Constitutional Law II

24 November

• Texas v. Johnson
  Our symbolic speech case. Does free speech protect expressive conduct? Yes, but less vigorously than speech itself.

  The dissent (Rhenquist): the flag is a symbol of our unity, and TX should be able to prohibit burning it if they want.

• The Karleton Armstrong Case
  So he did this for two reasons: to hurt the Army math research center, and to stop the war. Compare this to someone who blows up the building for insurance fraud.

  Maybe you'd think the punishment for Armstrong should be milder, because of his motives. And, as in Texas v. Johnson, maybe his conduct is speech, at least in part. Well, it's beyond just speech, so clearly he's not going to get total protection, but still it might be a mitigating factor. And also, if you come down hard on Armstrong, you'll turn him into a martyr.

  Footnote: Gov Doyle's father was a circuit court judge for decades here. During that time, a guy spat on a hawkish senator (Jackson) who was running for president, out at the airport. Before judge Doyle, he basically said "give me liberty or give me death." Doyle's answer: this is a small crime by a small person, and it gets a small penalty.

  So maybe Armstrong's case should also be handled by diminishing its importance. And in a modern democracy, there should be room for passion, and someone who has passion should be able to have influence greater than the couch potatoes. And after all (McCulloch v. Maryland) Marshall says basically that the ends justify the means). Goldwater: extremism in defense of liberty is no vice. A crime committed in aid of something higher might be defensible.

  On the other hand, the state can argue that Armstrong should be punished more seriously, not less. There's more than one victim in this case: there's the guy who dies, but there's also free speech (Armstrong is basically saying that if he disagrees with you, he might blow you up). In fact, he undermines the whole rational democratic decision-making system; he's challenging democracy itself: his thoughts are so important that he silences others. The marketplace of ideas can't thrive in this atmosphere. And ultimately this takes the air out of the anti-war movement-- hard to rationalize a pacifist movement that uses bombs. And ultimately, this is just rationalized agression-- a sociopathic personality who has latched onto a cause as a means of expressing agression. Albert Camus: "all absolute virtue is homicidal." Karl Jung: "every form of addiction is bad, whether it's narcotic, alcohol, morphine, or idealism." Andre Gide: "believe those who are seeking truth, doubt those who find it."

  And in the beginning, his penalty was severe (23/25 years), but in the end, at the city council's urging, he was released after only 7.

  And maybe ideology shouldn't influence the penalty in an intentional crime: it's the crime that counts, not the specific rationalization.

• UWM Post v. Board of Regents
  So the rule was constructed by people who knew the risks of drafting such a thing: the key here was that it had to be "intentionally" demeaning on the basis of one of the protected categories. And the penalties were probation, suspension, expulsion, sensitivity training, etc.

  So this might violate free speech under either the WI or federal constitutions, but this comes to the federal district court. It violates free speech: it's too broad to be encompassed in the fighting words doctrine (and in the 9 cases cited, there was indeed no violence). The fighting words doctrine requires that the violence be imminent. So as soon as we see "we're not going to apply Chaplinsky, we know who's going to lose. And this is basically thought control: it's not content-neutral-- it affects what you can say. It doesn't even prevent you from being mean, it just punishes certain flavors of meanness. And there's no real compelling interest here-- it's supposed to be in the service of diversity, but it quashes diversity of thought.

  Freedom of speech is almost absolute.

  So what does the university do after they lose this case? They just didn't appeal, even though they had the right to.

  We want free speech in order to prevent tyranny. We also want to enhance the electoral democracy by getting issues out and articulated: it makes for rational government. And, in the context of this case, we want students exposed to the real world. Free speech also makes communications more honest, and therefore more useful. And this rule includes terms that are slippery ("demeaning," "hostile," "discriminatory," etc.), and that means people don't know in advance how their conduct will stack up next to the law. And we have precedent saying you can't have diversity at all costs: Gratz and Seattle School District. So equality of opportunity and diversity are important policies, but not "almost absolute."

  Why should the university win? Well, the main policies behind free speech don't apply here: there's no marketplace of ideas for ideas like racial insults. And we're talking about speech that's intentionally demeaning, so we're not talking about just total speech police. And we do go to great lengths (Grutter, e.g.) to protect diversity. And here it's the majority restricting itself-- this isn't going to spiral out of control. And the Regents are accountable to the voters of the state-- the courts shouldn't intervene on this. And moreso, federalism: let universities try to figure out how to deal with these burning campus issues. And who stands for free speech more than anybody else? Universities! And the UW in particular.

• In 1999, the faculty proposed another speech code. Why do that when they lost the last case? Well, judge Warren had retired. And 8 years had passed, and maybe some policies had shifted to make more agressive affirmative action plans more palatable. And SCOTUS was making it clear that they hated bullying. But it did not pass-- untrammeled speech was preferred. Still, about 60% of universities have speech codes that are brazenly unconstitutional, according to at least one scholar.
• pp. 377-390 or so are eligible for exam coverage.
• Rumsfeld v. Fair
  DADT inspires colleges not to want recruiters from the military. Note that it is a restriction on speech: if you don't say you're gay, you can stay in the military but if you do, you are out. Of course, in the military, you don't get full free speech rights. But law schools (including this one) feel they're denied free speech because they're forced to have these recruiters use their facilities.

  This line of reasoning fails of course. And indeed it's a bit inconsistent: we're saying that our free speech rights are offended by military recruiters, but our plan is to prevent the military recruiters from coming in, and we're also preventing students from talking to military recruiters. That's not going to work. 9-0.

• Board of Regents v. Southworth
  Southworth was a law student at the UW. Fees are allocated by the student government, and it's a fair amount of money. Southworth looked at the list of speakers, and he didn't like the idea that some of his fees were being put to bring in things that he disagreed with: his speech is being coerced.

  He says he's not litigating the student government's allocation-- he says that's content-neutral. He doesn't like to pay for any speech. Big mistake, that's how you lose. Universities have speech: that's what they're for.

  But the court does say that a majority referendum is not content- neutral.

• Lathrop v. Donohue
  This is a big issue again: should the WI bar be voluntary? It had gone mandatory sometime just before this case. And this case challenged it: you have to pay bar fees in order to practice law, but the bar might engage in stuff you don't like.

  So practicing law is not a right, it's a privilege (this is a liberty of occupation issue, but the case doesn't deal with it). SCOTUS: this is fine.

  And right after this, bar fees increased. But (in a CA case), if the bar wants to engage in lobbying for issues unrelated to the practice of law, you have to charge segregated fees, which people can opt out of. The WI bar leadership wants to see it become voluntary again.

• Elections: a large clash between Con Law I and Free Speech. And right now we have a direct challenge to McCain-Feingold (sustained in McConnell) pending before SCOTUS.

  And judicial elections are a particularly sensitive area, because we have a fear that the courts are losing their independence. And the courts don't know what to do about this: if you're going to have elections it's crazy to say that the candidates can't take a substantive position (that's MN). If you can't say those things, why have an election? This is unresolved.

  White says 5-4 that free speech trumps judicial independence. And in Massey it becomes clear that recusal is exploitable: just contribute money to the campaign of the judge you know will vote against you, so he'll have to recuse himself.

• Justice Potter Stewart: the "I know it when I see it" standard. But that meant the justices had to see a lot of porn. So Miller introduces the "offending community standards" test, which makes things into not-speech.