Special 1st Amendment Problems

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• Special 1st Amendment Problems
• April 12, 2005

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Special Cases

• Prior Restraints
• Forced Speech
• Unconstitutional Conditions

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Framework for Analysis

• Is government regulating speech or some
  non-expressive action?
• If speech, apply appropriate level of scrutiny
• If non-expression, apply mid/lower-level
• Appropriate level of scrutiny
• Unprotected rational basis
• Lower-valued mid-level scrutiny
• Other (fully protected) strict scrutiny
• Special cases super-strict scrutiny
• Prior restraint
• Compelled speech

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Prior Restraints

• Originally licensing schemes
• Currently any govt action designed to prevent
  speech from occurring
• Licensing (permits, etc.) administrative
• Injunctions judicial
• Physically obstructing speech
• What makes prior restraints so bad?
• Predictive determined before speech occurs
• Punishment based on rule violation, not speech
• Any beneficial impact of speech entirely lost

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Prior Restraints

• Comparing Prior and Post-Restraints
• Both have a deterrent effect
• Specific deterrent in prior restraint
• General deterrent in post (punishing bad speech)
• Procedural protections differ
• Prior easier administrative or judicial (w/o
  jury)
• Post harder jury trial

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Prior Restraints Collateral Bar

• Walker v. City of Birmingham (1967)
• Injunctions (even if unlawful) must be obeyed
• Collateral bar rule prohibits testing
  constitu-tionality of the injuction after it is
  violated
• Court order must be procedurally valid
• E.g., court has jurisdiction
• Notice, hearing, etc.
• Compare other collateral challenges to court
  orders
• Licensing schemes also must be followed
• Poulos v. New Hampshire (1953)
• Unless facially invalid / Shuttlesworth (1969)

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Near v. Minnesota (1931)

• There have been too many men in this city and
  especially those in official life, who HAVE been
  taking orders and suggestions from JEW GANGSTERS,
  therefore we HAVE Jew Gangters, practically
  ruling Minneapolis.
• "Every snake-faced gangster in the Twin Cities is
  a JEW. Jew Gangters, practically rule
  Minneapolis."
• Enjoined as a public nuisance (malicious,
  scandalous, defamatory)

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Near v. Minnesota (1931)

• Would any remedy, short of restraining the
  speech, redress the injury caused by Near?
• When can prior restraints be justified?
• Near exceptions
• actual obstruction to the recruiting service
• announcing the sailing dates of transports, or
• the numbers and location of troops
• Unprotected speech
• Obscenity
• Incitement of violence

This speech is protected, but PR survives superSS
PR allowed if speech is unprotected but how do
you know?
9
NY Times v. United States (1971)

• Publication of material whose disclosure posed
  a grave and immediate danger to the security of
  the US

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NY Times v. United States (1971)

• Black (absolutist)
• Summary action - no oral argument
• Flagrant violation of express constitutional text
• No inherent presidential authority to halt the
  press (recall his view of SoP in Youngstown)
• Douglas (near absolutist)
• Stays themselves are a violation of free press
• Secrecy is fundamentally anti-democratic
• Brennan (near absolutist)
• Super Summary Judgment.
• Impose heaviest burden on gov't to make out a
  prima facie case for Near exception (not even
  alleged here)

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NY Times v. United States (1971)

• Stewart (rejects judicial participation)
• Self help for executive.
• The responsibility must be where the power is.
• White (SoP)
• In the absence of Congressional authorization,
  President's inherent powers not broad enough to
  enjoin press. But had Congress authorized, then
  prior restraint might be available because
  disclosure will do substantial damage to nat'l
  interests.
• Marshall (SoP)
• SoP issue Up to Congress to authorize prior
  restraints.

12
NY Times v. United States (1971)

• Burger (dissenting)
• Judicial haste unwarranted
• Courts function exceedingly narrow only to
  determine subject matter of disupte lies within
  executive branch
• Harlan (dissenting)
• Irresponsibly feverish
• No problem with TROs and regular calendar
• Greater deference needed to executive in national
  security matters.
• Blackmun (dissenting)
• Follow formal rules of procedure.
• Why did court rush to judgment?

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Forced Speech

• Background
• Official orthodoxy is odious to free govts
• Orthody enforced through licensing/prohibition
• More objectionable wrt forced speech
• If there is any fixed star in our
  constitu-tional constellation, it is that no
  official, high or petty, can prescribe what shall
  be orthodox in politics, nationalism, religion,
  or other matters of opinion or force citizens to
  confess by word or act their faith therein.

14
West Va. v. Barnette (1943)

• Compulsory flag salute pledge
• Is this speech?
• symbolism is a primitive but effective way of
  communicating
• applies both to the flag and to the salute
• the pledge is more traditional (verbal) speech
• Is it a religious belief (or violation of one)?
• Compelling state interest?
• Inculcation of civic virtue (patriotism)
• Necessary means?
• Frankfurter dissent. On what grounds?

15
Wooley v. Maynard (1977)

• The right to speak and the right to refrain from
  speaking are complementary components of the
  broader concept of individual freedom of mind

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Government Speech

• Government may speak
• It may promote its own (representative) views
• through official channels
• via third parties
• Examples
• School curricula
• Family planning policies
• It may not stiffle contrary speech
• But, when government speaks, it does not need to
  give a right to reply

17
Government Speech

• Distinction between governments own speech and
  funding 3rd party speech
• It may make content-based distinctions in the
  former, but not the latter
• Rust v. Sullivan (government speech)
• US funds family planning and expresses its
  opinion (through 3rd parties)
• It may choose which message to convey
• NEA v. Finley (independent 3d party speech)
• Not government speech, cannot discriminate
• Except as to subject matter in limited public
  forum

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LSC v. Velazquez (2001)

• Is this government or 3rd party speech?
• Is legal representation the expression of the
  governments own views
• would seem to violate due process if it were
• As 3rd party speech, what limitations can govt
  impose?
• Neither subject matter nor viewpoint restrictions
• This is a forum for advocacy that pre-existed

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Unconstitutional Conditions

• Discretionary governmental benefit
• UC doesnt apply if theres a constl right to
  the benefit (apply appropriate doctrine)
• Conditioned on relinquishment of constitu-tional
  right
• UC doesnt apply if benefit conferred
  unconditionally
• Substantial relationship (nexus) test
• Between condition and underlying purpose of the
  benefit