Introduction and American Constitutionalism in Historical Perspective Introduction



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Overbreadth Cases

  • Aptheker v. Secretary of State (1964)

    • struck down statute denying passports to Communists as overbroad

  • United States v. Robel (1967)

    • statute denying right to work on defense facilities to Communists struck down as overbroad

  • Broadrick v. Oklahoma (1973) (White): ‘substantiality’ limitation

    • the overbreadth must be substantial, especially when aimed at conduct and not speech

    • challenge to statute prohibiting some political activity by state employees

  • Houston v. Hill (1987) (Brennan): doctrine remains robust

    • statute prohibiting interrupting a policeman by “verbal challenge during an investigation” overbroad

  • Board of Airport Commissioners v. Jews for Jesus (1987) (O’Connor)

    • struck down statute banning all free speech in airport as overbroad


3. Offensive Speech in Public Places (“Fighting Words”) (1038-1054, 1074-94)

  • Action v. Speech

    • “pure” action is not protected

  • Unprotected v. Protected Speech

    • unprotected speech:

      • fighting words: narrowed substantially

      • libel/defamation/privacy: no longer unprotected in most cases

      • obscenity: narrowed substantially

      • commercial speech: now protected

      • even distinction between action and speech contested: “symbolic speech”

  • Fighting Words” Cases

    • Cantwell v. Connecticut (1940) (Roberts)

      • invalidated breach of the peace conviction of Jehovah’s Witness playing a phonograph

      • offense to others is not sufficient to justify charge in the area of protected (religious) speech absent a personal attack on an individual

    • Chaplinsky v. New Hampshire: “fighting words” (1942) (Murphy)

      • says that fighting words like “damned Fascist” and “goddamned racketeer” (in this case aimed at police officer) are not protected speech because they are likely to cause a normal person to respond with violence

      • when directed at an individual, the “very utterance inflicts injury”

    • Narrowing of Fighting Words:

      • Gooding v. Wilson (1972) (Brennan)

        • held that Georgia statute prohibiting “opprobrious words tending to cause breach of the peace” was overbroad

        • had been applied to man at protest saying “I’ll kill you”

      • Motherfucker Cases: Rosenfeld, Lewis, Brown

        • swear words at school board meeting, and in latter cases aimed at police officers not “fighting words”—statutes prohibiting indecent and offensive language in public were overbroad

      • Texas v. Johnson (1989) (Brennan)

        • flag-burning does not fall within the exception for fighting words

      • Cohen (“Fuck the Draft” Case) (Harlan)

        • using as-applied analysis, strikes down disturbing the peace conviction for fuck the draft shirt

        • it is not fighting words, action, obscenity, or incitement to riot and law is not aimed at only the courtroom context; it is thus protected speech

        • fact that there were unwilling observers is irrelevant here: in public forum must tolerate some offense

        • “fuck”cannot be excised because:

          • principle is boundless

          • words convey not just ideas but emotions

          • forbidding words may end in forbidding ideas

    • Hostile Audiences

      • Terminiello v. Chicago (1949) (Douglas)

        • overturned breach of peace conviction of speaker who denounced various racial and political groups because trial judge gave instruction to jury that allowed conviction for speech that stirs people up or invites dispute

        • Douglas: “a function of free speech…is to invite dispute” (R.: “the more offensive the better”)

      • Feiner v. New York (1951) (Vinson)

        • Feiner spoke on street corner and began to get hostile reaction from crowd so police moved to stop him and he refused

        • Vinson upheld disorderly conduct conviction: while it is protected speech, there was clear and present danger (likelihood may have been low, but harm was high)

        • Black: it is job of police to protect the speaker, not the hecklers

      • Edwards v. South Carolina (1963) (Stewart)

        • breach of peace case against protestors on capitol grounds who drew crowd of onlookers

        • distinguished from Feiner: now clear and present danger is stricter

      • Cox v. Louisiana (1965) (Goldberg)

        • black demonstrators protesting across from jail arrested because claimed they riled up white crowd across the street

        • distinguished from Feiner and overturned conviction for disturbing the peace

      • Gregory v. Chicago (1969) (Warren)

        • 100 demonstrators gathered a crowd of 1000 onlookers

        • overturned conviction for disorderly conduct—protest was peaceful expression of speech

      • Kunz v. New York (1951) (Vinson)

        • overturned conviction under permit system that made it unlawful to denounce any religious belief: impermissible content-based prior restraint

    • Hate Speech

Arguments for ways to regulate hate speech:

  1. group libel under Beauharnais

  2. fighting words under Chaplinksy definition

  3. new category of unprotected speech

  4. compelling interest in equality trumps speech


Arguments against:

  1. since Chaplinsky, limits on regulation of words based on their emotive impact

  2. inefficacy: racist speech is only a symptom of racism

      • National Socialist Party v. Skokie, Smith v. Collin (1977)

        • in National Socialist Party, overturned denial of stay of injunction because there must be strict safeguards in 1st amendment area, and in Smith v. Collin held permit system based on content invalid

        • seems to discredit Beauharnais

        • Note: allowing tort actions for emotional distress might solve the problem, but might also chill speech

      • University Codes

        • University of Michigan code was held overbroad and vague: “stigmatizing or victimizing”

        • Stanford tried much stricter standard: it would have to be fighting words directed at individual which “inflict injury” or tend to cause “immediate breach of peace”—also overturned by California courts

      • R.A.V. v. City of St. Paul (1992) (Scalia)

        • cross-burning case: convicted under statute preventing placement of object causing anger based on insulting race, religion or gender

        • Scalia introduces new distinction within unprotected speech: says cannot have content-based discrimination even within unprotected speech unless:

          • based on reason entire class is unprotected

          • secondary effects

          • the content-based restriction included within larger statute aimed at conduct (Title VII exception)

          • no realistic possibility of content discrimination

        • Concurrence: would strike down as overbroad

      • Wisconsin v. Mitchell (1993) (Rehnquist)—Hate Crimes Case

        • rejected view that cannot regulate conduct based solely on viewpoint of actor

        • using race-based motive as aggravating factor permissible: motive is often considered and here there are secondary effects

      • Virginia v. Black (2003) (O’Connor)

        • can ban cross-burning with an intent to intimidate, but “prima facie” intent to intimidate clause renders it unconstitutional

        • no RAV problem because doesn’t condemn based on motive



4. Unprotected Speech: Libel and Privacy

  • Beauharnais and Group Libel

Group libel = slurs on an entire ethnic or religious group that that lowers them in esteem of community: insults to group identity

    • Beauharnais v. Illinois (1952) (Frankfurter)

      • sustained Illinois group libel law because individual and group libel have same results: no longer good law

      • Dissents (Black): this is discussion on matter of public concern and is therefore at core of free speech

    • Group v. Individual Libel: why more concerned about individual libel?

      • group libel: 1) based on evaluative disagreements and mistaken conceptions, not false facts, 2) can be rebutted in normal course of debate

      • individual libel: 1) false facts, 2) not rebuttable because private individual

      • Theories of Free Speech and Group Libel

        • utilitarian: does more harm than good to ban it

        • political process: this is speech about public concern

        • equal liberty of conscience: as a matter of conscience, it is job of people to protest it; should not interfere with process of self-definition

  • Individual Libel

    • Elements of Tort of Defamation/Slander

      • publication to a third party (strict liability)

      • false information

      • tendency to disparage in esteem of reference group

        • on its face, or

        • inferentially (innuendo)

      • about an individual

        • on its face, or

        • inferentially (colloquial)

      • causation

        • special damages: actual proof of harm

        • general damages: presumed damages based on libel per se

          • unchastity

          • criminality

          • fraud or dishonesty in business

      • defense: truth

    • New York Times v. Sullivan (1964) (Brennan)

      • sheriff recovered $500,000 based on AL law making libel per se anything that injures someone’s reputation

      • political ad in NY Times mistakenly asserted arrested seven times, not four

      • Decision:

        • theory: despite false facts, free speech issues are raised (Meiklejohn, utilitarian, conscientious dissent)

        • history: this looks like A & S Act

      • no strict liability: if public official and media defendant, must show knowledge or recklessness (Sullivan mens rea)

      • must be false

      • no colloquium (cannot show it is about him through extrinsic facts)

      • no general or punitive damages

Note: he focuses here on character of P and D; could have focused on nature of issue, or simply limited damages or required right of reply

Public Officials/Figures v. Matter of Public Concern

    • Public Figures

      • Curtis Publishing and Associated Press: expanded to public figures

      • Firestone, Hutchinson, Wolston: narrowed public figure—must voluntarily thrust oneself into the limelight

    • Rosenbloom v. Metromedia (1971) (Brennan)

      • libel action against distributor of nudist magazines: tried to move the standard to focus on matters of public concern and not public figures

    • Gertz v. Robert Welch, Inc. (1974) (Powell)

      • rejected Rosenbloom: private person suing media defendant (even if newsworthy topic) does not have to meet Sullivan mens rea

      • there must be negligence, no presumed damages, and punitive damages only with Sullivan mens rea

    • Dun & Bradstreet v. Greenmoss (1985) (Powell): private party v. private party

      • allowed conviction based on common law libel between private parties to stand

    • Hustler Magazine v. Falwell (1988)

      • had to show actual malice to recover for satire in Hustler

      • there were no facts here to challenge

  • Privacy

Privacy must almost always yield to free speech. (probably because of true facts, but arguably should be more protective: can always revive reputation, but can’t restore your privacy)

    • Tort of Violation of Privacy

      • Brandeis, Right to Privacy (1890): core of inviolable right to moral personality

      • difference from libel is facts are true

      • Four Forms of Tort of Violation of Privacy

        • misappropriation: use of someone’s name or picture in advertising

          • defense: newsworthiness

        • public disclosure of private facts: publication of private facts not of legitimate public concern which are highly offensive to individual

          • defense: public records, newsworthiness

        • false light: reckless publication of facts that put individual in false light and are highly offensive

          • defense: truth

          • this tort is closest to libel defamation

        • intrusion: 1) intentionally 2) intrudes into 3) solitary/private life, 4) in highly offensive way

          • no defense

    • Olmsted: bugging case—Brandeis was in dissent, but his view soon became law

    • Time, Inc. v. Hill (1967) (Brennan)

      • published article about former hostages depicting them in false light

      • Sullivan mens rea should be applicable to false light privacy actions—newsworthy person cannot recover when subject of fictitious reports unless can show knowledge or recklessness

      • Brennan suggests that newsworthiness defense should apply even in a true privacy action (i.e., true facts). Does this survive Gertz?

    • Cox Broadcasting Corp. v. Cohn (1975) (White): rape victim name disclosure

      • in “true” privacy case, public records was a defense

    • Bartnicki v. Vopper (2001) (Stevens)

      • illegal recording of union organizers publicized by newspaper

      • newspaper not responsible for the illegal activity and privacy must yield to free speech

    • Zacchini v. Scripps-Howard (1977) (White)

      • cannonball case: distinguished from Hill because it was a right of publicity case; could recover when his act was broadcast


5. Unprotected Speech: Obscenity

  • Background of Obscenity Law

  • Roth and the Traditional Test

    • Roth v. U.S. (1957) (Brennan)

      • upheld federal and state obscenity laws: obscenity not within realm of protected speech

      • obscenity is material that appeals to a prurient interest

        • criticisms: limiting protection to “ideas” may exclude art and many things of social value that are erotic

          • why not apply obscene to other things?

        • Harlan’s dissent: should only focus on hard-core pornography

    • Memoirs v. Massachusetts (1966)

      • Test:

        • appeals to a prurient interest

        • offensive to contemporary community standards (national standards?)

        • utterly without redeeming social value

    • Redrup Reversals

      • confusion about the standard leads to per curiam reversals where at least 5 members of the court applying their own standards find it not obscene

    • Stanley and Reidel

      • Stanley: private possession of obscene material is not a crime

      • Reidel: distribution still criminal

  • Modern Cases

    • Miller v. California (1973) (Burger, Brennan dissent): Miller standard

      • average person applying local community standards would find that it appeals to prurient interest

      • lacks serious social value (weakened from utterly unredeeming)

      • vivid depiction of “turgid genitals coming to climax”

    • Paris Adult Theatre I v. Slaton (1973) (Burger, Brennan dissent)

      • no immunity for obscene films shown only to consenting adults (Miller was unwilling audience)

      • turns privacy on its head: it invades privacy of those who don’t like obscenity just to know someone else is looking at it

    • Jenkins v. Georgia (1974) (Rehnquist)

      • unanimously reversed conviction for showing Carnal Knowledge because no actual depiction of genitals

      • local views must still be applied within bounds of Miller

  • Mackinnon Proposal

    • proposal for civil statutes where if a man violates a woman’s rights and he has been exposed to these images can sue maker for damages

    • based on view that pornography is a vehicle for subordination of women

    • doctrinal argument relied heavily on group libel – Beauharnais

    • in practice these statutes have been used to suppress deviant sex (see Canada)

    • proposal adopted in Indianapolis:

      • American Booksellers Ass’n v. Hudnut

        • finds that it is impermissible content discrimination

        • even if it is true that it subordinates women, the danger must be imminent

        • dominance of truth is not a necessary condition of free speech


6. Offensive Speech in Public Places: Nudity, Seven Bad Words (pp. 1126-58)

  • Public v. Private Fora

    • public: prohibitions will almost always be struck down (Schad), but regulation often allowed (Mini Theatres, Pacifica)

    • private: can prohibit???

  • Nudity and Indecency in Public Fora: absolute bans impermissble

    • Ernoznik v. Jacksonville (1975) (Powell)

      • found law prohibiting drive-in movie theaters visible from street from showing nudity facially invalid

      • nudity is not obscene and is the purpose is to avoid distracting material it is under and overinclusive

    • Schad v. Mount Ephraim (1981) (White)

      • nude dancing is protected speech and cannot be altogether banned (invalidated ordinance excluding all live entertainment, including nude dancing)

    • Erogenous Zoning” ok because regulation

      • Young v. American Mini Theatres (1976) (Stevens)

        • “adult movies” constitute lower value speech and can be regulated through scatter zoning because of their secondary effects

        • Powell analyzes it as time, place, and manner, (O’Brien balancing) while dissenters argue that it is impermissible content-based regulation

      • Renton v. Playtime Theatres (1986) (Rehnquist)

        • adopts Powell’s approach and finds can use concentrated zoning as a type of time, place, and manner regulation

        • moves focus to secondary effects

  • Indecent Speech in Media

    • FCC v. Pacifica Foundation (1978) (Stevens)

      • FCC has power to regulate broadcasts that are indecent but not obscene

      • played George Carlin monologue with offensive language; FCC issued Declaratory Order

      • Stevens again suggests this is lower value speech, while Powell says it is simply permissible time, place and manner reg

      • they also distinguish radio because it comes into your home

      • Brennan dissent: radio and television are the closest things to a true public forum in US and should not reduce them all to what is appropriate for a child

Limitations on Captive-Audience Doctrine

    • Rowan v. U.S. Post Office (1970) (Burger)

      • individuals may ask to be removed from pornographer mailing list

    • Con Ed v. PSC (1980) (Powell)

      • distinguished from Pacifica: mailbox does not create the same kind of captive audience as radio

    • Sable Communications v. FCC (1989) (White)

      • prohibition on obscene message services where can call to listen

      • distinguished from Pacifica: total prohibition and no captive audience (have to engage in affirmative acts

    • Cable: Denver Area v. FCC (1996) (Kennedy)

      • 10(a): permission for cable operators to prohibit material on leased or public access channels constitutional—permissive and not mandatory

      • 10(b): imposed blocking requirement unconstitutional

      • 10(c): FCC can regulate sexually explicit conduct—unconstitutional

      • Kennedy would have struck down all three (no lower value speech)

      • Breyer: allowed 10(a) because influenced by privacy notion from Pacifica

    • Internet: Reno v. American Civil Liberties Union (1997) (Stevens)

      • strikes down provisions of Communications Decency Act limiting indecent material on internet

      • distinguishes from Pacifica: this is total ban and the forum is different:

        • radio is scarce and tolerates a lot of regulation while internet is the true public forum

    • Ashcroft v. ACLU I and II

      • I held that use of community standards did not automatically invalidate Child Online Protection Act (COPA)

      • II affirmed issuance of preliminary injunction because government did not show that the less restrictive alternatives are less effective than COPA


7. Unprotected Speech: Advertising

find the cases way back on solicitation—Martin

  • History: Advertising as Unprotected Speech

    • Valentine: advertising is unprotected speech

    • Pittsburgh Press Co. v. Pittsburgh Human Relations (1973)

      • advertising is unprotected: can require newspaper not to run ads in gender-designated columns



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