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First Amendment
University of Michigan School of Law
Herzog, Donald

Basics
–      Standing: You can assert 1st vicariously, but generally just overbreadth. Broadrick.
o    Taxpayer Standing: On establishment clause for sure; less likely free exercise.
–      Standard of Review: On appeal you can’t look at findings of fact, but in 1A cases, law and fact are so intertwined, they often delve deep into the trial transcript. See, e.g., Lewis.
o    Rule of Avoidance: If you can avoid the constitutional question, do so, make it fine, tell plaintiff to come back when something bad happens. This often gives way to overbreadth and vagueness. But see Rust (facial challenge with no application not avoided).
–      Standard of Proof: When general taxing program limits free speech, state needs “sufficient proof to justify its inhibition.” Speiser (GIs forced to take oath of loyalty in order to get tax exemption).
o    If tax is equal to a penalty, putting burden of proof on taxpayer is unconst.
o    Concern is for chilling effect on bashful radical.
–      Focus on State Action: If legislature ends a place’s dedication to public uses, it can stop people from entering it, assuming no interference with “proprietary right.” Davis (City of Boston can regulate use of Boston Common). (Greater includes the lesser.)
o    State action, not private action, is concern of 1A.
o    Problem: Holmes suggests private homeowner can draw lines gov’t can’t.
o    1A prefers no speech to only permitting some.
o    Curtailing of speech can be incidental byproduct; no problem. See also Hicks (no loitering).
–      Overbreadth: Can’t limit speech unless it’s reasonably narrow. BUT cops need leeway to do their jobs. Possibly restricted by Hicks; possibly excessive (Blackmun).
o    Must find a “limiting construction” to save it – encourages bashful radical.
§ Usually found in “breach of peace” statute challenges (always fail).
o    It’s worth risking letting all speak even if you have to allow some speech that shouldn’t be protected. Broadrick.
o    Banning opprobrious speech is overbroad. Lewis (New Orleans statute proscribing utterance of fighting words to cop is okay, not utterance of cursewords). But see Chaplinsky; Beauharnais (epithet ban not overbroad).
–      Vagueness: Can’t be too vague – chills speech of bashful radical. For finding, need
1.    Lack of fair notice;
2.    No reasonably clear guidelines for enforcement. Parker.
Prior Restraint
–      Originalism: This is the core concern of 1A (should it be only?).
–      Post: Post office can stop delivery of mail to maker of fraudulent product. Carlile (organo).
o    Counter: Prior restraint – you don’t know the content.
–      Press: State can’t stop press from publishing malicious articles. Near (statute prohibited lewd, scandalous, defamatory publication), limited by New York Times. But see Freedman* (movie censorship scheme legal with procedural safeguards).
o    Madison: “[I]t is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits.” But see Davis.
o    Civil/criminal actions after the fact are fine.
–      Possibility of causing violence isn’t enough to justify prior restraint. Near; Brown (possibility of riots insufficient). But see Brandenburg (depends on imminence).
–      Private Individuals:Private individuals can’t be stopped from leafleting. Organization for a Better Austin (no injunction permissible on broker who started blockbusting 55% white neighborhood; they pamphleted him, neighbors, church).
–      Licensing: License requirements are illegal prior restraint (UAD). Cantwell (JWs); Saia (JWs using sound amplification); Kunz (permit; permit renewal).
–      Stopwatch Theory: You can’t be stopped before, but they can sue you after. 
o    H: But speech is still chilled because of liability.
–      Who Decides Theory: Judges vs. actual administrators of the law?
Speech, Advocacy, and Action
–      Dissent: As long as you don’t actually urge desertion, you can publish dissent. Masses (postmaster can’t refuse to deliver publishers’ materials on draft dodging).
o    Sympathy and admiration are not equivalent to advocacy. Masses.
o    Hand: If gov’t is pushing up against const limits, we’re going to push it hard to prove itself; if not, no. Masses.
o    Focus on social harm down the road allows you to be broader.
–      Can’t advocate abandoning US with objective intent (no interest in discussion). Abrams (anarchists/socialists can’t advocate stopping production of war materials).
o    May depend on your purpose. Gitlow (writing about anarchy & teaching the doctrine can be crime, because state has right of self-preservation).
–      You can advocate violation as long as you don’t incite. Whitney (Brandeis, c.). But see Abrams (advocacy banned).
–      Clear and Present Danger Test: “Whether the words used 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 a right to prevent.” Schenck (pamphlets advocating insubordination can be banned). But see Abrams (advocacy with no threat of violence banned; maybe more than abstract doctrine).
o    J.S. Mill (read by Holmes): No gasoline for a riot.
o    If there’s time for further speech, the remedy for bad speech is more speech. Whitney (Brandeis, c.). Theories on Elapsed Time:
1.    Decrease likelihood of bad outcome (stop him short)
2.    Agency & responsibility are what matter (more time to think over removes liability from speaker, if enough time elapses).
o    This requirement applies retrospectively too (not just for prior restraint).
–      Time Test [used to modify CPD, when still applied]: The more remote

n a “kernel” of expression to get protection. Stanglin.*
The O’Brien Model (H hates)
–      O’Brien Test: If there is an instrumental interest that burdens speech, gov’t needs:
1.    Was the regulation within the constitutional power of the government?
2.    Did it further an important or substantial governmental interest? (H: no principled way to cast it in O’Brien).
3.    Was the governmental interest unrelated to the suppression of free expression?
4.    Was the incidental restriction on alleged 1A freedoms no greater than essential to the furtherance of that interest? (More lenient than it sounds.)
–      Balance: how important is the state interest v. the speaker’s? (Gov’t usually wins).
–      School v. Kids: Kids don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker (school had no-armbands policy; substantial disruption interest insufficient). But see Kuhlmeier (limitations are okay if reasonably related to pedagogy).
o    Heckler’s Veto: School interest in discipline doesn’t outweigh student’s right to express views in appropriate TPM. Fricke (gay prom date can’t be banned).
–      School v. State: school wins. Meyer (statute can’t prohibit teaching German).
–      Manner of Speech: State can regulate manner, but can’t stop because of content. Cohen (Fuck the Draft jacket can be worn in California).
o    Compare Washington v. Davis (if facially neutral, then we look deeper to see whether it’s applied wrongly).
o    Captive Audience Concern: Privacy interests of the public can be enough to justify ending discourse where “substantial privacy interests are being invaded in an essentially intolerable manner.” Cohen (people can’t leave courthouse); Frisby (house picket of abortion doctor); Hill (approaching is okay, persisting after decline is not); cf. Johnson (flag-burning can be ignored). But cf. Schenck (no right to be free from speech when going to get an abortion).
The Arcara Model (H loves)
–      Arcara Test:If there’s no expressive element, there’s no cognizable 1A interest. Arcara (NY nuisance statute can close porn shops because there’s no element of protected expression in the sex).
o    As long as state moves against it qua activity, not qua message, it’s okay.
H: Focus is always initiall