Constitutional Law 2

Advocacy of Illegal Action

-Brandenburg Test: Constitutional guarantees of free speech/press don’t permit a state to forbid/proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting/producing imminent lawless action and is likely to incite/produce such action (hard to satisfy) (advocacy is protected, incitement is not)

-Must be encouraging people to do something now or in the near future (not indefinite), not just to believe in something to be illegal (speech that advocates illegal activity or the use of force is protected UNLESS it is both intended and likely to produce imminent illegal activity)

-Protects political speech (not genuine threats like criminal solicitation for bankruptcy)

-Example: Tending to obstruct recruitment plans plus proof of intent to do so

-Hostile criticism is okay (short of urging others that its a duty to resist law)

-Utterances inciting to the overthrow of organized gov. by unlawful means presents sufficient danger of substantive evil (can be punished) (reasonably foreseeable that public harm could follow)

-To be Constitutional: Speech advocating a crime, at least in a political context, is protected UNLESS it is directed to inciting/producing imminent lawless action and is likely to incite/produce it

-Difference between Advocacy & Incitement: State of Mind = intent; Timing of Harm = immediate/imminent; Probability of Harm = Likely; Gravity of Harm = Serious

-Example: Trespass too minor of a crime to permit punishment of any speech in relation to it in a political context

-Intent to do something; immediate/imminent; likely probability of harm; gravity of harm must be serious

Reputation & Privacy; Public Officials & Seditious Libel; Private Individuals

-Group libel is protected speech (can disparage a group)

- NYT Public Official/Figure: May not recover for defamation without a showing of actual malice (knowledge of or reckless disregard of the falsity) (need to satisfy NYT for IIED claims also)

-Limited Public Figure: Thrust themselves into the forefront of a particular controversy (can’t have gained controversy just bc of the defamation)

-Gertz Private Figure & Matter of Public Interest: States cannot impose liability without fault (at least negligence), must show actual damages (can only get presumed damages upon NYT malice showing)

-Private Individual & Private Interest: Common law + fault, using rational basis test

-Private v. Public Concern: Look at content, context, and form

Disclosure of Private Facts; Ownership of Speech; Obscenity

-Daily Mail Standard: Truthful info, lawfully obtained, about a matter of public significance may be disseminated without liability absent satisfaction of strict scrutiny (can still be liable for copyright infringement: property rights in speech)

-Obscenity not protected under 1st A.

-Miller Obscenity Test: (1) Whether the average person, applying contemporary community standards, would find that the work taken as a whole appeals to the prurient interest; (2) whether the work depicts/describes, in a patently offensive way, sexual conduct specially defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

Fighting Words, Offensive Words, and Hostile Audiences

-Fighting Words: Words so provocative/inflammatory so as to likely cause an immediate violent reaction from the person at which they are directed

-Fighting words category remains today, but the content changes over time

-Offensive Words: Speech that will harm who you are speaking to

-Hostile Audiences: Police must first make a reasonable effort to protect the speech but if the speech is inciting a clear/present danger of serious substantive evil that rises above public inconvenience/annoyance, the speech can be stopped/censored

-Captive Audience Problem: If the audience can’t look away or avoid the offensive speech, probably constitutional to punish speech (oral speech = captive audience; printed speech = likely not a captive audience)

-Example: City Council adopts a rule prohibiting “language that causes serious offense to others”, if a speaker at a city council hearing yells “fuck you, fuck the counsel, fuck the other speakers” it is likely to be enforced

-Universities allowed to enforce rules of civility

Commercial Speech

-Advertising is protected under 1st A., although not absolute (can’t be fake, deceptive, misleading, or illegal)

-Examples: Pharmacists can advertise the price of drugs; lawyers can advertise their services

-Central Hudson Commercial Speech Regulation Test: (1) If commercial speech isn’t unlawful/false/misleading; (2) the gov. may only prohibit it if doing so advances a substantial gov. interest; and (3) the limits on expression directly advances the gov. interest; and (4) aren’t more extensive than necessary to serve that purpose

-States can bar in-person solicitation of clients because that is considered more conduct than speech

-Gov. must justify discriminating against commercial speech if it treats commercial and non-commercial speech differently

-Examples: Can’t ban “for sale” signs on residential property when other signs are permitted; can’t ban door-to-door solicitation, decision to answer is left up to the homeowner

-Example: State can’t legalize medical weed and then say no advertisements (protected speech), but an ad for recreational weed is NOT protected speech (still illegal federally)

-States can regulate the communication of prices

Vagueness & Overbreadth

-Facial challenges assert vagueness/overbreadth, not “as applied’

-Vagueness: Not knowing what a state encompasses

-Overbreadth: 1st A. test that strikes down a law that substantially applies to protected speech

-A fed. law that seeks to ban visual/auditory depictions of animal cruelty is overbroad and violates the 1st A. (hunting is allowed, what constitutes animal cruelty)

-In order to raise an overbreadth claim, must first prove that the speech is protected (or if your speech is NOT protected, you can bring an overbreadth claim if it effects other speech which is protected)

-Anyone can raise a vagueness claim

Content Regulation & Discrimination

-Content discrimination is given strict scrutiny

-Gov. can regulate conduct even if it has an impact on speech so long as its content/view-point neutral

-States can’t regulate categories of unprotected speech on the basis of content (ex. can’t ban fighting words regarding race but allow other fighting words)

-TPM: Gov. regulation of expressive conduct doesn’t violate the 1st A. if it is content neutral; a reasonable regulation of time, place, and manner of the expressive conduct; narrowly tailored to serve a substantial gov. interest; and leaves open ample alternative avenues of expression (intermediate review)

-O’Brien Test: If conduct contains both speech and nonspeech elements, an important/substantial gov. interest in regulating the nonspeech may justify incidental limitations on 1st A. freedoms if (1) the regulation is within the constitutional power of the gov.; (2) the regulation furthers an important/substantial gov. interest; (3) the gov. interest is unrelated to the suppression of free expression (content neutral); (4) the incidental restriction on the alleged 1st A. freedom is no greater than is essential to the furtherance of that interest (intermediate scrutiny)

-States are permitted to enact statutes imposing stricter penalties on defendants who choose victims based on their membership to a protected class such as race (ex. enhancing aggravated battery sentence bc victim was selected bc they were black)

-States can prohibit cross burning w/ intent to intimidate bc intimidation/threat is a crime itself and has no constitutional protection, but CANNOT prohibit cross burning alone bc it can be political speech

-States can’t deny trademark registration just bc the name is offensive (content discrimination)

-When a regulation is prompted by the message of the speech, apply strict scrutiny

-When the regulation is prompted by conduct unrelated to the message of the speech, apply intermediate review (when communicative element is de minimis, no 1st A. analysis at all)

-Actual, original motive is not relevant; just what the gov. says is the purpose (can have an impermissible motive)

Government Property and the Public Forum

-Traditional Public Forum: Regulation of speech on gov. property that has traditionally been available for public expression is subject to strict scrutiny and MUST be content neutral (streets, sidewalks, parks) (can have TPM regulations) (must have ample alternatives)

-Designated Public Forum: Spaces that haven’t been traditionally regarded as public forum but which the gov. has intentionally opened up for that purpose

-Unlimited Designated Public Forum: Subject to same regulations as traditional public forum (steps of city counsel building in PGH)

-Limited Designated Public Forum: May be restricted by purpose (content) or group but NOT by viewpoint (mailboxes on campus, Pitt email system = can only let students use it)

-All Remaining Public/Gov. Property: Subject to reasonable regulations (reasonableness but not rational basis - harder to satisfy; must still be viewpoint neutral)

-Can’t charge more to protect unpopular speech

-No 1st A. right to speak on property owned by someone else

Examples of Government Property

-A municipality may not completely abridge the right of a group to gather on public property as long as the group is acting peacefully, orderly, and not interfering w/ the general public’s comfort/convenience

-Municipalities can’t completely restrict soliciting/canvassing on public property, but can impose reasonable restrictions and time requirements (ex. can’t ban parades altogether; but can require protestors to obtain a license to stage a parade)

-Airport terminal is not a traditional or designated public forum, regulations are only evaluated on reasonableness (can ban solicitation of funds but not all leafleting)

-Example: Public transit system could sell commercial advertising space for cards on its vehicles while refusing to sell space for political/public issue advertising (not a public forum and content discrimination is reasonable bc it minimized chances of abuse, the appearance of favoritism, and the risk of imposing on a captive audience)

-Example: State law prohibiting display/distribution of materials and solicitation of votes within 100ft of polling is permitted (public forum but strict scrutiny is satisfied - concerns over voter intimidation)

-If the speech is intrinsically linked to a criminal act, it can be prohibited

False Statements

-Protected bc it is inevitable in free debate

-Can be punished if causes damage (defamation)

Prior Restraints

-1st A. right to speak ONCE but can be punished after that

-Prior Restraint: Requirements that speech be licensed in advance of delivery or injunctions being granted against speech yet to be delivered

-Even if a prior restraint is invalid, the speaker could be punished subsequently under law if the speech isn’t protected (can violate TPM requirements or be intrinsic to a crime)

-Administrative Licensing: Unconstitutional prior restraint (can’t prohibit distribution of books/advertising w/o obtaining written permission or require door to door advocates like religious members to register w/ the mayor) (CAN enact TPM restrictions)

-Injunctions: Cts. cannot issue injunctions against publication of newspapers/magazines/periodicals deemed to be malicious/scandalous/inflammatory (but can punish for defamation after)

-Collateral Bar Rule: Ct. order must be obeyed until set aside, if you violate the ct. order you can be charged w/ contempt even if the order was erroneous/unconstitutional (must undo the injunction first, otherwise no 1st A. defense for violation)

-Example: A ct. conviction for disobeying a state ct. injunction for demonstrating w/o a parade permit is constitutional where petitioners didn’t move to dissolve the injunction or seek to obtain a permit (their 1st A. right to free speech argument against the permit requirement can be entirely ignored)

-A ct. can grant an injunction to prevent FURTHER publication w/o violating 1st A. (ex. injunction preventing further publication of obscene materials)

-Licensing Professionals: Gov. can mandate licenses for certain professions but can’t punish individuals for not having a license if they don’t act as a licensed professional (ex. lawyers)

-National Security: Gov. may be constitutionally permitted to enjoin publication material on the grounds that such publication jeopardizes national security but the burden for justifying such an action is extremely high (ex. instructions on building a hydrogen bomb)

-A contract provision imposing restrictions on the ability of a former public employee to publish info pertaining to unclassified gov. operations does NOT violate the employee’s constitutional right to free speech (not a prior restraint, just a contract)

Justice and Newsgathering

-Judge’s failure to take steps to reduce prejudice caused by extensive pretrial publicity violates right to trial by impartial jury BUT no direct limits on what can be reported from the courtroom

-Press can publish lawfully acquired, truthful info on matters of public concern (ex. can publish info gained from open ct. proceeding)

-Ct. can enter a protective order upon the showing of good cause, but the order is limited to pretrial civil discovery and doesn’t restrict the dissemination of info if gained from other sources (can gag a party in the case, including a newspaper, but can’t gag newspapers that aren’t a party)

-No reporter privilege to protect sources

-States can enact shield laws (protects sources from prosecutors who ask) but these laws must yield to 6th A. rights (when defendant asks for sources, reporters have to give them)

-Search warrants can be issued for a newspaper office even though the object of the search can be demanded through a subpoena (common practice for law enforcement to NOT do this though)

-Cannot close a criminal/civil trial to the press bc its a traditional public forum (allowed to prohibit recordings/photos)

Government Speech

-Generally, gov. can’t tell its employees what they can’t say

-Gov. can pay for speech but can’t dictate what is/isn’t said (ex. public defender, doctor-patient confidentiality, restrictions on public university professors)

-A Fed. law may, as a condition of receipt of funding, constitutionally restrict fund recipients from engaging in abortion-related activities (the recipients can still speak freely about abortion outside the scope of the gov.-funded program)

-Content/viewpoint discrimination is permitted in regulating gov. speech

-A state university may not provide funding to secular student publications but refuse to provide similar funding to religious student publications (designated limited public forum, NOT gov. speech)

-Example: City can permit certain groups to put a monument in the park and refuse to allow others (the park is a traditional public forum but the monument isn’t and is considered gov. speech)

-State gov. can require approval for license plate designs and can discriminate against specific content (ex. can refuse to allow a confederate flag) (plates aren’t a designated public forum or limited public forum, they are simply gov. speech)

-If the gov. considers something a limited public forum instead of gov. speech (such as flags on a flagpole) in order to avoid the establishment clause, then they can’t control the message (can’t refuse to fly 1 flag but allow others bc thats viewpoint discrimination)

-State cannot compel/regulate purely private speech (ex. requiring licensed & unlicensed clinics to notify patients of state services such as abortions)

Government Speech and Education

-Gov. speech is found in public school curriculum

-Gov. can’t force all children to go to public school (unreasonably interfered w/ liberty of parents to direct upbringing and education of children under their control)

-State can’t prohibit foreign language learning (violates 14th A. right to be free from restraint)

-Students have limited 1st A. rights at school

-In a public school, prohibiting an expression of opinion is unconstitutional unless there is a specific showing that engaging in the forbidden conduct would materially and substantially interfere w/ the appropriate discipline in the operation of the school or would imping upon other people’s rights

-Example: School can suspend student for refusing to take down a “bong hits 4 jesus” sign at school because it was reasonably viewed as promoting illegal drug use

-School officials are entitled to regulate contents of school newspaper in any reasonable manner (not a designated limited public forum) (regulation must be related to legitimate pedagogical concerns)

-Off campus speech is more protected than on campus speech (if off campus speech substantially interferes w/ school operation, it may be punishable)

Government Speech as an Employer

-Speaking as a private citizen on a matter of public concern is fully protected by the 1st A. (ex. teacher can’t be terminated for publishing a letter in a newspaper criticizing the school board)

-When public employees’ expression doesn’t relate to any matter of political/social/other public concern (ie. its a private/employment matter), it is generally NOT protected under the 1st A.

-Does the speech involve “on the job” duties, if yes, no protection (even if it involves matters of public concern)

-Example: Criticizing the office within the office can be disciplined by employer

-Subpoenaed testimony outside the scope of ordinary job duties is not “on the job”

-Can’t fire people because they belong to the wrong political association

Hierarchy of Media

-Newspapers (full 1st A. protection); telephone; internet; cable; broadcast media (limited 1st A. protection)

-State can’t force newspapers to honor a “right of reply” (compelled speech)

-Broadcast media can refuse to sell advertising time for certain content

-A political candidate debate on public TV isn’t a public forum, regulations only need to be reasonable (can exclude a candidate)

-Must carry requirement for cable is constitutional (intermediate scrutiny, legislation was narrowly tailored to preserve benefits of local broadcast TVs and to promote widespread dissemination of info from multiple sources)

Media Content Regulation

-Extensive regulation of broadcast radio permitted (even though content based)

-Example: Station sanction for filthy words broadcast upheld, no prior warnings to protect listeners

-Congress can constitutionally prohibit obscene but not indecent interstate commercial phone messages

-Gov. can’t regulate the transmission/display of content on the internet unless it does so for a compelling purpose and the means are narrowly tailored (strict scrutiny)

-Fed. statute allowed to permit cable owner to prohibit sexually offensive programming (like a bookstore choosing which books to stock) (statute was sufficiently tailored to address a significant problem)

Right to Not Speak the Government’s Message

-Private citizens cannot be forced to speak or be associate with any message

-Public school students cannot be forced to salute the flag

-License plate is pure gov. speech, so citizens can be compelled to show license plate message

-An advertiser’s rights are adequately protected so long as the disclosure requirements are reasonably related to the state’s interest in preventing the deception of consumers (not compelled speech, just regulated commercial speech)

-1st A. protects speaker’s right to remain anonymous (can criticize gov. anonymously) (corps. do NOT have this right)

Right to Associate

-Labor boycotts may be prohibited but speech protest is protected as a core part of the 1st A.

-Disclosure of contributors/recipients of campaign disbursements can be compelled unless there is a reasonable probability that the disclosures will subject the party to threats/harassment

-Can’t require charities to disclose the identities of their major donors (burdens donors 1st A. rights and isn’t narrowly tailored to an important gov. interest)

Right to Not Associate

-A private citizen cannot be forced to pay for speech by other private citizens (don’t have to join a union or pay for its services)

-A public business can’t deny access to the public just for expressing their views (the views expressed by the public likely won’t be attributed to the business)

-Fed. statute may revoke subsidy if a higher education institution doesn’t allow military recruiters the same access as other recruiters (military speech can’t be reasonably attributed to the school)

-Owner of a parade can choose who to let in (private speech) (public accommodation law unconstitutional

-Public accommodations laws are typically constitutional for products but not speech (exception is website designer can’t be forced to provide a site for a same-sex wedding)

-A law that forces individuals to participate in speech must serve a compelling state interest that cannot be achieved through significantly less restrictive means (strict scrutiny)

Compelled Subsidies

-Compelled Subsidy: An individual is required by the gov. to subsidize a message he disagrees with, expressed by a private entity

-States and public sector unions cannot extract agency fees from nonconsenting employees

-Can’t compel mushroom handlers to fund private ads supporting mushroom sales (but compelled support of gov. ads is constitutional so long as it doesn’t finance political/ideological views: can make cattle producers pay for generic ads sponsored by the gov.)

Intimate Association v. Expressive Association

-Expressive Association: Freedom to engage in association for the advancement of beliefs and ideas

-Expressive association rights are justifiably infringed upon by a compelling interest, unrelated to the suppression of ideas, that cannot be achieved through significantly less restrictive means (state can prohibit private orgs from excluding members based on gender if the compelling interest in preventing gender discrimination outweighs the 1st A. right in freedom of association)

-Intimate Association: Choices to enter into and maintain certain intimate human relationships (family, marriage, children)

-State can’t bar private orgs. from prohibiting homosexual members (violates expressive association rights)

-Schools can condition official recognition of a student group and eligibility for financial resources on having a membership open to all students (limited public forum but viewpoint neutral, and expressive association analysis) (student groups can be selective in its members but it doesn’t have a right for the state to subsidize its selectivity)

Campaign Finance

-Spending money is speech (limits can restrict the right to associate)

-Independent expenditure limits are unconstitutional (but contribution limits are constitutional)

-Expenditure Limits: Impose a restriction on the amount of money that a candidate can spend on communications, thereby reducing the number and depth of issues discussed and the size of the audience reached

-Contribution Limits: Cap the amounts of money an individual can contribute to a candidate, party, or political committee

-Contribution limits can be unconstitutional if they’re too low or aggregate all political spending

-Corporate/union funding of independent political broadcasts (political ads not coordinated w/ a candidate’s campaign) in candidate elections cannot be limited (independent expenditure limit deemed unconstitutional: did not satisfy strict scrutiny)

-Judicial elections have different standards due to concerns of judicial integrity (can restrict solicitation of campaign funds, but judges are allowed to announce their views on political issues)

Political Establishment Clause

-Gov. can’t endorse candidates for office, but it can have opinions about policy