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CONSTITUTIONAL LAW II OUTLINE I. T HE P ROBLEM OF “D ANGEROUS ” S PEECH A. First Amendment 1. In General a) Viewpoint discrimination i.e content based restriction 1. The government can’t ban a message on the basis of what is being said 2. Can’t single out a particular viewpoint or message 3. Heightened scrutiny will apply i. Regulation will be presumptively invalid ii. Government will have to show that the restriction was necessary to achieve a compelling governmental interest b) Time, place, or manner restrictions i.e non speech interest restriction 1. Government has more leeway to suppress speech for neutral reasons that are unrelated to the viewpoint of the message 2. If the regulation is being imposed even-handedly, the government will be able to impose the restriction, must be neutral an cannot discriminate 3. Regulation will be presumptively valid, even though there is an incidental impact on the exercise of free speech ex. Noise ordinance 2. First Amendment a) “No” doesn’t really mean no b) Applies to all arms of the government (not just Congress) c) Contains a notion of balancing interests that does not appear on the face of the First Amendment d) First Amendment does not apply to restrictions of speech by private parties on private parties (there must be GOVERNMENT action in order for the First Amendment to apply) e) Freedom of speech : Belief that freedom of speech is good and is worth protecting f) General First Amendment standard is strict scrutiny 3. Justifications for freedom of speech a) Marketplace of ideas “Basic instrumental rational” 1. Instrumental notion of freedom of speech 2. Comes from Holmes 3. Freedom of speech is an efficient way of getting at the truth 4. Almost a scientific notion: 5. Categories of speech that don’t make a contribution to the marketplace of ideas receive little or no protection (examples : obscenity and threats) b) Democratic justification 1. Main idea : Framers of the First Amendment were mainly concerned about the protection of public discussion of issues that are of public importance 2. Framers were concerned with the role of speech 3. Government could not function effectively unless the public could comment on matters of public importance 4. Example : There is a sliding scale of defamation depending on who you are defaming (comments about high-ranking public officials receive greater protection) 5. Disclaimer : instrumental justification and democratic justification rest on the idea that speech is good for society as a whole. c) Individual autonomy/self-fulfillment 1
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1. Distinct from the first two justifications, which basically say that free speech benefits society at large 2. This rationale says that we should protect free speech because of the individual satisfaction that is derived from being able to express your thoughts in the way in which you want to express them 3. Speech is protected because it is meaningful to the person who is making the speech (regardless of whether there is a benefit to society as a whole)
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