Select Page

Constitutional Law I
University of Dayton School of Law
Saphire, Richard B.

I. Freedom of Speech “Congress shall make no law [incorporation doctrine extends past Congress] … abridging the freedom of speech [not defined], or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
A. analysis summary = Is it speech? Is it protected speech? What is the problem, or what is the gov’t trying to stop (forum access, content, 2nd effects)?
B. IS IT SPEECH? When does gov’t control of some form of human conduct legitimately raise a 1st amd question?
1. Clark v Comm for Creative Nonviolence, 1984, sm79- obligation of person desiring to engage in assertedly expressive conduct to demonstrate that the 1st Amd even applies.
2. Communicative. Must be message. If everything speech, 1st Amd diluted
a) intent = expressive purpose
(1) conduct that is incapable of expressing an idea?
(2) v/w speech gets more protection than conduct.
(3) to exclude non-spoken expression would carve out much valuable exchange of ideas
b) audience would understand expressive (symbolic speech)
3. Text of Constitution- is activity speech under the 1st Amd? Read in entirety. Look at surrounding clauses: religion, press, peaceable assembly, petition gov’t. Implies social utility.
a) Sort of speech protected: category “freedom of expression”: freedom of speech, of the press, of assembly, and of petition. Additionally, “freedom of association” is derived from individuals’ rights of speech and assembly
4. Constitutional structure implies we should protect speech which furthers the process/progress of self gov’t.
a) describes self-governing people
(1) speech is valuable in this form of gov’t
(2) political value of speech (democratic speech). Considerable disagreement about what is “political speech”
b) all powers not delegated to US by Constitution are reserved to states or people. 10th.
c) government of limited power
(1) not given affirmative power to limit speech
(2) footnote 14: when the SC should throw itself into the fray. Underlying theory of representative gov’t implies SC should not interfere unless something broken
d) political vs intimate association
(1) Roberts v Jaycees
5. History and Original understanding
6. Rationales for Protection of Free Expression (outside drafters intentions)-any adequate conception of free speech must draw from several strands of theory to protect a rich variety of expressions
a) Marketplace of Ideas – free exchange of all ideas, no matter how unpopular
(1) Abrams v US (1919)- Holmes’ DISSENT, Holmes: (1st Amd meant to encourage free exchange of all ideas, no matter how unpopular). Libertarian treatise which gave birth to modern protection of free speech.
b) Self-governance – deduction from basic American agreement that public issues shall be decided by universal suffrage
(1) provoke people to evaluate, reevaluate, criticize, oppose, or defend gov’t policies
(2) “It is through speech we bring [our] beliefs to bear on the gov’t and on society.” Playboy Entertainment Group (2000) (Kennedy)
(3) “that the air may at times seem filled with verbal cacophony is… not a sign of weakness but of strength.” Cohen.
c) Self-fulfillment and autonomy
(1) central human capacity to create and express symbolic systems
(2) free speech facilitates the individual’s ability to more fully develop his capacities and potential as a human being (Emerson) and facilitates the individual is his effort to become an autonomous, self governing person.
(3) “It is through speech that our convictions and beliefs are influenced, expressed, and tested… The citizen is entitled to seek out or reject ideas or influences without gov’t interference or control.” Playboy Entertainment Group (2000) (Kennedy).
d) search for truth
(1) Even a false statement may be deemed to make a valuable contribution to public debate since it brings about “the clearer perception and livelier impression of truth, produced by its collision with error.” Mill, On Liberty.
principle of toleration- means by which society both communicates and affirms commonly shared principles.
e) fortress model
(1) freedom of speech is based in large part on a distrust of the ability of gov’t to make the necessary distinctions, a distrust of gov’t determinations of truth and falsity, an appreciation of the fallibility of political leaders, and a somewhat deeper distrust of gov’t power in a more general sense
(2) process of free debate can be relied upon to identify false ideas, but gov’t can not.
f) Others
(1) checking valve – check official’s abuse of power
(2) safety/outlet valve – people are more ready to accept decisions that go against them if they have a say
(3) tolerant society – help shape the intellectual character of society by developing capacity to control feelings
a) England- Licensing, constructive treason, and seditious libel.
b) Intent of Framers was to abolish the common law of seditious libel
c) interpreted on basis of original understanding (Thomas view)
(1) problem- since ambiguous, contested, and where info exists, it suggests framers had narrow view (prior restraints on publication)
(2) argument: framers did not have this activity in mind at all when Amd 1 was written.
d) Sedition Act of 1798- enacted by Federalist in wake of French Rev
(1) enforced only against Republican party, expired in 1801; Jefferson pardoned convicted.
e) Espionage Act of 1917
C. Protected Speech? Not all protected; what is in and out (maybe outcome determinative)
1. limited class of speech which is outside protection
a) exceedingly slight social value. see Chaplinsky.
b) state has compelling interest in regulation
2. fighting words unprotected
a) Chaplinsky v New Hampshire, 1942, p 1147- Pamphleteer called police “damned Fascist,” statute forbade offensive name calling. HELD: Right of free speech not absolute at all times and under all circumstances. Fighting words are low social value and likely to cause a breach of peace. Statute does not contravene Freedom of Expression.
(1) argument for some protection- words were political speech asserting that the police were jack boot thugs clamping down on a Jeh Wit
(2) RAV v City of St Paul, 1992, p 79- even though fighting words are not themselves protected, the gov’t is subject to restraint in the ways such words are regulated.
3. subversive/seditious. When gov’t may regulate. string of cases. see p120 sm
a) Exclude some speech from protection: Brandenburg test: protected unless intended and likely to produce imminent danger or lawless action.
b) No complete exclusion. Non-absolutist gradient of protection. Speech of political sort valuable in 1st amd terms and worthy of “some” protection. Balancing test: balance speech against other social values (order and national security). When speech threatens these values, at some point it may be regulated, suppressed, or punished.
4. commercial
a) does ordinance do more than regulate commercial speech?
b) speech that “no more than proposes comm. trans” is in, but less protected and subject to more gov’t regulation
c) qualifications of protection = no decept/false/misleading and no promotion of illegal act
d) 4 part Central Hudson test
5. Defamation
6. Sexually explicit/ Obscenity
a) Miller Std, 3 elements
7. Child porn? Ferber test
8. indecent/offensive?
a) some disagreement, but if not obscene then fully protected (“low-value?”)
1. read and interpret regulation; imagine what it could restrict
2. CB is cannot apply regulation without knowing content
a) reg motivation was to approve/disapprove of particular message
b) reg turns on communicative impact, way people react (flag b)
c) “desecration” implies certain circumstances
3. CB applied in CN fashion = 2nd effects doctrine
4. CN applied as CB = selective application, “as applied” argument
a) evidence is discretionary language in statute, previously unenforced (eg, “pissed off”)
5. Subject matter or viewpoint regulation?
6. Ironies: CN viewed more flexible, CB viewed more critically. Odd, if goal of 1st Amd doctrine is to increase communication since CB usually surgical and impacts LESS speech. (Like discriminating against more people to make less susceptible to EP challenge)
E. Forum?
1. is litigant looking for access to traditional public forum?
2. placing poster in public place is NOT PFD issue
F. (moral values and identity as a people)
1. motive was “suppress public dissent”? See O’Brien (leg hist cast doubt upon gov’t articulated interest)
2. regulation of “indecency” much more likely to get CN analysis than is regulation of political expression. See O’Brien (motive in passage not implicated); but see Eichman (even facially CN flag desecration statute analyzed as CB if court believes motive was desire to preserve symbolic value of the flag);
1. 1st Amd guarantees the widest possible opportunity for the dissemination of ideas and information and gov’t must adopt a presumption in favor of free expression
2. traditional means of expression (leafleting, newspapers, public parks, radio, etc) provide sufficient opportunity for free expression; any “activist” approach would involve the court in endless disputes over the reasonableness of particular limitations; this gov’t should be free to exercise discretion in deciding whether to permit other public property to be used for speech purposes so long as it acts in CN manner.
I. History of Free Expression
1. Rankin v McPherson, 1987, p 1451- political speech conception of 1st?- A sherriff’s clerk was fired after remarking “if they go for him again, I hope thy get him” concerning President assassination attempt. HELD: Statement met threshold of public concern; statement did not interfere with office function. First Amd predominated.
J. CONTENT-BASED restriction on written or verbal communication (strict scrutiny)
1. Early subversive/unlawful advocacy cases
a) Shaffer v US, 1919, p1089- test: whether the natural and probable tendency of the speech are calculated to produce the result condemned by the 1917 Espionage Act statute.
b) Hand’s “nature of the speech” test
(1) Masses Publishing Co v Patten
, 1917, p1089- liberal view. Postmaster general refused Masses access to mail service for violating the 1917 Espionage Act with politically revolutionary magazine. HELD, Hand: (overturned) Look to nature of speech itself to determine whether punishable; do the words If not, protected. Published opinions that stop short of advocating breaking the law are within the scope of the right to criticize.The Esp Act was limited to punishing direct advocacy of resisting recruiting or enlisting. Weighs value of content of opinion vs impact on the orderly conduct of gov’t policy. (overturned on Appeal, person should be liable for natural consequences of actions).
K. Advocacy of illegal conduct modern approach. “unprotected categories”
1. Government may ban speech that advocates crime or use of force only if two requirements are met (Brandenburg test):
a) advocacy must be intended to incite or produce “imminent lawless action” and
b) advocacy must be likely to incite or produce that imminent lawless action.
2. Bond v Floyd, 1966, p1123- elected representative could not be denied seat due to vocal opposition to Vietnam War; speech protected under 1st.
3. Brandenburg v Ohio, 1969, p1124- KKK leader prosecuted for “revengence” speech. HELD: Constitution does not permit forbidding advocacy of force or law violation, except where directed to imminent danger or lawless action and is likely to incite such action. Abstract teaching of moral necessity to resort to violence is not the same as steering to such action. A statute which fails to draw this distinction is unconstitutional. CONCUR: Doubtful CPD is congenial with 1st. Apart from where speech is brigaded with action, speech should be immune from prosecution.
4. Bridges v California, 1941, p 1130- a) labor union leader sent letter to Sec of Labor calling court decision outrageous and threatening strike. b) published editorials commented on propriety of judicial action. HELD: absent serious danger to administration of justice, criticism of judiciary may not be stifled.
5. hypo: minister saying killing abortion doctors was morally acceptable.
1. def: speech that does no more than propose a commercial transaction (is entitled to 1st Amd protection)
(1) definition important since gov’t may have greater power to regulate. May be DETERMINATIVE question in case: whether or not speech is or is not commercial.
(2) see condom hypo handout
b) value
actually has political value (see econ policy)Economic policy tool. capitalism involves production/consumption and choice in “free” market. Info like pricing is often pertinent in determining amount of regulation needed in the marketplace direct commercial value to consumers in everyday life
c) definition is not based on economic motivation (eg, book publ)
d) economic consideration might be necessary but not sufficient to classify as commercial speech
lies in
2. Virginia State Board of Pharmacy v Virginia Citizens Consumer Council, 1976, p1227- 1st Amd right to receive information. Statute made pharmacist’s advertisement of prescription drug prices “unprofessional conduct.” HELD: Even purely commercial speech is entitled to 1st Amd protection. Court relied on society’s strong interest in “free flow of commercial info.” States interest was in avoiding price war and resulting shoddy service. The 1st Amd flatly forbids the state from deciding that ignorance is preferable to the free flow of truthful information.
a) it “is a matter of public interest that [private economic decisions], in the aggregate, be intelligent and well informed.”
b) commercial info is “indispensable to the formation of intelligent opinions as to how [the free enterprise system] ought to be regulated or altered”
c) Protection of commercial speech is less extensive ([FN] p1231):
(1) speech that is false/misleading/deceptive or directed toward illegal transaction is outside 1st Amd Protection
(2) broader reg of TPM
(3) presumption against prio

intervene when philosophy breaks out into overt threats to public order. Jefferson.
(a) Abrams lawyer said to punish harm but never speech
(ii) speech____________________harm
(a) at what point in continuum can gov’t regulate?
(b) can gov’t step in before an actual harm?
(d) Under Holmes-Brandeis view, probably not serious enough interest facing imminent harm.
(i) remedy proposed by Holmes-Brandeis is MORE speech. Gov’t must let speaker go ahead. Free exchange of ideas. Marketpalce of ideas.
(2) general status under the first amendment. “doctrinal” elements general parameters established in Gertz and the note cases. brief outline of the doctrinal framework (familiarity, not mastery)
b) Central Hudson Gas v Public Service Commission of NY, 1980, p1238- banning of all promotional advertising by utilities. HELD: under 4 part test, ban was too extensive than needed.
(1) 4 part test (intermediate scrutiny?)
(a) all comm. speech receives at least partial protection except misleading speech or speech which concerns unlawful activity
(b) whether substantial gov’t interest exists for reg
(c) whether reg directly advances gov’t interest
(d) whether reg is not more extensive than necessary. means-end fit. must be reasonably tailored.
c) Metromedia inc v San Diego, 1981, p1239- common sense allows conclusion that billboards are safety hazard. State may regulate commercial billboard ads.
d) Posadas de Puerto Rico Associates v Tourism Co of Puerta Rico, 1986, p1239- PR banned ads for casino gambling aimed at PR residents. HELD: satisfies Central Hudson test. “Greater includes the lesser” theory = if activity could be completely banned, advertising of it could be completely banned.
(1) weakened by Liquormart v RI.
e) Florida Bar v Went For It, 1995, p1241- state may require 30-day “cooling off” period before lawyers send targeted direct mail solicitations to tort victims and their relatives following an accident or disaster. Restricting free speech of lawyers outweighed by state’s interest in sparing person’s from sales pitch while “wounds still open” and forestalling public’s outrage from this conduct.
(a) Vir Pharm says gov’t may more broadly regulate commercial speech;
1. def= speech composed of false statements1 of facts which are injurious2 to reputation3 or standing in community
a) implicate 1st Amd
(1) initially not protected (see Chaplinksy)
(2) defamation rules are limited by 1st Amd principles (Sullivan)
(3) analogies
(a) to commercial- some in, some out
(b) seditious-
(1) requires at a minimum that statements were made with a reckless disregard for the truth
(2) reckless disregard = entails publication made with high degree of awareness of probable falsity where
(3) “actual malice” = reckless disregard for the truth
(4) Constititutional privilege for good faith critics of gov’t officials
(5) conflicting interests: protecting reputation vs protecting exchange of [political] ideas
c) function of actual malice standard
d) high bar for proof of “malice”
(1) numerous cases where judges have reduced awards (ABC; security guard; Food Lion; p138sm)
(2) yet strategic lawsuits against public participation use libel to stifle legitimate criticism of gov’t officials and employees (p145sm)
(3) erosion of the press vigorously defending against libel suits (p147sm). hardline of respectable new services against libel suits softened with corp ownership. Social merit of apology mumbled to get out of suit? “I’m sorry your mo-in-law is sick but its not my fault she is sick”
(4) “actual malice” or “reckless disregard” standard
(1) standard protects false statement of fact. malice standard high bar that protects more than honest error.
(2) overprotects speech as prophylactic
D must have entertained serious doubts as to the truth of his publication.
(a) but imposes significant chilling effect by exposing media to lawsuits (dissent suggests absolute protection for media)
(3) Why protect falsity? Even a false statement may be deemed to make a valuable contribution to public debate since it brings about “the clearer perception and livelier impression of truth, produced by its collision with error.” Mill, On Liberty.
P entitled to prove D state of mind through circumstantial evidence
(i) role of motive: cannot be inferred simply from motive
(ii) difference of opinion as to truth does not constitute clear and conv evidence of reckless disreg
(iii) question whether evidence supports std is question of law
(iv) failure to investigate alone not dispositive but purposeful avoidance of truth is in different category
(b) normal deference to findings of fact on appeal inappropriate in libel case
e) New York Times v. Sullivan
P was weapon of “white establishment” to punish civil rights proponents. HELD: State defamation rules are limited by 1st Amd principles. Requirements of guarantee’s of truth would lead to self-censorship, rather than free debate, especially in criticism of gov’t policy. Decision found AL libel rules similar to unconstitutional Sedition Act. honest error allowed in case of statements made , 1964- supervisor of Montgomery AL police sued NYT for ad stating Mont police terrorized MLK. Libel jdgmt for RULE: 1st Amd prohibits a public official from recovering libel damages for defamation relating to his official conduct unless he proves that statement was made with actual malice. Sullivan.: accept some justifications of regulating protected speech
draft board agitation cases- recognize 1st Amd right in seditious speech but granting gov’t significant power to regulate and punish it. Jones shouting outside poorly protected jail, &quot