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First Amendment
University of Michigan School of Law
Herzog, Donald

Prof. Herzog – Winter 2009
Part One
I. Opening Problems
A. “The Greater Power Includes the Lesser”
4 major theories for protecting freedom of speech: further self-governance, aid discovery of truth via the marketplace of ideas, promote autonomy, foster tolerance
overarching Q: can state ban speech against the government? can the state restrict speakers to a certain area of a common?
state interest v. 1A free speech
“mixed motives”: what if some legitimate and illegitimate purposes of state? 2 models for handling situation:
slightest iota of bad purpose dooms measure
slightest trace of good purpose saves measure
Commonwealth v. Davis (1895) p. 1
issue: can Boston absolutely or conditionally forbid public speaking in a public park? original contemplation of public forum doctrine
if no property right interferes, Leg can END right of public by ending dedication of park to public use – so can take “lesser step” of limiting public to certain uses
holding: Gov has right to control use of its property. City has power to close Boston Common to public addresses, even though some think this was directed at preaching of the Gospel. Greater power to shut down the Common altogether includes the lesser of limiting the uses of the Common.
Greater includes the lesser.
permissible to delegate to Boston power to pass ordinance from state leg – town/city has traditionally regulated use of Common
ordinance still valid even though can be removed in particular cases by license from city officer
no reason to believe ordinance passed for any other purpose than as proper regulation of use of public grounds (i.e. free preaching of Gospel in public)
MODERN DOCTRINE: while gov still has ability to control property, and prohibit speech, there is a right to use at least some gov property under some circumstances.
concern: if enforce only against preachers, is this a constitutional problem?
facial v. as-applied challenge – as-applied here, cannot get away with enforcing rule only against preacher, generally
BUT if enforcing against preachers b/c “most obnoxious”, NOT b/c of what saying, ok
B. Rights, Privileges, Unconstitutional Conditions
·         First question – was the regulation intended to curtail speech? Look at legislative purpose.
·         First Amendment typically prefers the rule that gives you less speech altogether than selectively carving out permitted speech.
Notes: “Unconstitutional Conditions Doctrine” says that the government cannot condition a privilege (or deny a benefit) on abdication of a constitutionally guaranteed right. That is, government cannot penalize people for exercising constitutional rights by withholding a privilege that would otherwise be available.
Speiser v. Randall (1958) p. 2
issue: is CA allowed (in line with statute saying no one advocating overthrow of US can get a tax exemption) to require veterans applying for prop tax exemption to sign a loyalty oath to US, or does this impermissibly infringe on 1A rights without procedural safeguards guaranteed by 14A?
communists HAD tax exemption and are now losing it – all vets had, being revoked for radicals
speech CAN be limited by exercise of taxing power – but here effect is State fining them for speech – conditions imposed on granting privs must be “reasonable” – “discrimination denying tax exemption for free speech limits free speech”
denial of tax exemption for engaging in certain speech has effect of coercing claimants to refrain from proscribed speech
issue if CA has chosen fair METHOD – not worried about people making criminal speech but people who could be confused with it – “bashful radical” problem
under CA rule, if left-wing, can be penalized and “necessarily” must change speech out of fear of being too close to penalizing the bashful radical
unconst. conditions doctrine prevents gov from penalizing those who exercise their constitutional rights by withholding an otherwise available benefit
this is facial challenge – can just prove someone “might” be in class
dissent: Clark (dissenting): The majority places too much importance on whether the oath is final or whether it is just a step in ascertaining the vets’ loyalty. What is important is that this isn’t a penalty; it’s the exercise of the sovereign’s right to refuse to bestow its bounty as it wishes. The sovereign is not threatening to do anything to those who are disloyal. It’s just saying it won’t lend active support to those people.
C. Overbreadth
Vagueness v. Overbreadth
vague: if a reasonable person cannot tell what frontiers of regulation are – not sure who/what is being regulated
o    vague laws violate due process whether or not speech is regulated
o        about fairness – unjust to punish a person without providing clear notice as to what conduct prohibited
§         risk of selective prosecution (see below)
§         concern of chilling constitutionally protected speech
§         need “breathing space” for 1A freedoms to survive
o        Untrammeled administrative discretion – standardless discretionary power – courts don’t like vague language that dictates how a bureaucrat will dispense licenses. Vagueness can give bureaucrats the authority to exercise discretion in a manner that effectively silences certain types.
o        SC has declared laws regulating speech to be void-on-vagueness when so ambiguous that reasonable person cannot tell what expression is forbidden and what is allowed
o        allows FACIAL challenges to laws even by those whose speech otherwise would be unprotected by 1A
overbroad: if clear what is regulated, but pulls in too much into the regulated area – i.e. regulation sweeps protected speech into reach
in area where gov can regulate speech, law that regulates much more expression than Constitution allows to be restricted will be declared unconstitutional on overbreadth grounds
can argue that would be unconstitutional as applied to others even if constitutional as applied to you.
Saving limiting construction – a facially overbroad statute won’t be struck down as unconstitutional if there is a more limited construction that wouldn’t impinge on protected speech.
Overbreadth is “strong medicine” – try to limit the statute when possible.
this is b/c involves facial invalidation of law and b/c permits individuals standing to raise claim of others not before court.
DOES NOT apply in challenges to laws regulating commercial speech b/c incentive to advertise will lessen worries of chilled speech
which assumes, bizarrely, that the Bashful Radical is attuning his behavior to a court’s likely, more limited interpretation of the statute instead of the facial mean

rest someone so it’s open to lots of abuse by police.
Blackmun (D): Not the job of the court to look into cases not before it. Majority doesn’t give any weight to state interest in prohibiting this type of speech. not overbroad b/c any reasonable man knows what it means to “wantonly curse or revile” – worry of “council of revision”
free speech NOT absolute – falls when language inflicts injury or incites immediate breach of peace
·         Doctrine of constitutional fact: Where fact & law findings are interwoven and 1A rights are at stake, reviewing ct must revisit FOF – ct didn’t buy the LA ct’s interpretation of the language, i.e., it was limited to just fighting words. H: Cynical view here is that Ct simply believed Lewis’s claim that the cops were racist. 
·         H: Doesn’t really sound like “real and substantial” overbreadth here – mainly just “real”.
·         H: If the standard is “susceptible” that’s really tough and can get rid of a lot of speech. Maybe it’s tougher here cause its pure speech and not conduct (the sliding scale).
Virginia v. Hicks (2003) p. 19
is RRHA’s trespass policy facially invalid? policy gives notice to those without “legit business or social purpose” cannot come back
overbreadth doctrine summary: law invalid unless limiting construction narrows to remove threat to constitutionally protected expression – worry of “chilling” protected speech, but comes point where chill doesn’t justify prohibiting all legal enforcement (if “legit state ints” and not “substantial” application to free speech)
current doctrine: ALL streets are public fora and open for speech
VA S. Ct had prob with “unwritten” segment of statute allowing unfettered discretion of manager to decide if can flyer, meaning she has unconstitutional authority to prohibit distasteful speech
problem: even if unwritten part not constitutionally valid, doesn’t invalidate statute as a whole – until one receives barment notice, entering for 1A purpose is not a trespass
basis of barment statute NOT speech but nonexpressive conduct – entry in violation of notice
Hicks has not shown that trespass policy as whole prohibits “substantial” amount of protected speech – overbreadth fails if not specifically addressed to speech or conduct associated with it – if problem can remedy via as-applied challenge
punishing trespass does not implicate 1A
problem with overbreadth: substantial costs created by overbreadth doctrine when blocks application of law to constitutionally unprotected speech or constitutionally unprotected conduct.
Souter: unwritten part MIGHT be invalid but must look to entire policy – too few invalid applications to result in overbreadth