September 29th, 2015

Recap:
Last class, we discussed strict scrutiny: government must show that it
has a compelling interest, must be substantially advanced by the
regulation at issue, the regulation cant be over inclusive or under
inclusive, and it has to be the least speech restrictive option
Carey v. Brown:
o City of Chicago wants to protect privacy in residential areas and to
get this passed, they have to allow labor picketing.
o Court says:
No compelling government interest in having a labor carve
out
The fact that you have a carve out makes this regulation
unconstitutional
o This means that the regulation may have been constitutional if it
covered more speech because then it would show that Chicago was
serious about its compelling interest
Video game cases: Court wants a real causal connection and since you
cant show that, you fail strict scrutiny
Strict Scrutiny (cont.)
Ashcroft v. ACLU (SCOTUS 2004):
o The court should ask whether the challenged regulation is the
least restrictive means among available, effective alternatives
Usually the Court says equally effective alternatives, but
thats left out here
So, it doesnt have to be equally effective. This makes it really
hard for the government to win
o Court also says:
Filters are less restrictive than COPA (this regulation)
COPA goes further than necessary to achieve its goals
It is possible that filters will be more effective than COPA
o All the burdens are on the government. It must prove that existing
regulations (filters) are less effective than COPA. Since it is possible
that filters are more effective, COPA is invalid
o Breyer (dissenting):
Filtering costs money, is faulty, depends on parents, and lacks
precision
Lawyers can always dream up some less speech restrictive
alternative
Here, presumably the government could buy filters for
all parents in America. This would be a less speech
restrictive alternative

September 29th, 2015

o Congress argument for their regulation: Even if the vast majority of
parents install filters, if there are some that dont, all kids will use
that non-filtered computer and be exposed
Court: preference for free expression; Congress doesnt get to
limit speech based on concerns; you have to prove that this is
the best alternative
o This statute was enacted on 1998, but never went into effect and
then was finally stopped in 2009 because the Court denied cert

Holder v. Humanitarian Law Project (SCOTUS 2010)

o Court found strict scrutiny satisfied
o Note how much deference the Court is giving to the executive
branch
o Counter to this decision: this is probably true for all decisions
(judges know less than the elected officials)
o Court thinks the executive branch has special access to knowledge
here than it does in other contexts
o Note how much the Court emphasizes the limitations of the statute
and of its rationale (limited to coordinated advocacy, independent
advocacy is still allowed)
Dissent: That means this is under inclusive! Independent
advocacy is more likely, not less likely, to confer legitimacy
than coordinated advocacy
o Going forward: Will this bleed over into other contexts outside of
this enormous deference to the president?
Professor: doesnt seem likely, especially given cases like
Brown
Ex: Drive-In Nudity (pg. 291)
o Facts: City of Jacksonville prohibits showing films containing nudity
in drive-in theaters when the theaters screen is visible from the
street
o What is the governments interest?
Shielding children from exposure to nudity
This would make adults who dont want to see this exposed to
it (but after Cohen, we say thats the price of living in a free
society)
Protecting unwanted viewers isnt compelling
Increases risk of traffic accidents because drivers will be
distracted
o Sometimes the law may just be impermissibly tailored if it prevents
adults from getting access to material that we think adults should
have access to
o Even if the government has a compelling interest, this could be
impermissible tailoring. If you truly prevent adults from getting

September 29th, 2015

access to something, by definition your statute is not tailored and

therefore, is unconstitutional
o Is there anything the city of Jacksonville couldve done different? Its
unclear. They could impose ruinous costs that would knock the
drive-in theaters out of business, but that wasnt really their goal
here.
Ex: Violence of Television (pg. 291-292)
o Its going to be hard to come up with evidence to satisfy strict
scrutiny in figuring out how to regulate violence on television

Other Exceptions
The Court has upheld intellectual property based restrictions on
speech
o Ex: copyright law prevents you from, on your own, publishing a book
that you really liked
o Rationale: yes its speech, but there are specific aspects of this
speech that make the regulation of it justifiable.
o Harper & Row: copyright law is constitutional because it lets people
communicate the ideas and facts they want to communicate and
only constrains peoples abilities to use those ideas and facts
o Eldred v. Ashcroft: dont worry about the way copyright restricts
when it comes to the 1A because we have this idea/expression
dichotomy and only expression is eligible for expression, not ideas
o We treat the core of copyright as outside of the 1A concerns
because we think of copyright of having walled off a certain kind of
speech or ideas for protection
Content Discrimination Within the Exceptions to Protection (pg. 316-329)
R.A.V. v. City of St. Paul (SCOTUS 1992)
o Two lines of cases collided in this case:
The first is that content-based speech restricts are subject to
strict scrutiny (no matter what the form of speech, contentbased restrictions are invalid)
The second set of principles is exceptions to the 1A are
entirely outside of the 1A. Its as if they werent speech in the
first place. (Like obscenity has no communicative element at
all to it)
Note: viewpoint based restriction would probably satisfy
RBR
o This was a 5-4, with the 4 being a concurrence using a completely
different rationale to get to the same result
o Majority opinion:
St. Paul ordinance applies only to fighting words, which are
outside of the 1A, that insult or provoke violence on the basis
of race, gender, etc
3

September 29th, 2015

You cant have content-based restrictions, even if the
restrictions are themselves on a form of communication that
we regard as being outside of the freedom of speech
You must satisfy strict scrutiny if you are banning a certain
subset of content-based speech
Part of what is motivating the Court is that this might be a
way that the government selectively bans certain kinds of
speech that will uneven the speech playing field.
Counter: thats fine! Maybe theyll go after racist
incitement more than non-racist incitement. They
should be able to do that.
Court: No, you dont get to choose what kinds of
unprotected speech bother you more.
A total ban on fighting words in more restrictive. Instead, the
idea seems to be that shielding groups that have been subject
to discrimination is itself under inclusive. It is not a compelling
interest, stated as such. Why not? Because we think this is the
government picking and choosing among words.
o Concurrence:
The statute is over broad.
Its true that the Minnesota Supreme Court said the statute
was limited to fighting words, but the statute includes more
o Does this apply to statutes applying enhancements for racial
animus? No. See Wisconsin v. Mitchell, where the Court upheld
enhancements
Rationale: the underlying activity wasnt speech, it was
violence. Thus, the enhancement for racial animus wasnt a
content-based restriction on speech, but rather the basis for
the physical act
Other exceptions:
o Secondary-effects: ideas here is that the government has the
authority to regulate because you are actually going after the harms
Ex: you are a city council person that wants to reduce crime.
You see there are hotspots of crime around adult video stores
and pawn shops. So, you want to regulate the zoning of these
two things. The Court says you can do that because you are
going after a secondary effect (harm of attracting criminals),
you are not aiming at the expression. Rather, you are aiming
at the secondary effect of the expression
o Swept up incidentally in a statute directed at conduct other than
speech
Ex: a broad regulation covers speech, but thats incidental
Ex: a regulation that says no burning, that includes flags but
that incidental

September 29th, 2015

Threats Exception
o Obvious hyperbole is protected
o You can also threaten to socially ostracize people
o You can threaten a politically-motivated boycott
o You cannot threaten people in a way that will truly intimate them (a
true threat)
You can light up a cross in the middle of rural Virginia because
that is political speech. You cant burn a cross on someones
lawn because that is an actual threat!