CONSTITUTIONAL LAW II OUTLINE
Freedom of speech
The Map:
General rule of strict scrtiny
Categories of unprotected speech or “unprotected utterances”:
Illegal activity, fighting words and obscenity
RAV à
RAV states that even if the speech is within one of these so-called
“unprotected” categories, you still need to consider whether the government is
regulating that speech in a content based way, e.g., regulating less than the whole unprotected category. Two important points here – obscenity is an unprotected category, and the regulation here is regulating that speech in a content based way. Three exceptions: (1) The regulation is based on the very reason for proscription of the class, e.g. the most obscene type of obscenity, the worst true threats; or (2) when the regulation is aimed at conduct and speech is incidentally swept up, e.g. laws aimed at treason or Title VII hostile environment cases involving sexually derogatory “fighting words;” and (3) so long as the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot. (This is a general catch-all category.)
Special categories:
Commercial speech, school speech, and public employee speech
Where speech occurs is important:
On government property, in a public, semi-public or nonpublic forum, or on private property
The procedural aspects of free speech:
Vagueness, over breadth, and prior restraints
Recurrent themes:
Chilling speech, breathing space doctrine, and heckler’s veto
Marketplace of ideas:
Free trade in ideas…best test of truth is the power of the thought to get itself accepted in the competition of the market
DEFINITION à
Marketplace of ideas. Holmes advocated “free trade in ideas,” making an
analogy to competition in the marketplace. The theory is that the best ideas should
win out in the marketplace as everyone freely trades their ideas. If some win more
support than others, then they are the better ideas. But the marketplace analogy
may be imperfect because, for example, some entities might have enough power or
money to drown out other ideas (e.g., putting an ad in the NYT). Shutting down this
speech may interfere with the marketplace of ideas. The marketplace metaphor
encourages counter speech, e.g., the consumer groups should rebut the claims
(although they may not have the money to counter with ads in the NYT).
Is the statute content based?
Content based regulations (and especially viewpoint based regulations) are pointed and thus affect a relatively small group of people who may lack the political clout to resist or eliminate them.
On the other hand, the content-neutral regulation will inevitably affect a wider group of potential speakers, and thus the level of opposition to such measure in the political system will rise, with consequent self correcting effects
How to decide:
What was he prosecuted for doing?
What was the state’s justification for the statute?
OR if the answer to this question – “Can I engage in expression at this time, place and manner?” is “Depends on what you are saying” – then it is content based
If content based suppression of speech, use strict scrutiny:
Compelling government interest
Narrowly tailored
Less restrictive alternatives (Alternative means of expression)
Justification for abridgment
-Inherently likely to cause a fight or an immediate breach of the peace
*violent reaction in an ordinary person – imminent unpreventable violence – discuss in the context of the facts
True threats – statement meant to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals
Heckler’s Veto:
When the speech is protected, the police must control the crowd and not
the speaker. The police may not shut down the speaker.
Test à
INCITEMENT OF ILLEGAL ACTIVITY – BRANDENBURG TEST:
Is this speech? Intended to convey a particular message and likely to be understood.
Abridgement?
1. The speech is directed to inciting imminent lawless action; and
2. It is likely to product imminent lawless action.
*Discuss each separately:
Intent
Imminence (immediacy)
Likely to product
Categorical exceptions:
Government may generally freely regulate speech in these categories –
1. Obscenity (Miller test);
