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First Amendment
University of Illinois School of Law
Amar, Vikram D.

1st and 14th Amendments, Fall 2017, Prof. Amar:

Focus on Free Speech Doctrine

14th Amendment:

-When State/local gov’ts are involved in a case, they are brought in under the 14th Amendment

-Incorporation of other provisions of the Constitution

-This matters because we typically don’t spend as much time and attention on the Reconstruction Amendments as we do on the founding.

-But, how does the First Amendment become transformed or shaped through the 1st Amendment prism?

-The 14th Amendment is mainly about racial equality (newly freed slaves; freed by the 13th Amendment)

-Should all questions of violation of the 1st Amendment be viewed through the gloss of racial equality/neutrality?

-There are a lot of parallels between race neutrality and content or viewpoint neutrality. In other words, ought there to be a race neutrality analog in speech protection?

I. The Bill of Rights, The Civil War Amendments and Their Inter-Relationship

A. The Bill of Rights

-Barron v. City of Baltimore, (p. 411)

-The City had moved land around in such a way as to prevent the moving of boats in a wharf. The owner of the wharf brought suit for taking without just compensation. (5th Amendment).

-The S.Ct. concluded that the takings clause in no way constrains State or local gov’t.

-It’s written in the passive voice, and limits only the Federal Gov’t.

-This is because of the idea of Federalism:

-Biggest concern was that the federal gov’t would be too powerful an actor

-Bill of Rights was a response to the anti-federals’ fears of the too-powerful gov’t

-States had their own constitutions, many of which included their own bills of rights

-By the end of the Civil War, this line of thinking changed:

-The federal gov’t was no longer a new, scary entity

-The track records of the federal gov’t and the states, it was the states that people thought we should be worried about (imposition of tyranny through slavery)

-All of the types of law that surrounded the issue of slavery were state law

-e.g., property; commerce; contracts; criminal law

-The first eight amendments have been incorporated by the 14th Amendment.

-The 9th and 10th Amendments aren’t easily applicable as against States.

-The disagreement is over how we get there:

3 approaches to incorporation:

-Strictly speaking, the 14th Amendment doesn’t incorporate any of the Bill of Rights. It requires States to respect some fundamental freedoms. Some of the things that we think of as fundamental might coincide with what’s in the Bill of Rights is coincidental. – Frankfurter’s approach

-Everything in the first 8 governs the states. Absolute incorporation. – Black

-Selective incorporation: Look at the first 8, but limit the incorporation to those provisions that are fundamental. Clause-by-clause basis. – Brennan

-This is the path the Court has taken.

-The aspect of the 7th Amendment that gives a right to trial by jury in civil cases is not incorporated

-The 5th Amendment’s requirement of a Grand Jury indictment is not incorporated.

Kessler v. Charlottesville

-District Court ruling was an important event in the leading up to the publicized tragedy where a person drove a car into demonstrators.

-Permit was granted to conduct a demonstration

-Later, the City granted other organizations that opposed Kessler’s message permits to hold demonstrations to counter Kessler’s. These were to be held in parks just blocks away

-City then revoked/modified Kessler’s permit: required that the demonstration take place in a park more than a mile away

-Cited safety concerns about the number of people in the smaller sized park

-The City did nothing to modify/revoke the other groups’ permits

-Kessler sought preliminary injunction against the City’s attempt to have the demonstration moved

-The court did not buy the safety concerns assertion:

-City acted differentially; didn’t explain the concerns by reference to any other issues that have happened

-There were going to be the same number of people, regardless of where the demonstration was held

-People in support of Kessler’s message were going to show up to the original park anyway

-Prof.: The content of speech is important, but the location of the space is also very important.

-BUT! (*Time, place, and manner regulation is subject to lesser scrutiny than content-based regulation of speech!)

-This could have been an intentional strategy on the part of the City, knowing that it couldn’t regulate based on the viewpoint or message, but that it would not likely be subject to strict scrutiny for regulating the time, place and manner. This could also explain the delay in revoking/modifying the permit.

-AND, what

exhaustion. It forbids any other type of coercion that falls within the scope of due process.”

-The due process clause of the Fourteenth Amendment does not draw all of federal Bill of Rights under its protection.

Duncan v. Louisiana, (p. 434)

-Defendant, convicted of simple battery, had sought trial by jury, but was denied

-Louisiana Constitution only grated jury trial for cases where capital punishment or imprisonment at hard labor could be imposed

-Defendant claimed “that the Sixth and Fourteenth Amendments . . . secure the right to jury trial in state criminal prosecutions where a sentence as long as two years may be imposed.”

-Tests for incorporation:

-“The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state action by the Fourteenth Amendment has been phrased in a variety of ways in the opinions of the Court. The question has been asked whether a right is among those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, . . . whether it is ‘basic in our system of jurisprudence,’ . . . and whether it is ‘a fundamental right, essential to a fair trial.’


“Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which—were they to be tried in a federal court—would come within the Sixth amendment’s guarantee.”


-“The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore by respected by the States.”

-“[A] general grant of jury trial for serious offenses is a fundamental right.”