Constitutional Law Notes: Commercial Speech, Free Speech, and Eminent Domain
NIL Contracts and Law School Context
NIL contracts for athletes: a receiver is discussing an NIL deal, where the athlete has a contract with a company to promote or represent them. The deal requires payment to the athlete, time spent, and interaction with other people (doctors, colleagues, and others the athlete works with).
The contract obligations include fulfilling promised promotional activities for the company, ongoing time commitment, and coordination with university-related activities.
Mention of multiple athletes involved in NIL deals (women’s basketball player, men’s basketball player, and football players) promoting themselves for various purposes, including university-related activities and other endorsements.
Context: this is used as a lead-in to a constitutional law discussion about contracts, speech, and regulation (not a formal contract-law lecture, but a practical example of how contracts intersect with speech and public policy).
Administrative notes from the instructor:
Finishing up constitutional law today; set up for the next report and exam.
Review assignment submissions; read ahead to chapter nine for AI negligence law; some students have chosen scenarios.
MindTap assignments for chapters four, five, and six; work through them steadily rather than cramming; numerous questions available.
Outlines posted in modules for the Constitution; upcoming topics include Hudson Gas & Electric v. Public Service Commission (commercial speech).
Foundations and Sources
The US Constitution is the supreme law of the land; federal statutes and treaties are supreme when in conflict with state or local laws (Supremacy Clause).
Michigan constitution also provides protections; U.S. Constitution is the highest source of rights, but state constitutions can grant additional rights.
The Interstate Commerce Clause regulates most aspects of daily life that cross state lines (e.g., traffic safety and national standards); examples include auto emission standards and other public-safety regulations.
States exercise police powers to regulate health, safety, and the general welfare; this is adequate to justify local health standards and safety rules, but federal action may preempt or complement when interstate commerce is affected.
Tenth Amendment reserves powers not delegated to the federal government to the states; this underpins state court systems and state regulatory authority.
The distinction between federal and state authority is reflected in the organization of executive, legislative, and judicial branches at both levels; e.g., governors oversee executive agencies; the judiciary administers courts; judges at federal level are appointed, whereas many states (including Michigan) elect state judges.
Interstate Commerce, Federalism, and Regulation
Regulation of interstate commerce by federal government can preempt state/local action; however, many areas involve concurrent regulatory schemes with state laws adding protections (e.g., California environmental standards with EPA waivers can coexist with federal standards that allow stricter state rules).
The division of powers includes:
Federal supremacy in conflicts (Supremacy Clause).
State police powers to regulate health, safety, and welfare within their borders.
The possibility of uniform rules at the federal level when cross-border issues arise.
Practical examples:
FDA regulates food safety and drug safety at the federal level; local health departments regulate restaurant licensing and inspections (temperature control, sanitation) without conflict since these are additive protections, not direct preemption.
The question of whether a local market affects interstate commerce can be argued, but it is often a challenging analysis; local activity may still have effects on interstate commerce and thus be relevant to federal regulation.
First Amendment and Speech Rights
Free speech framework centers on government action against individuals or entities (government versus you); the government cannot infringe on free speech, but there are consequences for speech (torts like defamation; criminal statutes for harassing behavior online).
Symbolic speech and assembly are protected; clothing and symbols can be used as political speech (with potential limits for minors or school dress codes).
Peaceful assembly is protected by constitutional rights; restrictions (e.g., during lockdowns) can be controversial but are grounded in public health and safety considerations.
Commercial speech is protected but subject to regulation when it concerns lawful activities and is not misleading; government interest must be substantial and the regulation must directly advance that interest and be narrowly tailored.
Corporations and other entities enjoy protections for commercial speech similar to individuals, but with some limits (e.g., no guaranteed right to a jury trial for the corporation itself in some regulatory contexts; internal corporate documents may not be protected by the Fifth Amendment in the same way as a person’s silence).
The role of symbolic and political speech in public spaces includes: political signs, business signs, and event advertising; time, place, and manner restrictions are permissible if narrowly tailored to serve a substantial government interest and leave open ample alternative channels for communication.
Online harassment and criminalization: a Michigan statute criminalizes repeated online messages intended to terrorize, threaten, harass, or intimidate a victim if there are two or more separate, noncontinuous acts (noncontinuous acts) and intent to cause fear. Penalty can be up to 5{,}000 in fines or more depending on the case.
Key statutory elements include: use of any medium (Internet, computer, electronic medium); two or more acts; intent to terrorize or harass; reasonable perception of fear by the victim.
This shows that even protected speech can incur criminal liability when it crosses into harassment or threats; defamation will be covered later in torts.
Dress codes and school speech: while there is broad protection for free speech, schools may regulate student attire under certain standards, balancing rights with safety and classroom order.
Free speech waivers: individuals can contractually waive certain rights (e.g., HOA rules or private agreements) in exchange for certain benefits; this does not override constitutional protections in public settings, and discrimination concerns can affect enforceability.
Minors’ speech in schools and the line between school authority and individual rights is a nuanced area; restrictions must be narrowly tailored and in line with public interest.
Commercial Speech: Central Hudson Framework and Examples
Central Hudson Gas & Electric v. Public Service Commission (New York) addresses promotional advertising by utilities and the regulation of commercial speech.
Central Hudson test (as discussed in class):
1) Is the speech about lawful activity and not misleading? If no, it loses protection; otherwise proceed. ext{Speech must concern lawful activity and be non-misleading.}
2) Is the government interest substantial? Is ext{ must be substantial.} 3) Does the regulation directly advance the government interest? ext{Regulation must directly advance } Is.
4) Is the regulation narrowly tailored, not more extensive than necessary, and not prohibiting more speech than necessary? N ext{ is narrowly tailored; } N ext{ implies no broader ban than needed.}Central Hudson outcome: the regulation stood if it is truthful and non-misleading, advances a substantial state interest, and is narrowly tailored; false or misleading ads can be regulated more easily.
Examples in class discussion:
Advertising limitations for energy utilities; allowed types of truthful, non-misleading promotions (e.g., energy-saving tips) but prohibited false advertising.
The government’s ability to regulate advertising for dangerous products (e.g., illegal substances or misrepresented health claims).
Distinction between truth-telling ads and deceptive ads; truthfulness limits the government’s power to regulate; intent and public health concerns can justify regulation.
Billboards and visual advertising: time, place, and manner restrictions may apply for the protection of minors and public safety; regulations must be narrowly tailored and not an outright ban on speech.
Alcohol, tobacco, and illegal drug advertising: regulated with broad restrictions due to public health concerns; cigarette ads are largely prohibited on many platforms; exemptions exist for truthful packaging labeling and harm disclosures.
All parties—individuals and corporations—enjoy protection for commercial speech but face regulatory limits that must satisfy the Central Hudson framework.
Harassment, Online Speech, and Criminal Consequences
Michigan statute on harassment via electronic communications targets online conduct that terrorizes or intimidates a victim; required two or more noncontinuous acts with intent to cause fear or harm.
The statute demonstrates that even protected speech can have criminal consequences when it involves ongoing harassment, threats, or intimidation; context matters (domestic disputes, repeated messages).
The rule emphasizes time, place, and manner considerations in online and offline contexts; content itself may be protected, but the method and impact can lead to criminal liability.
The Takings Clause and Eminent Domain (Public Use, Just Compensation, Due Process)
Takings Clause in the Fifth Amendment of the U.S. Constitution and analogous protections in the Michigan constitution ensure private property can be taken for public use only with just compensation and due process.
Three core requirements for eminent domain:
Public use: the taking must be for a public use, such as roads, bridges, or public facilities.
Just compensation: property owners must be paid fair value; valuation disputes are common and central to eminent domain litigation.
Due process: notice and a fair procedure for condemnation and compensation must be provided; owners must be able to object and participate in the valuation process.
Illustrative example: constructing a new bridge that requires land adjacent to the bridge; the government condemns private property to facilitate the bridge project, with compensation and due process.
Fultown/General Motors case (illustrative historical sequence):
GM sought to condemn property in a neighborhood (Fulton Town) to build a plant; the government used eminent domain to acquire these parcels.
First, the circuit court and the Michigan Court of Appeals allowed condemnation for public use and economic development.
The Michigan Supreme Court ultimately deemed it permissible to condemn land for public use even if economic development is a goal (i.e., the economic value to the public, via taxes, justified the taking).
Thirty years later, a subsequent case involving a private strip mall redevelopment for a public park or community center reversed the approach: the Michigan Supreme Court held that economic development alone does not automatically satisfy public use if the land is transferred to a private entity for development. The court clarified that public use means a use by the public, not simply economic development advantages. This overturned the earlier precedent and established a stricter interpretation of public use for eminent domain.
Practical takeaway: eminent domain is permissible for public uses like a road, bridge, or public building, but transfers to private entities for private development (even for broader public benefits) may not qualify as public use under the later standard.
Judiciary, Elections, and State Constitutional Provisions
Michigan judiciary basics:
State supreme court justices and circuit/district judges are elected (in Michigan); vacancies can be filled by gubernatorial appointment for interim periods until the next election.
Federal judges are appointed, whereas many state judges are elected; this creates differences in selection, tenure, and accountability.
Controversies and constitutional debates:
Age-based limitations for judges (e.g., a provision that restricts reelection or age) have been litigated; federal courts have addressed whether such age-based limitations violate equal protection; generally, age-based restrictions on reelection can be permissible if there is a rational basis or legitimate state interest.
There is discussion about activist versus restrained judicial philosophy in interpreting constitutional provisions.
Constitutional rights in the state context:
First through Tenth Amendments, and corresponding provisions in the Michigan Constitution, protect individual rights against government action; rights against the government include speech, assembly, and other fundamental liberties.
The Michigan Constitution may afford stronger protections in some instances, and the interplay with federal constitutional rights is a recurring theme in state-federal constitutional analysis.
Free speech and civil liberties in schools and public spaces:
Free speech includes symbolic conduct and political speech; government can regulate time, place, and manner to ensure safety and order but must avoid overly broad restrictions that chill speech.
Dress codes, school policies, and private associations may restrict expression in certain contexts, but these must be balanced against constitutional rights.
Connections to Course Structures and Real-World Relevance
The discussion ties into foundational principles: federalism, limits on government power, and the protection of free speech and property rights.
Real-world relevance includes:
Advertising and marketing: understanding what can be advertised and how to structure messages within legal constraints (e.g., Central Hudson test).
Corporate communications: understanding when businesses have free speech rights and when those rights are limited (e.g., factual disclosures, regulatory filings, and internal documents).
Public policy and regulation: balancing public health, safety, and consumer protection with speech rights; evaluating government interests and tailoring regulations accordingly.
Eminent domain: evaluating public use, fair compensation, and due process; recognizing how evolving case law can change what counts as public use over time.
Key Formulas, Numbers, and Specific References (LaTeX)
Central Hudson test steps summarize: ext{Speech is protected if: (1) truthful and lawful; (2) substantial government interest; (3) directly advances that interest; (4) narrowly tailored.}
Harassment statute: two or more separate noncontinuous acts of unconsented messaging with intent to terrorize or harass; maximum penalty up to 5{,}000 (fines) or other penalties depending on the case.
Eminent domain three elements: public use, just compensation, due process.
Court decision formats: Central Hudson decision resulted in an 8{:}1 ruling in favor of the utility (for the described case), illustrating a robust application of the Central Hudson framework.
Assignments and Study Roadmap
MindTap assignments to cover chapters four, five, and six; complete progressively to reinforce understanding rather than delaying until just before exams.
Read ahead to chapter nine on AI negligence law; review student submissions for scenarios and consider multiple outcomes.
Review outlines posted in modules on the Constitution; revisit sections on commercial speech and the takings clause to solidify understanding for the exam.
Prepare to discuss the interplay between federal and state authorities, particularly with respect to interstate commerce, police powers, and the takings/public-use framework.
Examples and Real-World Scenarios to Think About
Drug advertising: proposed legislation requiring full disclosure of side effects; practical limitations in listing every side effect in short ads; implications for consumer protection and pharmaceutical marketing.
Time, place, and manner: local restrictions on political signs (e.g., placement near roads, duration around elections) to balance free speech with safety and aesthetics.
HOA contracts: individuals can waive some rights via contracts with HOAs, raising questions about enforcement, discrimination, and the balance between private agreements and public rights.
Online harassment: the line between free expression and criminal harassment; the importance of intent, repetition, and effect on the target; relevance to social media, forums, and private messaging.
Notes on Terminology and Concepts to Memorize
Supremacy Clause: federal law overrides state/local law in conflicts; federal statutes and treaties have supremacy over state laws.
Interstate Commerce Clause: broad power to regulate cross-border economic activities; the reach of this power is a central theme in federal regulation.
Tenth Amendment: reserved powers to the states; basis for state sovereignty and local control.
Police Powers: state-level authority to regulate health, safety, and welfare; sometimes creates a patchwork of local standards but can be harmonized by federal standards where appropriate.
Free Speech vs. Harassment: protected expression can become criminal when it morphs into threats, intimidation, or persistent harassment; the context and intent matter for criminal liability.
Commercial Speech vs. Political Speech: both have First Amendment protections; the Central Hudson framework governs commercial advertising; political speech often receives the highest protection but is still subject to time, place, and manner restrictions.
Eminent Domain vs. Public Use: public use can be broadly interpreted but has evolved to limit transfers to private entities for private economic development; the public-use standard is linked to the end use and public benefits rather than the mere presence of public funds.