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First Amendment
University of Michigan School of Law
Herzog, Donald

First Amendment – Herzog Winter 2015
State Action
FACTS: Boston legislature passed law saying no public speeches in Boston Commons.  Holmes said it was okay — Boston Commons is to Boston as the owner of a private house is to his house.  (This is bizarre because private people can make any rule infringing free speech because they are not the state.)
§  Greater includes the lesser theory: If you have the right to regulate one space, you necessarily have the right to regulate something that is included within the larger sphere.
§  The First Amendment only protects against state action – private actors can do a number of things to limit your free speech.  The guarantee is only about congress, states and other governmental bodies.
§  The government cannot make a law that has content restrictions (what’s being said); but if the rule is directed against NOISE, for example, not against content, they can make the law. 
§  Courts often balance the interest of the state – so if the state really doesn’t want speech to happen, they could say the rule was for a legitimate content neutral reason
§  Look at whether the law, on its face, limits free speech or, if the law is okay on its face, you can show that the legislature had a speech-curbing motive in passing it/it has an infringing indirect effect; cannot be pretextual! 
§  It’s easier and more constitutional to pass a rule that gets rid of all speech.
Theoretical Bashful Radical
FACTS: CA had a property tax exemption for veterans.  At first, they said all veterans could get the exemption.  Then they passed an amendment saying no veteran that’s a communist can get the exemption and the vets had the burden of signing an oath to prove they weren’t communists.  Vets sue.
HOLDING: Brennan says it is unconstitutional to stop giving a benefit to a class of people you once give it to them – this has the effect of coercing claimants to refrain from the [anti-government] speech. 
You can’t condition public benefits on the coerced restriction of speech.
§  Denying a benefit is seen as equivalent to imposing a penalty. It has the same effect.
§  If the denial results in suppression of dangerous ideas (political ideas), there’s an unacceptable coercive effect at play.
The government can make a rule that says, “no benefits for anyone then” as a way of pulling the benefits away from the communists.  But they can’t make a rule that singles out the communist vets.
§  Think about the theoretical bashful radical — government cannot make a law that forces a citizen to prove he is compliant (or stop his normal speech) in fear that he’ll say something that might make him lose his benefits. 
§  Government cannot make a rule that makes receiving a benefit contingent on you limiting your private speech.
§  Look to the procedural implementations: Burden of persuasion fell on taxpayers to prove they were not communists; this burden is appropriately the state’s responsibility!  The state needs to prove that their restriction is reasonable.
DISSENT: Government was giving a gift – not a right.  So the government has a right to say that they don’t want to give this gift anymore. 
Debate about Purpose of First Amendment
First Amend. is only about protecting political speech & democratic self-government.  It is for discussion of social policy
First Amendment is just about SPEECH – doesn’t matter what the content is, or how high/low it is.
Constitutional Fact
The rule across the law is that once a case is on appeal, you can’t reevaluate the facts – those are in the record – you can only review the law.  But in First Amendment law, the Court will disagree with the factual findings of the lower courts.
§  A statute is overbroad if, in addition to outlawing unprotected speech, it could apply to protected speech.
§  The idea is that, “Yeah it’s okay to send me to jail for this, but it’s not okay to send some other hypothetical innocent party whose speech could also be chilled by the overbreadth of this statute.”
§  “It does not matter whether I am guilty of violating the statute in question, because this law could effect someone else, who is not even HERE, so I am calling this unconstitutional on behalf of them.”
§  A statute is vague if you don’t quite know what it might/might not apply to – you don’t know what the boundaries are.
§  Vague statutes suffer from at least two fatal constitutional defects:
o   no fair notice: due process requires that people know what acts are forbidden.
o   no explicit standards for those who enforce them, thus allowing discriminatory and arbitrary enforcement.
§  Vague statutes are most dangerous in First Amendment context because cautious citizens will avoid speaking when they are unsure, in order to be certain of not violating the law.
Limiting construction
where the court says, “okay, this statute is too broad, but it just needs to be narrowed.”  This is like the cases below where they limited the statute to “fighting words.”  This is good because it allows bashful radicals to know exactly what is allowed and encourage them to speak more.  But this is bad because it assumes that bashful radical
Rules for Overbreadth Cases
HOLDING: Court has altered traditional rules of standing to permit attacks on overly broad statutes with no requirement that the person making the attack demonstrate that her own conduct could not be regulated by a statute drawn with requisite narrow specificity.
Litigants are permitted to challenge statute because of a judicial prediction/assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected expression.
§  Normally, a person won’t get standing in constitutional adjudication just because the law is itself unconstitutional or could affect others – has to be a personal harm.
§  BUT HERE, litigants can challenge a statute not because their own rights of free expression are violated, but because the statute's very existence may cause others (not before the court) to refrain from constitutionally protected speech or expression. This is done out of concern that the threat of enforcement of an overbroad law may deter or “chill” constitutionally protected speech–especially when the overbroad statute imposes criminal sanctions.
§  Claims of overbreadth have been entertained in cases involving:
1.      only spoken words
2.      where rights of free association were threatened
3.      where statutes regulate time, place and manner of expressive or communicative conduct
4.      where prior restraint is involved
§  Application of the overbreadth doctrine has been employed sparingly and only as a last resort.
§  Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute.
§  Even if there exists an overbroad law, we cannot always justify prohibiting all enforcement of that law if the law reflects “legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.”
§  As you go from “pure speech” to conduct, the idea of overbreadth attenuates because the state does not want to invalidate laws that reflect their legitimate interest in maintaining control over harmful and unconstitutional criminal conduct.
§  When conduct and

from receiving ALL mail so he can’t get paid or receive checks for his orders.  D says this was prior restraint on his speech because Postmaster did not know the content of letters before restraint on delivery happened.
CLARKE’S HOLDING: This was within the Postmaster General's authority and does not violate Free Speech because the postmaster’s decision was “fairly arrived at.”
HOLMES’ DISSENT:  B/c post office is the only way to transmit speech to people far away, Congress shouldn’t authorize anyone to determine in advance that certain words shall not be uttered
§  Conduct Rule = where the government says to Leech, “Don’t mail your ads” and says “Don’t send Leech any money” to consumers. These rules are addressed to the general public and are designed to guide its behavior. 
§  But what about the audience members’ rights in saying “we have first amendment rights to hear what we want to hear”?  They have a right to receive information.
§  This is different from Decision Rules, which are directed to the officials who apply conduct rules (ex. where the government says to the post office, “just don’t deliver this mail.”)
FACTS: D publishes newspaper accusing city officials of improprieties. D prosecuted under law prohibiting publishers from printing malicious, lewd, and defamatory statements. As punishment, D is enjoined from publishing any future papers without review by the court first.
HOLDING:  Unconstitutional b/c prior restraint – D has a right to still publish and redress for city is to bring libel and/or criminal charges.
§  It is unconstitutional to stop someone before they publish but okay to charge them after (stopwatch theory) because, if charged after the fact, then D really did break the law, as opposed to being punished for what he might publish in the future.  What if what he might publish is protected speech?
FACTS: An injunction had been issued against OBA, barring them from leafleting and picketing anywhere in the city about Keefe, a real estate broker, and from saying that he scared local white residents that minorities were coming to town.  Enjoined b/c speech invaded the broker's right of privacy, had caused irreparable harm, and because it was “coercive and intimidating,” rather than “informative”.
HOLDING:  Not meeting standards of “acceptability” was not a sufficient reason to support an injunction against peaceful distribution of informational literature.  Peaceful pamphetting is a right protected by First Amendment.
§  An injunction can be prior restraint.  
§  Court wants to say that manipulative speech is also protected by the First Amendment.
§  This speech different from “your money or your life” because even though it is not polite, it can still be considered public debate about important public issues.
§  This case shows that F.A. is not always about “careful debate” of public policy but sometimes contains unpleasant speech.