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Constitutional Law II Outline - Professor Wallace - Campbell Law - Part 9

By Miller Moreau
Professor Wallace - 2020

Download the PDF version of this outline

<< Part 8 | Part 10 >>

Government as Educator

College speech is usually evaluated under typical public forum doctrine

Student Speech Cases:

  • Student speech for these rules only apply to non-higher education facilities such as high school, middle school(colleges, etc. should be treated same as adults)
    • When gov. Is acting as educator → can generally restrict speech more
  • Tinker: Court struck down rule as applied that banned students from wearing armbands to protest the Vietnam war
    • General Rule: When speech creates material & substantial disruption of school operations (must be “reason to believe” disruption will occur) school can stop it. (see Morse Exception)
      • Standard not met here, was based on speculation
  • Bethel School Dist. v. Fraser: Fraser gave sexually suggestive speech at school assembly to intro friend running for class president. Punished (3 day suspension) & wasn’t allowed to speak at graduation.
    • Court upheld Fraser’s punishment: When speech is vulgar, lewd, & offensive because of wording (but not viewpoint) and part of school-endorsed events, school can intervene bc school has interest in not being associated w/ speech
  • Kuhlmeier (school newspaper): When speech is “school sponsored” (i.e., has school’s imprimatur) regulation must be “ reasonably related to legitimate pedagogical concerns ” (alternate view: government-as-speaker case)
    • Students are speaking on behalf of school itself (was published in journalism class)
      • Since government speech → no 1A restriction (unless VP)
        • (non-public forum treatment it seems?)
  • Morse v. Frederick: (exception to Tinker rule) “Bong hits for Jesus” hung up outside of school at school-sponsored event → court upholds rule punishing the students b/c reasonably understood to promote illegal drug use
    • Doesn’t matter if speech causes a material & substantial disruption
    • If they were doing political speech? Ie- “legalize marijuana” → school can’t punish that
  • Can schools punish off-campus speech?
    • Wallace: Generally no, only if it creates a material & substantial disruption on campus (basic Tinker)
Commercial Speech

Commercial speech: speech that proposes a commercial transaction

  • Ads, references to specific product, things stemmed by economic motivation
    • EX) Nike was object of protest for child labor factories. Nike responded w/ ad saying that they didn’t employ child labor. Sued. Nike said they weren’t trying to sell a product, but rather, clear up misconceptions and respond to false allegations. State court held that Nike’s response ads were commercial speech

Central Hudson Test: Intermediate scrutiny for restrictions on commercial speech EVEN IF content based

  1. Whether expression is protected by 1A (ie- not misleading)
  2. Whether asserted government interest is substantial (intermediate)
  3. Whether regulation directly advances that interest
  4. Whether regulation is not more extensive than necessary to further that interest
    • Still can’t be viewpoint based. Looking for if attempt is to regulate commercial aspect of speech rather than political speech.

44 Liquor Mart v. Rhode Island: law regulated “advertising in any manner” the price of alcohol except for on price tags and signs in liquor stores

  • Court held this was unconstitutional (why?)

Campaign finance and Compelled speech

  • Basically: Contribution (supporting candidate) → intermediate scrutiny
    • Independent expenditures (speaking for or against candidate) → strict scrutiny
      • Think- core of 1A protection is expressing political views
  • Corporations are expressive associations but are still prohibited from directly giving to political candidates
    • But- PAC spends $ on advertisement saying Hillary sucks? → expenditure that is fairly protected
Rights Implicit in Free Speech
  1. Right not to Speak
  2. Right to Expressive Association
Expressive Association

Expressive association focuses on if message group wants to send gets compromised because of inclusion of others. Different from compelled speech where they make you say something

Democratic Party vs. Wisconsin: state law said political parties can’t limit who participates in the primary, democrats sue → law was unconstitutional b/c forced democratic party to associate w/ people who have ideas different than their own

Roberts v. US Jaycees: USJ was an all-male/male only group. Law forced them to accept women. USJs included women in all of organization activities except being voting members. USJs went to court & said that admitting women would compromise the message they wanted to send. Record showed their claim wasn’t plausible for expressive association violation (already had limited membership for women → shows their message wouldn’t be compromised.

  • Wallace thinks if it would’ve won w/ legitimately compromised purpose
    • Ie- USJ’s didn’t allow women at all/ever—then USJ would’ve won

Boy Scouts v. Dale: Dale openly gay & wanted to urge Scouts to change policy on gay people. Message of Scouts at time was that it was incompatible w/ their “morally straight” mission. (Morally straight defined as sexually straight.) Would forced inclusion of Dale have altered that message? Yes because would be allowing someone in as Scout master that didn’t align with their message of moral straightness. Scouts have right to choose who they associate w/ & don’t have to compromise their message. For purpose of defining group’s message who gets to decide? Policy-making body of organization. No requirement that you have to have a long-standing position/policy in place

  • Rule: Right to associate & protect message of association is protected.
    • Association gets to decide what their message is because they have protected right to control it.
      • No requirement that you have to have a long-standing position/policy in place.
    • Association can also decide to change that message.
      • Which Scouts did.
    • If state is forcing Scouts to associate w/ someone that compromises their message In violation of free association. → Strict scrutiny triggered.
    • Does state have compelling gov. interest in eliminating discrimination against gays?
      • This same Q was seen in Hurley → Does state have compelling gov. interest in eradicating discrimination against gays?
      • Spectrum of Gov. Activities → Public Accommodations → Private Associations
        • Gov. activities: State has compelling interest in eliminating discrimination here
        • Public Accomodations: State has compelling interest in eradicating discrimination as long as not violating someone’s rights
        • Private Association: No compelling interest
          • Ie- dinner party, women’s bible study
    • In order to violate expressive association, not required that person advocates against group’s purpose, can just be inconsistent with it
      • Ie- Boy Scouts leader could have been excluded just for being openly gay, didn’t have to be the big advocate he was

Christian Legal Society v. Martinez: Court upholds school rule that clubs would not be recognized if they required certain religion to become a member (still were able to attend)

  • Court “reasonable in light of forum” to promote diversity
    • Wallace: so we’re going to promote diversity by making every claim the same thing?
      • This is viewpoint discrimination, not followed, court is all sorts of messed up on this one
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