Overbreadth and Vagueness Doctrines

Here are some observations from Profs. Ides & May on these doctrines:

1. "The overbreadth doctrine creates a special First Amendment exception to the normal rules of standing, which bar a litigant from asserting the constitutional rights of third parties. The overbreadth doctrine allows an individual as to whom the application of the law may be constitutional to challenge the constitutionality of a law on the theory that as applied to other persons or under other circumstances the law violates the First Amendment. The essence of an overbreadth argument is that even though the challenged law may have some constitutional applications, its broad sweep encompasses protected speech activities and chills First Amendment rights of persons not before the Court to such an extent that the entire law must be struck down."

2. "The void for vagueness doctrine requires that all criminal statutes adequately describe the activities they prohibit. The doctrine is premised on two due process concerns--that persons potentially subject to the proscription be given fair notice of that which is proscribed and that officers charged with enforcing the law not be vested with arbitrary enforcement discretion. In the context of statutes that may tread on First Amendment rights, these due process concerns take on special significance. A vague statute that may include protected speech activity within its amorphous scope potentially runs afoul of the overbreadth doctrine by chilling protected speech. Under such circumstances, the overbreadth and void for vagueness arguments are essentially identical--the vagueness creates the overbreadth. Next, a vague statute that may be applied to speech activity and that vests enforcement officers with arbitrary authority to define the scope of the proscription runs a risk of permitting discriminatory enforcement on the basis of the favored or disfavored content of the speech. [What doctrine does this remind you of from our study of free exercise?] The vesting of such authority is itself unconstitutional."

Vagueness and Overbreadth

Coates v. Cincinnati (p. 44)

A Cincinnati ordinance makes it a criminal offense for “three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by.” What do you think of that ordinance?

Suppose Sean Lennon, Madonna, and Neil Young get together on the corner of 14th and O Streets and, to protest the war in Iraq, start singing “Give Peace A Chance” a capella as I walk by. Does this annoy me?

Is it protected speech?

On the other hand, suppose 3 or 4 skinheads get together and as I walk by scream insults and obscenities at me. Is this protected speech?

Maybe not (the Court has held that so-called “fighting words” are not protected by the First Amendment--abusive, insulting words that are likely to produce a violent reaction).

So one problem with this statute is that it is overbroad i.e. it sweeps beyond punishing unprotected activities and includes within its scope activities which are protected by the First Amendment.

Let’s assume that the law is enforced against the skinheads (and remember we are assuming that the language they used constitutes fighting words not protected by the first amendment).

Can the skinheads attack the statute as being unconstitutional “on its face” because it sweeps very broadly so as to cover both protected and unprotected speech?

Do they have standing to raise the claims of persons who might be prosecuted for engaging in protected speech that annoys someone?

You could view this as a third party standing issue, but I think the First amendment overbreadth doctrine is based more on First Amendment concerns than on justiciability concerns.

From a First Amendment perspective, why should we allow these skinheads, whose abusive speech is unprotected, to attack this law as unconstitutional on its face.

What effect does this kind of law have on protected speech? Assuming you knew of the existence of the law, would you be more likely or less likely to get together with 2 or 3 friends to protest against the war, or abortion, or high taxes, or police brutality?

The law has a chilling effect on constitutionally protected speech and there is also a danger that it will be selectively enforced against unpopular speakers.

[As one scholar explains: “The central rationale is that a special exemption from the usual standing rules is warranted in the free speech context because of the risk that overbroad laws will chill the exercise of first amendment rights.”]

[Another insight from the same scholar: “In effect, then, the overbreadth doctrine is an exception both to the traditional ‘as applied’ mode of judicial review and to the general rule that an individual has no standing to litigate the rights of third persons.”]

What do you think about the overbreadth doctrine? Do the benefits of the doctrine outweigh its costs?

The vagueness doctrine is closely related to the overbreadth doctrine.

Vagueness deals with the clarity of a challenged law. Generally, under procedural due process requirements, a criminal law must be drawn with sufficient clarity so as to provide fair notice to persons before making their activity criminal.

When laws regulate activities protected by the First Amendment, such as speech, assembly or association, the requirement of fair notice is of special importance. Do you agree? Why?

Again, a vague law restricting speech might chill protected speech. For example, what effect would the Cincinnati ordinance have on your decision to assemble with a few friends for the purpose of constitutionally protected (but perhaps offensive) speech?

In order to ensure that protected speech is not chilled and that there be clear guidelines to govern law enforcement, a statute will be declared void for vagueness if it is so vague as to bring protected speech into the prohibition or if it leaves citizens without clear guidance as to the nature of speech for which they can be punished. The Cincinnati ordinance in Coates violated both of these guidelines.

The idea is that the First Amendment needs “breathing space.” [413 U.S. at 611 – Broderick v. Oklahoma].

A law that is overbroad but not vague – A law prohibiting “all speech on public sidewalks.”

Vague but not overbroad – A law prohibiting “all speech not protected by the First Amendment.”

"11th Circuit Upholds County Legislative Prayers With Sectarian References"

Here is a report from the Religion Clause blog:

In Pelphrey v. Cobb County, Georgia, (11th Cir., Oct. 28, 2008), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, upheld the practice of the Cobb County Commission and the Cobb County Planning Commission to open their meetings with a prayer offered by local clergy or other members of the community, now invited randomly. The clergy have represented various faiths, and sometimes include in their prayers sectarian references. However the vast majority of clergy offering invocations have been Christian. Relying on the Supreme Court's decision in Marsh v. Chambers, the majority of the court held that county boards are not limited by the Establishment Clause to non-sectarian invocations so long as the prayers are not "exploited to proselytize or advance any one, or to disparage any other, faith or belief."

The appellate court, however, agreed with the district court that the prayer policy of the Planning Commission during 2003-04 was unconstitutional because it excluded certain faiths from the list of potential invitees. It agreed that nominal damages could be awarded for the violation. The majority opinion was written by Judge William Pryor who, before joining the court, was attorney general of Alabama. In that role he was part of a high profile church-state controversy involving the removal of Alabama's Chief Justice Roy Moore.

Judge Middlebrooks dissenting argued that the prayer policies of the county violate the Lemon test because they have both a religious purpose and effect and involve excessive entanglement of the state with religion. He argued further that the Marsh exception for legislative prayer should be limited to "invocations before the United States Congress and the state legislatures." He added:

I concur with the majority that judges, as representatives of the government, have no business editing or evaluating the content of prayer. However, I also believe that sponsorship of prayer by these commissions presents a similar, although less direct, danger. When state sponsored prayer is a perfunctory and sterile exercise marking the beginning of a commission agenda, religion becomes the casualty.

Americans United issued a press release criticizing the decision. Yesterday's Columbus (GA) Ledger-Enquirer reported on the decision.

Happy Halloween

Prior Restraint

Prior restraint on speech is generally regarded, both by the Court and by commentators, to be more serious than subsequent punishment.

Why should that be so? If a particular utterance or publication may be punished after the fact, what is wrong with enjoining or otherwise preventing the speech from ever taking place?

Professor Alexander Bickel once said that a criminal statute and the fear of subsequent punishment “chills” speech, but prior restraint “freezes” speech.

According to Prof. Nowak:

“The injunctive remedy with its speedier procedural framework [and lower standard of proof] is thus more subject to abuse and to indiscriminate application, whereas criminal prosecution entails a more thorough self-selection process resulting in fewer applications and successes. The overall chilling effect on speech is consequently less with criminal prosecution. Also, even if a temporary restraining order is ultimately found to have been improperly granted, the Government may have in fact achieved its end by restraining speech at a crucial time. Although the speech may be subsequently allowed, its impact may then be negligible because of time elapsed. If subsequent punishment chills prior restraint freezes.”

Suppose the Lincoln Journal is about to publish a libelous article about me. The article is full of untrue and scandalous charges about me. Should I be able to enjoin its publication, or should I be limited to my remedy of suing for damages once the article is published and my reputation is destroyed?

In its modern form, the doctrine of prior restraint “provides that prior restraints are highly suspect both substantively and procedurally and are subject to a rebuttable presumption of unconstitutionality. In seeking to justify use of such a restraint the government bears a heavy burden of proof. Generally, the Court has professed to employ the clear and present danger doctrine in reviewing such prior restraint systems.” (Profs. Barron & Dienes).

Suppose the Lincoln Journal is about to publish some state secrets it has obtained from some unknown source. The secrets concern, let’s say, our battle plans for an offensive against the enemy. Or the location of our battleships and nuclear missiles.

Should the United States government be able to enjoin publication of these classified military secrets?

[“In the field of national security, by contrast, virginity matters. The harm that may be expected to flow from revealing a state secret is almost exclusively related to the first publication.” Jeffries, Rethinking Prior Restraint, 92 Yale L.J. 409, 412 (1002)].

Prior Restraint Hypo

Here is a hypo I am borrowing from Profs. Ides and May:

"Modern Mercenary, a monthly periodical, is about to publish an article entitled "Five Easy Steps to Making Your Own Thermonuclear Device." The author of the piece, G.I. Jones, is a nuclear physicist who gathered...his information from nonclassified sources....Although the government doubts that Jone's article will lead to the basement construction of nuclear weapons, government experts claim that publication will possibly provide sufficient information to allow a medium-sized nation[such as, perhaps, Iran] to move faster in developing a thermonuclear weapon."

Assume that federal law authorizes injunctive relief against anyone who publishes scientific data concerning weapons of mass destruction "with reason to believe such data will be utilized to injure the United States or to secure an advantage to any foreign nation." Would it be constitutional for a federal court to enjoin Modern Mercenary from publishing the above-described article?

"High court agrees to consider religious-monument dispute"

Here is a news item from the First Amendment Center:

By The Associated Press
03.31.08

WASHINGTON — The Supreme Court has agreed to consider a free-speech case in which a church wants to place a religious monument in a park.

Officials in Pleasant Grove City, Utah, asked the Court to step into the lawsuit brought by the religious group known as Summum, saying that if the group prevails, governments could be inundated with demands to display donated monuments.

The dispute stems from Pleasant Grove City's refusal to allow the display of a "Seven Aphorisms of Summum" monument in the same park that is the home for a Ten Commandments monument donated by the Fraternal Order of Eagles 47 years ago.

At issue is whether a donated monument displayed by a municipality remains the private speech of the original donor or is government speech. Another issue is whether placing donated monuments in a government-owned park creates a public forum or whether the government retains authority to select which monuments to display.

The 10th U.S. Circuit Court of Appeals in Denver ruled that the monument remains the private speech of the donor and that the park is a public forum.

"Government bodies are now sitting targets for demands that they grant 'equal access' to whatever comparable monuments a given group wishes to have installed, be it Summum's Seven Aphorisms, an atheist group's Monument to Freethought or Rev. Fred Phelps's denunciations of homosexual persons," lawyers for Pleasant Grove City wrote in asking the Supreme Court to intervene.

In response, the religious group says government bodies always have the option of banning display of all privately donated monuments. Pleasant Grove City has treated donated items as private speech for decades, said the religious group, Summum, a Latin term meaning the sum total of all creation, was founded in 1975 and is headquartered in Salt Lake City. The Seven Aphorisms refer to a notion that when Moses received stone tablets on Mount Sinai inscribed with writings made by a divine being, he actually received two separate sets of tablets — the Seven Aphorisms and the Ten Commandments.

The case is Pleasant Grove City v. Summum, 07-665.

And here is a bit more on the case.

New York Times v. Sullivan

Here is agreat description of why libel and slander is harmful:

"Telling lies about others
is as harmful as hitting them with an ax,
wounding them with a sword,
or shooting them with a sharp arrow."

Proverbs 25:18 (New Living Trans)

Here is an excerpt from an article written by David Hudson Jr.:

New York Times Co. v. Sullivan
The case arose out of the backdrop of the civil rights movement. The New York Times published an editorial advertisement in 1960 titled "Heed Their Rising Voices" by the Committee to Defend Martin Luther King. The full-page ad detailed abuses suffered by Southern black students at the hands of the police, particularly the police in Montgomery, Ala.

Two paragraphs in the advertisement contained factual errors. For example, the third paragraph read:

“In Montgomery, Alabama, after students sang 'My Country, Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and teargas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to re-register, their dining hall was padlocked in an attempt to starve them into submission.”

The paragraph contained undeniable errors. Nine students were expelled for demanding service at a lunch counter in the Montgomery County Courthouse, not for singing 'My Country, 'Tis of Thee' on the state Capitol steps. The police never padlocked the campus-dining hall. The police did not "ring" the college campus. In another paragraph, the ad stated that the police had arrested Dr. Martin Luther King Jr. seven times. King had been arrested four times.

Even though he was not mentioned by name in the article, L.B. Sullivan, the city commissioner in charge of the police department, sued The New York Times and four black clergymen who were listed as the officers of the Committee to Defend Martin Luther King.

Sullivan demanded a retraction from the Times, which it refused. The paper did print a retraction for Alabama Gov. John Patterson. After not receiving a retraction, Sullivan then sued the newspaper and the four clergymen for defamation in Alabama state court.

The trial judge submitted the case to the jury, charging them that the comments were "libelous per se" and not privileged. The judge instructed the jury that falsity and malice are presumed. He also said that the newspaper and the individual defendants could be held liable if the jury determined they had published the statements and that the statements were "of and concerning" Sullivan.

The jury awarded Sullivan $500,000. After this award was upheld by the Alabama appellate courts, The New York Times appealed to the U.S. Supreme Court. The high court reversed, finding that the "law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct."

For the first time, the Supreme Court ruled that "libel can claim no talismanic immunity from constitutional limitations," but must "be measured by standards that satisfy the First Amendment." In oft-cited language, the high court wrote:

“Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

The Court reasoned that "erroneous statement is inevitable in free debate" and that punishing critics of public officials for any factual errors would chill speech about matters of public interest. The high court established a rule for defamation cases that dominates modern-day American libel law. The Court wrote:

“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

The Court required a public official defamation plaintiff to show evidence of actual malice or reckless disregard for the truth by "convincing clarity" or clear and convincing evidence. This threshold has meant that many defamation defendants have stopped defamation suits before they go to a jury.

Is Joe the Plumber

A public figure under New York Times v. Sullivan?

Suppose the New York Times, in a story covering the 2008 presidential election, negligently (but not intentionally or recklessly) published a report that falsely accused Joe of being guilty of fraud in his plumbing business?

Post-Sullivan Developments

Here is another excerpt from David Hudson's article:

Extending Times v. Sullivan to public figures
The high court extended the rule for public official defamation plaintiffs in 1967 in the consolidated cases of Curtis Publishing Co. v. Butts and The Associated Press v. Walker. The cases featured plaintiffs Wally Butts, former athletic director of the University of Georgia, and Edwin Walker, a former general who had been in command of the federal troops during the school desegregation event at Little Rock, Ark., in the 1950s.

Because the Georgia State Athletic Association, a private corporation, employed Butts, and Walker had retired from the armed forces at the time of their lawsuits, they were not considered public officials. The question before the Supreme Court was whether to extend the rule in Times v. Sullivan for public officials to public figures.

Five members of the Court extended the Times v. Sullivan rule in cases involving "public figures." Justice John Paul Harlan and three other justices would have applied a different standard and asked whether the defamation defendant had committed "highly unreasonable conduct constituting an extreme departure from the standards investigation and reporting ordinarily adhered to by responsible publishers."

Limited-purpose public figures
The Supreme Court clarified the limits of the "actual malice" standard and the difference between public and private figures in defamation cases in Gertz v. Robert Welch, Inc. (1974). The case involved a well-known Chicago lawyer named Elmer Gertz, who represented the family of a young man killed by police officer Richard Nuccio. Gertz took no part in Nuccio's criminal case, in which the officer was found guilty of second-degree murder.

Robert Welch Inc. published a monthly magazine, American Opinion, which served as an outlet for the views of the conservative John Birch society. The magazine warned of a nationwide conspiracy of communist sympathizers to frame police officers. The magazine contained an article saying that Gertz had helped frame Nuccio. The article said Gertz was a communist.

The article contained several factual misstatements. Gertz did not participate in any way to frame Nuccio. Rather, he was not involved in the criminal case. He also was not a communist.

Gertz sued for defamation. The court had to determine what standard to apply for private persons and so-called limited purpose public figures. Then, the Court had to determine whether Elmer Gertz was a private person or some sort of public figure.

The news-media defendant argued that the Times v. Sullivan standard should apply to any defamation plaintiff as long as the published statements related to a matter of public importance. Justice Brennan had taken this position in his plurality opinion in the 1971 case Rosenbloom v. Metromedia.

The high court disagreed, finding a distinction between public figures and private persons. The Court noted two differences: (1) Public officials and public figures have greater access to the media in order to counter defamatory statements; and (2) public officials and public figures to a certain extent seek out public acclaim and assume the risk of greater public scrutiny.

For these reasons, the Gertz Court set up a different standard for private persons:

“We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.”

This standard means that a private person does not have to show that a defendant acted with actual malice in order to prevail in a defamation suit. The private plaintiff usually must show simply that the defendant was negligent, or at fault. However, the Supreme Court also ruled that private defamation plaintiffs could not recover punitive damages unless they showed evidence of actual malice.

In its opinion, the high court also determined that certain persons could be classified as limited-purpose public figures with respect to a certain controversy. The Court noted that full-fledged public figures achieve "pervasive fame or notoriety." However, the court noted that sometimes an individual "injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues." These limited-purpose public figures also have to meet the actual-malice standard.

The high court then addressed the status of Gertz. The high court determined that he was a private person, not a limited-purpose public figure. "He took no part in the criminal prosecution of Officer Nuccio," the court wrote. "Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so."

Status of the plaintiff
These cases show that perhaps the most important legal issue in a defamation case is determining the status of the plaintiff. If the plaintiff is a public official, public figure or limited-purpose public figure, the plaintiff must establish that the defendant acted with actual malice with clear and convincing evidence.

If the plaintiff is merely a private person, the plaintiff must usually only show that the defendant acted negligently. If the private person wants to recover punitive damages, he or she must show evidence of actual malice.

Here are a few more notes of mine:

Public Person\Public Concern

Actual Malice

Private Person\Public Concern

Some fault (negligence) plus actual malice for presumed or punitive damages.

Private Person\Private Concern

Probably common law rules apply (certainly no need to prove actual malice for any reason). Dun and Bradstreet did not discuss whether the Gertz negligence standard still applies in this situation. But see p. 80 – this speech “warrants no special protection.”

Public Person\Private Concern

?

Suppose the Lincoln Journal runs a story that discloses that Dr. Grutz and Dr. Butcher, two local dentists, have tested positive for HIV (AIDS).

Grutz sues and alleges that the statement is false and defamatory. Assume the paper had two reliable sources and had called Dr. Grutz’s office 3 times (and he had failed to return their calls).

Would the Constitution allow Grutz to recover compensatory damages on a strict liability theory?

Is Dr. Grutz a public figure (see Gertz at p. 78 “public figure for a limited range of issues”)?

If Grutz is a private person under Gertz, can state defamation law provide strict liability for false and defamatory statements? (Gertz says “no” p. 76 - But query is Gertz still good law if the speech involves matters of private concern? See Dunn & Bradstreet and Milkovich).

Now, suppose Dr. Butcher sues and admits the truth of the statement. Should he be allowed to recover under a privacy theory (i.e. that the newspaper had publicly disclosed intimate details of his private life).

When the First Amendment collides with a reasonable expectation of privacy you get a hard case. Should the press be permitted to publish the HIV status of Grutz and Butcher?

Does the public have a right to know?

Recent Federal RFRA Case

From the ReligionClause blog:

Justice Department 2007 Memo Says RFRA Trumps Non-Discrimination Law

Yesterday’s New York Times reported on a 25-page memorandum (full text) written in 2007, but released only last week, by the Justice Department’s Office of Legal Counsel (OLC). The memo concludes that the Religious Freedom Restoration Act (RFRA) trumps the religious anti-discrimination provisions of the Juvenile Justice and Delinquency Prevention Act (JJDPA). The memo concludes that a Christian organization, World Vision, could receive a federal grant to support its Vision Youth Program (which is directed toward "at-risk youth") even though the organization hires only Christian staff. The program serves youth regardless of religious affiliation.

In the memo, OLC concluded that requiring World Vision to comply with the JJDPA nondiscrimination provision would substantially burden its religious exercise, and enforcing the religious nondiscrimination provision would not further a compelling governmental interest. Some civil rights groups took strong exception to the newly released memo. ACLU senior legislative counsel Christopher E. Anders called it "the church-state equivalent of the torture memos."

Lincoln Zoo: Diversity Means No Bible Quotations

From the national paper of record, the Journal Star:

Noah and his animals will be a no show at this year’s Boo at the Zoo.

The sponsors of a booth featuring the biblical character — First Evangelical Covenant Church, daVinci’s Restaurants and Champions Fun Center — opted to end their long-time affiliation with the Lincoln Children’s Zoo fundraiser rather than comply with the zoo’s human diversity policy prohibiting religious verses and references.

Kelly Knudson of daVinci’s said that while he supports the zoo and Boo at the Zoo, his company and fellow sponsors will not comply with the order to stop handing out coupons with biblical stories on the back.

“We were very put off by it,” Knudson said Monday. “We have never had one complaint in 15 years. The church has had no complaints in 15 years.”

Zoo Executive Director John Chapo said the zoo’s policy reflects its commitment to the cultural diversity of Lincoln.

“We recognize and value the ethnic, religious and racial richness of our community, and we encourage mutual respect and understanding among all people,” Chapo said.

Boo at the Zoo started in 1977. It is the zoo’s largest fundraiser.

“We are trying to accomplish a couple of things: Raise needed funds for the zoo, and provide a safe trick-or-treating opportunity, and welcome all of our community,” Chapo said.

Toward the goal of welcoming all, he said, the zoo told the daVinci’s group to remove the Bible story of Noah’s Ark from the back of the coupons to be distributed during Boo at the Zoo.

“We encouraged them to put on their name, their address, their hours, their contact information, their Web site and even their children’s program times,” Chapo said.

The zoo said the daVinci’s treat station could continue with its Noah’s Ark theme, which included a model ark and costumed characters of Noah and the animals.

“The handing out of the Bible verse was the issue,” Chapo said.

Knudson agreed.

“The story on the back is a big deal,” he said. “The church was very upset about removing it, and so were we. We are a Christian company, and that (Boo at the Zoo) is one of our outreaches.”

How is it advancing diversity for the zoo to exclude Bible quotations?

Brandenburg and the Triumph of Holmes' and Brandeis' Theories

Ohio’s Criminal Syndicalism law prohibited advocacy of using unlawful means to accomplish industrial or political reform.

What did the defendant do to get himself in trouble in this case?

Basically he organized a Ku Klux Klan rally and said that “if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, its possible that there might have to be some revengeance taken.” (p. 36).

Notice that the Ohio statute is very similar to the California statute upheld by the Court in Whitney. But also notice that the Court makes clear that Whitney has been discredited and proceeds to adopt the substance of the clear and present danger test as advocated by Justice Brandeis and Holmes in their concurring opinion in Whitney.

What is the Brandenburg test? (p. 36)

The “constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation” S T O P. That is the general rule! The state may not prohibit advocacy of the use of force or unlawful means. The general rule is freedom of speech.

What is the exception?

“[E]xcept where such advocacy is directed [i.e. intended] to inciting or producing imminent lawless action and is likely to incite or produce such action.”

To be actionable, radical speech must 1) be intended to incite imminent lawless action and 2) it must be likely that such speech will incite or produce such action. Basically, the model is falsely shouting fire at a crowded Hannah Montana concert. Probable, serious, and immediate.

When there is no immediate threat of serious harm, the remedy for bad speech is good counterspeech. The Court does not use the words “clear and present danger,” but this test is substantively quite similar to the one urged by Brandeis in Whitney.

Here is how one commentator describes the Brandenburg test –

“With its emphasis on incitement, imminent, lawless action, and the objective words of the speaker, it should provide a strong measure of first amendment protection.” (Nowak at 865).

What do you think? Can you live with Brandenburg? How would the old draft obstruction cases come out under Brandenburg?

What about our Dean’s Office hypo? Am I protected by the First Amendment when I address an unruly mob of law students, work them to a frenzy by pointing out the unfairness of the library fee, and urge them to “burn down the Dean's office”?

What about the clever inciter, who avoids using express words of incitement?

[Nowak at p. 876: “Should the Court confront a situation where a speaker advocates violence through the use of a speech which does not literally advocate action, such as Marc Antony’s funeral oration for Caesar, the majority might be urged to abandon the protections of the Brandenburg test and instead look for proximity to violence rather than the literal words of incitement.”]

Notice that the Brandenburg test is simply a specialized form of strict scrutiny – restricting speech must be absolutely necessary to prevent a great and imminent evil.

Holmes and Brandeis in Gitlow and Whitney

The defendants in Gitlow were convicted of violating the New York Criminal Anarchy Act, which prohibited the advocacy of the “duty, necessity or propriety” of violent or unlawful overthrow of government. Remember the Thomas Jefferson quotations!

Gitlow and his colleagues had circulated a radical "Manifesto" that encouraged the overthrow of the government by “political mass strikes and revolutionary mass action.” (p.16)

Sounds like a course description for the typical political science class at my alma mater, the University of Massachusetts.

What result if we apply any serious kind of “clear and present danger” test?

Is the danger of violent or unlawful overthrow clear (i.e. likely)?

No.

Is the threat “immediate”?

No. As Justice Holmes pointed out in his dissent, the manifesto was merely a “redundant discourse” that had “no chance of starting a present conflagration.” (p. 18)

What test does the majority apply then?

First, one of great deference to the legislative decision that certain words “advocating the overthrow of organized government by force, violence and unlawful means, are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power.” (p. 17)

The legislature has the power to stamp out even a “single revolutionary spark” – it may “suppress the threatened danger in its incipiency.” (p. 17).

Whitney v. California (p. 19) is a similar case applying minimal scrutiny to California’s attempt to suppress membership in radical organizations.

What is important about Whitney, which has now been thoroughly discredited, is the dissent (actually a concurrence that reads like a dissent) of Brandeis and Holmes. This is perhaps their best attempt at describing the clear and present danger test.

Under the Brandeis-Holmes view, what does the State need to show in order to suppress radical speech?

P. 20:

1) There must be reasonable ground to fear that serious evil will result if free speech is practiced.

2) There must be reasonable ground to believe that the evil to be prevented is imminent.

3) There must be reasonable ground to believe that the evil is serious.

4) But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on.

There must be an “emergency” justifying suppression of speech.

When there is no threat of immediate serious harm, the remedy for evil speech is good counter-speech.

I think we’ll discover in the next couple of classes that Brandeis and Holmes’ defense of free speech ultimately prevailed.

Probable, serious and immediate.

Holmes in Abrams

Defendants were sentenced to 20 years in prison for sending out circulars criticizing President Wilson and calling upon the “workers of the world” to engage in a general strike in order to interfere with the war effort.

Did the Court conclude that these writings posed a clear and present danger to the war effort?

No. Schenk controls. The Abrams Court added a new wrinkle to the test – speech could be suppressed if it creates a present danger of immediate evil or if the speaker specifically intends to create such a danger. (p.12)

What is interesting about this case is Justice Holmes’ dissenting opinion in which he more fully discusses his “clear and present danger” test (p. 13):

I think we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. . . . Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command” of the First Amendment.

Is Holmes’ understanding of the clear and present danger test in Abrams consistent with the way he applied the test in Schenck?

Holmes in Schenck

The defendants in Schenck mailed circulars to men subject to the draft asserting that the draft was inconsistent with the 13th Amendment's ban on involuntary servitude and urging the men not to “submit to intimidation.’

How is that a crime? What’s wrong with urging people to assert their arguable rights under the Constitution?

Schenck and the other defendants were charged with conspiracy to violate the Espionage Act, because the “tendency” of these circulars was to stir up discontent and thus influence persons to obstruct the draft.

What did the Supreme Court hold?

Convictions affirmed – Justice Holmes wrote for a unanimous Court:

“The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” (p. 11)

What does that mean? “Clear” (likely?) “Present” (“immediate”).

What do you think of Justice Holmes’ analogy – the First Amendment does not protect “a man in falsely shouting fire in a crowded theater and causing a panic.”

What is wrong with shouting fire in a crowded theater? Suppose the theater is actually on fire? Suppose it is at least arguable that the theater may be on fire?

Does falsely shouting fire in a crowded theater communicate any substantial message to the crowd?

Falsely shouting “fire” in a crowded theater is actionable because there is a “clear and present danger” of causing a panic resulting in serious injury or even death. (Clear = likely; present = immediate). Suppose I send a note to regular patrons of the Lied which says “the Lied is on fire”?

Suppose I stand up and shout “there may be a fire next month in the theater”?

In Schenck, was there a “clear and present danger” that these circulars would jeopardize the war effort or that recruiting and enlistment would grind to a halt?

Would you have affirmed the convictions in Schenck? If not, why not?

Because the danger was not sufficiently likely? Not sufficiently grave?

Because it was not sufficiently present?

Because there was no specific intent?

Because there was no specific incitement?

Why require that the danger be present?

If you take the clear and present danger test seriously, the reason we fear speech is because it is likely to produce an immediate grave harm. If the harm is not immediate, then we have an opportunity for counter-speech. Suppose I take a group of students on a cruise to Australia and argue that they should burn down the Dean’s office when they get back to protest the library fee. How is this different from my standing before an angry mob of students outside the Dean's office and urging them to burn it down?

Radical Political Speech and the "Clear and Present Danger" Test

Notice that these cases involve criminal prosecution of speakers engaged in political speech. The issue here is not about access to a public forum or to public funds; it is about whether a speaker may be imprisoned based upon the content of his speech. For example, Eugene Debs was sentenced to 10 years in prison for a speech that compared the draft to slavery and as treating young men as "cannon fodder." See casebook page 12, note 2. I heard antiwar, ant-draft speeches stronger than this almost daily at the University of Massachusetts in 1969! Indeed, I often heard UMass Professors give speeches stronger than the one that got Debs imprisoned as asides in the classroom!

As the casebook points out, the background of our First Amendment is not one of freedom, but rather of suppression of freedom of speech and of the press.


The English background is replete with prosecutions for seditious libel (which was often defined to mean any statement critical of the King) and with prior restraint on the press through printing monopolies and prior licensing requirements.

Historians and scholars disagree on the original understanding of the First Amendment, but the best and most recent scholarship suggests that it was not a broad charter of freedom, but rather an attempt to make clear that the states had exclusive authority to regulate speech without interference from Congress. Leonard Levy, one of the leading legal historians and an expert on the Constitution, has stated that the view that the First Amendment was intended as a broad libertarian charter for freedom of speech is merely a “sentimental hallucination.” [See casebook at p. 5: “The primary purpose of the first amendment was to reserve to the states an exclusive authority, as far as legislation was concerned, in the field of speech and press.”]

The Supreme Court did not have an opportunity to construe the First Amendment until the time of World War I. The First Amendment was not applied to the states until 1925 in Gitlow v. New York.

So our idea that the First Amendment protects almost all forms of speech and publications is a relatively recent point of view.

But nevertheless, at least as applied to Congress, the text of the First Amendment literally appears to be quite broad:

“Congress shall make no law . . . abridging the freedom of speech, or of the press.”

How should the First Amendment be interpreted? Should it be interpreted absolutely to protect all or most forms of communication?

Radical Political Speech?

Pornography?

Flag Burning?

Racist Speech?

Is free speech always good, because we can rely on the marketplace of ideas to separate good speech from bad speech, truth from untruth?

Or is speech capable of causing harm, and thus should be subject to police power regulation like other types of harmful behavior?

Let’s take three situations involving what we might call “dangerous” speech.

Suppose the City of Lincoln passes a huge tax increase to support public education. A protest demonstration is held by a large crowd in front of the Lincoln Schools Administration Building.

Case One

Grutz successfully exhorts the crowd to “burn the Administration building to the ground.”

Case Two

Butcher, who specifically intends to incite the crowd to burn the building, says only “we must take revenge.” The angry crowd proceeds to burn down the building.

Case Three

Spano, who intends only to persuade the crowd to vote the school board out of office, but who should reasonably have known that his rhetoric could incite the angry crowd to violence, says “we must take revenge” with the same result.

Under the First Amendment, should the state have the power to punish the speakers in any of these cases? If so, in which ones and why?

To what extent should the good or bad intent of the speaker affect the analysis?

At what point does advocacy of ideas become incitement to riot?

How about old Tom Jefferson. He once wrote, in a letter to James Madison, “I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.”

Again, in a letter to William S. Smith (Nov. 13, 1787), Jefferson said “what country can preserve it’s liberties if their rulers are not warned form time to time that their people preserve the spirit of resistance? Let them take arms. . . the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure.”

Well, how about it. Should Jefferson be punished for advocating armed rebellion against government? Suppose he gave his speech to a crowd of angry tax protestors assembled in front of City Hall? Suppose he published these statements on his “Down with Tyrannical Taxes” web site on the internet?

FYI--Prof. Robert George Lecture on Natural Law

Prof. Robert George of Princeton University is one of the leading scholars on natural law.

Here is a link to a lecture of Robbie's on Natural Law, God, and Human Rights.

I am not assigning this, but if you are interested in this topic, Robbie is the best I know.

Congratulations, Nestor

Congratulations to the Tampa Bay Rays and their number 1 fan, our very own Nestor!

It was a great series and a great game 7 win.

The Case of the Wiccan Soldier's Grave Marker

Consider this excerpt from a recent NYT article (link):

To settle a lawsuit, the Department of Veterans Affairs has agreed to add the Wiccan pentacle to a list of approved religious symbols that it will engrave on veterans’ headstones.

The settlement, which was reached on Friday, was announced on Monday by Americans United for the Separation of Church and State, which represented the plaintiffs in the case.

Though it has many forms, Wicca is a type of pre-Christian belief that reveres nature and its cycles. Its symbol is the pentacle, a five-pointed star, inside a circle.

Until now, the Veterans Affairs department had approved 38 symbols to indicate the faith of deceased service members on memorials. It normally takes a few months for a petition by a faith group to win the department’s approval, but the effort on behalf of the Wiccan symbol took about 10 years and a lawsuit, said Richard B. Katskee, assistant legal director for Americans United.

The group attributed the delay to religious discrimination. Many Americans do not consider Wicca a religion, or hold the mistaken belief that Wiccans are devil worshipers.

“The Wiccan families we represented were in no way asking for special treatment,” the Rev. Barry W. Lynn, executive director of Americans United, said at a news conference Monday. “They wanted precisely the same treatment that dozens of other religions already had received from the department, an acknowledgment that their spiritual beliefs were on par with those of everyone else.”

A Veterans Affairs spokesman, Matt Burns, confirmed that the “V.A. will be adding the pentacle to its list of approved emblems of belief that will be engraved on government-provided markers.”

“The government acted to settle in the interest of the families concerned,” Mr. Burns added, “and to spare taxpayers the expense of further litigation.”

There are 1,800 Wiccans in the Air Force, according to a Pentagon survey cited in the suit, and Wiccans have their faith mentioned in official handbooks for military chaplains and noted on their dog tags.

At least 11 families will be immediately affected by the V.A.’s decision, said the Rev. Selena Fox, senior minister of Circle Sanctuary, a Wiccan church in Wisconsin.

Does a policy that allows symbols of only selected religions to be engraved on government-provided grave markers for veterans violate the EC? The FEC? Suppose the exclusion was based upon whether the deceased veteran had attended a pervasively sectarian religious college or had majored in devotional theology?

Here is a link to the governments "Available Emblems of Belief for Placement on Government Headstones and Markers." The Wiccan Pentancle is now included.

Fall 2008 Syllabus: Con Law II

Photo of "Sunset Meadows" by Hannah Duncan



Richard F. Duncan: Room 220 Law, email:conlawprof@yahoo.com, phone:472-6044

Office Hours: I don't maintain specific office hours; I have an open door policy and I will be in the office regularly and welcome your visits or appointments.

Attendance Policy: Attendance is required.

Exam: Your entire grade for the course will be based upon your score on the final exam

Casebook: William Cohen, The First Amendment (Foundation Press 2003)

Online Materials: Professor William Linder's Exploring Constitutional Law (Link)

For Fall 2008, students should be prepared for 1 full assignment for each class. In other words, you should be prepared to discuss one complete assignment (plus anything left over from the previous day's class) at all times. I may make a few minor adjustments to these assignments as the course progresses to include some links to recent First Amendment cases or issues.

Be sure to check this blog every day for announcements, additional required and optional reading, and discussion of cases and issues raised in the reading. In fact, if you scroll down you will see that I have already posted a couple of items for our first class discussion.

LIST OF ASSIGNMENTS

I. Establishment Clause

1. Duncan article, "Justice Thomas and Partial Incorporation...." (available in handout rack near South Side Faculty offices); Casebook p. 464-482; Linder Introduction (Link); Engel v. Vitale (Link); Handout 1(handout rack)

2. Casebook p. 482-487: Handout 2; Prof. Linder's page on "The Evolution Controversy" (Link)

3. Casebook p.487-515; Handouts 3 and 4

4. Ten Commandments decisions: Van Orden (link) & McCreary County (link)

5. Casebook p. 516-550

6. Casebook p. 550-560; Rosenberger Oral Argument

7. Newdow case (Link) ; Casebook p. 311-313; my Larson (denominational discrimination) article excerpt (Handout provided)

II. Free Exercise Clause

1. Linder Introduction (Link); Reynolds case (Link); Casebook p. 560-567

2. Casebook p. 567-578; Handout 5; Handout 6 (Lukumi and Axson-Flynn);my "Individualized Exemptions and Hogwarts" article (reprint provided)

3. Locke v. Davey (Handout 7); my article on Davey (reprint provided)

4. Casebook p. 578-588; Cutter v. Wilkinson (link); optional materials on Cutter (Link)

5. Capstone problem (Free Exercise and Establishment Clauses): Colorado Christian University v. Weaver (link)

III. Freedom of Expression (Including Public Forum Analysis, Public Schools, Subsidized Speech, and Expressive Association)

1. Casebook p. 1-42 (read mostly for background--our class discussion will focus on Brandenburg)

2. Casebook p.42-66

3. Casebook p.66-83

4. Casebook p.99-116

5. Casebook p. 117-139

6. Casebook p.139-160

7. Casebook p. 206-228

8. Casebook p. 228-244

9. Casebook p. 262-279; Morse v. Frederick (link);

10. Speech of Government Employees: Connick (casebook p. 394-400); Pickering (link); Garcetti (link)

11. Casebook p. 279-298 (Re-read Locke v. Davey Handout 7)

12. Casebook p. 299-306

13. Casebook p. 311-324; Christian Legal Society v. Washburn University (Link)

Recent Free Exercise Cases From the Religion Clause Blog

1.

Court Allows Native American Kindergartner Into Class With Long Hair

The Houston Chronicle reported on Friday that parents of a Needville, Texas kindergartner have been successful in convincing a federal district judge to issue a preliminary injunction ordering school officials to permit 5-year old Adriel Arocha to return to his regular school classroom with his long hair in plain sight. The ACLU of Texas had filed suit on behalf of the Native American student who insisted on wearing his hair long, in violation of the school dress code, for religious reasons. The school had offered to accommodate Arocha by allowing him to wear his hair in a single braid tucked into his shirt. He had refused, and was being taught separately from his classmates in a one-on-one setting until he complied.

2.

Traditional Pre-Yom Kippur Ritual Rasies Some Legal Concerns

The Jewish holiday of Yom Kippur begins Wednesday evening. Legal authorities in some cities are raising questions about a pre-Yom Kippur ceremony observed by some Orthodox Jews. The ritual of Kaparot, in its traditional form, involves swinging a live chicken around one's head, symbolically transferring one's sins to it. Afterwards the chicken is slaughtered and donated as food to the poor.

The Bay Area Independent Media Center reported last week from Los Angeles that the city's Animal Services general manager is discouraging the ceremony. Many Jews, as an alternative, place money in a handkerchief, swing it over their head, and then donate it to the poor. Kaparot using animals may be illegal in Los Angeles. Under Los Angeles Municipal Code, Sec. 53.67, it is illegal to kill "any animal in any religious ... ritual ... [if not done] primarily for food purposes, regardless of whether ... such animal is subsequently consumed."

Meanwhile, according to Friday's Lower Hudson Journal-News, in Monsey, New York, many again this year plan to carry out the traditional pre-Yom Kippur ritual using chickens. In January, a group was fined for not cleaning up the area in which the chickens were slaughtered at last year's ceremony. In past years, the Hudson Valley Humane Society for the Prevention of Cruelty to Animals found chickens brought in for the ceremony housed in poor conditions, sometimes without food or water. However this year a new site is being used, and, according to Humane Society inspectors, those in charge are now treating the chickens well prior to slaughter.

Gay Rights vs. Free Exercise of Religion

Some scholars think that one of the greatest threats to religious liberty in modern America is the clash between free exercise and gay rights regulations. Here is a recent example from the Religion Clause blog (link):

"State Hears Religious Defense To Sexual Orientation Discrimination

An Alliance Defense Fund release reports that a hearing was scheduled for yesterday and today before the New Mexico Human Rights Division on a complaint by a lesbian couple that a photographer discriminated against them when she refused to photograph their commitment ceremony. The photographer apparently cited her Christian religious beliefs as the reason for the refusal. New Mexico law prohibits discrimination on the basis of sexual orientation."