Constitutional Law II – Nancy Leong – Spring 2015
PRINT IN GREYSCALE TO MAKE SURE FORMATING IS GOOD; THEN PRINT IN COLOR BEFORE WEEKS END
– PRINT also; slides, cases (westlaw), review
FREE SPEECH
IFLOC – unprotected speech that the government can prohibit; rational basis review
– Incitement (any IFLOC) is not protected under the 1st Amendment.
SLAPs – always mention slap value: burden on gov’t to prove no SLAPs value
Reasonable time, place, and manner restrictions: accommodate public convenience and promote order by regulating [traffic flow, preserving property interests, conserving environment, protecting administration of justice]
SLAP – whether the work, taken as a whole lacks serious Scientific, Literary, Artistic, Political value
– Must be content-neutral; narrowly tailored; significant gov’t interest; leave open channels of comm.
Overbreadth – always mention make an overbroad argument
Government interests: conserving resources; safety; health; education; protecting children; raising revenue
Random Arguments: gov’t has to treat negativity toward gov’t just like praise for gov’t
Something about always bringing a claim for oneself and bringing a claim for all those harmed by statute
Content Based – Content Neutral
– O’Brien test (used when speech is indirectly restricted; non-speech element) (has been used to analyze whether laws that have the effect of regulating speech, though are apparently neutral towards the content of that speech, violate the 1st Amendment)
o Whether it is within the constitutional power of the government to take the action
o Does the regulation further an important government interest
§ Examples: Litter, unrest, and disorder
o *Does the government interest relate to the suppression of free expression*
§ If yes, content-based
o Whether incidental restriction on alleged 1st Amendment freedoms is no greater than is essential to the furtherance of that interest
o 5th Element later implied: Amble channels of communication (if there is no other reasonable way of communicating a message the court might strike down a measure that otherwise appears valid; alternative means of expression: GIVE AN EXAMPLE)
1st amendment analysis – (from Church of Lukumi Babalu Aye notes)
– If speech falls into less protected or unprotected category
– Once you decide how speech is classified
o No matter how it is classified it has to survive some level of scrutiny; harm that government is trying to regulate are always relevant
o Always start with: What are the harms?
– Need to address the vagueness issue
o Define “harass” – makes direct contact more than twice in a week with the intent to emotionally harm a person
Levels of scrutiny
– Strict Scrutiny: compelling state interest; narrowly tailored
– Intermediate Scrutiny: important or substantial state interest; closely tailored to advance that interest
– Rational Basis: Legitimate state interest; rationally related
Incitement:
– Government needs to show (Brandenburg)
o Directed to (intent requirement – speech must be directed at somebody)
o Imminent – danger must be right now (time requirement)
§ Holmes’ clear and present danger test
o Likely to incite or produce – empirical evidence of likelihood of lawless action (reasonable listener test)
§ who is hearing it, mood, location, current events
– Schenck v. US (distributing leaflets in opposition of draft was not protected speech)
o the question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to protect (old standard) (this is Holmes’ clear and present danger test)
o When a nation is at war, many things that might be said in a time of peace are such a hindrance to its effo
udience isn’t a captive audience restriction disfavored
§ Kindergarten teacher has a captive audience – people who sit in Ct. house lobby are not a captive audience
o Ct willing to protect even speech the majority of population finds vulgar ( 25 Cohen)
o Words communicate emotion as well as ideas
§ That emotion is part of the communication that is protected under the 1st
– Factors
o Location; intent/effect; comedic; tone; context; history; identity of speaker; identity of audience
– Content-based discrimination disguised as fighting words see RAV v. St. Paul
Injury to reputation; Group Libel:
– Safety Valve: if speech was suppressed it would lead to revolt, things like crime, revolution (its better to let ideas out in the open)
– RAV v. St. Paul (charged with violating city ordinance that prohibited bias-motivated disorderly conduct; invalid) (this is a content-based that doesn’t fall into any unprotected or less protected; court could have but decided not to consider this less protected or unprotected group)
o Hate speech is fully protected under the current doctrine
o Statute unconstitutional because it prohibits otherwise protected speech solely on the basis of the subjects the speech addresses. This ordinance, even narrowly construed to apply only to “fighting words” still clearly applies to “fighting words” that insult or provoke violence on the basis of race
§ ME: it is “fighting words” but “fighting words” can’t be prohibited only when race related
o Content-based regulations are presumptively invalid under 1st Amendment
