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Constitutional Law II
Villanova University School of Law
Moreland, Michael P.

Villanova University School of Law
Constitutional Law II
Professor Moreland
Fall 2014
·         The Bill of Rights:
o   In 1787, state delegates drafted the Constitution:
§  Set up a system of checks and balances that included a strong executive branch, a representative legislature and a federal judiciary.
§  Did not include a Bill of Rights:
·         Feds thought Bill of Rights was already included in the Constitution.
·         Anti-feds wanted an enumerated Bill of Rights similar to the English Bill of Rights to protect against a strong, centralized national government:
o   “[A] bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.” – Thomas Jefferson
o   Madison headed the charge under Jefferson’s guidance. 
o   Congress sent 12 amendments to the states to ratify in 1791:
§  1791 – Original amendments 3-12 ratified:
·         These first 10 amendments are collectively called the Bill of Rights.
·         Proposed original First Amendment concerned the number of constituents for each representative and was never ratified.
·         Proposed Second Amendment concerned timing of Congressional compensation and was ratified in 1992; it is now the 27th Amendment.
§  Seventeen additional amendments have been ratified since 1791, for a total of 27 Amendments.
o   Incorporation Doctrine:
§  Bill of Rights originally applied only to actions of the federal government.  See Barron v. Baltimore (1833).
§  Fourteenth Amendment was the first amendment to contain prohibitions on state actions:
·         Doctrine of incorporation emerged over time through the Fourteenth Amendment.
·         When the Court uses the Fourteenth Amendment to apply prohibitions to state actions, it engages in “selective incorporation.”
·         Court usually uses the Due Process Clause to allow for incorporation.
I.                The First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
·         Historical Background to the First Amendment and Free Speech Doctrine:
o   Eventually incorporated through the Fourteenth Amendment as fundamental rights:
§  Many of the provisions of the First Amendment were incorporated in the 1930s and 1940s.
o   Significance of “the”:
§  Some speech is not protected.
§  Must refer to some preexisting political right of the people.
o   Justifications for freedom of speech:
§  Effective self-government (“political speech”)
§  Individual self-fulfillment or autonomy
§  The search for truth (“marketplace of ideas”):
·         Predominant justification.
o   Free speech procedural issues:
§  Vagueness – speaker does not what is or is not prohibited, resulting in “chilling effect on speech.”
§  Overbreadth – more speech is regulated than is necessary to achieve the government’s purpose (even if person’s own speech is permissibly regulated).
§  “Unfettered discretion” – too much discretion left to government as to what is or is not protected speech.
o   Challenges:
§  Facial – law is unconstitutional on its face
§  As-applied – law is unconstitutional as applied to the particular speaker (often brought with overbreadth challenge)
·         Freedom of the Press
o   New York Times Co. v. Sullivan (1964):
§  About political publication, so falls under first justification of free speech.
§  Applied to states because tort liability is sufficient action to give rise to state action.
§  Established actual malice test:
·         The plaintiff in a defamation or libel case must prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity.
§  Test protects free speech and gives it room to breathe.
§  Cases involving public figures typically fail.
§  Public figures – Gertz:
o   (1) An individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.
o   (2) An individual who voluntarily injects himself or is drawn into a particular public controversy becomes a public figure for a limited range of issues.
o   New York Times Co. v. United States (The Pentagon Papers Case) (1971):
§  Newspapers were allowed to publish the Pentagon Papers without risk of government censorship; the First Amendment protected the right to publish.
§  Court opposed to the use of prior restraints:
·         Censorship of expression before the expression actually takes place.
·         Distinguish between prior restraint (often impermissible) and later punishment (usually permissible).
§  Some prior restraints may be allowed:
·         Imminent threats to national security
·         Injunctions necessary to protect a defendant’s right to a fair trial
·         Censorship of obscenity
§  Types of prior restraints:
·         Compulsory licensing scheme – individual must obtain government approval before speaking.
·         Judicial injunction – type at issue in case at bar.
o   Branzburg v. Hayes (1972):
§  In federal courts, a reporter may not avoid testifying in a criminal grand jury.
§  Test:
·         The government must “convincingly show a substantial relation between the information sought and a subject of overriding and compelling state intere

o   Content-Based and Content-Neutral Restrictions:
§  United States v. O’Brien (1968):
·         O’Brien burned his draft card, which violated a federal statute.
·         Court found:
o   Law addressed conduct, not speech, that was not necessarily expressive (a person could burn the draft card in private or in public).
o   Was the rule unduly restrictive of the element of O’Brien’s conduct that was expressive?
§  When regulation prohibits conduct that combines “speech” and “nonspeech” elements, a sufficiently important governmental interest in regulating the nonspeech interest can justify incidental limitations on First Amendment freedoms.
§  Government won.
·         The O’Brien Test for Symbolic Speech:
o   The law in question must:
§  (1) Be within the constitutional power of the government to enact;
§  (2) Further an important or substantial government interest;
§  (3) That interest must be unrelated to the suppression of speech (“content neutral”);
§  (4) Prohibit no more speech than is essential to further that interest.
§  Texas v. Johnson (1989):
·         Demonstrators were protesting the policies of the Reagan Administration and of certain companies based in Dallas.
·         Johnson burned a flag and was charged under state law.
·         Court’s decision:
o   First Amendment protects more than speech.
o   Test for whether conduct has sufficient communicative elements:
§  Ask whether “an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.”
o   Content-based restriction and could not satisfy strict scrutiny, similar to Brown v. EMA.
§  Reasonable Time, Place, and Manner Regulations:
·         Renton v. Playtime Theaters (1968):
o   Challenge to a zoning ordinance to prohibit adult theaters in a residential and church zone.
o   Theater argued the restriction was content-based and violated its free speech:
§  Court declared restriction was not aimed at the content of the theaters, but the secondary effects (e.g. would attract “riff-raff”)
§  Therefore, not a content-based restriction.
o   Think: Why could this argument not be applied to Brown v. EMA?