Con Law II - Brownstein - S07 - Outline

Con Law II- - Constitutional Law II Spring 2007 Government Control of the Content of Expression Outline Page 1 I Overview A Justifications(and

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Constitutional Law II – Spring 2007 Outline Government Control of the Content of Expression Page 1 I. Overview A. Justifications (and criticism) for Protection of Speech 1. Freedom of speech is a necessary precondition for having democratic self-government. Marketplace of ideas metaphor suggests that the best ideas will emerge from robust debate. Only the best arguments and ideas will emerge when they compete each other in the market. a. Criticism i. Metaphor is inaccurate – the “political truth” that emerges is far from the best nor truthful. ii. Imperfections of the marketplace necessitate government regulation. iii. Metaphor is misplaced – too attenuated and abstract in this context. b. Rebuttal i. Relatively speaking, there may be no better way to make public policy decisions or reach political truth. The marketplace may be imperfect, but it’s the best we can do. ii. The government is a particularly inappropriate regulator of the marketplace of ideas because the government is overly bias in regulating the marketplace of ideas. The government has a vested institutional interest that it must protect. 2. Dignitary rationale . Speech is part of the process through which we determine our individual identities. 3. Free speech is essential. Peoples basic attitudes, values and beliefs must be kept distant from the government for popular sovereignty to survive. If people are expected to exercise some controlling check on government conduct thenGovernment can’t control culture by restricting or policing private expression. 4. Personal . Dwarkin: the government must treat people and citizens as if they were morally responsible agents. It must recognize that we can be trusted to make up our own minds as to whether speech is truth or false, good or bad. No government has the right to tell us that we aren’t fit to hear certain information or opinions because we might be persuaded by those arguments. 5. Legitimacy. The decisions and laws of government are legitimate and we extend them our respect because we participated in the process that led to their adoption. Speech is an aspect of the consent of the governed, which is what legitimates a democratic government. B. Communicative v. Non-communicative impact 1. Communicative Impact a. Directed at the message – viewpoint or content b. Infringement on FOS bc of inequitable treatment that treats some viewpoints more favorable than others 2. Non-communicative impact a. Focus on viewpoint and content neutral goals, i.e. time, place, and manner of the expression. i. Examples: laws that promote “quiet” or “safety” ii. E.g., a law that doesn’t allow protests during rush hour b. Restrictions aren’t directed at any specific message c. Need for concern i. The effect of these laws in that they restrict opportunities for speech. ii.
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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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Con Law II- - Constitutional Law II Spring 2007 Government Control of the Content of Expression Outline Page 1 I Overview A Justifications(and

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