Final Review Notes
I. Commercial speech
A. Advertising vs PR
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1. Pitt Press v. Pitt Comm’n Human Rel. (1973)
(1) Sex-designated help-wanted classifieds
(2) Employment discrimination illegal
b) SCOTUS decision
(1) Ads for illegal acts not allowed
(2) Suggested different result for legal act
(3) Noted newspaper could editorialize against the law
Acts legal in other states
2. Bigelow v. Virginia (1975)
(1) 1971 Charlottesville newspaper ad for legal abortion clinic in NY; Editor arrested
(2) Abortion was legal in NY but illegal in VA
(3) Virginia Supreme Court upheld conviction, describing ad as purely commercial in nature
(1) Reversed VA decision 7-2
(2) Advertisement not stripped of all 1st Amendment protection
(3) This ad provided truthful, useful information of general interest
(4) One state cannot assert control over interstate news and publications
(5) Legal in state transaction would take place
3. Central Hudson Gas & Electric v. Public Service Commission (1980)
(1) Commission banned utilities from promoting use of electricity by ads in order to conserve electricity
(2) They banned all ads of this nature, including those promoting energy-efficient technology
(1) Ban held unconstitutional
(2) Four-part test
(a) Ad must be truthful and for a legal activity
(b) Gov’t interest in regulating must be substantial
(c) Regulation must directly advance the asserted gov’t interest
(d) Regulation must be no more extensive than needed to achieve the asserted gov’t interest
C. Nike, what’s considered PR or advertising (gray area)
1. Nike v. Kasky & PR
(1) Public Relations Campaign against Nike
From Doonesbury to opposite editorials
(2) Response by the company
Counter Campaign: Ads, letters
No Transactional Advs as part of Campaign
(3) Suit in California for false advertising
Not deceived into buying Nike products
b) Dismissal of certificate by United States Supreme Court
II. Corporate Speech
1st National Bank of Boston v. Bellotti (1978): Case: invalidated Mass. Law prohibiting corps from advertising to influence voters, unless related to assets of the business
· Interest in flow of information re state graduated income tax referendum
· Outgrowth of Buckley v. Valeo (1974)
· Later laws and campaign regulations develop
· For example: a later federal law prohibited any corporation (or union) from making an “electioneering communication” (broadcast ad reaching 50,000+) w/in 30 days of a primary or 60 days of election, or making any expenditure advocating the election or defeat of a candidate at any time
Citizens United v. FEC (2010)
1) Conversation non-profit org. wanted to air a film critical of Hillary Clinton & advertise it on TV shortly before the 2008 Dem. Primary.
2) The group challenged the federal regulation that prohibited such speech by a corporation that close to an election
b) SCT: The Supreme Court ruled for the group
1) Court relied on principle established in Bellotti and other cases that the Government may not suppress political speech based on the speaker’s corporate identity
2) Concluded political speech, even by a corporation, is “indispensable to decision making in a democracy”
3) Court ruled that independent expenditure limits were unconstitutional because, unlike campaign contribution limits, they fail to “serve any substantial government interest in stemming the reality or appearance of corruption in the electoral process
A. When can businesses spend business money to influence politics?
1. Business can donate money to politician or cause as long as they don’t coordinate with any political campaign, etc
B. Another case, didn’t understand name
C. Citizens United
1. Allowed corporate money to come flooding into realm of political space
III. Speech by govt employees
A. Government v. Private Employees: (Public school counts as govt)
Pickering v. Board of Ed. (1968)
a) What was at stake in the public debate over the bond issues?
Two losses at the polls; teacher’s letter published
b) SCT (8-1)
Public School teacher had a right to speak on issues of public importance without being fired unless the teacher knowingly or recklessly made false statements when he criticized school funding decisions by the board & superintendent
B. Personal Concerns v. Public Policy Concerns:
Connick v. Myers (1983)
1) Ass’t DA strongly objected to her transfer in private conversations with her boss and the chief assistant district attorney
2) She gave a questionnaire to fellow prosecutors asking about their experience with the DA’s management practices… Fired.
b) SCT: SCT agree with firing (5-4)
Matters of personal, not public, concern…: Damaged the harmonious relations necessary for efficient operation of the office
C. Private v. Public concerns: (government as an employee?)
1. Waters v. Churchill (1994; 7-2)
Public Hospital Nurse criticized superviosr to co-workers
Not necessary to determine what the nurse said, as long as the hospital reasonably thought her remarks would disrupt operations, the firing was allowed
1) Plurality: when government acts as employer (not as a sovereign) it has a lower obligation to respect constitutional rights
2) Will this discourage whistleblowers?
3) Note: Nurse had been very local about her criticisms & management had in the past accused her of
2. Garcetti v. Ceballos (2006; 5-4)
a) Ass’t DA investigated the accuracy of a warrant affidavit: He found serious misrepresentations & strongly recommended dismissal of the prosecution in a memo and heated discussion with his boss. He was overruled & the case proceeded
(1) He was called as a defense witness in the case and so testified. Subsequently he claimed retaliation by the DA
b) SCT (5-4): rejected his claims
(1) Held he expressed himself as an employee, not as a citizen, and it related to his work-product, not public policies; therefore, no First Amendment protection
Bottom Line: Private Concern speech can be regulated as a condition of employment; and with public concern speech the courts will balance free speech interests with government efficiency/needs as employer
IV. Govt grants
A. Government funding
Rust v. Sullivan (1991; 5-4) Title X Grantee
Congress/HHS regs prohibited use of federal grants to family planning/health care groups for any abortions or counseling about abortion. Challenged by doctors and clinics
(1) The restrictions did not significantly impinge on the doctor-patient relationship or 1st Amendment b/c funding recipients remain free to speak as they wish outside the scope of the Gov’t funded project.
This is not a case of the government suppressing a dangerous idea, but of a prohibition on a project grantee or its employees from engaging in activities outside of its scope.”
“The Gov’t can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program….In so doing
B. When is govt using grant making power to affect voting process
1. Finley v. NEA (1998; 8-1)
a) Case: NEA established in 1965 to fund individual artists and arts organizations
b) SCT: decency standards did not necessarily violate the 1st Amendment right to free expression and not impermissibly vague
(1) …the law merely added factors to the grant-making process & did not state that all grants should be denied to applications involving indecent or disrespectful art — only required “consideration” of the factors & did not prohibit indecent art.
C. Govt speech doctrine
1. Government Speech Doctrine: government does not infringe free speech rights of individuals when it is not viewpoint neutral in its own speech
a) That is, the government is the speaker, it may make content-based choices; it can communicate an official message
b) Think Rust v. Sullivan (gov’t as the speaker), not Legal service Corp v. Velazquez (2001, 5-4) (through gov’t-funded legal services is similar to gov’t-funded doctors, the lawyers’ speech was held to be private speech b/c lawyers spoke on behalf of their clients; therefore, gov’t could not prevent the lawyers from filing constitutional suits against the gov’t).
D. Govt advertising
1. Only You Can Prevent Forest Fires… Uncle Sam Wants You…E Pluribus Unum…I Love New York…
a) Controversial v. Non-Controversial: anti-drug campaigns, social welfare programs, wars, agricultural techniques, public health…
2. Federal government spends $1Billion or more on advertising a year!
a) Concerns? Money (power); Size matters with bullhorns; misrepresentation/manipulation of the marketplace of ideas; compelled speech by people paying that bill.
b) Beef. It’s What’s For Dinner
Johanns v. Livestock Marketing Assn (2005)
(1) Case: Federal marketing of beef program assessed mandatory fee on all cattle sales to be used by the Cattlemen’s Beef Promotion and Research Board to market and promote beef sales. Attributed to “America’s Beef Producers”; challenged by one cattle producer
(2) SCT: upheld (6-3) by SCT as government speech.
Whose speech & beef?
Issue: Compelled Subsidy of Private Speech w/which some producers disagreed? 1St Amendment violation?
Held to be gov’t speech b/c Secretary of Agriculture held to have ultimate control over the message though the beef board…appoints half & can remove all
No 1st Amendment right not to fund government speech even if the funding is through targeted assessments (rather than through general taxes) for to a program to which some assessed citizens object
E. Government speech generally
1. Walker v. Texas Division, Sons of Confederate veterans (2015)
a) SCT Court held LICENSE PLATES= government speech: therefore, Gov’t can regulate content (b/c not private speech under the 1st Amendment). Effectively upheld (5-4) the state’s denial of a request to create a confederate flag license plate.
2. Pleasant Grove City v. Summun (2009; 9-0)
a) Case: City allowed privately donated monuments, including one w/the 10 Commandments, on public property and then the Summun church wanted to place its own statue (similar in size) in the city park…City declined.
Held allowing some privately funded permanent monuments erected in a public park while refusing to accept others = a valid expression of governmental speech…Therefore, the rejection of the Summun monument was NOT an unconstitutional violation of 1st Amendment
Held a permanent monument is perceived by ordinary persons to be government expression, unlike temporary displays or even long-winded speakers at rallies in public parks.