intimidation intent is unconstitutional in that if the defendant does not submit a defense, the prima facie evidence provision automatically deems him guilty of the required intent to intimidate.
Obscenity is Unprotected – The Court has determined that obscenity is an unprotected category of speech. Initially, the court did not have a clear definition of what constituted obscenity, but as the case law developed, a workable definition has been articulated.
Early Case finding Obscenity Unprotected – In Roth v. United States, the Court determined that laws that forbid the mailing of “Every obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character.” Was constitutional. It did this by finding American history and tradition has never valued such speech.
Roth v. United States - A federal obscenity statute prohibited the mailing of “every obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character.” Roth (defendant) operated a book-selling business in New York and was prosecuted by the federal government (plaintiff) for violating the federal statute after mailing out obscene pamphlets. Issue - Whether a federal statute prohibiting obscenity violates the First Amendment.
- Reasoning – The court upholds the conviction. Historically, nearly all the original states passed laws specifically prohibiting obscenity. Even under modern jurisprudence, it is clear that the First Amendment protections are not absolute. The First Amendment protects ideas with even the slightest amount of redeeming social value. For example, even ideas about sex are usually protected under the Amendment because sex by itself does not equal obscenity.
No Workable Definition of Obscenity Until much Later – Court in the wake of Roth adopted a “Know it when I see it” definition to obscenity in the case of Jacobellis v. Ohio. This definition required the justices to actually watch the material in question.
Court Allows Statutes to Forbid Exhibition of Obscene Material – The Court has allowed the law to forbid the exhibition of obscene material even to willing adult audiences.
Paris Adult Theater v. Slaton – Adult theater owners challenge a law that forbids the exhibition of “hard core pornography” at a publicly accessible theater. The theaters argue that their audiences are required to be 21 years of age and are warned about the type of content included in the films prior to the showing. – Issue – Whether the first amendment protects obscene material that is only shown to willing adults.
- Reasoning – The court finds that the state has a legitimate interest in stemming the tide of commercialized obscenity, even if the material is only shown to adults. Obscenity is not a protected category of speech, thus the government law only needs to be rationally related to a legitimate governmental interest.
The Court Devises a Workable Obscenity Definition – From 1957 to 1973, the court followed the precedent that obscenity was not a protected class of speech, but the court did not have a definition of what obscenity is. In the case of Miller v. California, the court finally devises a definition that is applied to this day.
Miller v. California – Miller conducted a mass mailing campaign to peddle his smut. California said that’s not ok and convicted him for knowingly distributing obscene material. Issue – Whether California may punish Miller for his distribution of obscenity.
- Reasoning – The court finds that the material that Miller mailed out meets the definition of obscenity. The court defines obscenity as “material that appeals to the prurient interest, that depicts sexual conduct in a patently offensive manner, and lacks any serious literary, artistic, political, or scientific value. Conviction was affirmed.
Obscenity Defined –
Pornography is not obscene, thus is protected under the first amendment. To distinguish pornography from obscenity, the court analyzes the material using the following definition:
1. Appeals to prurient interests
2. Depicts or describes sexual activity in a patently offensive way.
3. Lacks any serious literary, artistic, political, or scientific value.
Element 3 is determined using the “reasonable person” standard, but elements 1 and 2 are determined using community standards of morality and decency.
- Potential problem with this standard! – Lawrence v. Texas holding specifically states that morality cannot be a basis for law, potentially opening the door to challenges of obscenity laws under the 2nd and 3rd elements of the Miller test.
Government Cannot Punish Private Possession of Obscene Material
Stanley v. Georgia – Appellant, Stanley, was convicted under a Georgia statute that made possession of obscene materials illegal. The materials were in a desk drawer in his house. Issue – Whether the government can forbid the private possession of obscene materials.
- Reasoning – The court finds that the fundamental right to privacy trumps the states interest in preventing ownership of obscene materials. The conviction is overturned and the law is invalidated. Court says “We hold that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime.”
New York v. Ferber – New York state law forbids promotion and distribution of child pornography, even if it does not fit into the category of obscene speech.
- Reasoning - The law was upheld, even using strict scrutiny, because the government has a compelling interest in halting the abuse of children used in the creation of such works. Additionally, the Court determines that method used is appropriate to achieve such a goal.
Ashcroft v. The Free Speech Coalition - The CPPA banned virtual child pornography, as distinguished from real pornography that records criminal acts committed against children. *
The Precedent Set in Stanley v. Georgia Does not Apply to Child Pornography
Osborne v. Ohio – Ohio law forbids any (including private) possession of child pornography. Issue – Whether privacy interests may be used to invalidate such a law.
- Reasoning – The court finds that the governmental interests in protecting children from abuse and exploitation requires the government’s laws to not only target the production of such materials, but also every link in the chain, including the end consumers. The law is upheld because the government’s interest in protecting children is greater than protecting privacy.
Profanity and Indecent Speech –
Profanity and Indecent Speech are Protected – The Court has determined that Profanity and Indecent speech are protected, in contrast with Obscene speech, however, the court has upheld some restrictions of such speech. The protection is determined upon an evaluation of the medium of expression utilized.
Cohen v. California – Cohen was arrested and convicted under a California statute that forbid “maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct.” Cohen’s arrest was due to a jacket that he wore to the courthouse that had the words “Fuck the Draft” plainly printed upon it. Cohen did not say anything to anyone and there was no evidence that the jacket caused a violent reaction. – Issue – Whether the state may punish someone for the message conveyed, if that message uses profane words.
- Reasoning – The court finds that the conviction is unconstitutional because it is a content and viewpoint-based restriction on Cohen’s speech. The message conveyed does not fit into any of the recognized exceptions to the first amendment, thus the conviction must be overturned. The constitutional right of freedom of expression is very broad and powerful, and is designed to remove governmental restraints from public discussion. Due to the extreme constitutional importance of this freedom, states may be required to tolerate speech that some citizens find offensive. There is no compelling reason for California to criminalize this particular word as opposed to any other potentially offensive words.
The Court has generally not permitted the Government to Regulate Profane Speech – In almost all analysis the court has conducted on various mediums of expression, the court has invalidated restrictions due to the indecency of speech. However, the court has upheld FCC regulations that forbid indecent speech from being aired on public radio waves during hours where children are likely to be listening.
FCC v. Pacifica - A New York radio station owned by Pacifica Foundation (Pacifica) (plaintiff) broadcasted the “Filthy Words” monologue. A few weeks later, a man who stated that he had heard the broadcast while driving with his young son, wrote a letter complaining to the Federal Communications Commission (FCC) (defendant). The FCC held Pacifica liable for administrative sanctions. – Issue - Whether, under the First Amendment, the Federal Communications Commission may regulate a radio broadcast that is indecent but not obscene.
- Reasoning - The offensive speech was made in a public radio broadcast. Traditionally, broadcasts receive the least amount of First Amendment protection because they involve content streamed into peoples’ homes. Thus, if content is offensive, it possibly violates the individual’s right to be left alone and free from exposure to public content. It is not enough that listeners may turn off radio broadcasts when they hear offensive speech, as the damage is already done at that point.
- The court also states that since radio broadcasts are accessible to children, the government’s interest in preventing the broadcast of obscene materials is sufficient to uphold the FCC regulation.
Reno v. ACLU - The Communications Decency Act of 1996 (CDA) prohibited the knowing transmission of obscene, indecent, and patently offensive messages via the internet to any recipient under the age of eighteen. - Issue - Whether federal statutes enacted to protect minors from “indecent” and “patently offensive” communications on the internet violate the First Amendment.
- Reasoning - The CDA is a content-based restriction on speech and could not be properly analyzed as a time, place, and manner regulation. It is thus appropriate for the Court to use strict scrutiny in determining the constitutionality of the CDA. The government does not have a truly compelling purpose in regulating the internet since the internet has not been traditionally regulated and is not as invasive into the home as radio broadcasts.
Violent Speech – The Court has held that Violent Speech is not one of the categories of unprotected speech and thus receives protection under the First Amendment.
United States v. Stevens – To combat the problem of “crush videos,” Congress enacted 18 U.S.C. § 48, which criminalized the creation, sale, or possession of certain depictions of animal cruelty. The law defined a depiction of “animal cruelty” as one in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed. – Issue – Whether the law is an overbroad restriction on expression, that prohibits protected expression, such as hunting videos?
- Reasoning – The court finds that the statute is overly broad and that it must be invalidated. The court holds that preventing “crush videos” is a compelling governmental interest, but that the law is not narrowly tailored to achieve that purpose. The Court will not uphold an otherwise unconstitutional law merely because the government promises to use it responsibly.
Brown v. Entertainment Merchants Association – A California law forbid the sale of violent video games to anyone under the age of 18, without the consent of the child’s parents or guardians. The challengers argue that the law is unconstitutional because it is a restriction on protected speech. – Issue - Must a state law that seeks to prohibit the sale of violent video games to minors be narrowly tailored to serve a legitimate government interest?
- Reasoning – The court finds that Violent speech is not a category of speech that the court refuses to protect and thus strict scrutiny applies. While it is true that a state may use its power to protect children from harm, it does not have free reign to restrict the ideas to which children may be exposed.
Commercial Speech – The court has not protected commercial speech to the same extent that it has protected other forms of speech. Commercial Speech was first recognized as a protected category by the Court in 1976, in the case of Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, in which the court found that consumers have a right to receive truthful information about products to make an informed decision. Further, the court stated that the free-flow of commercial information is very important for our capitalist system.
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council - A Virginia State statute prohibited the advertisement of prescription drug prices. The Virginia Citizens Consumer Council, Inc. (VCCC) (plaintiffs) brought suit in federal district court against the Virginia State Board of Pharmacy (VSBP) (defendants) on the grounds that the statute violated the First and Fourteenth Amendments. – Issue - Whether a Virginia State statute prohibiting the advertisement of prescription drug prices violates the First Amendment.
- Reasoning - the fact that the advertiser’s interest in projecting the speech is purely economic does not disqualify the speech from First Amendment protection. Society and consumers have an interest in the free flow of TRUTHFUL commercial information.
Bolger v. Youngs Drug – A federal law prohibited the mailing of unsolicited advertisements for contraceptives. Youngs Drug just happened to advertise their contraceptives by using advertisements and informational pamphlets through unsolicited mailings, so they challenged the law. – Issue - Whether a federal statute prohibiting unsolicited advertisements of certain products violates the First Amendment.
- Reasoning – The court finds that the law violates the First Amendment. The First Amendment grants qualified but substantial protection to commercial speech including proposals to engage in a commercial transaction, with reference to a specific product, based on an economic motivation for promulgating the speech.
Sorrell v. IMS Health – IMS Health was a company that collected and sold prescribing data about doctors for the purpose of “detailing” in which prescription companies would send sales people to doctor’s offices to market different types of prescription drugs. Vermont Law restricted the sale of pharmacy records. – Issue – Whether the Vermont law violates the first amendment when it only restricts use of records that were generated in conformity with a federal law.
- Reasoning – The law is invalidated because, though the Vermont statute is intended to advance a substantial governmental interest to protect the privacy of doctors, preserve doctor-patient relationships, and improve public healthcare by reducing costs, the means chosen by the regulation do not directly advance the state’s interests. The First Amendment does not allow speech to be restricted because its message might influence the listener.
TEST FOR REGULATING COMMERCIAL SPEECH
The court in Central Hudson Gas and Electric v. Public Service Commission of New York devised a test that is to be used when determining if commercial speech may be regulated.
Central Hudson Test:#
- Is the government’s restriction based on a substantial governmental interest? – if yes, go to step 3.
- Does the law directly advance the government’s interest? – If yes, go to step 4.
- Is the regulation of speech no more extensive than necessary to achieve the government’s interest? If yes to #2-4, the law is probably constitutional.
Restriction on Trade Names
Friedman v. Rogers - The court permitted restrictions on trade names because they can serve to mislead customers. I.E. a dental practice going by a trade name may not always have the same dentists and the tradename may be used to convince customers to use the business even though none of the original dentists are there. Doesn’t mean that a state must forbid tradenames, but it allows states to forbid them in medical practices because of the potential of misleading consumers.
Attorney Solicitation of Prospective Clients
The Court has found that since attorneys are trained in the art of persuasion the Government can place restrictions on the ability of Attorneys to solicit clients, especially when done in person. The Court has found, however, that an attorney can do an in person solicitation if they will represent the client free of charge.
- As a side note, the court allowed accountants to solicit prospective clients because they are not as big of a risk or something like that. (Opinion focused on the fact that accountants are not trained to be persuasive.)
Regulating Commercial Speech to Achieve Other Goals
The Court is Generally Suspicious of Any Regulation of Speech to Achieve other Goals – The court almost always invalidates laws that prohibit truthful, non-deceptive advertisements for legal products and services based upon the attempt to advance other goals.
- One major exception is the ability of states to prevent gambling advertisements. The court in a weak opinion stated that with the power to forbid an activity altogether, comes the power to forbid advertisements for that activity. This neglects to consider that the Court has invalidated laws that regulate alcohol and tobacco advertisements, which the state can forbid under police powers as well…
The Court has struck down two major laws targeting the advertisement of beer. In the first, Rubin v. Coors Brewing the court found that the law, which prevented alcohol content from being displayed on beer labels, was unconstitutional. The second case, the Court invalidated a state law that prohibited the display of prices in advertisements for alcoholic products.
44 Liquormart v. Rhode Island - The State of Rhode Island (defendant) passed a statute prohibiting advertisements that provide the retail prices of alcoholic beverages. – Issue - Whether, under the First Amendment, a state may constitutionally prohibit the advertising of the prices of alcoholic beverages.
- Reasoning - The state’s interest in protecting consumers from commercial harms provides reason why commercial speech can be subject to greater governmental regulation than noncommercial speech. However, bans that target truthful, non-misleading commercial messages rarely protect consumers from such harms. There are reasonable alternatives for accomplishing state’s stated purpose of reducing alcohol consumption.
Tobacco – State regulation of Cigarette advertisements are preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA). However, cigar and smokeless tobacco advertisement regulations under state law must still pass the Central Hudson Test.
Tort Liability for Speech – The court has varying levels of protection for speech against people, depending on the type of speech and the category of person the speech is directed towards.
Public Officials and Public Figures, or matters of Public Concern – Must demonstrate Actual Malice, when attempting to prove defamation.
- In a defamation suit, truth is always a defense. If what you say is true, the plaintiff cannot recover.
Actual Malice – The speaker made their statement with actual knowledge of its falsity, or was reckless in regard to the truth of the speech.
The first case to articulate the standard of actual malice, as applying to Public Official Plaintiffs was New York Times v. Sullivan.
Public Officials, to Demonstrate Actual Malice – Test – #
- The plaintiff must prove his or her case with clear and convincing evidence;
- The plaintiff must prove falsity of the statement; and,
- The Plaintiff must prove actual malice – that the defendant knew the statement was false or was reckless in regards to its falsity.
New York Times v. Sullivan – Sullivan brought a civil libel action against New York Times Co. (defendant) after it printed allegedly false and defamatory statements about Sullivan’s actions to control African American protesters and his treatment of Dr. Martin Luther King, Jr. The law in the state created a presumption of falsity of statements and the statements were “libelous per-se.” Issue – Whether the law of Alabama was a violation of first amendment rights when applied to speech about a public official.
- Reasoning – The court finds that the law is unconstitutional. The court adopts the ACTUAL MALICE standard and determines that the law applied, with the presumed falsity was unconstitutional. The plaintiff needs to prove that the defendants possessed the mental state of actual malice. The evidence presented is constitutionally insufficient to support a judgment for Sullivan as there was no indication that actual malice existed.
Requirement That the Statement be under the Guise of Fact - To be defamatory, the false statement must be viewed by a reasonable person as a statement of fact, rather than as a statement of opinion or a parody. Furthermore, a public figure cannot circumvent the First Amendment restrictions by using a different tort theory to collect damages for a published statement about him that is not a false statement of fact.
Public Figures – Public Figures are people who have obtained a level of fame and recognition amongst the general population or a specific segment of the population. (Oprah, Bono, etc…) These people are also required to demonstrate actual malice for proving defamation. Furthermore, they cannot assert a different tort (such as IIED) to subvert the actual malice requirements.
Gertz v. Welch – In 1968, a Chicago policeman named Nuccio shot and killed a youth named Nelson. The Nelson family retained Elmer Gertz (plaintiff), an attorney, to represent them in a civil action against Nuccio. Robert Welch ran a magazine called American Opinion. The magazine ran a story about the Nuccio trial where it accused Gertz of being a Communist and participating in the Communist campaign against local police. Issue - Whether a publisher of a false, defamatory statement about a private individual may claim a federal constitutional privilege against liability for injuries inflicted by the statement.
- Reasoning – The court determined that even though Gertz was involved in the community and professional affairs, he has achieved no general fame or notoriety. Because of that fact, Gertz was not a public figure and actual malice was not required for actual damages, only that the statement be false. But because it was a matter of public concern, to recover punitive damages, Actual Malice is required.
Two Ways to Become a Public Figure –
General Fame or Notoriety - A person may be a public figure for all purposes and all contexts if he achieves “general fame or notoriety in the community and pervasive involvement in the affairs of society,” although “a citizen’s participation in community and professional affairs” does not render him a public figure for all purposes.
Involvement in Particular Controversy - A person may “voluntarily inject himself or be drawn into a particular controversy to influence the resolution of the issues involved” and thereby become a public figure for a limited range of issues.
Private Matter and Private Figure – The court has determined that false speech about a private person and regarding a private matter is not protected under the first amendment. Because of the lack of protection, the court has found that actual and punitive damages require only proof that the speech was false, and does not trigger the requirement for actual malice.
Dun and Bradstreet v. Greenmoss Builders – The court analyzed a fact pattern where a credit reporting agency, Dun & Bradstreet, distributed a credit report about Greenmoss that indicated that the company was bankrupt and indicated that Greenmoss a grossly underestimated assets balance. This information was distributed to Greenmoss’ bank and harmed the company’s ability to seek financing. – Issue – Whether the Gertz balance applies when the defamed person is not a public figure, and the information is not of public concern.
- Reasoning – Where the statements do not involve matters of public concern, the Gertz balancing test does not apply and punitive damages may be awarded even without a demonstration of actual malice.
Intentional Infliction of Emotional Distress – The court has determined that the New York Times standard applies to IIED claims arising out of speech involving a public official/figure.
Hustler Magazine v. Falwell – Hustler Magazine included a “parody” advertisement that suggested that Pastor Jerry Falwell was involved in some devious sexual shenanigans with his mother. Falwell sued claiming IIED. – Issue – Whether a Claim of IIED by a public figure that arises from speech must be supported by evidence that the Defendant meets the Actual Malice test.
- Reasoning – The court finds that the Actual Malice Standard Does Apply. Because the advertisement was that of a parody, that was not presented as factual, there could be no recovery for IIED, regardless of how offensive the parody ad.
Snyder v. Phelps – Westboro Baptist Church picketed a soldiers funeral with their usual bullshit. The father of the soldier sued for IIED and was awarded millions of dollars in actual and punitive damages. – Issue – Whether a private individual may sue for IIED without proof of actual malice, when the defendant’s speech involved a matter of public concern.
- Reasoning – The court finds that damage actions by private individuals for intentional infliction of emotional distress are subject to the First Amendment rights of defendants if the speech relates to a matter of public concern, despite its “outrageous” and “particularly hurtful” quality.
School Speech – Speech that is made in school, during a school event, or under the supervision of the school or its officials.
School Speech is Protected Speech – The court has determined that students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate.” However, the court will balance the pedagogical interests of the school with the speech and its ability to create a substantial disruption to the educational environment of the school.
Tinker v. Des Moines – The Tinker chillins and some of their buddies wore black armbands to protest the United States’ involvement in the Vietnam Squabble (The US never declared war). The school sent them home and told them to think about what they did. – Issue – Whether the school may punish political speech, based purely on content, and that did not create a substantial disruption.
- Reasoning – The court used the lofty language of students do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate.” To basically say the First Amendment applies in school with some limited qualifications.
Bethel School Dist. v. Fraser – The school held a mandatory assembly, at which 600 students were present. At the assembly, Fraser nominated his friend for student elective office with a speech that honestly wasn’t very offensive, but the school suspended him because they said that it was an “elaborate, graphic, and sexual metaphor.” Fraser challenged his suspension and now he’s at the Supreme Court. – Issue – Whether schools may punish a student for sexually explicit speech at a school event.
- Reasoning – The court finds that the suspension was appropriate because the Court is perpetually full of old-ass people who find everything offensive. They also say that the school’s purpose is not only to teach from books, but also to educate students in the shared values of civilized social order.
Hazelwood School District v. Kuhlmeier - During the spring 1983 semester, the principal of the high school reviewed a draft of the newspaper (Spectrum) containing two articles on the topics of teen pregnancy and divorce. Believing these articles were inappropriate for the student audience and that there was not sufficient time to edit the articles and still make the publication deadline, the principal ordered the journalism teacher to delete these two articles from the final publication draft. – Issue – Whether under the 1st amendment, the school may censor the school newspaper.
- Reasoning - Under the First Amendment, educators may exercise editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. Because the school sponsored the newspaper, the school has an interest in promoting messages that fit within their educational goals and do not reveal potentially private information about students and their parents.
Morse v. Frederick - In 2002, principal Deborah Morse (defendant) suspended high school senior Joseph Frederick (plaintiff) for ten days after he displayed a large banner reading “Bong Hits 4 Jesus”. Morse suspended Frederick because she believed the banner promoted illegal drug use. Issue - Whether the First Amendment permits school officials to prohibit students from displaying messages promoting illegal drug use at school-supervised events.
- Reasoning - The First Amendment rights of students in the public schools “are not automatically coextensive with the rights of adults in other settings,” and must be “applied in light of the special characteristics of the school environment.” Although Frederick’s message was cryptic, Morse acted reasonably when interpreting it as a message promoting illegal drug use. Since the principle interpreted the message as promoting illegal drug use, the principle was within her rights to take down the banner and punish Frederick.