Constitutional Law II Outline - Professor Wallace - Campbell Law - Part 8

• Brandenburg Incitement Test: Speech has to be directed at inciting imminent lawless action & be likely to produce such action.
  • This doesn’t apply because speech wasn’t inviting that action. Just had Swastikas.
  • Feiner: Were they inciting violence against themselves as speakers?
    • Doesn’t meet immanency requirement
      • Ie- people not on porches with shotguns
• Fighting words?
  • Not directed at one person
    • True threat? Debatable
      • Maybe b/c of these people’s experience in the holocaust, how seeing that first hand conveys a reasonable threat of fear to them
      • Maybe not b/c difference of seeing swastika here and in Germany
        • Nazis taking over unlikely to happen here
• INTIMIDATION is protected unless it incites violence/is a true threat
• Hate speech is protected
  • Tans: Asian American band wanted to trademark band name “Slants” to reclaim the word. (Referred to their eyes)
    • Gov. denied them the trademark → SCOTUS struck that down.

NAACP v. Clairborne: NAACP starts boycott of white businesses to pressure town board to change policies. If blacks violated boycott, NAACP would publicy condemn them. Some acts of violence took place, speech had members stake out the stores so blacks that violate the boycott could be publicly condemned.

• Businesses sue NAACP under tort law → Court:
  1. Free Speech Clause protects collective advocacy (freedom of association for expressive purposes)
  2. Boycott = protected expressive conduct; violence = unprotected non-speech conduct
     • Boycott in itself is protected
  3. Speech does not lose protection because it is “coercive,” “intimidating,” “vilifying,” or “socially ostracizing”(p. 1041); Evers’ speech also protected (p. 1042-43)
     • Walked right up to the edge with true threats based on speech
  4. FSC does not protect VIOLENCE, but forbids holding group responsible for actions of individual members not authorized or ratified
     • Mere fact that some NAACP members took violent measures does not implicate NAACP as a whole

• Dilemma: How to regulate abortion protests without triggering strict scrutiny
• Hill v. CO: Court upheld a law prohibiting persons from “knowingly” approaching w/in 8feet of another person, in order to present a handbill/leaflet, counsel, or protest, in front of hospital or medical facility
  • Court said it was content - neutral & therefore intermediate scrutiny is applied.
  • Wallace thinks content-based b/c only criminalizes specific speech that “counsels or protests” → Clearly aimed at abortion protestors
  • Extends “captive audience” beyond home to public streets and sidewalks as well
• Often, TPM used as pretext for these content-based restrictions: McCullen v. Coakley: Mass. law that prohibits protests at abortion clinics. Exempted people who worked at clinic.
  • TPM restriction. → Court upheld law.
    • Wallace not sure this law was viewpoint neutral
      • EX) What if law restricted protest in front of police station that shot Trayvon Martin?
• Change government interest at hand
  • Legitimate state interest to provide for safety of abortion
    • Rationalizes TPM approach, etc.
    • Ie- if abortions are dangerous when women are hearing protests from inside

Implicated when government isn’t regulating as sovereign, but as

• property owner, educator, employer, librarian, arts patron, military commander, or prison warden.

Private speech on government property, facilities, programs

• Many different types of government property, extends past real property (ie- money)

Two main issues are access and regulation

• Access: how can gov keep you from being there?
• Regulation: once you have access → traditional 1A rules apply

Three types of forums

1. Traditional public forum : public streets, sidewalks, parks
   • Total bans unconstitutional
   • Same general 1A rules apply
     • Ie- content based vs. content neutral
   • Basis: right of assembly, public trust
2. Designated (Limited) Public forum : Government has opened place/program for private expression
   • Access can be restricted by speaker ID OR subject matter if exclusion is 1) reasonable in view of forum’s purpose ; AND 2) viewpoint neutral
     • Ie- open mic @ school board for people to come and express views for education in the area → guy from NY coming in to talk about how Epstein didn’t kill himself can be properly excluded b/c both ID and subject matter do not apply
       • But- school board can’t just exclude people if they aren’t going to speak in favor of them (viewpoint)
     • Looking to reason for having forum
       • Ask: Does speech pertain to that reason?
   • Once you have access → typical regulation rules apply
3. Nonpublic forum = whatever is not traditional or designated:
   • Regulation must be reasonable and viewpoint neutral
     • Examples: school mail system (Perry), military bases (Spock)
   • Ie- can’t just go in IRS office raising hell

UVA v. Rosenberger, UVA not funding christian publication b/c “can’t use $ for religious newspaper b/c violates establishment clause. (est. cl. Argument struck down, reassess later)

• UVA was designated public forum open to student organizations → can’t discriminate based on content
  • UVA allowed other religious organizations to become published through school but not religious organizations → this was probably viewpoint