Con Law
Outline
EXAM
- Look for cases on the docket from the US SCT; generally looks for circuit splits
Philosophies
Sources of Constitutional Interpretation:
- Text
- Original understanding
- Precedent
- Legal traditions
- Contemporary values
- Policy judgments
Federalist #78 – Judgment vs. Will [come back to – first pg of notes]
- Judgment – Court
o Determine if the statute is constitutional
- Will – Congress/Legislatures
o Will to create the statute
Calder v. Bull: debate over Natural Law
- Chase: judges can strike down laws that violate “natural justice”; Constitution’s basis in NL & Rights
- Iredell: Court can only enforce the Constitution – must look to the text as interpretive source; Disagreement about the contents of NL & Rights à write the compromise in the constitution to settle; rely on amendments to constitution to create new rights à legislature’s will
POV on Constitutional Interpretation:
- Judicial restraint:
o Calder v. Bull - Iredell
o Historic Constitution: focuses on history as interpretive method; courts cannot change unless amended
o Interpretation focus:
§ Text
§ Original understanding
§ Precedent
§ Tradition
o Benefits:
§ Restraint/Stability
§ Majority Rules
o Sharp S/P -
§ Deferential to legislatures
- Judicial activism:
o Calder v. Bull - Chase
o Living Constitution: emphasizes contemporary values and policy judgments
o Interpretation focus:
§ Text
§ Contemporary values
§ Policy judgments
o Benefits:
§ Flexibility
§ Protect minority rights
o Blurry S/P
§ Not deferential to legislatures
Philosophies behind FOS
- Marketplace of Ideas:
o SCt often endorses this approach
o John Stuart Mills: competition of ideas
o The best ideas will win acceptance in the search for truth over time à restrictions on liberty would inhibit a person’s ability to gain experience and find the truth
o Closely related to economic market of ideas
o First articulated in Abrams
o Problems:
§ Assumes people will make rational decisions in seeking the “truth” allowing the best ideas to win
§ If there is a market – is it a free market? Or is it skewed?
- Self-Governance:
o Political speech must be allowed to inform the public who controls the democracy
o Illogical to allow politicians representing the people to restrict speech when people retain the power
o Minimum à there must be free political speech (strong justification)
o Problem:
§ Only protects political speech
§ No reason to extend FOS to other forms of speech
- Individual Autonomy:
o About self-expression – derives from self-determination and self-respect
o Problem:
§ Very difficult to draw a line between conduct as a form of expression and speech; we often restrict the conduct
- Catch all Categories (lesser theories)
o Checking Function:
§ Check abuses of government power
o Tolerance:
§ Allowing speech teaches others to be tolerant of differences
o Civil Peace:
§ Reciprocity; I won’t censor you when I’m in power if you don’t censor me
History of Free Expression
- 1st Amend: “Congress shall make no law . . . abridging the freedom of speech
- Sedition Act of 1798:
o First federal limitation on FS prohibiting the publication of false, scandalous and malicious writings against the government with intent to defame. SCt never ruled on constitutionality; expired after 2 years
o Point: little FS protections early in history; founders intent – not what it is today
- 3 early meanings of FOS:
o Blackstone
§ No prior restraint (i.e. licensing of the press)
§ Subsequent punishment for bad tendency acceptable
§ Sedition Act would be constitutional – no prior restraint/enforced after the speech
o Federalist
§ Congress shall make no law…States retain complete power to regulate speech
§ In the words of Josh Kyle “states can do whatever the hell they want”
o Madison
§ Federalist position – states retain power to control
§ EXCEPT: political speech which cannot be regulated; prior restraints/bad tendency can’t be used
§ Philosophy – self-governance; FOS must include protections to discuss politics
WWI historical development
- After the 1790s – there are no cases interpreting FOS until WWI
- Intense political debate on whether to enter war in WWI
- Wislonian/Congressional Response:
o Espionage Act of 1917 – violations are conduct (not speech) related
o Sedition Act of 1918
Tests Overview
- Incitement/Advocacy of Unlawful Action à Brandenburg
- HAR à Cantwell/Feiner
- FW à Chaplinsky
- Criminal Speech à Williams
- TT à Black
- Hate Speech à CB à SS, CSI, NT
Advocacy of Unlawful Action
- Factors Ct used when creating the test for unlawful advocacy:
o Clarity – likely – probable (how probable was the unlawful conduct)
o Presence/Imminence (need to act)
o Degree of danger (C&P)
o Intent (important)
o Express words of advocacy
- 3 Tests Fed Cts used:
o Bad Tendency Test - Schaffer
§ Pro:
· Original interpretation - Federalists - Blackstone/English CL
· Sedition Act of 1798
§ Con:
· Chills political speech
· Offers a pretext to suppress
§ Used in all federal courts
o Express Incitement – Masses/L. Hand
§ Pro:
· Objective
· Significantly more protection for speech
· Limitation placed on government’s ability to restrict speech
§ Con:
· Easy to circumvent law by not using express words & avoid charges even when a danger is posed
o Clear & Present Danger –
§ Schenck/Holmes
§ May not be very protective of FOS; only punishes when people are listening
§ Unclear whether C&P is an interpretation of BT or if it stands alone as a test
§ Pro:
· Circumstances: Accounts for time & place
§ Con:
· No guidance on how to test intent
· Vague test – too many interpretations
- Schaffer – 1919
o Facts: Mailed a book condemning American war efforts; equated patriotism with murder in the spirit of the devil
o Prosecution based on statutory conduct violations
o Bad Tendency Test – If the speech has a bad tendency, Congress may restrict
o Focus on Intent which is inferred - speaker intended the natural and probable consequences of his speech
o Practically – no voice of opposition allowed
o Does not view effect of the speech to determine if actually caused unlawful behavior
- Masses Publishing Co. – (SDNY 1917)
o Facts: postmaster refused to deliver issues because it was against the Espionage Act
o Learned Hand
o Test: Express Incitement - Focus on content of speech/not intent
§ Only if the content of speech expressly incites can Congress regulate
o Why advocate express incitement: need more protection than BT; people should be able to question decision and administration of war
o Con: Circumvent law & pose danger by not use express language
- Schenk - 1919
o J. Holmes – fire in theatre
o First iteration of C&P Test
o Prosecution based on statutory conduct violations
o Facts: ∆s convicted of violating EA of 1917 by circulating pamphlets obstructing the recruitment/enlistment
o Test: Clear & Present Danger – whether the words are used in circumstances and of such a nature to create a C&P danger that they will bring about the substantive evils Congress has a right to prevent
§ Focus: Circumstances
§ Not clear there is anything different than BT test
§ Conspiracy and action are the same thing
Application of Unlawful Advocacy Tests & Confusion
- Frohwerk – 1919
o Facts: ∆ published a newspaper article criticizing American war policies against Germany
o Prosecution based on statutory conduct violations
o J. Holmes
o Test: either BT OR C&P
§ Test language: little breath will kindle a flame/natural tendency and reasonably probable effect
§ Express C&P danger language missing
- Debs – 1919
o Facts: Speech at a public assembly by Debs (a major leader of Socialist party) about recruiting and enlisting services
o Prosecution based on statutory conduct violations
o Test: variation on BT - Natural tendency + specific intent
o No C&P language – begin to question if C&P is precedent
- *Although Homes’ opinion in Schenck used CPD language, at this point it appears CPD actually was nothing more than BT since Holmes wrote Frohwerk & Debs
Transition Case: Red Scare
- Abrams - 1919
o Facts: ∆s were Russian-American socialists; protest US entry into Bolshevik Russia; called for general strike
o Prosecution based on statutory conduct violations
o J. Clark – majority; affirms conviction citing Shecnk (CPD), Debs and Frohwerk (BT); Intent can be inferred from words
o Holmes Famous Dissent:
§ Advocates a more liberal application of CPD
§ Demanded either a significant level of clarity, imminence and danger OR intent [as a separate basis]
§ Greater protection of speech
§ 1st articulation of the Marketplace of Ideas
§ BT does not offer enough protection
§ Irony: No CPD because no one cares about Abrams; the more known a person à greater ability to distribute communication on mass level of unpopular ideas à greater the CPD
§ Reconciling SA of 1798 precedent – focus on Jefferson as next party in power and they pardoned and paid restitution to those who were convicted (not the best argument, but it is what Holmes had to work with)
- Gitlow v. NY – 1925 – Speech Specific
o Facts: Red Scare Case; ∆ left wing of the Socialist Party involved in getting Left Wing Manifesto published advocating overthrowing government (including: radical action, mass strikes, assassination of political leaders, revolution)
o Incorporates 1st via 14th without analysis (and the most discussion ever made)
o Test: Reasonableness – gives deference to state legislatures as long as they act reasonably
§ Still BT test – conduct regulations
§ Reasonableness overlays the BT because this is speech specific legislation
§ Less protective of speech than earlier cases because this is speech specific
o Holmes Dissent: CPD Test – absent a CPD or intent to produce a CPD, speech is protected (otherwise, every idea is an incitement)
§ Marketplace of ideas – even if socialism wins out (paradox – FOS would allow government to come to power to ban FOS)
- Whitney v. California – 1927
o Facts: ∆ prosecuted for association with left wing socialist movement, even though she was a moderate and loses the debate within the party to use a more moderate line
o Majority: Reasonableness Test – follow Gitlow
o Brandeis Concurrence (famous): substantively dissenting
§ Similar to Holmes’s dissent in Gitlow & Abrams
§ Test: CPD or intent to create CPD
· Intensity of the CPD
· Imminent - Reasonable ground to believe that serious harm will result
· Probability – denunciation of law, [condonation] of breach, expression of approval, advocacy of lawbreaking, past conduct
§ Philosophical justification:
· Self-governance – importance of engaged citizenry
§ Remedy for bad speech: counterspeech; logic/reason to beat bad speech (marketplace of ideas)
- Dennis v. US – 1951/Cold War/2nd Red Scare
o Facts: The Smith Act prohibiting advocating violent overthrow of the gov’t; ∆ conspired to advocated the overthrow of government
o Speech specific legislature
o Discards Reasonableness Test (from Gitlow & Whitney); HAR cases have discredited the reasonableness test
o Test: NEW CPD Test – Gravity of Danger x Probability = CPD
§ If the gravity of harm is high à probability only has to be low (vice versa)
§ Learned Hand formulation
§ Fluid balancing test
o Frankfurter concurrence:
§ Reasonableness test
o Jackson concurrence:
§ Split the test further
§ Homes/Brandeis CPD Test – less organized groups
§ Should not apply CPD Test – more organized groups
§ Influenced by Bio: Prosecutor for Nazi War criminals at Nuremburg; worried about disorder/conspiracy to overthrow government
o Black Dissent:
§ Holmes/Brandeis CPD – plurality is caught up in the same fear as legislature
o Douglas Dissent (how Holmes/Brandeis would have argued)
§ No imminent danger; threat is not domestic
§ How dangerous can ∆s be; no one is listening to communists
- After Dennis, Court is apply 3 versions of CPD:
o Holmes/Brandeis CPD: CPD or intent to produce CPD
o Fluid Balancing Test: Dennis – gravity of danger x probability = CPD
o BT version of CPD: Abrams, Frohwark, Debs
- Brandenburg v. Ohio - 1969
o Plurality opinion – written by J. Fortas before leaving
o Modern Test: Advocacy directed to imminent, likely, lawless action
§ Form of CPD – but rejects language – too confusing
§ Can’t punish for mere advocacy, unless these elements met (factors):
· Advocacy (may mean express language)
· Directed (some kind of intent)
· TO inciting or producing (presence)
· Imminent lawless action (danger)
· Likely to produce such action (clear/Clarity/LH)
o Very protective of speech
o Facts: KKK leader prosecuted under syndicalism statute for advocating political change using force and violence; prosecuted under Ohio law (same as law in Whitney)
o Uses overbreadth doctrine to find statute facially unconstitutional – does not include a distinction between advocacy and teaching
o Douglas concurring:
§ Agree the court should not use CPD
§ The line should be drawn at ideas vs. overt acts (problem: calling in bomb threat[?])
§ Too flexible a standard: fear can grip the court leading to restrictions
o Definitely overruled Whitney; case doubt over Dennis, Whitney & Schenk [Wiki]
- Application of Brandenburg
o Hess v. Indiana - 1973
§ Facts: Vietnam protestor, “we’ll take the fucking street later or again” during a demonstration
§ Not imminent
o NNACP v. Claiborne Hardware Co. – 1982
§ Facts: NAACP sponsored boycott of rally discriminating merchants in MS; “if you shop at the stores, we’ll break your necks”
§ Not imminent & No likelihood
§ Precedent condition
§ Hyperbole
o Speech is protected when crowd is listening to a speaker à and they are incited to act