Con Law II Outline, Hillman, Spring 2013
I. The First Amendment – Freedom of Speech and Freedom of Expression
a. Funding, Forum and Free Expression
i. CLS v. Martinez
1. Student group existed before affiliated with national organization. Had new bylaws requiring among other things, those that participate “unrepentant homosexual conduct” can’t hold office.
2. Hastings says can be student group but not RSO because violates non-discrimination policy at Hastings
a. School argues – infringe on free speech rights (and other rights)
3. Ginsburg (Majority)
a. Right now policy is all comer policy so that’s what court should evaluate
i. Both parties stipulated
b. Limited Public Forum
i. Restrict if reasonable and viewpoint neutral
1. While this is a state supported public forum it is on campus so that makes it limited
ii. Neutrality
1. Applies to everyone
4. University context
a. Court should refrain from stepping on administrators feet
i. Court is not experienced the way administrators are
b. University is a place where different viewpoints should come together
i. Kennedy
1. Forum is limited because confined to student groups
2. Groups can limit membership
3. If enforced though can clash with university goals
c. Does an all comers policy effectively allow diverse viewpoints?
5. Alito – Dissent
a. Not really viewpoint neutral. Students groups that have discriminatory policy are treated differently
b. Alito wants to focus on the non-discrimination policy, not the all comers policy
c. Discrimination based on conduct might be okay
i. Just not on status
6. Stevens – Concur
a. Hastings is worlds away from a public square
b. Court correctly confines decision
c. Non discrimination policy would also be okay
i. Boilerplate language
ii. Used by many institutions
iii. Viewpoint and conduct neutral
1. No judgment by school on organization’s speech
2. Only prohibits discriminatory conduct
a. Large difference between regulating conduct and regulating speech
7. Limited Public Forum
a. Content neutral – all comers
b. Legitimate Interest – discourse of ideas
c. Reasonable – no big burden
d. Notice – written policy
e. Procedural Safeguard – appeal?
ii. What does it mean to Abridge Free Speech?
1. Content Neutrality
a. Language
b. Disparate impact
c. Suppress or silence speech
d. Legislative history
e. Objective
f. Narrowly tailored
2. Public Forum
a. Public
i. Government owned property that government must make available for speech
1. Public square, sidewalk, etc.
2. Restrict?
a. Brandenburg
b. Limited Public
i. Not open but still government owned
ii. If going to restrict
1. Content neutral
2. Legitimate purpose
3. Notice
4. Reasonable
5. Procedural safeguard – appeal? Decision making process?
6. Restrict
a. CLS
c. Non-Public Forum
i. Not open but still government owned
1. The white house, military base, etc.
iii. How can speech be restricted?
1. Obscenity law
2. Administrative law, Ordinances
a. Fine or punish people
3. Regulate
4. Prior restraint – worst in the eyes of the law
5. Licensing
b. Free Speech and the Original Understanding
i. Meaning of the First Amendment
1. Framers discussed little about the meaning
a. In England, it was only freedom from prior restraint, once published could be punished
i. Levy – says was same in America – no evidence to the contrary
ii. Jensen – agrees in theory but not in practice. Lots of people spoke out leading up to the revolution
iii. Anderson – Levy is wrong
1. Press clause was treated differently than speech clause
2. Lots of legislative history
3. Speech may h
say hate war, not okay to encourage people to avoid draft
4. Abrams v. U.S. – bullet factory strike speech
a. Pamphlet urged people not to produce bullets.
b. Conviction was affirmed
c. Holmes/Brandeis – Dissent
i. Leaflet encouraged bullet makers to stop production so as not to interfere with the Russian Revolution
ii. Now says 1st amendment rights always the same, even during war
1. Only exception is “clear and present danger”
iii. Congress can’t forbid efforts to change the mind of the country
iv. Publication is not enough, need intent for immediate action
v. Intent to prevent interference with Russian Revolution might not have any effect on U.S. war with Germany
vi. Present danger of immediate evil warrants congress to act
vii. Should status come into play?
1. Insignificant person so don’t worry
5. Gitlow v. N.Y.
a. Court – upholds because reasonable (ignores clear and present?)
i. Deference to legislature
b. Dissent – Holmes
i. Speech was to incite the overthrow of the government
ii. But there was no clear intent to act and indefinite time
iii. Minority group of people (no threat)
c. “Every idea is an incitement”
i. Government can’t regulate everything
d. First to indicate 1st Amendment applies to the states
6. Whitney
a. “Every denunciation of law increases probability of violation”
b. Concur – Brandeis
i. “Time to answer” test: no danger flowing from speech can be considered clear and present if there is full opportunity for discussion.
