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Constitutional Law II
University of Mississippi School of Law
Nowlin, Jack Wade

Jack Nowlin
Con Law II
Fall 2012
Exam Outline
A.    Judicial Power and Constitutional Interpretation
a.       Federalist no. 78
                                                              i.      Separation of powers between branches of govt
                                                            ii.      Will = legislative power to make law
                                                          iii.      Judgment= power to interpret and apply law
                                                          iv.      Contrary to fears of Anti-Federalists, judiciary will be weakest of all 3 branches despite that judges are unelected, politically insulated, they have no “will” to make laws or enforce them, only power to judge/interpret and depend on other branches to uphold/follow their rulings
b.      Calder v. Bull
                                                              i.      Chase- Judicial activism, judges should rely on natural law when making decisions, if act of legislature violates basic rights, implicity unconstitutional even if not explicitly, judges should promote justice, living constitution
                                                            ii.      Iredell- judicial restraint, strict separation of powers, court limited to traditional legal materials, historical constitution
B.     Freedom of Speech
1.      The Philosophy of Free Expression
a.       Market place of ideas- search for truth
b.      Self-governance
                                                                          i.      Popular sovereignity- people more powerful than govt, toss out govt they don’t approve of, if govt could censor people would immediately censor opposition to it
c.       Individual autonomy
                                                                          i.      Allows for fulfillment of citizenry by allowing them to express themselves in anyway
d.      Checking value
                                                                          i.      Press as a watchdog on govt keeping them honest, exposing corruption, incompetence
e.       Tolerant society
f.       Safety valve
2.      Free Expression at the Founding
a.      Sedition Act of 1798
                                                                          i.      Federalists want to suppress D-R Jeffersonians
1.      No prior restraint but subsequent punishment, follow English C/L of seditious libel
                                                                        ii.      Jeffersonians
1.      National govt has no authority to censor, Sedition Act unconstitutional
2.      Censorship not necessarily bad, just federal govt cant do it, states can if they want
                                                                      iii.      Republicans- Madison
1.      Agreed that national govt had no authority to censor
2.      Added that in democratic form of govt, govt cannot censor the people b/c the people give it its power, it would not be able to function
3.      Advocacy of Unlawful Conduct
a.       Speaker advocating the use of unlawful conduct, either to a crowd, through publication
b.      Old Tests:
                                                                          i.       Shaffer- bad tendency test, if the speech advocating unlawful conduct had a bad tendency to breach peace/bring about the unlawful conduct, govt had a right to regulate/suppress it, focus on the intent of the speech
                                                                        ii.      Masses Publishing- express incitement test, look to the express language of the speech to determine whether it truly advocated unlawful conduct and whether it was dangerous, whether it truly incited or not- more speech protective but leaves too much room for clever inciter to use metaphor/symbolism
                                                                      iii.      Schenck­- clear and present danger test- consider probability (clear), immenence (present as in danger could happen now) and danger (is there a real danger?) to determine if speech could be suppressed or not
c.       Modern Test:
                                                                          i.      Brandenburg:  KKK leader talks about taking revenge by violence/illegal action, modern test emerges:  a type of clear and present danger test but not in those exact words: 
1.      “advocacy directed to inciting or producing lawless action and likely to produce to such lawless action”
2.      Brandenburg elements:  probability, imminence, danger, intent, express words?
4.      Hostile Audience Responses
a.       Speaker is making a crowd angry, concern that law will be broken as a result, threat to public safety, speaker, brea

as, saying the words/agreeing is the actus reus
7.      True Threats
a.      new subset of constitutionally unprotected speech
b.      Modern definition:  communication where speaker means to communicate a serious expression of an intent to commit an act of unlawful violence against an individual or group, Virginia v. Black, 2003
c.       Elements:
                                                                          i.      Required:  intent to communicate, serious expression (intent v. reasonable speaker/listener approach- what would RPP understood it to mean; some cts. now though require intent to threaten, majority is still reasonable person)
                                                                        ii.      Not required:  imminence, intent to carry out
d.      Virginia v. Black­- VA cross burning statute prohibited cross burning with intent to intimidate/threaten with provision that burning a cross was prima facie evidence of intent to intimidate person/group, statute struck down b/c of this provision and potential to chill speech when Klan has multiple uses for cross burning beyond intimidation
8.      “Hate Speech”
a.      not a recognized category of speech by SCt., just being used in relation to other doctrines like libel, fighting words, threats
b.      Doctrinal categories that ARE recognized by SCt., can be used for hate speech suppression/regulation:
                                                                          i.      Libel
1.      Beauharnais v. Illinois- group libel, D. distributes racist leaflets disparaging blacks, charged for group libel, libel an unprotected category of speech b/c of C/L tradition, Ct. upholds; dissent:  fear of chilling effect by extending libel to an entire group will result in restraint on political speech
2.      NY Times v. Sullivan- 1964 SCt. takes C/L category of libel and narrows it in order to protect political speech