Carey v. Brown
Carey v. Brown
Carey v. Brown
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
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
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!