Constitutional Law II – Freedom of Speech – Prof. Stone – Winter 2007
ISSUE-SPOTTING CHECKLIST
Always ask:
– Is this over/underprotective? Overbroad/vague?
– Is this appropriate in wartime; can we trust ourselves? Precommitment.
– Balancing test (or any other standard that invites ambiguity) is it likely to be used in a non-neutral way?
– Why are we bothered by certain types of speech?
– Are we impermissibly narrowing an acceptable regulation on the basis of content? Not allowed. RAV.
– Is this a viewpoint based regulation? If so, it’s per se unconst’l.
Is the regulation appropriately narrow/broad?
– Overbroad: regulates substantially more speech than the const’n allows to be regulated; may be unconst’l as applied to some people the statute would authorize.
o Statutes must be narrowly drawn to abridge only protected expression.
– Vagueness: if a reasonable person can’t tell what speech is prohibited and what’s permitted.
o Unequal interpretation
– Prior restraint: orders forbidding certain communication, issued in advance of the time that such communications are to occur.
o Bad b/c of collateral bar rule. P. 10.
Does the regulation focus on the content of the speech (the communicative impact)?
– … because the speech advocates dangerous ideas/incites unlawful conduct?
o Brandenburg test, p. 5; punishable b/c of tendency to cause others to engage in unlawful acts (and LVS) only if the speech expressly incites unlawful conduct and only if the danger is likely/imminent. Narrow, very protective.
– … because the speech may threaten?
o Warnings protected, threats are not (difference: intent)
o Test: express and unlawful threats may be regulated/banned.
– … because of an effect it may have on the audience?
o Audience reaction: in the absence of extraordinary state necessrity, govn’t can’t prohibit speech b/c it’s potentially harmful unless
§ CPD is generally req’d (unfavorable approach from listeners doesn’t justify regulation)
§ No regulation under the guise of protecting speaker/preserving pub speech
· No protective suppression (Feiner: wrong)
o FWs (LVS)
§ Test: language used in face-to-face interaction tending to incite violence may be regulated (under narrowly drawn public nuisance statute.
§ Regulable b/c benefit is clearly outweighed by interest in social order/morality; also triggers harm.
– … because the information it discloses is private?
o Govn’t must meet a heavy burden to justify prior restraint (Sullivan)
§ Licensing is acceptable with prior consensual K
o Pvt citizens: tort for invasion of privacy (must be “nonnewsworthy”)
§ Publicly available private information not protected (Cox)
– … because it includes a false statement of fact (libel) (LVS)
o Public off’ls/public figures/ltd public figures/pvt figures (and damages differences)
– … because it constitutes comm’l advertising? (LVS)
o Not as protected as other speech; but govn’t can’t regulate to protect people from content. Carey.
o No greater-includes-the-lesser argument for regulation of advertising (for activities that the state could ban/prohibit)
– … because it’s sexual in nature (obscenity; LVS)
o Definition: from Miller; (a) whether avg person, applying contemporary community standards, would find that the work (as a whole) appeals to prurient interest; (b) whether work depicts/describes, in a patently offensive way, sexual conduct as specifically defined by the applicable state law; (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Must name the acts.
o Analogy doesn’t extend to violence.
– … because it’s otherwise offensive? p. 14.
o Generally not LVS if used in public, no captive audience. Cohen, Erznoznik.
o Captive audience justifies narrow (channeling) regulation Pacifica.
o If aff step req’d to receive a message, it can’t be regulated. Sable, Reno v. ACLU.
– … as hate speech?
o Generally lost out in the mktplace of ideas (16)
o No COA for group libel (Doe v. U of M, 17)
o Hate speech as true threat may work.
o No narrowing of FW doctrine to apply to hate speech. RAV.
Is the regulation a zoning ordinance?
– Generally ok even if it discriminates on content as long as it’s undertaken for content-neutral secondary effects.
Is the regulation taking place in a public forum?
– Govn’t can disallow speech, but when it chooses to allow some speech, it’s not acceptable if based on viewpoint.
Does the regulation apply w/o regard to the communicative impact; is it subject matter and viewpoint neutral? If so, it’s a content-neutral regulation:
Ten factors to consider: see p. 18
Is the speech occurring on publicly-owned prop’ty or govn’t money (subsidies/tax)? (19)
– What type of forum?
o SPS?
§ Reasonable regulations allowed (have to pass SS)?
o Designated public forum?
§ Treated the same as SPS.
o Nonpublic forum (other govn’t owned prop’ty)
§ i.e. state fair, airport, military base, mailboxes, etc.
§ Three approaches (p. 20)
– Govn’t money (21)
o Govn’t can make decisions of fed’l spending (and tax subsidy) based on permissible, reasonable distinctions btwn groups. Reagan.
o Govn’t may condition acceptance of fed’l funds by a project on that project’s agreement to promote certain positions. Rust, Velasquez (22)
o Can’t tax the press. Minn Star & Tribune (27)
Is there regulation based on conduct undertaken for communication (or conduct that can be said to communicate)?
– Acts prohibited b/c of communicative impact are evaluated as if the govn’t was prohibiting speech b/c of its message.
– Laws with incidental effects on speech are (highly) presumptively const’l. O’Brien (22-23)
o Incl. flag burning, draft card burning, nude dancing.
o Circumstances in which incidental effects can invalidate a statute (significant enough impact); NAACP, Dale.
– Litigation: can’t restrict litigation if undertaken for 1st A purpose (i.e. NAACP or ACLU), (25)
o Solicitation (25)
– Association
o Nondiscriminatory policy doesn’t violate ass’l rights if it’s not an expressive organization. Jaycees, Dale.
Regulation on political spending/contribution?
– Congress can regulate elections, but can’t interfere w/1st A. Buckley (23).
– Can limit corp’ns expenditures from treasuries, but can’t limit corp’te contributions based on content. Austin, Belotti (24).
– Ct can regulate political activities of public employees, Pickering (24).
Regulation on the Press?
– No special status Belotti (26)
– No testimonial privilege (but states have them), Branzburg.
– Access to criminal trials (for press and public) (27)
– State can’t tax the press.
– Broadcasting: when it was a limited spectrum, fairness doctrine (Red Lion) was ok; now it’s not as strong a concern (but was upheld in Turner). (27-28).
FULL OUTLINE
Introduction
I. Text: “Congress shall make no law abridging the freedom of speech” (FOS)
a. Literal interpretation gives us nothing; “freedom of speech” isn’t self-defining, and nobody has ever taken “Congress” literally (treated to mean “the Fed’l Govn’t shall make no law”)
i. Literal interpretation is impossible b/c results wouldn’t be sensible. Can’t possibly mean the freedom to say whatever one wants, whenever, wherever.
b. History
i. We know what the Framers knew/believed about FOS on certain issues; common understandings of FOS at the time of framing are presumptively included in the conception unless there’s reason to believe the framers intended to adopt a different approach.
1. Licensing: FOS presumptively prohibits the use of licensing; Framers didn’t like it. In the 16th/17th centuries in England, licensing scheme made it unlawful for anyone to publish any material w/o first obtaining a license from a censor.
2. Blasphemy and defamation: FOS presumably doesn’t include freedom to engage in these things. When 1st A was enacted, almost all states had restrictions on blasphemy and defamation; there’s no serious argument that these laws violated the const’n.
3. Seditious libel: conflicting. Was used at the time, but it was controversial. In its most extreme form, it makes it a crime for any person to make any statement that would bring the govn’t, its policies/laws/officials into disrepute. SL was punishable like defamation under the theory that the govn’t had to have a good reputation (whether it deserved it or not) to operate effectively (b/c people had to respect it).
a. Can’t assume anything about it b/c 10 years after the 1st A was adopted, Congress passed the Sedition Act that made it a crime to engage in SL.
ii. Standard for determining meaning from history: Blackstone (foremost legal scholar) said that FOS was enacted to deal with prior restraints.
1. Two options for jud’l review:
a. Activist: when it’s possible to give a broader definition than the framers might have intended (and there are good reasons for extending the reach), we can give force to larger values presumably intended to be in the const’n.
b. Narrow/ltd: Const’n should be construed narrowly b/c it interferes w/majoritarian govn’t and should only be used when unconst’ality is unequivocal.
II. Theories of the 1st A
a. The search for truth
i. Two possible conceptions:
1. (1) Narrow conception: the Self-Govn’t Rationale (Mikeljohn): FOS is a corrolary of self-governance; individuals must have at least a presumptive right to say what they think about public off’ls, institutions, etc. Some measure of FOS is necessary for the govn’t to be accountable to the people.
a. Questions: how do we draw the line btwn political/self-governance-related speech and other speech?
2. (2) Broader conception: trad’lly private speech should be included too b/c FOS is valuable as a way to enable people to decide all types of things about their lives.
ii. If this is the rationale, knowing falsehoods shouldn’t be protected.
b. Marketplace of ideas: best test of truth is the power of thought to get itself accepted in the competition of the mkt (Holmes, dissenting in Abrahams, infra).
c. Individual self-fulfillment:
i. Idea that what makes us human is our ability to express oursel
riminal acts isn’t discourse about politics (which requires debating policy, not advocating defiance of it).
ii. Overprotective of free speech (b/c it gives apparent absolute protection to speakers who don’t advocate law violation explicitly, like the “clever inciter,” a speaker who intends to incite but doesn’t use words of express incitement.)
1. Counterargument: it’s impossible to distinguish btwn explicit/specific intent to advocate law violation (btwn express advocator and clever inciter). Punishing those with no specific intent (“constructive intent” only) has a chilling effect.
2. Note on chilling effect: speakers rarely get the benefit of their own speech; if there’s a decent change they’ll get in trouble, they stop talking. This is a good argument for bright-line, per se rules.
b. Note: Masses was rev’d on appeal (in favor of a “bad tendency/constructive intent” test), and Hand also abandoned his view. Magazine was closed and all editors sent to prison.
iii. The Clear and Present Danger Test/Evolution
1. Announcement of the CPD test:
a. Schenck v. US (SCOTUS 1919) (unanimous): Ds (members of Socialist Party) conv’d of conspiracy to violate the Esp Act by circulating a document to men who had been called for military svc (allegation: intended to obstruct recruiting/enlistment). Ct (per Holmes) aff’d Ds’ conv’ns, spelling out the clear and present danger (CPD) test; speech can be punished if there is a danger of producing a harm that is (1) clear, (2) present, and it’s a (3) danger that Congress has the right to prevent. Clear = significant probability that the danger will become a reality (involves balancing potential harm (making sure it’s sufficiently weighty) against govn’t interest.) Present = danger must be close in time/imminent. This channels efforts to avoid the harm into things other than suppressing speech (i.e. punish wrongdoer); predictions of the future are hazardous. No explicit reference to gravity of harm, but Holmes refers to the fact that what the Ds said may be ok at other times (not during wartime).
b. Three ways to think about gravity:
i. Irrelevant: question should be whether the speaker creates a CPD of a harm Congress has a right to prevent, doesn’t matter what crime/harm it is.
ii. Minimum standard: a speech that creates a CPD of, i.e., littering isn’t serious enough to justify restricting speech for that reason. Set the threshold wherever we want.
iii. Variable: clarity/presence are matters of degree until we define them. Could involve a balancing test.
c. Note: Holmes noted that the 1st A isn’t limited to prohibiting prior restraints (in dicta) – this has been taken to forever solve this question.
2. Two other tests in a short time (seemingly abandoning CPD, or at the very least indicating that CPD wasn’t the test the Ct had adopted for dealing with these types of statutes).
a. “Little breath that could kindle” test.
i. Frohwerk v. US (SCOTUS 1919): D convicted under the Esp Act re: series of publications in German newspaper that criticized sending American troops to France. Ct aff’d his conv’n, held (per Holmes) that a little “incitement” can cause a major result/reaction, and for that reason the speech can be regulated.
b. Bad tendency test (again)
i. Debs v US (SCOTUS 1919): D – nat’lly prominent figure, leader of Socialist Party) was prosecuted after a speech during which he was critical of the war/draft and praised individuals in jail for resisting it. Ct (per Holmes) unanimously aff’d his conv’n, saying that a D can be guilty if the words have a natural tendency and reasonably probable effect to obstruct the recruiting service, and the D had specific intent to do so in his mind (reciting jury instructions w/approval). Again, no mention of CPD.
iv. Sharp divide btwn majority and Holmes/Brandeis and fighting over whether the CPD test is law:
1. Holmes’s (in dissent) “danger or intent” test:
Abrahams v. US (SCOTUS 1919): D anarchists prosecuted for distributing leaflets criticizing the sending of US troops to Russia (not an adversary in the war) and calling
