Background/Themes

Const. Myths & Realities

• The Constitution does not guarantee rights unless the gov. & soc. decide to grant those rights and NOT systematically violate them!
• Legal protections for rights are often very limited - right must be est.ed in law/Const. & have the resources to mobilize against it
• Rights are not immutable, usually about balancing values
• SC does not exist to protect the rights of minorities, and has historically done a worse job of doing so than Congress & state legislatures

Background/Themes

Core Constitutional Principles (3)

• Separation of powers
• Federalism
• Limits of gov. interference w/individual rights & liberties

• ---

  not specific/silent on many issues - many Federalists wanted the STATES to decide on disputes- FUNDAMENTAL disagreements at the federal level
• Court has only gradually assumed more power (judicial review, interpreter of Const....)

Background/Themes

Judicial Review

Structural Limits on Judicial Power

• Solidified by Marbury v. Madison, but that only put in on paper - long, gradual process

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• Jurisdiction
•  - Only appellate jurisdiction, cannot rule on meaning of state law
•  - Exceptions clause: CONGRESS changes its jurisdiction by passing laws making exceptions
• Can't offer advisory opinions, collusive suits (w/out conflict of int.s), moot cases (conflict resolved), cases w/out standing ("injury in fact")
• Legislature can overrule through Const. amendments, statute, political appt. process, # of justices, jurisdiction changes

• ---

  Can only persuade, and, well... justify
• Text does not always provide clear meanings (has to be judged)

Background/Themes

 - Stare Decisis

 - Intent of the Framers / Originalism

• "let the decision stand" - expectation of consistency, can be check on judge's personal values & provide guidance to members of other branches
• not a good starting point, but the idea is to announce interpretive princip.s
•  - Limit 1: Judges have to decide whether a precedent applies
•  - Limit 2: SC can overturn its precedents

• ---

  Compelling & commonsense way to interpret a text, supposedly limits "activist" judges, but...
•  - Limit 1: Framers were collective body in constant disagreement (+ amendments change certain parts w/out really explaining why)
•  - Limit 2: Judges are not necessarily good historians
• best understood as rhetorical tool of persuasion rather than description of how judges do/should make decisions...

Barron v. Baltimore

Facts

Question

Holding

Barron v. Baltimore

Reasoning

Precedents

• 9-1 in favor of Baltimore
• Basically said they had no jurisdiction
• Const. grants powers AND limitations to federal gov, not state gov.
• If the Const. were supposed to apply at all to the state gov.s, it would say so

  ---

• Precedent against incorporation until 14th Am.
• Was never specifically, formally overturned - just changed the way they did things

WV State Board of Ed. v. Barnette

Facts

Question

Holding

• 1943: Barnette wanted injunction against flag salute - palm up, almost Nazi-style
• FREE SPEECH (was free exercise of religion but dropped that b/c of sticky precedent issue w/Gobitis)
• Punishment was to expel students + fine + jail time for parents!
• Question: Is it a violation of the 1st Am. right to freedom of speech to require students to salute the flag or be punished?
• Holding: Yes, it is a violation...

WV State Board of Ed v. Barnette (1943)

Reasoning

Dissents
Notes

• Reasoning: not participating not detrimental to other children who wanted to participate (no clear & present danger)
•  - Jackson's opinion of Ct: Gobitis assumed state had the power to compel a salute, which was not necessarily true...
• Silence & physical acts also count as speech
• Formally overturns Gobitis
• Nat. survival not an issue here, nat. unity can't be forced, 14th Am. applies to state & all its creatures
  

  ---

• Dissent: due to unity of the state, they should be allowed to force you to salute it
•  - only prob. is that it's like saluting a dictator
•  - Frankfurter: WOULD side w/religious freedom, but felt that the Ct. was overstepping bounds - the legislature should decide because the Ct. doesn't have the power to be the guardian of liberty

  ---

• Notes: Black, Douglas, and Murphy changed their minds - epidemic of violent attacks on JWs became a nat'l embarassment in WWII, part of Nazi propaganda

Schenk v. US

Facts

Question

Holding

• Sec. of CPUSA, spread pamphlets urging people to use their Const. rights against the draft
• (During WWI, free speech more restricted)
• Charged with Espionage Act of 1917
• Q: Is it a violation of the 1st Am. right to free speech to forbid a pamphlet encouraging people to avoid the draft?
• Holding: Is is not a violation...

Schenk v. US

Reasoning

Precedent!

• War time (bad tendency test)
• No ACTUAL effect on draft consciprtion, but creates a clear & present danger, national sec. outweighs the right to free speech here
• - depending on how you view it, they might has still used the bad tendency test (wording), even though they announce the clear & present danger precedent
• Holmes OoC.: Congress had decided to target conspiracies, not just actual interference, so no interference need be shown

Gitlow v. NY (1925)

Facts

Question

Holding

Gitlow v. NY (1925)

Reasoning

Dissent

Precedent

• Sanford OoC: states can define certain types of speech as crim. if they decide such speech is harmful - once decided, ct.s should defer to legislature
• Meaning, state does not have to prove the harm for every punished utterance - does not know which "spark" will lead to a "conflagration"
• Gitlow's pamphlet has "language of direct incitment

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• Holmes dissent: no clear & present danger, no evidence that anybody actually tried to DO the actions advocated

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• Precedents: more restrictive application of clear & present danger - test kind of evolved to grave & probable danger through WWII & McCarthy era before they did away with it for being too restrictive
• DID incorporate free speech through the 14th Am.

Dennis v. US (1951, 6-2)

Facts

Question

Holding

• Dennis & 11 other CPUSA were charged with violating Smith Act of 1940, making it illegal to conspire to advocate overthrow of gov. by force
•  - gov felt the need to nip the threat in the bud - Dennis and the others were basically meeting in somebody's garage and talking about Communism
•  - imp. to Just. Dept. to get convictions upheld
• Question: Is the Smith Act a violation of the 1st Amendment right to free speech?
• Holindg: No, speech can be regulated.

Dennis v. US (1951, 6-2)

Reasoning - Vinson Plurality of Court

• (No Ooc!)
• No right to violent revolution in a democratic society - gov. has power to punish threats of violence (different than the American Revolution b/c that wasn't a democracy)
• Smith Act goes after "advocacy," not "discussion"
• Earlier cases: threats against gov. can be punished, even Holmes said that
• No absolutes, all concepts are relevant - way of wiggling out of clear and present danger precedent (?)
• Gov. can't wait until "putsch is about to be executed" (Read: until shit goes down...)

Dennis v. US (1951, 6-2)

Vinson Plurality Opinion & Judge Learned Hand

• Grave & probable danger - allows the gov. a lot more power, at least if clear and present danger is taken literally
• Gravity of the harm discounted by the probability of success - depends not jsut on how likely things are to occur, but also how bad it is
•  - even if something is not that likely, if it's really bad, you don't want it to exist at all
• Includes prosecuting for advocacy of ideas that have even a small chance of producing a bad outcome (damn Commies!!)

Dennis v. US (1951, 6-2)

Vinson & Role of Judges

• "When facts are found that establish the violation of the statute, the protection against convinction afforded by the First Amendment is a matter of law."
•  - jury initially finds the determination of those facts, apperals courts are not supposed to second-guess the facts, only make judgments about the law and whether it was applied correctly
• Meaning: there is a 2nd judgment to be made by a judge, not if the statute was violated but if the conviction should be thrown out or not based on 1st Am. protection (type of danger posed)

Dennis v. US (1951, 6-2)

Concurring Opinions

 - Frankfurter

 - Jackson

• Frankfurter: Court cannot protect rights, only Congress can judge whether speech is harmful
• Breaks w/Vinson on judicial role!
• This disagreement will be on midterm!

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  Jackson: wants to narrown Vinson/Hand formula to Communism, which is a different kind of threat - old clear & present danger test isn't appropriate in this case

Dennis v. US (1951, 6-2)

Dissenting Opinions

 - Black

 - Douglas

• Black: no overt acts attempting to overthrow gov, only advocacy & abstract planning for some later date
•  - Const. forbids prior restraints on speech (Blackstonian conception) -- Smith Act is preventing them for advocating ideas at all!
• Framers knew unfettered speech was dangerous, but decided to take that risk as a matter of balance - danger of ideas is irrelevant
• Bl. against Ff: Court has DUTY to reverse Congress if Congress interferes with free speech

• ---

  Douglas: More Holmesian argument, no real risk here of these ideas taking hold & being put into action

Brandenburg v. Ohio (1969)

Facts

Question

Holding

• Symbolic of change in Ct. op. - generally more permissive political environment
• State law case, KKK rally
• Q: Does the Ohio (Criminal?) Syndicalism Act violate Brandenburg's rights to free speech under the 1st & 14th Amendments?
• H: Yes, he had those rights...

Brandenburg v. Ohio (1969)

Reasoning

 - Black

 - Douglas

• state can't interfere w/speech advocating harmful action, has to be "incitement to imminent lawless action"
• Black: no more clear & present danger - no balancing, you just take a risk of allowing dangerous speech
• Douglas: Ct. made mistake in earlier cases, exaggerated "puny" threats, have to show overt acts causing harm

• ---

  Formally overturned Whitney v. CA (1929)

Free Speech Doctrines, post 1960's

(4)

• Time/Place/Manner Restrictions
• Speech & Conduct Cases
• Categorical Approach
• Overbreadth/Chilling Effects

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  no more content-based restrictions, w/very few, specific exceptions

Time/Place/Manner Restrictions

Speech & Conduct Cases

• OK if targeting the context in which the speechis made, not the CONTENT of it
• Privacy of own home v. averting one's eyes (If you're in public, you're probably going to have to deal with it!)
• Broadcast media treated as separate issue

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  Communication is also a form of action (e.g. protests, treat action AS speech, combining pure speech + action)
• Some actions that communicate can be regulated
• But, not supposed to be content based (blurry line, e.g. draft card burning/flag burning)
• Threats blackmail, & conspiracies not protected (treated as conduct, not speech)

• 1: Fighting words, 2: obscenity, 3: libel

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• A: Fighting words - directed at the person of the hearer (direct insult/provocation, AND likely to invoke immediate violent reaction

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• B: Obscenity - special, technical category (not just "dirty pictures")
• Not just indecent, but patently offensive depcitions of sexual or excretory activities/organs
• Obscene is worse - "no essential part of any exposition of ideas," "no social value" derived, "clearly outweighed by the social interest in order & morality" (-Justice Murphy, Chaplinksy v. NH, 1942)

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• C: Libel: defamation of character - speaking, print, or visual media
• not really against the gov. at all, but they get invovled when there's a case, meaning the 1st Am. becomes relevant
• Previously not a defense to say that it's true, but now if you KNOW its untrue, the target is about damaging someone through the miscommunication of ideas 

Cohen v. CA (1971, 6-3)

Facts

Question

Holding

• Defendant's jacket in court says "Fuck the draft"
• Cohen given a 30 day sentence, desitrubing the peace - no actual evidence that he was disturbing the peace
• Qu: is it a violation of the first amendment right to free speech to pubish a person for the workds used to convey a message?
• Holding: Yes, it is a violation...

Cohen v. CA (1971, 6-3)

Reasoning

 - Harlon OoC

• Cohen's action does not fit in one of the proscribable categories
•  - vulgar but not obscene, no offort to "conjure up... psychic stimulation"
•  - not fighting words b/c it wasn't directed at any particular person
• Does not count as invasion of privacy!
•  - Courtroom not the home, can avert eyes
• States can't stop expression of ideas in order to promote morality
• Tumult, discord, offense are necessary side effects of a process of open debate
• Emotive function of particular way of expressinve ideas protected by Const, not just cognitive function
•  - anger is part of the system of free expression

FCC v. Pacific Foundation (1978, 5-4)

Facts

Question

Holding

• Radio station broadcasts George Carlin's "Dirty Words" at 2pm on a Tues. afternoon
• Complaint leads to FCC finding against station, threat to license renewal
• Qu: Is it a violation of the first am. right to free speech to regulate an offensive broadcast?
• Holding: No...

FCC v. Pacifica Foundation (1971, 6-3)

Reasoning

 - Stevens plurality opinion

 - Powell & Blackmun, concurring in part

• Stevens: partly offensive but not obscene
• Still OK to regulate b/c proadcast protections limited
• 1. Uniquely pervasive media - enters ppls' heads and lives, can't avert eyes - privacy issue
• 2. Uniquely accessible to children

• ---

  Powell/Blackmun: Stevens only sees it as shock value, no actual value - value is irrelevant, focus on time of day

FCC v. Pacifica Foundation (1971, 6-3)

Dissents

• turn off radio
• no erotic appeal to prurient interests of children
• can ban obscene but not offensive speech!

Morse v. Frederick (2007)

Facts

Question

Holding

• sort of a modern equivalent of Tinker
• happened outside of school itself, though this doesn't seem to be important to the Ct.
• Bong hits for Jesus, parade in Alaska, students were outside of the school building
• Qu: Is it a violation of the First Am. right to free speech to regulate student speech outside of the school building?
• Holding: No, it is not... Schools can take steps to safeguard students from speechthat can be reasonablt yaken to encourage illegal drug use

Morse v. Frederick (2007)

Reasoning

 - Roberts OoC

 - Alito, w/Kennedy, concurrence

 - Thomas, concurrence

• Roberts: Tinker: only suppress speech if it would disrupt work/discipline of school
•  - but Fraser (1986), Ct. moved away fromt hat standard
• Schools can infringe on rights when students are in school that could not be infringed outside the school
•  - Ct. tends to make exceptions for drugs & related issues

• ---

  Alito/Kennedy: cases where students comment on social/political issues would be different
• Thomas: wants to overturn Tinker, orginialist understanding of 1st Amend. does not guarantee freedom of speech for students
•  - NO free speech for student, schools have tremendous discretion in imposing punishments for rule violations

Morse v. Frederick (2007)

Dissents

 - Stevens

 - Breyer

• Stevens: taking down banner was OK, but it was silly & ambiguous, not actually advocating drug use
• Beyer: no need to invent an exception to 1st Am. - single out drug advocacy = content based restriction

• Overly broad laws have "chilling effects" on speech
•  - chills people - makes them afraid, conduct regulated by law not defined precisely enough
•  - if you make people afraid to speak, it impacts the system of free speech/exchange of ideas
• law can be invalid if it sweeps broadly & raises questions about whether it interferes with protected speech
• overbroad = creates reasonable FEAR of prosecution that will make ppl afraid to speak out
• overbroad laws can be challenged pre-emptively (after enactment but before prosecution)
•  - threat to free expression = less of a need for standing (conduct is still affected by law)
•  - can also trike down laws even if the person charged did something outside of the 1st Amendment

RAV v. St Paul, MN

Facts

Question

Holding

• Fighting words & overbreadth
• Crime in St. Paiul to display symbol/object that "arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender"
• Cross burning in yard of only black family in town, not isolated incident
• State SC ruled that it ONLY applied to fighting words (back the US SC into a corner, not supposed to reinterpret state law)
• Question: Does speech in proscribable categories receive content-based protection?
• Holding: Yes...
•  - all agreed that RAV was guilty but disagreement about the law

RAV v. St Paul, MN (9-0)

Reasoning

 - 2 possible responses

 - Scalia

• Response 1: strategy in concurrence - say law should stillbe struck down for overbreadth - applies to many cases not protected by Const., but wording too broad, may chill other Cont.-protected speech
•  - fairly straightforward way of ruling law unconst., no need to overturn precedent
• Response 2: Strategy in maj. op. by Scalia - extend "content" protections to hate speech, abandon long line of precedents, allows maj. to creat broader const. prot. for hate speech
• Scalia: categorical approach in precedent must be taken in context, not literally true
•  - can ban ALL proscribable speech in a cat. (fighting words), but not content based (all or nothing)
•  - in St. Paul, 1 side of debate has free reign but the other subject to arrest - seeking to handicap expression of particular ideas
•  - HOWEVER: this isn't about the free exchange of ideas, but using 1 form of speech to silence somebody else

RAV v. St. Paul, MN (9-0)

Reasoning

 - White, "concurrence"

• MAJOR disagreement even though it was 9-0
• Categorical approach firmly entrenched, majority revising it for no good reason
• laws banning subset of fighting words restrict social evil of hate speech w/out creating danger of driving viewpoints from marketplace
• Acc.rding to White, Scalia - "underbreadth"
•  - elevates hate speech to debate!

Wisconsin v. Mitchell (1993, 9-0)

Facts

Question

Holding

Reasoning

• Legislators take a different approach to the same problem as in RAV: sentence enhancements for existing crimes
• Good example of a legislature getting around a SC ruling indirectly, w/out a Const. Am.
• Question: Is is a violation of the 1st Amendment right to free speech to enhance sentences for crimes involving hate speech?
• Holding: It is not... (Court upheld law 9-0)
• Rehnquist: still doesn't like hate crime laws, but has no choice in this case
• Communities can make moral judgments about the motives & make that a basis for the severity of the punishment (and they do that all the time, based on what people said or what they think!)

VA v. Black (2003)

Facts

Question

Holding

• Jury instructions in law says that a factual finding that the defendant burned a cross established intimidation - defendant can introduce evidence to the contrary, but it places the burden of proof on the defendant
• Question: Is the VA law that makes it a crime to burn a cross with "an intent to intimidate a person or group of persons" a violation of the first amendment right to free speech? (Overbreadth)
•  - Note: threat & intimidations are not/never were protected under free speech
• Holding: With the specific jury instructions, it is...

VA v. Black (2003)

Reasoning

 - O'Connor for the Ct.

 - Stevens, concurring

 - Thomas, dissenting

 - Scalia, dissenting

 - Souter (dissenting? concurring?)

• O'Connor: Law is unconstitutional WITH the jury instructions (b/c of burden of proof issue)
•  - Fits w/RAV b/c cross burning is a particularly virulent form of communication (different than the broader forms in RAV)
•  - State targets it for intimidation, not content
• Stevens: joins O'Conor, but sticks to RAV dissent
• Thomas: dissents - cross burning is ALWAYS intimidating
• Scalia: dissent, nothing wrong with jury instructions
• Souter: too much liek RAV - can be political message, not intimidation
• Prima facie = convictions for expression that may not be intimidating

Rust v. Sullivan (1991)

Facts

Question

Holding

• Question: Can legislatures do something by use of funding that they couldn't do otherwise?
• Holding: Yes... (e.g., drinking age by use of highway funds, federal funds for abortion as family planning)
• Side issue regarding statutory interpretation: The Chevron Rule (1984)
•  - When a statute is ambiguous, a new Pres. administration can change the meaning of the law w/out Cong. chaning the law
•  - Judicial deference: Ct. can only get involved if the new interp contradicts the statute
• Rust issue: Cong. said that no fund in Sect. 1008 shall be used in programs where abortion is a method of family planning
•  - Reagan: this includes counseling concerning abortion, bans recipients from activities that encourage or promote it

Rust v. Sullivan (1991)

Reasoning

 - Rehnquist for Court

 - Blackmun, dissenting

 - Stevens, dissenting

• Rehnquist: goes very quickly over statutory issue - it's ambiguous & exec has broad discretion
• Free speech: OK to set precedent to refuse to fund abortions
•  - no rule that gov. subsidy of some speech means gov. must subsidize all speech (e.g., Nat. Endowment for Democracy)

• ---

  Blackmun: Ct. has never before allowed content based suppression as condition for acceptance of pub. funds
•  - effort to interfere w/providing truthful info, related to exercise of a Const. right (as defined by Roe v. Wade)
• Stevens: focuses on statutory question - stated purpose of law passed was to provide better education about fam. planning opt.s 
•  - language clearly directed at facilities that supply abortions
•  - not ambiguous, gag rule contradicts law

Citizens United v. FEC 

Facts

Question

Holding

• US law prohibits corporations & unions from using their general treasury funds to make ind. expenditures for "electioneering communication" or for speech for/against a candidate
•  - upheld by Ct. in McConnell v. FEC
• Cit.s United a non-profit conserv. poli. org.
• Made film about Hillary Clinton, shown in theaters...
• Group filed lawsuit seeking declaration from lower Ct. that they were not subject to the aforementioned law
•  - wanted a statutory ruling ("as applied" - otherwise Const. law cannot be used in particular instance)
•  - SC asked for reargument to go beyond stat. ruling & overturn McConnell (facial challenge - law is unconst. on its face & can never be applied)

Citizens United v. FEC

Reasoning 

 - Kennedy, OoC

 - Scalia, w/Alito & Thomas, concurring

Citizens United v. FEC

Dissents

 - Stevens, (effing LONG) dissent in part