Speech Codes


We just finished our really brief segment on Free Speech in Constitutional Law. It lasted roughly one lecture. This isn't because Free Speech isn't important, nor because there's not a lot to say about it (our professor claims, with some justification, that it's the most complicated area of constitutional jurisprudence). It's just that first year Constitutional Law is structured to give a general survey of constitutional decision-making, and Free Speech apparently isn't illustrative enough of the broad principles that the course focuses on.

The upshot of this is that we just read a small number of baseline cases, then the professor gave us a bunch of examples that he ran through in order to give a sense of the various facets of First Amendment jurisprudence. I thought it was a fun exercise. I don't think you need a lot of specialist knowledge to reason about the examples, plus they're on subjects most people have opinions about, so I thought I'd post the professor's examples here and see what people thought.

A few baseline legal principles: First, the general idea is that government is allowed to regulate speech in order to prevent imminent harm. More nebulously, the Court tends to decide whether a regulation is constitutional by balancing the free speech right on one side against the government's interest on the other side. If the government's interest doesn't warrant the offense to free speech, it's unconstitutional. Second, the First Amendment is believed to apply especially strongly to political speech, so speech with political ends gets extra weight in the balancing test. Finally, the Court tends to look harshly on regulations of the content of speech, but is more lenient with regulations of the time, place, and manner of speech.

With that taken care of, here's my professor's e-mail:

"For our discussion, please think about the following cases. In each case, if you think that government may prohibit or punish the relevant actor, ask yourself whether that is because: a) the actor has not engaged in “speech,”; b) the actor has engaged in speech but the government regulation is not targeted at the message of that speech; c) the government has targeted the message but it has done so in a narrowly tailored way that advances a compelling interest; or d) none of the above.

1) Gang leader GL says to his henchmen “Kill the leader of our rival gang,” which henchmen then do. GL is prosecuted for murder.

2) Anti-war activist tells anti-war protestors: “You are better than cannon fodder. Do not submit to the draft.” The speech occurs during wartime when there is a military draft. Activist is prosecuted for
conspiring to cause disloyalty, mutiny, and refusal of duty in the military forces.

3) During wartime, anti-war protestors display signs reading: “No blood for oil. Bring home our troops.” Protestors are prosecuted for conspiring to cause disloyalty, mutiny, and refusal of duty in the military forces.

4) Organizers of an anti-war rally want to congregate outside city hall at the conclusion of a march. The city authorities tell them that they cannot use the city streets or the square outside of city hall for the
protest march or rally because of traffic and congestion issues. The city authorities offer no viable alternative venue. The protestors sue, seeking the right to march and rally.

5) Same facts as 4 except that the city authorities offer an alternative route and rally location that the protestors consider substantially less convenient and appropriate. The protestors sue, seeking the right to march and rally where their expression will have the greatest impact.

6) A city prohibits the use of “sound trucks,” which ride the streets blaring amplified messages. The prohibition is applied to a candidate for mayor.

7) Upon receiving a grade of B+ in torts, law student says to professor: “I’m going to break your kneecaps if you don’t raise my grade to an A-.” Student is prosecuted for extortion. Variation: Suppose the statement is not conditional but simply a threat: “You prevented me from being a Kent
scholar. Now I’m going to make you feel my pain.” Student is prosecuted for assault.

8) Ku Klux Klan member burns a cross on his own lawn, which is clearly visible to his neighbors, an African-American family that has recently moved into the neighborhood. Klan member is prosecuted under a state law making it a crime “to display a symbol of hatred, such as but not limited to a burning cross or a swastika so as to intimidate persons on the basis of animus based on race, national origin, ethnicity, or religion.”

9) Anti-war protestor is prosecuted for burning a U.S. flag at an anti-war rally, under a statute prohibiting “the intentional desecration of the U.S. flag.”

10) Movie theater owner is prosecuted for running a pornographic film for paying customers over the age of 18.

11) City passes zoning law prohibiting all commercial establishments involving “adult entertainment” (defined as pornography) in residential neighborhoods. Theater owner sues to prevent the city from forcing him to relocate.

12) Adult is prosecuted for possession of “obscene materials” in his home.

13) Adult is prosecuted for possession of “child pornography” in his home. Child pornography is defined by statute as any visual depiction of naked minors.

14) State prohibits “snuff” films.

15) Administrative fine is issued to company for “false advertising” where tv ad states that the product will “permanently cure baldness” but clinical evidence indicates this is false.

16) Administrative fine is issued to company for “false advertising” where tv ad suggests that consumption of soft drink will attract good-looking people.

17) Federal law places limits on amount of money that individuals may contribute to campaigns of candidates for federal office.

18) Federal law places limits on amount of money that candidates for federal office may spend on their campaigns.

19) State law forbids discrimination on the basis of sexual orientation by “public accommodations,” defined to include certain membership organizations that utilize public facilities, including the Boy Scouts.
Boy Scouts claim that the requirement violates their right of “expressive association” insofar as it requires them to admit openly gay members.

20) Federal law criminalizes donations to certain listed “terrorist organizations,” even where the donation is made for peaceful purposes (such as food or health aid) to an organization on the list.

21) School district requires all children to say the Pledge of Allegiance at the beginning of each day.

22) Federal law forbids health care providers that receive federal funds from answering patient questions in a way that might direct patients to abortion providers."

So, what do you think? For each of these examples, Constitutional or not? Why? Don't feel obligated to give an answer to all of them, but if one or two seem interesting, I'd like to hear comments.


Interesting. We spent three weeks on First Amendment cases, watching the Court's interpretation drift over time (like continents on a lake of magma. or maybe like species exhibiting variation?). Of course, our professor is borderline insane and disdains talk of doctrines, but that's another matter ...

This is Hamburger? Yeah, I've heard he spends a long time on First Amendment.

I'm pretty glad I have Dorf. I was a bit wary early in the semester, but I think he's grown on me a lot. That is, I've never felt the need to complain bitterly about him, whereas I hear nothing but vitriol from people who has Liebman or Hamburger. I can tolerate somewhat silly hypotheticals as long as the professor isn't crazy and generally stays on-point.

Correct me if I'm wrong; Hamburger is the professor who opened class on the first day by spending the entire lecture explaining how his baldness defined him, how his baldness showed his courage to face the world and succeed in the face of adversity. And he has gone on to show up in a goofy baseball cap every day since then. This, I am led to understand, has prompted the derogatory nickname "Hatburger."

Or is Edgar the other Con Law professor? I know there are two Liebmans who teach two different 1L classes Spring semester. Are they in Property and Crim, or Property and Con Law, or Con Law and Crim?

Yeah, it's Hamburger. (I think Charles (?) teaches the third ConLaw section ... in my section, Edgar teaches Crim and Liebman the Elder property).

Hamburger's class can be all right -- I mean, the First Amendment is a very interesting amendment. But Hamburger's approach is different than Dorf's, at least in this field. A lot of time examining historical context and searching for first principles. And I'm not sure whether the point is to arrive at a more accurate theory of First Amendment jurisprudence, one that leads to better predictions of how cases will be decided -- or to make us suspicious about
any of the court's declared doctrines.

And yes, he does like to wear caps. Unfortunately, he refers to his hairline every other day, which pretty much defeats the point of self-deprecatory baldness humor. Especially in the unforgiving world of law school.

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This page contains a single entry by Zach published on April 11, 2006 1:26 PM.

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