Conduct that Communicates Flashcards
Conduct that communicates
- United States v. O’Brien
- Texas v. Johnson
Test for Assessing Restrictions on Conduct that Communicates
- Step One: Assessing whether conduct is expressive.
- Is there an intent to convey a particularized message?
- Is it likely the message would be understood by those who view it?
- Step Two: Assessing whether restrictions are constitutional.
- If there is a content-based restriction:
- Strict scrutiny review
- If there is a content-neutral restriction:
- O’Brien test is used:
- Is the regulation within the constitutional power of the
government?
- Is the regulation within the constitutional power of the
- Does it further an important or substantial government
interest?
- Does it further an important or substantial government
- Is the government interest unrelated to the suppression of
free expression?
- Is the government interest unrelated to the suppression of
- Is the incidental restriction on the First Amendment no
greater than is essential to the furtherance of that interest?
- Is the incidental restriction on the First Amendment no
- Note: isn’t the O’Brien test simply intermediate scrutiny?
Vagueness and Overbreadth
A. Vagueness
* Coates v. City of Cincinnati
B. Overbreadth
* Schad v. Borough of Mount Ephraim
C. Relationship Between Vagueness and
Overbreadth
* Board of Airport Commissioners of
the City of Los Angeles v. Jews for
Jesus, Inc.
Rules on Vagueness and Overbreadth
Law that regulate speech may be challenged as being unduly vague or
substantially overbroad.
* Vagueness: The law is unclear on what speech is prohibited or
permitted.
* Overbroad: The law regulates substantially more speech than the
Constitution allows.
* These are related but distinct doctrines.
* Vagueness can implicate both due process and free speech.
* These doctrines allow individuals to argue that the laws would be
unconstitutional even as applied to others.
* Because vague and overbroad laws can affect otherwise
constitutionally protected speech, these challenges are generally
structured as facial challenges.
* Recall that a successful “facial” challenge means the entire law is invalidated.
(Compare with “as-applied’ challenge.)
Examples of Vagueness and Overbreadth
- Vagueness: The law is unclear on what speech is prohibited or
permitted. - Example: It shall be 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. - Example: This public space is not open for activities by any
individual and/or entity that are not protected by the First
Amendment. - Overbroad: The law regulates substantially more speech than
the Constitution allows. - Example: All forms of live entertainment are prohibited by
law. - Example: This public space is not open for First Amendment
activities by any individual and/or entity.
Prior Restraints
A. Court orders as prior restraints
* Near v. State of Minnesota
* New York Times Co. v. United States
* Nebraska Press Association v. Stuart
* Alexander v. United States
B. Licensing as a prior restraint
* Lovell v. City of Griffin, GA
* Watchtower Bible & Tract Society of
New York, Inc. v. Village of Stratton
* City of Lakewood v Plain Dealer
Publishing Co.
Rules on Prior Restraints
- A prior restraint prevents speech from
occurring. It is often considered the most
serious infringement on speech. - Compare with criminal sanctions,
which punish speech after it occurs. - There are two types of prior restraints:
(1) court order
(2) licensing regime - Prior restraints appear to require a form
of strict scrutiny. - The collateral bar rule provides that the
violation of a prior restraint is subject to
criminal prosecution (even if the law is
ultimately held unconstitutional) unless
the law is facially invalid.
Walker v. City of
Birmingham (1967)
- Several civil rights leaders, including Dr. Martin Luther
King, were denied parade permits to march in
Birmingham on Good Friday and Easter (1963). - When they indicated their intention to march anyway,
Birmingham obtained an injunction ordering them to
refrain from demonstrating. - Several marchers defied the order, including Dr. King
and Ralph Abernathy, and they were arrested. - On April 16, 1963, Dr. King wrote the “Letter from
Birmingham Jail”, where he argued that people have a
moral responsibility to break unjust laws and to take
direct action rather than waiting potentially forever for
justice to come through the courts. Responding to
being referred to as an outsider, Dr. King wrote:
“Injustice anywhere is a threat to justice everywhere.” - In 1967, the Supreme Court upheld the arrests because
the marchers failed to use proper judicial procedures to
test the injunction’s validity. - Even though the injunction seemed broad and
vague, and the marchers may not have enjoyed
due process when applying for the permit
originally, disobeying the injunction was illegitimate
because “no man can be judge in his own case . . .
however righteous his motives.”
Walker Majority Opinion
Walker Majority Opinion
The rule of law that
Alabama followed in this
case reflects a belief that,
in the fair administration of
justice, no man can be
judge in his own case,
however exalted his
station, however righteous
his motives, and
irrespective of his race,
color, politics, or religion.
Walker Dissenting Opinion
Walker Dissenting Opinion
Under cover of exhortation
that the Negro exercise
“respect for judicial
process,” the Court empties
the Supremacy Clause of its
primacy by elevating a state
rule of judicial
administration above the
right of free expression
guaranteed by the Federal
Constitution.
And the Court does so by
letting loose a devastatingly
destructive weapon for
suppression of cherished
freedoms heretofore
believed indispensable to
maintenance of our free
society.
Dr. King Letter from Birmingham
Dr. King
Letter from Birmingham Jail
There are some instances
when a law is just on its
face and unjust in its
application. For instance, I
was arrested Friday on a
charge of parading without
a permit. Now, there is
nothing wrong with an
ordinance which requires a
permit for a parade, but
when the ordinance is used
to preserve segregation
and to deny citizens the
First Amendment privilege
of peaceful assembly and
peaceful protest, then it
becomes unjust.
Shuttlesworth v.
City of Birmingham
(1969)
- Fred Shuttlesworth was arrested and convicted for violating
Birmingham’s ordinance which proscribes participating in any
parade or procession on city streets or public ways without first
obtaining a permit. The ordinance permits the City Commission
to refuse a parade permit if its members believe “the public
welfare, peace, safety, health, decency, good order, morals or
convenience require that it be refused.” - Shuttlesworth had previously been notified that his group would
not be allowed to demonstrate in Birmingham. - The Alabama Supreme Court upheld the conviction, holding the
law as an objective, even-handed traffic regulation. - The U.S. Supreme Court reversed the conviction:
- Picketing and parading may constitute methods of
expression entitled to First Amendment protection, and use
of the streets for that purpose, though subject to regulation,
may not be wholly denied. - A law subjecting the right of free expression in publicly
owned places to the prior restraint of a license, without
narrow, objective, and definite standards is unconstitutional
Examples of Court Orders as Prior Restraints
Near v. State of Minnesota
* The Attorney General may maintain an action in the district court of
the county in the name of the State to enjoin perpetually the persons
committing or maintaining any such nuisance from further
committing or maintaining it. Upon such evidence as the court shall
deem sufficient, a temporary injunction may be granted.
* Nebraska Press Association v. Stuart
* The order applied only until the jury was impaneled, and specifically
prohibited petitioners from reporting five subjects: (1) the existence
or contents of a confession Simants had made to law enforcement
officers, which had been introduced in open court at arraignment; (2)
the fact or nature of statements Simants had made to other persons;
(3) the contents of a note he had written the night of the crime; (4)
certain aspects of the medical testimony at the preliminary hearing;
and (5) the identity of the victims of the alleged sexual assault and
the nature of the assault. It also prohibited reporting the exact nature
of the restrictive order itself.
Examples of Licensing as a Prior Restraint
Lovell v. City of Griffin
* That the practice of distributing, either by hand or otherwise,
circulars, handbooks, advertising, or literature of any kind, whether
said articles are being delivered free, or whether same are being sold,
within the limits of the City of Griffin, without first obtaining written
permission from the City Manager of the City of Griffin, such practice
shall be deemed a nuisance, and punishable as an offense against the
City of Griffin.
* Watchtower Bible & Tract Society of New York v. Village of Stratton
* Any canvasser who intends to go on private property to promote a
cause must obtain a “Solicitation Permit” from the office of the
mayor.
* The applicant must fill out a “Solicitor’s Registration Form.” There is
no charge for the permit.
* The canvasser is then authorized to go upon premises listed on the
Registration Form. The canvasser must carry the permit and exhibit it
whenever requested to do so by a police officer or by a resident.
