Constitutional Law II Samahon Fall 2016
1st AMENDMENT
FREEDOM OF SPEECH
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
II. FREEDOM OF THE PRESS
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)
