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Constitutional Law II
Villanova University School of Law
Samahon, Tuan N.

Constitutional Law II Samahon Fall 2016
Gov’t want to start at the bottom (low value speech), then go to intermediate (Content neutral, expressive conduct, T/P/M and secondary effects – O’Brien test), and want to avoid strict scrutiny (viewpoint discrimination)
I.             Introduction
               A.           Federalists – believed the Bill of Rights were not needed; would then have to enumerate                        every right (absence of rights would seem to be not protected)
               B.           Anti-Federalists – would not ratify the Constitution without the Bill of Rights (worried                                            about federal governments power)
               C.           13th Amendment is the only regulation of the US Constitution not against the                                                             Government – it is against slavery
               D.           Bill of Rights originally only ran against the National government until late 1940s – the                                      3rd, 5th (grand jury), 7th (civil jury trial), and some of the 8th still only run against the                                      National government
               E.            Madison first proposed these rights in Article 1, Section 9 between Clause 3 and 4
               F.            Applying Bill of Rights against states:
                              1.            Total Incorporation (Justice Black) – All rights are incorporated through the Due                                                           Process Clause of the 14th Amendment
                              2.            Fundamental Fairness (Justice Frankfurter) – Denying these rights would be                                                          unfair (Articulate which rights are essential to fairness and they get                                                                   incorporated)
                              3.            Selective Incorporation (Justice Brennan) – Case-by-case (Justices decide                                                whether the right should be incorporated)
               G.           William Blackstone – Cannot forbid the publishing (liberty of the press is essential to the                nature of a free state); freedom of speech was extremely limited, extending only to                                          prohibit governmental restraints on speech prior to publication; Freedom of the press                                          consists in laying no previous restraints (prior restraints) upon publications; Can punish                                           offensive writings after publishing; Trial is the only defense for publishers
               H.           Cato – “Without freedom of thought, there can be no such thing as wisdom; and no                                such thing as public liberty, without freedom of speech: Which is the right of every                                   man, as far as by it he does not hurt and control the right of another; and this is the only                       check which it ought to suffer, the only bounds which it ought to know. This sacred                                    privilege is so essential to free government, that the security of property; and the                                   freedom of speech, always go together; and in those wretched countries where a man                                              cannot call his tongue his own, he can scarce call anything else his own. Whoever would                                            overthrow the liberty of the nation, must begin by subduing the freedom of speech; a                                              thing terrible to public traitors.”
               I.             Democratic-Republican club controversy – Washington: “Meet occasionally to                                                             remonstrate against acts of the Congress”; Debate = If you allow censor of this type of                                        meeting where will it stop. This is like the secretive meetings that Congress has;                                                  Congress decides not to censor the club
               A.           New York Times Co. v. Sullivan – NY Times published ad containing factual inaccuracies                                     (claimed truckload of police armed with tear gas ringed Alabama college campus; MLK                                 Jr. arrested seven times (when in fact had been arrested four times)) – Sullivan was a                                         public official
                              1.            RULE: A public figure cannot recover damages for a (i) defamatory falsehood (ii)                                                   relating to his official conduct unless (iii) he proves (by clear and convincing                                                    evidence) that the statement was made with “actual malice”
               i.             “Actual malice”: Either (a) knowledge the statement was false or (b)                                   reckless disregard of whether the statement was false or not (reckless                               disregard of the truth, i.e., serious doubts about the accuracy of the                                          statement)
               B.           New York Times v. United States – (Pentagon Papers case):  US cannot enjoin NYT from                                           publishing “Pentagon papers” detailing US decisionmaking in Vietnam war (per curiam);                                         didn’t meet the “heavy burden” of justifying a prior restraint
                              1.            Black:  1st amendment absolutist; no prior restraints at all even if allowed by                                                       statute; Brennan:  freedom from prior restraint should be almost, but not never,                                            absolute; exception for when nation is at war but gov’t did not meet the                                                          exception here (would apply for disclosing troop locations, etc.)
                              2.            Burger dissent:  1st amendment is not absolute and President has inherent                                                           power (deference to Executive) to classify documents and shield them from                                                  public scrutiny; Blackmun dissent:  there was not time (decided hastily) and if                                                             anything bad happens, it’s NYT fault;  Harlan dissent:  judiciary (not president)                                                      should decide if these should be disclosed or not, but has not had time to do so
               C.           Branzburg v. Hayes
                              1.            RULE: No constitutional right of press not to be compelled to testify and/or                                               reveal the identity of confidential sources and contents of conversations with                                                       those sources – Exception: Rule applies only to “good faith” grand jury                                                                        proceedings: official harassment of the press undertaken not for purpose of law                                                       enforcement but to disrupt a reporter’s relationship with news sources would                                                  have no justification.
               i.             Stewart (dissent) Argument in favor of privilege: Confidentiality                                                facilitates news-gathering; needed to get some sources to talk
               ii.            White (Majority) Argument against privilege: The government’s interest                                  in prosecution may from time to time outweigh the press’s interest in                               newsgathering
III.          The Rise and Fall of Categorical Exceptions
               A.           Theories of free speech
                              1.            Political “self-governance”;          Search for truth;               Autonomy and self-                                                           actualization
               B.           Methodology
                              1.            Courts use their most probing, demanding approach (strict scrutiny) for                                                                      regulations that are CONTENT-BASED regulation. Example: regulations based on                                 subject or viewpoint
                                             i.             Strict Scrutiny = presume unconstitutional – burden of the government                                                                   (need a compelling state interest and the regulation must be narrowly                                                                   tailored to accomplish that interest)
                              2.            Exceptions to this rule: limited categories of speech have been carved out for                                               less favorable treatment including Fighting words, True Threats, Incitement,                                                    Obscenity and Child Pornography, False statements (Defamation)
                                             ii.            Different standard than strict scrutiny – does not enjoy this protection
               C.           Chaplinsky v. New Hampshire (Fighting Words) – arrested after calling city marshal                                             a “racketeer” and “fascist.”  Court upholds conviction beca

                labeled speech whenever the person engaging in the conduct intends to express an                                  idea.”
                              1.            TEST:  a regulation affecting conduct w/speech elements is justified if (1) it is                                               within the constitutional power of the gov’t; (2) if furthers an important or                                                   substantial gov’t interest; (3) if interest is unrelated to suppression of free                                                expression; (4) if incidental restriction on freedom of expression is no greater                                                     than is essential to further the interest
                                             i.             3&4 are the keys; usually assumed gov’t has sub. Interest
                                             ii.            if under 3 it IS related to suppression = content-based and subject to                                                                        strict scrutiny; so basically this is a content-based or content-neutral                                                                         analysis
                                             iii.           if there is an independent justification for the law, Court won’t look to                                                              see what the actual motive is:  here the justification is maintaining an                                                              army with maximum efficiency, even if some legislators had motive to                                                                          stop anti-war protests:  this makes it difficult to apply step 3, but on                                                                           the other hand with so many legislatures there are many different                                                                           motives and legislatures can always substitute one motive for another                                                                and get a bill passed
               D.           Texas v. Johnson – (Expressive Conduct) – flag-burning IS expressive conduct and thus                                            does get 1st Amendment protection; statutes that forbid flag-burning in order to prevent                        breaches of the peace and preserve the flag as a symbol are NOT justified.  Under                                            O’Brien, preserving the flag as a symbol means this IS related to suppression of                                                expression, or in other words, content-based regulation subject to strict scrutiny.
                              1.            Not “fighting words” = not directed at a specific person (no invitation to                                                                       fisticuffs)
                              2.            Does not satisfy O’Brien content-neutral test
E.            City of Renton v. Playtime Theatres – (Time/Place/Manner Regulation) (Secondary Effects) – zoning ordinance prohibiting adult theaters within 1000 feet of residential areas, etc. is valid as a content-neutral time place manner regulation that is based on secondary effects; the city does NOT need to show data from its own city to show secondary effects but can rely on studies of other cities
               1.            Content-Neutral because it is not targeting the content, rather the justification        by secondary effects (increased crime)
                              i.             Appropriate inquiry in these cases is whether it (1) serves a                                                             substantial gov’t interest and (2) allows for reasonable alternatives
               2.            Dissent:  NOT content-neutral and discriminates on its face (based exclusively          on the content of the films)