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Ben Gitlow was convicted of criminal anarchy for printing material urging labor unrest
Rule of Law. State statutes are unconstitutional if they are arbitrary and unreasonable attempts to exercise authority vested in the state to protect public interests.
Issue. Did the statute prohibiting such activity deprive the Petitioner of his First Amendment constitutional right to freedom of expression?
Holding: No. The current statute is not an unreasonable or arbitrary means of exercising the state’s police power. It is within the state’s power to prevent the disturbance of the peace and regulate speech that may incite crime even if the threat of such action is not immediate. |
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Facts: The Saturday Press (the Press) published attacks on local officials. The Press claimed that the chief of police had “illicit relations with gangsters."
Issue. Whether a statute authorizing such proceedings is consistent with the conception of the liberty of the press as historically conceived and guaranteed?
Held. No (this statute violates Near’s 1st Amendment rights). Judgment of the state court reversed. The fact that the liberty of press may be abused by miscreant purveyors of scandal does not effect the requirement that the press has immunity from previous restraints when it deals with official misconduct.
Synopsis of Rule of Law. The freedom of press is essential to the nature of a free state but that freedom may be restricted by the government in certain situations. |
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Facts. The Plaintiff sued the Defendant because they ruined his wharf by diverting streams and making water too shallow for his boats. The Plaintiff claimed that the city took his property without just compensation and in violation of the Takings Clause of the Fifth Amendment of the Constitution
Synopsis of Rule of Law. The Bill of Rights does not apply to state and local government, only to Federal government.
Issue: Does the Fifth Amendment of the Constitution apply to local government?
Holding: No. The framers intended the Amendments of the United States Constitution (Constitution) to apply only to the Federal government and not the states. Each state formulated their own constitution, so the Amendments did not apply to them. |
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| Central Hudson v. PSC of NY |
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Statement of the Facts: Central Hudson Gas & Electric Corp. is appealing to the United States Supreme Court in regards to a regulation (a ban on electric utility advertising) set by the Public Service Commission of New York. Central Hudson Gas & Electric Corp. believes the regulation violates its First and Fourteenth Amendment rights to freedom of speech through promotional advertising.
Issue(s): Does the regulation, set by the Public Service Commission of New York, of suppressed speech and banning of promotional advertising by electric utility companies infringe on Central Hudson Gas & Electric Corp’s First and Fourteenth Amendment rights to freedom of speech via promotional advertising?
Holding: Yes, the regulation of suppressed speech and banning of promotional advertising by electric utility companies violates the First and Fourteenth Amendment rights of Central Hudson Gas & Electric Corp.
Rule of Law: To determine when restrictions on commercial speech violated the First Amendment, a four-part analysis was developed. The four-part analysis revealed that for commercial speech to come within the provision of the First Amendment, it at least must concern lawful activity and not be misleading. Then, one must ask whether the asserted governmental interest is substantial. If both inquiries have positive answers, one must determine whether the regulation directly advances the governmental interest asserted and whether it’s not more extensive than necessary to serve that interest. |
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Facts. The Act vested very broad powers in the Commission for administering the Act, including not only recordkeeping, disclosure, investigative functions, rulemaking and adjudicative powers, but also enforcement powers to institute a civil action for violations of the Act. With respect to four of the six voting members, neither the President, the head of any department, nor the Judiciary had any voice in their selection. The Appellants challenged the selection process, arguing that the Appointment Clause provides the exclusive method by which those charged with executing the laws of the United States may be chosen. Appellants further claimed that, if Congress retained the power to appoint, the members of the Commission could not discharge those functions which can only be performed by Officers of the United States under the separation of powers doctrine. The Court of Appeals held that the Necessary and Proper Clause of the Constitution gave Congress the authority to establish the Commission and appoint its members.
Issue: Were the powers of the Act (FECA) vesting in the Commission the primary responsibility for conducting civil litigation in the courts constitutional?
Rule of Law. Article II, Section:2, cl. 2, of the Constitution of the United States, the Appointment Clause, provides: “The President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Department.”
Held. No. The provisions of the Act which vested in the Commission primary responsibilities for conducting civil litigation in the courts of United States for vindicating public rights violated Article II, Section:2, cl. 2, of the Constitution. Those administrative functions may only be performed by persons who are Officers of the United States. |
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| FEC v. National Conservative Political Action Committee |
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Facts: Congress amended the Election Campaign Act of 1971 to regulate overall campaign spending. One component was to create the Federal Election Commission. Congress gave the Commission a significant amount of executor power for administering the broad provisions of the Act. The Commission also had 6 voting members, four of whom were not to be appointed by either the Judicial or Executive Branches. This implied that those four members were exclusively appointed by the legislature. Plaintiffs argued that the Appointment Clause of the constitution provides the only proper method for selecting appointees. Moreover, Congress did not have the authority to discharge the four appointees.
Issue: Whether the exclusively legislative appointment process for the FEC was an unconstitutional violation of the separation of powers doctrine.
Analysis/Holding: Yes, appointment provisions of the Act are invalid. The constitution proscribes a process for appointments. These appointees are called “officers of the united states.” They are to have some formal or informal appointment via the executive branch. For the appointments to be proper, appointees under the Act could only perform duties that are specifically related to the proscribed functions of Congress. Their duties could not relate to the execution of laws, nor the administration of laws. Therefore, the duties proscribed to the appointees under the Act were unconstitutional as was their appointment process.
Supreme Court of the United States upheld a federal law which set limits on campaign contributions. The court also ruled candidates can give unlimited amounts of money to their own campaigns.
look at pg 81 in APR book (says something different) - says restricting contributions to candidates was constitutional, but it struck down provisions of FECA that limited the amounts candidates could spend (expenditures) and the total spent on behalf of a candidate by groups or org’s working independently of the candidate. |
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| First National Bank of Boston v. Belotti |
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Facts:The First National Bank of Boston (Petitioner) is prohibited by state statute from spending money “for the purpose of influencing the vote on any question that does not affect the corporation directly.” Petitioner wanted to publicize a view of a constitutional amendment that would allow state legislation to impose graduated tax on income of individuals.
Issue: Is the state regulation of corporate speech constitutional?
Holding: No. The Court reversed the state supreme court. It is unconstitutional to restrict corporate speech to items that are “materially affecting” its business. Violates 1st amendment rights
Synopsis of Rule of Law: The government may not restrict the topics of speech for corporations. |
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| Austin v. Michigan Chamber |
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Facts: The Appellee, the Michigan Chamber of Commerce (Appellee), possessed a segregated political fund, but wished to use money from its general treasury fund to place a political advertisement. The Appellee brought suit in District Court, seeking injunctive relief against Michigan’s statutory scheme, arguing that the restriction of expenditures was facially unconstitutional. This case raises the issue of the constitutionality of a Michigan Statute, which prohibits corporate political expenditures, with the exception of those expenditures made from a segregated fund.
Issue: This case considers whether Michigan’s restrictions on corporate political expenditures can be constitutionally applied to the Appellee
Holding: The court held that the statutory scheme provided a means for the Appellee to express itself politically and thus there was no abrogation (abolishment) of Appellee’s rights in requiring it to follow the statute. the Michigan Campaign Finance Act, which prohibited corporations from using treasury money to support or oppose candidates in elections, did not violate the First and Fourteenth Amendments. The Court upheld the restriction on corporate speech "Corporate wealth can unfairly influence elections"), and the Michigan law still allowed the corporation to make contributions from a segregated fund.
Synopsis of Rule of Law: When a State seeks to regulate corporate political expenditures, it is not in abrogation (abolishment) of the corporation’s First Amendment constitutional rights, if the state sets guidelines regarding the origin of the funds. |
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Facts: The City of Pittsburgh enacted the Ordinance, which prohibited newspapers from sex-designating “help-wanted” ads, except in the limited case wherein the employer or advertiser is free to make a hiring decision solely based on sex. The Petitioner, the Pittsburgh Press Co(wanted to use sex discrimination in its ads). (Petitioner), sought relief alleging the Ordinance was, facially, discriminatory against its editorial privilege and First Amendment freedoms associated with the press. The Supreme Court of the United States (Supreme Court) granted certiorari to consider Petitioner’s allegations.
Issue: This case considers whether the First Amendment freedom of the press extends to the discretion of editors when dealing with commercial speech, which is otherwise regulated by the Ordinance.
Holding:(ruled against Pittsburgh Press) Affirmed. Petitioner’s argument that the decision of how to place “help-wanted” ads is editorial in nature and thus is elevated from the level of commercial speech, was unpersuasive. The Supreme Court held that, regardless of Editorial license, discrimination in employment is illegal commercial activity under the guidelines of the Ordinance and as such it should be avoided, even to the minute level proscribed by the placement of “help-wanted” ads. Supreme Court which upheld an ordinance enacted in Pittsburgh that forbids sex-designated classified advertising for job opportunities, against a claim by the parent company of the Pittsburgh Press that the ordinance violated its First Amendment rights.
Synopsis of Rule of Law: Commercial speech is not constitutionally protected, even when it is included in a newspaper. |
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Facts: A Rhode Island law banned advertisement of the price of alcoholic beverages in any manner except by tags or signs inside liquor stores. The state courts had several times upheld the law, finding that it reasonably served the state goal of promoting temperance. Two high-volume liquor retailers challenged the law under the free speech clause in federal court. The Rhode Island Liquor Stores Association intervened on behalf of the state. The District Court invalidated the law and the Court of Appeals reversed. The Supreme Court unanimously reversed, but it was divided into several camps on the reasoning.
Issue: Whether the Rhode Island law banning the advertising of liquor prices except within a liquor store is constitutional?
Holding: No. Judgment of the Court of Appeals reversed. Bans that target truthful, non-misleading commercial messages rarely protect consumers from the harms of deception and overreaching. Instead, bans against truthful, non-misleading commercial speech usually rest solely on the offensive assumption that the public will respond “irrationally” to the truth. Therefore, the Rhode Island law banning the advertising of liquor prices except within a liquor store is unconstitutional. All attempts to dissuade legal choices by citizens keeping them ignorant are impermissible.This case should be resolved more narrowly.
Synopsis of Rule of Law: When a state regulates commercial messages to protect consumers from misleading, deceptive or aggressive sales practices, or requires the disclosure of beneficial consumer information, the purpose of its regulation is consistent with reasons for according less than full constitutional protection to commercial speech and therefore justifies less than strict review. However, when a state entirely prohibits the dissemination of truthful, non-misleading commercial messages, for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the First Amendment of the Constitution generally demands. |
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| Bolger v Young (makes contraceptives) |
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Facts: The Federal code prohibits unsolicited advertisements for contraceptives to be mailed. The Respondent manufactures a variety of contraceptives and usually sells to distributors. But, now it wants to send an advertising brochure to its regular customers, plus members of the public in general. Title 39 U.S.C. §3001(e)(2) prohibits unsolicited mailing of information advertising contraceptives. Youngs Drug Products Corporation (YDPC) (plaintiff) manufactured, sold, and distributed contraceptives. In addition to marketing its products to wholesalers and retailers, YDPC started an advertising campaign of mailing unsolicited advertisements for contraceptives and informational pamphlets discussing contraceptives to individual members of the public. The Postal Service notified YDPC that its mailings would violate §3001(e)(2), and YDPC brought suit in federal district court against Bolger (defendant who thinks these ads have no protection), a postal service official, seeking to enjoin enforcement of the statute. The district court held that the statute violated the First Amendment, and Bolger appealed to the United States Supreme Court. Appellee then brought an action for declaratory and injunctive relief in Federal District Court, which held that the statute, as applied to the proposed mailings, violated the First Amendment. Held: As applied to appellee's proposed mailings, 3001(e)(2) is unconstitutional. Pp. 64-75. bc it interferes with educating the young on contraceptives.
Issue: Is this advertisement commercial speech
Holding: Yes. All of the mailings are commercial speech.
Synopsis of Rule of Law: Commercial speech does no more than propose a commercial transaction.
The Court found that there are two areas in which the government can regulate commercial speech:
If the speech promotes illegal acts or it is false, deceptive, or misleading, or
If there is a substantial government interest.
The Postal Service argued that there was a substantial government interest in not offending people who didn’t want the mailings, and helping parents keep their kids from learning about birth control. However, the Court found that neither of these reasons was compelling enough to justify the law. |
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Facts: 1998 Mass. and 40 other states settled tobacco claims
with manufacturers. MA enacted consumer protection Regs restricting Tobacco Advertising and Sales Practices to stop recruitment of children as new customers. The Regs apply to a broader scope than the settlement and reach Advertising, Sales Practices, and members of tobacco industry not covered by settlement. Restrict outdoor Advertising, Pt of Sale Ads, Retail Sales Transactions, Mail Transactions, promotions, and sampling and labels for cigars in areas (within 1,000 feet of schools and playgrounds) where kids can see them.
Issue(s): Whether regulations targeting specific cigarette advertising and sales practices violate the 1st Amendment?
Holding: Yes, Atty Gen failed to show outdoor ad Regs were no more extensive than necessary to advance ST int. Pt of Sale Reg fail both 3 and 4 prongs. |
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Facts: Virginia will charge a licensed pharmacist of being unprofessional if he advertises the amount he charges for prescription drugs. Drug prices vary greatly (up to 650%) by location. Therefore, the Respondent advocates for disclosure of the prices of drugs.
Issue: Is “commercial speech” protected by the First Amendment?
Holding: Yes. But, the First Amendment does not prevent the state from regulating advertisements. A state may not completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information’s effect upon its disseminators and its recipients. As a result the decision of the lower court is affirmed and the law remains invalid. United States Supreme Court held that a state could not limit pharmacists’ right to provide information about prescription drug prices
Synopsis of Rule of Law: Commercial speech is a form of protected speech that can be regulated to protect the public from deceptive or misleading information. It is the content of the communication, rather than the speaker’s commercial or profit motivation that is determinative. If there is a kind of commercial speech that lacks all First Amendment protection it must be distinguished by its content. United States Supreme Court held that a state could not limit pharmacists’ right to provide information about prescription drug prices |
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Bigelow placed ad in his newspaper about how women could get abortions (done in NY). but abortions, and publications about it, were illegal at this time in VA. VA fined him $500. he says this violated his 1st amendment rights. Supreme court agreed and said from now on, a court can’t escape assessing 1st amendment interests at stake and weighing it against the public interest served by the government regulation
The Court held that the Virginia law infringed upon Bigelow's First Amendment rights and violated the Constitution. Citing prior holdings such as New York Times v. Sullivan (1964), Justice Blackmun denied the Supreme Court of Virginia's ruling that commercial speech is not afforded First Amendment protection. Furthermore, the advertisement in question contained important information in the "public interest" which went beyond merely informing readers of a commercial service. The Court, noting that the First Amendment gives some protection even to commercial speech, concluded the abortion ad was entitled to protection because it promoted services that were legal in New York and contained abortion information of "constitutional interest" to the general public.
basically, you can’t ban something just because it’s commercial (especially if it’s true and not misleading and serves a public interest) |
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Issue: The question is whether the application of the ordinance to the respondent's activity was, in the circumstances, an unconstitutional abridgment of the freedom of the press and of speech
Facts: The case started when the respondent, F.J. Chrestensen violated a New York City municipal ordinance (§318 of the Sanitary Code) which prohibited distributing printed handbills in the streets bearing "commercial advertising matter." Chrestensen was using the handbills to promote his exhibit of a World War I submarine that was moored at a State pier in the East River and open for the public if they paid the stated admission fee. Chrestensen was told by the Police Commissioner of New York City, Lewis J. Valentine, that he could not distribute the handbills bearing the commercial or business advertising matter. Valentine also advised Chrestensen that he could only distribute handbills solely devoted to "information, or a public protest."[1 Chrestensen remade his handbill, by removing the admission fee on the front advertisement and on the reverse side placing a protest against the city's refusal.
The court decided that "purely commercial advertising" is not protected under the first amendment. The court explained its decision as to why advertising did not afford the same protection as "political speech" under the first amendment because: a) advertising is not as important as political speech b) it is harder to chill advertising, which has a strong profit motive c) it's easier to verify ad claims than political claims, and therefore we have no need to tolerate false advertising. (this was later overruled in VA Borad of Pharmacy)
Supreme Court of the United States ruled that commercialspeech is not protected under the First Amendment |
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Facts: The Citizens United is a nonprofit organization with a 12 million budget. Some of its funding comes from for-profit corporations. This organization created a 90 minute documentary named Hillary, which names Hillary Clinton and shows interview and political commentators all who urged voters to not vote for Hillary. The organization first released the movie in theaters and then on DVD. Afterwards the organization produced two 10-second ads and one 30-second ad promoting viewers to order the documentary on-demand. A negative statement about Hillary is made and then information on how to find the website is given. This movie is basically a feature-length negative advertisement against Hillary.
Issue: Whether section 441b of the Bipartisan Campaign Reform Act BCRA which criminalizes ads produced by corporations that expressly advocate for or against a candidate within 30 days of the primary elections and within 60 days of the general election is constitutional.
Holding: No. The Government may not suppress political speech on the basis of the speaker’s corporate identity. Corporations have long been held to enjoy Constitutional rights of Freedom of Speech just like an individual, regardless of their status of for-profit or non-profit. The court discusses how there has been a constant struggle between the Judiciary and Congress to prevent corruption during election season, and protecting Freedom of Speech rights afforded to persons and corporations. The court also mentions that some corporations are Media corporations made to create news. Banning all corporations from political speech is too broad and the constitution will not allow it. The Government to support this ban, states the compelling interest is in preventing the corrosive and distorting effects of immense aggregation of wealth that are accumulated with the help of corporate form. That can not be sufficient to state that corporation’s rights of Freedom of Speech should be taken from it, simply because it has the funds to support its ideas. Yes, statue 441b (regulated by the FEC and upheld in Austin and McConnell) infringes on Citizen United’s (and all other organizations that aren’t strictly media organizations) First Amendment Rights to freedom of speech, as well as freedom of political speech. But BCRA’s disclaimer and disclosure requirements don’t.
Synopsis of Rule of Law: Congress may not ban political speech based on a speaker’s corporate identity. First, the Supreme Court had to address whether Citizens United’s claim could be resolved on narrower grounds. After proving no, stare decisis was the principle of policy in deciding to overrule Austin. The Supreme Court had to look at the antiquity of the 441b precedent, the reliance interests at stake, whether the decision was well reasoned by lower courts, and whether experience has pointed up the precedent’s shortcomings. In deciding to affirm the BCRA’s disclosure and disclaimer requirements, the Supreme Court looked at the governmental interest in the matter, looked at the situation as an applied case, looked at if there were any constitutional impediments, and looked to see if the requirements imposed a chill on speech or expression.
APR pg. 82
Austin was overruled based off the principle established in Buckley and Bellotti that the Government may not suppress political speech because of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations. Also, it provided no basis for allowing the Government to limit corporate independent expenditures. This effectively invalidated 441b’s prohibition on the use of corporate treasury funds for express advocacy. Also, the antidistortion interest in Austin was found unconvincing and insufficient. The Supreme Court affirmed the BCRA’s disclosure and disclaimer requirements because they believed the governmental interest in providing information to the electorate was sufficient to justify the requirements. They also believed that the requirements were a less restrictive alternative to more comprehensive regulations of speech and in return could be applied to a broader range of speech. No constitutional impediment was found and no evidence showed that the requirements would impose a chill on speech or expression. |
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