Constitutional Law II Spring 2005Con Law II1 Introduction to 1 st Amendment

Spring 2005Con Law II2 In the beginning

Spring 2005Con Law II3 In the beginning

Spring 2005Con Law II4 Trial of John Peter Zenger (1735) Blackstone: Freedom of press meant only no prior restraint Yet, Crown enacted the “Licensing laws” English law of seditious libel Punishing statements derogatory of the crown Zenger prosecuted for criticizing Gov. of NY  Actually, just publisher, not author see heresee here  Hamilton defends: truth is a defense  Judge rejects; Jury acquits (“jury nullification”) 1 st Amd ? Prohibiting licensing (prior restraint) or also Post-publication sanctions

Spring 2005Con Law II5 Alien and Sedition Acts (1798) Prohibiting publication of “false, scandalous, and malicious writings..  against the government of the US  with intent to defame, or stir up sedition or hatred” Truth was allowed as a defense Vigorous use to control politcal debate by Federalists against Republicans Jefferson pardoned all convicted S.Ct. never ruled on constitutionality

Spring 2005Con Law II6 Theories of 1 st A md Interpretation “ Congress shall make no law … abridging the freedom of speech, or of the press…” Strict textualism Hugo Black: absolute protection for speech Rejected by Court in 2 respects:  What speech is protected?  How much is it protected? Categories Unprotected Protected In between perjury, libel obscenity? what degree of state interest is sufficient to suppress speech?

Spring 2005Con Law II7 Framework for Analysis 1. Is Government regulating speech? or something else ? 2. If speech, what level of protection? If non-speech, apply minimal scrutiny  somewhat above rational basis (intermediate?) 3. Apply appropriate scrutiny Important/compelling ENDS Narrowly tailored/substantial MEANS

Spring 2005Con Law II8 Content-based / Content-neutral Nearly all speech acts occur in context e.g., picketing, parading Government can regulate the non-speech component upon lesser showing of need E.g., no parades during rush hour Is regulation “anti-speech” or “non-speech” Based on content? If the answer to this question: “Can I engage in expression at this time, place & manner” is “Depends on what you are saying,” Then, you have an anti-speech restriction

Spring 2005Con Law II9 Turner Broadcasting v. FCC (1994) “Must-Carry” Provisions of Cable Act Pre-analysis Why is TBS entitled to 1 st Amd protection? Theories of free speech  Attribute of personal liberty & autonomy  Self-governance (“political liberalism”) especially in a pluralist society (tolerance)  Discovery of truth (“marketplace of ideas”) focus on speaker focus on listener commercial speech is lower-valued

Spring 2005Con Law II10 Does “must carry” burden TBS speech? Reduces avenues for TBS own speech  Does not deplete (depends on # channels available) Associates TBS with the message carried?  If so, this would be a case of “forced speech” Highest degree of scrutiny applied Is carriage requirement content neutral? Eligibility based on technical criteria only  All full-power (and some LPTV) broadcasters O’Connor: preference for broadcast over cable programming is not content neutral? Turner Broadcasting v. FCC (1994)

Spring 2005Con Law II11 Is carriage requirement content neutral? Note: Broadcast licenses are not awared on a content-netural basis Requirements:  Localism  Diversity  Mainstream politics Wealthy, white, MOR protestant males Standard for non-speech restrictions 1. Promote an important gov’t interest, that is 2. Unrelated to the suppression of speech, and 3. Burdens speech no more than necessary Turner Broadcasting v. FCC (1994) S.Ct. has justified these on basis of “spectrum scarcity,” a theory that does not apply to cable regulation

Spring 2005Con Law II12 Types of content distinctions Viewpoint Distinctions based on partison/ideological basis  e.g., Seditious Libel Subject-matter Discrimination based on broad categories  e.g., commercial vs political; educational vs erotic Format Certain types of speech allowed, not others  e.g., leaflets vs. placards, billboards vs. megaphones Speaker Government speech vs. citizen speech

Spring 2005Con Law II13 Types of content distinctions Viewpoint Distinctions based on partison/ideological basis  e.g., Seditious Libel Subject-matter Discrimination based on broad categories  e.g., commercial vs political; educational vs erotic Format Certain types of speech allowed, not others  e.g., leaflets vs. placards, billboards vs. megaphones Speaker Government speech vs. citizen speech never permitted sometimes permitted usually permitted sometimes permitted

Spring 2005Con Law II14 Boos v. Barry (1988) DC Ordinance prohibits signs <500 feet from foreign embassy critical of that gov’t Content based? Compare Sedition Act Subject-matter or viewpoint discriminatory?  Why do we care? Sometimes SM discrimination permitted, although not here  O’Connor: not viewpoint because law uses an external reference Such as, only statements approved by the Cahmber of Commerce are permitted  The law clearly favors 1 side of political controversy wrong

Spring 2005Con Law II15 Subject-matter distinctions Limited purpose public fora E.g., Hollywood Bowl available for music only E.g., Broadcasters must air candidate speech Secondary effects doctrine Gov’t may regulate subject matter based on incidental (secondary) impact  not the impact (effect) of speech on listener  but associated non-speech-related effects Distinction between primary/secondary effect  Gov’t can argue it is regulating non-speech elements  unrelated to suppression of the speech itself

Spring 2005Con Law II16 City of Renton v. Playtime (1986) First Amendment “zoning” law No adult theatres near schools, houses, etc Only down by railroad tracks Content-based subject-matter  Low-value speech (erotic) Political speech?

Spring 2005Con Law II17 City of Renton v. Playtime (1986) What is a secondary effect? Not the effect that speech has on the listener  See Boos v. Barry Effects on 3 d parties not exposed to the speech  Renton: congestion/crime surrounding adult movies  But, seditious speech also causes 2 dary effects tossing the bums out of office Cincinnati v. Discovery Network (1993) Newsrack safety a concern only w com. speech  How distinguish Renton? Erie v. Pap’s? Doctrine not applied outside of adult speech

Spring 2005Con Law II18 NEA v. Finley (1998) Federal grant to arts based on artistic excellence Robert Mapplethorpe

Spring 2005Con Law II19 NEA v. Finley (1998) Federal grant to arts based on artistic excellence Andres Serrano’s “Piss Christ”

Spring 2005Con Law II20 NEA v. Finley (1998) Congress adds “general standards of decency” What kind of discrimination going on? Is “artistic excellence” viewpoint-neutral?  Government may fund some subjects & not others health warnings; sex education; creationism vs. evolution whoops, another 1 st amendment value at stake there  But may not fund selective viewpoints e.g., Armstrong-Williams and related cases See unconstitutional conditions doctrine Is decency a “viewpoint neutral” standard? Federal grant to arts based on artistic excellence

Spring 2005Con Law II21 NEA v. Finley (1998) Souter (dissent): “decency” (aka community values) is the very essence of viewpoint criterion  Promotes one set of ideological values over another