Select Page

Constitutional Law II
SUNY Buffalo Law School
Kannar, George

Intermediate scrutiny is met if a regulation involves important governmental interests that are furthered by substantially related means. This should be contrasted with strict scrutiny, the higher standard of review, which requires narrowly tailored and least restrictive means to further a compelling governmental interest.
To pass strict scrutiny, the law or policy must satisfy three prongs:
                                  i.          First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.
                               ii.          Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (over-inclusive) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.
                             iii.          Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this ‘least restrictive means’ requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.
1.    Introduction: First Amendment Background and Theories, Early Cases Concerning Incitement to Violence.
Schenck v. United States
Rule: the test to determine the constitutionality of a statute restricting free speech is whether, under the circumstances, the speech is of such a nature as to create a clear and present danger that it will bring about the substantive evils which congress has a right to prevent.
Facts: during a time of war, Schenck mailed circulars to draftees which were calculated to cause insubordination in the armed services and to obstruct the US recruiting and enlistment program in violation of military laws
Clear and present danger test: Doctrine that restraints on freedom of speech are permissible if the speech incites persons to engage in unlawful conduct.
Frohwerk-going back to old tendency test: Newspapers
Facts: Frohwerk prepared and circulated in a newspaper several articles attacking the position of the US in World War in World War I. the articles tended to attack the recruitment effort. He was convicted under the Espionage Act, and appeals.
Issue: May newspaper articles create a clear and present danger? Yes. Judgment affirmed.
The expression in the articles were basically like those involved in Schenck. Although the articles were further removed than the pamphlets that Schenck distributed directly to draftees, it is possible that these articles could kindle a larger flame and therefore endanger the war effort.
Debs v. United States-public speech
Facts: Debs made 2 public speeches promoting socialism and denouncing capitalism and the war. He was convicted under the Espionage Act, and appeals.
Issue: May a political speech denouncing public policy and advocating an alternative be made a criminal act? Yes
D addressed potential draftees, encouraging them to resist the recruiting services as a way to oppose the war. His speech created a clear and present danger that his listeners would actually resist the draft, which is an illegal activity
Abrams v. United States
Rule: the US may constitutionally restrict speech that has the intended effect of hindering the US in a war effort by means of riots and sedition.
Facts: Russian immigrants issued fliers that advocated a general strike in ammunition factories to prevent ammunition from being used against Russian revolutionaries.
 Espionage act: Federal Law prohibiting espionage.
The Espionage Act of 1917 made it a crime for a person: to convey information or false reports with intent to interfere with US armed force or helping the enemies.
Thus, while “espionage” is usually defined as a secret activity of getting secret information and passing it on to the enemy, the law vastly extended the meaning of the term to include also the openly carried expressing of political opinions, without revealing any secret, and by persons who had no connection with the enemy – as long as the expressing of such opinions was construed as helping the enemy.
Masses publishing v. Pattern: Incitement
Rule: An opinion critical of a draft statute, no matter how seditious in nature, cannot be deemed to be advocacy of the violation of that statute unless there is a direct urging of such violation.
Issue: Whether a person’s publications or utterances stop short of directly advocating resistance to a law, is that person nonetheless to be held responsible for attempting to cause its violation? NO.
Facts: Pattern(D) refused Masses Publishing Company’s magazine access through mails for violating the 1917 Espionage Act.
                 ·            The act prohibits false statement that interfere with the military or aid its enemies. P has not made such false rumors, but has published political arguments.
                 ·            The act forbids anyone from willfully causing disloyalty among the military. Although anyone who adopts P’s views would be more prone to insubordination than one having faith in the existing policies, such an interpretation of causation would prohibit any expression of views counter to shoe currently prevailing, an impermissible restriction in a democratic society. Of course, one may not counsel or advise violation of the law as it now stands, but everyone is free to advocate changing the law.
                 ·            The Act also forbids willful obstruction of the enlistment service. But here only direct advocacy of resistance, or actual incitement is prohibited. P has not done such an incitement.
Gitlow v. New York
Rule; Under its police powers, a state may validly forbid any speech or publication which has a tendency to produce action dangerous to public security, even where such speech or publication presents no clear and present danger to the security of the public.
Facts: Gitlow printed and circulated literature advocating a communist revolt against the US government.
Issue: Is a state statute, punishing the mere advocacy of overthrowing the government by force, an unconstitutional denial of the freedom of speech and press as protected under the 1st amendment and applied to the states by the 14th amendment? No.
Bad tendency test: this test punishes utterances whose meaning lies somewhere between ‘clear and present danger’ and mere advocacy of abstract ideas. The key question here is whether the language ‘tends’ to produce action resulting in a danger to public security.
-In light of clear and present danger test, the bad tendency test is all but dead. The clear and present danger test requires language that results in imminent lawless action. Tendency is not enough. It is important to note that the bad tendency test has not been used by the court since Gitlow.
Whitney v. California
Rule: A state may, in the exercise of its police power, punish abuses of freedom of speech where such utterances are inimical to the public welfare as tending to incite crime, disturb the peace, or endanger organized government through threats of violent overthrow.
Facts: Whitney, organizer and member of the communist labor party of California, was convicted of aiding in that organization’s violation of the criminal syndicalism Act.
Importance; This case is important in having added to the ‘clear and present danger’ test in Schenck an additional requirmeent of ‘imminent’ component.
-Brandeis opinion: should be viewed as a dissenting opinion. His addition of ‘imminent’ flies directly in the face of the majority opinion that punished ‘mere advocacy’ of threatened action against the state. This ‘mere advocacy’ test has not survived.
·Smith Act: The Smith Act makes it unlawful for any person (i) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing any government in the US by force or violence; or (ii) to attempt to commit, or to conspire to commit any of such acts; or (iii) to become a member of any organization advocating such acts, knowing its purposes.
Dennis v. United States
Rule; where an offense is specified by a statute in nonspeech or nonpress terms, a conviction relying upon speech or press as evidence of violation may be sustained only when the speech of publication created a clear and present danger of attempting or accomplishing the prohibited crime.
Facts: Dennis and other communist party leaders were convicted for violation of smith Act, which is directed at conspiracy to teach or advocate the overthrow of the government by force or violence.
Issue: Does Smith Act, which punishes advocacy of the overthrow of the government by force or violence and conspiracy to so advocate, violate the 1st amendment, inherently or as applied to Communist party leader? No.
Yates v. US
The Court reversed the convictions of 14 defendants. It distinguished and explained Dennis on the ground that it had involved group indoctrination toward future violence action, under circumstances, which reasonably justified the apprehension that violence would result.
v In Scales v. US, the Court sustained the membersh

ome became unruly, they were asked to disperse and did not. The majority asserted that this was a simple case as the marchers’ peaceful conduct was a protected activity within the first amendment. The concurring opinion saw Gregory as involving some complexities, since, as the Judge noted, both the demonstrators and the officers had tried to restrain the hecklers but were unable to do so. He concluded that ‘this record is a crying example of a need for some narrowly drawn law’, rather than the sweeping disorderly conduct law.
Forsyth County v. Nationalist movement
Permit requirement: ordinance assessing varying fees on demonstrators to cover increased public costs held facially invalid.
3. Impermissible Methods: Overbreadth, Vagueness, and Prior Restraint.
      Pp. 1080-1104, 1104-1117.
Coates v. Cincinnati: Vagueness
Rule; A statute that provides inadequate notice of its meaning is considered vague and unenforceable.
Fact: the Court invalidated a ban on sidewalk gathering that were ‘annoying’ to passerby. This standard was so vague that it actually specified no standard of conduct at all.
NE for the arts v. Finley-in section 10 of syllabus.
Freedman v. Maryland: Procedural safeguard (p. 1999)
Prior approval of movies was approved if (i) the standards for denial of a license or permit are narrowly drawn, reasonable, and definite; (ii) the censor promptly seeks an injunction if no permit is to be issued; (iii) the censor has the burden of showing that the film is unprotected speech; and (iv) if there is provision for a prompt judicial determination.
v This is a situation where temporary PR is permissible for the purpose of determining whether speech is protected or not. This is contend-oriented.
Thomas v. Chicago Park District
Near v. Minnesota
Rule: A state statute which authorizes previous restraints on publication violates the liberty of the press guaranteed by the 14th amendment if such publication relates to the malfeasance of public officials.
Facts; Minnesota sought to have an injunction issued against the Saturday Press, which was publishing articles charging public officials with dereliction and complicity in dealing with gangsters.
Issue: Is a state statute which authorizes abatement of a newspaper publication dealing with the corruption of public officials unconstitutional? Yes. It is the chief purpose of the constitutional guarantee of freedom of press to prevent previous restraint on publication. Placing previous restraints on the press endangers the very nature of a free state.
The issue is not whether the government may impose a particular restriction of substance in an area of public expression, such as forbidding obscenity in newspapers, but whether it may do so by a particular method-in this case, a prior restraint or permit, such as advance screening of newspaper copy. In other words, restrictions which could be validly imposed when enforced by subsequent punishment are, nevertheless, forbidden if attempted by prior restraint.
Walker v. Birmingham
An individual may not deny an injunction, even if the injunction itself appears to be unconstitutional, without challenging the injunction’s validity through the official mechanisms of judicial review.
Injunction is a type of prior restraint.
Facts: The demonstrations themselves were in violation of a Birmingham ordinance that required organizers to obtain a parade license (prior restraint).
New York Times v. Pentagon Papers
Rule: Any system of prior restraints of expression comes to the Court bearing a heavy presumption against its constitutional validity.
Facts: the US sought to enjoin the NYT and the Washington Post from publishing the pentagon papers (war secrets from the past).
Issue: Must one seeking a prior restraint on expression meet a heavy burden of showing justification for imposition of the restraint? Yes.