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Constitutional Law II
SUNY Buffalo Law School
Kannar, George

Kannar, Con Law II, Spring 2011

Ch. 11: Freedom of Speech—Why Government Restricts Speech—Unprotected & Less Protected Expression

A. Free Speech: An Overview: 1st A: Congress shall make no law abridging the freedom of speech, or of the press. Bribery, perjury, antitrust conspiracies & solicitation to murder are NOT protected. Fighting words, libel, obscenity & child porn—all outside 1st A protection. What is speech?—opposing the government. Where does it come from?—our Constitutional history.

1. 1st A History: Palko v. Conn.: protection of speech characterized as a “fundamental” liberty.

a) Prior restraints: through licensing was abandoned in England before Bill of Rights. The liberty of the press consists in laying no PREVIOUS restraints upon publication. Thing that was most prohibited was prior restraint (focused on gov) on speech. The original concept had to do w/licensing ➝ ask permission from Britain to speak or print. Now think of judges granting injunctions.

b) Seditious Libel: Framers were most concerned about the idea that you can be prosecuted for saying things against the government. The very theory that the Sedition Act of 1917 went against. Act expired in 1801. Libel was saying bad things against the king that would bring him into disrepute.

(1) Zenger case—he was tried for criticizing the Governor General. Zenger gets off b/.c what he said was true.

(2) Seditious libel focused on political speech.

(3) Core political speech—w/in world of protected speech, some speech is more hollowed.

c) Later History: not until WWI era did major free speech issues reach S.C. After the Civil War there were labor radicals floating around, they don’t seem to get a great deal of protection.

(1) Marketplace of ideas: Meiklejohnian—protect speech b/c of democracy. Notion of safety value for speech.

2. 1st A Theory: Free speech has been though to serve 3 values: (1) advancing knowledge & truth in the marketplace of ideas; (2) facilitating representative democracy & self-government; & (3) promoting individual autonomy, self-expression, & self-fulfillment.

a) Truth: John Stuart Mill’s Theory–The suppression of an opinion is wrong, whether or not the opinion is true: if it is true, society is denied the truth; if it is false, society is denied the fuller understanding of truth which comes from its conflict with error; and when the received opinion is part truth and part error, society can know the whole truth only by allowing the airing of competing views.

b) Self Government: Meiklejohn—public speech has 4 functions: (1) Broad debate informs and improves the making of public policy; (2) Free speech prevents government from entrenching itself indefinitely – Keeps clear the “channels of political change.” (3) Prevents Government abuse of power; & (4) Promotes political stability by providing a safety valve for dissent.

c) Autonomy: emphasizes the values of individual liberty, autonomy, & self-fulfillment. It recognizes speech w/regards to the value to the speaker.

d) Negative Theories: Schauer—defends free speech on the basis of an argument from governmental incompetence.

3. 1st A jurisprudence: ct has long shown special judicial solicited for free speech, meaning the governmental action directed at expression must satisfy a greater burden of justification than governmental action directed at most other forms of behavior. Who is going to get suppressed in speech? Styles of jurisprudences: (1) literalist: no law means no law, can’t infringe free speech (Justice Black); (2) Common Alternative—Balancing Tests (O’Connor in Casey v. Planned Parenthood), but what do you balance in free speech; (3) Categorization—could mean protected or unprotected speech (ex. if something is obscene then it is NOT protected). Can have different tiers w/in a category.

a) Justifying special protection for speech: Ct has declined to read 14th A as mandating laissez-faire in economic markets. But has read 1st A to require a considerable amt of laissez-faire in the marketplace of ideas.

b) Absolutes vs. Balancing: Are first amendment rights absolute or subject to the balancing of competing interests? Justice Black said they should be absolute and not balanced by a majority of the court to be swayed with mere opinion. Justice Frankfurter felt that balancing was necessary to weigh the competing interests rather than adhere to dogmas too inflexible to resolve the party.

c) Categorization vs. Balancing: Categorization–Idea that there is core speech which the first amendment protects, then other speech which may or may not be protected or gets less protected. Attraction of clarity & or providing guidance to judges & other governmental officials. Requires the courts to make a lot of judgments. What the speech is? Where does it fit? A

n in circumstances not before it. b. Consequences – can impede on state interests because it invalidates a law and allows a person a free ride until the law is redrawn.

6. Broadrick v. Oklahoma (Requirement of “substantial” overbreadth) – Court required that overbreadth must be substantial before facial invalidation is appropriate and suggested that overbreadth analysis was less applicable when the challenged statute affected conduct rather than speech. Mini-Hatch Act. Didn’t allow workers to wear pins which was constitutionally invalid.

7. Ashcroft v. Free Speech Coalition – Court found the Child Pornography Prevention Act of 1996 was unconstitutional for substantial overbreadth. It was overbroad because it outlawed virtual child porn which did not actually use children it its construction.

8. Virginia v. Hicks – Court unanimously rejected a 1st Amendment challenge to a public housing development’s policy controlling entry to its premises. Allowed Richmond cops to serve notice or arrest anyone who did not have a legitimate business or social interest while on the grounds. Rule prohibits a substantial amount of protected speech.

9. Brockett v. Spokane Arcades, Inc (Limits on overbreadth analysis): requiring that a statute be incapable of a narrowing construction) – Court held that appeals to the “prurient interest” under the Miller test for obscenity did not encompass material that provoked only normal, healthy sexual desires but was limited to materials appealing to a shameful or morbid interest in sex. It therefore ruled the Washington law unconstitutional because its definition was broad enough to encompass normal sexual responses. Court did not allow the individual whose rights were violated to invalidate the law on its face, but limited the challenger to an “as applied” challenge. Court did not narrow this state statute as only state courts can do that, it instead trimmed it of its unconstitutional branches.