1. Constitutional Law II Unprotected Speech - Part I

2. Fall 2006Con Law II2 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 Less Protected perjury, libel obscenity, © ? qualified, not absolute, right: what degree of state interest is sufficient to suppress speech?

3. Fall 2006Con Law II3 Framework for Analysis 1. Is Government regulating speech? expressive or non-expressive activity?  If non-expressive, apply minimal scrutiny  If expressive, 2. What level of protection? Is there a hierarchy of protected speech? 3. Apply appropriate scrutiny Compelling/important ENDS Narrowly tailored/substantially related MEANS

4. Fall 2006Con Law II4 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

5. Fall 2006Con Law II5 Finding the Level of Protection Manner of Speech Pure speech  Unprotected; Lower protected; High ordered speech Mixed speech  Symbolic speech; speech coupled with action Type of Regulation Suppression  Special case: Prior restraint Forced speech  Special case: Government speech Non-speech regulation

6. Fall 2006Con Law II6 Introducing 1 st Amend Balancing Categorical balancing Certain categories (subjects) of speech are less deserving of protection (or none at all)  Once this is done, it applies uniformly to all cases Ad hoc balancing State interest must be commensurate with degree of speech protection Speech cannot be burdened more than necessary to achieve state interest  Both must be done on a case-by-case basis Compare finding DP fundamental rights Compare applying level of scrutiny ENDS MEANS

7. Fall 2006Con Law II7 speech How can speech be unprotected? Interpretive theory Strict textualism: no distinction among subjects of speech, even if some modes not protected Originalism: framers probably did not intend to protect libel, indecency, threats, etc.  Perhaps they intended only to bar “prior restraints” Broad textualism (penumbralism) & living const: core values underlying the 1 st Amend:  Self-fullfilment / personhood  Search for truth / marketplace of ideas  Self-governance / political marketplace speech that doesn’t serve any underlying purpose of the 1 st Am. might be unprotected

8. Fall 2006Con Law II8 speech How can speech be unprotected? Functions of speech (speech act theory) Action (locutionary)  The act of speaking (writing, etc). All speech includes locutionary acts (conduct). When gov’t regulates locution (loadspeakers in residential neighborhoods at 3am) it might not be regulating speech  Example: screaming Expression (illocutionary)  Act performed by speaking (communicative point) Most speech is expressive (informational)  Example: Valerie Plame is a CIA agent

9. Fall 2006Con Law II9 speech How can speech be unprotected? Functions of speech (speech act theory) Instrumental (perlocutionary)  Effect of speech on the listener (response) Perlocutionary speech can be similar to other conduct obscenity Perlocutionary speech can be the “trigger of action” as to disallow any intermediation (free will) shouting “fire” in a crowded theater Perlocutionary speech can have an interpellative effect “I’m going to kill you” is not simply expressive (illocutionary); it creates an emotional response  Instrumental speech can be conduct not speech  Example: Valerie Plame is a CIA agent

10. Fall 2006Con Law II10 speech How can speech be unprotected? Functions of speech (speech act theory) Functional (performative) speech  Acts that perform the action the speech describes Saying Saying “this is a holdup” means (literally) this is a holdup “I pronounce you Man & Wife” completes the marriage Summary of unprotected speech: Speech that doesn’t serve any 1 st am purpose Instrumental speech  Especially when injurious Functional speech (sometimes)

11. Fall 2006Con Law II11 Categories of unprotected speech Subversion Incitement of imminent lawlessness Threat/Solicitation of crime Defamation Fighting Words Hate Speech (“group libel”) Obscenity Functional (Performative) Speech at various times

12. Fall 2006Con Law II12 Defamation Libel & Slander publication of a false & injurious statement of fact “of and concerning” plaintiff Damages Special General Punitive

13. Fall 2006Con Law II13 Beauharnais v. Illinois (1952) “Group Libel” Crime to defame a racial, relig., etc. group Frankfurter (majority) Criminal libel can be extended to group libel Not part of protected speech Black (dissent) neither text nor original intent supports the exclusion of political speech from 1 st amd

14. Fall 2006Con Law II14 NY Times v. Sullivan (1964) Where’s the state action? State libel law (positive or common law) 1 st amd used as defense to the cause of action Principles Robust debate on issues of public concern  Any liability tends to chill speech  strategic protection for speech means even some falsity must be tolerated Public officials Public figures Private persons

15. Fall 2006Con Law II15 NY Times v. Sullivan (1964) Truth & Falsity Truth must be a defense Only provably false statements are actionable  Only statements of fact fit this requirement  Not opinions, parodies (not reasonably taken as fact) Falsifiable statements actionable only if  Private figure  Public official/figure – actual malice standard knowledge that the statement is false reckless disregard for whether it is false or not negligence (e.g., failure to check facts) not sufficient  Is there any value in false speech?

16. Fall 2006Con Law II16 NY Times v. Sullivan (1964) Burden of proof On plaintiff at all times By clear and convincing standard Damages Actual malice – full range Private figure(no malice) – actual damages only Public Persons Public officials Public figures  “those by reason of the notoriety of their achieve- ments, or by the holding of the public’s attention”

17. Fall 2006Con Law II17 Gertz v. Welch (1974) Provable case of libel (per se) Unless “actual malice” required Public figures access to self-help (channels of communicat’n) voluntary assumption of close public scrutiny  Involuntary public figure? No, see Time v. Firestone General purpose public figure  general fame or notoriety; like high public official Limited purpose public figure  if thrust into limelight re subject matter of libel

18. Fall 2006Con Law II18 Dun & Bradstreet v Greenmoss (1985) Matters of public vs private concern Greater 1 st amd interest in promoting robust debate on public issues Greater private interests otherwise Negligent defamation on private matter Actual (compensatory) damages Presumed (general) damages Punitive damages Is the credit report a public or private matter?