Constitutional_Law_II_Outline - Constitutional Law II...

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Constitutional Law II Outline Professor Stern Fall 2007 Constitutional Law II Outline I. The Problem of Dangerous Speech a. 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.” i. Basic dichotomy is to think of restrictions on speech as falling into two basic categories, one drawing closer scrutiny than the other. a. Content and viewpoint are closely scrutinized b. Less so are time, place, and manner restrictions written in a content- neutral manner. b. The First Amendment is not to be read literally. No law abridging . . . ? i. Free speech balanced against other kinds of interest a. How to assign a value to freedom of speech b. Is it just inherently good? c. Principal justifications—it advances valuable ends: i. Basic, instrumental rationale—famously embodied in Holmes’s marketplace metaphor. “Marketplace of ideas”—not necessarily economic, but scientific. Truth is always provisional, open to challenge. Free speech helps advance truth. Inject Holmes’s phrase into any argument about free speech. Free exchange of ideas is an efficient mechanism at getting to truth. ii. Democratic justification. Main, not exclusive reason, why framers featured free speech so prominently is that they wanted to protect freedom to engage in commentary and discussion on government and its affairs. (In defamation, more protection for disparaging public figures than non-public figures.) d. Other justification i. We want to protect free speech because there is an inherent value to the individual who is engaging in it. In a free society, there is intrinsic value in people expressing themselves as they see fit. It’s part of the autonomous individual. e. Some dimensions of free speech i. Free speech has been considered by many Justices and commentators as a “preferred freedom.” ii. Heightened protection can be linked to Carolene Products, in footnote 4. iii. United States v. Carolene Products Co. (1938), passages from Footnote 4 a. “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” b. It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On 1
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Constitutional Law II Outline Professor Stern Fall 2007 restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536
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This note was uploaded on 04/05/2010 for the course LAW LAW5502 taught by Professor Stern during the Spring '10 term at Florida State College.

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Constitutional_Law_II_Outline - Constitutional Law II...

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