Nancys_CLII_Outline - CONSTITUTIONAL LAW II Prof Stern Fall...

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CONSTITUTIONAL LAW II Prof. Stern, Fall 2008 Nancy Rumberger THE PROBLEM OF “DANGEROUS” SPEECH The First Amendment and Equal Protection Gov can’t put restrictions on speech just b/c they thing it’s a ‘wrong’ opinion; illegitimately target particular opinions or viewpoints Gov can restrict speech to further non-speech interest; not aimed at suppressing a particular message; neutral on its face 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. o Balancing test between first amendment’s protection of speech against gov’s interest in protecting society Justifications for free speech: o 1. Instrumental Justification for speech: Holmes; scientific notion; we let all ideas compete in the marketplace of ideas b/c that is the most efficient mechanism for getting at the truth o 2. Democratic Rational for speech: framers wanted to protect public discussion of public issues, especially commentary on government and the way government officials perform (that should get the MOST protection) o 3. Notion of self-fulfillment/autonomy: autonomy of individual in free society requires that we give people broad latitude for expressing whatever they’re feeling/thinking Themes in First Amendment Jurisprudence o A “preferred freedom”: traditional understanding that protection of freedom of speech is special and gets heightened protection Carolene Products FN4: 3 categories of legislation/gov action that are subject to heightened scrutiny if it appears that gov is infringing on certain types of freedoms. Gov action that restricts freedom of expression falls into all three categories: 1. Legislation that impinges on one of the rights/liberties protected in the Bill of Rights 2. Legislation that restricts the political processes which can ordinarily be expected to bring about repeal of undesirable legislation o Prohibiting people from expressing their opinions will undermine our democratic process (informed self-government and political accountability) 3. Statutes directed at particular religious or national or racial minorities and statutes animated by prejudice against discrete and insular minorities (usually associated w/ EP) o Tendency to trample on unpopular minority viewpoints Courts will apply STRICT SCRUTINY to statutes that do any of the above Holmes, the “Clear and Present Danger Test” Schenck and Debs : Both cases dealt with the Anti-espionage Act of 1917. o Schenck – published a circular urging people to petition to have the draft repealed o Debs – Debs was a leader of the socialist party and delivered a speech opposing WWI o Both were convicted under the act o SC upholds convictions simply on the basis of words; regarded under Espionage law as attempts to interfere w/ the war effort Holmes
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