CON LAW II OUTLINE
CORE CASES:
0.Schenck v. United States
a. Early Clear and Present Danger
1.Abrams
a. Holmes changes positon in Schenck regarding clear and present danger, that now the potential threat must be immediate, whereas in Schenck it was broader thus prohibiting more activity
b.Rejects “bad tendency test” which held that any tendency in speech to produce bad acts, no matter how remote would suffice to validate a repressive statute
2.Chaplinsky
a. Fighting words
i. Would it cause someone to act immediately and violently
ii. Through common experience are likely to cause violence
3.Cohen v CA
a. Fuck the draft
4.Sullivan v New York Times
5.established the actual malice standard which has to be met before press reports about public officials or public figures can be considered to be defamation and libel[2]; and hence allowed free reporting of the civil rights campaigns in the southern United States. It is one of the key decisions supporting the freedom of the press.
a. Not commercial speech
b.Libel standards for public officials
i. Prove actual malice
ii. Knowingly or recklessly false statements
c. Evidence need be clear and convincing
i. Evidence of actual malice very difficult to meet
6.R.A.V. v City of St. Paul
a. Cross burning
7.Wisconsin v Mitchell
8.Virginia v Black
a. Cross burning
9.Valentine v Chrestensen
a. Pamphlet of tour for sub – commercial speech
10. Pittsburgh Press
a. Commercial speech not protected
11. Bigelow v Virginia
a. Penalty for dissemination of abortion ads was unconstitutional as abortion was a legal act under Rowe v Wade.
12. Virginia Pharmacy Board v Virginia Citizens Consumer Council
a. Commercial speech protected, but still can be regualted
b.Advertising prices of legal prescriptions
c. New standards for commercial speech
13. Linmark v Willingboro
a. For Sale sign ban
b.Unconstitutional
14. Central Hudson Gas v Public Service Comm’n
a. Limitation on advertising was too broad
b.4 Part analysis for commercial speech (Central Hudson Test)
15. Metromedia v San Diego
a. Applied Central Hudson test to ban on non-comercial billboards
16. City of Cincinnati v Discovery Networks Inc
a. CHT applied
17. Puerto Rico Casino Advertising case
a. Depriving residents of information on lawful activity – collided with VA Pharmacy
b.Vice exception to test
18. Edge Broadcasting
a. Lottery advertisement – court upheld federal statute prohibiting broadcast of lottery ads except by stations licensed to states that conduct lotteries
19. Coors Brewery
a. Strength wars
b.Failed Central Hudson Test
c. Rejects vice exception in Puerto Rico Casino case
20. Liquormart v Rhode Island
a. Can’t advertise price of beer
b.Ban more extensive than necessary to serve State’s interest
21. Sorrell
a. Law banned data mining companies from gathering information from pharmacists even though patient names left out
b.Content based restriction and gets heightened scrutiny
22. US v O’Brien
a. Intermediate scrutiny test – O’Brien Test
i. Power to regulate speech
ii. Regulation furthers a sub gov int
iii. Regulation is unrelated to suppression of speech
iv. Burdens are no greater than necessary to fulfill gov interest
23. Iskcon
a. Pamphlet distribution at state fair, first come first serve is non-discriminatory manner
b.Longer leash afforded government in time, place, manner restrictions on free speech
24. Clark
a. Protesters camping on natl park
b.Legitimate government interest in preventing camping/sleeping in park
25. Rock Racism
a. Narrow tailoring – fit of means and ends is a pretty deferential standard
26. City of Laude
a. Sign in home – deference to home
b.Content based law struck down
27. Watchtower Bible
a. Door to door ban unconstitutional
28. Schenck v Pro-Choice
a. Time place manner test requires a little more bite when injunction involved
29. Hill v Colorado
a. Statute prohibiting approaching within 8ft to hand out leaflet or handbill
30. Feiner v New York
a. Derogatory speech about president and minorities
b.Perceived threat of danger and violence resulting from petitioner’s speech, therefore not protected HECKLER’s Veto
31. Kokinda
a. Sidewalk to post office now not considered traditional public forum, now look to purpose
b.If government building then can limit First Amendment rights by looking at government purpose. Not a traditional public forum, open to restrictions
32. Pleasant Grove
a. City as speaker – portrayal of Ten Commandments
b.Argue that it’s propagating a religious view and violates the Establishment Clause
i. Counter argument- the group behind the ten commandments is being supported
33. Speiser v Randall
a. Government program and giving up speech
b.Property tax exemption for veterans if declare they did not advocate the forcible overthrow of the government
c. You have right to advocate overthrow, in abstract it’s protected
d. Government can choose not to subsidize certain speech
e. The court ruled that because the state requires the claimant to show they are not advocating state overthrow hence are not criminals within the applicable laws, the loyalty oath requirement to obtain the tax exemption is unconstitutional. The burden of proof for a criminal action rests on the state and not on the individual private citizen. In other cases, the Supreme Court has upheld the constitutionality of loyalty oaths requirements but those involved public officials and not private citizens.
34. Rust v Sullivan 1991. The case concerned the legality and constitutionality of Department of Health and Human the use of funds spent by the U.S. federal government to promote family planning(Title X). With Title X of the Public Health Service Act, Congress prohibited the funds from being “used in programs where abortion is a method of family planning.”
a. Upheld regulation forbidding projects receiving federal funding from counseling women for abortion and from encouraging, promoting or advocating abortion
35. Rosenberger v UVA
a. Establishment Clause concerns with student run newspaper funded by student
on
§ Test: normal person with common intelligence would not understand (invalid on its face)
o Reno: ban of indecent material on internet to anyone under 18 if sexually explicit. Too vague – indecent and patently offensive not defined. Too broad – cans adult viewership
MADSEN v. WOMEN'S HEALTH CENTER, INC Court found that the state of Florida could only restrict protesters to the extent necessary to allow the clinic to run and the staff to live in their homes without interference. Thus, the majority approved of the 36-foot buffer zone around the front of the clinic because it was essential to allow patients and staff to enter and leave the building freely, but disapproved of the 36-foot buffer zone along the back and side of the building because it found no indication that protesting in these areas interfered with the function of the clinic. The Court also determined that the limitations placed on noise-making were necessary to insure the well-being of the patients, whereas those placed on images were not because they were easier to ignore. Finally, the Court concluded that both 300-foot radius rules were too broad, thus restricting the protestors more than was necessary. Therefore, the decision of the Florida Supreme Court was affirmed in part and reversed in part.
FIRST AMENDMENT
è Prohibits Congress from establishing a religion or interfering with the exercise of religion, abridging the freedom of speech or the press, or interfering with the right of the people to assemble. These prohibitions have been made applicable to the states through the fourteenth amendment. These freedoms are not absolute
Liberal Position – First Amendment Philosophy
1. John Stuart Mill
a. Marketplace of ideas: if the government doesn’t interfere and oppress opinion, then the bad ideas will eventually lose and the market will suppress them out
b. Suppression of 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
2. Alexander Meiklejohn
a. Contends that Mill is right, but states that the heart of free speech is about civic and how the government is going to affect life
b. “public speech”: speech on public issues affecting “self government” must be wholly immune from regulation, while private speech is entitled to less complete protection
3. Tom Emerson
a. Public speech matters, but so does other things (criticizes Meiklejohn)
b. Self autonomy: emphasizes the values of individual liberty, autonomy, and self fulfillment
c. Arts, movies, entertainment
