First Amendment Law (University Casebook Series)
|Related course(s)||Constitution of the United States|
Speech Presumptively Protected[edit | edit source]
a. Government will need to demonstrate a historical basis for a compelling reason to remove speech from protection
b. Speech is typically words or acts that speaker intends to communicate a specific message and likely to be understood by audience as such
a. Informed election
b. Foster democracy
c. Officials held accountable
d. Allows voters intelligence, integrity, sensitivity
e. Promotes stability by knowing that your voice is valuable
f. It's a safety valve
g. Core and preeminent value?
2. But should political speech be the only speech protected?
a. Difficult to define
3. Political speech that's regulated? Plan to kill bin laden or military secrets?
ii. Discovery of Truth in Marketplace
a. Truth is the only ground upon which wishes safely can be carried out
b. But full government determination is so much worse be it an evil or benevolent government
c. Will fade from memory if there is never anything to occur
a. But those with resources can drown out
b. Wrong to assume rationality will prevail. People can be swayed more by emotion and distortion
c. Short run may be very long
d. Even Holocaust was in a short period of time
a. Allows one to define themselves
b. Expression is intrinsically important
c. Human spirt demands expression
a. Countless other activities count towards autonomy
b. Why protect speech more than others
c. Ignore happiness of others when hate speech demean and injure
1. Pro: develop capacity to control feeling and build character
2. Con: why tolerate the intolerant
II. Unprotected Speech/Less Protected
(There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise constitutional problems)
a. Recognizing New Categories of Unprotected Speech?
i. Can only recognize unprotected if they haven't been recognized by Court but has been historically unprotected. Historical unprotected are incitement, obscenity, defamation, speech integral to criminal conduct, fighting words, child porn, fraud, true threat, grave and imminent threat the government has power to prevent. Practically speaking, nothing fits this bill. Court must be presented with persuasive evidence that a novel restriction (new category of unprotected speech) on content is part of a long (if heretofore unrecognized) tradition of proscription New categories are unprotected speech are not derived from balancing but a long tradition of non protection.See U.S. v. Stevens under Overbreadth.
b. R.A.V.: No content-based restrictions within an unprotected class unless restriction satisfies strict scrutiny or fall under one of the exceptions.
i. FACTS: D and several other teenagers assembled a cross and burned it inside fenced yard of a black family. Violated a ordinance that said "whoever places on … private property a symbol, object…a burning cross which one knows or has reasonable grounds to know arouses anger, alarm … on basis of race color, creed… shall be guilty of misdemeanor. D moved to miss on ground that it was OB. Minnesota SC said that phrase "arouse anger, alarm or resentment" limited the reach to fighting words. Regardless, MN SC said that it's ok to regulate CB because narrowly tailored to accomplish compelling state interest.
ii. I: Construed by MN SC. Accept that it reaches only fighting words. But it prohibits otherwise permitted speech base on its subject. Content-based regulations are presumptively invalid. Must take Chaplinsky rule into context? They can be regulated by their content consistent with FA, but that does not mean they are invisible. IE may prohibit libel but can't go further and say only libel that is critical of government. Too simplistic to make categorial. That's consistent with laws that say you can ban on one basis but not another. Burning flag can be punished for outdoor fire safety but not for dishonor.
iii. II: Ordinance is facially unconstitutional. The SC limited it to fighting words, but the unmodified terms that clear that they only apply to words that provoke on basis of race color creed religion or gender. Displays can be abusive yet not be prohibited if they don't fall under ordinance categories (like homosexuality). Ordinance goes to viewpoint discrimination. Court handwaves and says it simply did not satisfy SS.Would be difficult to win anways since town wanted to make a statement particularly regarding bias…not just fighting words. SS: concede compelling interest. But fails under narrowly drawn. Ban all fighting words. Content neutral alternative.
1. Virulence: If reason for subcategory has the same virulence as the general category, then can regulate.
2. Secondary effects (developed in zoning), ie concentrating or dispersing adult bookstores (content based). Law would be treated as content neutral…if based off secondary effects of the speech on stuff like property values. Prob won't work. See Reid v. Gilbert. Can't use when effect is on the listeners.
3. Catchall: no possibility of suppression of ideas/message afoot (ie ban obscene movies with blue eyed actresses).
c. Incitement: Can regulate if there is likelihood of imminent illegal conduct and speech is directed to causing imminent illegality (Brandenburg)
i. Clear and Present Danger: Can regulate it clear and present danger that they will bring about the substantive evils that Congress has right to prevent
a. BACKGROUND: In response to fear of leftist uprising during World War I, Congress enacted Espionage Act of 1917. Basically made it a crime when nation was at war for any person willfully to make or convey false reports or false statements with intent to interfere with military success or promote success of its enemies. Also made it crime to willfully obstruct recruitment or enlistment service of US. Sedition Act of 1918 prohibited individuals from saying anything with intent to obstruct sale war bonds, to utter print or write or publish any disloyal language.
b. FACTS: Indictment charges conspiracy to violate Espionage Act by causing and attempting to cause insubordination in military and naval forces of US and to obstruct recruitment services. The distributed publication says draft violated 13th Amendment given to people of draft age. Also urges people to oppose draft. Only reason D would send out these documents is to obstruct the draft. Regulation depends on circumstances. Considering allowing someone to yell fire in a theater. Question is words used in such a nature to create a clear and present danger that they will bring about the substantive evils that Congress has right to prevent. Consider example that can't falsely shouting fire in theatre and causing a panic. Compare to speech here. Here it's not necessarily false. No one will impulsively go into panic. No evidence of harm here. But it's wartime and consider the specific audience. Makes sense to regulate in times of war.
c. Takeaway: clear and present danger is still applied in some limited areas. Test is not speech protective since convicted. It's a tendency (tendency to possibly cause harm) test. 2) Fire analogy. 3) No discussion of value of speech. 4) No discussion of other first amendment concepts like chill or counterspeech. Positive signs: goes beyond prior restraint. Many thought it would be a limited decision to wartime and directed at draft age men.
2. FROHWERK: D's newspapers violate Espionage Act. Document call it a mistake to send soldier to France. Called it a rich man's war. Called for a ceasefire. Possible that document would kindle a flame. Cannot definitely overrule conviction. NO MENTION OF CLEAR AND PRESENT DANGER. Does this mean that any chance to incite can be regulated? No facts regarding who it is given to, or how likely there were to follow. No mention regarding value of speech.
3. DEBS: Indictment under Espionage Act for a speech delivered by D. Main speech was socialism, its growth and prophecy of success. That alone isn't enough, but could regulate if obstructed recruiting service. He expressed opposition Prussian militarism, which could implicate US too. He said he had to be prudent and couldn't say all, implied more? Intended inferences? Sustained
4. ABRAMS v. US.: D charged with violating Espionage Act. D printed wrote and distributed leaflets. D were Russians and did not believe in government in any form.
a. HOLMES DISSENT (try to distinguish first 3): It says the enemy of the works is capitalism. Says that the workers producing ammunition is production of ammunition that will also kill Russians (the people themselves were Russian). Without considering whether the documents attack the US as a form of government, the language regarding ammunition do urge curtailment of ammunition required to wage war, although the INTENT TO CURTAIL IS NOT PROVED. Simple publication by some randoms won't necessarily present danger. Intent to curtail not present. Object of paper is to help Russia, not to impede.
b. HOLMES FACTORS: Immediacy. Substantive evils. Intent (harm more likely to happen if you have the intent). Only present danger of immediate evil or intent to bring about it that warrants Congress regulating.
ii. Reasonableness (repudiated)
1. GITLOW: indicted for criminal anarchy, doctrine that government should be overthrown by force or violence. D is member of Left Wing Section of Socialist Party. Called for revolutionary socialism and mobilizing against proletariat. Use 14th Amendment to apply to states. Applies a reasonableness test and says that State is not acting arbitrarily or unreasonably (Presume validity of Statute). Dissent says test is clear and present danger.
2. WHITNEY v. CA: D was member of Socialist Party. Indicted for violating Criminal Syndicalism Act, doctrine advocating unlawful acts of force or violence. State was not acting unreasonably.
a. BRANDEIS Concurrence: Far future arising might be ok, but there is evidence here of conspiracy. THERE MUST BE A REAONSABLE GROUND THAT DANGER APPREHENDED IS IMMINENT (immediacy linked to counterspeech). SEROIUS injury to the state. Likelihood of the harm. Intent.
3. HISTORY AFTER: After Gitlow and Whitney, Supreme Court overturned convictions. Found convictions unreasonable. FISKE: no declaration urging unlawful act. DeJONGE: no urging of illegal act at Community Party meeting.
iii. DENNIS (Risk Formula)
1. FACTS: D charged with violating conspiracy provisions of Smith Act. Charged with conspiring to organize Communist Party, and willfully advocated to teach duty and necessity of overthrowing and destroying government of the US.
2. REASONING: Purpose of statute is to protect existing government, not from change by lawful and constitutional means, but by violence and revolution. Overthrow by force and violence is substantial enough for Government to limit speech. Do not need to wait till brink of execution. If know, gov can act. Success or probability of success is not criterion (compare with latter case). Not sufficient ot point out group inactive from 45-48. Disciplined members, feeling that time is near, sufficient to convict. Existence of conspiracy creates clear and present danger. (seriousness and probability
3. FORMULA: Hand considers whether gravity of the evil, discounted by its improbablity, justifies such invasion of free speech as is necessary to avoid danger. Likelihood is not an independent factor, just use it to discount (imagine how difficult it would discount if nuke is a huge harm). No intent requirement. Immediacy is rejected.
iv. BRANDENBURG: can regulate where advocacy is directed (intent) to inciting or producing imminent lawless action (imminent harm) and is likely to incite or produce such action (likelihood).
ii. Relation to audience
iii. Speaker's persuasiveness
iv. Words used
vii. Step's needed
b. Why imminence matter?
ii. Notion of counterspeech
iii. Relative other action necessary
iv. Imminence outside of a typical speech situation unlikely (unlikely in books, emails, etc) because you don't know when it will be accessed and in what context
2. FACTS: D, leader of KKK group, was convicted under Ohio Criminal Syndicalism statute for advocating crime, sabotage, violence as means of accomplishing industrial or political reform and for assembling group to teach criminal syndicalism. D invited a reporter to a rally. Reported filmed events.
3. PH: State introduced evidence of pistol, rifle, shotgun, ammunition, Bible, and red hood. One film showed 12 hooded figures, some of whom carried firearms. They gathered around a large wooden cross that they burned. No one else was present. Words incomprehensible but they were phrases derogatory of black people and of Jews. Second video elaborated on speech. D did not carry weapons. He believed those folks should return to Africa and India.
4. REASONING: Whitney is discredited. Mere abstract teaching is not enough. Act punishes advocacy of doctrine. Didn't reject, but also didn't rely on Dennis. Law is unconstitutional.
v. NAACP v. CLAIBORNE: overturned judgment again NAACP for boycotting business tha tis alleged to be engaged in racial discrimination. Official said "if we can any of you going in any of them racist stores, we're gonna break your damn neck." Court said that in passionate atmosphere, it was either inviting unlawful form of discpline or at least creating fear of violence REGARDLESS of whether discipline was intended. MERE ADVOCACY of use of force does not remove speech from protection of FA.
d. Fighting Words: Words (epithets) directed at an individual (face to face) which are likely to provoke a violent response.
i. CHAPLINSKY: D is member of Jehovah's Witnesses. Was convicted under NH law said to complainant "you are a God damned raketeer" and a "damned Fascist and whole government of Rochester are Fascists or agents of Fascists". He was distributing leaflets for JH. People called police for his disturbance. Resort to epithets or personal abuse is not proper communication protected by Constitution. Epithets likely to provoke the average person to retaliation and thereby cause a breach of the peace. Epithets here likely to provoke average person to retaliations, and thereby cause a breach of the peace. Law is narrowly drawn and limited. Court cannot say statute as applied substantially or unreasonably infringes on free speech.
1. RULE: Recognize fighting words where it is likely to cause a violent response against the speaker and where it is an insult likely to inflict immediate emotional harm. (utterance inflict injury or tend to incite an immediate breach of the peace).
ii. GOODING v. WILSON: Shows a trend of narrowing fighting words through use of vagueness and overbreadth
1. Appelle was convicted in Georgia on two accounts of using "opprobrious words and abusive language" that would tend to cause a breach of the peace. Specifically, he used phrases like "white son of a bitch, I'll kill you" or "choke you to death" or "cut you all to pieces." Phrases like opprobrious and abusive give greater reach than allowed by fighting words. Opprobrious conveys intended to convey disgrace and abusive includes harsh insulting language. Georgia decisions define these phrases in ways that are not fighting words under Chaplinsky. Not limited to words that "naturally tend to provoke violent resentment." Dissent says the cases are clear. Held overbroad.
1. Don't know if directed at an individual is a literal phrase (2 people?)
2. Face to face probably required
3. Don't know how to determine likelihood of provoking
4. Do know that intent isn't required
5. Don't whether value or lack of value is part of test or just explanation
6. Do know that "very utterance inflict injury" from Chaplinsky has been read out
a. Not enough if it's just causing emotional injury based on mere offensiveness to be regulated
e. True Threats: Can regulate statements where the speaker means to communication a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. Intimidates is a form of true threats, threats directed at a person or group with intent of placing victim in fear of bodily harm or death.
1. Intent Perspective
a. Speaker's Prospective (suggested by Virginia, speech protective since hardest to show)
i. Subjective: intent to intimidate (intent to place person in fear of bodily harm or death), safest route
ii. Subjective: intent not required, but knowledge instead (knew of risk target would be placed in fear, possibly good too
iii. Objective: should speaker have known that there was a serious risk target would be put in fear but acted with reckless disregard? Recklessness
iv. Objective would reasonable person in speaker’s position foresee (would reasonable person in speaker's position foresee that it would be viewed as a threat, even if not intent), no bueno under statutory requirement. See Elonis.
b. Target's Prospective
i. Subjective: was the victim in fear. Least speech protective
ii. Objective: would a reasonable person in position fear
c. Most courts use speaker's prospective, but some combine
2. Violence is necessary.
3. Imminence not required (can even be worse if not imminent, hanging over head).
4. Need not intent to carry out
5. Speaker need not directly communicate to target (can be on facebook, tweet, etc [might be relevant to intent though])
6. No exception for threats that have artistic political value etc
ii. VIRGINIA v. BLACK
1. FACTS: Virginia bans cross burning with an intent to intimidate. Cross burning is prima facie evidence of intent to intimidate. Black led a KKK rally in Virginia on a lawn of a neighbor after getting permission. 25-30 people gathered people would pass by. Klan members talked about what they were and what they believed in. Black gets arrested. Elliot burned on lawn of a black man. Trial court told jury that burning cross in of itself is sufficient evidence. 2 other Ds burned cross on neighbors property (a black man who moved from CA).
2. HISTORY OF CROSS BURNING: First burning was after a lynching and others occurred where swearing oath of loyalty. Began a reign of terror in South be it whites or black people. (burn people at stake, whipping murder). While sometimes burning carries no intimidating message, others it's the ONLY message. It’s a threat of violence and message of ideology. It's a symbol of the KKK. It's a symbol of hate. History of harm shows that it is NOT HYPOTHETICAL, and possibility of injury or death is very real. Often sent message of violence and harm. It's a very serious threat, forcing victim to comply or face wrath. Ds even say so. And when it is used for such a purpose, few messages are nearly as powerful.
3. MAJORITY: It's clearly symbolic expression, but the expression is threat so it can be banned. RAV did not hold that it bans all forms of CB within a unprotected area of speech. Statute here does not single out cross burnings directed at specific topic (statute reads carry out cross burning with intent to intimidate). FA allow ban because cross burning is a strong form (virulent) of intimidation. Instead of banning all intimidation, VA can ban this subset.
4. IV, V (Rehnquist, O’Connor, Stevens, Breyer) Virginia SC ruled that provision regarding prima facie evidence is overbroad. This provision makes statute unconstitutional. This provision allows jury to convict in every case even if D do not put on a defense. Even if they defend, make conviction much more likely. Can arrest solely on cross burning. Cross burning can be used in ways that are unprotected, but also in ways that are protected. Not always intended to intimidate, even though if often is. At a rally without any victim it's a statement of ideology and symbol of solidarity. Sometimes it's used for neither, movies or plays. The provision does not distinguish between uses (anger v. intimidation, public rally v lawn, individual victim or like minded believers, ban burning on a owner's lawn who will allow it.) Thus unconstitutional on its face.
5. SOUTER KENNEDY GINSBURG CONCURRING AND DISSENTING: Law is unconstitutional, RAV problem: Agree that it's CB based, but would reverse under RAV. In RAV, ordinance applied only when symbol offended on basis of race color, etc. Although that limitation isn't here, the law here picks a symbol with particular content from all possible unprotected expression meant to intimidate. All exceptions are grounded in idea that government is not disapproving the message. Here, there is such a danger. No doubt that the message means to harm. But it may carry an ideological message (ie symbolize ideology at a rally as majority points out). But does this fall under RAV's exceptions? Possibly the 1st. Treatment of Virginia statute here is more flexible than advanced in RAV, it would seem as though Virginia statute here picks a viewpoint.
f. Hostile Audience: Can regulate if speaker was culpable in riling up crowd (see language about it being disorderly to refuse to stop), there is a likelihood of violence, there is no alternative, and State is not acting out of hostility to message (see language about being punished for views) (clearly has to be established 2-4)
i. Other Approaches
1. Bible Believers Approach (no separate hostile audience exception)
a. Does speech fall in unprotected speech (relevant are incitement and fighting words)
b. Protected: CB or time based
c. Found CB so applied SS
i. To be compelling basically have to show likelihood of violence
2. Minority Approach
a. 6th Circuit reject hostile audience. Treat it as subset of incitement. Whole purpose of FA is to protect unpopular speech. But not all is protected. Look at incitement and fighting words. Brandenburg Incitement did not apply. Also not fighting words. Thus protected.
ii. NY v. FEINER
1. FACTS: D was convicted for disorderly conduct. He was speaking at an open-air meeting. Police received complaint "stop him or I will". They found a crowd of 75-80 people. D made comments regarding Trumena and other officials. Officers did not interfere, but grew concerned about traffic. They tried to get people on sidewalk. Crowd grew restless and pushed. D raised voice and gave impression of arousing black people against whites. He urged them to rise up in farms and fight. Officers stepped in and approach D, not to arrest, but to get him to break crowd. Asked D to get off box, which he refused. Officer demanded that he cease talking. Finally officer arrested D as crowd pressed closer and closer.
2. REASONING: typically a hostile audience cannot be allowed to break up speech, and recognize how police would love to break up otherwise lawful meetings. But here it is one thing to prevent police to be suppressive than to make them powerless to prevent a breach of peace when there is an incitement to ciot. Cannot reverse. "the findings of the state court and the imminence of greater disorder coupled with deliberate defiance of police officers.
3. DISSENT: D, a young college student, sentenced for his unpopular views. Gives cities and states a technique to break up speech. Test it too lenient. Police, could reasonable conclude that serious fighting or even riot was imminent; there he could stop speech to prevent breach of peace. Thus was disorder for D to continue. Facts do not show any imminent threat of riot or uncontrollable disorder. It's normal for crowds to push or disagree, even violently, with speaker. It's what happens when topic is controversial. They should use other efforts to protect him at the very least instead of stopping speech.
4. AFTER FEINER: Court seems to follow Black even though it hasn't overruled Feiner. In Edwards, protested arrested after ignored police order to disperse. Police protection at the scene was at all times sufficient to meet any foreseeable possibility of disorder. There was no threat of violence in Edwards. In Cox, person was convicted for giving speech objection to segregation of lunch counters and urging a sit-in. Some members of audience found speech inflammatory and suggested he get arrested. But no indication that group threatened vioelence. In Gregory demonstrators were arrested. Court overturned because, law did not limit convictions to instances where there was a threat of imminent violence, where the police made all reasonable efforts to protect demonstrators, and where police requested demonstration be stopped (culpable for cotinuing).
1. whether average person, applying CONTEMPOTRARY COMMUNITYSTANDARDS (standards of today of RECIPIENT community [3 approaches, leave it to juror, judge and jury agree on instruct, statute delineates]), would find that work, taken as a whole (avoid isolated passages) appeals to prurient interests (shameful or morbid interest in sex [ejaculation, golden shower, bestiality] don't need expert);
2. whether the work depicts or describes, in a patently offensive way sexual conduct specifically defined (carefully limited) by applicable state law
3. and whether work, taken as a whole lack serious redeeming social value
a. Affirmative burden on the DEFENDANT. Some courts consider intent of work to analyze taken as a whole. REDEEMING VALUE IS NATIONAL STANDARD. It's objective. Can and often involve experts.
b. Easier to label obscene then Roth because it said UTTERLY lack and government had the burden in Roth
1. Gov can ban along the line (sale distribution mailing receipt)
a. Can't have strict liability. Need to have some mens rea.
b. Private possession can't be punished. Stanley v. Georgia.
h. Child Pornography: Miller standard not satisfactory. Government can prohibit even if it does not meet Miller standard. Does not need to be prurient of average person, need not be patently offensive, and not be considered without a whole. Still need an intent element.
i. NY v. FERBER
1. FACTS: NY crim statute prohibits persons from knowingly promoting sexual performances by children under age of 16 by distributing material which depicts such performances.
2. REASONING: States entitled to greater leeway in regulation of pornographic depictions of children. Safeguarding physical and psychological well being of a minor is compelling. Distribution is intrinsically related to abuse (kids are harmed in the kaing). It's a permanent record of participation and harm exacerbated by circulation. Second, distribution must be closed if production is to be controlled (would motivate abusers to abuse children themselves). Miller standard does not reflect the interest here. Prurient interest bear no connection to fact kid has been harmed. Same with patently offensive. Bears not relation with value. Selling provides economic motive to continue production. Typically not the case that speech is immune when used in connection with a crime, like situation here. Value is low. If there is, used a younger looking actor. Compatible with earlier decisions. Even if protected, likely pass strict scrutiny.
ii. ASHCROFT: Law had 3 prohibitions. One was on any generated image of child pornography. Second was morphed. Photo of child and put it onto computer (still harmful as permanent record regulation). Third were adults that looked like kids. Both of the challenged are protected speech (unless met Brandenburg), don't fit in Ferber because none of the harms applied.
i. Indecent Speech: Medium by Medium Approach
i. Reasons to Demand Regulation
1. Captive audience
2. Harm to children, accessible to children
3. No alternative ways to protect kids
4. Adults can access elsewhere
5. Some-non criminal
6. Some-no history of regulation
ii. COHEN v. CA: Presence of unwitting listeners or viewers do not automatically justify curtailing speech. Need that substantial privacy interests are being invaded in essentially intolerable manner to protect unwilling listener.
1. FACTS: D was convicted in LA Municipal Court for violating part of Penal Code which prohibits maliciously and willfully disturbing the peace or quiet of any neighborhood or person…by offensive conduct. D entered LA County Court wearing a jacket saying Fuck the Draft. Women and Children were present in corridor D was arrested. D said he wore it to inform the public of his feelings about Vietnam and draft. D did not engage in or commit or threaten violence. D did not make noises.
2. REASONING: conviction clearly rests upon offensiveness of words. The "conduct" is communication. But his words is what makes it offensive. This case does not fall in unprotected categories. Not obscenity because it does not deal with sex. Not fighting words because no individual there was going to take it as personal insult. Not hostile audience. lthough first consequence might be discord, they are necessary. There are some additional considerations. The statute is vague and officials cannot make principled distinctions. Furthermore, words can also express inexpressible emotions. Holding up this law might lead to abuse. While the word will be distaste, one's vulgarity is another's lyric.
iii. FCC v. PACIFICA
1. FACTS: Pacifica aired the George Carlin Filthy Words monologue. A man wrote a complaint to FCC. Pacifica explained it aired it for satirical reasons. FCC issued declaratory ordering granting complaint and holding that Pacifica could have been subject to sanctions. Didn't impose, but it would go on record for future analysis.
2. REASONING: Obscene materials can be regulated, but offensive alone isn't. But protection need not be same in every context. Undisputed that monologue is vulgar (plurality). Majorities have rejected this hierarchal view. Each medium requires a special issue. Broadcasting is the most limited. It's pervasive and also intrudes in privacy of home. Right to be left alone plainly outweighs. Constantly tuning in and out, prior warning not sufficient. This is also uniquely accessible to children. Kids can learn words immediately. This does not involve two-way conversations or telephone. Adults can access elsewhere if they want it. No criminal penalty, just a civil fine. FCC has a long history of regulation (so defer to judgment). But case acknowledges it is a narrow decision.
j. Defamation: FA may restrict state’s ability to punish(the state action) defamatory speech.
1. False speech that causes harm to a person’s reputation
2. Libel: false written speech
3. Slander: false oral speech
ii. Public Official as P
1. Sullivan Requirements
a. P must be public official or running for public office
i. Applies to anything which might touch on fitness for office
ii. Those among hierarchy of government who have, or appear to public to have, substantial responsibility for or control over conduct of governmental affairs
1. Elected (all elected are public. If not elected, then do substantial responsibility)
2. Sometimes teachers
3. Social workers both ways
b. P must prove with clear and convincing evidence
i. Appellate court need to conduct independent review
c. P must prove falsity
i. D cannot be forced to prove truth
ii. Fact v. Opinion
1. No wholesale exception for anything that might be labeled opinion. Only statements of fact can be basis for defamation. A statement of opinion which does not contain a provably false factual connotation will receive protection. Can’t immunize by saying “in my opinion”
d. P must prove actual malice (knowledge or reckless disregard for falsity)
i. High degree of awareness of falsity
ii. St. AMANT: D entertained serious doubts as to truth. Could not be proved by failing to verify accuracy. Subjective awareness.
iii. Intentional fabrication of quotations is not enough, by itself, to prove actual malice. Consider case where non of quotes were actual statements made. Has to substantially change meaning of what was said
2. NY TIMES v. SULLIVAN
a. FACTS: P is one of three elected Commissions of City of Montgomery. Sued four black and Alabama clergymen and newspaper. Jury awarded damages. There was a full-page ad concerning P. Reads as follows: students who sang on state capitol expelled, police ringed campus, students who refused to register were padlocked, MLK's house bombed seven times. Some of the statements were not accurate. Name of anthem wrong. Expelled not for capitol but demanding service at lunch counter. Boycotted class instead of registering. Not padlocked. Police did not ring campus. MLK arrested 4 not seven times.
b. REASONING: Law applied by AL court deficient. There is a commitment to debate on uninhibited, robust, and wide-open issues and may include sharp attacks on government. The ad as grievance should definitely be protected, but question is does it lose protection due to some inaccuracy. Authoritative interpretations have refused an exception for any test of truth, especially one that puts burden ON THE PSEKAER. Error is inevitable in free speech. Nor is defamatory content outside protection since it can be effective criticism. State law is not saved by defense of truth. Requiring truth would lead to self-censorship esp with D having burden. Would chill. No evidence to support actual malice here. Liable per se is bad because central premise of FA is to criticize the government.
iii. Public Figure as P
1. Same rule applies. Justices rejected idea public figures can recover with less than proof of actual malice. Some cases went as far as actual malice should be used as long as public concern. Rejected in Gertz
2. No precise definition of a public figure, but must voluntarily affirmatively thrust himself into limelight.
3. Prominent social circle lady not public figure. Extensive publicity not necessarily public figure. Golden Fleece Award winner was private. IE difficult to be involuntary public figure.
4. General purpose public: household name
5. Limited purpose public figure: inject self into resolution of particular controversy. Could be public figure for some subjects but private for others
6. Involuntary public figure: drawn into public controversy through no fault of their own
7. Essentially can allow recovery if proof statements were false and of negligence by D
iv. Private Figure Public Concern
1. GERTZ: As long as they do not impose liability wihtout fault (ie no Strict Liability), States may define for THEMSELVES appropriate standard for liability for a publisher or broadcast of defamatory falsehood injurious to private individual. Can use less demanding scale than Sullivan. But State MAY NOT permit recovery of presumed (damages that law presumed to have damaged you for a specific amount) or punitive damages, at least when liability is not based on showing of actual malice.
a. FACTS: A Chicago policeman shot and killed a youth named Nelson. Family hires attorney (Gertz) to represent civil case. D publishes magazine that there is a conspiracy to discredit local law enforcement. D targets P. P did not discuss with Nuccio or press or played any part in crim proceeding. D represented P as architect of frameup, says he part of Marxist and Leninest. Implications that P had criminal record was false. No evidence that P was palling demonstration in Chicago. No evidence he was Lenist.
b. REASONING: Erroneous statement is inevitable in free debate. The legitimate state interest in underlying law of libel is compensation of individuals for the harm inflicted on them by defamatory falsehood. For public officials, they should use counterspeech. They have channels of communication. But private individuals are MORE VULNERABLE, and the state interest is thus GREATER. They will lack effective opportunities to counter. Public figure essentially assumed risked when they thrust themselves into public spear. This is not the case with private individuals. P relinquished no interest in his good name. He has a compelling call for relief. Private individuals more vulnerable to injury thus more deserving of Recovery. P was well known in circles but not a pubic figure.
v. Private Figure but not Public Concern: SCOTUS has not considered what should be standard of lability or even who must bear burden. Only ruled regarding presumed or punies.
1. Is it Legitimate News Concern?
a. Content: what was speech about (personal v. matters of public concern
b. Context: where did speech take place (pillow talk v public street editorial rally)
c. Form: traditional first amendment speech (signs, speech at rally, yelling at grandma at bus stop)
2. DUN: state interest adequately supports awards of presumed and punitive damages even absent actual malice in private concerns with private figures.
a. FACTS: D is a credit reporting agency. D sent a report to subscribers indicate that P, a construction contractor, had filed for bankruptcy. The report was false and GROSSLY misrepresented assets. P was told that bank (P was discussing financing with) received report. P immediately called and corrected with D. D then corrected. P sued and was awarded punies and compensatory.
b. REASONING: State interest is identical to the one in Gertz. But the FA interest is less important. Not all speech is of equal importance, matters of public concern is at heart. State interest in punies is not as great when it applies to public concern, unlike private concern. Courts for centuries have allowed this rule of recovery. P's credit report is not public issue. Only speaker and business audience had interest. Consider how only 5 subscribers received it.
k. Commercial Speech
i. BOLGER: Is speech commercial?
1. Form of an ad? If in form, likely to be found commercial.
2. Reference to specific product? Doesn't necessarily mean specific product. Consider a comedy mocking iphone.
3. Economic motivation for the speech? But compare with movies or books that has an economic motivation but it's not necessarily commercial speech.
ii. CENTRAL HUDSON TEST
1. Does the speech advertise illegal activity or constitute false or deceptive advertising? If so, can be regulated. If not, go to step 2-4. If legal activity, must be truthful and not misleading
2. Is the gov's restriction justified by a substantial government interest (gov's burden)?
3. Does the law directly advance gov interest?
a. Regulation that supposedly regulated advertising of alcohol content because supposedly worried that it would encourage competition of higher alcohol content did not advance because could do tv ad while regulation only applied to labels
4. Is the regulation of speech no more extensive than necessary to achieve gov interest
a. Is this like strict scrutiny?
l. False Speech: Regulation of false speech generally unconstitutional.
i. U.S. v. ALVAREZ
1. FACTS: Alvarez is a liar. He lies about stuff like playing for Red Wings, marrying a starlet from Mexico, and relevant here that he has held Congressional Medal of Honor. But this violates the Stolen Valor Act. The statements were not to secure employment or financial benefits. Crim penalty.
2. PLURALITY: Will apply SS since CB. Some false statements are inevitable. Gov quotes language from defamation, fraud, cases etc. THEY DEAL WITH SOME OTHER LEGALLY COGNIZABLE HARM associated with a false statement. Stolen Valor Act targets falsity and not much more. Even in those cases alone falsity is not enough alone. Defamation is to allow more speech not less. False speech not an existing category of unprotected speech, should not make a new category, does not satisfy SS. There are great effects on expression. Applies to any time place person, like theater. Applies to personal. Applies without regard of gain. Gov could single out any subject to punish as long as it's false. The restrictions are not necessary. Counterspeech worked great here. Gov argues that it could dilute value. There is a lack of causal link between interest and the Act. Gov offers no evidence that misrepresentations dilute. Counterspeech could work. Plenty of people responded to Alvarez here. He was perceived as a phony and ridiculed alone. The Government could have created a database.
3. BREYER: Some false speech is unprotected (fraud, perjury). SS for law that regulate false speech that is hard to verify, or pose danger to marketplace of ideas or risk selective prosecution (religion, philosophy, political). IS type scrutiny for all other false speech, which can be verified as false, and doesn't pose risk to marketplace (no chilling), elective prosecution, etc. Here is a really strong justification to honor those who deserve it. But can be less burdensome. Could be nterpreted to require knowledge. Could make it more finely tailored like require specific harm.
Protected Speech[edit | edit source]
a. Content Neutral: Content neutral, time place and manner regulations are subject to an intermediate like scrutiny (Directly regulate speech but do so in a content neutral time place manner form.)
ii. Pretty bad, needs good justification
iii. Speech regulated without any reference to the content of the message
iv. A CN law on its face can be treated as CB if purpose and effect is to target a particular content.
1. IE no marches down Olympic Blvd, but the effect was on topic of Palestinian Israeli conflict.
v. DANGER: Bad but not nearly as dangerous as removing a topic or viewpoint. Still multitude of ways to reach topic
b. Intermediate Like Scrutiny
vi. Regulation will be Upheld ONLY if the Government can show that the law is narrowly tailored
vii. to achieve an important government interest
viii. and that the law leaves open ample (some courts will want it to be equal) alternative channels for communication
1. IE no marches down Olympic Blvd between 5-7.
2. Important: residential privacy, traffic flows, security, preventing sexual abuse and exploitation of children
3. CA: Narrow if effectively furthers state interest
4. Pakingham v. NC: NC made it a felony for a registered sex offender to access any commercial social network website. Where offender knows site allows minor children to become members. Assuming it's Content Neutral, it failed intermediate. Not narrowly tailored to serve compelling interest. Way over inclusive. Reaches websites like WebMd Amazon etc.
5. SUGGESTION: Law preventing SO from contacting or gathering info from minors.
6. Third prong: could party exercise their speech as effectively (not the way speaker thinks is effective) in a different way? Some just ask if there is just an alternative?
a. IE no lawn signs but still can include window signs
b. Ensures values of FA prevail
i. IE speech not really restricted because it can still reach the market
c. Decreases the fear of secret censorial motive
d. Problem is it doesn't say equally effective alternative
e. Edwards v. City of Cordelane. Arrested for holding a sign that says stop the Nazis. Violated city ordinance that made it illegal to hold sign affixed to wooden or plastic support. It's content neutral. Didn't satisfy because it didn't leave open ample alternative for channels. Didn't allow force equal to the means he chose (some courts require equal force).
f. WYNBERG v. CHICAGO: Book criticize owner of Chicago Blackhawks. Barred by content neutral law. Court said it failed because there were not adequate alternative avenues. Eliminated the most opportune time and place to reach the audience.
g. Prohibited printed message on school clothing (lenient). Treated it like CN rule.
ix. If time place regulation that is CB, then still subject to strict scrutiny
c. Content Based/Viewpoint Based: Content based, viewpoint based regulations that do not fall within an existing category of unprotected or less protected speech are invalid unless regulation satisfies strict scrutiny
x. Viewpoint based
1. Horrible, practically indefensible
2. Regulation of speech based on viewpoint expressed
a. Do I need to know my viewpoint to know if it applies to me
b. IE it is ok to burn a flag unless done with animus towards government
c. Compare with can't burn any time with a high flag fire danger zone
3. All VP based are CB, but not vice versa
4. DANGER: Take a side out of the debate. Can't have a marketplace. Basically all theories supporting FA are destroyed
xi. Content Based
1. Regulation of speech based on content of message
2. Do I need to know the subject topic or message of the speech in order to know if the law applies to that speech
3. A law that is CB on its face cannot become CN by looking at its purpose. See Town of Gilbert
4. DANGER: Hard to sustain values because topic removed
xii. Strict Scrutiny
1. ACTUAL Compelling state interest
a. Typically not compelling if antithetical to purpose of amendment.
2. Law furthers interest (actually necessary link to show it serves that purpose)
a. IE no evidence or proof that sign regulation really increases traffic safety
3. and narrowly tailored
a. No less restrictive alternative. Over/underinclusiveness
b. In FA context basically counter speech
c. IE other signs ok in Gilbert
xiii. REED v. TOWN of GILBERT
1. FACTS: D has comprehensive sign code that prohibits display of outdoor signs without a permit. It exempts 23 categories. 3 relevant ones are Ideological Signs, Political Signs, and temporary Directional Signs (point to church or any qualifying event). The last are the most regulated. There may be no more than 4, limited to six square feet, and no more than 12 hours before or 1 after qualifying event (much more regulation if it's directional). Ideological signs were most favorable. Sign here is temporary directional sign.
2. REASONING: REASONING: Content based on its face. Regulates based on signs' communicative content. Aesthetic appeal and traffic safety is the asserted purpose. Court focus on tailoring though. "Assuming for sake of argument compelling…" It is HIGHLY under inclusive since plenty of other signs are permitted.
3. Gov Arguments:t he fact that it does not endorse a viewpoint is still bad. Can be content based regardless of government's motive. It would just make it more blatant. 9th was wrong to say that it only made speaker based and event based distinctions. First, the code isn't even speaker based. A baker wouldn't be able to post directional signs. Even if it is, it won't save it. Speaker preference can reflect content preference. If it's on the table for CB to become CN, it can lend itself to bad purposes.
xiv. BOOS v.BARRY
1. FACTS: DC Code prohibits display of any sign within 500 feet of a foreign embassies if that sign tends to bring that foreign government into public odium or disrepute. P want to carry signs criticizing foreign government.
2. REASONING:t he clause prohibits classically political speech. It is content based. Their ability to picket depend on whether their signs are critical. Favorable speech would be permitted. GOV has a BS argument that GOV is not itself selecting viewpoints (it is really not viewpoint based though) and that message depend on policies of a foreign government. Court reject because this still determines which viewpoints are acceptable albeit in a neutral fashion (hence not viewpoint based.) Must show compelling state interest and narrowly drawn. Gov asserts that there is a compelling interest in protecting dignity of foreign personnel. But it is inherently subjective.
d. Regulations that only incidentally affect speech are subject to an intermediate like scrutiny
xv. Mainly restrict conduct but incidentally affect speech
xvi. Regulation must further an important or substantial Government interest
xvii. That interest must not be related to suppressing speech
xviii. Any incidental restriction on speech must be no greater than necessary to further the non-speech interest
e. The place where the speech takes place may matter (forum-apply only to Government property ie doesn't apply in Gilbert because not Gov property)
xix. Public Forum (traditional public forum): Historically dedicated to speech and debate
2. Street corners
xx. Limited Public Forum (designated public forum): Not historically open to speech, but Government has chosen to open it to speech
1. Library reading room
2. Financial aid to student publications
xxi. Non-public Forum: Government property closed to speech. Free speech incompatible with the place
2. Military bases
i. IE banning decal that are derogatory
xxiii. Why/When do analysis?
1. Less important: bolster strict scrutiny. See Boos v. Barry. If restriction is a specific place it's worth mentioning
2. Not clear what forum
a. CB but not clear where it is, then would have to do so to select level
School Speech[edit | edit source]
a. Where there is a finding and showing that engaging in speech would materially and substantially interfere with requirements of appropriate discipline in operation of schools, restriction on speech can be sustained. (basically needs violence?)
b. Why Rules?
i. Must do it in school setting for CB and VB. History teacher can't teach math. Students need to get right answer. Can't write final exam about holocaust saying holocaust didn't occur.
ii. School's mission is to instill manners and civility. Could punish for saying fuck the draft. Obligation to protect students from intimidation, bullying, ie some form of speech.
c. TINKER: Students do not leave FA rights at schoolhouse gates
iii. FACTS: Tinker and Eckhardt attended high schools in Iowa. A group held a meeting at home and determined to publicize objections to hostilities in Vietnam by wearing black armbands. They were all sent home and suspended from school.
iv. REASONING: Avoiding discomfort of addressing unpopular viewpoint is not sufficient. Does not relate to regulation of clothing, aggression, disruption, or even demonstrations. It's a PURE kind of PASSIVE speech. No evidence of interference. Does not intrude on WORK OF SCHOOLS OR RIGHTS OF OTHERS. Class was not disrupted and no threat of violence. Any departure from may cause trouble. Any variation from majority may inspire fear. Any words that deviate may start a distrub. Our Constitution tolerates those risks. Did not prohibit all political stuff. People can wear Iron Cross. Clearly here it was VP.
d. FRASER: Can regulate vulgar lewd obscene language (on school campus and offensiveness determined by LANGUAGE used not ideas conveyed)
i. FACTS: D delivered a speech nominating a fellow student for student elective office. 600 students, many were 14, attended assembly. Fraser described candidate using an explicit sexual metaphor. Teacher told him speech was inappropriate and he shouldn't continue since there would be severe consequences. He was suspended and removed from list of candidates for graduation speaker.
ii. REASONING: it is an appropriate function of public school to prohibit use of vulgar and offensive terms. Education is not confined to books. There are lessons in civil mature conduct. Speech was "acutely insulting to teenage girl students." Could be damning to less mature audience and they being to struggle with adulthood. Some students were bewildered. School acted within permissible authority. UNLIKE TINKER, not VP. FA does not prevent schools from determining that to permit vulgar and lewd speech would undermine school's basic education mission. No place for sexually explicit monologue.
iii. Pervasive sexual innuendo in Fraser's speech was plainly OFFENSIVE to both teachers and students. Basically, students were unsuspecting captive audience.
e. HAZELWOOD: Schools can regulate speech at sponsored events where there is the imprimatur of the school. Restriction must be related to pedological concerns.
i. FACTS: Students were staff members of Spectrum, the school newspaper. They contend that school officials violated FA rights by deleting two pages from articles. You had to submit page proofs to Principal. One of the stores deal with pregnancy, sexual activity, and birth control. Other dealt with divorce. Principal argue that people were identifiable from the text. Principal also argue parents should have been given opportunity to respond.
ii. REASONING: Question between tolerance and PROMOTION (here publishing) is different than in tinker. These activities can be categorized as part of school curriculum. Can exercise greater control to assure participants learn whatever lessons activity is designed to teach and not be exposed to inappropriate material and that views are not ERRONEOUSLY attributed to the school. CAN REFUSE TO SPONSOR DRUG OR ALCOHOL USE, IRRESPOSNSIBLE SEX, or conduct inconsistent with CIVILIZED SOCIAL ORDER. Principal acted reasonable. There is enough identifying info. Not sufficiently sensitive to privacy of boyfriends and parents, no opportunity to consent.
f. MORSE: Pro-drug speech can be restricted. Can ban speech reasonable viewed as promoting drug use so long as political commentary (about drug use) is not punished.
i. FACTS: Olympic Torch Relay passed through on way to Utah. Principal decided to permit staff and students to participate in Relay as a CLASS TRIP. As torchbearers passed by, P unfurled a banner said Bong HiTS 4 JESUS. D demanded banner be taken down. All but P complied. Say violate Board Policy regarding advocating substances that are illegal to MINORS. Students attending class trips live by same rules. Bong hits obviously referred to marijuana.
ii. RESONING: Not Hazelwood since no imprimatur. Not Fraser since no lewd language. This is a clear school speech case since it happened during NORMAL SCHOOL HOURS and was an approved social trip. Reference is widely understood and worried that banner would be construed as advocating drug use. The phrase can be interpreted as an imperative or celebration. EVEN P DOES NOT ARGUE IT CONVEYS A POLITICAL MESSAGE. Fraser not controlling but it's instructive. Schools may regulate some speech even if could not do that outside the school Deterring drug use is important, perhaps compelling, an interest. Special characteristics of school and government interest justify regulation Danger here is more than conform and fear in Tinker. Morse ad to act on spot.
i. Other speech, including political speech can be banned if it substantially/materially disrupts school mission
ii. May have ability to prohibit speech offensive to others (vulnerable groups). 9th Circuit addressing language in cases regarding impinging on the rights of others.
iii. May have ability to apply tinker to off-campus speech
3. Not part of school or not part of school sponsored (ie not off campus play). Hazelwood doesn't apply to anything that's not school sponsored. Fraser only apply to on campus. Trend is can punish off campus if some nexus to the school .Need Reasonable foreseeable that it would affect the school and lead to disruption the school.
Government Employer[edit | edit source]
a. Government as employer is governed by its own rules when punishing speech of its employees
b. Employee needs to first show speech is substantially factor in firing
c. Employer would have to show they would have taken same action even if speech hadn't occurred
d. Government as employer as opposed to when Government speaks
e. Public employees do not renounce their FA rights but
i. Job related or within scope of employment?
1. Can fire without violating FA if speech is in employee's ordinarily within job duties
ii. Yes, no FA
iii. No (citizen speech), then do analysis because there may be FA protection.
iv. Private speech or matter of public concern?
v. Private, no FA
vi. Public, balancing government interest and value of speech
1. Public concern: content (what it was about) and context
2. Personal tends to be private (divorce, gay, etc)
3. Public: employee discussing money stolen from government, editorial about candidate for office,
a. If unsure, is it newsworthy
a. Convo between 2 persons likely to be deemed private
b. More general audience likely public
5. Some Courts look to motive too
6. If public, then analyze does value of speech outweigh harm to workplace
b. Interfering with close working relationship
c. Can deem to be these harms even if just POTENTIAL
i. Cannot fire if
1. Speech was not part of employee's job
2. And speech was a matter of public concern and the value of the speech to the public outweighed government's interest
ii. Can fire if
1. Speech was job related or
2. Speech is a matter of private concern or
3. Harm of speech to the workplace is greater than the value of the speech
h. See Garcetti v. Caballas and Lane
i. Garcetti: Prosecutor prepared internal memo recommending another prosecutor get dismissed. A felt that police lied to get a search warrant under B. After memo, A was demoted. Criticism and review were in scope. But whistleblowers would have no protection.
ii. Lane: Lane was director of government funded program that helped disadvantaged youth in Alabama. He discovered a legislator had built program over 177,000 dollars. She didn't show up to work but receive that money. Lane fired her. Lane was advised not to fire, but he didn't care. He was subpoenaed to testify. He did so. He testified at a trial. He was fired. Mere fact that speech was attained during employment does not make it in scope of his duties
1. Testifying typically not part of job duties
iii. Does not become in scope simply because concerns job or acquired during job. Question was the SPEECH ITSELF IS ORDINARILY WITHIN SCOPE OF DUTIES NOT WHETHER SPEECH CONCERNED THOSE DUTIES. His duties ordinarily do not entail testifying.
Vagueness: Speech regulations[edit | edit source]
a. cannot be vague such that a reasonable person cannot determine if speech is prohibited or allowed.
i. Chill speech
ii. IE cannot just ban obscene speech…because what's obscene?
iv. Increases chances of selective enforcement of unpopular ideas
1. nuisance or loitering
2. Coates: annoying passerbys
3. Vanity license plates that reasonable person would find offensive to good tastes
a. Reasonable person reference does provide adequate guidance
vi. VAGUE IS GENERALLY DONE AS APPLIED TO PARTY BEFORE THE COURT
1. A supporter of terrorist would know what material assistance mean but a teen might not
c. TERIMINOLOGY: Facial v. As Applied
i. Facial: Individual Circumstances of parties irrelevant. Only looks at words. Uncommon because very difficult to win. Would have to show that no set of circumstances under which law could exist. IE statute lacks any plainly legitimate sweep.
1. Example: To be facial challenge, just need to show some constitutional application of the law
a. Prefer as applied to strike in specific facts.
b. Hard to win facial challenges
d. As Applied: Argue that law is unconstitutional as applied to you.
i. Virtually all vagueness challenges are as applied
ii. Why challenge facially?
1. Virtually vague in all applications
2. Maybe only reaming option like if it's not vague as applied to you
a. CANNOT ARGUE LAW IS VAGUE AS APPLIED TO OTHERS (No Standing)
3. The circumstance of two teens exchanging explicit pictures is not before us when older man tried to argue vagueness as applied to teens
e. COATES v. CINCINNATI: Ordinance makes crim offense for "three or more persons to assemble on any of the sidewalks and there conduct themselves in a manner ANNOYING to persons passing by." P was a student demonstrating and other Ps were pickets involved in a labor dispute. Violation of 1st through 14th. Ordinance is vague on its face because standard is unascertainable and too broad. Some conduct annoys some and not others. It's not that it's imprecise but comprehensible normative standard, but there is NO STANDARD at all. City can regulate stuff such as blocking sidewalks, littering, but ordinance needs to be specific. It also violates free assembly and association.
f. BAGGET v. BULITT: Loyalty oath prevented any subversive person from being employed in state and required person to swear that they not part of subversive organization. Language is unduly vague and broad. Subversive provided little guidance. Greater precision is required when laws regulate speech, and statutes will be invalidated if judge concludes that they provide inadequate notice as to what is prohibited and what is allowed.
Overbreadth[edit | edit source]
a. Regulation unconstitutional if it regulates substantially more speech than Constitution allows.
b. Examples: law bans all sexually explicit magazines. Some covered can include obscene ones but it also will cover protected speech
c. Standing: person to whom law can be constitutionally be applied can argue it would be unconstitutional as applied to others. Usual rule of standing is that person to whom a statute may constitutionally be applied will not be heard to challenge that statute on ground it may conceivably be applied unconstitutionally to others in other situations not before Court. But overbreadth is exception. Necessary because individuals may refrain from expression rather than challenging. Does not apply in commercial speech since incentivize to advertise is strong enough to overcome chilling.
i. Commercial speech exemption
ii. Substantial OB Requirement: Law must be substantially overbroad-must be realistic danger that law will significantly restrict First Amendment rights
1. Must be significant in number of situations
2. Relative in relation to constitutional applications
3. Has to be real demonstrable danger
e. Statutory interpretation can eliminate OB: law is not OB if it has been, or can be narrowed through statutory interpretation
i. Is it correctly read narrowly? See bottom of 9
ii. Would that interpretation eliminate OB problem?
f. U.S. v. STEVENS
i. FACTS: Congress enacted 18 U.S.C. 48 to criminalize commercial creation, sale or possession of certain depictions of animal cruelty. Statute deals with only portrayals of such conduct not underlying acts themselves. Animal cruelty defined as one in which living animal is intentionally maimed, mutilated, tortured, WOUNDED or KILLED if that conduct violates federal or state law where creation sale or possession takes place. Exempts serious religious, political, scientific, educational, journalistic, historical, or artistic value.
ii. Recognizing New Categories of Unprotected Speech: See above for rule. 48 explicitly regulates content (depictions depending on whether they depict conduct in which living animal is intentionally harmed), which is presumptively invalid. Government argues that this type of depiction should be added to limited list because they lack expressive value. Gov points to history against animal cruelty, but there is not history on such depiction.
iii. OB Analysis: First step, construe statute. Wounded or killed does not convey limitations of cruelty. The phrase "illegal" does not carry same limitation as cruelty (it’s illegal to kill endangered animals without requiring cruelty). There would be a maze of regulations. Some allow crossbows, others forbid. Court argue it applies to a lot of common depictions. Government agrees it WOULD be unconstitutional if that broad, but Gov argues it limits it to extreme material (ie statutory interpretation to limit ob reach). Court reject all 4 limitation arguments. It's not about cruelty because language of statute such as wound or kill does not necessarily implicate cruelty. Language like mutilate would connote cruelty. Exception clauses for serious value did not exclude either. Gov argues something is serious is not scant, but serious means serious. Prosecutorial discretion isn't enough.
g. OSBORNE v. OHIO: a law banning possession of child porn by its terms prohibited possession of nude photos. Nudity is protected speech, but Ohio SC narrowed it to material of a minor that constitute a lewd exhibition or graphic focus on genitals and where person is neither child nor ward of person charged."
h. GOODING v. WILSON: absence of narrowing led to a law prohibiting fighting words being invalidated. Law prohibited using abusive language to cause breach of peace. Supreme Court found no Georgia court decision that narrowed it to fighting words
i. SECRETARY OF STATE v. J.H. MUNSON: prohibited charitable orgs from soliciting funds unless at least 75 percent tof revenue was used for charitable purposes. Professional fundraiser raised FA rights of his clients, charities not parties to suit. Court permitted standing. Court allowed party to assert rights of another without regarding to ability of the other to assert his own claims and with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with requisite narrow specificity.
j. HOUSTON v. HILL: unlawful to interrupt police officers in performance of duties. P was convicted for distracting officer from arrest. It affects a lot of protected speech and grants a lot of discretion. Violated plenty of times daily but officer has unguided discretion.
k. NY v. FERBER: upheld a law prohibiting child porn. Although it could be applied to some material with serious literary, scientific, or education value, these applications would not amount to more than a tiny fraction of materials within statute's reach. No substantial overbreadth and no realistic danger than a significant amount of speech would fall in category. Applications could be dealt with on case by case basis.
l. BROADWICK: some overbreadth *law prohibited political activities by gov employees) but upheld law because not substantial and overbreadth could be cured by case-by-case analysis.
m. SCHAD v. BOROUGH of MOUNT EPHRAIM: P operated adult bookstore in commercial zone. P installed a booth to watch adult films. Store began introducing live dances. P argues that crim penalties under ordinance prohibited all live entertainment, include nonobscene, nude dancing, violated rights of free expression. Ordinance prohibits wide range of expression that are protected. Entertainment, political and ideological, is protected; motion pictures programs musicals are protected. P has standing to challenge how it is applied to third parties.
n. BOARD OF AIRPORT LA v. JEWS FOR JESUS: A resolution banned all FA activities. P was distributing free religious literature when peace officers stopped him. On its face, resolution reaches the universe of expressive activity. It created a FA Free Zone. Doesn't stop at regulating problems such as congestion. It would prohibit talking reading, symbolic clothing. Everyone would be violating resolution. Substantially overbroad and realistic danger of chilling.
iv. Note: would not be overbroad if prohibited speech not protected by FA. But it would be vague because a reasonable person would not know what is permitted.
Prior Restraints[edit | edit source]
a. Administrative system (licensing, permits) or judicial order (injunction) that prevents speech from occurring is presumptively invalid.
b. Preventing speech before it happened as opposed to after the fact
i. Ie licensing system
ii. A prosecution after publication would be after the fact
iii. Stevens prohibition an after the fact punishment
c. Why bad?
i. Greater chance speech will never enter marketplace
ii. Concern with over-censorship
iii. Collateral Bar
1. A person violating an unconstitutional law is not punished, but a person violating an unconstitutional prior restraints can be punished
2. A court order must be obeyed until it is set aside, and that persons subject to the order who disobey it may not defend against the ensuring charge of criminal contempt on the ground that the order was erroneous or even unconstitutional.
a. Don' have to follow when transparently invalid or total abuse of judicial discretion
3. RE Licensing: same idea is to appeal denial through system as opposed to simply ignoring. Exception is if licensing scheme is invalid on face then you can challenge it when you violate it
a. Gov must have important reason for licensing scheme
b. Standards must be clear leaving virtually no discretion
c. Procedural safeguards must be present.
i. Strong presumption against
ii. Strict scrutiny to the max
iv. True Strict Scrutiny
1. National Security compelling, but just can't assert it. Gov must prove it. Must be akin to troop movements
2. Ring endorsement of marketplace of a free place
e. NEAR v. MINNESOTA
i. Minnesota has a law that provides for abatement, as a public nuisance, of a malicious scandalous and defamatory newspaper, magazine, or other periodical. Any person selling or giving away obscene malicious item is guilty of nuisance. Court can punish disobedience of a TRO. A publication was sued for publishing articles that said a Jewish gangster controlled the police. Judgement perpetually enjoined. Object of statute is to suppress. It is in effect censorship. Resumption of publication is punishable. Whether a person could publish again would depend on Court. Chief purpose of FA is to prevent previous restraints upon publication. War and obscenity arguments are not present here. Not enough to say that publisher gets a chance to show before injunction issues to a court. If that's the case, Legislature can provide that any time publisher could be brought before court and produce proof of truth. Legislature can then provide machinery for determining exercise of its discretion what are justifiable and restrict publication. Thus unconstitutional.
f. NY TIMES v. U.S.
i. FACTS: 47 volumes was taken from Gov and published about Vietnam War. It was mainly historical but mainly made government looked bad. These were the Pentagon papers.
ii. BLACK DOUGLAS: Clear case. FA is absolute. There is no room for restraint. Purpose was to prohibit widespread practice of suppression,.
iii. BRENNAN: Error was granting injunctive relief. FA tolerates no prior judicial restraint. The narrow exception is war. Scheneck (no one would question but that a government might prevent actual obstruction to its recruiting service or publication of sailing dates of transport or number and location of troops). Even if we are at war, Gov have not alleged that events of the nature would arise from publication. Allegation or proof that imperilizaiton would be enough to issue a RO, but mere conclusions not enough.
iv. STEWART WHITE: Defense and diplomacy require confidentiality and secrecy. Although Executive has power, not sure that disclosure of ANY of them will result in direct immediate and irreparable damage to Nation or its people. Does not go as far to say there are no circumstances for prior restraint. These papers will probably even cause substantial damage to public interest. But the heavy burden is not met. There is great potential that ruling in favor of Gov would inhibit press. Needs to be grave and irreparable injury to public interest.
v. BRENNAN: Court would be making law and usurping Congress's power.
vi. BURGERG: Should not have been so quick. NY Times should have talked with Gov.
vii. HARLAN BLACKMUN: Too fast. Not too much respect for Executive.
Free Exercise[edit | edit source]
a. Congress shall make no law . . . prohibiting the free exercise thereof
b. Pre Smith
i. Does Government policy/rule substantially burden religion?
1. Prohibit something religion requires
2. Require something religion prohibits
3. Law burden ability to practice follow religion?
ii. If yes, is burden on religion justified by compelling government interest, necessary to achieve, and it is no more restrictive than necessary?
c. Post Smith
i. Law of generally applicability that incidentally burdens religion does not violate free exercise.
1. Exceptions. Will use pre smith for unemployment claims since they are done individually. Hybrid claim can get strict scrutiny (ie combining free exercise with other constitutional claim like free exercise and free speech)
2. Solution? Use political solutions. Work for majority religions, but what about minority?
3. RFRA essentially restores old test
a. Law that requires all military personnel to wear a particular clothing would be ok
5. Would basically have to show not a law of general applicability to win. IE laws that target religion or seems neutral but purpose is to target religion. The effect CAN be, just not the purpose.
ii. EMPLOYMENT DIVISION v. SMITH
1. FACTS: State have a drug law. One of illegal drug is peyote. Used in native American religious rituals. He was never prosecuted for using drugs. He was fired from his job at rehab clinic, and couldn't qualify for unemployment compensation. Religion strongly prohibited any type of drug use, peyote was just for ritual. Argue criminal law violates free exercise by not having an exemption.
2. Majority: If prohibiting exercise of religion is merely the incidental effect of a generally applicable and otherwise valid provision, FA has not been offended.
3. Concurrence: CONCURRENCE: Majority rule would bar people from exercising religion regardless of whether law prohibits conduct only when engaged in for religious reasons, only by members of that religion, or all persons. Concurrence high disagrees with majority’s view of the FA. Concurrence argues there is a compelling interest to ban, while dissent argues no compelling interest in not exempting. There is a significant interest in controlled substances. Uniform application overrides. Even possession by one person is inherently dangerous. Selective exemption would impair.
iii. Church of Lukumi
1. FACTS: Santeria originated in 19th century. When people from Africa were brought as slaves, some African religions absorbed Roman Catholicism. They expressed devotion to spirits, called orishas. Principal form of devotion is animal sacrificed. People announced plans to establish a house which distressed people in city. City made some ordinances at issue. First defined sacrifice as to unnecessarily kill, torment, torture, or mutilate in a ceremony not for primary purpose of consumption. Prohibited possession for such purposes. Prohibition restricted only to rituals. There are exemptions for slaughtering for food purposes. Second ordinance said will be unlawful for persons etc to sacrifice within corporate limit of City. Final ordinance prohibited slaughter outside areas zoned for slaughterhouse.
2. REASONING: First, look at text of the law. Sacrifice and ritual has strong religious conations. There current usage admits some secular meanings. Suppression of Santeria was object. Definition excludes almost all killings of animals except for religious sacrifice, and it's even more narrowed by exempting kosher slaughter. Most regulated is Santeria. Proscribe more religious conduct than necessary. Could have regulated organic garbage. Purpose was to target religion. Far well below necessary standards. Under inclusive because do not prohibit nonreligious conduct that endangers those interest. Ordinance was carefully drafted to mainly go after religious sacrifice.
iv. Trinity Lutheran: States could get money to build playgrounds. States said church run programs couldn't get them. Said would violate EC is give money. Court said violate free exercise because laws discriminates against religious group, hence not general applicability.
1. Dissent: implications on EC if fund?
Establishment[edit | edit source]
a. Congress shall make no law respecting establishment of religion
b. Lemon Test: Some reject it outright. Many are accused of manipulating it anyways.
i. In order for a law to be constitutional, there must be a:
1. Secular purpose
i. Purpose hard to determine
1. How determine purpose?
2. Laws don't have to declare
3. What if multiple purposes
ii. Premise is wrong, having a religious purpose should not violate the constitution
1. We are a religious nation and founded on judeo christian values
i. Do it all the time
ii. Purpose of law, not individual motivation does law have purpose of advancing/inhibiting religion
iii. Ok if hard, only need worry if obvious situations
2. If hidden, won't convey message
iv. Are tests for determining purpose in EC cases
i. Defer to legislative stated purpose unless clearly a sham
ii. Ask what would reasonable observer perceive to be purpose
3. Relevant because fear is the message the government conveys
2. Secular effect: principal or primary effect must be one that neither advances nor inhibits religion and
a. Direct Effect. Tax cuts are indirect effect. Gov not directly advance religion.
b. Sometimes phrases as prohibiting action that symbolically endorse a religion.
c. Thorton: employer cannot require to work on Sabbath. Violates EC.
3. Statute must not foster an excessive government entanglement with religion
i. Character and purpose of institution benefited,
ii. nature of aid State provides
iii. relationship between gov and religious authority.
i. Continuous gov monitoring and oversight of religion.
ii. Christmas songs in schools. In God we Trust on money. National Day of Prayer. Pledge of Allegiance (one nation under God). Decorations.
1. FACTS: PENN and RI statutes provide state aid to church-related elementary and secondary schools. Penn provides financial support to nonpublic elementary and secondary schools by reimbursing for cost of salaries, textbooks, and instruction materials. RI pays directly to teachers in nonpublic schools a supplement of 15% of their salary.
2. REASONING: Phrase is a bit opaque since it's "no law respecting an establishment of religion." Will make a rule against the 3 evils: sponsorship, financial support, and active involvement of sovereign. The purpose of statutes was not to advance religious. Was meant to enhance secular education. But impact of statute creates excessive entanglement. Unconstitutional.
iii. STONE: posting ten commandments of walls of classroom has no secular legislative purpose. Invalidated public schools with one minute prayers.
iv. McCREARY: manifest objective may be dispositive, and that development of presentation should be considered when determining purpose.
1. FACTS: Two counties put up one large gold farmed copies of King James version of 10 commandments in Courthouse. ACLU sued. County authorized second more religious display. DCT: Likely violated (issued TRO) County hired new attorneys, didn't even appeal. Set up new display, labelled foundations of American Law (include other stuff like declaration of independence etc).
2. RULE: When government acts with ostensible and predominant purpose of advancing religion, it violates clause, there being no neutrality when government takes side. Manifesting purpose to favor one faith over another, tends to violate too. Purpose needs to be genuine, not a sham, and not merely secondary to religious objective. Purpose is even more important than effective because it sends a message of religious favoritism and others the outsider.
3. REASONING: Display is simmilar to stone in two respects. Conmmandments are distinctly symbolic. It's a central point of reference. Universally accepted prohibitions against murder etc. Different from tablets with 10 roman numerals. REASONABLE OBSERVER COULD ONLY THINK meant to emphasize religious message. Sure it has influence on secular laws, but in entirety there is a religious statement. Counties modified after being sued. Still held violated because no secular purpose. Will use reasonable observer test as person familiar with recent history. Clear from history that its purpose was to advance religion, and secular purpose were litigation posture.
v. VAN ORTEN: On steps of Texas state capitol. 22 acres. 17 different monuments. From beginning it was part of larger segment of exhibits. But it's 22 acres, can't you argue that if so spaced out other times you can only see 10 Commandments. Other argument is different history. Breyer said it wasn't divisive or perceived as religious because no one complained for 40 years. But wouldn't complain if feel like outsider. Thomas: no incorporation of establishment clause.
vi. ENGLE: State required school start each day with prayer. Requiring prayer it's hard to find secular purpose.
vii. McGOWAN: blue laws required close on Sunday. Clearly adopted with clear religious purpose. But purpose evaporated as years past.
i. Strict separation
1. Wall between church and state
2. Gov shouldn't be involved in reigion and vice versa
3. Follow all of lemon but def not entanglement
b. Incorrect reading: EC doesn’t require a wall
c. EC shouldn't require wall: that should not be interpretation
d. IE never providing guards or streets to temples etc?
5. Not necessarily anti-religion. Religion is better off without gov involvement.
ii. Symbolic endorsement
1. Focus on purpose and effect prongs of Lemon. Gov simply shouldn't endorse. Test for neutrality is reasonable person test (message conveyed by government action that religion or belief is favored or preferred. See whether likely to be perceived by adherents as endorsement or nonadherents as disapproval) Does law convey to reasonable person that law prefers or disfavors another.
a. Educated RP: would reasonable observer who is aware of history and context see it as a symbolic endorsement of religion by gov. Used by McCreary, so more probable approach.
b. Average RP: would average RP passing by perceive it as gov support of religion
a. Too hostile
b. Too accommodating
c. Too amorphous
d. Better RP? Nonadherent of the favored religion feelings?
iii. Anti-coercion (gov should promote religion, maybe even favor unless dealing with money)
1. Gov cannot esablish a national religion
2. Gov cannot coerce someone to engage in a practice
a. Wrong theory and goes too far and allows too much involvement
b. What's the difference between this and free exercise
c. What does coercion mean?
1. All are coercionists (none would say coercion does not violate)
2. All theories agree coercion violate
a. Coercion theory: necessary
b. Others: coercion is not necessary just sufficient
1. FACTS: Litigation concerns two holiday displays. First is a nativity scene. Another is a menorah placed next to Christmas tree and sign saluting liberty. Endorsers split. Nativity scene by itself does violate. But together did not violate but not sure what did it convey (holiday spirit or diversity). Coercionists, all ok.
2. MAJORITY: The nativity violates, but menorah is alright. Nativity by itself can communicate a religious message. Unlike Lynch, nothing detracts religious message (ie in Lynch there was santa to tell a different sotry). Here, it's a single element. Menorah is often a religious symbol, but it is also a symbol for a holiday like Christmas. It's next to a tree and sign. Thus, it creates a permissible overall holiday setting that represents two holidays.
3. CONCURRENCE/DISSENT: Nativity not ok. It says Christians are favored and non Christians are not. Menorah should go through same reasoning as nativity.
4. DISSENT/CONCURRENCE: ruling on nativity is hostility on religion. Gov can accommodate. Gov may not coerce and many not give benefits to religion in degree that establishes a religion or faith. All these symbols are meant to celebrate season and gov can accommodate. They both have a secular and religion component. Insulating gov from all thinss religion. No one was compelled to observe or participate. Nor does it contribute money to serve a faith. They are passive symbols.
vi. LEE v. WEISMAN: Psychological Coercion
1. FACTS: Principals in city of Providence are permitted to invite members of clergy to offer invocation and benediction prayers as part of graduation ceremonies. P graduated from a public school, but dad objected to prayers at graduated. Principal invited priests or rabbi (this year rabbi) to deliver prayers. Principals typically give invited clergy pamphlet with guidelines to make prayer inclusive.
2. REASONING: Attendance is in "a fair and real sense obligatory" even though district does not literally require attendance. It practically creates a state-sponsored and state-directed religious exercises. The choice is attributable to the state. Principal directed and controlled with the guidelines. It may appear to the nonbeliever or dissenter to be attempt of state to enforce a religious orthodoxy. It places psychological pressure even with parents there, as well as peer, on attending students to stand or at least maintain respectful silence. There are are those who will perceive it to be coercion (hence why Kennedy joined). Although you can say silence etc is just respect, there are those who can take it as approval or participation (and for most students standing and silence is in fact participation). It's formalistic to focus on fact that attendance was not mandatory. Graduation is one of life's most significant occasion. They would have to forfeit an intangible benefit to avoid the prayer. Gov gives insufficient recognition to conflict of conscience faced by student. State cannot require citizen to forfeit rights to resist.
vii. SANTE FE v. DOE
1. FACTS: District is political subdivision of Texas. P are two sets of students (one Mormon and one Catholic). August policy, authorized two student elections. First determines whether invocations should be delivered, and second to select spokesperson. Initial statement omitted requirement that invocation be nonsectarian with a fallback that limited if the preferred policy enjoined. Students chose a student to deliver prayer. Final policy omits the prayer and refers to messages and statement and invocations.
2. REASONING: FA still applicable even though students are the speakers. Invocations are authorized by gov policy. The majoritarian process ensure that minority candidates will never prevail. There was a history of praying. District argues that unlike lee, there is an election. But at best it narrows the offense, but at worst it increases sense of isolation. It does nothing to protect minority, it only intensifies the offense. District argues it's hands off, but reality perceived and real shows an endorsement of religion. Policy mandates that statement be consistent with goals and purpose of policy, which is to solemnize. The policy invites religious message. It's the most obvious method to solemnize. THUS THE PURPOSE IS TO HAVE A RELIGIOUS MESSAGE. Because the message is blasted over announcement and crowd have school insignia, listening audience must perceive message of expression of the majority student body delivered with approval of school. Listener would inevitably take it as endorsement. Attendance is not mandatory, and pressure is not as strong as graduation. But plenty of other people such as cheerleaders or band have to attend. Games are traditional gathering. Although some might not want to go anyways, should not make it a chose or risk attending.
viii. TOWN OF GREECE v. GALLOWAY: prayers to start monthly board meetings. Explicitly Christian.. 5-4 upheld. Kennedy said no kids. Adults have greater ability to resist psychologically. There's a worry about penalty for not partaking, there was no evidence. Scalia: no coercion and history of prayers to start meetings.