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

I – Nowlin
Fall 2004
Review of the Constitution
Establishment of basic law or rights à Dec of Ind est life liberty and pursuit of happiness
Organic law
Broadly conceived, Const est a series of structures and then list a statement of rights in the Bill of Rights and the 14th Amendment
Separation of Powers
Representative democracy
Checks and balances (of particular import is judicial review)
Calder v. Bull, 1798
The import of this case is the dispute of the role of natural law in the Constitution
Justice Chase argues that natural law is included so he can invalidate laws that are unjust or immoral (forerunner of activism)
Justice Iredell argues that the Court is limited by the written Constitution (forerunner of judicial review)
Activism – belief that everything needed is not included à Chase would make the point that legislatures sometimes act unjustly
Restraint – based upon specific legal provisions, not subjective opinions
·         The fact that the const is written is an argument for restraint
·         The system would not leave the judiciary unchecked
Federalist 78
The Constitution is about the will of the people, which is supreme in the hierarchy of sovereignty
Further Congress is elected by the people who governs over them
So the Court has the power to nullify laws passed by Congress, but as Hamilton says the Court is interpreting the will of the people
The key distinction is when is the Court engaged in an act of judgment vs. engaged in an act of enforcing its own will
In interpreting the Const
Consensus values
Original understanding
Freedom of Speech as a Matter of Policy
The court has usually followed policy in this area
Why protect Free Speech?
Market place of ideas à in particular the belief that the government does not have all the right answers and that there is a search for truth requiring competition of ideas
Mill’s idea that full understanding of one’s own position requires full understanding of the opposing view point
Free speech important for self-government à we need to have an informed electorate
Respect for autonomy à people need freedom of speech in order to express themselves
Smaller supplementary arguments à checking the government, the tolerant society, the safety valve argument, and free speech as a rule for civil harmony
Why limit free speech?
We regulate the market place of the economy and we need to regulate speech
As far as the importance for self government argument, it only works for political speech, but one problem is what constitutes political speech; also we regulate conduct and what makes speech special?
Resp to the autonomy argument is same, what makes speech special
What possible range of meanings could the first amend clause have had
Madisonian reading saying this is about political speech, so speech about the government is fine
Blackstonian reading saying that freedom of speech was a prohibition on prior restraint, so no licensure would be required to publish a book but one can be punished after publication if book is seditious
Federalism reading says that the first amendment is an absolute prohibition on federal regulation of free speech (reflects the fear of tyrannical central government)
Hamilton took the Federalism argument in Federalist 78 saying that we do not need a provision for freedom of the press because Congress does not have the delegated and enumerated to regulate the press
The Sedition Act Controversy in 1798
First real debate about the first amend
Made it illegal to criticize any members of the federal government
This satisfies only the Blackstonian view
This spawned the Virginia and Kentucky Resolutions which attempted nullification of the sedition act
The election of 1800 ended the legal effect of the Sedition Act when Jefferson won the election
The idea of the sedition act was about the advocacy of unlawful conduct and promotion of dangerous acts
We would be interested in the likelihood or probability in the action that was spoken of actually occurring – the clarity
Degree of Danger
We may also be concerned about the language used – whether the language was express
Does the intent matter?
Next major controversy with Freedom of Speech came in 1917 and 1918 with two new sedition acts
Shaffer v. United States, 1919
Defendant is convicted under the Espionage Act of 1917 for language published in a book – patriotism is satanic
The test is whether the natural and probable tendency and effect of the actions are calculated to produce the result condemned by the statute
This is viewed as the bad tendency test
This test comes from a Blackstonian view
Masses Publishing Co. v. Patten
The Magazine “The Masses” publishes articles and cartoons critical of the war and are charged under the Espionage Act of 1917
Judge Learned Hand articulates the Express Incitement Test
For this test we look at whether there is express language of incitement of unlawful activity
Under this test there is much more freedom to criticize the government than what is allowed under the Bad Tendency Test
There is a concern under this test that there is no punishment for those who are inciting but no language of express incitement is used
Schenck v. United States, 1919
Circular was published which claimed that conscription was the equivalent of despotism and telling people to assert their rights
The language of “clear and present danger” is first used
Holmes says this is a circumstance based test and since they were currently in a war it is unlawful where it may not have been in a peacetime
Unclear whether this is a new test or whether it is a rewording of the Bad Tendency Test
Frohwerk v. United States (1919) and Debs v. United States (1919)
In these two cases the Supreme Court does not use the “clear and present danger” language but instead use the language of natural tendency and reasonably probable effect
Abrams v. United States (1919)
Group of Russian immigrants passing out leaflets protesting the presence of US troops in Russia à majority uses the “bad tendency test”
Justice Holmes dissenting argued that the conviction was invalid because the defendants did not have the intent required by the act “to cripple or hinder the United States in the prosecution of the war”
So Holmes is saying we need to look to the real intent not the presumed intent and the intent here is to criticize the revolutionaries in Russia and oppose the US intervention there
He also uses the C&PD test saying that their threats are not dangerous in a clear or present manner
The justification that Holmes gives for the stricter version of C&PD is the marketplace of ideas (first time this idea is mentioned in a SC case)
Holmes also refers to the repudiation of the sedition act of 1798 and the repaying of the fines
So this is a Madisonian reading
Gitlow v. New York, 1925
This case occurs during the Red Scare so it is different than the WWI à not about interfering with the war but about overthrowing the government by any means
This is the first state case so it used the 14th amend due process clause to apply free speech to the states à this case is about violations of state laws passed making it a crime to speak of violent overthrow of the government
A new point that is mentioned in the majority’s holding is that the C&PD judgment is for the legislature, so if it has passed law regulating speech, it can be presumed that there was a C&PD (this is the Schenk version of the C&PD test) – the result is a reasonableness test overlay
The reasonableness overlay is different from the Espionage Act because it was addressed directly at speech and not some broader conduct
In his dissent Holmes reiterates the “clear and present danger” test citing to Schenk where the majority seemed to use a bad tendency test
He also says that every idea is an incitement à the only difference between an opinion and incitement is the speaker’s enthusiasm for the result
Whitney v. California, 1927
Whitney attended the a meeting of the far left Communist Party and though she advocated a political movement the party makes its official platform to overthrow the government by violent means, so she was prosecuted and convicted of the California statute making it illegal to become a member of an organization advocating the violent overthrow of the government à freedom of association
Analysis is like Gitlow saying that the state legislature’s judgment is reasonable
Brandeis articulates a clear and present danger test in his concurrence (which is only a concurrence for procedural reasons – in substance it is a dissent) attempting to put that test in a broader focus
According to Brandeis in order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that past conduct furnished reason to believe that such advocacy was then contemplated
What justifies repression in Brandeis’s opinion is lack of time for good speech to remedy the bad speech à so only in an emergency situation is there no time for good speech to challenge the bad speech
Justifications of Brandeis à political discussion is a duty of a citizen in a democracy
Dennis v. United States, 1951
Petitioners were convicted of violation of conspiracy provisions of the Smith Act à willfully and knowingly conspiring to organize as the Communist Party of the United States a group to advocate the overthrow and destruction of the government
What is used is a balancing test between the gravity of the harm, the probability of the harm, and the value of free speech (this is developed by Learned Hand) à they refer to this test as the “clear and present danger” test, but this is not the Holmes-Brandeis C&PD test
The Court rules that considering the current circumstances, the US can criminalize the communist party
Frankfurter makes the point that the analysis from Gitlow is good and the Court should give some form of deference to the legislature test à about free speech he says that there is high value and low value speech and speech regarding the overthrow of the government is low value speech and thus entitled to less protection, but he says care must be taken not to discourage some speech through the “chilling effect”
Jackson adds that he would leave the C&PD test unmodified rather than change it as the majority did
Black and Douglas say that free speech is in the Constitution because it is important and the application of any type of test is unconstitutional without the immediate threat of violence à Holmes and Brandeis tradition want to articulate a new test to avoid confusion of the majority’s test with their C&PD test
Brandenburg, 1969
Creates a new test referred to as the “Brandenburg Test”
A state cannot proscribe advocacy of the use of force or of law violation except where such language is directed towards producing or inciting imminent lawless action and likely to produce or incite such action
Hard to get a conviction under this test unless there is express language of incitement used
The Court clearly says that Whitney has been discredited
Hess, 1973
Conviction for disorderly conduct à court says that the language used may very well have been viewed as advocacy of unlawful action, but there is no time indication in the speech so the imminent requirement is not satisfied (any indefinite period of time is not going to satisfy imminence)
NAACP v. Claiborne Hardware, 1982
NAACP calling for boycott using threatening language à the atmosphere was impassioned and the language was conditional, so a conditional statement is unlikely to be imminent
Hostile Audience Response
Cantwell v. Connecticut, 1940
Cantwell, a Jehovah’s Witness, played a phonograph to people on the street that ridiculed other religions especially Roman Catholicism
Convicted of breach of the peace (common law offense)
The court articulates a C&PD test à threat to public safety, peace or order
The court here rules that there was no express language of provocation that was directed to the person listening
The court also looks to see if there was any intent to provoke and found there was intent to propagandize people but not provoke them
The difference in this line of cases and the Brandenburg line is that in this line there is fear of hostile audience response to the speech and in the other there is provocation to break the law
Terminello, 1949
Terminello called his opponents names in front of a large crowd and he was convicted of disorderly conduct
Jury was instructed to convict if they found that his speech included expression that “stirs the public to anger, invites dispute, brings about condition of un

·         Thus this ordinance the court holds is too narrow because it prohibits not all fighting words, but only those that affect race, religion, and gender
·         The court says that content (subject matter/viewpoint) restrictions get strict scrutiny which is almost always fatal to the statute à the court says that the means employed were not the post restrictive that were possible
·         Therefore distinctions can be made between different fighting words but the distinction must be a virulence (intensity) distinction à so there could be a distinction between fighting words that are the worst and those that are not so bad, but there cannot be a distinction between different types of fighting words
·         The concurrences say that the statute is unconstitutional not because it is too narrow but rather because it is overbroad because it may include some speech that is not fighting words
Wisconsin v. Mitchell, 1993
This case is about hate crimes not hate speech à In this case a young black man assaulted a white man after seeing Mississippi Burning and because the victim was singled out simply because of his race, the sentence was tripled
The court says that this has nothing to do with speech and it is merely a hate crime
The key distinction is conduct vs. speech; with conduct there is a hateful mental state that aggravates the crime and causes a more serious offense
So this case suggests that St. Paul could cure their ordinance by prohibiting all fighting words and giving sentencing enhancement for victim selection based on race or religion
But there would still be a concern of whether the content of the speech would be the evidence used for sentence enhancement
Virginia v. Black, 2003
Black and others were convicted of a Virginia statute that prohibited the burning of a cross with the intent to intimidate on the property of another, a highway, or other public place.
This is basically the RAV issue but with “true threat” as opposed to fighting words
The Court says that in this instance there is an intensity/virulence distinction and not a content based restriction because it does not prohibit intimidation of any specific group, so not unconstitutional for that reason
Despite this, the court rules that the prima facie evidence provision in the statute makes it unconstitutional because this provision makes it likely that everyone who burns a cross will be convicted even though in some circumstances burning a cross may be merely for purposes of speech
Thomas dissents arguing that there is no expressive component to cross burning once it has already been limited in the statute to only cover threats 
Overbreadth, Vagueness, and Prior Restraint
These form a unit because they all concern the manner of regulation and they all deal with facial invalidity (as opposed to as-applied)
The focus here is on the manner of regulation and not the content of the speech
New idea presented here is facial challenges vs. as applied challenges
For as applied you are not invalidating the entire statute rather you are invalidating certain applications of the statute
Facial challenges are challenges to the entire statute and result in the invalidity of the entire statute
Usually conduct challenges are as applied
Other forms of speech, particularly if the manner of the application will result in a facial challenge
Gooding v. Wilson, 1972
Appellee was arrested after yelling obscenities at police officers trying to arrest him (this falls under fighting words prohibition but the actual language is a mixture between fighting words and true threats). This person was prosecuted under a Georgia statute and the Court overturned the conviction even though the speech used was not constitutionally protected because the statute was invalid.
The Court concludes that the language and interpretation of the statute by the Georgia courts makes its application unconstitutional because it sweeps well beyond fighting words
The court creates the “Overbreadth Doctrine” providing for a facial challenge which could result in total invalidity of the statute à the argument for this doctrine is that the very fact that there is a statute that sweeps into protected speech, means there could be a chilling effect on protected speech
Another concern is selective, arbitrary, and discriminatory enforcement because the statute is so broad and the prosecutors have discretion
Under typical application of the law this individual would not have had standing because one person cannot argue someone else’s case
The focus that the Court gives is on the application of the statute in prior cases so the interpretation and application is authoritative, not the actual language of the statute
Requirement of substantial overbreadth
In order for an overbreadth challenge to be brought there has to be substantial overbreadth à see Broadrick v. Oklahoma, 1973
The standard for determining whether the overbreadth is substantial is looking at the sweep of the protected speech in light of the unprotected speech that is prohibited (so there is a ratio type analysis)