Agenda for 25th Class Handouts Slides Freedom of Speech & Living Constitutionalism (continued)

Assignment for Next Class Next Class will be taught by the TAs Review 3rd Longer Writing Assignment No new writing assignment Formulate questions for TAs about 3rd writing assignment Exam studying Law School

David Strauss, Living Constitution 3) What’s the difference between “moderate originalism” (see pp. 25-29) and “living constitutionalism”? 4) In what way is “common law constitutionalism” a good description of the First and Second Amendment cases you have read? Are the First and Second Amendment cases you have read more like product liability cases before MacPherson or more like Justice Traynor’s concurrence in Escola? 5) On p. 34, David Strauss asserts, “the opinions in that case [Heller], which purported to analyze the text and original understanding, actually seem to be motivated more by the justices’ respective policy views about gun control.” Do you agree?

David Strauss, Living Constitution 6) In Cohen v. California (1971), the Supreme Court held that a person had a First Amendment right to wear a jacket in a courthouse with the words “Fuck the Draft” printed on the back. Does the First Amendment protect (a) a person who burns a U.S. flag to protest U.S. government policy, (b) someone who burned a draft card to protest the Vietnam War and military conscription or (c) a TV station which airs a sitcom in which a character says, “fuck you.” Use Cohen and other things you have read about the First Amendment in Law 300 to argue for and against First Amendment protection in these three situations.

David Strauss, Living Constitution 7) In Virginia Board of Pharmacy v. Virginia Citizens Consumer Council (1976), the Supreme Court held that a pharmacist had a First Amendment right to advertise drug prices, and that a state statute that forbade advertising was unconstitutional. Are the following laws unconstitutional: (a) a law that requires for-profit tour guides to get a government license before giving tours, (b) a law that requires companies to register with the Securities and Exchange Commission and to provide information about their business plans to the public before selling stock to the public, and (c) a law that forbids an electrical utility from disseminating its opinions on issues of public policy to customers in documents that accompany the bills it mails to customers? Use Virginia Board and other things you have read about the First Amendment in Law 300 to argue for and against First Amendment protection in these three situations. If you are inclined to think that only individuals have First Amendment rights, but that corporations do not, consider that the New York Times and the Fox News Group are both corporations.

David Strauss, Living Constitution 8) In Buckley v. Valeo (1976), the Supreme Court held that campaign donations were speech protected by the First Amendment, but that Congress could limit the amount that individuals could donate to political campaigns, because doing so enhanced the integrity of elections. It also held that the government could not limit “independent expenditures,” that is amounts that individuals spent on their own to promote a candidate, as long as the money was not given to the candidate, to organizations controlled by the candidate, or spent is ways that were coordinated with the candidate and his/her campaign. Are the following laws unconstitutional: (a) a law prohibiting corporations and unions from making independent expenditures in support of a candidate, (b) a law that prohibited a non-profit corporation from disseminating a movie critical of a presidential candidate within 30 days of a primary election or 60 days of a general election? Use Buckley and other things you have read about the First Amendment in Law 300 to argue for and against First Amendment protection in these two situations.

Autonomous Vehicles Many potential benefits Increased safety Less pollution Less traffic Mobility for elderly, disabled, and kids Cheaper vehicle sharing Benefits are, of course, speculative Downsides More congestion? Cyber-carjacking? Loss of privacy? Loss of jobs? What do you think?

Approaches to Safety Regulation or Litigation? Probably both Like safety of conventional cars Conventional cars Federal Motor Vehicle Safety Standards e.g. airbags Lawsuits after accidents Usually state court Product liability Suits against drivers Mandatory insurance Emerging regulation of autonomous vehicles State regulation of testing Litigation after accidents Federal regulation of design (later)

Federal Regulation Carmakers would like federal regulation To ensure uniformity To prevent a “patchwork” of regulation Current approach– “Voluntary Guidance” House and Senate have passed bills Preemption States could not regulate design States could license drivers and vehicles Remove regulatory obstacles to autonomous vehicles Safety evaluation reports Research, education What federal regulations would you favor?

State Regulation of Testing Some states have passed laws allowing companies to test autonomous vehicles Arizona, California, Florida, Nevada California 8 bills 2012-2018 Authorizes DMV to adopt regulations Allows testing of autonomous vehicles pending adoption of safety standards Allows testing of autonomous vehicles without steering wheels Authorizes testing of platooning DMV regulations Permits Insurance Reporting What do you think states should require?