Académique Documents
Professionnel Documents
Culture Documents
A. Incitement
1. The Current Rule: Brandenburg v. Ohio (1969)
a. Advocacy of the use of force or of law violation is not
protected when:
i. it is directed to inciting or producing (mens rea =
intent)
ii. imminent lawless action (does not include advocacy of
illegal action at some indefinite future time Hess v.
Indiana)
iii. and is likely to incite or produce such action.
b. speech must be evaluated at the time it was made (even if the
action occurred later)
c. test does not require magic words, thinly veiled communication
or code words can still incite violence.
d. In this case, Court struck down the conviction of a Klansman
who called for revengence against the government.
2. Prior to 1919, understanding was that First Amendment only protected
against prior restraints (Blackstone)
3. Holmes Conversion
a. Schenck v. U.S. (1919)
i. Holmes articulates his clear and present danger test.
Speech is not protected when it is used in such
circumstance and [is] of such a nature as to create a clear
and present danger that they will bring about the
substantive evils that Congress has a right to prevent.
ii. protection of free speech would not protect a man in
falsely shouting fire in a theatre and causing a panic.
(emphasis added)
iii. part of this test is that the scope of protected speech
changes with circumstances. When nation is at war, First
Amendment is less protective than in times of peace.
4. Possible policy rule to take from this case is that the states interest in
paternalistic regulations increases as the knowledge & power disparity
between the speaker and the consumer increases.
E. 44 Liquormart, Inc. v. Rhode Island (1996)
1. Statute prohibited advertising of liquor prices except at point of
purchase.
2. Seven Justices agreed that statute violated the Central Hudson test.
State said its interest was in temperance, Court says that, while
suppressing price information will likely lead to higher prices, there is no
indication that this will prevent heavy drinkers from drinking.
3. Also, higher prices could be maintained with taxes or other economic
regulation.
4. Court was particularly concerned with suppression of truthful
information. 4 Justices (Ginsberg, Stevens, Thomas & Kennedy) say that
government must show a very substantial reason to ban advertising of the
truth.
III. Strict Scrutiny
A. prongs of the test
1. compelling government interest
2. which is substantially advanced by the challenged law
3. cannot be over or underinclusive
4. must not be less restrictive means (and/or narrowly tailoring)
B. Carey v. Brown (1980)
1. state statute prohibits all picketing, except for labor picketing. Court
says this statute is not valid because it is not content neutral. Can forbid
all picketing, cannot select picketers.
2. also a fear of sham statutes. The fact that government allows some
kinds of picketing shows that government is not really concerned with
their stated reason (privacy in the home). Law is underinclusive.
4. Breyer dissent: filters dont get at all porn and restrict other things (over
and underinclusive), they cost money, and they require effort on the part of
the parents.
E. Republican Party of Minnesota v. White
1. candidate for judicial office cannot announce their views on legal issues
2. Scalia majority: this law fails strict scrutiny. Strict scrutiny is triggered
b/c it is a content based restriction on speech
3. state asserted interest of preserving impartiality. Court says this law
was not narrowly tailored to fit this interest.
4. dissent: judges are not like ordinary people, must maintain appearance
of impartiality
IV. Campaign Finance Regulation
A. Overarching restricting campaign speech is the desire to ensure a handful of
persons do not have a massively disproportionate control over political dialogue.
1. Buckley rejects this with respect to direct speech through money (money
spent on political expression). [T]he concept that government may
restrict the speech of some elements of our society in order to enhance the
relative voice of others is wholly foreign to the First Amendment.
2. Purpose of First Amendment is to secure the widest possible
dissemination of information from diverse and antagonistic sources and
to assure unfettered interchange of ideas for the bringing about of
political and social changes desired by the people. (quoting New York
Times).
B. Arguments for constitutionality of CFR
1. First Amendment is in conflict with Guarantee Clause. (problem is that
First Amendment amends the Guarantee Clause). (use Ryans argument
here).
2. another argument: in a modern society, First Amendment must empower
the government to preserve the marketplace of ideas.
3. no Justice has ever said that the First Amendment can equalize the
voices which people are hearing.
C. Buckley v. Valeo (1976)
interest, as did the fact that her comment was only overheard by two
employees, one of whom was her boyfriend.
d. Scalia dissent: people in government offices should not be able to
advocate against the purpose of that office.
VII. Government as Postmaster
A. old rule is government creates post office, so government may regulate it
B. current rule is that the government does not have an additional authority to
regulate the post office with respect to content-based regulations
1. one reason for this rule is that Post Office is analogous to a traditional
public forum, while something like the UNC e-mail server (which can be
restricted) is analogous to a designated public form
2. another reason for this rule is that the Post Office has a monopoly on
certain types of traffic, such as first class mail.
C. Government has nearly limitless power to enact content-neutral restrictions,
such as setting postal rates or limiting package sizes.
VIII. Government as Landlord
A. law establishes four different kinds of forums
1. Traditional public forums: most protective test. Strict scrutiny if
content-based, special intermediate scrutiny test if content-neutral. These
include sidewalks, parks and the like (but not airports)
2. Designated public forums: forums which are created for a specific
communicative purpose. Government may limit communication on these
forums to things reasonably related to the purpose of the forum (still
cannot state a forum purpose which is viewpoint based).
3. Non-public forums: all other government property that is not used by
the government itself for speaking. Here, government may make any
regulation which is reasonable.
a. Restriction must be consistent with the governments legitimate
interest in preserving the property for the use to which it is
lawfully dedicated. Perry Education Assn v. Perry Local
Educators Assn
3. Not only can states not censor speech to encourage equality (Buckley),
but they cannot force people to speech. Government can still do speech on
their own.
D. Wooley v. Maynard (1977)
1. challenge to state law requiring license plates to display Live Free or
Die. Court says this is compelled speech because it makes displaying
this message a condition of driving.
2. State asserts two interests, identification of cars (and NH cars), and
promoting appreciation of history, individualism and state pride
3. First interest fails b/c cars can be IDed w/ the motto. Second interest
fails because it is not ideologically neutral. State cannot have a
compelling interest in imposing a viewpoint.
E. Pruneyard Shopping Center v. Robins (1980
1. state law requires local businesses which are open to the public to allow
certain kinds of speech and solicitation
2. Court affirms this law, business by opening itself to the public also give
up its right to restrict the public, when the publics action do not disrupt
their business.
3. also, law is content neutral
4. finally, little likelihood that the law will cause people to impute other
speakers beliefs onto the business.
F. Pacific Gas & Elec. Co. v. Public Util. Commn (1986)
1. ordinance requires P to include newsletters written by dissident
organizations to counterbalance political newletters included in Ps
billings. Under ordinances reasoning, the extra space in the billing letters
are the property of the customers, not of the P
2. Court says this law is unconstitutional by compelling speech. By only
forcing the company to include dissident opinions, the law discriminates
on the basis of content
3. Rehnquist dissent: First Amendment is about individual expression,
should not apply to corporations.
3. this case is distinguishable from Dale b/c the Jaycees did not want to
articulate an anti-women policy, they articulated gender neutral expression
which they (Court says wrongly) say will be substantially effected by the
admission of women.
D. Boy Scouts v. Dale (2000)
1. an organization may state what their policy or reasons are for exclusion,
and the court will accept it as fact
a. Majority was likely concerned with judges telling organizations
what their opinions are.
b. also a problem of an organizations history preventing them
from changing if courts can define their expressive purpose.
c. likely impermissible for an organization expressly state their
exclusion is ad hoc. Probably must be some history of
discrimination.
d. dissent: never was a real policy against gays, Boy Scouts merely
decided to get rid of Dale. Must be an official policy to be
expressive association
2. court says that since Boy Scouts claim that they want to express that
homosexuality is not acceptable, it would be a substantial burden to force
the Boy Scouts to admit out homosexuals. By allowing openly gay people
to be Boy Scouts, this would undermine the Scouts intended expression.
a. if including members would force an organization to send a
message which is inconsistent with their stated expression,
discrimination is likely unconstitutional.
b. issue is still a matter of substantial burden. It is possible that a
closet case could not be excluded b/c this would not substantially
burden the Boy Scouts message (not express in opinion)
3. dissent: the Boy Scouts expression was very vague. To make
association into expressive association, must show that the expression is
public and is a central part of the organizations purpose.
4. implicit in Dale is that strict scrutiny is so tough to meet that the Court
wont even run through the analysis
4. under Smith neutral laws are ok, can avoid the Smith rule by showing a
right is a hybrid right which invokes another fundamental right (such as
the right to raise your children in Yoder)
5. some courts have said that the non-religious aspect of a hybrid right
must be a winning claim (hybrids dont matter). Others have said it must
simply be a colorable claim. Some courts fall in the middle.