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M.Glick – First Amendment – Fried – Fall 2007 1 of 172 FIRST AMENDMENT THEORY Three Takes on Free Speech 1. Meiklejohn/Sunstein 2. Post – (CF) 3. Fried Meiklejohn/Sunstein What freedom of speech guarantee is necessary in order to ensure democracy? o Want protection for political speech o Free speech exists in order to ensure democracy, so free speech doctrine must protect debate on public issues / speech regarding our politics Meiklejohn o Simple dichotomy “Public” Speech wholly immune “Private” Speech entitled to less o Our speech laws should be made in order to ensure democracy Equality/mutuality/multicultural society Want to guarantee talking amongst one another in order to hear a series of viewpoints such that members of the community can vote in a proper and sophisticated manner Town Meeting all viewpoints should be presented in order to arrive at wise public policy Sunstein o Free speech is an instrument for democracy Democracy is the premise and free speech is only an entailment o Democracy necessarily implies some values Democracy is a way of realizing the value of equality and diversity Keegstra Fried Freedom of the Mind Steps: o Start with Freedom of Expression as an inherent good for the individual Gov’t exists to protect freedom of expression Freedom of expression doesn’t exist to make gov’t work o By having autonomous individuals, democracy will work better Autonomous individuals (responsibly for themselves and their own choices) will construct democracy in order to preserve, maintain, and enjoy their autonomy Assumptions: o We have a capacity for choice/reason Autonomy Notion of self-ownership we own ourselves (not the gov’t) o Out of that capacity, everything else comes as a result we choose to constrain our liberty into something called gov’t in order to maximize it overall M.Glick – First Amendment – Fried – Fall 2007 2 of 172 Compared to Post o Post Calls it “autonomy” o Fried More radical the limits on self-ownership are only the ideas that accord with the idea that no one owns us If what I am seeking to do is persuade you to reach your mind: No one has the capacity to stop me from reaching my mind because no one owns my mind but me No one has the ability to stop me from trying to persuade others since no owns their minds either Compared to Meik/Sunstein: o Fried Autonomy leads to Democracy Start with individual and make collectivity o Meik/Sunstein Speech and Democracy lead to Autonomy Start with collective and shape individual Current Law o Focus is on Physical Liberty Unless you can show that speech impinges on the physical liberty of others, you cannot restrict the speech Once you restrict physical liberty, we can regulate o Can’t stop behavior because it will give people ideas can only stop because it’s going to hurt them Can’t get into someone’s head not hurting anyone Ex. Child Porn o Can’t get to virtual kiddie porn because only gets to ideas o But we can regulate Ferber because it gets to behavior – (exploitation of kids) o We all have capacity to reason/choose and then reject No one can do that for us Exs. Ashcroft o We can just reject it choice Ferber o Action! So we nail it Post Autonomy is the key principle for him o Sunstein’s view is collectivist o His view, by contrast, is autonomous M.Glick – First Amendment – Fried – Fall 2007 3 of 172 Free Speech is the mechanism of democracy because democracy is about self-gov’t and if self-gov’t is to be truly self-gov’t, then there can be no prior privileged values that precede and constrain what self-gov’t comes up with o That would impliedly preclude equality & diversity o There cannot be a prior determination of what democracy holds Can’t be some prior determination of what the autonomous deliberation will deliver (No prior privileged values in political context) Values chosen democratically not bound beforehand Contra Sunstein: o OK to privilege certain values prior to the debate o Disagrees with the notion that there can be such a notion as unconstrained/autonomous debate Sunstein What free speech comes to in a particular society will depend on the legal framework in which that speech is exercised o Capitalist: Private interests control the means of production Ability of speakers to reach audiences will depend on what resources the socialist economy accords them Some speakers have access to a great deal more of an audience than other and need to buy off others in order to speak Bounded Rationality – (Hanson stuff) o No pre-legal starting points / no natural rights / nothing constrains gov’t Lochnerism o Most people do not reason rationally Defiant of their own purposes Overestimate their own events Do not put the proper value on the circumstances before them o Result: Anti-Post Post’s ideal of autonomy is not worthwhile because citizens don’t know any better Autonomy doesn’t really exist People influenced by social structure and don’t reason rationally People are not free to choose illusion of choice in our society o Colored by invisible forces – (cultural, psychological, emotional) This is why Sunstein/Meiklejohn feel justified in positing values which constrain and are implemented by free speech NOT a violation of free speech that speech of some be suppressed in order that others may be heard o Like Dworkin in realm of politics equal access and equal volume M.Glick – First Amendment – Fried – Fall 2007 4 of 172 vs. Post o All that matters is that it’s out there autonomous deciders can then decide Meiklejohn / Sunstein Free Speech enables Democracy Democracy ensures desired values – (equality/multiculturalism/mutuality) Speech and Democracy lead to Autonomy Start with collective and shape individual “Public” Speech protected “Private” Speech NOT Sunstein Disputes the value of Post’s “autonomy” given restraint on choice That’s why it’s OK to posit values Fried / Post Focus on Autonomy as a way of achieving Democracy Autonomy leads to Democracy Start with individual and make collectivity No Prior Privileged Values M.Glick – First Amendment – Fried – Fall 2007 5 of 172 CORE INSTANCES OF 1A PROTECTION Group of cases address what CF calls the “core instances of 1A protection and violation” Today’s cases make it criminal to say something o You have no choice about saying it Direct prohibitions on speech rather indirect burdens o Makes this the central area Proving Treason “It is treason when a man doth compass or imagine the death of our lord or king.” o Compass = try to bring about, conspire, attempt o Imagine = think about How to know when this has happened? Say so / conveyed it to someone else Tyrannical regime may want to prove a treason w/o having to prove an overt act o Why? Suspicion of persons Want to pre-empt negative speech Want more loyal followers – (don’t even want people to have those thoughts) BUT can’t have a treason for just thinking bad thoughts no one would ever know o We want to know what people are thinking and imagining o How to get there: Interrogate them Make it a crime to not answer Get them for perjury for lying o 5th Amendment prohibits all of these things! Gov’t can’t pry your head open and find out what’s inside No self-incrmination The 5th Amendment protects THINKING CF: many people think the 1A protects freedom of the mind, but that’s too much o 5A protects mind o 1A protects what you actually express o (4A may protect things you’ve written down) EARLY APPROACHES 1. Schenck – (1919) Facts: o Espionage Act makes it a crime to: “willfully cause or attempt to cause insubordination or disloyalty” “willfully obstruct recruiting/enlistment of the US.” Note how the law operates: o Law defines the offense in terms of the result XY M.Glick – First Amendment – Fried – Fall 2007 6 of 172 There are other ways you might achieve Y than by speaking yet we punish speech as a way of either producing a result or attempting to produce a result in the world It’s the result that matters! Like Debs / Frohwerk o Does NOT say “there are certain things you must not say” Contra Gitlow Certain speech constitutes an intolerable risk of harm Doesn’t matter if anything results to simply say it is a crime This is CONSPIRACY o (This may explain why these cases are not very speech-protective) o Schenck / Debs / Frohwerk are all in fact conspiracy cases There are a list of crimes in criminal law may not attempt to conspire or assist in the commission of an offense BUT conspiracy has limits need an overt act in furtherance of the conspiracy – (law does not like the idea of punishing a conspiracy that’s based only on people getting together and talking) o Test: Clear and Present Danger simply a formulation of when a bunch of people getting together matures into a conspiracy – (when talk gets close enough to action to be an attempt) Is the conduct (speaking) close enough to the proscribed result (mutiny/obstruction) to constitute an attempt/conspiracy to bring it about? Holmes: if the speaking constitutes a C&PD, then YES “And” vs “Or” o Assessing the last sentence of Holmes’s opinion: “If the act, its tendency and the intent with which it is donee are the same, we perceive no ground for saying that success alone warrants making the act a crime.” o The courts in the early cases switch forth between whether “and” or “or” is required OR – (require either intent or tendency) You need only intend to obstruct recruitment or bring about mutiny/disloyalty o Schenck o Debs – (if it’s a natural and probable consequence of what you did, then that’s intent; seems like it could bleed into tendency too) AND – (require both) You have to both intend to bring about that result and it must be sufficiently likely (tendency) that you’ll bring it around o Intent alone is not enough M.Glick – First Amendment – Fried – Fall 2007 7 of 172 o Becomes a question of what degree or tendency is needed to cross that line o Abrams / Gitlow (Holmes dissent) o Tendency Equivalent to “proximate cause” Proximate cause = close enough to the outcome “Bad Tendency” cases: If you intend to speak words with a bad tendency, you’re in trouble If you used those words and those words have that tendency you had that intent 2. Majority in Gitlow and Whitney Facts: o (Gitlow is the 1st case which says that the 1A is part of the DP clause and therefore applies against the states) o Statutes prohibit certain speech that advocates principles The advocacy is itself the crime NOT the bad results that flow from speech o Schenck vs. Gitlow/Whitney Schenck – (Holmes) C&PD related to X (conduct charged) as a means of getting to Y (a result) The statute only mentions the Y (obstruction, disloyalty, mutiny) o Speech can only be nabbed if it leads (as determined by some framework) to the prohibited result Gitlow The speech is itself the evil Argument: o This seems odd what we really care about in the end is the sort of “ultimate” evil We criminalize “advocacy of overthrow of gov’t” because we think the ultimate evil is “overthrow of gov’t” Majority Approach o Legislature has declared that certain kinds of speech will necessarily lead to bad results – (legislature is expert body to make this type of judgment) Statutory definition of evil given in terms of the speech this activity is itself dangerous We don’t need to get into “intent” or “C&PD” or “imminence” Those concepts are only invoked where the statutorily defined evil is some result in the world and the speech is a way of getting to that result M.Glick – First Amendment – Fried – Fall 2007 8 of 172 Here: speech is an end evil o How to determine whether speech will necessarily lead to bad result: This is a normal legislative decision (not unlike economic regulation) and should merely undergo rational basis scrutiny We later find that in cases where the speech is what’s criminal, there must be more than rational basis o Analogy to criminal law: Legislature can make attempted burglary a crime, just as it can make burglary itself a crime so maybe they can make it a crime to possess burglary tools in the 1st place Pushes criminality forward Similarly, a legislature may make the judgment that advocating violent overthrow is a crime Majority accepts that the respective state legislatures have done the job no need for the court to determine it Contrast with Holmes (Dissent in Gitlow) and Brandeis (Concurrence in Whitney) o The 1A does not allow the prohibition of speech as such it must be speech as incitement to a way of producing a forbidden result Speech can’t be the crime itself can only be the way to another bad o Holmes in Gitlow Holmes has two prongs: No intent (to interfere with the war effort) No immediacy (puny anonymities) o Remember the interplay of whether the court requires “or” (Schenck) vs. “and” (Abrams) o Brandeis in Whitney Goes one step further: Ultimate evil must be sufficiently serious to justify a criminalization of its advocacy (imminence) Also believes that the COURT should be the one to decide what constitutes the ultimate evil o TWO DIMENSIONS: 1. Should we be punishing the speech as such or only speech that “objectively” relates to an ultimate evil Holmes/Brandeis want to unpack the two: speech vs. the ultimate evil it may cause o Legislature cannot make advocacy the crime except where advocacy has some relation to some “ultimate” evil 2. Who should be making the decision? Legislature – (Majority approach in Git / Whit) o Frankfurter (concurring in Dennis) thinks it’s an inappropriate inquiry calls for deference to legislature akin to Holmes in Lochner M.Glick – First Amendment – Fried – Fall 2007 9 of 172 Legislature defined a crime and we (the judiciary) are in no position to say how pressing the danger is Whether particular circumstances are OK in particular circumstances is up to the legislature Judiciary – (Brandeis in Whtiney) 3. Hand’s approach in Masses Holmes o Every idea is an incitement – (passion can set fire to reason) Not very speech-protective Hand – (Masses) o Facts: Plaintiff publishing revolutionary newspaper comes under fire for the Espionage Act o Draws a line more speech-protective Distinction between: Counseling/advising a man to an act by telling him it his duty or interest to do so BAD Stopping short of telling people it’s their duty OK o Just political discussion / non-criminal agitation; discussing ideas in abstract Direct Advocacy BAD Talk OK Speech that stops short of advising people it’s their duty/obligation to believe/do X is protected Holmes on Hand o Hard to apply in practice because it’s hard to know what words do and do not encourage in this prohibited way o BUT Holmes dissents in Abrams Facts: Criminalizes activity that produces or is intended to produce a given effect Conviction upheld but Holmes dissents How does Holmes get out of this framework? He believes the D should get off under the intent test o Intent was to sympathize with the Russians o Intent was NOT to disrupt the war effort No proximity / No requisite intent 4. Dennis Facts: o Dennis belonged to an organization with an intent to further its purpose duty/necessity of overthrowing the gov’t with force or violence o Statute is akin to Whitney/Gitlow in that it prohibits advocacy/organization M.Glick – First Amendment – Fried – Fall 2007 10 of 172 TEST: o Whether the gravity of evil discounted by its improbability justifies the invasion as is necessary to avoid the danger Gravity of Evil x P > Free Speech ? (Sort of like negligence: Magnitude of Loss x P > Burden to guard against it Other opinions: o Frankfurter Judicial Role we’re not the proper group to determine the “probability” and “gravity” of the evil o Jackson – (colored by his time at Nuremberg) Doesn’t think C&PD is appropriate here Judicial process is not the place to make a “prophecy” based on “imponderables” in the national/int’l context Wants to limit C&PD to the types of cases on which it was previously applied: In these cases, it is not beyond the capacity of the judiciary to determine if it’s a C&PD the danger in such cases has matured by the time of trial of it was never present – (judges can do this!) Exs. o Hothead on a street corner o Zealots behind a flag o Incendiary pamphlets NOT o Vast and complicated international crises where we would be concerned that judges would not properly know what a C&PD was 5. Yates and Scales retreat from Dennis Cases require more than mere advocacy of abstract doctrine o Distinction between advocacy of abstract doctrine and advocacy of action Yates o We need adequate guidance as to the distinction between advocacy of abstract doctrine and advocacy of action Want to see an effort to instigate action, not just advocate forcible overthrow Scales o (Dennis and Yates have laid in doubt that the present advocacy of future overthrow satisfies the Constitutional requirements in the same way that advocacy of imminent overthrow does) o Looking for intent to advocate concrete action (not just a doctrine) and a clear danger that this advocacy will maybe produce bad results in the future Intent + Clear Danger “Active” rather than just “Nominal” membership M.Glick – First Amendment – Fried – Fall 2007 11 of 172 o Harlan actually abandons imminency of danger just needs clarity of danger: “clear proof that a D specifically intends to accomplish the aims of the organization by resort to violence” Clear > Present o As applied to facts in this case: Mere membership in an organization that advocates the overthrow of the government is not sufficient need proof of specific intent to accomplish the aims of the organization by resort to violence Summary of 5 early approaches: Schenck Majority Test Notes Law defines the offense in terms of the result XY And/Or distinction “or” requires either “intent” or “tendency” “and” requires both “If the act, its tendency and the intent with which it is donee are the same, we perceive no ground for saying that success alone warrants making the act a crime.” Advocacy is itself the crime Gitlow/ Whitney Statutory definition of evil given in terms of the speech this activity is itself dangerous No concern with “imminence” or “C&PD” Dissents (Holmes/Brandeis) The 1A does not allow the prohibition of speech as such it must be speech as incitement to a way of producing a forbidden result Legislature has determined certain words cause certain harm Hand in Masses Dennis Speech that stops short of advising people it’s their duty/obligation to believe/do X is protected Dissent (Holmes) Hard to apply in practice because hard to know which words count as illegal advising and not Whether the gravity of evil discounted by its improbability justifies the invasion as is necessary to avoid the danger Concern over judicial role in assessing the gravity of evil Concern about overestimating the potential for evil Gravity of Evil x P > Free Speech M.Glick – First Amendment – Fried – Fall 2007 Yates / Scales 12 of 172 Mere membership doesn’t make it we’re looking for: intent to advocate clear danger Active vs. Nominal membership MODERN APPROACH Brandenburg – (1969) (said to be the canonical case on where the law is on “advocacy crimes” CF doesn’t believe it) Gets rid of Whtiney’s categorical approach to dangerous speech TEST: o State may only forbid/proscribe advocacy of the use of force or law violation where: Advocacy is directed to inciting or producing imminent lawless action AND likely to incite or produce such action o Sum: Must intend to produce it Must intend it to be imminent Must be likely to produce lawless or violent action Must be likely to produce imminent and lawless action (implied requirement of seriousness after Whtiney) (Mere abstract teaching is protected) o (Test is supposedly tough) CF: Brandenburg is Schenck/Abrams on steroids Brandenburg Requirements Intended to incite or produce imminent lawless action Likely to incite or produce such action UK Terrorism Act Facts: o UK has a very large Muslim minority that has been historically mistreated o Politicians believe some mosques are pushing violence/jihad and recruiting for such pass law What’s noteworthy/problematic about the law? o Association Does not have to be an association which advocates/encourages any action M.Glick – First Amendment – Fried – Fall 2007 13 of 172 Would fail under Scales o Speech Reckless wrt encouragement – (careless about causing a potential problem) Hard to define “glorifying” Hard to figure out whether it is a statement from which people could infer that what is being glorified should be emulated o (Trying to get to precursors of terrorism, but end up sweeping in stuff that isn’t a precursor to terrorism) BUT why take risk of allowing speech that is a precursor to terrorism? Society might be better off hearing the speech and allowing a debate that allows these ideas to be knocked down – (sun as a disinfectant) If we shut these people up, we in essence give them potency by lending an aura of importance Assessing it under our precedents: o Masses (Hand) Looking for a statement that it is your duty (Hand in Masses) or that is in your interests to do X o Dennis would probably survive the balancing test High gravity of evil (50 people killed + planning for more) Pushback: Maybe Dennis makes sense in the abstract, but in practice, we’ll always overweight the possible gravity of evil in the present moment o Hard to fairly judge the potential harm and judges not capable of doing it At least Brandenburg has some parameters other than the “gravity of evil” Frankfurter leave it to the experts o BUT that doesn’t seem very speech-protective because we’re putting the decision in the hands of people (legislators, cops, FBI) who are susceptible to just following the winds of the day o Brandenburg this law goes beyond Brandenburg was looking for imminence or at least an intention for it to be imminent Here: “reckless” without any discussion of imminence o (This act would fail in the US) We tolerate some risk of creation of danger with the 1A UK pre-emption US nervous about pre-emptive measures restricting speech and association M.Glick – First Amendment – Fried – Fall 2007 14 of 172 o We’re OK with pre-emption when it comes to bombs and firearms, but not speech/association o Maybe we have faith in people to evaluate and reject certain kinds of speech Maybe we think the downside is too big: If we kill your ability to carry bomb-making tools, you can still do a lot of things If we kill your ability to speak, we kill ability to think o Control of Speech = Control of Thought = Control of person in the way that is more dangerous that other types of control TRUE THREATS Distinguishing True Threats Threat is no longer a way of persuading someone of believing a doctrine or causing something to happen it’s a way of obtaining a result through intimidation o Not persuasion/argument signal or form of action o Get someone to do something by putting them in fear of an unlawful and violent action – (signal) LAW o Incitement (i.e. get others to do it who are completely independent) Brandenburg o Facilitation or True Threat (i.e. I’ll kill you myself) NOT Brandenburg Incitement Example Controlling Case Get others to do it who are completely independent Brandenburg Facilitation or I’ll kill you myself True Threat NOT Brandenburg Not looking for harm to be intended or imminent (Nuremberg files) Nuremberg Files Case Facts: o Group intimidating abortion doctors o What’s the evil? NOT the violence/murder of the doctors The violence is the intimidation “apprehension/fear of violence” Compelling state interest in protecting people from being scared to death scare someone by making them think they will be hurt or killed M.Glick – First Amendment – Fried – Fall 2007 15 of 172 Opinions o Majority: Treats “true threats” differently than advocacy of violence (Brandenburg) Not looking for harm to be intended or imminent Maybe this is something different: No longer advocacy but rather just like handing someone ammunition or supplying directions on how to make a bomb no longer in speech, but in a different domain o Dissent (Berzon and Kozinski): Do Brandenburg! They disagree that the speech was intended as a signal argument that abortion is murder and murderers come to band ends Just a vivid form of persuasion Arguments: o Dissent is right There is a message “you will meet a just end” Dramatic form of persuasion – (especially if it will be carried out by someone you’re not affiliate with) (Berzon) – These ads may be inciting people to kill you, but if it’s incitement, then it should be Brandenburg o Majority is right You are just trying to intimidate/scare people BUT shouldn’t that depend on what the communication is saying: “If you don’t stop, we will kill you.” “If you don’t stop, you’ll die like these others have.” FIGHTING WORDS Speech that induces violence violence directed at the speaker o (provocative message outrages audience) Concern: Heckler’s Veto Cantwell Facts: o Jehovah’s witnesses proselytizing on street o Conviction overturned No C&PD to substantial state interest, so cannot curtail his right to speak o Contents of his speech may arouse animosity, but absent a narrowly tailored statute defining and punishing specific conduct as a C&PD, the speech is protected Chaplinsky Facts: o Statute: No person “shall address any offensive, derisive, or annoying word to any other person who is lawfully in any street or other public place.” M.Glick – First Amendment – Fried – Fall 2007 16 of 172 o Jehovah’s witness escorted away and gets in fight with marshal conviction upheld Analysis: o OK with punishing insult because its directed @ someone (not at a group or ideology) and presents a more C&PD – (invitation to fight) Provocative language directed @ person Direct face-to-face insult Court interprets that to ban words that “men of common intelligence would understand would be words likely to cause an average addressee to fight” o (Other categories included in this unprotected zone: Lewd, obscene, profane, libelous, insults, fighting words Prevention/punishment of these categories has never been felt to raise any constitutional problem These categories tend to incite an immediate breach of the peace Rationale: The very utterance of these categories inflict injury o Hurt people o Little social value as step to truth o Protect the dignity of people Assessing Murphy’s rationale: o Categorizing Some speech is wholly outside 1A coverage o Balancing Attaches low value to the speech claiming protection – (“no essential part of any exposition of ideas”; “slight social value as a step to truth.”) Measured against the competing state interests Fighting Words post-Chaplinsky Murphy in Chaplinsky defined fighting words as EITHER: o Those “which by their very utterance inflict injury” OR o Those which “tend to incite an immediate breach of the peace” Morality AND Order BUT since then, the cases have focused on the “Breach of the Peace” rationale: o Cohen v. CA – (contra Chaplinsky) “Fuck the Draft” Held: YOU may not think it contributes much to our vocabulary, but one man’s obscenity is another man’s lyric o Free speech is not just about abstraction it’s about expression and emotion Maybe Chaplinsky was wrong words conveyed both emotion and important ideas TEST: M.Glick – First Amendment – Fried – Fall 2007 17 of 172 Profanity is protected; no golden words Fighting words exception it limited to words directed at a person, not addressed generally to the world at large o Gooding and the Motherfucker Trilogy Statutes here were too vague/general Want statutes to focus on words that have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed Direct, face-to-face to an individual rather than generally a at a group Nothing left of Fighting Words Doctrine except where it creates an imminent danger of violence to the single person it is addressed to Fighting Words Looking for: imminent danger of violence To the single person it is addressed to Tending to incite an immediate breach of the peace (Post-Chaplinsky world) Only thing banned is the quite unambiguous invitation to brawl Hostile Audiences and the Heckler’s Veto If speech can be limited because it tends to incite violence, then maybe not the speaker but the incited party should be the one restrained o Restraint should be on audience not on speaker speaker has right to provoke audience; audience has no right to respond Terminiello o Pro-Speaker Speaker convicted under breach of peace statute for speech which “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.” SCOTUS overturns “Speech is often provocative and challenging.” It’s OK to “invite dispute.” Speech is protected unless it’s shown likely to produce a C&PD of a serious substantive evil (above inconvenience, annoyance, or unrest) Feiner o Pro-Audience Police see imminent explosion stop the speaker because the crowd doesn’t seem practical to stop M.Glick – First Amendment – Fried – Fall 2007 18 of 172 Not arrested for what he said, but rather the reaction it engendered Court points to community desire for peace and order o BUT is the harm imminent? o How to reconcile: Look to it as a crowd control statute The offense is not what the speaker is saying, but rather that he is inciting the crowd by virtue of his speaking CF: cases best understood as cases of refusing to obey a reasonable police order in a situation of imminent crisis Ely: what’s left of the “fighting words” doctrine is the prohibition on quite unambiguous invitations to brawl “Let’s go out and fight” a signal, not an attempt to convince or express an idea or opinion DEFAMATION Beauharnais – (Group Libel) (Hasn’t been overruled, but no longer valid) Held: o If an utterance directed at an individual may be the subject of criminal sanctions, we cannot deny to a State the power to punish the same utterance directed at a defined group. o C&PD not considered Libelous utterances not within the area of constitutionally protected speech NY Times v. Sullivan After Chaplinsky, everyone felt libel was outside the scope of the 1A abandoned here Facts: o AL Law makes it a per se crime (libel) if the words tend to injure a person’s reputation or bring him into public contempt Once per se crime is established, D can only use truth as an affirmative defense to persuade jury that publication was true in all its particulars o Clergymen took our full page ad criticizing Montgomery police commissioner’s terror toward blacks o Some of the specific facts in the ad were false, though the “defamatory sting” was true Plaintiff won at trial Potential arguments for NY Times (Defendant): o Words were not directed @ Sullivan P in a defamation suit must prove that the utterance was “of and concerning” him Feiner and the insult cases call for an identified and pointed remark about a particular person – (though Beauharnais does not require same) M.Glick – First Amendment – Fried – Fall 2007 19 of 172 We don’t even mention Sullivan! Was this “of and concerning”? Didn’t mention Sullivan, but referred to events under his purview and people testified that they believed it was about him BUT if every time you criticize the gov’t, the officials responsible for that sphere can bring a defamation action, it will chill criticism of gov’t Why care if it’s “of and concerning”? If it’s not focused on a particular plaintiff, penalizing the speech would strike at penalizing criticism of gov’t as a whole Held: SCOTUS establishes “of and concerning” rule o No longer is it so that if you criticize a group that every member of that group can claim harm o (rejects Beauharnais and the group rule) o Libel must be false Sullivan claims some of the information here is false and there’s no value in falsehoods, so it can’t be protected Debate: Brennan (majority): “even a false statement may be deemed to make a valuable contribution to public debate” OR maybe we recognize that we need to protect negligent libels as a means of affording adequate breathing room for the truth Held: Limit falsehood analysis to: o “Defamatory Sting” We only care about the part where there’s a concern for defamatory injury Don’t want to nail you because of minor misrepresentations; no real harm in getting that stuff wrong o “Substantial Truth” Bound to make some mistakes, but if they’re minor mistakes that don’t hurt the person, it’s stupid to penalize o Reputational Concern Sullivan did not have to prove damage he was presumed to endure damage to his reputation in the eyes of others – (reputation must be protected and vindicated) Presumption: If you accuse someone of crime If you injure someone in their profession If you imply unchastity of a woman M.Glick – First Amendment – Fried – Fall 2007 20 of 172 o You don’t have to prove that anyone now thinks less of you TEST: o A public official when accused in official capacity can only recover if he can prove: Actual Malice Intentional falsehood or reckless disregard for the truth 2 situations: o Know it’s false and print it anyway o Not sure if it’s true or false and don’t care Falsity P bears the burden of proof o (Rule compelling the critic to bear the burden of proving truth of factual assertions would have the effect of chilling effective criticism / censorship) Concurrence (Black/Douglass): o Free Speech is absolute and you can never sue for libel Plaintiffs should have unconditional right to publish criticism of public officials, even if malicious NY Times Test 1. Actual Malice Know it’s false and print it anyway – (intentional falsehood) Not sure if it’s true/false and don’t care – (reckless disregard) 2. Falsity “Substantial Truth” “Defamatory Sting” Don’t forget the “of and concerning” requirement 3 variables in extending NY Times: Identify of the Plaintiff – (public official, public figure, private figure) o Public Figures Curtis Publishing v. Butts, AP v. Walker No 1A difference between public figures and officials Court applies actual malice standard to all public figures on matters of public concern Rationale: o Distinction between gov’t and private is increasingly blurred M.Glick – First Amendment – Fried – Fall 2007 21 of 172 o Public figures (even if not officials) play an influential role in ordering society and citizenry has a legitimate and substantial interest in the conduct of such persons (Later cases construe “public figure” narrowly) o “Voluntarily thrust” or “injected” self into public eye – (Hutchison v. Proxmire / Wolston v. Reader’s Digest) o “any role of especial prominence in the affairs of society” – (Time, Inc. v. Firestone) o Private Figures Rosenbloom (Later overturned by Gertz) Subject matter is key o Even if it’s a private figure, if it’s a matter of public concern speech is protected Gertz Private individuals CAN recover for libel, even if it’s a matter of public concern, without meeting the NY Times standard of actual malice + falsity o Rationale: Easier for public figure to recover No voluntary exposure from private figure BUT damages limited to compensation for actual damages if NY Times standard isn’t met o No punitives unless you can show actual malice “So long as they do not impose liability w/o fault, the States may define for themselves the appropriate standard for a publisher or broadcaster of defamatory falsehoods injurious to private individuals.” Negligence is OK o Burden of Proof remains with P See the track: o Historically Libel is strict liability o NY Times cuts back on availability of libel o Gertz restores some libel wrt private figures Nature of the issue discussed – (matter of public vs. private concern) o Matter of private concern Dun & Bradstreet v. Greenmoss Published inaccurate statement that plaintiff had filed for bankruptcy Held: o Private speech entitled to less 1A protection Reduced Constitutional Value M.Glick – First Amendment – Fried – Fall 2007 22 of 172 o Therefore, state interest adequately supports awards of presumed and punitive damages (w/o showing of actual malice) o Matter of private concern but for public official Court has not yet explored the question of a Public Figure with a Matter of Private Concern open question? Is there anything private about a public official that could legitimately be defamed? Do they lose all privacy? Does everything become a matter of public concern? o Maybe title matters – (how “public” are you?) Public Figure Private Figure Public Matter Private Matter NY Times Need to prove actual malice and falsity in order to get damages (not yet decided) Gertz You can recover for actual damages without meeting the NY Times standard of actual malice, but punitive damages require you to show actual malice (overruled Rosenbloom which focused on subject matter) Dun & Bradstreet Private speech entitled to less 1A protection, so you can get damages (including punitives) without showing actual malice Identity of the Defendant – (media vs. nonmedia) o Dun & Bradstreet v. Greenmoss Court finds no distinction between media and non-media defendants Issue: Hard to figure out who the media is Masson v. New Yorker Magazine Facts: o Publish lengthy article with numerous quotations that embellished what he said in tape-recorded interviews and then published book with same Held: o Deliberate alteration of words does not equal knowledge of falsity for purposes of NY Times unless the alteration results in a material change in the meaning conveyed by the statement Alteration of quotes to correct grammar and syntax are okay or to make comments intelligible BUT can’t effect material change or give words different meaning Writing vs. Lying M.Glick – First Amendment – Fried – Fall 2007 23 of 172 o Quotation marks are the real sin “Devastating instrument for conveying false meaning.” Readers will take quotes more seriously and more likely to consider it the true sentiments of the purported speaker vs. the injected opinion of the author Greater defamatory sting Violates your personality to misquote in this manner – (much more personal than just having your self/words/thoughts mischaracterized) Emotive power of quotes carries special force beyond cognitively similar non-quote falsities Contra NY Times We’re OK there with the false statements which merely say that MLK was arrested 7 times, not 4 OJ Simpson case The Browns are commandeering his book title: o “If I did it… (subtitle) Confessions of the Killer” They might say that the rights were assigned to them, so they can as they wish, but CF doesn’t buy it Boll – (Germany) Quotation touches a person’s dignity, even if it is substantially accurate By putting words in my mouth, you’ve violated my right to determine how to present myself Comparative approach: o US Don’t want them to willfully get it wrong actual malice (negligence might be OK) Emphasis on truth o GER Material change in the meaning of things you said dignity/preservation of self Emphasis on dignity – (to say words are your own when they are not when a particular right is dealt with) State Action and Defamation US: 1A says “Congress (and the States) shall make no law” o BUT in the defamation context, Congress/Alabama is not making a law GER: Basic rights are basic rights against the state o So how to enforce against a private party who is defaming you? o Answer: There is a value underlying the system Free Speech Court interprets the code with that value in mind courts enforce those values, so we get to private action that way Contrast: M.Glick – First Amendment – Fried – Fall 2007 24 of 172 o US cares only about state action – (where gov’t tells you what you can/can’t say) Concern: NY Times fires reporter and he claims it’s based on his speech if the court comes out on his side, we’ve vindicated his right to say what he wants, but we’ve violated the newspaper’s right to say what it wants o GER court does the opposite OK with choosing between and balancing two private parties – (which speech they prefer over the other) o (Maybe we don’t want our Constitution to be determined in this way hate putting our court in the position of balancing) Luth Parable about the danger of ignoring the state action doctrine is it appropriate for court to be balancing or should we stick to rules? Brandenburg No balancing perhaps why it’s withstood the test of time NON-DEFAMATION TORTS Intentional Infliction of Emotional Distress One who by extreme and outrageous conduct intentionally or recklessly cause severe shame, humiliation, and distress to someone Hustler v. Falwell o Public figures cannot recover for tort of IIED based on magazine parody w/o showing of actual malice as required by NY Times o Analysis: More offensive than Masson, yet no liability This is a parody/satire (and had disclaimer), whereas Masson purported to be an accurate account Analogous to a political cartoon or satire No falsity Would have been libelous under old law, but OK under NY Times Falwell claims this is “outrageous” but such a standard is inherently subjective; impossible to draw line here Invasion of Privacy Supreme Court has yet to reach a state law privacy torts case in which truly private facts have been disclosed “False Light” Invasion of Privacy Claim that the disclosure not only invaded privacy, but was also false – (though not necessarily injurious to reputation to meet the standard of defamation) Time, Inc. v. Hill M.Glick – First Amendment – Fried – Fall 2007 25 of 172 o Facts: Hills were victims of hostage situation Life magazine later portrays their situation Hills do not sue under defamation, but rather based on a right to privacy Statute prohibited anyone from using for purposes of advertising or trade, the name, portrait or picture of any living person without having first obtained the written consent of said person Not libel because not injurious to their reputation – (portrayed as courageous) o BUT they sue because they don’t like the stigma of being a “victim” – (casts them in a certain light) o Held: NY Times applies to “false light” cases where subject is a matter of public concern NY statute can’t apply here in the absence of proof that the D published the report with actual malice (knowledge of its falsity or in reckless disregard for its truth) o If substantially true or if false but no actual malice protected speech (Unclear how much one could fictionalize and still be substantially true or when elaboration would start to cause damage) slippery slope Disclosure of Rape Victims’ Names Cox Broadcasting Corp. v. Cohn o Court barred liability because of public interest in a vigorous press Florida Star v. BJF o Newspaper had published name of a sexual offense victim, obtained from a police report court overturned judgment based on state law barring publication of such names Rationale: o Civil liability can’t be based upon accurate publication of information where information was a matter of public record Can’t be criminal to publish what readers themselves could find out by going to the courthouse Just making it more available – (data mining, collecting info) Problem: Data mining aggregates information in the public domain, but may be subject to extrapolation Nuremberg Files o Court is afraid to draw delicate lines relating to 1A We like hard lines in 1A context because we don’t want people to have to guess at what speech is protected M.Glick – First Amendment – Fried – Fall 2007 26 of 172 Privacy and Electronic Eavesdropping Info is NOT in public record Bartnicki v. Vopper o Facts: Call between union members suggesting violence was secretly intercepted and taped by a citizen who gave it to a local radio who played it on the air NOT originally in public record Convicted under federal statute that punishes “any person who intentionally discloses… to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtains through interception of a wire, oral, or electronic communication” o Held: Publisher who obtains truthful info in “manner lawful in itself” cannot be punished even if they obtained it from a source who obtained it unlawfully If I got it from you lawfully, I can’t be punished even if you got it unlawfully – (seems disingenuous because I KNEW you got it unlawfully) o CF: this is a “pretend bright-line” NOT Balance: Privacy of Communication – (free speech interest) vs. Publication of truthful information of public concern/importance o Truth usually wins out – (state action to punish the publication of truthful information can seldom satisfy constitutional standards) o Breyer Concurrence: Strike reasonable balance between statutes speech-restricting and speech-enhancing consequences no sharp lines Public interest in hearing this outweighs private interest in privacy CF: skeptical makes Breyer (judge) ruler of the world o Dissent: Can distinguish from Florida Star because that info was lawfully obtained from the gov’t itself and the statute here contained a scienter requirement McDermott v. Boehner – (DC Circuit) o Facts: Tape recorded conversation between Rep. Boehner and another person is brought to McDermott Takes to ethics committee and plays for NY Times o Held: Boehner wins maybe the dissent wins out after all M.Glick – First Amendment – Fried – Fall 2007 27 of 172 Appropriation Torts Zacchini o Human cannonball o Held: 1A does not immunize the media from liability when they broadcast performer’s entire act w/o his consent IP right of publicity (like Copyright) This is his livelihood – if anyone could just show it, he wouldn’t do it anymore 3 Approaches o Balancing Test – (Tony Twist) Is the predominant purpose to exploit the commercial value of an individual’s identity or to make an expressive comment on or about a celebrity? (Inherent danger of balancing) Tony Twist Comic book contains villainous character sharing his name/attributes Held: o Right of Publicity > Free Speech Right Court compares it to Zacchini P’s right to protect his home/property/livelihood “I’m the one who should be able to make money because of my fame.” o Primary purpose was to make $$$ off of him Counter: o Maybe we should distinguish this from Zacchini because Twist can still go out and make money as a hockey player even with this comic – (Zacchini could not – everyone saw his act) If Zacchini couldn’t sue we’d lose his art o Transformative Test – (California) Have they taken this and added a creative dimension to it? Adds something significantly creative so as to transform it into something more than a mere celebrity likeness or imitation (Tries to avoid the danger of balancing by having a rule) o Relatedness Test – (ALI) Protects the use of another person’s name or identity in a work that is “related to” that person Is the new likeness related? M.Glick – First Amendment – Fried – Fall 2007 TEST 28 of 172 Case Rules Tony Twist Is the predominant purpose to exploit the name for commercial value or is it to make an expressive comment about the person? California Have they taken this and added a creative dimension to it so as to transform it into something more than a celebrity likeness of imitation? ALI Is the new work said to be “related” to that person? Balancing Transformative Relatedness Copyright Harper & Row v. Nation o Facts: Magazine publishes 300-400 words from President Ford’s yet-tobe-released memoirs Tries to avoid copyright law under an expanded definition of “fair use” in light of 1A principles surrounding a public figure o Held: NO – Copyright law already embodies 1A protections Plus, copyright is mentioned as Congressional power in Constitution Breach of Contract Cohen o Newspaper reporter promises confidentiality to informant who wanted to give info to the reporter about the newspaper reporter breaks promise o SCOTUS says breach of contract action is OK against a speaker, even if the breach of contract is publication of a newsworthy fact (No state action here) o Rationale: Law of General Applicability It may have an effect on speech, but it’s a law of general applicability o UNLIKE defamation the very cause of action (publication of a fact) is a speech cause of action Ex. o “The NY Times may not purchase the NY Post & CNN.” Valid law because antitrust law is an LGA o “Authors must pay a royalty tax.” LGA! M.Glick – First Amendment – Fried – Fall 2007 Case Rules Hunter v. Falwell Public figures cannot recover for tort of IIED without showing of “actual malice” under NYT (None) Supreme Court yet to reach a state privacy law torts case where truly private facts were disclosed Time, Inc. v. Hill Apply NY Times to “false light” cases where the subject is a matter of public concern Only punish magazine if they published the report with actual malice – (if substantially true or false but no actual malice protected speech) Cox Florida Star Can’t base civil liability on accurate publication of information in the public record Bartnicki v. Vopper Publisher who obtains truthful info in “manner lawful in itself” cannot be punished even if they obtained it from a source who obtained it unlawfully IIED Invasion of Privacy “False Light” Invasion of Privacy Disclosure of Rape Victims Eavesdropping 29 of 172 (McDermott v. Boehner) (McDermott goes the other way) Appropriation Zacchini Tony Twist (Transformative Test) (Relatedness Test) In some cases, right to publicity trumps freedom of speech Harper & Row v. Nation Copyright law embodies 1A principles – no greater right of “fair use” because it’s a public figure Cohen Law of general applicability OK even if effect of burdening speech Copyright Breach of Contract M.Glick – First Amendment – Fried – Fall 2007 30 of 172 OBSCENITY: SEXUALLY EXPLICIT AND INDECENT SPEECH Regarded as an unprotected category o Problem: How to define that category? THEORY BEHIND REGULATION OF OBSCENITY AND FREE SPEECH Two competing pictures of Constitutional Democracy: 1. Bad governments can do anything they choose provided they do it in correct form o Requirements: Right Person – assigned to one of the democratically elected branches No Prohibition – doesn’t violate a particular Constitutional prohibition 2. Every enactment/exercise of government power that restricts liberty of individuals has to be justified somehow – (more controversial) o Gov’t must always explain itself and courts must enforce that explanation Must have a rational basis for what it does when restraining people If not, it’s a deprivation of liberty which violates substantive DP o This is hardly a restraint, but you have to at least describe why you’re doing something Roe When liberty of individual is interfered with, the gov’t must explain itself – (they had a reason here, but not strong enough) Lawrence Even though it wasn’t a right listed in BoR, the law here seemed like a purposeless restraint o Controversial: Assumes a kind of reason/rationality that transcends the actual text of the Constitution “Congress shall make no law” = “Congress shall make no law that is not substantially justified.” o 1A context Where there is a prohibition, the gov’t’s action is evaluated relative to the reasons thought to underlying the prohibition 1A = series of isolated points there’s an effort to characterize decisions as being part of a rational process and continuum PORNOGRAPHY DOCTRINE Roth – (Old) – (Brennan) 1A protects all ideas having even the slightest redeeming social importance o BUT we’ve historically rejected obscenity as being utterly w/o redeeming social importance “Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.” M.Glick – First Amendment – Fried – Fall 2007 31 of 172 Miller – (Current Law) TEST: o Average person / applying contemporary community standards Miller focuses on the standards of that locality Maine/Missouri different from NY/Las Vegas o Taken as a whole lacks serious literary, artistic, political, or scientific value Must look @ all of it to determine if there is any redeeming value Sweeps a lot more in: Roth o “utterly lacking” social value Miller o Lacks serious social importance – (smidgen of importance is not enough) o Appeals to prurient interest Having a tendency to excite lustful thought CF: ridiculous – (can’t explain the obscure by the more obscure) o Statutory specificity “whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law” Takes some of the sting out of Miller makes statutes obscene themselves Brennan dissent: o Too hard Let’s get out of this business! If it’s not a public display and it doesn’t get to children, then who cares? Not the court’s role CF: This is where law enforcement has ended up, but the law is still Miller o Redrup Prior to Miller Court issues per curiam opinion in which it’s just calling balls and strikes Unpredictable and unprincipled Obscenity Test – (Miller) 1. Average Person / Contemporary Community Standards Focus on THAT particular locality 2. Taken as a whole lacks serious literary, artistic, political or social value Tougher standard than “utterly lacking” M.Glick – First Amendment – Fried – Fall 2007 32 of 172 3. Appeals to prurient interest Lustful Thought 4. Statutory Specificity Want specific definition of wrong – (leads to obscene statutes Paris Adult Theatre I Facts: o Involves showing of adult films behind closed doors Held: o Court vacated for reconsideration in light of Miller o BUT categorically disapproved of the theory that obscene films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only Discussion: o Enduring justification for allowing criminalization of some non-public sexually explicit speech: Quality of Life Having this type of stuff out there in the public is bad because it will infiltrate and corrupt society Akin to 2nd-hand smoke o Like Rehnquist’s dissent in Lawrence v. TX Homosexual sodomy (even in private) degrades public morality because people know it’s going on and know it’s not criminal Polluting the atmosphere! o This seems very paternalistic Assumes that citizens will reach in a certain way upon exposure Judges have a degraded view of sex and concerned about its effect on society Bickel and theory on banning pornography Bickel: obscenity impinges on people simply by being out there o Need to protect against the very idea (like Lawrence) o What’s disturbing is the very fact that you know it’s going on with impunity It’s happening and it’s alright under the law Mechanism of Impact: o Ferber child – (subject to horrors) o Bickel Possibilities: Corruption of the community Forced to be around people who you know are looking at this stuff – (self-inhibiting) Discomforting M.Glick – First Amendment – Fried – Fall 2007 33 of 172 CF: Compare to Violence: o Depictions of violence do more damage than obscenity why among all these other things that distress us about the moral failings of our fellow man do we choose to criminalize porn? Maybe we should prohibit violent movies because it leads to violence – (demand side regulation) o Two possibilities: Maybe we punish obscenity as a crime because we are unwilling to make the act itself a crime Violent speech OK because violence itself is criminal Sex is not criminal, so maybe we criminalize the speech Sex doesn’t work thru the mind Schenck: “every idea is an incitement” works through the mind – (but sex does not) Pornography as Subordination Pornography is sexually explicit + demeans women Why care? o Potent in subordination when sexually-related, delivers a powerful punch that it wouldn’t otherwise have Carries some risk of socialization Bypasses mind and goes straight to emotional appeal o BUT Remember Harlan – “:one man’s vulgarity is another man’s lyric” Should music be regulated just because it delivers a powerful punch? Defeats rational faculties and gets to emotion MacKinnon o Pornography should be a category outside the protection of the 1A Similar to Fighting Words or Ferber o Makes “pornography as subordination” argument Everyone has equal dignity / nobody should be subordinated Any speech that argues in a powerful or persuasive manner for subordination or despising of any group of persons can be a cause of axn Problem: o ANY speech that would subordinate or demean ANY group would be problematic o Easterbrook response in American Booksellers Ass’n Strikes down anti-porn ordinance as improper viewpoint discrimination We are suppressing an idea! Subordination of women is an idea and you may not punish/sanction an idea any more than you may sanction any other idea M.Glick – First Amendment – Fried – Fall 2007 34 of 172 o By singling out this idea to ostensibly protect women, you are in danger of overlooking the fact that a similar argument is available for all sorts of expression Hard time protecting some while disallowing others MacK retort: This is an idea that: o Causes specific harm o Is unanswerable – (1A only protects expression which takes the form of rational argument) BUT you’re still discriminating based on an idea o NOT trying to say it’s bad because it bypasses the mind; trying to say it’s bad because of what gets through Two other outlets o Brandenburg Don’t forget that we still have Brandenburg could imagine pornographic speech could in some circumstances lead to incitement of violence o Secondary Effects Maybe some argument about rape/subordination Distinction: Renton o Secondary effects have nothing to do with persuasion o Worried about the side effects/behaviors associated with allowing this speech Here o Concern is persuasion o Worried about mind/brain CHILD PORNOGRAPHY Everyone seems to be OK with regulating this Rationale: o No consent / desire to avoid exploitation – (primary) Children can’t consent Possibility for lasting and eradicative damage to them o Disgusting Cases o Ferber NY Law prohibiting the distribution of material depicting children engaged in sexual conduct is OK Child Porn is category outside the protection of the 1A (Chaplinsky) M.Glick – First Amendment – Fried – Fall 2007 35 of 172 Do NOT have to go through the Miller Test if you can show harm to children Rationale: State’s interest in safeguarding the physical and psychological well being of a minor is compelling o Survives strict scrutiny Distribution of these materials is intrinsically related to sexual abuse of children Low social value Evil to be avoided outweighs any potential expressive interests o (Definitional balancing) o Ashcroft v. Free Speech Coalition Virtual Kiddie Porn OK (Subject to Miller) Rationale: We don’t have the same risk of exploitation of nonconsenting children o The harm to the children is what we care about Can’t survive strict scrutiny because we don’t have that same compelling interest in protecting children o Gov’t tries to come up with justifications, but none accepted: Hard to prosecute child pornography cases because can’t prove the actor is underage, so we try to extend law to limit the virtual stuff too Virtual porn creates an appetite for real child porn o Stanley v. Georgia – (possession) 1A prohibits making the private possession of obscene material a crime Constitutional right to receive info and ideas, regardless of their social worth, is fundamental to our free society o Freedom of Mind – (state has not right to control the moral content of a person’s thoughts) o Osborne – (possession of child porn) Possession of child porn CAN be criminalized – (contra Stanley) Rationale: Ferber o Same interests in eliminating the entire chain of distribution that justified the result in Ferber also justify eliminating demand by criminalizing possession Demand-side regulation M.Glick – First Amendment – Fried – Fall 2007 36 of 172 o Allowing possession encourages distribution and production EROGENOUS ZONING These shops are NOT obscene under Miller, yet the gov’t seeks to regulate them o Time/Place/Manner – NO NO – not content-neutral – (targets certain kind of shop) Exs. o Doesn’t matter what you’re playing we care about volume o Doesn’t matter what your parade is about we can ban all parades at certain times Cases: o Young v. American Mini-Theatres Disperse porn shops Held: Total suppression is not OK, but regulation is Rationale: Lower Value – (Stevens) o Lower value than core, political speech Concurrence (Powell): Only incidental effect on 1A o No content limitation imposed on creators or their ability to make these films available o No significant restriction on viewers Wants to use O’Brien balancing test: o Within Constitutional power of gov’t o Furthers important or substantial gov’t interest o Interest is unrelated to the suppression of free expression o Restriction is no greater than essential Powell seems to say that it’s zoning so it’s OK, but CF doesn’t buy that not complete enough o Renton v. Playtime Theatres Concentrate porn shops Held: (embraces Powell balancing, not Stevens “lower value”) o Steals from Young fn.3 (p. 136): “concentration of ‘adult’ movie theaters causes area to deteriorate and become a focus of crime, effects which are not attributable to theaters showing other types of films. It is this secondary effect which this zoning ordinance attempts to avoid, not the dissemination of ‘offensive’ speech.” M.Glick – First Amendment – Fried – Fall 2007 37 of 172 Secondary Effects o Ordinance is aimed not at the content, but at the secondary effects Attract a certain demographic Attract crime/violence/prostitution/drugs o Claim a right to shut down/regulate these things based on 2ndary effects Seems like a Nuisance argument Speech-content neutral! CF doesn’t say that o Rationale: What we’re regulating has nothing to do with the persuasive element of speech/expression We’re worried about other stuff (prostitutes, pimps, drugdealers) They’re not persuaded by anything, but they’re attracted by these establishments Has not been extended to any other context: Boos v. Barry o Attempt to create protest buffer zones around embassies o Try to justify based on 2ndary effect of listener’s reaction and the effect on diplomatic process o Opinion by O’Connor (3 justices): Want regulation to target a secondary feature that happens to be associated with a certain type of speech NOT targeting the direct impact of a particular category of speech INDECENCY “Obscenity Lite” Problem: o How to define “That which is not obscene” – (passes Miller) BUT related to obscenity in that we’re talking about offensive speech that relates to sexual matters, excretory matters, or shows nudity Attempts o Erzoznik NO Ordinance bans drive-in movie screens from showing adult films if visible from public space Held: M.Glick – First Amendment – Fried – Fall 2007 38 of 172 NO o Admits indecency (thrust upon you a troubling word or image) o BUT avert your eyes! Cohen v. CA o Pacifica OK George Carlin “filthy words” monologues Distinction: Unwanted image/word is intruded into your home in a manner that you cannot avoid o Uniquely pervasive presence and prior warnings cannot protect the listener from the unexpected – (can’t unring the bell) Broadcasting given less protection; Radio pushes itself intro your home intrusion Before you can turn it off or change the dial, you have o Home o Uniquely accessible to children (CF unimpressed with this distinction – “meaningless”) How to get around: Confine for certain hours o Sable Dial-a-Porn FCC tries to shut down NO Rationale: “Pull” not “Push” (Pacfica) o You have to pull in for speech o Medium in which you have to “take steps to receive communication” don’t have the same non-prior notice argument as Pacifica o Playboy Regulation (not ban) of cable indecency Struck down Require cable operators to either fully scramble sexually explicit programming or confine such program to late-night hours Court applies strict scrutiny and decides that the regulation failed due to the availability of a less restrictive alternative Denver Area After Sable, we know that Congress cannot ban indecent programming on cable television, so Congress tries to authorize cable operators to simply decline to show such programming on stations where they would not normally have such discretion o BUT can’t excessively limit the access of non-children Analysis o On the surface, indecency seems OK in cable context – (Sable) M.Glick – First Amendment – Fried – Fall 2007 39 of 172 Rationale: Something you subscribe to; You pick the channels (“Pull”) o If you don’t want to be tempted, don’t subscribe Cable provided by a cable operator pipe for access o BUT Cable seems like both a “Push” and “Pull” Push Content choice not just a pipe Question of what types of channels the cable operator wants to make accessible seems like editorial discretion Pull You have to opt to get cable Statute had 3 provisions: o 10(a) Operators could block certain programming that is disapproved of Court: OK Permissive nature restricts less speech Adult viewers could still receive indecent programming through other means o 10(b) Required blocking of certain leased access programming which was obscene, offensive, and indecent Court: NO Mandatory requirement inappropriate Insufficiently narrow 1A interests of cable operators o 10(c) Operators could block public access programming which was obscene, offensive, and indecent Court: NO Even though permissive, still gets shot down 1A interests of cable operators were weaker wrt public access channels than leased access channels because cable operators never had any discretion over channels that local governments reserved Two Poles o Kennedy Strike down all 3 indecent but non-obscene programming is protected speech Strict scrutiny applies and these provisions are not narrowly tailored to a compelling interest o Thomas Uphold all 3 Wrt 10(c), this provision affects the cable provider’s property just giving him some lost power/discretion over his property It’s the cable operator’s system and they can do what they want with it o Can’t be censored, but CAN censor self Counter: The system is not quite 100% theirs o They must give something to the public M.Glick – First Amendment – Fried – Fall 2007 40 of 172 o When it comes to the public, they can censor o BUT when it comes to the gov’t, they can’t censor Cable systems have dual function o Telephone like a pipe o Network/newspaper/content provider more complicated 1A analysis What we would have preferred: o Use other technologies to protect children, but allow non-children to access Indecency and the Internet Reno v. ACLU / Ashcroft II o Seems like a pure “pull” case You are reaching out / must type in address yourself o Problem: Children o Held: Communications Decency Act goes too far No history of regulation here The Internet is NOT as invasive as broadcasting o Requires affirmative steps Distinguishing Pacifica Regulation not limited to specific programming and timing Criminal prosecution (not just fines) Internet requires affirmative steps Distinguishing Renton Regulation here is much more broad – (not just zoning) Content-based – (not just time/place/manner) (Ashcroft II discusses number of valid alternatives) Filtering software Lock down your computer Control what your kids see o That’s where the law is today filtering software might suck, but we think it’s less intrusive than government surveillance M.Glick – First Amendment – Fried – Fall 2007 41 of 172 SUM of Indecency Push vs. Pull PUSH – can regulate PULL – can’t regulate Radio in home Pacifica Dial-a-Porn Sable Cable TV Wary of editorial discretion in Denver Area Cable TV Playboy Parts of Denver Area Neither Drive-in Movie Erzoznik – (avoidable) Internet Reno Ashcroft II Are there alternative ways to meet the state’s interest? o Could we keep children from seeing it another way: Timing restrictions Software Scrambling equipment o (Desire to allow non-child viewers to access programming) M.Glick – First Amendment – Fried – Fall 2007 42 of 172 HATE SPEECH RAV Facts: o Cross-burning outside black family’s home o Ordinance barring bias-motivated crime Held: o Ordinance is invalid Nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses Can go after fighting words because of their effect on victim, but not because of the ideas they express Analysis: o Don’t allow a sanction to be applied to the expression of an idea This is viewpoint discrimination We are defining the offense (obscenity) by a particular point of view can’t do that o Look to PURPOSE of the statute NOT to protect people from the harm of fighting words Purpose was to suppress an idea The mixed motive of preventing intimidation/incitement coupled with conveying an idea means that the state fails o If RAV had simply been prosecuted under a “fighting words” statute, that would have been OK BUT here we’re regulating the message / not just the manner/conduct Even if fighting words can be regulated, gov’t can’t regulate their use in a content-dependent manner CAN ban fighting words completely CAN’T only ban fighting words when critical of gov’t or focused on certain groups VA v. Black Focus on particular threat 2 Holdings: o 1. Statute bans cross-burning with intent to intimidate Constitutional We’re regulating the conduct/manner of a particular threat Cross-burning with intent to intimidate is particularly dangerous – (valid state concern) Analogy: o We are concerned when you threaten someone, but it’s OK to be especially concerned when you’re threatening the president o 2. Use of cross-burning as prima facie evidence of intent to intimidate NOT M.Glick – First Amendment – Fried – Fall 2007 43 of 172 You can ban cross-burning if the intent to intimidate is PROVEN, but can’t ban use cross-burning as prima facie evidence Can’t say that cross-burning = intent to intimidate Thomas Dissent: o Thinks cross-burning should be like flag-burning and receive no 1A protection historic association between cross-burning and terrorism Doesn’t matter the message; we’re regulating conduct Wisconsin v. Mitchell Wisconsin increases penalty for racially motivated crimes argue that it’s unconstitutional under RAV Held: o OK to take viewpoint into account If you choose your victim based on race, we will enhance your sentence NOT attacking an idea Reconciling Wisconsin v. Mitchell with RAV o RAV Criminal act criminalized only because of an expressive motive Cross-burning is done because it’s expressive in a way that beating someone up is not o Wisconsin v. Mitchell The criminalization is not about expression, but all about the act Think that crimes with certain characteristics are more dangerous and egregious So we’re criminalizing that extra-dangerous conduct, not the actual hate/idea o Alternative: Maybe motive and expression are different Attackers did not attack victim to express themselves in the same way that the cross-burners did Keegstra – (CAN) Facts: o Keegstra denies the Holocaust and makes anti-semitic remarks Canadian framework: o Strong freedom of expression component 2(b) guarantees fundamental freedom of thought, belief, opinion, and expression Positive Right o Why it matters: Private action could be thought to violate that right – (Luth) o BUT Rights and freedoms are subject only to such reasonable limits prescribed by law as can be justified in a free and democratic society Free and democratic society requires: M.Glick – First Amendment – Fried – Fall 2007 44 of 172 o Equality / mutual respect / multiculturalism / freedom from humility and degradation We can forbid certain speech in a reasonable way in order to protect certain fundamental values in our democracy Sunstein/Meiklejohn o Political view of the 1A o Be reasonable! 1A only protects certain speech Does NOT protect: Threats, incitement, conspiracy/frauds As applied: o BALANCE: Free Expression Preservation and Enhancement of the multicultural heritage of Canadians Equality under the law o Comparative: US categorical CAN (and around the world) balancing CERD o UN Int’l Convention on the Elimination of All Forms of Racial Discrim Bans all dissemination of ideas based on racial superiority US signs, but doesn’t consider it self-executing does not create a right for individuals within a country by virtue of us signing it (we issued reservation to this effect) “US will always be bound by 1A as interpreted by the US Supreme court” Harper – (9th Cir., Reinhardt) (like Keegstra struggle between free speech and some other principle) Facts: o School punishes Harper for anti-gay shirt worn on gay pride day Held: o OK no free speech violation o Rationale: Public HS – “special characteristics” Go back to Tinker two rationales for banning arm bands: o 1. “would impinge upon rights of other students” o 2. “substantial disruption of or material interference with school activities” Reinhardt focuses on #1 Nothing actually happened, but he relies on sociological evidence and studies showing how this might legitimately affect public HS students Emphasizes values: democracy, tolerance, equality o It is just these values that we seek to promote in public HS that are under attack here M.Glick – First Amendment – Fried – Fall 2007 45 of 172 Reinhardt distinguishes this from political speech: The focus here is on a core characteristic o Not something chosen o Something that is a part of you down to your shoes Even though it’s a general statement, it’s OUT Focus on general statements related to core characteristics of persons in the minority forbidden idea that cannot be expressed in a public HS Infringement on the “rights of others” o Right to be let alone in public school: Students more vulnerable Special context Education important to future o Right to be able to conceive of yourself and to imagine that you are conceived by others as being their equal o Right to have self-esteem not be fundamentally undermined by attack on core characteristics Reinhardt is doing Keegstra Students have enough trouble they shouldn’t have their core personal characteristics questioned in the school environment – (hurts their person) o Objections: This is viewpoint discrimination! HARRASSMENT Two Kinds: o Title VII Discrimination Discrimination in employment, terms, etc. on grounds of gender Working for less, being forced to have sex o (When you have to endure sexual demands in the workplace, it’s like having to give a kickback) o Hostile Work Enviroment Because of your gender, your employment conditions are less enjoyable than for other workers Some distraction that makes your job more difficult unpleasant to have to work surrounded by this hostile work environment (dirty jokes/nasty remarks) Like being forced to have an office w/o AC SCOTUS has approved of these laws Vincent – (DC Circuit) o Said the law was OK discrimination o (many dissents this is NOT discrimination) Problem: 1A o Gov’t is penalizing off-color speech in the workplace M.Glick – First Amendment – Fried – Fall 2007 46 of 172 How to justify regulation: Captive Audience Analysis o Can’t avert your eyes / have to be there and endure this unpleasantness Shouldn’t have dignity compromised by having to listen o Lehman v. Shaker Heights – (ads on bus) OK to get ride of music/ads o (Assess who else might be able to use this) Cohen? NO – (just corridor) Harper? YES – (Reinhardt) SCOTUS o SCOTUS has never ruled on harassment punishment as a violation of the 1A nervous about this Conflict: The same justices who are big free speech advocates are also big on anti-discrimination, so it’s hard to make up your mind on which value is more important o Free Speech vs. Anti-Discrimination Arguments: Employee: o I shouldn’t have to quit (equivalent of averting my eyes) just to avoid this Employer: o I have right to conduct my business (speech) as I wish o Workplace vs. School (Under Keegstra, you might say that everyone should be free to take a job and one where they can do so without being uncomfortable) BUT employment context is more difficult than school o Where we’re headed: Tough possibility: As long as it’s ideas, you have to accept it As long as it’s not tough and in your face, you have to deal with it Easier possibility – (Keegstra) Gov’t may limit speech in terms of it’s judgment about what constitutes a free multicultural society of equals Problem: o Those words/values don’t define themselves Who will decide? Tracing our speech doctrine so far Schenck o Go to slammer for what you say M.Glick – First Amendment – Fried – Fall 2007 47 of 172 Brandenburg o Protects us against that by creating only narrowly limited exceptions to the 1A: Compelling interest C&PD Harper o Seems to go back the way of limiting speech more and more – (picking out zones of protection) SCOTUS is afraid of it M.Glick – First Amendment – Fried – Fall 2007 48 of 172 COMMERCIAL SPEECH Protected, but in a category of lower value speech not entitled to the same high degree of protection as core speech o Lone exception to the two-level approach in Chaplinsky: Core = high degree of protection Incitement, fighting words, malicious libel, child porn = none Commercial Speech = some protection, but not a ton How do we feel? o Too Permissive – (Rehnquist) Too much protection afforded to this sort of speech o Too Restrictive – (Blackmun) Not enough protection o Dubious about everything – (Scalia) Original Intent Inquiry In absence of that stare decisis o Some restrictions are per se illegitimate – (Thomas) Bigelow Recalcitrant state’s attempt to interfere with Roe by criminalizing advertisement explaining the availability of abortions in NY Held: o 1A applies to advertising of commercial transactions (like NY Times v. Sullivan) VA could not criminalize ad in VA paper advertising for abortion services in NY Ad for commercial service could not be regulated Virginia Board of Pharmacy Facts: o VA law prohibited pharmacists from advertising the price of prescription drugs prevents dissemination of prescription drug info in state o Distinguished from Bigelow Here, the state was not using speech to suppress some underlying constitutional right Held: o Blackmun assimilates commercial speech into the 1A How? Public interest in information o One mind seeking to reach another mind o Counter (Rehnquist): This is not a communication about democratic self-gov’t shouldn’t be covered – (Sunstein/Meiklejohn) o Reply (Blackmun): Yes, but it is about important choice for people (how you spend your money M.Glick – First Amendment – Fried – Fall 2007 49 of 172 Plus, price info affects political choices if you can vote for who you want, you can get rid of the price suppression We live in a free enterprise economy where a purchase is a vote just like on election day Choice in the market place = vote We should protect communication relating to those choices, just as we protect speech related to voting o Counter (Rehnquist): The free enterprise system is just one specific view of economics and one choice that a Democracy can make Holmes’s dissent in Lochner free enterprise/market is one way to organize things, but not req’d If Democracy has chosen to be a little paternalistic, then that’s fine Fried o States may achieve the end of regulating prices directly (i.e. min prices) so why not do that? Political Accountability – (regulation through speech is less annoying) o Blackmun reply: The legislature should have the guts to enforce price controls directly If they did that, I would have nothing to say about it (Lochner) But they don’t have the spine, so they’re doing it in a way that people don’t understand This is a means of regulation which prevents the citizens from knowing that they’re regulated and therefore exercising appropriate Democratic choice o You cannot regulate keeping people ignorant of their choices FREEDOM OF THE MIND (sacred) Liquor Cases: Cases that Fried worked on where the gov’t didn’t allow beer companies to advertise the content of alcohol in their products o State interests: Avoid war of raising alcohol content Prevent drunkenness and accidents 44 Liquor Mart o Liquor Pricing Coors Beer o Alcohol content of beer Held: M.Glick – First Amendment – Fried – Fall 2007 50 of 172 o Regulation was designed to keep people ignorant BAD You can limit the amount of alcohol in beer, but you can’t limit the advertising o (Fails last 2 prongs of Central Hudson) Central Hudson (canonical statement on commercial speech) TEST (4) o Truthful/non-misleading + Lawful Undertaking If false or misleading unprotected Lawful Activity Pittsburgh Press o Ran “help wanted” ad drawing distinction between men/women gender discrimination in employment is illegal, so ad was not protected o Gov’t interest is substantial Doesn’t have to be compelling – (no strict scrutiny) Schenck / Brandenburg: o C&PD/imminent/serious harm compelling Here o Intermediate o Regulation directly advances the substantial interest If not speaker wins o Regulation is necessary to serve that interest Want it to be close Some controversy over this prong: Doesn’t have to be absolutely crucial to meeting the goal (i.e. necessary) – (not a standard of “without X regulation, the goal wouldn’t happen) o Not quite rational basis, but want to find an appropriate relation to the end Fox o Scalia says that “necessary” does not mean that the court has to find the “least restrictive alternative” o Turn to McCulloch v. MD The Nat’l Bank was not absolutely necessary for the function of the nation, but we allow it under “necessary and proper” clause Apply a looser meaning appropriate / reasonably related Looking for a regulation that is appropriate to the chosen and identified substantial interest M.Glick – First Amendment – Fried – Fall 2007 51 of 172 Central Hudson TEST 1. Truthful/Non-Misleading 1a. Concerns a lawful activity 2. Substantial gov’t interest – (not compelling) 3. Regulation directly advances that interest 4. Regulation is necessary to serve that interest – (though not absolutely necessary such that it could not be achieved without it should be appropriate to meet the chosen interest) Philosophical Dilemma wrt Commercial Speech o Why have protection of commercial speech at all? (and if so, why stop halfway?) o Truth/Misleading Non-commercial speech: Don’t care whether it’s false or misleading One of the values of 1A is allowing all ideas to come forward “false” ideas will be filtered out with public deliberation o The alternative would be the gov’t determining which ideas were true BAD o Not subject to objective verification Libel: Gov’t has not been totally unconcerned with truth until now If you can prove falsity + actual malice libel o Rationale: Personal reputation at stake doesn’t apply in the same way to political parties Analogy between libel and commercial speech: We care about false/misleading in the commercial speech context because it’s a tort to take money based on false information o More susceptible to fraud o Lawful Action No similar requirement in other 1A cases – (Brandenburg / Whitney) They are proposing an unlawful action, but they’re protected because they are not calling for an imminent and substantial injury Rationale: M.Glick – First Amendment – Fried – Fall 2007 52 of 172 Commercial Speech is part of a course of conduct o We aim at the course of conduct and this part of an illegal transaction o We’re OK protecting changing ideas, but not being part of an illegal transaction Thompson v. Western States Forbade drug compounders from advertising services in order to get exemption from FDA approval o They can do this compounding stuff, but they can’t advertise that they do so o Claims it is just part of a regulatory scheme and NOT a suppression of expression Held: o SCOTUS disapproves can’t regulate by keeping people ignorant Agree that there may be some gov’t interest, but the regulation has not been narrowly tailored to meet it Henney Regulation of information regarding off-label uses for prescription drugs o Scheme FDA requires approval for use of drugs prior to distribution Drug companies avoiding FDA regulation by not putting off-label uses on the label (which would have required FDA approval), but instead getting the info published in a journal and then mailing it to every MD in that field No trials for safety/effectiveness Saves money FDA said you could not distribute articles in medical journals to discuss off-label uses Applying Central Hudson: o False/Misleading or Unlawful Action? NO o Substantial Interest? Public health OK Breyer: FDA’s call – (if this is a big leakage, then maybe it’s factually necessary) o Direct Advancement Probably o Sufficiently narrowly tailored? (Battlefield) Drug companies argue that the regulation is more extensive than necessary Seems like the FDA is regulating by keeping people ignorant Can’t regulate by keeping doctors in the dark M.Glick – First Amendment – Fried – Fall 2007 53 of 172 BUT isn’t that what the SEC and FDA are doing with their regulation of prospectuses and packaging inserts? Nike v. Kasky Facts: o Nike sent letter to college presidents and athletic directors with whom they had an existing business relationship and with whom they want to have a relationship in the future o Plaintiff (under CA “private AG” statute) claims that the letter has falsities in it Issue: o Is this protected commercial speech or not? If YES: Kasky can claim it’s false and then have a trial about whether it’s true or false If NO: No such thing as a false idea o If the Chamber of Commerce could make this speech, why can’t Nike? Tribe (representing Nike) asks for the NY Times standard of “actual malice” SCOTUS ducks the case as “improvidently granted” o Breyer’s Dissent: Would hold that it’s a mix of commercial and public-issue-oriented speech inextricably intertwined Looks to form/content – (determining whether it’s commercial speech) Does not propose the sale of a product or any other transaction Concerns a matter of significant public interest and controversy If we apply commercial speech when the content is mixed, we force a commercial speaker to take considerable care when speaking on public matters o Three possible alternatives the court might have chosen: Apply Central Hudson unmodified Ask whether Nike’s statements are true – (Letters are essentially a commercial activity with a smattering of public interest information) Problem: o Nike put at disadvantage (esp in court of public opinion) because they’d have to respond and be absolutely truthful in every statement Apply Breyer’s heightened scrutiny Problem: M.Glick – First Amendment – Fried – Fall 2007 54 of 172 o How to draw line between commercial and noncommercial speech Apply a modified Central Hudson Say it’s commercial speech, but alter the test such that an element of malice must be shown by the speaker, or at least a reckless disregard for the truth Problem: o Discourages commercial actors from checking their facts because they’ll just plead negligence to get out from the malice/reckless disregard framework Lawyer Advertising (Examining what are substantial gov’t interests and what are appropriate relations to those interests) Potential Substantial Interests: o Protecting victims from coercion o Protecting victims after accident o Desire to forge lawyer-client relationship built on trust want client to have time to think and consider it Where the cases come out: o Bates States could not prohibit lawyers from price advertising for routine legal services Print ads with prices OK as long as accurate/not misleading o Ohralik OK to ban in-person solicitation Face-to-Face appropriate restriction o Florida Bar OK to ban targeted direct mail to accident victim to solicit within 30 days OK Ban on in-person solicitation – (Ohralik) NOT OK Prohibition of price advertising for routine legal services – (Bates) Ban on targeted direct mail – (Florida Bar) Association Cases Commercial Speech cases where the complaint is about SILENCE, not speech Cases o Glickman M.Glick – First Amendment – Fried – Fall 2007 55 of 172 All CA stone fruit producers had to kick in money used to regulate stone fruits Some money went to generic advertising – (forced to pay) o United Foods All mushroom producers had to kick in money for ads o Johanns All beef growers had to kick in money and gov’t was putting out beef ads Complaint: o Start with: Right to speak includes the right not to speak Gov’t can’t force you not to say X Gov’t can’t force to claim/say Y o (can’t make you into a billboard) o Next Step: Just as you can’t put political messages in my mouth, you can’t put commercial messages in my mouth unless you hit the Central Hudson standard Court wasn’t buying it o This has nothing to do with commercial speech! These concern a scheme of commercial regulation o Economic regulation is fine You may not like the cartelization, but you’re Lochnerizing if you prohibit on that ground These are generic regulations that are part of a self-regulatory scheme like the SEC regulating stock prospectuses or the FDA regulating packaging o Outcomes: Glickman loser United Foods Court distinguishes Glickman by saying that the only thing the mushroom scheme handles was advertising (whereas in Glickman the regulation of stone fruits advertising was part of a larger regulatory scheme) CF: no principle distinction / just shifting majorities Johanns Compelled speech was gov’t speech OK to regulate Questions to ask for commercial speech 1. Is this regulation trying to keep people ignorant? Virginia Board of Pharmacy / 44 Liquor Mart / Coors Beer 2. Does it pass Central Hudson? M.Glick – First Amendment – Fried – Fall 2007 56 of 172 CONTENT NEUTRALITY AND CONTENT-BASED REGULATION Assessing where we are going Early Cases: o Attack speech head on Frank and explicit attempt by gov’t to limit that which is expressed because that which is expressed (or the effects we think it will have) Exs. of Reg: o “Don’t say that.” o “Don’t say that if it has certain kinds of effects such as a breach of the peace.” o “Don’t say that because it’s obscene.” Coming up: o Sideswiping speech Gov’t does not assert an interest in silencing a particular message Gov’t asserts an interest in some other kinds of harm but purporting to be indifferent toward speech Gov’t trying to minimize a particular range of effects and purports to be indifferent in the fact that speech contributes to or produces that effect Purports to be indifferent to the message o O’Brien – purports to be indifferent to the idea that the draft is a bad thing We just have a simple draft card rule that you have to have the card on you Comparison: o Sort of like comparing intentional torts to torts of negligence/strict liability Old: Brandenburg 1A claim is that you attacked speech directly CATEGORICAL o Some purposes the gov’t isn’t allow to have o (perhaps some ex ante balancing, but scales are tipped a lot) Now: 1A claim is that you haven’t attacked it directly, but you have affected the message BALANCING o Some purposes the gov’t is allowed to have o Gets intricate where gov’t is doing something that it’s justified in pursuing and incidentally burdens speech, we balance Content and Viewpoint Neutrality Content Neutrality o Indifferent to the communicative impact of the speech M.Glick – First Amendment – Fried – Fall 2007 57 of 172 o Two types Laws aimed at wider range of behavior but with an incidental impact on speech Violator challenges after engaging in that behavior in an instance of expressive or symbolic conduct O’Brien o Care about the administration of gov’t, NOT the communicative impact of the draft card burning Could be that you’re protesting the war, but could also be that you’re volunteering for the war, not waiting to be drafted Laws aimed at expression, but for reasons unrelated to content “Time, Place, and Manner” Cox v. NH o Care about flow of traffic, NOT about the communicative impact of your parade In both situations, the gov’t claims to not care about what message you’re trying to give via burning your draft card or parading in the street just claim they’re trying to facilitate the orderly processing of gov’t services and property o Opposite: Content-Specific Regulation is related to the communicative impact of what’s being done Viewpoint Neutrality o Indifferent to the viewpoint of the communicative impact May not limit what’s said to one view or group of views on that subject matter o Ex. Can have program on marijuana BUT to be VP-neutral, you must have legalization arguments and also arguments based on the evil of marijuana o Opposite: Viewpoint-Specific Not only related to the communicative impact, but also focused on one kind of communication (particular set of communicators) Viewpoint discrimination is the paradigm violation of the 1A M.Glick – First Amendment – Fried – Fall 2007 ContentNeutral ContentSpecific 58 of 172 Viewpoint-Neutral Viewpoint-Specific You can’t have any shirts with writing on them in school You can’t have t-shirts in school with an anti-gov’t message Tax on all publications – (Minneapolis (It would be shot down) Star) Subsidy to civil rights lecture ANALYZING CASES ACROSS 3 LEVELS 1. Strict Scrutiny Apply to cases where: o Focus of law is on the Communicative Impact Content Regulation Regulation that which arrogates to itself the authority to regulate ideas and the content of ideas Suppression of Expression If it’s a law intended to suppress expression SS o What troubles you is what it persuades or tells people or makes them think about Standard: o Compelling gov’t interest needed o Narrowest tailoring of the law to meet that interest Hypo: o “No political speech on city buses.” Viewpoint-neutral (Dem vs. GOP on same footing) but Contentspecific we don’t like it Rationale: In public forum if what you’re getting at is expressive conduct, then you are trying to regulate speech/ideas o Strict Scrutiny Cases: o Boos v. Barry Ordinance requires protestors to keep distance from embassies Gov’t tries to make secondary effects argument diplomatic effects of protest justify gov’t regulation Held: Struck down as content-specific o You are regulating the communicative stuff Diplomatic effects come about through the message that is sent out M.Glick – First Amendment – Fried – Fall 2007 59 of 172 o In Renton, the effects did not operate through communicative impact more public morality and behavior – (lower-level stuff) o RAV Ordinance forbids burning of cross to express hatred on grounds of race/ethnicity/religion Content-specific Forbidden o Burson Time/place/manner restriction in a public forum: 100 ft from polling place – (can’t discuss politics) Content-specific – (rules out all gatherings and communications on a particular subject) Held: Strict Scrutiny BUT the regulation survives o Compelling state interest o Narrowly tailored o Flag Burning Texas v. Johnson – (1989) State claims this isn’t about speech at all conduct/axn o BUT concede that this is expression and it looks like the statute is directed at that expression o (Alternatively, flag is a symbol of national unity right to protect flag and get rid of this sort of expression) Defining Expression: o An intent to convey a particularized message o Likelihood was great that message would be understood by those who viewed it National symbol = speech Court finds that the flag-burning ban is an inappropriate prohibition of the expression of an idea simply because society finds it offensive or disagreeable o Gov’t bans because it disagrees with msg Eichmann (CF wrote brief in favor of ACLU thinks flag-burning is OK) Court strikes down new flag-burning ban Rationale: o Clear that the gov’t’s asserted interest is related to the suppression of free expression and concerned with content of such expression Two Possibilities: Fighting words Chaplinsky o Argue that it induces violence directed at a particular speaker o Problem: M.Glick – First Amendment – Fried – Fall 2007 60 of 172 Fighting Words Doctrine has been so limited Limited to words directed at a person not addressed generally to the world at large Looking for imminent danger of violence to the single person it is addressed to Apply Barnes or Paris Adult Theater Public Morality o Look for a sort of public morality banning flagburning Barnes is not about flaunting speech in the face of unconsenting people – (these people have consented to be behind closed doors viewing this stuff) Rather, it’s about the very idea that this stuff is going on o Why can’t we have a public morality about flagburning? It may be an expression, but public morality is offended by it, so can’t they be overcome just as nude dancing lost out to public morality in Barnes o Hate Crimes RAV Handled under strict scrutiny because we believe that what’s being penalized is the message To avoid this: Want to pry the message away from the medium in order to punish Make the message seem irrelevant Then the regulator can just say it’s the medium he’s after falls in O’Brien (below) o Only when the message doesn’t matter can you avoid falling under the 1A prohibition of punishing messages 2. Intermediate Scrutiny Apply to: o Laws that involve “incidental” burdening of expression Unrelated to the suppression of expression, yet nonetheless effect expression/speech Standard: o Important/Substantial Interest o Narrowly tailored, though not the least restrictive alternative Ward v. Rock Against Racism Not the least restrictive alternative M.Glick – First Amendment – Fried – Fall 2007 61 of 172 Need it to be close enough fashion, but it would survive even if there was another way Why important? o Solution to the problem that expression/communication requires action Expression requires material manifestation o O’Brien tries to pry action and communication apart Action can be regulated Communication cannot If you claim you are just after action, but you’re not, we will disclaim your motive o If activity is intended to convey a message and it’s likely to be understood to convey a message, then it has both thought and action aspect BUT Regulation can only be of the action Regulation must be unrelated to the communicative impact of the action O’Brien o Facts: Law forbids burning draft cards O’Brien convicted then claims that the law burdens his 1A right of free expression o TEST: Within the constitutional power of government Furthers an important or substantial gov’t interest Gov’t interest is unrelated to the suppression of free expression (This is another way of saying “content-neutrality”) o If it’s content-specific, it is related to the suppression of expression Is it intended to burden speech? o If yes, struck down Gov’t may have a reason for burdening speech, but that reason must be indifferent and apart from the suppression of speech o Must cite a reason that is unrelated to the suppression of speech Incidental restriction is no greater than is essential to further the interest If it heavily burdens speech but doesn’t have to, the Court will strike it down – (some content-neutral regulation isn’t alright) M.Glick – First Amendment – Fried – Fall 2007 62 of 172 O’Brien TEST 1. Within the constitutional power of gov’t 2. Furthers important/substantial gov’t interest 3. Gov’t interest is unrelated to the suppression of free expression – (“content-neutral”) 4. Incidental restriction is no greater than is essential to further the interest – (can’t burden too much) o Speech-Action distinction Court announced that it could not accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea He might claim that he intended to express an idea, but at some point, we can still bar the conduct o Motive Warren rejected summarily any inquiry into congressional motive BUT this isn’t universal: o Wallace v. Jaffree – (school prayer) o Hialeah – (ritual slaughter) o Aguillard – (Creationism Act) Applying O’Brien o Barnes v. GlenTheatre Glen Theatre convicted for violating ban on public nudity Analysis: 1A o There is an expressive element to nude dancing State Interest o Public morals/decency Run it thru O’Brien regulation OK Within constitutional power Important/substantial interest in morals/decency Interest is unrelated to suppression of free expression o No direct burden on speech o All conduct could be labeled “expressive” Narrow tailoring o Requirement of g-string and pasties is narrowly tailored to the interest and does not take away from expressive aspect too much M.Glick – First Amendment – Fried – Fall 2007 63 of 172 Scalia (concurrence) this is an LGA, so it’s fine o Motive Cases We’re basically casting doubt on the stated motive behind the law SO require generality By requiring generality, we know that gov’t can’t play favorites wrt speech and we know that their stated reason is genuine o Put it to them to really fulfill their motive If X is your motive, go all the way If not doing that, we don’t believe your motive is X Mosley and Carey Facts: o Mosley Law restricted picketing of schools except in labor dispute o Carey Law restricted picketing outside buildings except for peaceful picketing of place of employment in labor dispute Held: o Strikes down laws as content-specific Not necessarily viewpoint-specific you’re allowing both pro-management and prolabor together – (VP-neutral) o You COULD get around this by allowing NO speech Seems like an anomaly (less speech > more speech) BUT prohibiting some speech implies that that speech is more worthwhile than other types of speech Makes us nervous to have gov’t saying what speech is worthy If we disallow all, we’re not making a value judgment about some speech being any better Doubt about motive!!! o Stated motive: order in schools o BUT if what you really care about is order/tranquility, why are you making an exception for this? City of Cincinnati v. Discovery Network City disallows Discovery from putting their boxes on the street along with a newspaper of general circulation o Claims it’s clutter M.Glick – First Amendment – Fried – Fall 2007 64 of 172 Held: o Court casts doubt on motive Such a small number of boxes that we don’t believe your alleged motive of unsightliness and obstruction Simon & Schuster NY Law requires payment to crime victims board of any income derived from books related to crime o Stated motive: Don’t want criminals to profit from crime BUT if that was your real motive, you would have done something more general o Since you did not, we assume you are attacking expressive conduct NO NY v. Railway Express NY ordinance says no ads on side of your truck unless you are advertising your own business o Reality: Exempt newspapers because they endorse Comes under Equal Protection fire o The reason we have EqPC is so that gov’t can’t play favorites o We want genuine reasons all or nothing No illegitimate favorites SUM In these cases, we’re probably better off with less speech o (fewer protests / fewer distribution boxes 50% down from 100%) BUT we’re skeptical about how you distinguished skeptical that you aren’t really following your claimed motives o Reality: Newspapers (Cincinnati) and Teachers Unions (Mosley) are powerful groups and don’t want to piss them off o Hate crimes the regulation is OK if it’s targeting CONDUCT Want to pry the message away in order to punish the conduct Make the message seem irrelevant Then the regulator can just say it’s the medium he’s after falls in O’Brien (below) Only when the message doesn’t matter can you avoid falling under the 1A prohibition of punishing messages Wisconsin v. Mitchell Wisconsin increases penalty for racially motivated crimes Claim that we’re regulating conduct here the underlying crime M.Glick – First Amendment – Fried – Fall 2007 3. Rational Basis 65 of 172 Apply the test: o Within the constitutional power of government Yes o Furthers an important or substantial gov’t interest Think that crimes with certain characteristics are more dangerous and egregious o Gov’t interest is unrelated to the suppression of free expression The criminalization is not about expression, but all about the act Unrelated to suppression of ideas/expression in the sense that the statute did not speak in terms of committing a violent act to express a point of view spoke of committing a violent act with a particular motive Must cite a reason that is unrelated to the suppression of speech o Incidental restriction is no greater than is essential to further the interest Seems to fit Violence Against Women Act o Act violent due to concern about gender-motivated hatred, but it’s certainly legal under 1A What you communicate doesn’t matter It’s about WHY you did it and criminal law is wrought with provisions like these Contra RAV Court believes this is more about ideas/expression, so it gets strict scrutiny o “We have long held, for example, that nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses.” Synagogue Hypos Act punishes, “Defacing places of worship.” o OK – you could fall under that w/o intent to express anything Law is not targeting expression Act punishes, “Defacing a place of worship in order to express hatred or contempt” o NO that’s RAV / VA v. Black M.Glick – First Amendment – Fried – Fall 2007 66 of 172 Apply to: o Laws of General Applicability Applied generally and without picking out anyone to advantage Ex. Zoning / Environment Standard: o Rational relation between means/ends Virtually always met Issue: o Why isn’t it that once it’s clear that a law is “unrelated to the suppression of speech” that we don’t just put it in this category as an LGA? Scalia concurrence in Barnes Also: how we deal with religion – (Smith) Freedom of Expression gets greater protection than Free Exercise o Free Exercise Smith LGA can apply even if burden on religion o Freedom of Expression O’Brien LGA still undergoes scrutiny: Does it leave ample opportunity for other forms of expression? Substantial gov’t interest No more incidentally restrictive than necessary for avowed purpose (Scalia wanted to treat all LGA under rational basis, but the court went the othe way in Ward) o Rationale: Sometimes law claims to be LGA but the motive is fairly blatant on its face Court can’t accept the full logical consequence of the act-speech distinction we just don’t trust the legislature Ex. o State passes law banning all outdoor fires o Citizen then prosecuted for burning flag not for the message, but because he’s caused a hazard The prosecution makes uneasy gov’t should not be free to choose our media, just as it cannot choose our message This area requires compromise and balance This is why Scalia is alone o Hates balancing o Acts as if it’s possible to totally separate out these things – (medium and message / act and speech) Medium is inevitably connected to speech, so it gets some protection M.Glick – First Amendment – Fried – Fall 2007 67 of 172 o But it’s also different from speech in some regard, so it’s given only intermediate protection If you’re going to limit, you’ll need some reason Cases o Arcara Facts: NY law defines places of prostitution and lewdness as public health nuisances Bookstore claims that this has the effect of burdening its 1A right to sell books Held: LGA is OK even though it burdens speech o 1A is not implicated by the enforcement of a public health regulation of general application against the physical premises in which respondents happen to sell books Why this is attractive? Scalia has a horror of balancing o Derogation of rules/clarity o Assigns to courts the duty to determine between competing values don’t like that o Tax on Authors Seemingly an LGA Just gets down to a matter of degree There’s a connection between mode of speaking and message if this connection becomes too attenuated, the court stops caring and the regulation is allowed o Scalia concurrence in Barnes: O’Brien is the wrong framework This is an LGA unrelated to the suppression of free expression Akin to Smith If the regulation is truly unrelated to the suppression of expression (truly content-neutral), then it shouldn’t get heightened scrutiny at all LGA! M.Glick – First Amendment – Fried – Fall 2007 68 of 172 LAWS RELATING TO: COMMUNICATIVE IMPACT CONTENT REGULATION SUPPRESSION OF EXPRESSION Strict Scrutiny Compelling gov’t interest Narrowest tailoring Boos v. Barry RAV Flag-Burning Burson – (survives) “INCIDENTAL” BURDENING OF EXPRESSION LAWS OF GENERAL APPLICABILITY Can burden, but unrelated Intermediate Scrutiny Important/substantial interest Narrowly tailored, but don’t need least – (Ward) Rational Basis Scrutiny Some connection – (almost always met) O’Brien Cloud v. Arcara Barnes (Motive Cases) Hate Speech where we’re getting to conduct, not expression M.Glick – First Amendment – Fried – Fall 2007 69 of 172 PUBLIC FORUM Close to O’Brien in that the gov’t claims it’s regulating the medium and not the message o Gov’t has right to regulate speaker, but must show the regulation has no impact on communicative impact or free expression Time, Place, and Manner Gov’t is entitled to give consideration, without unfair discrimination, to time, place, and manner in relation to other proper uses (Cox) o We cannot limit you on communicative impact grounds, but we can limit you in a content-neutral way o Test: If you’re going to stop people from expressing themselves in a place where they are entitled to be, you: Must have good reason That reason must not be related to what they are saying o Exs. Noise Residential Tranquility Proximity to a school In certain places, only TPM restrictions apply o Places that belong to all of us Public Forums Streets Parks Places you’re allowed to be o Places that belong to you Home Office Rented auditorium o TEST STRATEGY: Find places that look like these! Modern TPM Test: o Looking for: Public Order or Safety Controlled discretion Cox v. LA / Heffron v. ISKON 4 Levels of restrictions 1. Gov’t may not restrict what is said @ all in terms of its content o Only TPM Ex.. One parade at a time No blaring sound equipment o Must be content-neutral Restrictions can have no reference to what is being said (can’t matter why you’re having a parade) M.Glick – First Amendment – Fried – Fall 2007 70 of 172 2. Gov’t may specify the topics to be considered, but may not specific what is being said about those topics o Content-specific / Viewpoint-neutral 3. Both topic and viewpoint about that topic are subject to regulation 4 Types of Forums 1. Traditional Public Forum o TPM only o If state wishes to enforce a content-based exclusion, it must show that its regulation is: Necessary to serve a compelling interest Narrowly drawn to serve that end o Hague v. CIO Streets and parks which forever have been a part of the public discussion – (time in memorial) o Theory Why do we have such a thing? Holmes: We shouldn’t! o Your living room belongs to you / streets and parks belong to city You can keep people out and so can the city o Gov’t has the right to its own property Idea of gov’t as a private property owner or employer with the freedom to make whatever decisions it wants as a private actor NO Why Holmes is wrong: Two rationales: o Must have private property in order to have somewhere to speak Place for speaker to speak o The public forums are where the audiences are Place to find an audience o (Undermined a bit by the Internet) Notion that streets and parks are where people go to speak and/or find an audience is obsolete No longer the easiest way to reach people cheaply People no longer need the streets/parks Human contact is not as important 1a. Non-gov’t venue at all o (All of the forum cases really address only gov’t venues) If it’s not public property only TPM o Only TPM – (absent compelling state interest) M.Glick – First Amendment – Fried – Fall 2007 71 of 172 Mistake to think that gov’t is free to go beyond TPM in all places that are not streets and parks Gov’t can’t control viewpoint/content in your living room! o Terminello Privately-held auditorium gov’t can’t restrict 2. Designated Public Forum o Gov’t actions or permission designate something as being the same thing discussed in Hague Just like a PF forum because gov’t said so Even if state was not required to create such a forum in the fist place, as long as it keeps it open as such, it is bound by the same standards as the traditional public forum Forbids state from enforcing certain exclusions from a forum generally open to the public o Oftentimes, these cases arise when the gov’t believes it has not designated something a public forum, but a group argues that it has There are no “magic words” Circularity of DPF: “Designated Public Forum” conjures up an image of a plaque that designates an area as a public place BUT that’s not reality gov’t merely allows certain activity to take place there and the court then infers or ascribes the concept of a public forum by designation o Sort of like adverse possession So can it be un-designated? o (CF thinks so) – the gov’t deciding to restrict it is just part of what the gov’t has done! o What’s OK? TPM You MAY limit to particular category or community (speakers/audiences) Try to claim: o Content-neutrality o Subsidy o Cases SE Promotions Close to pure PF by definition If you want to use, you have to pay rent, but anyone who pays can use it Lamb’s Chapel DPF but limited Only available to student population Widmar DPF but limited to students o Cannot prevent venue from being used for prayer (content-regulation) when you have designated thos rooms as a public forum) M.Glick – First Amendment – Fried – Fall 2007 72 of 172 Rosenberger DPF but limited to students o Can’t prevent student group from using subsidy to publish religious publication (content regulation) 3. Non-Public Forum (Unclear designation) o NOT public forums of any sort You can’t use free speech rights to tell the gov’t what to do in a non-public forum o What’s OK? TPM You MAY limit to particular purpose or category of speakers/audience provided: Regulation on speech is reasonable o Must make some kind of sense o (but any unreasonable law is subject to challenge under DP clause anyway) Regulation is not an effort to suppress the expression merely because the public official opposes the viewpoint o The sense that gov’t makes mustn’t have anything to do with the opinions being discussed o Gov’t can insist the forum be reserved for the general purpose for which it has been designated BUT must not be viewpoint-specific o Cases Velazquez – (legal services) Cornelius – (combined federal charities) Court remands to find out whether the limitation was viewpoint-specific Greenburgh – (mailbox) Viewpoint-neutral Perry – (teachers mailbox) Discrimination OK because it relates to status, NOT viewpt 4. Gov’t allowed to have a point of view o Gov’t venue (doesn’t have to by physical) where the gov’t is quite specifically entitled to be viewpoint-specific because the very point of the program is to promote a particular point of view Odd conclusion to say gov’t can’t have a viewpt o Cases: Forbes – (candidate debate) Rust – (abortion funding) NEA v. Finley – (subsidy to arts) M.Glick – First Amendment – Fried – Fall 2007 Traditional Public Forum Hague v. CIO Designated Public Forum 73 of 172 Limited Public Forum SE Promotions Velazquez Rosenberger Lamb’s Chapel Widmar Cornelius Gov’t CAN have a point of view Finlay Rust Forbes Greenbush Perry Private Property as Public Forum We’ve seen a tremendous arc: o Marsh Company-town = public town, so streets are part of public forum 1A right to speak on “private property” because the streets (though privately-owned) ARE the public square o Logan Valley Shopping center/mall Places so historically associated with 1A practice Functional Equivalent Makes it like a public forum That’s where you go to find people / where people go o Lloyd Want the speech in question to have some relation to the property Invoke Trespass This is our property and we have withdrawn the license to be here you’re trespassing LGA! o Not a speech-specific law or race-specific law o (Logan has disallowed speech-constraining law w/o a compelling interest) o Hudgens Yes, we limit speech but not a 1A violation (Lloyd didn’t merely distinguish Logan Valley overturned it) The state could give you that right (Pruneyard), but it hasn’t and you have no 1A right because this is not a Pub Forum No 1A right absent a statutory provision allowing you in o (Private shopping centers are not, by their very nature, public forums) How they get in though: o EQUAL PROTECTION M.Glick – First Amendment – Fried – Fall 2007 74 of 172 Statutes bar this sort of behavior – (civil rights or public accommodations statutes) Argue that it’s just the way in which private parties choose to act, but the statutory rights grant you access Assessing a variety of forums and forms of regulation Total Medium Bans o Martin v. Struthers – (Doorbell) Statute forbids distribution of handbills by ringing doorbells Medium Ban Held: Cannot ban Rationale: o 1. Functional Need freedom to distribute o 2. Designated Doorbell is on street, so part of public sphere Qualification: o If someone puts up a “no solicitation” sign, you must respect it o (How we get around “Do Not Call” list in the telemarketing sphere) BUT we probably could not have a “Do Not Call” list that exempted political donations Carey problem o Kovacs v. Cooper – (Truck speakers) Ordinance designed to regulate loudspeakers Held: OK o Absolute prohibition of loudspeakers would probably be held unconstitutional but this ordinance is valid insofar as it only applies to those speakers emitting “loud and raucous” noises Streets are Traditional PF, but still subject to some control o Schneider – (Leaflets) Law forbids distribution of leaflets on grounds of preventing littering Held NO o Purpose to keep the streets clean is insufficient to justify an ordinance which prohibits leafletting in its entirety Rationale: o Streets are natural and proper place o (seems like balancing) M.Glick – First Amendment – Fried – Fall 2007 75 of 172 Aesthetics o Taxpayers for Vincent Ordinance prohibits posting of signs on public property Challenged by political campaign Apply O’Brien Succeeds on two prongs of O’Brien: o Within the constitutional power of the city o Interest is unrelated to the suppression of ideas Challenged on two other prongs: o Interest is sufficiently substantial to justify the effect of the ordinance on the expression? o Whether the effect is no greater than is necessary to accomplish the city’s purpose? Held: Ordinance is OK o Interest is substantial/sufficient and statute is narrowly tailored to that interest IDs a valid problem signage Curtails no more speech than is necessary to accomplish its purpose the medium is the problem, so OK to ban Airports o ISKON v. Lee Religious organization wants to sell literature at airports, but statute restricts it Stated interest: security/crowd constraint Argument: Hudgens not a public forum Kennedy Function airport is where people come and pass thru – it is a public forum TEST: Rehnquist doesn’t care about function Public forum is one of two things: o 1. Traditional forum (time in memorial) dedicated to people Hague v. CIO o 2. Designated Public Forum (The airport fails because it’s a place for commercial activity) o Hudgens and ISKON reject the functional view don’t want to get into that City Theater o SE Promotions v. Conrad City Theater wouldn’t show Hair Public thinks it’s been designated a public forum M.Glick – First Amendment – Fried – Fall 2007 76 of 172 Gov’t doesn’t think it’s done that Held: When you’ve designated this a public forum, you can’t discriminate on grounds of content Can they undesignate? Limited Public Forum o Must only be viewpoint-neutral o Exs. Need only be suitable for all audiences What if they use the Finley rationale? Finley (NEA Case) o NEA comes up with certain guidelines for distribution of federal subsidies which take into account values such as decency, respect, public values Don’t have to be viewpoint-neutral! o We only have a certain amount of money here and we must make inevitable judgments about quality, decency, artistic interest to the community Claim would be that there is limited space (one theater) and we need to give it to people who will appeal to the most number of people and therefore fill the theater o Get rid of Hair that way Problem: o You might always be able to find people to fill the theater o The people who are willing to pay should just get in line National Parks o Clark v. CCNV No camping in Lafayette Park How to analyze: O’Brien o Fact that they were sleeping in the park had a communicative impact – (message wrapped up in the medium) o Applying the test: Within Constitutional powers Serious gov’t interest preserving the amenity of national mall Policy that serves that interest (seems iffy because we let you keep the tent there overnight) CF says NO – does not substantially prevent wear and tear given all that is allowed M.Glick – First Amendment – Fried – Fall 2007 77 of 172 Religious speech on public property o Widmar State university that makes its facilities generally available for the activities of a registered student group may not constitutionally bar a group desiring to use the facilities for religious worship and discussion Rationale: Designated Public Forum o Created a forum generally open to students o Lamb’s Chapel Local school district makes auditorium available afterhours, but restricts use for religious organizations Anyone can use it chess club, political candidates, ACLU Held: Designated Public Forum o If you open it all it becomes a DPF o If you don’t open it to all, you must come up with some accounting for what you’re doing: Some legitimate explanation for what you’ve done Maybe it’s a subsidy Maybe you’ve regulated in a content-neutral manner o Good News Club v. Milford Central School School district would not allow a private Christian organization to hold weekly afterschool meetings Held: Scalia did not decide whether the program constituted a traditional or designated public forum, but held that an exclusion of this sort would be unconstitutional viewpoint discrimination o Rosenberger You opened it up to students groups, so can’t now restrict a religious publication from using the money o Mergens No Establishment clause violation where law requires schools to open limited public forums to groups even if they discuss religion Rationale: This was a Public Forum, so can’t restrict access to anyone Public Transportation o Shaker Heights Rule against political advertising on city buses Argument: Bus is on street and street is a public forum M.Glick – First Amendment – Fried – Fall 2007 78 of 172 Therefore, this is content-specific regulation or a traditional PF Held: Court says regulation is OK o Not a Traditional PF – (no open space, meeting hall, park, street corner, or other public thoroughfare) Charitable campaigns in federal offices o Cornelius v. NAACP LDF Facts: Charities want to solicit in federal offices combined federal campaign Cornelius want to keep some groups out of this process o She comes up with a rule that says you can only collect funds for groups that don’t distribute directly to the beneficiary of the charity Homeless OK Litigating groups (like LDF) out NAACP argues it’s a Designated Public Forum o You’ve opened to all charities who want to solicit in public sphere Held: Non-public forum! o Court looked to: Evidence of intent to create a forum Nature of Property o Therefore, requirements (Perry) Reasonableness in light of purpose Viewpoint-neutrality You CAN distinguish based on speaker identity and subject matter Mailboxes o Greenburgh Not a public forum Not a traditional public forum Therefore, may be subject to a prohibition of speech o Requirements: Reasonable regulation Viewpoint-neutral prohibition gov’t regulation is not based on what is being said o Perry Rival teachers union wants to gain access to teachers mailboxes and the interschool mail system Teachers mailboxes are not a public forum Not a quintessential/traditional public forum Alternatives: o Designated Public Forum M.Glick – First Amendment – Fried – Fall 2007 79 of 172 State has opened for use by the public as a place for expressive activity Court rejects o Even though they open to some private, non-school groups, this type of selective access does not transform the property into a public forum o Even if it did, the constitutional right of access would only extend to groups of similar character o Limited Public Forum Maybe BUT regulation is OK because it’s viewpoint-neutral limits the use of the mail system not by viewpoint, but by status/subject matter Those things having to do with the school Speech by the recognized bargaining unit Schools o Tinker School tries to restrict armbands Held NO Students do not leave their 1A rights at the door o Kozinski dissent in Harper o Bethel School punishes sexually-suggestive speech at school Held: OK o Political speech vs. sexual stuff o Kuhlmeier School censors school newspaper article about pregnancy/divorce Held: OK o School not required to promote certain things o Concern about wrongful attribution – (people will think school has these beliefs) o Morse v. Frederick – (Bong Hits 4 Jesus) School punishes student for this banner Held: OK o Compelling interest in preventing drug use Hypo: M.Glick – First Amendment – Fried – Fall 2007 80 of 172 His sign said “Legalize Drugs” o May have had enough to get by, especially with Alito on the court now Not a provocative celebration of drug use o Harper – (9th Cir.) School punishes student for anti-gay shirt Held: OK o Special sociological characteristics of schools o SUM Started with speech-protective ideal in Tinker, but have walked back from that School has not (really) lost since Tinker School has become an uncomfortable midpoint between limited/complete/non-public forum Rationale: Why might schools be different? o School is a non-public, non-forum Schools meant to show certain values and to educate people, NOT to provide a forum – (functional argument) o Students required to be at school to learn BUT to learn is to discuss/talk/listen Seems like a forum after all, yet we have fairly strong measure of viewpoint control School is a forum (place for intellectual curiosity), but in 3 cases in a row, the court has decided against free speech Maybe we apply a de facto Connick test in the schools cases: o School asserting a managerial authority to maintain an atmosphere in which learning can go on vs. student’s 1A interest Bethel student’s claimed 1A interest is in low-level speech o BUT as student gets older, the managerial authority decreases and the 1A claim gets greater Library Book Removal o Pico School authorities remove books from library Held: Not OK o Makes a distinction between not buying them in the first place (which would have been OK) and removing them after you bought them (which is not) M.Glick – First Amendment – Fried – Fall 2007 81 of 172 (Brennan test) Ex. o Invitation of speaker to come to Harvard one thing to say, “I wouldn’t have invited him in the first place.” But another to renege on an invitation once given Abortion Clinics o Madsen v. Women’s Health Center o Schenck v. Pro-Choice Network of Western NY o Hill v. CO OK Noise regulations 36-foot buffer zone around front of clinic o Concern: Can’t be too large Can’t be moving Must allow people to come and go NOT OK Bubbles – (moving zones where no one could approach you) o 300 ft in Madsen NO o 15 ft in Schenck NO o 8 ft in Hill v. CO OK Gov’t Wins Regulation OK Kovacs – (Truck Speakers) TPM OK Total Medium Bans Aesthetics Airports City Theater Gov’t Loses Regulation not OK Schneider – (leafletting) Too much regulation Martin v. Struthers – (doorbells) Look to function Taxpayers v. Vincent Medium was the problem, so OK to ban ISKON v. Lee Airport is place for commercial activity, so OK to regulate – (not traditional and not designated) SE Promotions You’ve designated this, so now you can’t regulate base on content M.Glick – First Amendment – Fried – Fall 2007 Gov’t Wins Regulation OK National Parks 82 of 172 Gov’t Loses Regulation not OK Clark v. CCNV Passes O’Brien Widmar Rosenberger Lamb’s Chapel Good News You’ve created and DPF and opened to students, so you can’t now limit Religious Groups using public schools after hours (Mergens protects you from any Establishment Clause violation) Shaker Heights Not a traditional PF Public Transportation Cornelius Gov’t remands to determine whether this is VP-neutral Gov’t Charitable Program Greenburgh OK because not a traditional PF and it’s reasonable + viewpoint-neutral Mailboxes Perry Teachers mailboxes can be regulated based on status/subject matter – (NOT a designated PF) Bethel – (sexual speech not protected) Tinker – (students don’t leave their 1A rights at the door) Kuhlmeier – (concern about speech being attributed to the school) Kozinski dissent in Harper Schools Morse – (compelling interest in preventing drug use) Harper – (special nature of school) M.Glick – First Amendment – Fried – Fall 2007 Gov’t Wins Regulation OK Library Book Removal Abortion Clinics Public Subsidies 83 of 172 Gov’t Loses Regulation not OK Pico Would have been fine to never get them in the 1st place Hill v. CO Noise regulation and buffers around the front entrance to the clinic are OK Moving buffer zones are NOT OK, until we get to small zones (8’) in Hill v. CO Finley Limited amount of money, so we can take into account decency/values FCC v. League of Women Voters Can’t say “no editorializing” if you take our money Forbes Public TV has editorial content – (without it, we just wouldn’t have the debate at all) Speiser Loyalty oath necessary for tax deduction NO NEXUS Rust Gov’t allowed to have a point of view – (mere prioritizing) Velazquez (Lawyering is different) Taxation w/o Representation Gov’t can validly choose to subsidize certain groups Public Subsidies of Speech Finley (NEA) o OK to be viewpoint-specific in distribution of limited funds Can take account of decency/values/interest to community AETC v. Forbes o Debate by Arkansas public TV station keeps out minor party candidate o Held: OK Public TV station and editors have editorial content FCC v. League of Women Voters o Gov’t giving money to public TV and saying do what you want, BUT no editorializing if you accept our money Gov’t gives a little money and using that as a hook to cut down on all editorializing o Held: M.Glick – First Amendment – Fried – Fall 2007 84 of 172 Invalid seems like a penalty Speiser v. Randal o CA tax deduction available to all veterans unless they won’t take a loyalty oath o Held: NO Unconstitutional Conditions o No constitutional right to tax deduction o BUT can’t be taken away from you because you ARE exercising a constitutional right Principle: o You’re not entitled to a benefit, but it can’t be denied to you for exercising your 1A right This is just like Designated Public Forums not constitutionally entitled to the forum, but if it has been designated, you can’t be excluded from it in a content- or viewpoint-specific way Rust v. Sullivan o Facts: Law cuts off public funding if you discuss abortion Doesn’t say you can’t do it Just says that if you do and you want federal funds, you must be able to adequately separate the public-assistance part of your program from the part where you discuss abortion o “Not on our Nickel” o (This sort of separation wouldn’t have been possible for a public TV station in FCC v. LWV) Can’t be much less viewpoint-neutral The gag rule is imposed or not imposed based on what you say o Held: OK Mere prioritizing who to give money to in a government program o Gov’t can choose to fund a program to encourage activities believed to be in the public interest Taxation w/o Representation o Facts: Tax rules: 501(c)(3) o Can’t lobby o Tax-exempt from income o Donations are tax-exempt to donors 501(c)(4) M.Glick – First Amendment – Fried – Fall 2007 85 of 172 o Can lobby o Tax-exempt from income o Donations ARE not tax-exempt for donors o Argument: TWR claims the law is content-specific discrimination because if you want 501(c)(3) status, you can’t lobby o Held: Law is OK This is a subsidy! The gov’t can validly choose to subsidize certain groups/charities o Result: Groups like NRA/NAACP/ACLU compartmentalize into groups that lobby and those that do not Legal Services Corp. v. Velazquez o Facts: Gov’t is tired of getting sued by people who they are financing, so they condition public funding on groups who don’t try to sue to hold welfare programs unconstitutional Can sue on behalf of individuals under a program, but can’t sue to invalidate the whole system o Held: Court goes the other way from Rust Rust subsidy depends on not saying X, but OK Velazquez subsidy cannot depend on not doing Y Rationale: Lawyering is different o No alternative avenue in the law field – (can’t get some services from A and other service from B Gov’t is not the speaker here o Gov’t not using private speakers to transmit its own message lawyer should be free to have own message Adversarial relationship o Rust – not an adversarial situation with gov’t on the other side o Velazquez – gov’t trying to silence its opponent and we don’t like the idea of an adversary dictating the rules of the contest Contrasting Outlooks o Kennedy Gov’t is allowed to be view-point specific if: It’s speaking itself o AETC o Finley If gov’t is hiring someone to speak for it o Rust M.Glick – First Amendment – Fried – Fall 2007 86 of 172 o Scalia Gov’t not speaking itself when giving grants nor hiring grantees Public Employment and Contractors Idea: o Just as gov’t has no obligation to subsidize speech in a public forum, maybe gov’t has no obligation to subsidize/employ/tolerate speakers Pickering o School fires teacher who makes nuisance in school board meeting and writes editorial about the way schools are run o Argument: Holmes no constitutional right to be a teacher He has a right to say what he wants, but doesn’t have a right to be a schoolteacher o Held: NO Gov’t interest do not outweigh Pickering’s speech rights o Teachers most likely to have informed opinions about school actions, so essential to have them speak out without fear of retaliatory dismissal (This looks like Speiser) Connick v. Myers o ADA is fired for making office trouble Conduct she engaged in was not punishable if she was a private citizen, but could be punished as an employee o Held: OK BALANCE: o Gov’t’s managerial claim vs. Individuals’s 1A claim Can the managerial/regulatory powers of gov’t justify the burdens on free speech? Does this gov’t action require this degree of 1A imposition? o We want some nexus between the regulatory power you are asserting and the 1A right you are balancing If gov’t is acting OUTSIDE it’s capacity as regulator of speech, then they have more leeway o Applied here: Connick seems like an appropriate exercise of managerial power and 1A rights aren’t that urgent – (don’t have much to do with the public interest) M.Glick – First Amendment – Fried – Fall 2007 87 of 172 Trivial 1A right balanced against strong right to manage DA’s office o Think of other contexts where this is applies Nollan – (property context) CA coastal commissioner says you can improve your beachfront house, but you must give public a right of way across your beach We see this is an illegal blackmail! o No nexus between regulation and exaction Speiser No nexus between tax deduction and loyalty Schools School asserts managerial authority to maintain an atmosphere in which students can learn Connick Test Gov’t Managerial Claim Gov’t claiming right to conduct its business/regulation as necessary Individual 1A Claim Individual claiming right to speak and not be disciplined because of viewpoints express in job (Matter of private concern to employer) (Matter of public concern) Looking for some nexus between the speech the government is trying to silence and the management interest the gov’t claims Regulation Exaction Rankin o Clerical employee in county office discharged for making comment about President Reagan’s attempt assassination o Held: NO Applies Connick o Matter of public concern firing violates 1A Speech was as citizen, not employee o Waters v. Churchill Establishes that it’s the EMPLOYER who gets to determine what is a matter of private concern must reasonably believe M.Glick – First Amendment – Fried – Fall 2007 88 of 172 Garcetti o ADA fired after complaining to his superior about insufficient affidavit for a search warrant o Held: OK – (fireable offense) Court applies Connick: o Is he disturbing the operation of a particular gov’t unit or performing the function of a proper citizen? Court concludes that his complaint was only internal and the public wouldn’t have known about it anyway o Public’s right to know if not affected, so that part of the equation is balanced out Hatch Act Cases OK o Hatch Act says that if you are a civil servant, you can’t engage in certain political acts Rationale for law: Interferes with managerial function of gov’t Destroys the confidence of the public if they see civil servants raising money and supporting political causes o Cases United Public Workers v. Mitchell Upholds Hatch Act – “Congress can regulate the political conduct of gov’t employees within reasonable limits even though the regulation trenches to some extent upon unfettered political action.” United Civil Service Comm’n v. Nat’l Ass’n of Letter Carriers Defer to congressional judgment that partisan political activities by federal employees must be limited if gov’t is to function properly and elections are to run fairly Patronage Cases o Hiring/Firing based on political party o Elrod / Branti TEST: Is party affiliation an appropriate requirement for the effective performance of the public office involved? o Lower-level civil service employees can’t be fired for party affiliation The court constitutionalized civil service reform here o Exception: High-ranking, policymaking jobs can be subject to patronage If you ARE doing a job where political loyalty is relevant, then we’re OK with patronage why the public voted in the last election M.Glick – First Amendment – Fried – Fall 2007 89 of 172 Rationale: o No nexus! Party has nothing to do with these jobs! Once again, you don’t have a right to the job in the first place, BUT you do have the right to not be dismissed for irrelevant reasons Speiser / Pickering Scalia dissent: NO o Patronage has been a part of our country since the founding it can’t violate the 1A o If you don’t like it, go through the legislature o Rutan Extends Elrod and Branti to employment decisions short of hiring and firing Contractor Cases o Contracts are a big part of patronage o Court applies patronage and employment speech rules to contractors Umbehr Court extends Pickering line to independent contractors can’t have contract pulled for speech on a matter of public concern o Balance gov’t interest in managerial authority against contractor’s 1A right O’Hare Court extends Elrod line to independent contractors can’t be removed from list based on lack of political support for the gov’t giving the contracts o Just because you’re outside the formal employment relationship doesn’t mean that you can be cast aside from your low-level role just for your political views Contractors Pickering Umbehr Can’t have contract pulled for speech on a matter of public concern Elrod O’Hare Can’t be removed from contractor list for patronage reasons M.Glick – First Amendment – Fried – Fall 2007 90 of 172 AVENUES OF FIRST AMENDMENT CHALLENGE Vagueness What might be tolerable vagueness in civil context might not be tolerable in the 1A regulatory context Two Concerns: o Censorship Statutes that give too much discretion to gov’t on what it will prosecute, punish, or regulate Not feasible to review o Chilling Effect Vague statute chills ALL speech because people are afraid to speak because they don’t know the consequences Cases o Coates v. Cincinnati Bans assembly “in a manner annoying to persons passing by.” No standard of conduct is specified at all Obvious invitation to discriminate o Lakewood v. Plain Dealer Publishing Co. Licensing statute includes “other terms and conditions deemed necessary and reasonable by the mayor” Held: Facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech o Want state to make the limits that it claims are implicit in its law explicit by textual incorporation o Thomas v. Chicago Park District Want grounds that are reasonably specific and objective and do not leave the decision “to the whim or the administrator” o Cox v. NH Want provision of objective standards for the licensor to administer o Freedman v. MD Need procedural safeguards in licensing schemes can’t only allow for timely, costly, impractical review The licensing decision can’t have a “finality effect” o Opposite Finley OK to be vague in the subsidy context o Gov’t acting as patron, not as sovereign Overbreadth Brings in all sorts of things that CANNOT be regulated even if some of the stuff CAN be regulated Dilemma: M.Glick – First Amendment – Fried – Fall 2007 91 of 172 o Why is it that a statute that covers some things it may cover and some things it cannot cover cannot at least be constitutionally applied to the things it CAN cover? Answer: It chills speech! o We’d prefer to put the onus on the gov’t to get it right the first time rather than make the speaker guess at what is allowed and then fight a court challenge afterwards o The line between what can/cannot be regulated may be doubtful so we want to get the sloppy statute out What this means: o Exception to the normal rules of standing o We are going to allow even a person who is engaging in speech that COULD be proscribed to raise the objection that someone else could raise in order to have the statute not apply A arrested Statute COULD constitutionally apply to A Statute is overbroad We’ll let A argue it’s overbroad as applied to B and C, even if A could be nailed under it Cases o Gooding v. Wilson Law swept in too much protected speech alongside the fighting words proscribable under Chaplinsky overbroad o White concurrence in RAV Law was overbroad because not limited to fighting words Covers fighting words, but also words that cause embarrassment, distress, etc. o Broadrick v. OK Extends the requirement to “substantial overbreadth” “We believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Later applied in: Ferber – (NOT substantially overbroad OK) o “legitimate reach dwarfs arguably impermissible applications” Ashcroft – (YES substantially overbroad Not OK) o Broadrick met statute struck down Facial and “As Applied” Challenges Facial: o Statute is unconstitutional and it doesn’t matter who it’s applied to Can’t apply to anyone As Applied: M.Glick – First Amendment – Fried – Fall 2007 92 of 172 o I don’t know about the whole population, but you can’t apply it to me Can’t apply to me Prior Restraints Why bad? o (Why should rule which allows an unlawful publication to be disseminated be allowed to be distributed?) o Two Worlds Prior restraint Allows gov’t censorship w/o public knowing what the harm was Harm is never done o Pre-emption! No Prior restraint Public is aware of the censorship and can respond to it Harm is done o Punishment (Our criminal law is focused on punishment) We don’t address pre-emption because that takes place before the deed is done o The victim of Prior Restraint is the Public never get to see this Public gets “punished” but hasn’t done anything wrong o Prior Restraint is a lot like C&PD in Brandenburg Presumption against PR because we’re nervous that we’ll overestimate the dangers o Counter: It’s a good idea that D should know what’s legal and illegal he might like to actually know if he’ll be punished or not Cases: o Near v. MN: Newspaper is enjoined from publishing an article about a gangster and gov’t corruption MN law allowed injunctions for malicious, scandalous and defamatory newspaper articles (Today, it would probably be unconstitutional under NY Times) Held: Injunction set aside o Burden should not be on the publisher to prove that the charges they want to publish are true and published with good motive o 1A guarantees “immunity of the press from previous restraint dealing with official misconduct” o Pentagon Papers Court pretty well split: Black/Douglass PR is never OK M.Glick – First Amendment – Fried – Fall 2007 Vagueness Overbreadth 93 of 172 o Not even for nat’l security Brennan/Stewart/White/Marshall sometimes maybe, but not on this occasion Harlan/Burger/Blackmun cool with it o The last 6 justices would be OK with deference to the executive: Maybe / narrow / if war declared (probably wouldn’t allow published details about troop movements) Rationale: Worried about executive run amok o Using a notion of inherent executive power to censor everything and go nuts o We won’t let the judiciary do the executive’s dirty work END: Rule about no Prior Restraints, but with a very narrow exception Possible exceptions: o Narrow national security exception o Obscenity not depriving the public of anything worth seeing o Commercial Speech if fraudulent/misleading or another category which escapes Central Hudson, court might allow PR Argue either: Gives gov’t too much discretion to censor me Since lines are unknowable, it chills my speech Argue that it chills speech because it covers so much and I have to guess if it’s valid as applied to my situation There must be “substantial overbreadth” after Broadrick Facial Challenge Statute is unconstitutional and it doesn’t matter who applied to As Applied I don’t know about whole population, but you can’t apply to me Prior Restraint Argue that public is harmed by never getting to see this; allowing gov’t to censor w/o public knowing what the harm was (be careful of possible exception – Nat’l Sec, Obscenity) M.Glick – First Amendment – Fried – Fall 2007 94 of 172 RIGHT TO NOT SPEAK Thinking about the Speech dimensions In each case, you’re moving AWAY from the paradigmatic case Brandenburg o Brandenburg regulates PURE SPEECH Speech to Action o Speech Brandenburg is action, but no one is saying anything about it The suppression of action is completely devoted to and explained as a suppression of speech o Law is not unrelated to the suppression of expression Flag-burning action but court bans because of the expressive element o (O’Brien is the dividing line) o Action Barnes – (we’re regulating conduct) Speech to Commerce o Speech VA Board of Pharmacy / 44 Liquor Mart Cases are quite close to the heart (speech) because they operate through keeping people ignorant o Related to the suppression of speech, not of commerce Hurt ideas Thompson v. Western States Pharmacies Forbade advertising of compounded drugs o Claimed to be part of a regulatory system court rejects Nike Breyer dissent focuses on the speech aspect of the letter o (Central Hudson divides this) o Commerce Florida Bar Forbade sending personalized letter within 30 days of accident o We see this as a regulation of commerce OK Ohralik Ambulance chasing involves risk of coercion Speech to Silence Speech to Association M.Glick – First Amendment – Fried – Fall 2007 95 of 172 2 Competing views of Constitutional Rights Complete Constitutional Order Positivist Account – (Scalia) Generalized Liberty Right Notion of Constitutional and legal order such that concepts in the Constitution apply to everything in the legal order People have small catalog of positive Constitutional rights If you can’t find your right in one of the listed rights, then you don’t have it How this plays out: How this plays out: EqPC and DP are generalized individual You need to find one specific right if you rights that say that gov’t may not interfere want to enjoy protection with citizens in any sense unless there is some sort of reason If no reason, then they can’t interfere with my liberty o I don’t even need a name for the liberty I just have a generalized liberty right o Then, in some cases, I will be granted specific rights that rise above this original generalized plane Model: Florida: The whole state is flat and lies 6 inches above sea level (generalized right) and there are some mountains/hills (1A, 14A) that rise above the generalized plane Model: Only the hills and mountains matter Question: Is the Right of Silence protected in the Generalized Liberty Right or is it incorporated in our specific right to free speech? Why is this about the 1A? Silence as expression Not saying the pledge IS speech o Compelled speech = prohibition of silent expression o Gov’t is forcing you to speak in one of two ways: Say the Pledge (makes you a hypocrite or a liar) Remain Silent and yet still “say” something o You shouldn’t have to declare yourself don’t like putting you in a position where you have to pick a side/make a speech M.Glick – First Amendment – Fried – Fall 2007 96 of 172 Analogy: 5A right against self-incrimination o Can’t put us into some position where we’re either a hypocrite or a criminal 1A: speak (hypocrite) or silence (criminal) 5A: guilty (truth) or perjurer (lie) Freedom of the Mind DP right o Generalized liberty clause idea is that we have a right of personal autonomy and integrity “I am the master of my own life and no one should make me say or believe something that I don’t” Barnette o Jehovah’s witnesses refuse to say the Pledge of Allegiance o Held: Rights of free speech and worship preclude the state from making the flag salute compulsory 1A guards the individual’s right to speak his own mind “No official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Wooley v. Maynard o New Hampshire License Plate says “Live Free or Die” Citizens challenge don’t want to be a rolling billboard for political slogan o Held: Court strikes down mandatory license plate rule (Same “silence as expression” rationale) Either you say “Live Free or Die” OR you take the affirmative step of covering it up and in doing so, you make a statement o You shouldn’t have to make that affirmative step “Right of Reply” o Tornillo NO Requirement that newspaper publish reply by victim of publication Held: NO o By allowing a right of reply, you chill what might be said in the first place Implication: o Not only are you making the broadcaster speak (via mandating the response), but you’re also altering they speech they do want to make You have both: Altered speech o Hurley M.Glick – First Amendment – Fried – Fall 2007 97 of 172 o Barnette Prohibited Speech o Might say, “This is my message and because you’re forcing me to alter it, I won’t speak at all.” Better to not speak than to speak what you don’t believe o Red Lion YES FCC Fairness Doctrine for TV If you give an editorial point of view on your station, you must give equal time to your opponents Held: OK Rationale: o Airwaves are scarce resource, so gov’t can regulate as a public trust for the people in the name of public ideals o This furthers public debate goal of 1A McIntyre o Ohio election law requires you to put your name on any election material o Held: NO Right of anonymous pamphleteering is a respected tradition o Federalist papers Burdens/chills speech to require you to put your name on it o BUT Later held constitutional in BCRA § 311 “I’m Hillary Clinton and I approve this msg” PG&E o California forced PG&E to let other groups use the excess space in their mailing o Held: NO Tornillo o Penalizes the expression of the speaker’s point of view and forces speakers to alter their speech to conform with an agenda they do not set It’s not likely that any rational reader would attribute to PG&E the views of the non PG&E speakers, but we don’t allow it for the distortion rationale Pruneyard o Shopping center forced to open to allow leaflettors within its corridors o Held: M.Glick – First Amendment – Fried – Fall 2007 OK 98 of 172 Not likely to attribute the leafletters message to the shopping center’s owners or lessees Not like a mobile billboard or being compelled to promore particular gov’t speech Turner o FCC rule requires cable provide to offer/show the programs of the local public TV station (and in lowest channel numbers) and to show broadcast TV stations that are available in that market on the same # as they show up on the broadcast dial Cable companies dislike this because it uses up their lowest numbers and helps their competitors Argue Tornillo o Held: Not compelled speech action! Content-neutral regulation and with valid/substantial gov’t interest o If cable doesn’t carry these, the 60% of households who have cable won’t get it and it won’t be worth advertisers’ money to spend on these things, so they would diappear CF Disagrees: This is NOT content-neutral o The gov’t interest is based on the importance of local programming/public TV that’s content regulation o Why gov’t wins in Turner but loses in Tornillo: Tornillo says that the media has a 1A right to not be made to say things you do not wish to say Kennedy distinguishes Turner by saying that Turner is ACTION Regulatory conduct regarding how you conduct your business claim that this is content-neutral, so the regulation is fine o Thinks that if you suppress speech in a contentneutral manner, then you’re fine But that can’t be right Schneider o Similarly, if you force speech in a content-neutral manner, that should be fine too Says O’Brien is inapplicable because it relates to the suppression, not the promotion of speech (CF thinks this is wrong) The conduct he was being forced into was speech! Plus, this claim that content-neutrality means you are exempt from scrutiny is wrong o If the law in Tornillo had said, “In any market were there is only one daily newspaper, that paper must M.Glick – First Amendment – Fried – Fall 2007 99 of 172 devote one column a week during election season the views of anyone running for office.” contentneutral, BUT a clear violation of Tornillo Kennedy simply thought that TV should be made available to the largest number of people and this way seemed less burdensome to him o Alternative Explanation VALUES – (Breyer/Sunstein) Maybe there aren’t 1A rights against the gov’t, just 1A values: Free public debate / variety of views These public values can supercede the media’s 1A value: “variety of views” > “editorial control” o Turner claims 1A right not to be able to put on someone else’s speech, but Breyer might say that you only have a delegated right on behalf of the public to participate in this great debate o Importance of Turner Signal of constantly increasing regulation of media could lead to more regulation of the internet Compelled Commercial Speech o OK SEC Mandates disclosure in stock prospectuses and proxy statements – (no right to remain silent) FDA Requires prescription drugs and food labeling Glickman Stone fruit advertising contributions OK part of a larger regulatory scheme o Just paying money into a fund; aren’t forced to say “I approve this message.” Johanns Mandatory contributions to “beef for dinner” ads OK because gov’t doing the speaking o NOT OK United Foods Struck down mandatory contributions from mushroom producers because that was the ONLY thing in the regulatory scheme M.Glick – First Amendment – Fried – Fall 2007 100 of 172 When right to silence CAN be invoked When right to silence CAN’T be invoked When we don’t want to make you choose whether to speak or take affirmative step of remaining silent Barnette Wooley v. Maynard Right of Reply (Broadcasting) Red Lion When the speech wouldn’t be attributed to you Pruneyard (but yet PG&E) Right of Reply (Newspaper/Print) Tornillo When forced to include info from competitor PG&E When forced to identify yourself McIntyre – (but yet BCRA) When it’s a respected tradition to remain silent McIntyre When speech is the ONLY thing the regulatory scheme is concerned with Johanns When you could argue that it distorts what you are going to say (or silences you) Tornillo / PG&E When it’s part of a large commercial regulatory scheme Glickman / Johanns M.Glick – First Amendment – Fried – Fall 2007 101 of 172 FREEDOM OF ASSOCIATION Right to Associate Just like gov’t can’t force you to say what you think about something (of force you to say you don’t think something – saying something in your denial), we can’t force you to disclose who you associate with Why is this like speech? o Series of possible rationales: Speech right seems to blend into a generalized right about freedom and autonomy Association is a way of being heard crucial to speech Harlan – need association to engage in speech: o Debate o Persuasion o Promotion of message Association is itself an expression The very fact that you’re associating expresses something NAACP v. Alabama o Alabama demands that NAACP reveal all of its members o Held: NO 1A protects association as it protects speech Like a prior restraint if people know their association might be disclosed, they might not associate expressively in the first place Button o Law tries to say “you may not band together to offer legal services” o Held: NO association If the banding together is a political association for the purpose of litigation, that’s protected can’t regulate it o Association for litigation may be the most effective form of political association No substantial state regulatory interest Dallas v. Stanglin o City of Dallas banned social dancing between teens and adults in dance halls challenged by over-age man who said right to associate o Held: Law is OK no right to associate in the abstract No generalized right of social association that includes chance encounters in dance halls Freedom of NAACP association does not equal Freedom of Association of 15 year olds to dance with adults Action as Association o Claiborne Hardware - (association OK) NAACP organizes boycott of white merchants in Mississippi Merchants sue for economic losses M.Glick – First Amendment – Fried – Fall 2007 102 of 172 Held: NO boycott is an association for political purposes o May be action, but that action is expressive and we will protect it o Int’l Longshoremen – (association not protected) Union gets in trouble for boycott of Soviet grain as political protest Held: Fine to punish o This was a strike, not a political discussion o Conduct was designed not to communicate, but to coerce Right of NON-Association Argument: o Freedom of Association (provided in NAACP v. AL), also involves a right not to associate (just as Tornillo says freedom of speech is also freedom not to speak) o No forced inclusion/association If I can’t refuse, then the right to associate means nothing If any one can associate with us, our association is meaningless Cases where compelled association was struck down: o Abood Union levies mandatory fees on its members and part goes to political communication Held: OK to levy fees for collective bargaining, but NOT for speech purposes Rationale: Just as you have right to associate, you have right not to associate o Analagous to Barnette Right to speak your mind Right not speak what is not on your mind o Hurley Gay Irish parade comes under fire for violating state antidiscrimination law Held: 1A right trumps Anti-Discrimination Law o Expressive association of people who are expressing what it means to be Irish Since it’s their expression and association, they can say what they are expressing o Dale v. Boy Scouts of America Do the Boy Scouts have to associate with an openly gay scout master? M.Glick – First Amendment – Fried – Fall 2007 103 of 172 Held: NO o Boy Scouts (unlike Jaycees) are an expressive association – (morals/culture/way of life) To force them to include all-comers would be to affect their expression o Goal: Want to claim your group is more ideological and subscribe to a certain set of values inclusion of the person might show that certain behavior/values are appropriate Stevens Dissent: o This is NOT part of your message Heterosexuality is not a part of your oath or handbook or culture o Counter Not for court to decide what your message is Rehnquist: Deference to an association’s assertions regarding what their message is Once you’ve determined that it’s an expressive association, then part of your 1A association right is to determine what your message will be and to determine what would impair that expression Cases where compelled association upheld: o Roberts v. Jaycees State anti-discrimination law compels them to open to women Held: OK Brennan (Majority): o Anti-discrimination is a compelling state interest and this law is narrowly tailored O’Connor (Concurrence LAW) o Two kinds of association enjoy full protection: Expressive and Intimate This does not qualify it’s commercial/networking (no expression) Jaycees are not an organization with a message compelling them to be associate with women does not distort their message because there is none o What is an expressive association? Goal is to express some goal/voice/issue M.Glick – First Amendment – Fried – Fall 2007 104 of 172 Expressive in joining by itself, though not necessarily vocal (Once the law gets to core speech or expressive association, the justifications have to be higher) o NY State Club Assn’s v. City of New York Any club which rents out its facilities, has more than 400 members, and serves meals must admit women Held: OK this is a commercial endeavor, so compelled association is OK Testing other kinds of associations: o HLS expressive, but also commercial o Church-run hospitals could be expressive o Fried’s reading group intimate association o Rumsfeld Challenge to Solomon Act, which cuts federal funding to schools that do not allow military recruiters onto their campus Schools don’t want to let recruiters in because of “Don’t Ask, Don’t Tell” Claim that this is forced compulsion with discriminatory entity (against their right of free association) Arguments: YALE o Want to say that having the military recruiters is like having a gay scoutmaster or gay group in our parade compels us to associate against our message HARVARD o Statutory Interpretation argument We’re not violating the Solomon Act! We ARE letting the military in on the same grounds as other employers: if they follow our policy Our policy is simply a LGA that is applied equally to firms, public interest, and the government o Why do this? Harvard realized Yale’s argument might be a double-edged sword could be used by institutions of higher learning that WANTED to keep blacks/women out Winning on this ground would be a blow to anti-discrimination laws Held: Law is OK M.Glick – First Amendment – Fried – Fall 2007 105 of 172 CF: o This is pure regulation of action and it’s fine because it’s content-neutral Not speech / not assocation o Rotary Club California antidiscrimination law Held: Law can be applied without infringing on the Rotary Club’s associational right o (Court notes that it will make a careful inquiry into the objective characteristics of the particular relationships at issue) o Southworth Challenge to a public university’s requirement that students contribute to a student activity fund used in part to support controversial student advocacy organizations Held: Compelled contributions are OK Rationale: o Abood limits compelled contributions to speech that is germane to the organzation’s purposes BUT tough to say in an academic context what speech is germane to the organization o Higher education given more leeway o Also Pruneyard – (shopping center must associate with leafletters) Glickman – (stone fruits) and Johanns – (beef) When right to not associate CAN be invoked When right to not associate CAN’T be invoked Where you’re being asked to associate for something that is not germane to the purposes of the organization Abood When you don’t know what speech is germane to the organization’s purposes Southworth Where the organization actually has a msg Hurley Dale Where there’s no message Jaycees Rotary Club – (will make careful inquiry) Where it’s a commercial association NY State Clubs When the law is regulating action, not expression Rumsfeld M.Glick – First Amendment – Fried – Fall 2007 When right to not associate CAN be invoked 106 of 172 When right to not associate CAN’T be invoked When no one will attribute the association as meaning anything Pruneyard When it’s part of a commercial association that is part of a larger regulatory scheme Glickman Johanns POLITICAL ASSOCIATION Seems to be the paradigmatic case for association core political reasons o Nor commercial, not silent TEST o Special Kind of Strict Scrutiny: Can’t regulate the right of political parties to associate in any unduly burdensome fashion Cases where the political party or candidate wins: o Anderson v. Celebreeze Law creates high barriers for 3rd party to get on POTUS ballot Held: NO Rationale: o (CF understands it’s anti-democratic, but why 1A?) No right to vote but it’s a fundamental right Early ballot access cases were EqPC cases BUT Anderson goes for 1A o Act of voting is a kind of expression/association Anderson’s party wanted to associate for the purpose of electing him statute unconstitutionally limited opportunity for independent-minded voters to associate Elections are an arena where people associate in order to act o Another possibility: Ballot is a metaphysical public forum therefore only TPM restrictions can be put on it o Tashjian Connecticut law mandates CLOSED primaries Held: M.Glick – First Amendment – Fried – Fall 2007 107 of 172 NO political assn and if they want to allow independents to associate with them, they have that right o Can’t keep you from associating with people you want to associate with o California Democratic Party v. Jones California law mandates OPEN primaries Held: Can’t force you to associate with those they don’t want to associate with o Dale (for political association) o GOP v. White Minnesota code of judicial conduct prohibits candidates for judicial office from announcing views on disputed legal or political issue Held: NO o Burdens core political speech o Law not narrowly tailored to meet the state’s claimed compelling interest (impartiality) Cases where the gov’t wins: o Burdick v. Takushi Hawaii bans write-in voting Held: OK – (court does NOT apply strict scrutiny) o The restriction is seen as “reasonable” and “nondiscriminatory” so the court is only looking for “important regulatory interests” o Timmons Ban on fusion candidacies Held: Not a “severe” burden no strict scrutiny o Clingman Semi-closed primary: political party may invite only its own party members and voters registered as Independents to vote in its primary Held: (goes against Tashjian and CA Dem Party) The only people who are limited are those who have already committed to a party M.Glick – First Amendment – Fried – Fall 2007 108 of 172 CAMPAIGN FINANCE The Apparatus CORE: o Two main goals: Limit contributions Eliminate corporate/union contributions o The rest of the structure should be viewed as ways to accommodate those limits and avoid circumvention of them 3 Major Dimensions Contributions Made by citizen to candidate What someone makes to someone who will speak Expenditures Whatever candidate spends in order to speak – (buy ads / print leaflets / fly to speech) [Subject to Regulation] [Full Protection] Hard Money – (FederaL) Soft Money Contributed to a candidate of party subject to source and $$$ limits set up by law Money in excess of amount allowed to contribute to federal campaigns – (said to be for party-building and GOTV) Retains its character such that if hard money is contributed to a 501(c)(4), the 501(c)(4) may go on to contribute to a campaign provided it retains its hardness (limits) Taints the whole pool once you accept it (money above the limits), you’re out and can no longer contribute anything to a candidate Strategy: set up 2 organizations – (one is only hard money and the other is soft money akin to Rust) Independent Expenditures No coordination = No concern This is just regular speech [Protected] Coordinated Expenditures Expenditures which an organization other than the candidate makes, but are coordinated with the candidate – (agreement on timing, content, etc.) [Counted as Contirbutions] M.Glick – First Amendment – Fried – Fall 2007 109 of 172 Other segments: o Corporate Contributions Tillman Act (1907) forbade corporate contributions to candidates Smith-Connolly Act (1943) extended this concept to labor unions (akin to Abood) Can’t use general treasury money CAN set up separate PACs – (voluntary contributions from just our membership) o Rule: Can only submit from Union members or from corporate employees/shareholders – (must be limited in some way) o Bundling Way to get around individual contribution limits $2200 to candidate / $5000 from PAC BUT you can go around to your friends and collect for the candidate Only giving him $2200 yourself, but getting “credit” for much more o 501(c)(3) vs. 501(c)(4) 501(c)(3) Fully charitable organizations – (church/foundation) No income tax on earnings + donations are tax-deductible o Forbidden from electioneering 501(c)(4)/527 Social improvement orgs – (Swiftboat / Move On / NRA) Exempt from taxation on donations themselves, BUT donors do not receive preferential tax treatment o CAN be active in electioneering If hard money can spend however they want If independent they’re fine spending however they want o Millionaire Candidate Nothing you can do to limits that person regulation of expression endures strict scrutiny o Public Funding If you accept it, then you must accept expenditure limits SCOTUS is OK with this o Express Advocacy Introduced in 1974 and tightened in McC-Fein Refers to advocacy that clearly refers to an identified candidate for federal office and made within 60 days of general election or 30 days of primary Applies to ads for or against a particular candidate o Ballot Measures M.Glick – First Amendment – Fried – Fall 2007 110 of 172 Court has found limits on contributions to ballot measures to be unconstitutional because there is not the same state interest in avoiding corruption No candidate Bellotti o SCOTUS throws out state prohibition on corporate contributions/expenditures wrt referenda Berkeley Rent Control o SCOTUS throws out limits on amount individuals could contribute to an organization defending a ballot measure The seminal cases Buckley v. Valeo o Challenge to FECA Ct of Appeals had applied O’Brien, but SCOTUS finds it inapplicable here o Holdings: OK to cap contributions 1A interest in supporting a candidate but the amount of money given doesn’t significantly change that support interest More likely to lead to corruption Expenditure limits illegal Amount of $$$ directly correlates to speech Seen as less corruptible Independent expenditure limits struck down Equalization rationale may be noble, but it’s unconstitutional Public Financing OK McConnell v. FEC o Challenge to McC-Fein o Holdings: Soft Money ban upheld for anti-corruption rationale Differential access Parties seen as mere pass-thru contribution limits OK Issue Ad ban is constitutional OK to regulate out unions/corporations The Policy Crucial Distinction: Contributions treated differently than Expenditures o Dissenting views: White – (all is fair game) Doesn’t make any sense to divide the two we can regulate BOTH Scalia/Thomas/Rehnquist – (none is fair game) Stupid line we are drawing we can regulate NEITHER o Two reasons we split: M.Glick – First Amendment – Fried – Fall 2007 111 of 172 Contributions are more like conduct than speech Expenditures are the very heart of the 1A o Much stronger interest in protecting expenditures because they’re more akin to speech Contributions are not as big a concern o Definitely limiting your expression, but not in the same fundamental way o Distinction: Expenditures = the speech Contributions = only a measure of support o Counter Contributions are still a : Message to candidate Message to other like-minded persons that you associate o Right to associate in a material way with other likeminded persons BUT contribution limits fail O’Brien o O’Brien requires that the regulation be “unrelated to the suppression of expression” The interest in regulating the conduct here arises in some measure because the communication is itself thought to be harmful/effective Government interest in corruption and the appearance of corruption wrt contributions (concern not as great with expenditures) Sufficiently important interest and employs means closely drawn to avoid unnecessary abridgement of associational freedoms o Cases Randall v. Sorrell Court invalidates Vermont contribution limits as being too low Rationale: o Not a valid corruption rationale at these levels Nixon v. Shrink Missouri $1000 limits were just fine o Contribution limits will survive if “closely drawn” to a “sufficiently important interest” o Not so radical as to render political association ineffective o Relation to Coordinated/Independent Line Coordinated expenditures can be regulated because there’s a similar concern about corruption M.Glick – First Amendment – Fried – Fall 2007 112 of 172 Coordinated speech is seen more like a contribution o (just a proxy for a donation; instead of exhausting your own funds, you get to use/control someone else’s) Contribution limits are meaningless if you can’t limit in this regard Electioneering Communication o McC-Fein bans advertising advocating a clearly identified candidate within the window before an election Expands on FECA’s “magic words” ban Rationale: Contribution limits are meaningless unless we limit express advocacy as well o Even uncoordinated express advocacy is seen as a contribution fear of corruption/appearance thereof o Only applies to groups who take union/corporate money Leaves out a tremendous amount of independent and entrepreneurial electioneering stuff George Soros Factor o Wealthy individual can blanket the airwaves with whatever he wishes (as long as uncoordinated) and nothing in the legislative process prevents that o You can spend all you want whenever you want as long as you’re uncoordinated o Wisconsin Right to Life Feingold running for Senate and ad tells him to cut it out on judicial nominees Issue Ad Refers to a clearly identifiable candidate Held: If there’s any other reasonable interpretation of the message other than an appeal for a vote, then it escapes the regulation o (seems easy) o So long as there’s any possibly interpretation that the ad is not advocating a vote for/against a candidate, the ads can be fine Basically overruling that part of McConnell and eviscerating that provision of McC-Fein If you are discriminating inappropriately, you have two choices: o Can discriminate against all groups o Can give up and discriminate against none Court chooses to give up in WRTL Debating the “Equalization Rationale” o Idea: M.Glick – First Amendment – Fried – Fall 2007 113 of 172 OK to restrict voice of some to enhance the relative voice of others when it comes to an electoral contest Has been rejected by the court o PRO – (Dworkin) We should have equality of views leveling the playing field is legitimate The amount of money in now takes away from the legislature’s ability to do its job and therefore hurts democracy Role of Citizens Equalization Rationale focuses on citizens as judges, but neglects citizens as political actors o Expenditure limits are about the ability to command attention for one’s views o Citizens should be free to command equally the attention of their fellow citizens (CF disagrees) Bowman (UK) Limits on expenditures to procure election of a candidate o Ct acknowledges the equality rational, but believes that only allowing citizens $5 is carrying it too far Ackerman Yale Solution 2 kinds of money: o Green money – for everything else Spend as much as you can earn o Blue money – just for politics Distributed by the gov’t to each person equally Can give to candidates and can use together with others o CON Not gov’t’s business to say what is too much or that we should all be equal Let them subsidize poorer voices! Lowering voices might put you at a disadvantage against long-time and well-known opponents Why pick on Corporations and Labor Unions? o Cases Austin Corporate spending on behalf of candidate could be prohibited o Corporations should not be allowed to engage in electioneering communication if state wants to shut it down Bellotti Corporations have full 1A rights for issue ads/referenda o Rationale behind anti-corporate policy: M.Glick – First Amendment – Fried – Fall 2007 114 of 172 Corporations are different what do we mean by this? Two possibilities: Equality they’re just richer o BUT that’s the first step down Dworkin’s slippery slope that equalization of voice is a valid purpose (Marshall is OK with this in Austin) He doesn’t rely on Buckley’s corruption rationale, but rather on equality BUT he limits this to candidate ads! o (Seems schizophrenic) If he wanted to take equalization all the way, then you’d care about ballot referenda and issue ads also o If the point were equality, then it would apply to George Soros too but NO, we only apply to corporations (Yet CF thinks the equality rationale was doing the work here) Corporate Rules they have all this money because the gov’t has created this corporate form that allows for vast accumulations of wealth o The state has NOT granted the corporate form for the purpose of just allowing the corporation to do whatever it wants o People invest in corporations because they believe in their business, not because they want to get involved in politics and sign on to the CEO’s views Abood rationale shouldn’t be forced to speak BUT Abood is a bad analogy because you don’t have to invest in a particular corporation o Media Exception to Corporation rule Media doesn’t count as electioneering communication Implications: o Rupert Murdoch can spend all the money he wants to promote or defeat a candidate o GE can’t send electioneering communication itself, but NBC (it’s wholly-owned subsidiary) can Rationale: (CF struggles to find a rationale) Extra “Freedom of the Press” Clause M.Glick – First Amendment – Fried – Fall 2007 115 of 172 o This is what the media business IS to have opinions BUT so are the ACLU/George Soros they have opinions too! Congress doesn’t want to mess with the media o Like Cincinnati with the Enquirer (Discovery Networks) or NY with the NY Times (Railway Express) M.Glick – First Amendment – Fried – Fall 2007 116 of 172 FREEDOM OF THE PRESS We have developed such a wide definition of freedom of speech such that freedom of the press seems redundant Access to public places Early cases o Press can publish whatever they want, but can’t go wherever they want 1A as a negative right right not to have gov’t stop you from speaking BUT NOT a positive right Can’t use it to get you into a place you’re not otherwise entitled to 1A can’t get them backstage o Gannett No right to pretrial hearing o Pell / Saxbe Unsuccessful challenges to CA and federal laws restricting right to interview individual inmates in prisons If you can find it out (even if you shouldn’t have, you can’t be stopped from publishing it): o Bartnicki v. Hopper Working back the other way o Richmond Newspapers Changes course forcing a criminal case to be open to the press, absent an overriding interest Rationale: Crucial for democracy to inform people about gov’t if the press can’t get information and notify people, they can’t do their job o Need a positive right in order to make the negative right worthwhile (But this proves too much would mean that newspapers can go wherever they want without a compelling state interest strict scrutiny) o SO, Burger pulls it back in and limits to the courtroom How? Emphasizes historical openness of the courtroom o Akin to a traditional public forum! (“time in memorial”) o If he hadn’t done this, we’d basically be constitutionalizing FOIA majority wouldn’t go that far M.Glick – First Amendment – Fried – Fall 2007 117 of 172 FOIA allows anyone in gov’t to get any file in the gov’t that they want except for classified/privacy-related docs o Extended in: Globe MA law restricting press access during testimony of minor who was victim of sex offense Press-Enterprise I Access to voir dire Press-Enterprise II Access to preliminary hearing transcripts in criminal case, despite the objections of judge, prosecutor and D SUM You cannot waive the 1A right o Public has its own interest in access to the trial to ensure a fair trial public has an interest in criminal trial because if prosecutor is taking a dive or if judge is unfair, we should know How did the court get there from the TEXT? o 1. Talk about guarantees in the 1A Negative rights o 2. Admit that this right is not one of the explicit guarantees, but it’s a fundamental right in addition to the explicit rights listed “Implicit fundamental right” (pushes the Roe button) Problem: He is reading the fundamental rights he wants between the lines: o FOIA NO Trial OK o 3. Say that the 1A is a way to give meaning to that fundamental right Demands for Information Trying to NOT submit to subpoena/warrant o Branzburg Reporter subpoenaed to testify to grand jury cannot use 1A to refuse to testify based on wanting to protect a confidential informant Argument: It will chill the news o Dissent in Zurcher – Stanford photo case: No worth of my right to publish if I can’t get the info from a confidential informant which I can then publish (Just like “no worth of my right to publish if I can’t attend trial to get the information.”) Rationale: Richmond Newspapers M.Glick – First Amendment – Fried – Fall 2007 118 of 172 o No special treatment Not asking for something that a regular citizen couldn’t have; just wants an open trial that anyone can attend Branzburg o Special treatment Wants privilege to not be served or to keep quiet o Thinks there’s some value in confidentiality o Trying to constitutionalize shield laws Problem with special treatment: o If we’re going to give special treatment to only the press, that means we have to DEFINE the press Tough to do who to count in? o In other areas of privilege law, it’s easier to delineate the category: Priests MDs – (licensed) Spouse – (easiest) o BUT there’s a significant 1A interest in there not being an official press Branzburg would force us to determine who was in the “official press” BROADCAST, CABLE, INTERNET Way people communicate and get their news Red Lion Authorized gov’t to impose on broadcasters the obligation to let the other side answer Fairness Doctrine o Anti-Tornillo – (which said you could NOT force a newspaper to speak, even if it’s just a response) Rationale: o Airwaves are scarce and they’re really our property Why are they the public’s? w/o gov’t intervention chaos o BUT it’s quite another thing to say that if gov’t intervenes, they can regulate In some of the public parks/streets, we allow for a licensing scheme, but we still mandate that it be content-neutral o Radio/TV require large capital investment In order to elicit that investment, we must five the owners of that station a certain permanence in what they’re doing So they’re scarcity in that sense, as well: o Scarcity in terms of limited space M.Glick – First Amendment – Fried – Fall 2007 119 of 172 o Scarcity in terms of the limited number of groups who can actually use the space o Contrast with cell phone spectrum – (also auctioned in neutral manner) Why different? We don’t care about the content of the cell phone spectrum Verizon is not a publisher – (CBS/NBC are) The only thing we care about with cell phones are that they provide good service common carrier problems What’s the alternative to the Red Lion paradigm? o Gov’t can create its own channel and give response on that channel BUT no one watches public-access TV Why tolerate it here, but not in Tornillo? o CF says it comes down to the questions of scarcity and who owns the airwaves BUT we basically have the same problem of scarcity with newspapers there’s no physical scarcity of newspapers but most cities really only have one newspaper anyway Turner Among the 500 channels that your cable company will provide, there must be a small # they must carry Held: o OK must carry But the scarcity rationale is gone now it’s just companies being forced to speak Tornillo / Hurley / Dale Court does an awkward job with it Kennedy says this is CONDUCT and therefore governed by O’Brien – (not regulating speech) The court’s supposed content-neutral reason was that public broadcasts will die if cable consumers don’t have them BUT this isn’t content-neutral! It’s making some inherent comment about the worth of public television o CF hates this! Turns gov’t into an engine of gov’t allocation with gov’t judging what is good for us Forbes v. AETV Candidate forum, but only with major candidates Held: o OK 1A right to have a debate and if you let in ALL these people, you might as well not even have a debate Internet Central Issue: M.Glick – First Amendment – Fried – Fall 2007 120 of 172 o State Action Only applies if state is acting If a private party burdens, suppresses, or privileges speech, that is not a 1A problem o BUT Internet is all private The activities of all the different players are private actions and not bound by the 1A Subject to legislative control/statutes only BUT many points of control The machine – (v-chip) o Internet version of making you put all the dirty books on the highshelf – (hasn’t created much fuss) o Seems better than allowing gov’t to regulate and make it a crime to send things that are deemed inappropriate ISP o Being able to check what you were looking at Search Engine o Internet has infinite channels, but paradoxically, that creates a scarcity of attention o Point of possible regulation Probably subject to LGA M.Glick – First Amendment – Fried – Fall 2007 121 of 172 RELIGION Determining what religion is Why care? o Need to know what it is such that the free exercise of it may not be prohibited o Need to know what it is such the gov’t may make no law respecting the establishment of it Opening cases all try to interpret a statute that exempts a certain class of people who conscientiously object on religious grounds o Exs: Pledge “under god” Teaching of certain doctrines in public schools (Marxism / Leninism) o NOT itself a constitutional question, but rather one of statutory interpretation o So the constitution tells us we’re not allowed to establish a “religion,” but there’s nothing that tells us what a religion IS Cases: o Seeger / Welsh / Gillette “conscientiously opposed to participation in war by religious training or belief” Requirements: Must believe it Must be a religion some picture in mind of what it is o Thoughts? Training – imbued with this after some time Want it to be drilled into you, not just volitional Want some bureaucracy/organization, not something you made up on your own Might want some objective evidence, not just a subjective avowal of belief Congress wanted someone who by virtue of their upbringing really couldn’t help it o Seems like a high barrier, but we worry about a free-rider problem don’t want people to abuse it; want those who will be truly psychologically harmed by overturning their religion Why even have an exception for religion? What makes it special? It’s not necessarily eternal damnation (because not all religions believe in after-life, yet their adherents remain steadfast), but rather it’s a set of commitments and beliefs such that to violate it destroys who we are and there is a chance we would not recover from it M.Glick – First Amendment – Fried – Fall 2007 122 of 172 FREE EXERCISE What gov’t may not do TO you on account religion Importance of Intent Hialeah o Law prohibits killing/slaughtering animals for any type of ritual, regardless of whether or not the animal is to be consumed Seems facially neutral BUT: The legislative record is wrought with intent o (contra O’Brien intent of LH disregarded) Law is clearly gerrymandered to include certain stuff but not others 2 Enormous Landmarks Sherbert – (Brennan) (1963) o LGA: Employment Benefits – (Sherbert denied unemployment benefits because he can’t work on Saturday) Choice between honoring his religious beliefs and working on Saturday to earn his unemployment benefit o Held (Brennan): We are going to strictly scrutinize the application even of a general law if the application has the effect of burdening religion If the APPLICATION burdens religion (makes the exercise of your religion more difficult), then the gov’t must have a compelling reason for applying it to you and law must be narrowly tailored This regulation is no different than if there had been a fine imposed for her Saturday worship Gov’t is imposing on people who “voluntarily quit” o Refuse to give unemployment compensation to people who had a job, but chose not to take it o Underlying issue: What’s the baseline? 1. If you have an LGA which gives everyone a benefit, but then takes it away for the exercise of religion, that’s prohibited (seems more like a fine) Notion of New Property o Not giving benefit = DP violation Once you extend to some, there are certain reasons that you can’t limit it Goldberg v. Kelly o If you’re getting a gov’t benefit (welfare) and then they take it away from you, you deserve Due Process Gov’t claim: no right in 1st place M.Glick – First Amendment – Fried – Fall 2007 123 of 172 SCOTUS: Benefit = Property and can’t be taken away w/o DP 2. Not required to receive unemployment benefits baseline is zero This is just extending something “extra” o We’re saying, if you do X, you won’t get the “extra” Different from a fine o If you do X, you’re a criminal – (society forbids it and we’ll take money away) o We view legal system as giving fines a particular force Fine Cases: o Hialeah slaughter o Reynolds bigamy Particular religious practice was subject of a specific criminal prohibition SUM: Won’t extend “unnecessary” benefit vs. sanctioning you publicly for your behavior o Can’t withdraw for wrong reason vs. Stop Complaining/we’re giving you something “extra” Exemptions between Sherbert and Smith: o Religion Wins Unemployment Thomas v. Review Board Hobbie Frazee o Court follows Sherbert Coercive impact on religious practice (Thomas)) Even if the practice had changed during the course of unemployment (Hobbie) Even if not part of a particular sect (Frazee) Yoder – (compulsory ed) OK for Amish to not send kids to HS in violation of LGA o Government Wins / Religion Loses 3 Rationales: M.Glick – First Amendment – Fried – Fall 2007 Gov’t Interest in Uniformity 124 of 172 US v. Lee Amish object to paying SS tax for employees Tax system could not function if denominations were allowed to make their own rules Bob Jones IRS denials of tax-exemption for educational institutions who claim discrimination is OK based on religious beliefs Goldman v. Weinberger No yamulkes in Air Force Special Environments Narrow Definition of what constitutes a burden O’Lone v. Estate of Shabaz Prison regulations claimed to infringe on Muslim worship Bowen v. Roy “Little Bird of the Snow” challenge to AFDC SSN requirement Can’t tell the gov’t how to operate o How to deal with its own business o How to keep files Lyng v. Northwest Indian Cemetery Road being built thru cemetery grounds on gov’t land Can’t be that because of your religion beliefs you can tell the gov’t how to run its business and operate its own property – (O’Connor) Analogy: These are sort of like non-public forum cases in the free speech context: o You can’t use free speech rights to tell the gov’t what to do in non-public forum o You can’t use free exercise clause to tell the gov’t how to operate its program Moving away from Sherbert: o Braunfeld Orthodox Jews challenge Sunday Closing law want to stay open on Sunday, but rest on Saturday Claims is that they lose the whole weekend if they have to close for gov’t on Sunday and religion on Saturday sort of forces them to open on Saturday in violation of their Free Exercise rights M.Glick – First Amendment – Fried – Fall 2007 125 of 172 Held: NO this is LGA with purpose and effect to advance the State’s secular goals o Valid despite indirect burden on religious observance unless State may accomplish its purpose by means which do not impose that burden How does this get around Sherbert? o Braunfeld says that it was just an LGA that simply made practice of religion more expensive o Court looks to the claimed compelling interest Braunfeld unified day of rest Sherbert unemployment fraud Court believed the interest in Braunfeld was more important o (CF thinks the difference is precarious) Brennan Dissent: Puts individual to illegal choice between religion and business Would prefer to apply Sherbert: Smith – (Scalia) (1990) o Law denies benefits to persons dismissed from jobs for illegal use of drugs claim that drug was being used for religious purposes o Held: LGA law is neutral in effect/intent (religion-blind), so it’s OK Religion can be superseded by LGA Scalia is allergic to balancing & 4-part tests – (O’Brien) o Contra Brennan: Brennan: cares about differential effect BUT that is not how the law comes out WA v. Davis – (differential purpose vs. differential effect) o Even if facially neutral in intent and as written, it is a constitutional problem if it has the effect of burdening a particular group o BUT rejected in WA v. Davis If you want a violation, either: The law must facially discriminate OR Be intended to to be discriminatory (Gomillion – 27-sided figure) Disparate impact is not enough o SUM Smith: Religion :: WA v. Davis : Race o How to possibly distinguish from Sherbert? Scalia tries to slalom through without upsetting precedents Possibility: Sherbert he just took a Sabbath M.Glick – First Amendment – Fried – Fall 2007 126 of 172 o Not something we wish to penalize Smith fined for violating a criminal drug statute o A little less sympathetic o No desire to modify a criminal statute to accommodate a person who wants an exemption to use drugs o Concerns (2): Discretion!!! Some danger here that the system cannot determine what is so urgent about a religious obligation Uncomfortable coming up with a standard regarding religion to LGA (Some Establishment Clause concern with recognizing religious excuses but not others) Giving religion a status for some people that you don’t give to others We don’t like giving people a free pass wrt religion that they’re not entitled to with other things What is special about religion that it should get you out of obligations that are imposed on others? o Ex. How can we justify the following? Religious excuse OK Illness/allergy OK Visit your kid NO o How to justify modifying visitation right for religious obligation, but not OK to modify because he has to work? o Should gov’t be religion-blind? Hialeah seemingly religious blind on the face, but clearly not religion-blind on “intent” CF doesn’t love this “religion-blind” test (Kurland) o Comparison to speech: Being “religion-blind” seems to be enough here Being “speech-blind” is not enough in O’Brien Even if it’s content-neutral, it still fails if it’s not narrowly tailored of if there are alternative means o Speech gets more protection wrt LGA than in religion context o We do not allow expressive conduct to be beaten by LGA We do allow religious conduct to be beaten by LGA Speech > LGA – (O’Brien) Religion < LGA – (Smith) Rationale for difference: o Why give speech more protection than religion? M.Glick – First Amendment – Fried – Fall 2007 127 of 172 Speech external effects – (avert your eyes) Religion external effects of free exercise are more serious Exercise is not just expression, it’s CONDUCT! Cases There are a number of cases that might have been decided on free exercise grounds, but end up winning on free speech grounds o We don’t care as much about protecting your free exercise religious rights o We DO care about protecting your free speech right Barnette o Children had free exercise objection to having to recite the Pledge, but they won on freedom of expression Rosenberger v. UVA o UVA refuses to pay costs of Christian publication under guidelines prohibiting student activities fees for any “religious activity” o Held: Group wins, but based on freedom of expression (funding restriction said to discriminate on the basis of viewpoint) Lamb’s Chapel o School making auditorium available after-school, but only for non-religious groups Religious group wins, but on free speech grounds Sherbert v. Smith o Scalia disliked Sherbert Hates balancing / likes rules o Breyer/Brennan/Ginsberg liked Sherbert OK with balancing If there is a burden on religious practice, the gov’t must not only explain itself, but must have a compelling purpose and be narrowly tailored o PROBLEM Sherbert Makes each man a law unto himself (Scalia bigamy) Seems extreme that even an incidental effect on religion must be justified under strict scrutiny Smith Too stingy in recognizing protection for religious exercise – (McConnell) M.Glick – First Amendment – Fried – Fall 2007 128 of 172 o Religion has been an important part of our history o Perhaps a 3 Way? Maybe we do Smith, but with an exception for extreme hardship, even if it’s an LGA Religious Freedom Restoration Act o Congress sought to overturn Smith by the Religious Freedom Restoration Act Congress has not gotten away from it Congress itself won’t pass a law that has incidental burden on religion (even if LGA) BUT violates the Constitution when applied to states Congress has no power to tell the states what to do about religion o RFRA that was struck down in Boerne CF: Smith is pretty secure SUM of Free Exercise rd Non-LGA LGA SUM Gov’t Providing a BENEFIT Gov’t Imposing a DISABILITY OK, so long as it’s not gerrymandered to explicitly/implicitly benefit religion OK, so long as it’s not imposed in terms that are in reference to disadvantage religion OK if giving out money in a general way OK if disadvantaging in a general way If what’s included is included because it’s a religious exercise, then we have a problem with that If you’re targeting for religion NOT OK o Protecting some behavior because of religion o Free Exercise doing some work – (Hialeah) Ex. o McDaniel Members of clergy ineligible for public office Distinction: If the law said, “You can’t hold public office if you have another job.” OK BUT since the employment specified was, “being a member of the clergy.” NO M.Glick – First Amendment – Fried – Fall 2007 129 of 172 ESTABLISHMENT CLAUSE What gov’t may NOT do for you on account of religion Interaction with Free Exercise Definitions: o Free Exercise Do not do anything to disadvantage religion o Establishment Clause Do not give anybody any benefits because of religion If you give full weight to Free Exercise, have you not violated the Establishment Clause? o Is there room between the Ceiling (Est Clause) and the Floor (Free Ex)? The ceiling (establishment clause) how much can you benefit religion? The floor (free exercise) how much do you have to allow / how can you disadvantage religion? o Any attempt to do something because of religion violates one of the two clauses Favorable violates Est Clause Unfavorable violated Free Ex Various opinions: Scalia Harlan Notes Floor – (Free Ex) WIDE Low – (Smith) Defer to the legislature Anything goes – just need neutrality (LGA) Easy to infringe on Free Ex (Dissent in Sherbert) Low – (Smith) Blaine Amdt Believes that LGA can infringe upon religion without any problem No money raise by taxation in any state for any public fund shall ever be in control of religion Ceiling – (Est Clause) High Low – hefty Est Clause Hated giving $$$ to parochial schools (nativist / antiimmigrant) M.Glick – First Amendment – Fried – Fall 2007 Brennan/ Souter 130 of 172 Ceiling – (Est Clause) Low Notes Floor – (Free Ex) NARROW High – (Sherbert) The whole domain is constricted to a point, so the room for legislative deference is low Everything is either required by the Free Ex Clause or prohibited by the Establishment Clause Wary about any law benefiting religion Low – (OK with Smith) Low Every law touching upon religion must be judged strictly Stevens Very protective view of religion under the McConnell Free Ex Clause Allergic to attempts to establish religion High/middle floor – (can’t do a whole lot of regulating) Higher ceiling – (OK with government benefiting religion) Original Understanding Congress shall make no law touching upon the establishment of religion – (pro- or anti-) BUT several states already had established churches o Thomas thinks original intent was the Congress would stay out of the Establishment business – (14A then incorporated 1A against states) Establishment Clause may have been a federalist provision o Not about individual liberty at all o Assignment of responsibility between federal and state gov’t Makes no sense to incorporate that right against the states What would that look like today? o States COULD establish religion o The only 1A right you would have against the gov’t would be in the Free Exercise realm If a law did not violate the free exercise clause, it would be OK if it established religion ISSUE: What does the Establishment Clause do that the Free Exercise Clause does not? If something is a violation of the Establishment Clause as it stands today, couldn’t we just argue that it violates my Free Exercise rights because gov’t is compelling me to believe M.Glick – First Amendment – Fried – Fall 2007 131 of 172 something else (the established religion) as opposed to what I would freely exercise on my own? Modern Understandings Lemon Test: o 1. Secular Legislative Purpose o 2. Principal Effect must be one that neither advances nor inhibits religion o 3. Must not foster an excessive entanglement with religion Cases o McGowan v. MD Other side of the Sunday closing cases say that making Sunday your closing day is an establishment of religion Held: Law is OK o Though original motive may have been religious, so long as today’s motive may not have been, it’s in the clear Today: secular o Bowen v. Kendrick Authorizes federal grants to organizations in the business of teaching abstinence of premarital sex Analyzing the statute: Could argue McGowan whatever the history of abstinence or even the church’s feeling on it, if there is a secular account of this law, it’s alright BUT ACLU makes a fatal mistake facial challenge o In order to succeed on a facial challenge, you must knock it out in ALL cases o BUT the gov’t could show some valid applications, so can’t win facial challenge Statute upheld on face Maybe abstinence IS a religion: What is a religion such that you may not establish it? o (CF: This is a big problem the boundary) o When is a deeply held belief not a religion, but something else? o How to distinguish an ethical culture from a religion? Potential Explanations: o God/Supreme Being o Institutions/Apparatus o Formal Training o Original Meaning of religion (1791) We’re back at Gillette French Revolution Temple of Reason M.Glick – First Amendment – Fried – Fall 2007 132 of 172 o Something does not become a religion if they depend on public reason o If the abstinence teachers make arguments the terms of which are pertinent to anyone willing to listen, then it’s not a religion If you can depend just on arguments of public reason you’re fine If you give out and go beyond simply reason and argument religion o Problem (CF): There are many public arguments that are very complicated, but still non-religious School Prayer Basic Rationale: o Don’t want to put burden on beliefs such that the choice is either: Participate – (say the prayer) Sit out – (still saying something) o Engel v. Vitale Court strikes down “non-denominational” prayer written by NYS Board of Regents Est Clause does not require any showing of direct gov’t compulsion Violate by the enactment of laws which establish an official religion even if those laws do not directly coerce nonobservers o Schempf Struck down law requiring Bible reading and recitation of the Lord’s Prayer (Was taking place all over the country!) More complex rationale: o Lee v. Weisman Struck down graduation speaker at Middle School Rationale: Kennedy o Indirect coercion – (more potential for this in the school setting) Conformist / peer pressure o Compelled to make a choice If they stand agreement is assumed – (put in a position where they are making a speech they don’t want to) If they sit also make a speech (forced to put “Not” on your license plate) Blackmun – (CF: better than Kennedy) M.Glick – First Amendment – Fried – Fall 2007 133 of 172 o Coercion doesn’t matter ENDORSEMENT does Seems like state is saying that religion (either generally or specifically) is a good thing Regardless of whether people are coerced, there’s a harm if state endorses religion O’Connor o Exclusion of non-believers is the problem When gov’t endorses religion, even though it doesn’t compel anyone to do anything, it is sending a message of exclusion: People who believe IN People who don’t OUT o You’re not a 1st-rate citizen 1st-rate citizens believe in God or are Christian o Civic Excommunication o This seems ultimately to get back to coercion: “You’re not a 1st-class citizen, but if you want to be, you should come believe X.” Attenuated form of Free Exercise o The endorsement is a step towards convincing you to believe X and not Y (what you believe), so it’s an infringement of your free exercise of Y The pattern after Lee v. Weisman o Court trying to discern a mysterious line between endorsement that excommunicates (coercion) and something that no one takes seriously o The result of these cases is an unstable and unsatisfactory body of cases: M.Glick – First Amendment – Fried – Fall 2007 SERIOUS COERCION Lee v. Weisman (though 4 say it’s silly and therefore allowable) Santa Fe Independent School District Students elects speaker before a football game NO Invites and encourages religious message o Gov’t policy o Gov’t property o Gov’t sponsored school event Allegheny County Nativity scene in courthouse struck down Can’t makes adherence to religion relevant to a person’s standing in the community 134 of 172 NOT SERIOUS NO COERCION Burger There’s got to be some point where we cut some slack to have at Christmas w/o the ACLU being able to spoil it McGowan Sunday closing law has secular purpose today, even if it didn’t in the past Lynch v. Donnelly Pawtucket X-mas display OK No rigid/absolutist view of Est Clause Passive display; no subtle gov’t advocacy (O’Connor concurs) Gov’t can run afoul in 2 ways: Excessive Entanglement Gov’t endorsement or disapproval of religion – (excommunication idea) Capitol Square (We have Lynch Allegheny Cap Sq ?!?!) KKK’s large unattended Latin cross on public square was OK McCreary – (KY courthouse) 10 Commandment Breyer swing vote says you can’t have it in courthouse Pitched battle between court and citizens – (meant as a provocation Van Orden – (TX State Capitol 10 commandments OK, been here over 40 years Problem: How do we know when it’s been long enough? School Cases Where the fight over the establishment clause really exists school prayer and gov’t aid to parochial schools o Symbols / Creches / 10 commandments are really ways for courts to develop doctrine for the important stuff Rationales: o Fear of Indoctrination M.Glick – First Amendment – Fried – Fall 2007 135 of 172 o o o o o These are the areas for indoctrination at younger ages, you can be indoctrinated and we don’t want that on the taxpayer’s nickel (we’re not as concerned at college level) Common Experience Idea that public school is a common experience which brings us together as citizens, teaches us citizenship, and makes us Americans Fear of Community Schism Fear that if you allowed education to be taken over by religious institutions, you’d be accentuating differences between us and isolating communities Pure bigotry (nativist, anti-Catholic sentiment) Power of Teachers Unions Ferociously opposed to anything that impinges on their power and authority Counter: JS Mill notion of choice and a diverse society should allow it Cases: o Edwards v. Aguillard – (Creationism) Louisiana says you can teach evolution, but if you do, you must teach creation science – (don’t have to tech either once, Held: (Brennan) NO o Purpose is clear – (it’s a sham!) Favoring creation science and NOT setting the two on equal footing What’s really going on here is a way of getting creationism into the curriculum as a way of endorsement Epperson made clear that religious science is not all you can teach, so this was an attempt to get around it Dissent (Scalia): Purpose discussion is irrelevant o Wasn’t the stated purpose in O’Brien a sham too?!? o We don’t look at purpose! Brennan: sometimes we do Debate: Could a teacher do this outside this law? NO – (me) o Gov’t putting itself behind a religious message YES – (weird) o Just the presentation of an opposite account of events There are 2 possibilities and here they are M.Glick – First Amendment – Fried – Fall 2007 136 of 172 Can’t you at least present 2 alternative explanations / viewpoints o Pierce – (No compulsory public education) Parents have due process right to send kids to private schools o Yoder – (Amish HS) Amish not required to send kids to school after 8th grade CF: WRONG Amish kids aren’t equipped at adulthood to decide if they want to stay in that community School Aid Fights o Everson – (Seminal Case – at least for a while) Reimbursement of transportation expenses to parents sending their kids to parochial schools OK Can’t support religious schools directly or indirectly with materials or anything else Principle: “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called.” o (Souter employs this a lot) o Standing Issue Must be a real case or controversy if you are not in some material way hurt then you do not have standing to come to court Cases: Mellon o Individual taxpayer does not have right to complain of constitutionality of some gov’t spending program BUT then: Flast v. Cohen o Makes exception to Mellon for the establishment clause (applied only to Congressional enactments said to violate the Establishment Clause, NOT executive acts faith-based initiatives) o Era of non-coherence following Everson Transportation: Everson TO schools OK Wolman field trip transportation NO Textbooks: Allen OK to lend books on secular subjects Lemon reimbursement = excess entanglement State-authorized exams: Regan OK to reimburse Levitt Can’t do it Maps/globes Mitchell/Helms instruction materials OK M.Glick – First Amendment – Fried – Fall 2007 137 of 172 Meek / Wolman no maps, magazines, equipment o Breakthrough for parochial schools in 1980s: Mueller v. Allen – (1983) Tax deduction for certain education expenses OK Rationale: o Rehnquist points to the neutrality/generality of the program Purpose secular State’s decision to defray the cost of educational expenses incurred by parents Puts parents on even footing and frees people up to make educational choice Effect said to be neutral, but in reality, the people who are getting the benefit (deduction) are the ones who send their kids to private schools because public schools don’t charge tuition o Money going to individuals who make use of “many private individual choices” Money not going right to schools Dissent: o Sectarian Effect! Rehnquist says the effect comes from a large number of private, individual choices rather than directly to the institution, but why does that matter? Money is ending up there anyway o Counter: Gov’t not endorsing / not sending the $$$ Gov’t program does, in effect, cause money to end up in sectarian treasuries, but that’s OK What we’re looking for in school aid cases now 1. (Still probably want secular purpose) (At least an arguable secular purpose) 2. Neutrality/generality/breadth of class No incentive or greater benefit to religious class 3. Money going via individual/private choice, rather than directly from state M.Glick – First Amendment – Fried – Fall 2007 138 of 172 o Post-Mueller Witters – (Blind man) (1986) Gov’t giving people money to train to be a pastor/minister of the gospel OK o No incentive to undertake sectarian education o No greater benefits for those who do o Benefit to individual, not institution (emphasize generality) Zobrest – (sign-language OK) (1993) Gov’t employee coming into a religious school and communication sectarian messages o Paying a public employee to deliver a religious message o (Prior to this, we disallowed a public teacher from coming in to teach secular stuff Lemon) Rationale: o Mechanical transmission Mitchell v. Helms – (2000) Publicly-funded computers and other teaching aids to private schools OK Rationale: o Broad/neutral o Private choice vs. State choice Agostini v. Felton – (1997) (BIG SIGN OF DISINTEGRATION) Special Ed teachers paid with federal $$$ being sent to all kinds of schools o A public employee teaching on religious school grounds is not automatically barred (Zobrest had gotten rid of exclusion of public employees from religious school grounds) (Here the court expressly overturns 1985 ruling in Aguilar v. Felton) o All gov’t aid that directly aids religion is not automatically invalid Zelman – (2002) Court upholds Voucher system Why care? o This challenges the current institution of American public education in a way that past cases did not Past cases: Agostini (special ed) Zobrest (signers) Witters (education for a minister) M.Glick – First Amendment – Fried – Fall 2007 139 of 172 Mitchell (maps) Mueller (tax deduction) Persons who are committed to the current system fought these past minor encroachments because of the possibility of Zelman Dissent (Souter): o Total abandonment of precedent and principle BUT (CF) the precedents being overturned were from the 1960s and the precedents being invoked were more recent Responses from Rehnquist: o Yes, 99% of the money is going to private schools and religious schools are being advanced BUT: Denominator Argument: If you look at ALL the $$$ being given out, it’s not that much Souter: it’s just the right amount to go to parochial school Choice is what matters Individuals! Comparing Zelman to Locke v. Davey: o Locke v. Davey WA State giving out Promise Scholarships for postsecondary education, but State Constitution bars students from using the scholarship to pursue a degree in devotional theology Free Exercise Challenge Held (Rehnquist): OK like Rust or Findlay v. NEA o Large area in which the gov’t is acting to subsidize o They CAN give money however they want fine to give it to these students, but don’t have to o After Locke and Zelman, the principle is that you don’t have to do anything you CAN have a voucher program that includes religious schools, but you don’t have to Permitted by Establishment Clause NOT required by Free Exercise o CF: Does Witters + Hialeah = the opposite of Locke v. Davey? One side: M.Glick – First Amendment – Fried – Fall 2007 140 of 172 Hialeah program unconstitutional because it is not facially neutral wrt religion Witters payment for Christian theology student is OK Other side: Locke program not facially neutral and says you don’t have to give to theology student Seems that: If you can’t discriminate against religion in a public program (Hialeah) and if the establishment clause doesn’t forbid a voucher system (Zelman), then you can’t have a voucher system that excludes private schools (Locke) RELIGIOUS ACCOMMODATION Pleas for accommodation not claiming that law is totally invalid altogether / just asking for accommodation Conflict between the Clauses: o Free Exercise “I deserve accommodation for my religious needs.” o Est Clause “Can’t accommodate them; that would be establishment.” Accommodation is not compelled by the Free Exercise clause, but if you do it, you don’t violate the Establishment Clause SUM o The concern is establishment of religion through excessive accommodation Establishment clause does not allow church groups to create exclusive communities which compete with the general society in a potentially coercive way – (Community acquires some of the coercive power that the state is supposed to enjoy exclusively) o BUT we do have some non-state coercive pressures (non-portable pensions and employer-provided healthcare) May be a generalized establishment of the “religion of the market” Cases AGAINST religion (no accommodation gov’t wins): o US v. Lee – (Amish Social Security) If you do accommodate, who gets hurt? Generalized hurt to system o Creates moral hazard o Threat to system if not mandatory Specific threat to employees M.Glick – First Amendment – Fried – Fall 2007 141 of 172 o Won’t get the benefits; if they’re cut off from gov’t benefits, then they’re totally dependent on charity from the Amish brotherhood This becomes an Establishment Clause case If his claim is acknowledged, then the Amish charity system becomes a legitimate system puts pressure on people to remain in the system in order to obtain the benefit o Yoder – (Amish HS) Establishes the church’s hold on the community – (only place you can get your skills) If you don’t go to HS, you’re confined to whatever skills the community provides post-8th grade o Kiryas Joel NY State legislature sets up school district to include just a particular community of Hassidic Jews who were worried about sending their kids out for special education (Post-Aguilar, they could have sent special ed teachers to religious schools) Held: NO – state took orders from and intended to benefit a religious group o Larkin v. Grendel’s Den MA Law prohibited issuance of alcohol permits within 500 feet of church; religious establishment is given the authority to decide on whether the permit should be issued (no standards) Held: NO o Excessive Entanglement o Substituting unilateral/absolute power of church for the reasoned decisionmaking of a public legislative body can’t delegate gov’t power to a body chosen based on religiosity Can hand gov’t speech over to mushroom or fruit growers, but not a religious group Dissent (Rehnquist): Greater includes the lesser o Since gov’t can ban liquor altogether, they can limit it by whatever means they want Maybe the restriction should be that the liquor license can be approved so long as the church doesn’t object Analogy to Posadas: o Puerto Rico approved gambling but said you could not advertise in NY/FL M.Glick – First Amendment – Fried – Fall 2007 142 of 172 o Rehnquist says that since they can prohibit gambling altogether, they can limit the advertisement of it as well Vice Exception (overturned in Coors / 44 Liquormart) o Estate of Thornton v. Caldor CT law allows everyone to pick a religious day of rest and not be subject to dismissal Held: NO – gives supremacy to the religious observance of citizens over the secular interests of the workplace o Statutes clearly advanced a particular religious practice We don’t like advantaging a religious guy over one who wants Sunday off because the court gave him custody on that day o Violates the Establishment Clause o Bob Jones Claim that their religion bans interracial dating, so they should be able to claim tax exemption even if they are racially discriminatory Item of religious doctrine in that community that interracial dating was problematic Held: IRS wins Cases FOR religion (accommodation gov’t loses) o Amos Title VII bans discrimination on the basis of religion UNLESS you are a religious organization Arguments: Amos o Claims illegal religious discrimination o Establishment Clause violated by recognizing this religious organization and allowing them to discriminate Church o Free Exercise Forced inclusion of someone different than us violates our free exercise rights BUT you have to show how the inclusion will affect your free exercise Dale Want someone who will affect your expressive association o Dale > Jaycees Held: Establishment Clause not violated M.Glick – First Amendment – Fried – Fall 2007 143 of 172 o “the Court has never indicated that statutes that give special consideration to religious groups are per se invalid” room for accommodation Brennan concurrence: Even trying to figure out whether an employee is part of the expressive association of the religious organization would involve “ongoing gov’t entanglement in religious affairs” o Mergens Law conditions federal funding to secondary schools on them not restricting access to limited public forums based on religion Escapes scrutiny due to Public Forum analysis Since it’s a public forum and it’s open to all as such, there’s no Establishment of religion for allowing a religious group to use it o If the American Nazi Party wanted in, they could o Waltz v. Tax Commission Allow property tax exemption for schools/churches “Indirect economic benefit,” but within a broad class of property How you LOSE accommodation case How you WIN accommodation case Accommodating you would be de facto Expressive Association case establishing church’s hold on an important Amos function of gov’t US v. Lee It would take considerable effort to figure out what doctrine of church Amos Establishes church’s hold on you Yoder Public Forum open to all – (OK to Gov’t delegating power of gov’t to a accommodate religion Mergens religious group Larkin v. Grendel’s Den Kiryas Joel Benefit is part of a broad class Waltz v. Tax Commission Law gives religion supremacy over other valid secular purpose Estate of Thornton v. Caldor Other compelling gov’t claim – (EqPC) Bob Jones M.Glick – First Amendment – Fried – Fall 2007 144 of 172 CHURCH PROPERTY DISPUTES The law in this area is very odd Issue: o When there is a dispute, who gets the building and the money? Two kinds of churches: o Hierarchical Easy to know who would get it property owned by the highest rank o Congregational Church owned by the congregation as a whole – (governed by the congregation and the property belongs to them Problem: Who to count in the denominator for the majority? o 2 possibilities: Any resident of the town Anyone who was a regular contributor/participant at church Possible Rules: o Money given to closest adherents AG v. Pierson – (Lord Elden) Decide the case as you would a dispute over a trust: give the money to whomever most closely adheres to the fundamental doctrines/practices of the church when the donations came in o Look to original purposes of the church – (if we were talking about anything but religion, no one would think much about this) Like Dale: o Organization gets to decide what the oath means and what the original principles of the organization are o Stevens I get to decide o Let the Church Decide / Keep the State Out Kedroff Dispute between American and Russian segments of the Russian Orthodox Church NY State Legislature passes statute transferring control from Russian to American Held: o NO – church should get to decide, not the state NY statute improperly involved the state in an internal church dispute What kind of claim? o Free Exercise Individual right to free exercise: M.Glick – First Amendment – Fried – Fall 2007 145 of 172 Ought to be able to commit yourself to follow whatever organization you want BUT also group right to free exercise: Doesn’t let the church decide for themselves who should lead Free Exercise might not be just an individual right, but also a right of an entity called a “church” to its freedom church like a corporation and has its own rights – (not just the sum of its members) o Outruns and not completely coextensive with the persons who inhabit it o Establishment Clause Excessive entanglement between the state and the church State passing a statute and saying this is the official orthodox o No secular purpose o No secular effect o Big entanglement o Neutral Principles Presbyterian Church Jones v. Wolf If the criteria under which you assign property is an LGA that does not involve religion, then you’re alright o Assign based on trust/contract/corporation/property law according to explicit terms of the trust does not require religious inquiry OK o BUT can’t engage in religious reasoning (can’t do Lord Elden and figure out who is adhering to the doctrine of the church) o No arbitrariness review Serbian Can’t review church decisions for arbitrariness Dissent (Rehnquist): o What if they plainly didn’t follow their own rules? SUM: o Unseemliness of the courts opining on matters of religious doctrine o BUT at least it’s only about $$$/real estate not life/death M.Glick – First Amendment – Fried – Fall 2007 146 of 172 Rationales for Not Shutting People Up ex ante Sun as disinfectant – want to allow ideas to get out there, so people can shoot them down. Killing your ability to speak = killing your ability to think this is more dangerous than other types of control Shutting people up might give their ideas legitimacy – (make it seem like gov’t is worried their ideas will work) Have faith in people to evaluate speech/ideas – (don’t think preemption is necessary like in UK) Fear of overestimating the dangers up front – (UK Law / Dennis) Danger in gov’t deciding which ideas are “true”/good o But we allow this with commercial speech Victim of prior restraint is the PUBLIC never get to see this – (Public never gets to know what the harm was; they’re “punished” but they haven’t done anything wrong) M.Glick – First Amendment – Fried – Fall 2007 147 of 172 Courts looking (or not looking) at Purpose YES Edwards v. Aguillard – (religious purpose is clear) Hialeah – (clearly intended to target gerrymandered) Wallace v. Jaffree – (school prayer no secular purpose) Lemon – (looking for secular legislative purpose for the law) NO O’Brien – (Warren rejects any inquiry into purpose) Courts not trusting the supposed motive of the legislature Act-Conduct Distinction sometimes laws look unrelated to expression on their face (looks like we’re just regulating conduct/action, but motive is pretty clear) Courts require generality o If X is really your motive, go all the way (include everyone) o If you’re exempting Y, then we questions your motive/interest – (skeptical about how you cut the lines) One of the places where allowing ZERO speech is better than selectively allowing 50% speech Mosley / Carey – (exempt protests by certain groups and about certain topics) Discovery Network – (certain mainstream newspapers can keep box on public streets, but others can’t endorsement) NY v. Railway Express – (NY Times can keep their name on the truck) Simon & Schuster – (victims compensation board) Media exception to the corporate campaign finance rules M.Glick – First Amendment – Fried – Fall 2007 148 of 172 Fried’s emphasis on NOT controlling one’s mind IDEA: No one has the capacity to stop me from reaching my mind because no owns my mind but me; no one has the ability to stop me from trying to persuade others since no owns their minds either Virtual Child Porn OK – (Can’t stop behavior just because it gives someone ideas) Stanley can’t prohibit private possession of obscene material Ignorance Cases o Virginia Board of Pharmacy o Coors / 44 Liquormart / (Posadas) o Thompson v. Western Medical States / Henney – (concerned that we’re regulating by keeping people ignorant about helpful medical practices) Right to Silence Cases – idea is that we have a DP right of personal autonomy and integrity “I am the master of my own life and no one should make me say or believe something that I don’t” o Barnette – (silence) o Abood – (association) o Lee v. Weisman – (religion) Think about “true threats” or MacKinnon’s argument about pornography how it’s not trying to convince of anything, but just a bypass to bad stuff – (bypassing the mind) (See also: PERSONALITY sheet) M.Glick – First Amendment – Fried – Fall 2007 149 of 172 Areas not yet explored Libel Area of private concern for public official State Law Privacy Torts court yet to reach a circumstance where state law punished disclosure of information that was truly private Hostile Work Environments Harassment punishment as a violation for 1A o Liberals concerned – (don’t like 1A violations, but also don’t like discrimination/harassment) M.Glick – First Amendment – Fried – Fall 2007 150 of 172 Problems with defining the class Media / Journalist – (Branzburg wants us to do it, but there’s a significant 1A interest in NOT doing so) Religion o (Establishment Clause problems with defining a class) o Problems of defining what is “religious training or belief” for the sake of conscientious objector statute – (Gillette) Training Bureaucracy/Organization/Apparatus Objective Evidence Supreme Being? Originalist notion of “religion” Public Reason o Public Reason – (if you can go on arguments from public reason alone, then you’re fine, but you start to use concepts beyond the range of normal person, you’re in trouble) o Smith – don’t like giving people a free pass for religion that we won’t give for other seemingly valid reasons – (child custody) o Bowen – (maybe abstinence is a religion) How to distinguish an ethical culture from a religion? Congregation – (Church Property Disputes) (as opposed to MDs (licensing), spouse (easy), clergy) M.Glick – First Amendment – Fried – Fall 2007 151 of 172 Personality Importance of quotations – (Masson / Luth) Focus on core characteristic in Harper we’re OK punishing the students here because he’s attacking another student in a public school on a core characteristic that gets right down to who he is o Right to be able to conceive of yourself and to imagine that you are conceived by others as being their equal – (especially in public school) O’Connor’s idea of Civic Excommunication in Lee v. Weisman M.Glick – First Amendment – Fried – Fall 2007 152 of 172 Attribution Cases ASSOCIATION CASES IDEA: No one will attribute this speech that you’re complaining about to you anyway Concern about Attribution: Kuhlmeier – (regulation OK because concerned that speech from student newspaper will be attributed to school) PG&E – (no one will attribute, but it forces you to alter) Tornillo – (not likely they’d attribute, but it might encourage you to shut up) No Concern about Attribution: Pruneyard – (not likely to attribute the leaflettors messages to you) M.Glick – First Amendment – Fried – Fall 2007 153 of 172 Balancing vs. Categorizing BALANCING CATEGORIZING O’Brien Court has to measure whether regulation that is “unrelated to the suppression of speech” is nonetheless going too far (This is why Scalia hates O’Brien and pushes for LGAs be treated same for speech as religion Barnes) Scalia in Barnes If it’s an LGA, it doesn’t matter if it burdens free speech – (wants to do Smith) rejected Scalia hates it: Derogation of rules/clarity Assigns to courts the duty to determine between competing values don’t like that Disdain for weird lines in the area of 1A Confusing lines have the effect of chilling speech because people are afraid to speak because they don’t know what’s going to be punished (Why we give a hard time to vague statutes) Sherbert – (Brennan and now Breyer/Gins) OK with Sherbert’s balancing of free exercise claim against compelling purpose McConnell’s 3rd Way Keep Smith, but give an exception for extreme hardship Smith – (Scalia) If it’s an LGA, doesn’t matter if there’s an incidental burden on religion – (straight line) Scalia wants to do the same thing for speech (Barnes) (some were OK with Sherbert’s balancing of free exercise claim against compelling purpose) Braunfeld vs. Sherbert Free Exercise claim lost in Braunfeld against LGA, but won in Sherbert maybe we think the compelling interest for the gov’t is better in Sherbert – (notice that Scalia moves to LGA in Smith) Approach in Dennis Whether the gravity of evil discounted by its improbability justifies the invasion as is necessary to avoid the danger (Dissent concerned over judicial role in doing this) Brandenburg (More Clear perhaps that’s why it’s withstood the test of time) M.Glick – First Amendment – Fried – Fall 2007 154 of 172 BALANCING CATEGORIZING Luth Parable about the danger of ignoring the state action and having to balance competing speech interests against one another Defamation – (State Action Reqmt) Don’t like notion that A could bring suit against Private Employer B and the court would get to choose whose speech should win Canadian Approach to Hate Speech Canada (and many other countries) are engaged in a balancing of: Free Expression Preservation and Enhancement of the multicultural heritage of Canadians Equality under the law US Approach to Hate Speech Are you regulating an idea/expression or rather conduct that you believe is more dangerous? Bartnicki v. Vopper Breyer (concurring) wants to balance the public interest in hearing this against the privacy interests of the parties Chaplinsky Court is categorizing in that some speech is put wholly outside 1A coverage BUT also balancing by attaching low value to some speech and measuring it against competing state interests Tony Twist (Balancing test for appropriation) Is the predominant purpose to exploit the name for commercial value or is it to make an expressive comment about the person? Obscenity – (Roth) Not within the area of constitutionally protected speech or press Mackinnon wants to put pornography here Child Pornography We’re fine just banning it – (definitional balancing: evil to be avoided outweighs any potential expressive interest) M.Glick – First Amendment – Fried – Fall 2007 Technology Issues Data Mining – (doing what public could do on its own) o Rape Cases o Nuremberg Files o Issue: How you present the information? Internet – (state action) 155 of 172 M.Glick – First Amendment – Fried – Fall 2007 156 of 172 Law of General Applicability Breach of contract infringes on free speech Cohen o OK, because it was an LGA o I guess we could put it through O’Brien: Substantial gov’t interest in enforcing contracts Interest is unrelated to suppression of speech Means narrowly tailored Speech Ward / O’Brien o O’Brien – apply the test whenever there is an LGA with an incidental burden on speech Religion o Sherbert – (if the APPLICATION burdens religion, then the gov’t must have a compelling reason for applying it to YOU and law must be narrowly tailored) o Smith – (if law is neutral in effect/intent, then it’s OK; religion can be superseded by LGA) Church Property Disputes – (neutral principles: Jones v. Wolf) M.Glick – First Amendment – Fried – Fall 2007 157 of 172 Judicial Role Arguments C&PD o Not right to assess what is an imminent danger – (Dennis) o Not right to question what speech the legislature believes is an abstract evil – (Gitlow/Whitney) Obscenity – Judges should not be describing what is pornographic – (Brennan dissent in Miller) O’Brien - Judges not good at balancing between competing values – (Scalia on O’Brien) Public Forum - Hudgens and ISKON reject the functional view of a designated public forum – (judges shouldn’t be making those inquiries) Expressive Association o Stevens in Dale wants to be able to be the one to determined what the expressive association of the Boy Scouts is o Rehnquist wants to give deference to an association’s assertions regarding the nature of its expression Accommodation - Brennan worried about judge’s being excessively entangled in Amos and trying to figure out what is being expressed/taught/believed in that religion Church Property Disputes - Church Property Disputes are all about Judicial Role McConnell’s 3rd Way – Maybe he wants to do Smith but with an excuse for “super-infringement of free exercise – (problem is who decides what is a “super” infringement? M.Glick – First Amendment – Fried – Fall 2007 158 of 172 Public Morality as a justification for regulation IDEA: Harm is that stuff is out there, even behind closed doors, and it’s taking place with impunity Bickel – harm just by being out there Paris Adult Theatre – (harm is that this stuff is out there and taking place without impunity) Lawrence v. TX – (even if private, concern is that it degrades public morality) Barnes – (not about flaunting stuff in front of unsuspecting public; this was happening behind closed doors with consenting people) Flag Burning NO – (maybe the very idea that flag burning is happening and people aren’t being punished for it is a threat to our public morality the very idea that it’s going on) M.Glick – First Amendment – Fried – Fall 2007 159 of 172 Secondary Effects Renton hasn’t been extended beyond the pornography context o Ordinance aimed not at the content, but at the secondary effects – (attraction of bad demographic, crime, violence, drugs) Boos o Can’t use try to claim that we’re targeting the secondary effects of the listener’s reaction (effect on diplomatic process) Effects cannot be related to the communicative impact; can’t regulate the persuasive impact o NO – this is targeting a direct impact of a particular category of speech must target a secondary feature that is associated with a certain type of speech Pornography as subordination with secondary effects such as rape – (but again we run into the problem of the secondary effects arising because of the effectiveness of the speech! Hate Speech? – (maybe argue about the secondary effects of it just want to make sure that the secondary effects don’t have anything to do with persuasion or the effectiveness of the communication) (BE CREATIVE – Fried seems to like this stuff) M.Glick – First Amendment – Fried – Fall 2007 160 of 172 Captive Audience THINK OF THE VARIOUS TYPES OF PUBLIC FORUMS Hostile Work Environment Pacifica intrusion into home – (can’t unring the bill!) o Push vs. Pull o Children o Availability of Alternatives Lehman v. Shaker Heights OK to regulate ads/music on bus because it’s a captive audience Harper captive audience in public school NOT o Cohen o Erzoznik NOT a captive audience – (avert your eyes!) o Internet is not a captive audience situation because you have to take affirmative steps M.Glick – First Amendment – Fried – Fall 2007 161 of 172 Lesser includes the greater arguments ARGUMENT: Gov’t doesn’t have to give benefit, so we can restrict it however we want usually fails o Designated Public Forum never had to open it up, but now that you have, you can’t limit o Speiser – (no constitutional right to forum or tax deduction, but once it’s been designated, then can’t restrict in content- or viewpoint-neutral manner) Can’t restrict for exercising your constitutional right (1A) o Pickering – (no right to job in the 1st place, but can’t be dismissed for speaking out on matter of public concern) o Elrod/Branti – (no right to job in 1st place, but can’t be dismissed due to political beliefs/patronage) Baseline issue with Sherbert o (New Property) – LGA gives every person away but then takes it away because of religious exercise Is that a penalty? o (Old) – The LGA is giving you something EXTRA, so the gov’t can most certainly take it away Hate Speech o CAN regulate fighting words entirely – (ban them entirely) o CAN’T only ban fighting words when they express a certain idea – (hatred of a certain race / criticism of gov’t) Posadas o Rehnquist says it’s fine for Puerto Rico to regulate advertising of gambling since they could regulate gambling entirely in the first place – (“Vice Exception”) o (Vice Exception overruled in Coors / 44 Liquormart) M.Glick – First Amendment – Fried – Fall 2007 162 of 172 Coors / 44 Liquormart o CAN limit the amount of alcohol in the beer o CAN’T limit the advertising Rehnquist Dissent in Grendel’s Den o Gov’t has the power to ban liquor altogether, so of course we can regulate liquor license by whatever means we want M.Glick – First Amendment – Fried – Fall 2007 163 of 172 Emphasis on VALUES Meiklejohn/Sunstein o Free Speech should be harnessed such that it makes a better Democracy Democracy is good because it ensures equality, mutuality, and a multicultural society Keegstra (CAN) – equality / mutual respect / multiculturalism Harper (9th Cir.) – democracy/tolerance/equity Turner (Breyer concurrence) – there is a value in free public dbate and providing a variety of views o 1A values on both sides “variety of views” supersedes cable operators’ 1A right to editorial control Post: No prior privileged values Prior Privileged Values would seem to indicate Content- or Viewpoint-specificity M.Glick – First Amendment – Fried – Fall 2007 164 of 172 Conduct/Expression Distinction Can’t punish conduct because of its expressive aspect o Court doesn’t trust legislature to properly monitor the actspeech distinction – (worried they’re targeting speech under the guise of regulating action) Regulating the ACT Regulating the EXPRESSION O’Brien Recognizes that expression/communication require action, so try to pry action and communication apart If you’re regulating the action Religion Ee give freedom of expression more OK – (regulation must be protection than free exercise religion can unrelated to the communicative be beaten by LGA, but expression cannot impact) unless O’Brien If you’re regulating the Rationale: communication NO – (Is the The external effects of religion are more activity intended to convey a serious exercise is not just expression message?) (where you could just avert your eyes/ears), it o BUT at some point we can is CONDUCT still bar the conduct even if he intended to express an idea – (person could Barnes Regulation OK because it seems like we’re claim that his conduct regulating the ACT falls on the other side should be allowed because of O’Brien he was “expressing an idea” but the court draws lines) Commerical Speech We’re comfortable giving less protection to commercial speech because it’s aimed at a course of conduct Commercial association cases NO this is part of a valid regulatory scheme Flag-Burning Can’t ban the ACT of flag-burning because it has expressive aspect Hate Speech – (WI v. Mitchell) OK because we think the regulation concerns stuff on the conduct side – (the action is more dangerous because it has certain characteristics) Synagogue Hypo: OK to ban “defacing a place of worship” Hate Speech – (RAV) Concerned with penalizing action BECAUSE it involved expression Synagogue Hypo: NOT OK to ban “defacing a place of worship because of hatred or contempt” M.Glick – First Amendment – Fried – Fall 2007 Regulating the ACT Rumsfeld v. FAIR Solomon act OK because it’s content-neutral regulation of ACTION FDA Cases – (Thompson / Henney) Try to argue that they’re keeping people ignorant as part of a regulatory context Paradox of why we allow SEC to regulate what companies must disclose or why FDA can mandate drug companies to label Turner Court rules this is not compelled speech, but rather a regulation of action that is OK because it’s content-neutral – (Kennedy says O’Brien is inapplicable because it relates to the suppression and not promotion of speech and distinguishes Tornillo by saying this is action, not speech) CF disagrees: The “action” in question here was SPEECH NOT content-neutral because it’s propping up public television which is an inherent commentary on the value of such speech Campaign Finance Laws We think we can regulate contributions because they’re more akin to conduct than speech Problem: We limit contributions because of the message they send – (to candidate) Lawyer Advertising OK to regulate because it’s commerce/action 165 of 172 Regulating the EXPRESSION Ignorance Cases We think this is regulating ideas, not merely regulating the businesses and marketplace United Foods Struck down because the association is solely for the purpose of speech – (the only thing they do M.Glick – First Amendment – Fried – Fall 2007 166 of 172 Public Forum Checklist 1. Is this a traditional public forum (streets/parks)? Hague time in memorial – (try to make some connection to street/park) 2. Is this a place that belongs to me (non-gov’t venue home/office/rented auditorium)? 3. Has this been designated a public forum? o No “magic words” o Might look to function – (Martin v. Struthers) o (Make the undesignated public forum argument) 4. Was the designation limited to certain subjects or persons? o Lamb’s Chapel / Widmar / Rosenberger limited to students 5. Is this a limited public forum? o (Gov’t can’t control viewpoint even if limited) 6. Is this one of those weird “non-public forums” where you can’t use your free speech rights to tell the gov’t what to do? – (regulation must be reasonable and unrelated to viewpoint) 7. Is this a subsidy case where gov’t CAN have a viewpoint? o Finlay / Rust / Forbes 8. Is there a Freedom of the Press argument that can be made? (Richmond Newspapers – courtroom as a sort of traditional PF) 9. Think of “metaphysical” public forum (like ballot in Anderson). 10.What kind of regulation is the gov’t seeking? o TPM only o TPM + Topics (but not concerned with viewpoint on those topics) o TPM + Topics + Viewpoint M.Glick – First Amendment – Fried – Fall 2007 167 of 172 Does your group have a message? YES o Dale o Hurley o Amos – (and we won’t begin inquiring because that’s an Establishment Clause problem) NO o Jaycees o Rotary Who gets to decide? o CF: once you’ve determined you want to have an expressive association with someone, it should be up to YOU to decide what that message wants o Rehnquist (Majority in Dale): give deference to an association’s assertions regarding the nature of its expression and what would impair that expression o Stevens (Dissent in Dale) I do (The court should be able to tell) o Maybe we don’t want gov’t looking into the religious message because that’s excessive entanglement (Brennan in Amos) o Rotary Club: Court will make a careful inquiry into the objective characteristics of the particular relationships in question o Waters v. Churchill – (the EMPLOYER gets to decide whether the speech concerns a matter of private concern – which would be within his managerial interest – or public concern – which would be protected. He must reasonably believe it’s a matter of private concern) M.Glick – First Amendment – Fried – Fall 2007 168 of 172 “Don’t want to make you choose” Cases Barnette – (Pledge) Lee v. Weisman – (prayer at graduation) Wooley v. Maynard – (“Live Free or Die”) – (reqs affirmative step) Tornillo – (don’t want to make you choose between speaking your mind and being forced to allow a reply vs. not speak at all) THINK OF FREEDOM OF THE MIND and PERSONALITY M.Glick – First Amendment – Fried – Fall 2007 169 of 172 Concern about chilling speech Vague statutes – (not sure where we stand) Overbroad statutes where we’re not concerned about whether we fit in Tornillo – (forced right of reply might force me to not speak in the first place) o BUT then we have Red Lion maybe there’s some rationale for when we would make you give a right of reply (here: scarcity of airwaves) McIntyre – (no anonymous pamphleteering) o BUT then we have BCRA §311 (“I’m Hillary Clinton and I…”) Branzburg – (want privilege to deny subpoena because if I have to disclose my informant, it will chill what comes out of my mouth) Zurcher Dissent – (no worth of my right to publish if gov’t can uncover my confidential informant; chills journalism because I won’t publish) Defamation: Concern about harsh libel laws potentially chilling criticism of gov’t so we make the P prove the “substantial falsity” and that the defendant had reckless disregard/intentional falsehood (NY Times) PG&E at the very least, it forces you to ALTER your speech Freedom of Association NAACP v. Alabama – (if we know our membership lists are going to be made public, then we might not associate in the 1st place) (Maybe make some “public forum” argument about how gov’t will not “designate” some spaces if it knows it must then allow everything in) M.Glick – First Amendment – Fried – Fall 2007 170 of 172 Internet Importance of Turner signals increasing willingness to regulate technology – could lead to more regulation of the internet Reno – (Internet not as invasive as Broadcasting “pull”) Number of valid alternatives – (filtering software + locks) Remember that we’re looking for STATE ACTION Probably subject to LGA (antitrust) M.Glick – First Amendment – Fried – Fall 2007 171 of 172 RANDOM Could we argue that this person is like a gov’t contractor? Could we argue that this is some sort of subsidy? Could we argue this is a public forum? Could we argue there is a gov’t interest in management? Is there a scarcity argument? (Red Lion and maybe subsidies gov’t allocating scarce resource, so can force stuff that you couldn’t in other areas) o BUT remember that parks/streets are scarce and we only let the gov’t do TPM o (Think of scarcity in the other regard too scarcity of people who could possibly afford this sort of speech) Is there a secondary effects argument? Is there a captive audience that we want to protect? Can you set up a shadow organization to avoid the reach of these laws? (Rust, Soft Money limits and PACs, Corporations forming PACs to avoid Tillman Act) Is this legal opinion trying to constitutionalize something? o FOIA – (Richmond Newspapers) o Civil Service Reform – (Patronage cases) o Branzburg – (shield laws) Is there a history argument? (“Time in Memorial”; McIntyre, Van Orden and TX State Capitol) M.Glick – First Amendment – Fried – Fall 2007 172 of 172 STANDING Flast v. Cohen – (taxpayer suits OK in challenges to Establishment Clause) Overbreadth – (exception to the standing rule) State Action – (remember this; distinguished from other countries)