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Constitutional Law II Outline - Professor Wallace - Campbell Law - Part 6

By Miller Moreau
Professor Wallace - 2020

Download the PDF version of this outline

<< Part 5 | Part 7 >>

First Amendment

Freedom of Speech

  • “Congress shall make no law … abridging the freedom of speech, or of the press; or of the right of the people to peaceably assemble …. ”

Courts have applied to all branches of government

  • Extends to state and local as well


  • Protected vs unprotected speech
  • Content-based vs content neutral regulations
  • Freedom not to speak: “compelled speech”
  • Freedom of group speech: “expressive association”

Two major approaches

  1. Making categorical exceptions to the Free Speech Clause (typically defined by content)
  2. Distinguishing content-based restrictions on speech (almost never upheld) from content neutral restrictions (often upheld)
    • Core axiom : Government may not regulate, punish, or discriminate against speech because of its content
    • Types of content-based restrictions: subject matter, viewpoint
      • Subject matter : Application of the law depends on the topic of the speech
      • Viewpoint: Application of the law depends on the ideology of the message
    • Content-based restrictions trigger strict scrutiny:
      • Police Dep’t of Chicago v. Mosely

If government 1A does not protect speech → government can outlaw without 1A implications

  • If it is protected speech → attempt to regulate it/punish it triggers either intermediate or strict scrutiny
1. Categorical Exceptions (Not Protected)
  1. Fighting Words
    1. Direct personal insult likely to provoke a violent response — Chaplinsky
  2. True Threats:
    1. Threats of violence directed at person(s) with intent to cause fear of serious bodily harm or death — Virginia v. Black
  3. False and Misleading commercial advertising or advertising about unlawful activities
    1. (commercial speech IS otherwise protected, but LESS SO than other kinds of speech)
  4. Speech directed to inciting or producing imminent lawless action and is likely to produce such action — Brandenburg
  5. Obscenity and child pornography -- Williams, Miller, Ferber
    1. Obscenity elements:
      1. Appeals to prurient interest
        1. Beyond ordinary, shameful interest, or excites lustful or lascivious thoughts
      2. Work depicts sexual conduct in a patently offensive way
      3. Has no artistic, scientific, literary, or political value
    2. BUT protected-
      1. Non-obsence sexually explicit speech (pornography and “expressive” nudity)
      2. Virtual child pornography
        1. Careful here- look at notes
      3. Possession of obscene speech at home
        1. But not child porn
  6. Crime facilitating speech --speech integral to criminal conduct
    1. Ie- conspiracy
  7. False statements of fact --if said with sufficiently culpable mental state
    1. Ie- defamation, false light, perjury, etc.
      1. But no general exception for false statements

Protected Speech Examples

  • Inflammatory speech to which there is a violent response, but is neither a direct personal insult nor directed at inciting imminent violence
  • Insulting, offensive, outrageous, or insensitive speech
  • Hate speech
  • Pornography that depicts adults and is not obscene
  • Violent video games and animal snuff videos
  • Brown v. Entertainment Merchants: State law that prohibits the sale of violent video games to minors must be narrowly tailored to serve a legitimate government interest
    • Video games, like books, convey a message that deserves 1A protection
    • Government interest found weak b/c (at the time) was sufficient evidence of adverse consequences based on research
      • (causal link b/t video games and violence not strong enough)
    • Under-Inclusive b/c excludes portrayals other than video games and allows parents to purchase the games
      • Over-inclusive b/c abridges 1A rights of young people whose parents and guardians think video games are a harmless past time
    • *with newer social science evidence this may be a different decision
      • Seems like some Wallace type thinking

A. Fighting Words

  1. Chaplinsky: D arrested for yelling at the Marshal “you’re a god damn fascist/racketeer” etc. face to face. Statute prohibited speech “directed at a person on public speech that derides, offends, or annoys others.
    1. As applied here, fighting words exception made this statute constitutional
      1. Reason for such an exception? Balancing test: exposition of ideas vs. society’s interest of morality
      2. Focus is on words that tend to incite immediate breach of peace, must be DIRECT insult (face to face)
  2. Modern rule: “ direct personal insult likely to provoke a violent response”
    1. Rarely applied, almost never applied to “one to many” type scenarios
      1. Ie- Brother Ross would be good to act under this
    2. Does not extend to merely insulting/demeaning words
2. Content-Based vs. Content Neutral Restrictions
  1. Two types of content-based Restrictions
    1. Subject matter
      1. Ie- no political signs can be placed in yard
      2. Rarely upheld
    2. Viewpoint- only letting one side of controversy express its view
      1. Ie- only Clinton political signs can be placed in yard
      2. Types of laws are never upheld
  2. Police Dep’t v. Mosley
    1. Law banned picketing near school unless it was protesting labor dispute (Subject matter)
      1. Unconstitutional (after S.S.)- allows/disallows speech on the basis of what they are protesting
        1. Gov. interest weak b/c restriction didn’t apply to everyone across the board
  3. Reed v. Town of Gilbert: Ordinance regulated size and duration of placement of outdoor signs. Different rules applied to temporary directional signs as opposed to all other signs
    1. Ie- different set of rules for campaign signs that church organization directional signs
      1. Signs were treated differently based on type of sign as determined by the message in the sign itself (content)
    2. Even with innocent justification for the regulation, doesn’t matter → S.S. is applied
    3. (subject matter regulation)

Expressive Conduct

  • Analysis
    1. Determine if “pure conduct” or “expressive conduct”
      1. If pure conduct → 1A doesn’t apply
    2. Protected speech or unprotected speech?
    3. Content based? (S.S.) or Content Neutral (I.S.)?
  • United States v. O’Brien: D burns draft card on courtyard steps, convicted of knowingly mutilating/destroying draft card
    • DA: burning the card was speech in protest of war
      • If not speech (pure conduct) → 1A not implicated
    • Is burning a draft card (conduct) speech? → Spence Test (when conduct is speech (expressive))
      1. Is there intent to convey a particular message
        • Subjective
      2. and the likelihood the message would be understood by those who viewed it
        • Objective
    • Here, D was clearly engaged in expressive conduct → Court employs O’Brien Test (what to do w/ regulations that restrict expressive conduct)
      1. Does law further an important or substantial government interest?
        • (intermediate scrutiny)
      2. Is government’s interest unrelated to the suppression of free speech?
        • Is government regulating conduct for non speech reasons or speech purposes?
          • If it was for speech purposes → strict scrutiny would apply
          • Conduct purposes → intermediate (when this test applies)
        • Gov. int. Strong here b/c have to keep up with draft information etc. (legit non-speech purpose, no computers back then)
          • But Wallace- looks at legislative timing, conveniently placed right during Vietnam protests
            • “Gov. can always make a non-speech purpose”
      3. Is law (means) substantially related to furtherance of that interest (end)?
        • Can’t be too over or under-inclusive
  • Texas v. Johnson: D burns American flag in public, convicted of statute reading “in a way that would offend someone else”
    • Spence test, is this speech?
      • Intent- yes, D did this to protest Reagan
      • Objective? Yes, obvious
    • Can gov. Regulate it?
      • O’Brien test? No, statute and prosecution was aimed at expressive component of the conduct itself → O’brien doesn’t apply, APPLY STRICT SCRUTINY b/c content based
        • Fails part two of O’brien (unrelated to the suppression of free speech)
        • (ie- could burn in backyard and be ok)
        • If charged with arson? Prosecutor would have been fine
      • Government Interest: preventing breach of peace
        • Court: no, no threat of physical violence etc.
          • Also not fighting words
        • Gov. interest in protecting unity and nationhood through preservation of flag is also regulating speech itself

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