I. Overview
A. Justifications (and criticism) for Protection of Speech
1. Freedom of speech is a necessary precondition for having democratic self-government. Marketplace of ideas metaphor suggests that the best ideas will emerge from robust debate. Only the best arguments and ideas will emerge when they compete each other in the market.
a. Criticism
i. Metaphor is inaccurate – the “political truth” that emerges is far from the best nor truthful.
ii. Imperfections of the marketplace necessitate government regulation.
iii. Metaphor is misplaced – too attenuated and abstract in this context.
b. Rebuttal
i. Relatively speaking, there may be no better way to make public policy decisions or reach political truth. The marketplace may be imperfect, but it’s the best we can do.
ii. The government is a particularly inappropriate regulator of the marketplace of ideas because the government is overly bias in regulating the marketplace of ideas. The government has a vested institutional interest that it must protect.
2. Dignitary rationale. Speech is part of the process through which we determine our individual identities.
3. Free speech is essential. Peoples basic attitudes, values and beliefs must be kept distant from the government for popular sovereignty to survive. If people are expected to exercise some controlling check on government conduct thenGovernment can’t control culture by restricting or policing private expression.
4. Personal. Dwarkin: the government must treat people and citizens as if they were morally responsible agents. It must recognize that we can be trusted to make up our own minds as to whether speech is truth or false, good or bad. No government has the right to tell us that we aren’t fit to hear certain information or opinions because we might be persuaded by those arguments.
5. Legitimacy. The decisions and laws of government are legitimate and we extend them our respect because we participated in the process that led to their adoption. Speech is an aspect of the consent of the governed, which is what legitimates a democratic government.
B. Communicative v. Non-communicative impact
1. Communicative Impact
a. Directed at the message – viewpoint or content
b. Infringement on FOS bc of inequitable treatment that treats some viewpoints more favorable than others
2. Non-communicative impact
a. Focus on viewpoint and content neutral goals, i.e. time, place, and manner of the expression.
i. Examples: laws that promote “quiet” or “safety”
ii. E.g., a law that doesn’t allow protests during rush hour
b. Restrictions aren’t directed at any specific message
c. Need for concern
i. The effect of these laws in that they restrict opportunities for speech.
ii. Indirectly burden expression
iii. Neutrality may be on the face of the regulation only – true objective is speech suppression.
C. Absolutists v. Balancers – the conflict between interpretive approaches
1. Definitional Balancing – absolutist approach
a. Rules based, categorical – requires Ct to define speech into a category
b. Takes speech out of its context
c. Higher likelihood of striking a law down on its face
d. Requires specific state interest in order to justify reg
2. Ad Hoc Balancing
a. Flexible, subjective, and indeterminate
b. Requires multiple factors – basic cost-benefit analysis, where speech is just another interest to be weighed
c. Leads to greater deference to the legislature
d. More sensitive to context of expression
e. More likely to result in a challenge to the law “as applied” rather than a challenge of the law on its face
f. Works best in times of safety, when speech isn’t threatened. But this approach isn’t likely to provide the type of protection necessary when freedom is harmed
3. Current trend toward definitional balancing
a. Particularly in times of crisis, free speech interests must be evaluated by fixed rules
b. Ad hoc balancing is too indeterminate and unpredictable leading to an undesired “chilling” effect
c. Some ad hoc balancing is inevitable. We now look to categorical evaluations, with the residual speech left to balancing approach.
II. Speech that Incited Unlawful or Violent Conduct
A. Clear and Present Danger Test
1. Schenk v. United States
a. Facts: Ds were charged with conspiring to obstruct the draft during WWII. They violated the Espionage Act by mailing anti-conscription leaflets to draftees. The leaflets advocated repealing the draft law, but did not urge violation of the law.
b. Convictions upheld
c. Standard of Review (Holmes)
i. Whether words create a “clear and present danger” that will bring the substantive evils that Congress has a right to prevent
ii. Analagous to “yelling fire in a crowded theatre.”
d. Criticism (in applying CAPD test to Schenck)
i. Renders 1st Am. completely toothless and empty
ii. You wouldn’t be convicted for yelling fire in a crowded theatre unless there really wasn’t a fire. Here, truth of stmt wasn’t an issue
iii. Intent and tendency is determinative – only convicted if the intent was to obstruct the draft, which would have come up anyways in an attempt or conspiracy criminal case. Therefore, the issues that came up would have come up under a criminal prosecution – any FOS claim was superfluous
2. (Failed) Attempts to modify CAPD
a. Masses Publication Co. v. Patten – Lower Court opinion adding incitement test
i. Facts: published of a revolutionary journal brought suit against postmaster, who refused to mail the magazine.
ii. Ct. strikes down conviction
iii. Learned Hand
§ Restricts CAPD to words that “counsel or advise others to violate” the law. Words that are critical of a law are not enough. Even if the gov’t has a justifiable reason for wanting to avoid the speech, it cannot use this reason to suppress speech bc then the ov’t could suppress all hostile criticism. This type of speech is vital in allowing the electorate to evaluate governmental decisions.
§ Too much is lost in the marketplace if this type of speech isn’t allowed. Fear that CAPD can be invoked by mere manipulation of the speech at issue – convincing court that speech is dangerous.
iv. The Incitment Test
§ Only punish when the words serve to trigger ation.
(i) Example: you can say the draft is bad and why. Punishment can only occur if then you say you should resist the draft or commit mutiny.
§ General abstractions or commentary is OK
§ Abstract advocacy could be suppressed
§ Does not focus on the effect of the words (what eventually happened as a result) but whether the words constituted a direct call for violation of a law
v. Significance
§ Immediately rejected by Federal Courts
§ CAPD prevails for the next 50 years, but Hand test eventually adopted in Brandenberg
b. Abrams v. United States – time constraint (expressed in Dissent)
i. Facts: Leaflets circulated objecting to US intervention in Russia against the Bolsheviks. Law at issue (Espionage Act) explicitly prohibited any expression urging curtailment of war effort.
ii. Ct. upheld conviction
iii. Holmes dissent
§ Articulation of
ial victims of violence
III. Vagueness, Overbreadth, and Prior Restraint
A. Problem with Vagueness and Overbreadth
1. Potential chilling effect. The range of activities covered is uncertain, and therefore ppl will keep silent in order to obey the law.
2. Gives government officials too much unguided discretion w/r/t the application of the laws.
3. Promotes precise and careful enactment of laws that silence speech. Court wants Congress to think carefully and deliberately in its enactments.
B. Overbroad: attempt to regulate protected and unprotected speech.
1. Judicial response
a. Narrowing the Scope: Provide a limited construction of the statute by holding certain applications of the statute constitutional
i. Often result in cases when speaker is engaging in protected speech
ii. Provides leeway to the Courts
iii. City of Houston v. Hill
§ Facts: P arrested for willfully and intentionally interrupting a policeman, violating city code against interrupting a police officer “in any manner in the execution of his duty.”
§ Holding: city law is too broad because of the many instances of protected speech that it could be applied to and provides too much discretion to police
§ Court given leeway in drafting
(i) Can strike down a law even when justices don’t agree with where to draw the line
(ii) Court generally doesn’t decide exactly where the line is between a valid and invalid law –just needs to state that the law has gone too far
iv. Brockett v. Spokane Arcades (application of law when speaker is engaged in protected speech)
§ Facts: state defines obscenity law to include “lust,” which is considered within normal sexual appetites. In order to be obscene, it must be shameful and morbid, against the prurient interest.
§ Ct. held that the definition of obscene was overbroad
§ Judicial resolution was not to strike down the entire statute, but to only strike that part of the law that was overbroad
b. Strike down the law on its face
i. Often result when challenger is engaged in unprotected speech
ii. Also occurs when the law is SO broad that the Court feels it cannot interpret the statute without extensively rewriting it
iii. Typical when federal law is evaluating state laws
§ Concerns of federalism
§ Fed ct could alternatively remand so that the state can provide a narrow construction
2. Substantially Overbroad Requirement
a. Broderick v. Oklahoma – substantially overbroad articulated
i. Facts: Prohibited political activity by state civil servants.
ii. Ds were accused of soliciting money for political campaigns. Even though this type of speech could be regulated, they argued that the law also forbade wearing a bumper sticker.
iii. Ct did not find the case to be overbroad bc it wasn’t substantially overbroad and could be easily cured by case-by-case analysis
