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Constitutional Law II
St. Johns University School of Law
DeGirolami, Marc O.

Constitutional Law II DeGirolami Spring 2017

Topic 1: The Freedom of Speech

Text Hook: In the Constitution Amendment 1, Congress shall make no law abridging the freedom of speech, or of the press.

Step I: Is this a regulation of speech? (consult Cohen v. California (1971) for the distinction between speech and non-speech)

In Cohen v. California, a government may only regulate discourse to prevent others from hearing offensive speech if it proves that substantial privacy interests are being invaded in an essentially intolerable manner. The constitutional right of freedom of expression is very broad and powerful, and is designed to remove governmental restraints from public discussion. The Court reasoned that the expletive words were not directed toward anyone; besides, there was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. Harlan recognized that “one man’s vulgarity is another’s lyric.” In doing so, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas).

àIf yes, go to Step II.

àIf no, is this a regulation of conduct?

If no, the regulation does not violate the First Amendment.
If yes, is it a regulation of the expressive component of the conduct?

If no, this regulation does not violate the First Amendment.
If yes, is it a regulation of an unprotected category of speech

If yes, is the government discriminating within categories of unprotected speech?

In RAV v. St. Paul, under the First Amendment, the government is generally barred from regulating the ideas expressed by speech or conduct. There are a number of traditional exceptions to this rule that allow the government to regulate speech with only “slight social value.” The government may not use these exceptions to create content-based regulations. A State must show that a regulation, which limits speech and expression, is reasonably necessary to achieve the State’s compelling interests. Imposing limitations on certain types of speech simply because they express a disfavored viewpoint on a topic, is expressly prohibited by the First Amendment of the Constitution.

If yes, this regulation violates the rule of RAV v. St. Paul, and violates the First Amendment.
If no, this regulation does not violate the First Amendment.

If no, go to Step III.

Step II: Is the regulation of speech content-based?

If it is content-based, the regulation must generally satisfy strict scrutiny. It must serve a compelling state interest which is narrowly tailored to achieve that interest.

à If no, proceed to Step IV. (Content-neutral)

à If yes, is it a regulation of an unprotected category of speech?

If yes, is the government discriminating within categories of unprotected speech?

If yes, this regulation violates the rule of RAV v. St. Paul, and violates the First Amendment.
If no, this regulation does not violate the First Amendment.

If yes, is the category of speech incitement to violent and/or illegal activity? If yes, proceed to Step V.
If yes, is the category of speech commercial or corporate speech (speech proposing or urging a commercial transaction) (note that the speech in NY Times v. Sullivan (1964) is NOT commercial speech)? If yes, proceed to Step VI.

Commercial speech is speech proposing or urging a commercial transaction. In Central Hudson, there are four-step test to decide whether the speech is commercial.

If no, apply strict scrutiny: the government may only regulate the speech if it has a compelling interest in doing so and it is using the most narrowly tailored means to achieve that interest (those means that infringe as little as possible on the communicative content of the speech). Note that as in the EPC race context, the general rule is strict in theory, fatal in fact here.

Under strict scrutiny, a law is upheld if it is proved necessary to achieve a compelling government purpose based on race, ethnicity, religion, nationality, alienage (foreign status), and voting. The government must have a truly significant reason for discriminating, and it must show that it cannot achieve its objective through any less discriminatory alternative.

Step III: Is the regulation of the expressive conduct content-based or content-neutral? Apply the O’Brien test. Ask:

Does the government have important or substantial interests in the regulation of the expressive conduct?
Are the government’s interests unrelated to suppression of the content/message? And
Is the impact on content no greater than necessary to vindicate the government’s interests?

à If the answer to all three of these questions is yes, then the regulation of expressive conduct is content-neutral and does not violate the First Amendment. See, e.g., United States v. O’Brien (1968).

A government regulation is sufficiently justified if (1) it is within the constitutional power of the government; (2) furthers an important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

à If the answer to any of these three questions is no, then the regulation of expressive conduct violates the FA. See, e.g., Texas v. Johnson (1989).

A state cannot promote its own view of the flag by prohibiting related expressive conduct. The enduring principle that the government cannot prohibit expression it disagrees with does not depend on the particular method by which one seeks to express an idea. It would thus be inconsistent to hold that an individual can constitutionally express disagreement with a political viewpoint in any way except flag burning. Additionally, it does not make sense to permit a state to allow flag burning for some purposes and not for

vailable for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation. If the commercial speech is neither misleading nor unlawful, the government may only prohibit it if doing so advances a substantial government interest, and the limits on expression are narrowly tailored to achieve that interest.

* Note: if the regulation concerns campaign finance restrictions, be aware of the distinction between campaign expenditures and campaign contributions, as elaborated in Citizens United v. FEC (2010).

The distinction between contribution and expenditure limits is based on the Court’s judgment that contributions to candidates create a greater danger of corruption and the appearance of corruption than expenditures and also that expenditures are much more directly related to speech than contributions.

In Buckley v. Valeo, spending money for a campaign is speech and restrictions must meet strict scrutiny and contribution limits are constitutional, while expenditure limits are unconstitutional.

Corporations and unions have free speech rights and the limits on independent expenditures are unconstitutional restrictions of core political speech. Expenditures in election campaigns are core political speech. Political speech is indispensable to decision-making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. The government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations. Scalia held that individuals do not lose their free speech rights simply because they choose to associate themselves within a business. The First Amendment protects corporate speech.

I. The Press Clause and “Prior Restraint”

1. The Press Clause

(1) What is the meaning of “the press”?

“The press” includes advertising in the newspaper paid for by private citizens. NY Times v. Sullivan.

(2) What is the meaning of “abridging”?

A state libel law providing that expression which injuries a public person’s reputation can only be countered by evidence that the expression is true “abridges” the freedoms of speech and press. NY Times v. Sullivan.

2. The “Prior Restraint”