Download Commercial Speech - El Camino College Compton Center

Freedom of Speech
Introductory Comments
•
Does “No Law” really mean “No Law?”
•
NO: According to the Court, there are
always instances when government may
suppress speech.
•
Only Justices Black and Douglas really took
a hardcore literal interpretation.
The Development of Legal Standards:
•
We will begin with a discussion of
standards for deciding when you have this
right.
•
Do we want the Court to be the arbiter of
such important decisions during times of
crisis?
•
Would the Court decide differently when
we are not in a time of crisis?
The First Cases: World War I
•
Congress passes the Espionage Act (1917).
•
Congress passes Sedition Act (1918).
•
These two laws form the base of the conflict
in Schenck v. U.S. (1919).
Schenk v. U.S. (1919)
•
Does the Espionage Act violate the First
Amendment guarantee of free speech?
•
No. 9-0 vote.
•
It is clear that the intended effect of the
pamphlet was to influence people to
obstruct the draft. It is therefore a clear and
present danger.
Keys to Schenk: CLEAR AND
PRESENT DANGER
• Again, a liberal standard that reaches a
conservative outcome. The Court reaches similar
conclusions in Frohwerk (1919) and Debs (1919).
• General rule: There must be a clear link between
what is being said and the evil at hand.
•
Is it a good test?
•
Within a year the Court reconsiders.
Abrams v. U.S. (1919)
•
Was Abrams’s right to free speech violated
when the government arrested him for
distributing antiwar pamphlets?
•
No. 7-2 vote.
•
The avowed purpose of the leaflets was to
throw the country into state of revolution
and to thereby frustrate the military
program of the government. As such, we
must uphold the convictions.
Abrams: BAD TENDENCY TEST
•
Do the words have a tendency to bring
about an evil?
•
This clearly dilutes the clear and present
danger test.
•
Note that this case was decided LESS
THAN A YEAR after Schenck.
•
Reiterated in Gitlow (1925).
Gitlow v. New York (1925)
•
Does the state criminal anarchy law violate
the First Amendment right to free speech
through the due process clause of the
Fourteenth Amendment?
•
No. 7-2 vote.
•
The Manifesto here advocates and urges
mass action which shall foment industrial
disturbances and ultimately destroy
parliamentary government.
Bad Tendency Test Continues
•
Whitney v. California (1927): Speech
inimical to public welfare and that may
incite crime is not protected speech.
•
Note: Brandeis and Holmes: BEHAVIOR
KEY.
Implications of Gitlow and Whitney
•
The First Amendment was interpreted as
being designed to promote the common
good, not to protect individual speech.
•
The Court was clearly swept up in the
nationalist fervor of the 1920s.
•
Q: What should the test be?
The 1930s: Leading to Preferred
Freedoms
•
Stromberg: Laws that ban certain speech
must not be overly vague. The signal is that
they are more sympathetic to First
Amendment claims.
•
DeJonge: Court overturns Whitney.
Reverts to the CLEAR AND PRESENT
DANGER TEST.
Carolene Products (1938): Preferred
Freedoms
•
The usual presumption that laws are
constitutional is waived if a law appears to
conflict with the Bill of Rights.
•
The judiciary has a special responsibility to
defend these rights – including freedom of
expression.
•
The Court has a special role to protect the
rights of minorities and unpopular groups.
Using Preferred Freedoms
•
Schneider (1939): Struck law that restricted
solicitation as a burden on free speech.
•
Thomas v. Collins (1945): Mix of
preferred freedoms and clear and present
danger. Ultimately, prior restraint is a
violation of free speech.
Dennis v. U.S. (1951)
•
Does Smith Act violate the First
Amendment guarantee of free speech?
•
No. 6-2 vote.
•
We must determine in each case whether
the gravity of the evil, discounted by its
improbability, justifies the invasion of free
speech necessary to avoid the danger. We
adopt this statement as the rule.
Clear and Probable Danger
•
Dennis v. U.S. (1951)
•
Gravity of evil DISCOUNTED by its
improbability justifies invasion of freedom
of speech.
•
What do the dissents set up?
•
This new test REALLY fueled
McCarthyism.
The Warren Court Era
•
Pennsylvania v. Nelson (1956): The federal
government has the sole control over subversive
activity.
•
Yates v. U.S. (1957): Court modified the Dennis
standard. It differentiates between advocacy and
abstract doctrine.
•
The Court DID NOT fully go back to preferred
freedoms.
•
Court ends the McCarthy era with Brandenburg.
Brandenburg v. Ohio (1969)
• Does Ohio syndicalism law violate First
Amendment guarantee of free speech?
•
Yes. 8-0 vote.
•
We cannot sustain the Ohio law. It punishes
persons who advocate or teach violence of
accomplishing political reform. The judge did not
refine the definition of the crime in terms of mere
advocacy not distinguished from incitement to
imminent lawless action.
Overview of Free Speech Standards:
Going Full Circle
• Clear and Present Danger (Schenck)
• Bad Tendency (Abrams and Gitlow)
• Clear and Present Danger (DeJonge)
• Preferred Freedoms (Carolene Products)
• Preferred Freedoms/Clear and Present Danger (Thomas v.
Collins)
• Clear and Probable Danger (Kovacs and Dennis)
• Imminent Lawless Action (Brandenburg)
The Regulation of Speech
•
Symbolic speech
•
Public forums
• Hate speech
•
The right not to speak
• Commercial speech
•
Freedom of association
Symbolic Speech
• Thornhill (1940): Picketing is protected.
•
Milk Wagon Drivers Union (1941): Regulation of
picketing is okay (violence is the key).
•
Question: Why are these cases so difficult?
•
U.S. v. O’Brien (1968).
•
Tinker v. Des Moines (1969).
U.S. v. O’Brien (1968)
• Does the antidraft portion of the Selective Service
Act violate the First Amendment of the
Constitution?
• No. 7-1 vote.
•
We cannot accept the view that a limitless variety
of conduct will be considered speech, whenever the
person intends to express an idea. It does not
follow that the destruction of draft cards is a
constitutionally protected activity.
Tinker v. Des Moines (1969)
•
Is the wearing of armbands by public school
students during the school day a form of protected
speech under the First Amendment?
•
Yes. 7-2 vote.
•
The problem in this case lies in the area where
students in the exercise of their speech rights
collide with school rules. While the school
officials sought to punish silent, passive,
expression, there is no indication that the work of
the schools or any class was disrupted.
Symbolic Speech
•
Street v. New York (1969): Used preferred
freedoms doctrine, but NO majority.
•
Spence v. Washington (1974): Equated the
speech here with the Tinkers’ nonviolent
expression.
•
Texas v. Johnson (1989).
•
Cary v. U.S. (1990): Violence is the key!
Texas v. Johnson (1989)
•
Does a state law that prohibits the burning
of the American flag violate the First
Amendment freedom of expression?
•
Yes. 5-4 vote.
•
The bedrock principle underlying the First
Amendment is that the government may not
prohibit the expression of an idea simply
because society finds the idea itself
offensive or disagreeable.
Pure Speech and Public Forums
•
Q: Why is public speech different from
private speech or speech in a limited forum?
•
A: Speech might threaten order and lead to
violence.
•
The key is to look at the effect of speech.
General Public Forum Issues
•
Edwards v. S.C. (1963): Protesting nonviolently on
state capitol grounds is protected.
•
Cox v. Louisiana I and II (1965): Violence is the
key to regulation. BUT, the state has an interest in
protecting their judicial systems.
•
Adderly v. Florida (1966): Reasonable regulations
of WHERE protests may take place are fine.
•
Clark v. Community for Creative Non-Violence
(1984): May regulate time of protests.
Chaplinsky v. New Hampshire (1942)
•
Does a state law that prohibits the use of offensive
words to someone on the street violate the First
Amendment right to freedom of speech?
•
No. 9-0 vote.
•
We are unable to say that the limited nature of the
statute . . . contravenes the constitutional right of
free expression. It is . . . narrowly drawn and
limited to define and punish specific conduct lying
within the domain of state power, the use in a
public place of words likely to cause a breach of
the peace.
Public Forums: Application of
Fighting Words Doctrine
•
Terminello v. Chicago (1949): Speech is
protected unless there is a clear and present
danger.
•
Feiner v. New York (1951): Speech that
tends to incite violence may be stopped.
•
Both cases lead to Cohen v. California
(1971).
Cohen v. California (1971)
• Does the First Amendment protect a person’s right
to wear a political statement on his clothing that
includes obscene language?
• Yes. 5-4 vote.
•
The constitutional right of free expression is
powerful medicine in a society as diverse and
populous as ours. The air may be filled sometimes
with verbal cacophony, and this is a strength not a
weakness.
Public Forum and Abortion Protests
•
Madsen v. Women’s Health Center Inc. (1994):
•
Upheld an injunction against protests within 36 feet
of a clinic.
• Upheld noise restrictions.
•
Struck down ban on protests within 300 feet of
clinics.
•
Test: Does the provision of an injunction burden
no more speech than is necessary to serve a
legitimate governmental interest?
Hill v. Colorado (2000)
•
Does a law that prohibits someone from
approaching another person for the purposes of
protest, education, or counseling violate the right to
free speech in the First and Fourteenth
Amendments?
•
No. 6-3 vote.
•
The regulation here is simply a content neutral
time, place, and manner regulation. The standard
for this type of regulation is whether the
government adopted it because of disagreement
with the message it conveys.
Hate Speech
•
Speech that arises from “hostile,
discriminatory, and prejudicial attitudes
toward another person’s innate
characteristics: sex, race, ethnicity, religion,
sexual orientation.”
•
Usually this is not political speech in the
traditional sense. Its central aim is hostility.
•
Tension is between free speech and equal
protection.
Hate Speech
•
Skokie (1977): Court allowed Nazis to
march, but it did not deal explicitly with
hate speech.
•
First real case: R.A.V. (1992).
R.A.V. v. St. Paul (1992)
•
Is content discrimination reasonably
necessary to achieve the compelling interest
of decreasing bias-motivated crime?
•
No. 9-0 vote.
•
We find the St. Paul statute facially
unconstitutional. St. Paul is simply not
allowed to prohibit speakers who express
views on disfavored subjects.
Wisconsin v. Mitchell (1993)
• Does a law that enhances penalties for crimes based
on hate violate the constitutional right to free
speech?
• No. 9-0 vote.
•
The statute in this case is directed at conduct
unprotected by the First Amendment. Indeed, the
Wisconsin statute singles out for enhancement biasinspired conduct because this conduct is thought to
inflict greater individual and societal harm.
Hate Speech
•
How does R.A.V. compare with Mitchell?
•
Black v. Virginia (2001).
The Right Not to Speak
•
Gobitis (1940): Upheld flag salutes.
•
Barnette (1943): Deals again with flag
salutes.
West Virginia v. Barnette (1943)
•
May a state, consistent with the First Amendment,
force students to salute the American flag and
recite the Pledge of Allegiance?
•
No. 6-3 vote.
•
The Fourteenth Amendment, as now applied to the
states, protects the citizen against the state itself
and all of its creatures – boards of education not
excepted. None who acts under color of law is
beyond reach of the Constitution.
The Right Not to Speak
•
Wooley v. Maynard (1977): License plate
slogans.
•
University of Wisconsin v. Southworth
(2000): Universities must use student funds
in a viewpoint neutral manner.
•
Rumsfeld (2006).
Rumsfeld v. FAIR Inc. (2005)
•
May Congress withhold funds from colleges
and universities who deny military
recruiters access to their campuses?
•
Yes. 8-0 vote.
•
Under this statute, law schools remain free
to express whatever views they have on the
military’s employment policy. It affects
only what law schools must do, not what
they may or may not say.
Commercial Speech
•
Usually seen as closer to commerce than to
speech.
•
Courts have allowed greater regulation of
commercial speech as compared to political
speech.
Commercial Speech
• Bigelow v. Virginia (1975): Extension of First Amendment to
commercial speech, but with limitations (although ill
defined).
• Virginia State Board of Pharmacy (1976): Economic nature
of ads does not take away First Amendment protection.
• Bates (1977): Attorney advertisements.
Bates v. State Bar of Arizona (1977)
•
May lawyers constitutionally advertise the
prices at which certain routine services will
be performed?
•
Yes. 5-4 vote.
•
We find that the postulated connection
between advertising and the erosion of
professionalism is severely strained.
Commercial Speech
• Linmark (1977): Struck ban on For Sale signs.
•
Central Hudson (1940): Test for commercial
speech protection.
Central Hudson v. PSC of New York
(1980)
•
Does the Public Service Commission’s regulation
on advertising violate the First and Fourth
Amendments because it completely bans
promotional advertising by an electrical utility?
• Yes. 8-1 vote.
•
In terms of the relationship between the state’s
interest at promoting fairness and efficiency, and
the advertising ban, the arguments for the interest
do not justify the restriction on protected speech.
Such conditional and remote eventualities put forth
by the state simply cannot justify silencing
appellant’s promotional advertising.
Freedom of Association
•
Roberts (1984): First Amendment does not
apply equally to all private organizations.
•
Hurley (1995): Allowing gay rights group
to march significantly burdens expression of
parade organizers.
•
Dale (2000): Boy Scouts case.
Boy Scouts of America v. Dale (2000)
•
Does the First Amendment right to association
allow the Boy Scouts of America to forbid
membership to homosexuals?
•
Yes. 5-4 vote.
•
The interests embodied in New Jersey’s public
accommodations law do not justify such a severe
intrusion on the Boy Scouts of America’s right to
freedom of expressive association. The First
Amendment prohibits the state from imposing such
a requirement through the application of its public
accommodation law.