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Unformatted text preview: Free Speech Free Speech Part 1: A Law­Centric Approach Part 2: A Speech­Centric Approach Why is Speech First Why is Speech First and Fundamental? The Early History The Early History Licensing and Sedition in England The First Amendment, 1789 The Alien and Sedition Act of 1798 Repeal under Jefferson The gradually building momentum . . . Original intent Structure History and tradition Precedent Modern Standards: Carolene (474) and Palko (395) How to decide? Who should decide? Rationales for Fundamental Rationales for Fundamental Status Why Let Speech Be Uncensored? Why Let Speech Be Uncensored? Allow the citizenry to share in the discussions of governance, and learn to select among competing theories, policies, and strategies Truth in an absolute sense may be advanced by allowing criticism of conventional wisdom (conventional wisdom being potentially wrong) To foster autonomy: A value in uniqueness Promoting tolerance by encouraging people to hear voices quite different from their own Key Free Speech Issues Key Free Speech Issues 1. What kinds of government actions infringe speech? 2. What kinds of speech are covered? 3. Satellite issues: Time, place and manner regulation, separate rights of press and association, data, privacy and intellectual property Content­Based Regulations Versus Content­Based Regulations Versus Content­Neutral Regulations Turner Broadcasting, 1994: If the must­carry rule imposes differential burdens on speech based on content of the speech, “the most exacting scrutiny” would be due; but content­ neutral regulations “are subject to an intermediate level of scrutiny” Here, held facially content­neutral and remanded Later upheld 5­4 as for important purposes, by means substantially furthering those interests More on Content Neutrality More on Content Neutrality Boos, 1988: foreign embassy no­picket rule struck despite not being viewpoint based; still content­sensitive and not content­ neutral Republican Party of Minnesota, 2002: striking, as content­ based, restraints on announcement in the election process of views by judicial candidates “on disputed legal or political issues” Simon & Schuster, 1991: Son of Sam Law unconstitutional as content­based, even if not intended to suppress City of Renton, 1986: red­light zoning upheld due to predominant concerns with other “secondary” issues NEA v. Finley, 1998: if govt. is viewpoint neutral, it can distinguish on content (“decency and respect”) in deciding subsidies; compare with Boos Co­Plaintiffs, Performance Co­Plaintiffs, Performance Artists Nancy Finley and Jack Fleck Vagueness and Vagueness and Overbreadth Vagueness Defined Vagueness Defined Laws affecting speech that are defined in ways such that a reasonable person cannot tell what speech is or is not permitted Vagueness Examples Vagueness Examples Coates, 1971 – Cincinnati ordinance against “annoying” groups struck Baggett, 1964 – Rule stating that “subversive” people need not apply is struck Overbreadth Defined Overbreadth Defined Laws that regulate substantially more speech than is constitutionally justifiable Involves consideration of both PURPOSE and EFFECTS of speech Overbreadth Examples Overbreadth Examples Schad v. Borough of Mount Ephraim, 1981 – live entertainment ban Broadrick, 1973 – prohibition of political speech by government employees upheld (purpose of avoiding corruption, limiting only bumper stickers and buttons) Vincent, 1984 – rule prohibiting posting signs on public property upheld Houston v. Hill, 1987 – rule against interrupting police struck New York v. Ferber, 1982 –upholding prohibition on child porn Ashcroft v. The Free Speech Coalition, 2002 – striking prohibition on child porn Overbreadth and Child Overbreadth and Child Pornography Prior Restraints Prior Restraints Defined . . . Defined . . . ANY law prospectively outlawing speech? No, too broad ­­ such a definition would sweep in defamation, libel, slander, rules of decorum in public official settings, campaign finance limits, etc. Another alternative definition: specific orders outlawing speech issued by a court or agency prior to the speech Challenging injunctive Challenging injunctive restraints: The Rule of Collateral Bar If a court issues an injunction restraining If a court issues an injunction restraining speech (or a facially valid licensing authority has not issued a required permit), the party enjoined is foreclosed from challenging the constitutionality of the injunction (or licensing procedure) if the party disrespects the injunction (or licensing procedure) Four Examples, Four Contexts Four Examples, Four Contexts Near v. Minnesota, 1931 – striking act permitting court to enjoin defamatory news articles NYT v. U.S., 1971– heavy presumption against prior restraint overcomes President’s concern about exposing war­making policy Nebraska Press, 1976 ­­ striking gag order in murder case Alexander, 1993 – obscenity, RICO forfeiture Licensing as Prior Restraint Licensing as Prior Restraint Lovell v. Griffin – facially invalid licensing scheme need not be complied with as a prerequisite to challenge Watchtower Bible (2002): striking licensing of door­to­door advocacy without a permit Windy City Hemp (2002): Next: Infringement Next: Infringement Compelled Speech and Compelled Speech and Conditions on Speech The Theory of Compelled Speech The Theory of Compelled Speech When is non­speech behavior compelled? Is it generally subject to heightened judicial scrutiny? Why is communicative behavior treated differently? How do we tell the difference? Examples of Compelled Speech Examples of Compelled Speech Barnette and the Pledge Wooley and the License Plate Motto McIntyre and Anonymity in Leafletting Buckley and Paid Circulators of Ballot Initiatives “Conditions” Defined: Where a government actor denies benefits upon an individual’s exercise of a constitutional right Speiser and the Oath­for­Tax­Exemption FCC v. League: PBS funding for no editorializing Regan: Tax exemption for no politics Rust: family planning for no abortion The Levels of Speech The Levels of Speech The Classic Case of Unprotected Speech: Incitement Review of the Law­Centric Review of the Law­Centric Methodology for Evaluating Free Speech Rights If the law is content­based – strict scrutiny If content­neutral – intermediate scrutiny In either case, then evaluate purpose In either case, then evaluate means Consider analogies; weigh against infringement Consider vagueness, overbreadth, underinclusivness Particular means for regulating speech . . . Prior restraints, licensing, civil liabilities, prohibitions on compensation, compelled/encouraged speech Speech­Centric Methodology for Speech­Centric Methodology for Evaluating Free­Speech Rights Is the speech itself worthy of protection? No­value­speech (e.g., incitement, fighting words, obscenity) Low­Value speech (commercial, sexual) High­Value speech (political, religious) Incitement vs. Politics: Incitement vs. Politics: No­Value? ­­ or High Value Speech? Incitement, Part 1: No Value Incitement, Part 1: No Value Recall the Alien and Sedition Act of 1798 and its unsettled ends . . . Schenck , 1919– “clear and present danger” to bring about what Congress can rightly prohibit? Yes, here. Frohwerk, 1919 – “enough to kindle a flame”? Yes, here. Debs, 1919 – “intimating” may be proscribed Limiting Incitement ­­ The Limiting Incitement ­­ The Possibility of Protection for Speech Abrams, 1919 – note Holmes dissenting: “nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger . . . “ Gitlow, 1925 – majority adopting low­scrutiny reasonableness test, but Holmes and now also Brandeis dissenting Whitney, 1927 – Brandeis concurring: “those who won our independence by revolution were not cowards.” Advocating proletarian revolution may be protected. Dennis, 1951 – Hand’s risk formula, whether gravity of evil discounted by (im)probability overcomes free speech, adopted here in upholding McCarthy­era Smith Act convictions of communist sympathizers in “highly organized consipiracy” to “overthrow” government in context of “inflammable . . . world conditions” Dennis v. U.S. Dennis v. U.S. More Modern Cases More Modern Cases Yates, 1957 – striking Smith Act convictions Scales, 1961 – upholding Smith Act convictions Noto – mere abstract teachings not criminal Bond, 1966 – Court enforced seating of Julian Bond despite anti­war views Watts, 1969 – “political hyperbole” not criminal Brandenberg, 1969 – KKK member’s statements in a group setting are not criminal: Brandenberg’s Factors Brandenberg’s Factors Harm imminent? How likely is illegal action? Is there an intent to cause imminent illegality? [What is the extent of the threatened harm?] Other No­Value Speech: Other No­Value Speech: Fighting Words Chaplinsky, 1942: speech inviting likely violent response (“fighting words”) not constitutional, nor is speech that inflicts emotional harm protected Gooding, 1972: striking Georgia statute against using “opprobrious” words (here, “White SOB, I’ll kill you.”) RAV v. St. Paul, 1992: hate speech ordinance struck Feiner v. NY, 1951: upholding college student’s conviction for riling up a hostile audience Beauharnais, 1952: libel of a racial group generally, like obscenity, is not protected expression Virginia v. Black, 2003: cross­burning may not presumptively be understood to be intended to intimidate Next Issues: The Fuzzy Zone of Next Issues: The Fuzzy Zone of Intermediate Scrutiny for Low­ Value Sexual and Commercial Speech Some possible answers: Tradition of American puritanism Association with increased risk of crime Objectification of/discrimination against women Non­speech purpose of sexual arousal There is a public interest in shaping a more balanced role for sexuality in public discourse and media when the market fails Why Regulate Obscenity and Why Regulate Obscenity and Sexual Speech? Roth, 1957: obscenity is entirely unprotected, i.e., that which appeals “to prurient interest,” a “shameful or morbid interest [that] goes beyond customary limits” Jacobellis (1964), J. Stewart: “I know it when I see it” Paris Adult Theatre (1973): why no protection for Atlanta adult theaters? “the interest of the public in the quality of life” is “legitimate” (employing low scrutiny for hard core porn reg) Brennan dissents on grounds of vagueness Obscenity Obscenity The Miller Tests of Obscenity The Miller Tests of Obscenity A. Would an average person applying contemporary community standards find the work, taken as a whole, to appeal to the prurient interest? B. Does the work describe sexual conduct in a patently offensive way? C. Does the work as a whole lack serious value? Child Porn Child Porn Ferber: Even if not obscene, child porn can be Ferber: Even if not obscene, child porn can be prohibited: Why? 1. Kids special 2. kids are abused in its production 3. making money off it is criminal 4. little serious redeeming value in it 5. precedent So ­­ why isn’t the CPPA, outlawing what appear to be children in sexual settings, and suggesting that child porn is being offered even when it isn’t, valid? See Ashcroft v. The Free Speech Coalition, 2002: virtual kids aren’t special; statute overbroad; purposes weakly articulated Low Value Sexual Speech Low Value Sexual Speech Young v. American Mini Theatres, 1976: zoning of sexual businesses okay; “State may legitimately use the content of these materials as the basis” for zoning See also Renton v. Playtime Theatres, 1986 (page 912): ducking question of whether it was content­ based regulation deserving strict scrutiny Erie v. Pap’s AM, 2000: secondary effects may justify suppression of strip club nudity City of L.A. v. Almeda Books, 2002: secondary effects justify rule against more than one adult biz under one roof Limiting Regulation of Obscenity Limiting Regulation of Obscenity Stanley v. Georgia, 1969: possession of obscene material “alone in [one’s] own house” is not regulable for rather paternalistic reasons But see Osborne, 1990: child porn in the home IS regulable to protect victims of child porn Key calculus revisited: check level of speech vs. the strength of the government’s competing purpose (e.g., demonstrated secondary effects) Other types of Low Value Speech Other types of Low Value Speech Cohen, 1971 – “Fuck the Draft” coat is nonproscribable FCC v. Pacifica, 1978: Carlin’s “Filthy Words” regulable in factually specific settings Sable Communications v. FCC, 1989: dial­a­porn cannot be prohibited wholesale Reno v. ACLU, 1997: internet regulation of indecency must be narrowly tailored Ashcroft v. ACLU, 2004: COPA’s use of “contemporary community standards” in determining content “harmful to minors” is not substantially overbroad, but enforcement restrained unless less restrictive methods like filters can’t work US v. Playboy, 2000: outlawing channel because of cable signal bleed is overbroad Commercial Speech Commercial Speech Initial Doubts About Commercial Initial Doubts About Commercial Speech Valentine (1942): commercial speech is presumptively unprotected Bigelow (1975): yet abortion services ads ARE protected Va. State Board of Pharmacy (1976): pharmacist advertising restrictions struck; public may have an “interest” in the information of advertising Bolger (1983): even after mixing information with proposals for transactions, still commercial The Central Hudson Test (1980) The Central Hudson Test (1980) If (1) the regulation addresses commercial speech (not non­protected speech), then the regulation must be tested to find a (2) “substantial interest” of the government actor plus a (3) “proportion[al]” response “designed carefully” to “directly advance the state interest” in ways (4) that cannot “be served as well by a more limited restriction” In short, a type of intermediate scrutiny . . . Cases Applying Central Hudson Cases Applying Central Hudson Ads for illegal activities: not protected speech False and deceptive ads: also not protected speech Restrictions on trade names: allowed for “substantial” reasons; see Friedman v. Rogers (1979) Attorneys’ solicitations: truthful ads not proscribable but in­person solicitation for profit is proscribable Accountants’ in­person solicitations, however, are not proscribable For Sale signs on houses not proscribable Alcohol content and price disclosures not proscribable Privacy Torts and Speech Protection Privacy Torts and Speech Protection NY Times v. Sullivan, 1964: state libel law ruling is overturned for failing to comply with First Amendment overlay requiring: 1. clear and convincing evidence of falsity 2. of statements about a public official 3. where defendant showed actual malice Actual malice being to know of falsity or be reckless with regard to falsity The ad in NY Times v. Sullivan The ad in NY Times v. Sullivan Sullivan appears second from right, Sullivan appears second from right, with lawyers, after initial victory (which was later reversed) Modifications After Sullivan Modifications After Sullivan Gertz, 1974: private citizens, who are not public officials, nor public figures who have “thrust” themselves “into the vortex”, may sue the press without meeting the special limitations of Sullivan, but they still may not claim punitives or presumed damages without showing actual malice as in Sullivan D&B, 1985: erroneous private financial report may give rise to punitives or presumed damages without a showing of malice Hustler, 1988: Intentional infliction claim invokes Sullivan showings Symbolic & Other Symbolic & Other Conduct as “Speech” Culturally and Politically Charged Gestures Getting 1st Amendment Protection Symbolic Arm Gestures A Few Examples of Protected A Few Examples of Protected Nonspeech Expression Nude dancing and pornographic photos Flag burning and cross burning Draft­card burning, wearing armbands in protest, making political contributions, spending on one’s own campaign? Recent case of deaf schoolgirl in schoolbus? Nazi Heil? Black power salute? O’Brien: Draft­Card Burning O’Brien: Draft­Card Burning Is burning one’s draft card a form of protected speech? Held on these facts in 1968, no. Establishes a standard for regulating symbolic speech : roughly, intermediate scrutiny, i.e., “sufficiently important” governmental interest (compelling, substantial; subordinating; paramount; cogent; strong) can justify “incidental” limitations through “narrow means” Flag Burning: Texas v. Johnson Flag Burning: Texas v. Johnson State law prohibiting desecration of flag used to prosecute RNC protester in 1984 Aside: could he have been convicted of uttering offensive words consistent with the “fighting words” doctrine? “No disturbance of peace was threatened” Government cannot monopolize symbols Johnson Johnson “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression” The State must show “that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint” – must show “substantial interference” with schoolwork or other students Tinker: Wearing Armbands in Tinker: Wearing Armbands in Protest at School The Tinkers The Tinkers Campaign contributions are in this case distinguished from campaign expenditures If both are protected, why are contribution limits upheld, but spending limits struck down? Avoiding “improper” influence is a “substantial” purpose but keeping costs down isn’t Buckley v. Valeo: Money in Buckley v. Valeo: Money in Politics Buckley v. Valeo Buckley v. Valeo Buckley v. Valeo Buckley v. Valeo More on Political Money More on Political Money Nixon v. Shrink Missouri Government PAC: upholding $275­$1,075 state restrictions on state campaign financing 24 years after Buckley “This case does not present a close call,” writes Souter First Nat’l Bank v. Bellotti: firms can’t be stopped from spending on politics ...
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