Introduction and American Constitutionalism in Historical Perspective Introduction

advertising is now protected when true and legal

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advertising is now protected when true and legal

  • less protected than other areas:

    • other speech need note be true and legal, and here he might tolerate prior restraint and not apply overbreadth

  • Rehnquist dissent: the economic is subordinate to the political

  • Ohralik v. Ohio State Bar (1978) (Powell) and Primus (1978) (Powell)

    • can regulate ambulance chasing but not sending a solicitation letter (protected by freedom of association)

  • Central Hudson Gas v. Public Service (1980) (Powell)

    • overturned ban on public utility advertising

    • new test:

      • if 1) legal and 2) true, then

      • presumptively unconstitutional, unless

        • substantial government interest

        • and narrowly tailored regulation

    • Blackmun would simply say per se unconstitutional

  • Fox (1989) (Scalia)

    • can prohibit Tupperware parties on state campuses: narrowly tailored is not a least restrictive requirement

    Vice Exception?

      • Posadas (1986) (Rehnquist)

        • allowed PR law that prohibited casino advertising to Puerto Ricans

      • Rubin v. Coors (1995) (Thomas) and Liquormart (1996) (Stevens)

        • rejected notion of vice exception

        • Rubin: struck down reg banning alcohol content on label

          • appropriate state purpose but no rational relationship

        • Liquormart: struck down prohibition on alcohol advertising

          • analysis is getting close to least restrictive alternative

    8. Symbolic Speech

    • Origins of Concern about Symbolic Speech

      • religious strand: radical protestant conscience

      • scientific strand: criticize traditions by appealing to lived experience

      • modern skepticism about mind-body dualism

    • O’Brien and Content-Neutral Regulations

      • Stromberg (red flag), Barnette (flag salute), Brown v. Louisiana (public library sit-in)

      • U.S. v. O’Brien (1968) (Warren)

        • O’Brien burned his draft card and was charged under 1965 Amendment to Act that had already made non-possession illegal

        • O’Brien test for a content-neutral regulation of protected speech:

          • is statute within power of government?

          • substantial state interest?

          • interest unrelated to free expression (i.e., interest is in controlling action not speech)?

          • no more speech suppressive than necessary?

          • (unlike TPM, O’Brien does not have to be strictly content neutral)

        • he argues 65 amendment is not redundant because criminalizes burning others’ cards; ignores Congressional record

    • Flag-Desecration Cases

      • Street v. New York (1969) (Harlan)

        • convicted for burning flag on street corner after Meredith was killed

        • Harlan focused only on the words (not fighting words, not incitement to riot) and said unconstitutional as applied to D: cannot compel respect for the flag

      • Smith v. Goguen (1974) (Powell)

        • struck down MA law on vagueness grounds: “treat flag contemptuously”

      • Spence v. Washington (1974)

        • statute forbidding improper use of flag unconstitutional as applied to individual who put peace sign on flag because no risk that anyone would think that the state endorsed his viewpoint

      • Texas v. Johnson (1989) (Brennan)

        • finds that O’Brien does not apply to these facts because the state interest is aimed at the expressive conduct

        • this is at the core of protected speech because it is political, and preventing it would be a content-based restriction

    • Nude Dancing

      • Barnes v. Glen Theater (1991) (Rehnquist)

        • upheld Indiana statute requiring the wearing of pasties and a g-string during erotic dancing

        • applies O’Brien:

          • substantial state interest in morality; aimed at morality and not speech; and minimally restrictive

          • Souter would allow based on secondary effects, while Scalia says it is not speech at all

      • City of Erie v. Pap’s A.M. (2000) (O’Connor)

        • court abandons the morality state interest and focuses on secondary effects: the law is content neutral because aimed at the secondary effects of nude dancing

    9. Public Forum: Regulations of Time, Place, and Manner (pp. 1226-1272, 1280-85)

    • Public Forum Doctrine

      • being in a public forum is a necessary condition to any free speech analysis

      • Public Forum Test:

        • area traditionally open to the public

        • area not inconsistent with the purposes of the first amendment:

          • political speech

          • truth

          • moral autonomy of conscience and dissent

          • all weighed against the value of privacy

        • absence of adequate alternative fora

    Public Property

    Private Property

    mandatory public forum

    discretionary public forum

    some private property can be a public forum

    1. cannot close completely

    2. must be even-handed

    3. parks and streets, state capitol grounds, libraries, etc.

    1. even-handed: jails, military bases, public schools, airports, other public property

    2. non-evenhanded: city-owned bus, home mailbox, interschool mailbox

    company towns, shopping malls (reversed, but still valid in some cases)

    • Mandatory Public Fora

      • Permitting Cases

        • Massachusetts v. Davis (1895) (Holmes)

          • upheld conviction of preacher for speaking without a permit; suggested that could be unevenhanded

          • modern court has rejected this view

        • Saia v. New York (1948) (Douglas): standardless licensing

          • invalidated ordinance on its face that required permit to use amplification devices because it provided no standard to limit discretion on the previous restraint

          • also concerned that it is poor man’s newspaper

        • Cox v. New Hampshire (1941) (Hughes)

          • upheld conviction of Jehovah’s witnesses under non-discretionary licensing scheme

          • it was a neutral time, place, and manner restriction

      • Problem of Total Medium Bans

      • Schneider (1939) (Roberts)

          • invalidated ordinances barring distribution of all leaflets

          • goal of preventing litter could be achieved with narrower restriction

      • Martin v. Struthers (1943) (Black)

          • again invalidated an ordinance prohibiting a medium of communication: knocking on doors to pass out religious handbills

      • Kovacs v. Cooper (1949) (Reed)

        • upheld ordinance prohibiting use of loudspeaker to make raucous noise because it was not a “total ban”

        • seems to be a repudiation of Saia

      • City of Ladue v. Gilleo (1994) (Stevens)

        • invalidated ordinance banning posting of most signs to get rid of visual clutter; woman had put sign in her own window

        • Stevens essentially says this limits “too much” speech in an area where there are not adequate alternative fora

      • Watchtower Bible (2002) (Stevens)

        • permit requirement before going door to door simply inhibited too much speech regardless of the standard of review

    • Modern Time, Place and Manner Test in Mandatory Public Fora

      • Public Order and Safety: can regulate for this purpose but must be neutral

        • Cox v. Louisiana (1965) (Goldberg)

          • overturned conviction for blocking a sidewalk because the law was being applied in a discriminatory manner

          • can generally regulate sidewalks

        • Heffron v. ISKCON (1981) (White)

          • while state fair is a public forum, requirement of using a booth to distribute and sell material and solicit money is a neutral time, place and manner regulation

          • lower court had invalidated with regard to Krishnas on religious grounds, but ct. said can’t make exceptions

      • Aesthetics

        • Metromedia v. San Diego (1981) (White)

          • court recognized interest in limiting distracting displays but objected to the many content-based exceptions

          • invalidated statute with respect to noncommercial speech

        • Members of City Council v. Taxpayers for Vincent (1984) (Stevens)

          • upheld complete ban on signs on posts in a mandatory public forum as a neutral time, place, and manner regulation

          • says there are adequate alternative fora

          • Brennan concerned that these aesthetic judgments are subjective

        • Clark v. CCNV (1984) (White)

          • ordinance prohibiting camping in parks does not violate first amendment when applied to protesters in Lafayette Park

          • analyzes it both as symbolic speech under O’Brien and as neutral TPM (content neutral and leaves alternative fora)

      • Tranquility

        • Ward v. Rock Against Racism (1989) (Kennedy)

          • upheld requirement to use city-provided sound systems to control volume of concert in the park

          • majority held that O’Brien did not require least restrictive means, just narrowly tailored (promotes substantial interest that would be achieved less effectively without it)

      • Abortion

        • Frisby v. Schultz (1988) (O’Connor)

          • court upheld flat ban on focused picketing: content neutral, narrowly-tailored, leaves alternative fora)

        • Madsen v. Women’s Health (1994) (Rehnquist)

          • court upheld injunction buffer zone at front of clinic, restriction on noise levels, but struck down the images and the 300-foot zones around clinics and residences

          • applied a heightened Ward test because this was an injunction

        • Schenck v. Pro-Choice Network (1997) (Rehnquist)

          • allowed injunction fixed buffer zones but not floating buffer zones after applying standard from Madsen

        • Hill v. Colorado (2000) (Stevens)

          • upheld statute preventing approach within eight feet of person entering clinic

      • United States v. Grace (1983) (White)

        • struck down ban on signs and leaflets inside and in front of supreme court

        • no substantial state interest

    • Discretionary Public Fora

      • Libraries: Brown v. Louisiana (1966) (Fortas)

        • reversed convictions under breach of peace statute for sit-in at a library

        • found that it was a public forum: actions did not depart from normal function of the place

      • Jails: Adderley v. Florida (1966) (Black)

        • jails are not public fora:

          • not normally open to the public

          • purposes not consistent with 1st amendment

          • adequate alternative fora

      • Public Schools: Grayned v. Rockford (1972) (Marshall)

        • affirmed conviction for noise near a public school

        • can limit access to public schools so long as even-handed

        • example: Widmar v. Vincent—black armbands

      • Buses: Lehman v. Shaker Heights (1974) (Blackmun)

        • on buses, do not need to be even-handed: upheld rule against political advertising on buses because of captive audience problem

        • can be uneven-handed on buses

      • City Theaters: Southeastern Promotions (1975) (Blackmun)

        • found that city theater is a public forum and must be even-handed (case involving musical hair)

      • Military Bases: Greer v. Spock (1976) (Stewart)

        • military bases are not public fora, but can only deny access in even-handed manner

      • Airports: ISKCON v. Lee (1992)

        • found that airport is not a public forum, but then only allowed ban on solicitation of money

        • while they say not a public forum, the decision suggests that it is

    10. Rights of Access to the Forum

    • Private Property Cases

      • Marsh v. Alabama (1946): Company Town

        • Jehovah’s Witnesses had a right of access to distribute religious literature in a company-owned town under both public forum analysis and “public function” state action theory

        • it was traditionally open to the public, consistent with the purposes of the first amendment, and there are no adequate alternative fora

      • Shopping Malls

        • Amalgamated v. Logan Valley Plaza (1968) (Marshall)

          • state trespass law could not be used to enjoin peaceful union picketing of a supermarket in a shopping center

          • found it was a public forum: have to adopt the doctrine to the realities of modern life

        • Lloyd Corp. v. Tanner (1972) (Powell)

          • held that shopping center could apply ban on distribute of handbills to anti-war leafleters: distinguished Logan Valley and said that the activity here not related to the shopping center’s operations

          • Marshall’s dissent: this is a content-based distinction

        • Hudgens v. NLRB (1976) (Stewart)

          • overruled Logan Valley in a case involving labor picketing in front of a supermarket in a shopping center

    • Compelled Access Cases

      • Background

        • access requirements arise from a concern that diverse debate is not happening, but there is great hostility on the court to compelled access because of fears of state interference; generally only allowed regulation where scarcity or a monopoly

        • Different Approaches to the “Scarce” Media of Radio and Television

          • Britain: too important to leave to commerce; instead created independent agency funded by user fees; argument against it is elitism

          • US: fear that radio and television would be dominated by the state so made it commercial medium with thin regulatory overlay

            • decentralizes decision and makes it market-sensitive; problem is if you want to sell a lot you want the least offensive shows possible

      • Cases

        • Miami Herald v. Tornillo (1974) (Burger)

          • Classic View: held Florida’s right of reply law unconstitutional; concern about the possible chilling effect—papers won’t print controversial speech because it might require giving space to reply

            • rejected idea that 1st amendment should be concerned about diverse debate when you have the monopoly power of private parties

        • Pruneyard v. Robins (1980) (Rehnquist)

          • rejected shopping center’s challenge to California’s interpretation of its own constitution finding a shopping center to be a public forum

          • shopping center claimed it was compelled speech

        • Pacific Gas (1986) (Powell)

          • found requirement that PG&E allow advocacy group to use space in its bills unconstitutional

          • Rehnquist, White and Stevens: doesn’t believe in extending freedom of conscience to corporations

        • Hurley v. GLIB (1995) (Souter)

          • struck down compelled access requirement for gay group that wanted to participate in St. Patrick’s Day Parade

          • state courts had found the parade to be a public accommodation

      • Differential Regulation of Broadcast Media

        • Red Lion Broadcasting v. FCC (1969) (White)

          • held that “fairness doctrine” was constitutional because tv is a scarce and heavily regulated medium

          • FCC itself later got rid of fairness doctrine

        • Turner v. FCC (1994) (Kennedy)

          • must-carry obligation for cable media is constitutional; applied usual, not heightened scrutiny and treated it as a time, place, and manner regulation

          • but, also refused to extend Red Lion to cable tv context but it is not a limited medium

        • CBS v. DNC (1973) (Burger)

          • broadcasters are not constitutionally required to show political ads

        • CBS v. FCC (1981)

          • FCC could require stations by statute to sell advertising space to political candidates

        • Reno v. ACLU (1997) (Stevens)

          • Red Lion does not extend to the internet: it is not a limited medium

    11. Government and the Media: Of Censorship and Gag Orders

    • Background

    Protected Speech

    Prior Restraint Cases

    Criminal Prosecution after the Fact





    Cox: it is a neutral time, place, and manner regulation

    Lovell, Saia, Kunz: too likely to be abused in a content-based way

    Feiner (probably not good law anymore)

    Cantwell, Edwards

    • Prior Restraint Cases

      • Theory:

        • may be easier to restrict speech ahead of time than for officials to go through process of punishing after the fact

        • censors have professional bias in favor of censorship

        • censors offer less procedural safeguards

        • speech suppressed in advance never reaches the marketplace of ideas at all

        • with speech suppressed in advance will never have evidence of how great its harms would be

      • Lovell v. Griffin (1938) (Hughes) (Licensing)

        • struck down law requiring obtaining permission from city manager to pass out any leaflets (excessive discretion, and getting rid of licensing as one of most important aspects of free speech)

      • Lakewood v. Plain Dealer Publishing Co. (1988) (Brennan)

        • struck down law restricting placement of newspaper racks: concerns about encouraging self-censorship and about difficulty of identifying and correcting content-based censorship after the fact

      • Freedman v. Maryland (1965) (Brennan)

        • licensing scheme for obscenity in movies: even in the area of unprotected speech (obscenity) there are strict procedural requirements for licensing:

          • burden on censor, immediate judicial review, very brief prior restraint

      • bunch of other little cases

      • Injunctions

          • struck down law allowing abatement of “defamatory” newspapers as a public nuisance

            • majority concerned about preventing criticism of public officials (and after Sullivan could not even recover in libel)

            • says would allow in several cases:

              • troop movements

              • obscenity: dead after Freedman

              • incitement to overthrow the government: dead after 1960s cases

          • dissent: this is a decision made by federal judiciary and therefore affords more procedural safeguards

        • Walker v. Birmingham (1967) (Stewart)

          • cannot defend against contempt charges for violation of an injunction by arguing that injunction was unconstitutional

          • argument for applying same prior restraint concerns to judicial injunctions

          • (see also Poulos v. New Hampshire: in order to bring an as applied challenge to a law must not actually act without a license before challenging)

        • New York Times v. United States (Pentagon Papers Case) (1971)

          • Black and Douglas: Black is absolutist, Douglas also very concerned that Espionage Act would be inapplicable here because it means Congress would not ratify this judgment

          • Brennan: can only apply prior restraint to troop movements and nuclear secrets

          • Stewart, White: note that there could be a criminal prosecution of the leak after the fact

          • Marshall: emphasizes separation of powers concern—in this case the conflict between the president and the judiciary is resolved by the First Amendment

          • Dissenters: there should be great deference in the area of foreign policy

        • United States v. Progressive, Inc. (1979)
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