Constitutional Law II: Freedom of Speech Outline

Samaha, Con Law IV, SPring 2008
 
Con Law IV Outline
 
SPEECH
 
 
I.      Regulatory Interests and the Value of Communication
A.    Speech Inciting Violence or Lawbreaking
1.      Assume whatever expression on the exam is speech—better to say everything is speech and the narrowly define the freedom of speech
a)      Okay to have hierarchy (political, scientific/artistic, obscenity = lowest)
2.      During WWI and the years immediately following, the Sup Ct articulated and applied “clear and present danger”.
3.       During the 20’s and 30’s the Court did not use this formulation, but instead used reasonableness test—allowed Govt to punish advocacy of illegality as long as it was reasonable to do so. 
4.      During the 50’s McCarthy era the Court reformulated c&p danger test as a risk formula—depended on gravity of evil compared with likelihood.
5.      More recently, Court narrowly defined incitement to protect speech more. Danger has to be imminent!
6.      +Schenck (leaflet arguing against the draft. No evidence it caused anyone to actually resist the draft) and +Abrams (Russians with leaflets objecting to sending troops to E Europe. Accused of interfering with war, even though they weren’t): 
a)      clear-and-present danger
b)      These are wartime cases—so they can find legitimate risk (usually hard to find c&p danger in case specific analysis)
c)      Both pamphlets—now just a pamphlet would always be protected
d)     Schenck = Holmes majority—pure case specific analysis
e)      Holmes dissents in Abrams—says no intent to impede the war, no c&p danger
f)       In these cases the speaker is advocating lawbreaking
7.      +Gitlow (Left wing manifesto) and +Whitney(communist party meeting): the possibility of deference and the relevance of content-based regulation
a)      Getting some traction for speech (more justices voting pro speech)
b)      Majority in Gitlow says we shouldn’t wait until the violence has already erupted—it will be too late
c)      Deference: once legislature defines criminal anarchy by statute, the court says it doesn’t matter than on the facts there is no clear and present danger—it matters that the govt’s law is “reasonable”
d)     Whitney: collective action is more dangerous than individual action
e)      Both arise out of splinter factions—legislature singled out content-based area of speech (criminal syndicalism). Courts can’t review (deference)
f)       Bork: if you have non-peaceful speech, you’re opting out of the system, and you should be unprotected
8.      +Dennis(teaching communist books): case-sensitive risk assessments and the sleeper cell problem
a)      transitional case – don’t use c&p or reasonableness. Instead, ask whether gravity of evil, discounted by improbability, justifies such invasion of free speech as is necessary to avoid the danger
b)      this case says sleeper cell is so dangerous, the govt does not need to show the danger is imminent or probable!
i.        Makes imminence and probability irrelevant!!!
ii.      Plurality says this is c&p danger analysis, but not clear that it is
c)      case specific risk assessment—moves away from deference, twds c&p danger
d)     still giving deference in the sense that even though they’re doing a case-specific analysis, they’re fudging a bit to be deferential
9.      Emerging speech categories
a)      The Brandenburg test and its domain
–Brandenburg v. OH (1969) (KKK rally)
1)      How does the test work?
1.      “advocacy directed to” inciting (intent)?
2.      “imminent” lawless action?
3.      “likely to” incite such action?
2)      None of the earlier tests has the intent requirement! 
3)      Within what domain – any regulation targeting advocacy of lawbreaking?
1.      Brandenberg is not really tailored to case-specific situations (ex: sleeper cell terrorists—not really imminent, but there is danger)—in situations like this Dennis could come back in (but we don’t have cases like this)
– Hess v. Indiana (“We’ll take the fucking street later”): Ct says doesn’t meet Brandenburg test—even if it happens later today, it’s not imminent enough
– NAACP v. Claiborne(boycott of white-owned discriminatory businesses—“if we catch you going in, we’re going to break your damn neck”): Ct says advocacy of violence is not enough
b)     Fighting words and the Chaplinsky methodology
+Chaplinsky v. New Hampshire(“You are a God damned racketeer”)(1942) and the insult
1)      Methodology for defining categories: compare Dennis(identification of value v. identification of risk)
2)      Definition: e.g., (1) “by their very utterance inflict injury” or (2) “tend to incite an immediate breach of the peace” / “epithets likely to provoke the average person to retaliation”
3)      Fighting words doctrine was based on two men in the street, what they would find offensive—now, it’s harder to figure out what that would be since there are so many different kinds of people on the street
4)      Court has never upheld fighting words conviction since Chaplinsky.
Cf. –Cantwell (1940) (plays record that attacks Catholic religi