Constitutional Law II Outline - Professor Wallace - Campbell Law - Part 7

Secondary Effects (Type of TPM Restriction)

• Renton v. Playtime Theaters: law banned porn theatres from being within certain distance of any residential zone, school, church, etc.
  • Is law content based or neutral?
    • Ordinance only applies to certain type of content, but purpose of ordinance is not about restraining content itself (communicative effect)
      • Certain effects come with the location of these theatres
        • Property values in these residential zones plummet, safety threats for having perverts near schools
  • Thus, law IS content based on its face, but is aimed at secondary effects of the speech (content neutral in its purpose) → apply intermediate scrutiny (ONE EXCEPTION TO GENERAL RULE THAT CONTENT BASED LAWS TRIGGER STRICT SCRUTINY)
    1. gov. Int. in protecting property values and school kids etc.
       • Secondary effects here are significant
    2. (aimed at secondary effects, not speech itself)
       • Ask- is justification for the restriction unrelated to the communicative impact of the speech?
    3. still allows for reasonable alternative avenues of communication
       • Even though only 5% of city was left available here!!!!

Content-based Restrictions Summary

• Core axiom: Government may not regulate, punish, or discriminate against speech because of its content
• Content-based restrictions trigger strict scrutiny (w/ few exceptions):
  1. Johnson: expressive conduct, but regulation aimed at speech component
  2. Police Dep’t of Chicago v. Mosely: law made exception based on content (p. 885)
  3. Reed v. Town of Gilbert: content-based outdoor sign law— reconcile with Renton??
• Content-based that doesn’t trigger SS (Exceptions)
  1. Content-based categories of unprotected speech (but not VP)
  2. Content-based regulations aimed at “secondary effects” of speech
  3. Content-based regulations based on speaker identity or subject matter (not viewpoint) in limited public forums
  4. Content-based regulations on commercial speech
• Types of content-based restrictions:
  1. subject matter
  2. viewpoint

Content-neutral Restrictions Summary

• Content-neutral regulations trigger intermediate scrutiny:
  1. Regulation on conduct component of expressive conduct —O’Brien
  2. Content-neutral time, place, manner restrictions—Clark and cases/examples
  3. Content-based regulations that are aimed at secondary effects of speech (not primary communicative effects)— Renton ➡ Law was content-based on its face, BUT content neutral in its purpose

Protected or Not Protected Cont.

Speech that Incites Violence or Illegal Action

• Doctrinal development goes on for awhile, not recording that bs on the powerpoint
• Brandenburg v. Ohio: Klan member gets on TV to announce a rally, says “if these things don’t change in this country we’ll be violent”. Convicted under statute barring “advertising sabotage, violence, or unlawful methods of terrorism”
  • Court develops modern standard, incitement test: Government may prohibit/punish advocacy that is directed to inciting / producing imminent lawless action AND is likely to produce such action.
    • Since this test was not met, speech is protected and goes under S.S.
    • “Imminent” is key word
      • This is why D gets off, rally talked about on TV wasn’t for months and wasn’t indicating the march would be violent
        • Ie- Wallace says Government needs to be overturned →protected speech
          • Wallace says same but then says to go home and get guns, we’re about to storm into the Capitol in Raleigh → sufficiently imminent (just might fail on likely to incite part)
    • “Likely to incite” ie- protects crazy person passing out pamphlets that nobody would take seriously
    • Words have to actually be directed towards inciting or producing such lawless action
  • Holder v. Humanitarian Law Project: upheld law barring supporting terrorism groups under this theory
    • Based on strong government interest in combatting terrorism
    • Statute was content based but still overcame strict scrutiny

True Threats vs. Hate Speech

• R.A.V. v. St. Paul: D burns cross in black people front yard, convicted under ordinance that outlawed racist conduct that reasonably leads to anger, alarm, or resentment of others (fighting words)
  • Thus, ordinance punished communicative act, even though category unprotected speech → viewpoint content based
    • Law banned racist fighting words but not other types
      • Can’t punish some fighting words but not others b/c of viewpoint
  • No Gov. int. b/c compelling interest could have been achieved without viewpoint distinctions (no government interest in viewpoint discrimination)
    • Gov. doesn’t have to outlaw ALL fighting words, just can’t single some out based on viewpoint expressed by those words
    • Note- D should have been prosecuted for trespass, arson, threats, etc.
  • Note- Penalty enhancement at sentencing for racial hatred is fine if based on conduct being racially motivated
    • Wisconsin v. Mitchell: Enhanced punishment in OK for bias-motivated conduct. Black guys jumped a white boy after seeing Mississippi Burning. D intentionally selected white victim bc of his race. → Court held that the statute allowing for increased punishment due to racially motivated conduct was Constitutional
      • Rule : Gov. allowed to punish for CONDUCT that’s hateful/racially motivated as opposed to hateful SPEECH which gov. cannot punish for.
        • Hateful speech (protected) v. hateful conduct (not protected)
• VA v. Black: consolidated cased: 1) cross burned in black family’s yard; 2) cross burned at klan meeting
  • VA argues that law outlawing cross burning is per se true threat exception
  • Court: No, not per se true threat
    • States may ban cross burning with intent to intimidate
  • True Threat Rule = Threat of violence directed at person(s) with intent to cause fear of serious bodily harm or death
    • Cross burning is not always a true threat, context matters
      • When done in private klan meeting isolated from all others → probs not a threat → protected under 1A
        • No doubt that burning a cross on a black family’s yard is a true threat → not protected under 1A
    • True threats are typically directed at certain people or groups of people