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

2. 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

3. David Strauss, Living Constitution
3) What’s the difference between “moderate originalism” (see pp ) 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?

4. 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.

5. 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.

6. 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.

7. 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?

8. 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)

9. 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?

10. State Regulation of Testing
Some states have passed laws allowing companies to test autonomous vehicles
Arizona, California, Florida, Nevada
California
8 bills
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?