1. General constitutional law
1.1. Judicial review
1.1.1. Definition: Ability for a court to declare that a law is unconstitutional
1.1.1.1. Benefits: (1) Essential to democracy?, (2) Standardization of law between the states
1.1.2. Counter-majoritarian difficulty: An unelected body (i.e., Supreme Court) substitutes its understanding of the Constitution over that of an elected body (i.e., legislature)
1.1.3. Checks on their opinions: (1) Amend the Constitution (Very difficult), (2) Impeachment, (3) Executive can decline to enforce it, (4) Higher court review (Who checks the Supreme Court?)
1.2. Federalism vs. Commerce Clause and substantive due process
1.2.1. Mainly a debate about how much deference should be given to state legislatures
1.2.1.1. Rejection of Lochner and approval New Deal legislation showed that judiciary was more deferential to the legislature in terms of defining what commerce was.
1.2.1.2. Holmes and Brandeis dissented in some of these cases; saying that the separation of powers means that it’s not the Court’s job to draw a line. Gave deference to legislature’s judgment in this Constitutional authorization of powers.
1.2.1.3. Post Champion v. Ames (Lottery cases): Frankfurter wrote an opinion saying that the legislature had the fact-finding ability, so the judiciary should defer to them.
1.2.1.4. Allocation of powers: Congress has commerce power while states have the power to regulate health and welfare.
1.2.2. Relationship to First Amendment class:
1.2.2.1. Because Congress regulates speech in the name of public safety; the role of judiciary comes back into play.
1.2.2.1.1. Holmes believes that deference to the legislature is NOT a good idea because civil rights and liberties are areas where judges have special confidence and authority. (Perry does not say that this view is right however.)
1.2.2.1.2. What would Frankfurter say? Defer to the legislature, judiciary’s job is not to re-run that analysis that led to that statute. Legislature has more legitimacy than court and more ability. When does the role of the Court come in? Defer to legislature, but as-applied is there anything unconstitutional? Analyze if the statute is overly broad.
1.2.2.1.3. Blasi: Historically, judiciary was not protective of First Amendment.
1.2.2.1.4. Difference between how judiciary interprets the Constitution and how the people and elected reps pass laws consonant with their understanding of the Constitution
2. Freedom of speech principles
2.1. The framers themselves were unsure what a constitutional guarantee of freedom of speech/press would mean. Hamilton: “Who can give it any definition which would not leave the utmost latitude for evasion?”
2.2. Incidental burdens on free speech: Only substantial incidental burdens raise a bona fide constitutional problem. However, presumption against incidental restriction being constitutional is waived when it either has a highly disproportional impact on particular points of view or significantly limits free expression. (e.g., NAACP v. Alabama which required outside corporations to disclose all names/addresses of Alabama residents which had in the past exposed those residents attacks.)
2.3. Philosophy of free expression (p. 8-16)
2.3.1. Marketplace of ideas à Holmes: “Free trade in ideas”
2.3.1.1. What about the ideas that, if implemented, would freeze out other ideas? Are there some ideas that are so bad, they should not be implemented?
2.3.1.2. Hand believed that express advocacy of law violation was NOT protected speech (p. 41)
2.3.1.3. Holmes believed that dissenting speech, including that which advocated breaking the law, e.g., violent revolution, had the potential to force political transformation. Therefore, even that speech should be protected. (p. 41)
2.3.1.4. Why self-censorship might be better than the marketplace of ideas: (1) Will chill both valuable and low value speech, (2) May reduce the quality of the information as to the truth//falsity of accusations (because no jury verdicts), (3) May drive away public officials away from public service
2.3.2. Self-governance à Brandeis: “public discussion is a political duty,” “deliberative process,” and “greatest menace to liberty is an inert people”
2.3.2.1. Persuasion principle (Brandeis): If the danger is not imminent, “the remedy to be applied is more speech, not enforced silence.” However, it may not always be possible to persuade some people.
2.3.2.2. Blasi says that the First Amendment needs to be targeted for the worst of times because that is when it is needed the most.
2.3.3. Self-fulfillment and autonomy governance à Brandeis: “Development of faculties”
2.3.4. Other rationales:
2.3.4.1. Checking value on government
2.3.4.2. Safety valve
2.3.4.3. The tolerant society
2.3.4.4. Development of character
2.4. The central meaning of the First Amendment is that seditious libel cannot be made the subject of government sanction
2.5. Key questions for content-based restrictions:
2.5.1. How serious must the harm be before speech may be suppressed?
2.5.2. How likely must the harm be?
2.5.3. How imminent must it be?
2.5.4. Should it matter whether the speaker intended to cause the harm?
2.5.5. Can these and other considerations be integrated into a single, coherent standard?
2.6. Potential rationales for the clear and present danger test:
2.6.1. Balances competing speech and societal interests
2.6.2. Marks off a broad area of protected expression
2.6.3. Design to reduce risk that government will in fact suppress expression because it disapproves of the substantive message
2.6.4. The State should not punish a speaker as a culpable actor unless the speaker exerted a power over the listener so profound that the listener herself could not be held morally accountable for her actions.
2.7. Are statutes banning political boycotts Constitutional?
2.7.1. Yes: Government has a strong interest in protecting innocent parties from unprovoked harm and protecting the free speech and association of individual from economic coercion.
2.7.2. No: Boycotts are just economic votes. And if political votes are constitutional when they change a politician’s mind against what he might do otherwise, why aren’t economic votes?
2.8. Two-levels of speech:
2.8.1. High-value (protected) and low-value (unprotected). Depends on the Court’s assessment of the relative “value.”
2.8.2. Categories of low value speech: Express incitement, fighting words, threats, technical military information, false statements of fact, nonnewsworthy invasions of privacy, commercial speech, obscenity, offensive language, offensive sexually oriented expression, group defamation, hate speech, and pornography.
2.8.3. Why fighting words are low-value: 1) Intend to inflict harm rather than communicate ideas, 2) Likely to provoke retaliation and cause a breach of the peace, 3) Play no essential part in the exposition of ideas
2.8.4. Some people have argued that two levels of speech are needed else the burden of justification for high-value speech to accommodate low-value sp
3.1.2. Opinion (Learned Hand): The standard for violating the act is if one urges others that it is their duty/interest to resist the law. In this case, the D did not do that, but rather admired those who had violated the law. Focus on the words the speaker is using and not if harm is likely to occur.
4.3.1.2.1. Hand’s approach is (1) Underprotective of free speech (e.g., Kill the ump!), (2) Overprotective of the clever inciter, and/or (3) Overprotective of the dangerous speaker. (e.g., “Corn-dealers are starvers of the poor.”).
4.3.2. Schenk v. United States (1919) (p. 24): [RESTRICT]
4.3.2.1. Background: Ds were convicted of conspiracy to violate Espionage Act of 1917 by circulating a document that was “calculated” to obstruct recruiting.
4.3.2.2. Majority (Holmes): The purpose of the document was to obstruct military recruiting. Need to determine if the words that are used (proximity and degree) in the given circumstances (context) constitute a “clear and present danger.” If the act, tendency, and intent are the same, do not need that induced action to occur for that act to be a crime. In ordinary times, the act might be okay, but the circumstances surrounding the act are important.
4.3.3. Frohwerk v. United States (1919) (p. 29): [RESTRICT]
4.3.3.1. Background: Ds were convicted of conspiracy to violate the Espionage Act of 1917 by preparing and publishing a series of articles that were intended to cause disloyalty, mutiny, and refusal of duty in the military and naval forces of the United States.
4.3.3.2. Majority (Holmes): First Amendment was not intended to give immunity for every possible use of language (e.g., advocate murder.). What might be said or written in other circumstances (including wartime) may not be a crime. But in this case circulation of this paper might kindle a flame of disloyalty.
4.3.4. Debs v. United States (1919) (p. 29): [RESTRICT]
4.3.4.1. Background: Debs was convicted under the Espionage Act of 1917 to attempting to obstruct the recruiting and enlistment service of the United States based on his speech to the public.
4.3.4.2. Majority (Holmes): If (1) intent of the general utterance was to encourage or (2) there was direct encouragement of others to violate the law (even if general them was okay), and that was the probable effect, that speech should not be protected. Debs’s case fell into the former category (Said he could not “say all he thought” although “they might infer her meant more” and that his listeners were “fit for something better than slavery and cannon fodder.”)
4.3.4.3. Note: No reference to clear and present danger.
4.3.5. Shaffer v. United States (9th Cir. 1919) (p. 20): [RESTRICT]
4.3.5.1. Background: D was convicted of violating the Espionage Act of 1917 because he mailed a book that contains several “treasonable, disloyal, and seditious utterances.”
