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Constitutional Law II
University of Dayton School of Law
Greene, Dennis

Constitutional Law- First Amendment
A.    Introduction
1.      Historical Background
2.      Why should freedom of speech be a fundamental right?
a.       Self-Governance- freedom to criticize Gov’t and officers is central in meaning of 1st
b.      Discovering Truth- John Stuart Mill- free speech is essential for discovery of truth
i.  Marketplace of Ideas- best truth is the power of the thought to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes can safely be carried out.
c.       Advancing Autonomy- all citizens have right of personhood and autonomy
d.      Promoting Tolerance- protecting unpopular speech is essential act of tolerance.
3.      Issues in Free Expression Analysis
a.       Any law can be reviewed to see if strict scrutiny (content-based) or intermediate scrutiny (content-neutral) is applicable (content-based).
4.      Strict Scrutiny
a.       Law must be NECESSARY to achieve a COMPELLING actual Gov’t interest.
b.      It must demonstrate that the goal cannot be achieved through any LESS DISCRIMINATORY ALTERNATIVE.
5.      Intermediate Scrutiny
a.       Law must be SUBSTANTIALLY RELATED to achieve an IMPORTANT actual Gov’t interest.
6.      Rational Basis
a.       Law must be RATIONALLY RELATED to achieve a LEGISLATIVE CONCEIVABLE GOV’T purpose.
B.     Free Speech Methodology –
1.      Content based- unprotected speech regulation based on message content
2.      Content Neutral- Time, place, and manner regulation of conduct
a.       Want subject matter and viewpoint neutrality
i.  Public Forums (streets, sidewalks, parks) – intermediate scrutiny.
ii.         Nonpublic Forums (military bases, schools, government workplace) – rational basis.
iii.       Private Forums (homes) – government can adopt reasonable regulation to limit access to private forums – solicitations.
2.      Distinction b/t Content-based and Content-neutral Laws – The Gov’t cannot regulate speech on its content based on:
o       Its message, ideas, subject matter, or content.
o       Content based restrictions are invalid by presumption.
a.       Importance of the Distinction- Distinction between content-based and content-neutral
·         Turner Broadcasting v. FCC-
Rule: Fed law requiring cable TV providers to devote some channels to local, edu. broadcasting is content-neutralà subject to intermediate, not strict scrutiny.
Held: Law is not “content-based” (does not attempt to regulate content of shows), it does not merit strict scrutiny. Content-based laws are those that distinguish favored speech from non-favored speech on the basis of ideas or views expressed
b.      How is it Determined whether law is content-based? – Government must be both viewpoint neutral and subject matter neutral.
i.  Viewpoint Neutral – government cannot regulate speech based on the ideology of the message.
i.  Ex – pro choice demonstration allowed in park but antiabortion demonstrations not allowed.
·         Boos v. Berry- Protesters sued b/c not allowed to picket outside foreign embassies with signs critical of those governments.
Rule: Fed statute prohibiting anti-government signs near foreign embassies is a content-based speech regulation, and subject to strict scrutiny.
Held: Because the law is “content-based” the Gov’t needed to show a “compelling interest” as to why the law was necessary. Protecting the feelings of foreign diplomats was not held to be sufficient since our own politicians are not granted the same consideration.
·         Simon & Schuster v., NY State Crime Victims Board-
Rule: State law requiring proceeds from criminals’ story to be paid to victims is not narrowly-tailored enough to be constitutional b/c law creates financial disincentives to publish or create works w/particular content,.
Held: State must show that statute serves a “compelling interest” and is narrowly drawn to only limit criminals from profiting. Ct held that statute would prevent anyone who ever committed a crime (regardless of how small) from profiting from any original works.
b.      Problems in Applying Distinction b/t Content-Based and Content-Neutral Laws-
i.  Content-based restrictions will be deemed content-neutral if it is motivated by a permissible content-neutral purpose.
ii.         Assertion that statute is content-neutral will not save statute that on its face, discriminates based on content.
c.       Does a permissible purpose for a law prevent it from being deemed content based, even if a content restriction is on the face of the law?
·         City of Renton v. Playtime Theatres- City statute prohibitedporn theatre was prohibited w/in 1000’ of any residential, school, church, park, or house.
Rule: Zoning ordinance must be analyzed as a content-neutral “time, place, and manner” regulation.
Held: “Time, place, and manner” regulation is ruled content-neutral, and subject to intermediate scrutiny. Not to restrictive of content, just location of the business.
d.      In applying the content based/ content neutral distinction concerns situations in which the government must make content based choices.
·         NEA v. Finley- Artists sued b/c they felt they were rejected from art grant b/c their art was not deemed “suitable” by the NEA Endowment Administrator. Contended decision rejecting them w/ grant was content-based (and subject to strict scrutiny).
Rule: Gov’t may fund art based on its assessment of its artistic content as long as it does not: (1) Abuse its discretion by penalizing disfavored viewpoints, or (2) violate other constitutional rights.
Held: All grants place content-based judgments on artists’ content, but this is not in itself discriminatory. It is only discrimination if the selection process singles out any “disfavored viewpoints” and withholds grants from them based on those viewpoints. Court permits “content-based” discrimination for arts b/c necessary in order to consider whether applicants’ art is indecent (not 1st amend protected), but doesn’t automatically ban funding of even offensive art.

·         Nebraska Press Assocn v. Stuart- In prosecution for murder, motion to vacate court order restricting pretrial publicity.
Rule: If less restrictive measures could achieve same objective of statute (fair trial), the statute is overbroad.
Held: B/c there were other means to insure fair trial besides gag order (sequestering, change of venue) statute was overbroad and unconstitutional.
iv.               Ct Orders seizing assets of Business convicted of Obscenity Violations- Ct rejected argument that illegal prior restraint existed when Gov’t takes business assets of Δ convicted of obscenity violations.
·         Alexander v. U.S. – After losing all his assets, Δ appealed the seizure as a “prior restraint” prohibiting him from operating adult business.
Rule: Gov’t seizure of business for criminal obscenity law does not constitute prior constraint.
Held: Ct denied this was censorship, citing RICO law allowing seizure of all contraband obtained by Δ in commission of the crime of which he was convicted.
c.       Licensing as Prior Restraint- Gov’t requires license or permit for “free speech” to occur:
i.  Must be important reason for licensing- make sure no conflict w/other parades
ii.     Must be clear standards leaving no discretion for Gov’t
iii.  There must be procedural safeguards
(A)Must be requirement for a prompt termination by Gov’t whether to issue or deny license request
(B) Prompt judicial review must be available for all permit denials
·         Lovell v. City of Griffin, GA- convicted for passing out handbills w/o permit.
Rule: restrictions for speech can only be made by “time or place” b/c it prohibited distribution of all kinds, at any place, and in any manner w/o permit from city
Held: Handbill restriction applied to all speech. The requirement of permit was too restrictive and gave unlimited (and overbroad) power to city to deny anybody.
i.  Important Reason for Licensing- Used to make sure no conflict w/other parades
ii. Clear Standards Leaving almost no Gov’t Discretion-
·         City of Lakewood v. Plain Dealer Publishing Co.- Law restricted news racks
Rule: Discretion when having permit requirement must be founded on specific guidelines.
Held: Absence of express standards for restriction and the unrestricted discretion of City to decide when and it to grant permit were too broadly construed.
iii.               Procedural Safeguards – in order for a permit to be valid there must be specific procedural standards