FIRST AMENDMENT OUTLINE
Spring 2015
Broyles
FREEDOM OF EXPRESSION
I. Background & Rationales
A. Background
1. 1st amendment: protects freedoms of speech, press, religion & assembly from federal interference
a. extended to states through 14th amendment DPC by Gitlow v. NY (1925)
2. remember that some categories of speech are NOT protected: obscenity, fraud, defamation
B. Three Major Rationales
Marketplace Model
Abrams v. US (Holmes dissent)
Applies social Darwinism to ideas: speech should be protected so that the “best” ideas can win out in the free market
Persuasion principle: state cannot prevent individuals from being persuaded
Criticisms: (1) goal is attainment of truth, but says we must keep looking for truth because we can never really know it; (2) it is not really a fair free market and dissent doesn’t have a fair shot; Barron: protecting the right of expression is not equivalent to providing for it; access to the media (but internet changes this)
Citizen Participant Model
Mieklejohn: “principle of freedom of speech springs from necessities of self-government, so public speech should be protected absolutely
Bork: would only protect political speech
Criticisms: (1) leads to a fixed set of protected speech; (2) non-public or non-political speech may also help citizens participate; (3) who decides what is public or political and what is not
Individual Liberty Model
Brandeis/Mill: speech has intrinsic value “as an ends and a means”; it is protected because of its value to the individual in developing and being autonomous
Safety valve theory: a society that does not allow free expression is fragile; freedom of expression is “social cement”
Criticisms: (1) Bork: if you protect everything, you protect nothing (too encompassing); (2) other activities contribute to autonomy and development, so why only protect speech
1. Abrams v. United States (1919): SC allows gov’t to punish publishers of pamphlets criticizing forces sent to challenge Communists under Espionage Act; Holmes dissent sets out marketplace of ideas model: “the ultimate good desired is better reached by free trade in ideas…the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
2. Other Rationales
a. Tolerance: Bollinger: one of the goals of free expression is to teach a heterogeneous society to be tolerant of one another
b. Public Choice: Farber: information is a public good
c. Equality Principle: MacKinnon & Delgado: freedom of expression should NOT be valued above all other interests; the right to be free from discrimination should allow hate speech to be banned
II. Structure of Speech Regulation: Content-Based v. Content-Neutral
A. Content-Based and Content-Neutral Regulation: distinguishes between when the government undertakes to regulate speech because of message and when it regulates for some other purpose
1. test for content-based: must be a compelling government interest and regulation must be narrowly tailored to serve that interest (strict scrutiny)
a. subset: viewpoint-based regulations
b. there ARE content-based regulations: obscenity, etc.
2. test for content-neutral: must be a substantial governmental interest and must be narrowly tailored to that interest AND it must leave open alternative avenues of communication (sounds like intermediate review, but is in practice much more deferential)
a. similar to O’Brien (see below
B. Renton v. Playtime Theaters (1986): SC upheld city ordinance prohibiting
adult theaters from being located within 1000 feet of schools, churches,
etc.; classify as content-neutral based on secondary effects of theaters (crime, noise, etc.).
1. justified on grounds unrelated to suppression of speech AND allows alternative means of communication (not total suppression)
2. valid time place manner regulation
3. criticism: can argue that it IS content-based, also VERY deferential
4. note: this is NOT obscene; if so it would be unprotected
C. City of Los Angeles v. Alameda Books (2002): SC says it’s okay for city to reduce concentration of adult establishments by saying there can’t be more than one in one building under Renton rationale: it’s a content-neutral ordinance based on secondary effects and upheld under intermediate scrutiny
1. Kennedy concurrence: this is NOT content-neutral, but since it’s aimed at secondary effects, should still use intermediate scrutiny
2. Dissent: should use intermediate scrutiny but there should be evidence of the secondary effects (crime, property devaluation)
D. Boos v. Barry (1988): SC strikes down ordinance prohibiting critical signs directly outside of foreign embassies; rejects relying on Renton because this IS content-based (based on the critical nature of speech) and NOT on secondary effects
1. reaction of listeners is NOT a secondary effect; it is a direct effect; secondary effects must be totally unrelated to speech (but is that ever really true??)
2. secondary effects not used outside adult theater context
E. Republican Party of Minnesota v. White (2002): SC strikes down a content-based announce clause that prohibits candidates for judicial office from stating positions on political issues in order to further state’s interest in impartiality and the appearance of impartiality; using strict scrutiny the SC finds that impartiality/appearance of are NOT compelling interests and that the clause is NOT narrowly tailored because it is underinclusive: candidates can say anything before or after they are candidates.
1. dissents: judges are not political actors and their elections can be regulated more heavily; should not be allowed to state their position on an issue that may come before them as a reason to vote for them; this IS a compelling interest; forbidding it allows end-run around pledges & promises clause where all candidates agree not to pledge particular outcomes in disputes
F. Watchtower Bible & Tract Society v. Village of Stratton (2002): Without
deciding on SoR, SC strikes down for overbreadth, using a balancing test, ordinance requiring people to get a permit before going door-to-door to distribute information
1. informed by: historic value/importance of door-to-door canvassing for both political and religious causes, especially for those with little money or power
2. balanced with: town’s interest in preventing crime & fraud and protecting privacy (valid interests)
3. reasons to strike down: (1) people want to support causes anonymously; (2) requiring a license silences speech from people who will not want to get them; (3) silences spontaneous speech
4. not tailored to interests: knock will be an annoyance whether licensed or not; criminals will not seek permits
5. dissent: permit requirement without discretion (content and viewp
ake a hydrogen bomb (the gov’t will always win with this balancing); but, so many other did it that gov’t stopped getting injunctions
F. Snepp v. United States (1980): doctrine of prior restraint does NOT prevent CIA from punishing employee who violates employment agreement by publishing documents w/o CIA clearance during or after period of employment; it IS a prior restraint but CIA can require clearance as a condition of employment
G. Walker v. Birmingham (1967) (challenging a prior restraint): parade marchers cannot violate an injunction banning their parade and later challenge its validity; collateral bar rule = individual who has knowingly violated an injunction cannot defend against a contempt citation on the ground that the injunction was invalid
1. dissent: not disrespectful to law to violate a clearly unconstitutional statute and then defend against it; cannot elevate state law above 1st amendment w/o violating supremacy clause
a. allows state courts to punish as contempt what they could otherwise not punish at all
2. Shuttlesworth v. Birmingham (1969) (companion case): state cannot convict reverend for marching without a permit as required by a statute: failure to test is not determinative for statutes, only orders
3. Carroll v. President & Comm’rs (1968): held injunction against proposed rally unconstitutional where defendant does not have an opportunity to be heard (Walker still the rule)
IV. OVERBREADTH DOCTRINE
A. overbreadth = gov’t cannot achieve a valid purpose by broad means that reach protected as well as unprotected activity
1. standing: departs from traditional principles b/c one person can invoke the constitutional rights of another
2. vagueness: no one knows how far a vague law reaches, overbroad laws knowingly reach too far; both can chill rights but an overbroad law is invalid even if clearly defined
3. courts can make overbroad laws acceptable with a saving construction
4. “strong medicine” (Broadrick); not often used
B. Broadrick v. Oklahoma (1973): SC rejects overbreadth & vagueness challenges to state statute that restricts political activities of state civil servants; statute gives clear notice that it applies to actively engaging in partisan activities (not protected FA activity) such as fundraising and not just wearing a button or having a bumper sticker (protected FA activity); overbreadth doctrine will be used sparingly and only when pure speech is restricted, not merely expressive conduct: “particularly where conduct and not merely speech is involved, the overbreadth of a statute must not only be real, but substantial as well.”
1. dissent: does NOT define “substantial overbreadth” or explain why if this overbreadth is real, it is not substantial; FA protects conduct as well as speech
