This page will be used to post selected questions that I receive from students during the study and exam period and my answers to those questions.  The questions will be posted anonymously and may be edited so that they are of general interest to the class.  After the list of current questions, you will find questions from prior years.

Fall 2012 Questions

Question One:
What happens in a situation where the different intermediate scrutiny tests can all be
applied to the same situation? For example, what happens if you have symbolic commercial speech in a public forum so that the O'Brien, Central Hudson, and Reasonable Time Place Manner tests could all be applied?

Answer One:
When there are multiple versions of intermediate scrutiny that could apply, you simply apply them alternatively. You don't have to choose. You, of course, have to explain why each version can apply under the facts of the question since not every version will be potentially applicable to every exam question (not every question, for example, involves commercial speech). To avoid duplication, after making arguments under the first version of intermediate scrutiny (including about the importance of the ends and the narrowness of the means), you can thereafter refer to the earlier discussion and then focus on the unique aspects (ample alternative avenues of communication for time, place, and manner regulations, the directly and materially related prong under Central Hudson, and the inquiry into whether the purpose of the law is to suppress expression under O’Brien) of the next version of intermediate scrutiny or, if you're typing, you can copy and paste what you've said the first time about the means/ends relationship into the application of the next version of intermediate scrutiny and add a discussion of any additional elements of the version of the test you are applying.

Question Two:
Under the intermediate scrutiny test, is it fair to say that the government must show some kind of evidence that the means will achieve the important or significant end?

Answer Two:
The government can rarely predict the future so it usually can't prove the effectiveness of the means when it passes legislation and in advance of implementation of the law and the courts don’t require it make such a showing. Instead, the government has to prove two things to satisfy the requirement that it prove there is the means are narrowly tailored to further an important objective. First, the government has to prove that they are solving a real problem and not a fictional one in order to show an important objective. The application of this requirement can be seen in the adult zoning secondary effect cases where the Court argues about whether each locality has to do its own study of the impact of places of adult entertainment in terms of crime rates and property values or whether to allow a locality to use evidence gathered elsewhere on the theory that one localities experience is highly likely to be duplicated elsewhere. Second, the government has to show that the means are narrowly tailored to further this objective. To satisfy the requirement of narrow tailoring of the means employed under intermediate scrutiny, the government must show that there is a close fit between means and ends. This can be shown by demonstrating that the means are not substantially broader than they need to be to protect the important government interest. As one method of determining if the means employed are substantially broader than they need to be, courts will often examine available less restrictive alternatives even though the government is not required to choose the least restrictive alternative. Therefore, it is the fit between means and ends that is key. This is analogous to showing in equal protection analysis that the classification is not substantially underinclusive as well as not substantially overinclusive, terms that are sometimes used in First Amendment analysis as well. Applying this concept to a chosen means instead of a classification focuses on the fit between the means employed and the government's regulatory target. Are the means precisely aimed at the source of the problem or do they misaim either regulating behavior that doesn't contribute to the problem or failing to regulate behavior that does contribute to the problem or some combination of the two?

Question Three:
Does the "directly related" requirement in the Central Hudson test really add anything or is basically the same as the narrowly tailored requirement?

Answer Three:
On the question of whether Central Hudson's "directly related" prong (or "directly and materially related prong as added in more recent cases) adds anything to the narrow tailoring requirement or not, I think both arguments are plausible, It's possible to argue that there is significant overlap between the directly related prong and the narrow tailoring requirement and it is also possible to argue that the "directly related" prong has some independent significance. A couple of cases where we can see this prong applied focus on the direct relationship between advertising and demand where the Court concludes that advertising directly stimulates demand and that prohibiting advertising decreases demand. However, the fact that there is a direct relationship between advertising and demand doesn't mean the law is narrowly tailored since the law may ban too much advertising or the wrong kind of advertising (like in Central Hudson itself) and not be narrowly tailored even though it satisfies the "directly related" prong. Another example is where the government tries to regulate consumption of alcohol by controlling price advertising as in 44 Liquormart (see page 187 for discussion of this issue). Here the Court concludes that there isn't a direct relationship between promoting temperance and a ban on price advertising and that the state's evidence is deficient in proving such a direct relationship. The Court goes on, however, to also conclude that the means aren't narrowly tailored because there are alternative means that are more accurately targeted at the problem of temperance the state is trying to address. This discussion, in effect, assumes that even if a "direct relationship" exists, the means are not a close enough fit to the ends. Looking at all this, I think you could say that the "directly related" prong is one piece of the narrow tailoring requirement, but not the entire requirement. If there isn't a "direct relationship" between means and ends there can't be narrowly tailoring. On the other hand, even if there is a "direct relationship," the law might not be narrowly tailored

Questions From Prior Years

Question One:
I am working on my outline for First Amendment and had a question.  For the exam, would you like us to focus more heavily on the landmark cases as opposed to the many notes cases?  I'm asking because I noticed that the review you posted highlighted primarily the major cases.

Answer One:
I don't think of outlining in preparation for the exam (or taking the exam) in terms of cases at all. I think of it in terms of areas that we studied. It is, of course true, that some cases contribute in a major way to the law in a particular area and others contribute in more minor ways. For example, if I was outlining the area of commercial speech I would have to start with the test used in Central Hudson since it remains the standard employed in analyzing commercial speech cases. I would then have to include the limited material available on how to define commercial speech which principally comes from the Bolger v. Youngs Drug Products case and Board of Trustees, State University of New York v. Fox. I'd also need to look at how the Central Hudson test has been applied in recent cases such as Liquormart, Lorillard Tobacco and others to see how how the Court addresses both the requirement that the law must directly and materially advance the government's interest and the narrow tailoring requirement. The latter involves a focus on the availability of alternative means, particularly non-speech related alternative means. I'd also look at the different treatment of disclosure requirements as compared to other forms of regulation. In addition, I'd look at City of Cincinnati v. Discovery Network for the proposition that the fact that commercial speech is lower level speech doesn't always mean the government can prefer political speech unless the governmental interest is directed at some way in which political and commercial speech are different. Even though I'd need to include all of these aspects of commercial speech in my outline, I wouldn't need to include all of the case names in order to discuss them. In answering an exam question, I'd be likely to only mention Central Hudson since it is the source of the test that is used and the test is usually referred to as the Central Hudson test. The other aspects that might be relevant to an exam question, like whether the speech at issue is commercial speech or not, I would discuss by focusing on factors that are relevant, but I probably wouldn't reference cases since none of the other aspects of commercial speech doctrine are referred to by specific case names.   

One way to figure out what you need to know is to look at some past exam questions and answer sheets to see how they divide up the points on the exam. Occasionally, there is a reference to a specific case usually because I've decided to give credit for drawing an analogy between the facts of the exam question and one of the cases we read since the two cases have significant similarities, but also significant differences. Most of the time, however, credit is given for a description of the relevant legal principles and the application of those principals to the facts of the exam question. I checked the exam answer I posted to the Bad Frog question and I counted only 3 references to specific cases (O'Brien, Central Hudson, and Cohen v. California). The first two were in the context of applying the tests that came from those cases and the third was in the context of classifying the nature of the speech at issue and whether it was protected or not.

I think of the review material I post as a good organizational tool for an outline, but it is not an outline in the conventional sense. It does not include all of the details you might want to include on an outline so you have all the tools you need to answer an exam question. Those tools may exclude some additional examples or some greater subtlety in the doctrine (as in the description of commercial speech above) than my review provides. On the other hand, the review includes a number of detailed explanations of concepts that we studied that are important to your understanding of the course material, but that you would not include in an outline.

Question Two:
Can you clarify the question you suggested we ask ourselves in making a determination as to whether the regulation is content-neutral or content-based? "The way to look at it is to ask yourself whether or not the law identifies who is regulated by a restriction on speech based on the content (the ideas or views expressed) of the speech.”

Answer Two:
As a general matter, it’s content-based if you have to examine the content of the speech to determine whether or not the speech is subject to the regulation. However, it isn’t a perfect distinction, as you can tell by the cases involving zoning of adult entertainment which are taken out of the category of content-based because the regulation is aimed at the secondary effects of the speech. Remember, you just have to make arguments for each side. Therefore, any time you have to examine the content (ideas or views expressed) to determine whether a regulation applies, the challenger can argue that the law is content-based. I think the quoted language from Part Two of the review explains the problem as well as I can:

Distinguishing between content-based and content-neutral regulations can also be complicated. That's partly because it's up to a court to decide whether a regulation of speech is going to be treated as content-based or content-neutral rather than it happening automatically. The way to look at it is to ask yourself whether or not the law identifies who is regulated by a restriction on speech based on the content (the ideas or views expressed) of the speech. If the law only applies if the speaker engages in speech with a particular content, like campaign speech or profanity, there is at least a strong presumption that it will be treated as content-based.  By contrast, if the law applies to speakers based on more general criteria and not based on the content of the speaker's message, like all persons who post a sign or want to hold a parade, there is at least a strong presumption it will be treated as content-neutral. I say that this initial inquiry creates a strong presumption rather than a final determination because a court can also look at other factors in making a final determination as to whether a law is content-based or content-neutral. This allows a speaker to argue that a law that appears to be content-neutral should be treated as content-based, thereby hoping to get the benefit of a stricter standard of review, and the government to argue that a law that appears to be content-based should be treated as content-neutral, thereby hoping to get the benefit of a less strict standard of review.

One factor, in addition to whether the law singles out speech based on its content or not, that courts often look at in deciding whether the law will be analyzed as content-based or content-neutral is the motive of the government for enacting the law. If the law singles out speech based on content, but it is clear the government's motive for the regulation is unrelated to the impact of the content of the speech on the audience exposed to the speech, the presumption could be overcome and the law might be treated as content-neutral. Similarly, if the law regulates based on an aspect of the speech other than its content, but it is clear the government's motive for the regulation is related to the impact of the content of the speech on the audience exposed to the speech, the presumption could be overcome and the law might be treated as content-based. For example, if a law singled out speech by Republicans and excluded it, the law is focused on the identity of the speaker rather than the content of the speech, but a court would probably conclude the law is content-based because it is motivated by a desire to suppress speech that contains content usually associated with the Republican Party. Another factor sometimes considered is the impact of the law on those it regulates. If the law appears to be content-neutral, but it disproportionately impacts different speakers based on the content of their speech, the law might be treated as content-based rather than content-neutral.

Most of the time when a law singles out speech based on its content, it will be treated as content-based because the motive for the law is that the government does not want the audience for the speech to be exposed to speech containing that content. For example, in Burson v. Freeman when the law banned campaign speech from in front of polling places on election day, the law singled out speech related to the election, allowing other kinds of speech to take place in that location. The reason for the ban was the government's view that it was harmful for voters to be exposed to speech about the election in such close proximity to a polling place.  Therefore, the law was both focused on content in what speech it regulated and was also motivated by a desire to suppress speech with that content, making it content-based in both appearance and reality.

Question Three:
I’m a little confused about the section on Libel in the outline, specifically with the Gertz rule. Part of my confusion rests with what seems like an overlap between NYT and Gertz. Can you explain the relationship between these two cases?

Answer Three:
New York Times v. Sullivan (and subequent cases) says states can’t impose liability for damages in cases where a public official or a public figure is libeled in their public official or public figure capacity unless the plaintiff can prove actual malice (the material was published with knowledge of its falsity or with reckless disregard of whether it was true or false). Gertz picks up where New York Times v. Sullivan leaves off. It applies where the victim of the libel is a private person caught up in a newsworthy event. It does not apply to public figures unless they are libeled as private figures (in their non-public figure capacity assuming they aren’t public figures for all purposes). In cases where the Gertz rule applies, states are allowed to set the standard for recovery in a libel case except that they cannot impose strict liability (that means states can choose negligence, gross negligence, or actual malice). While plaintiffs in libel situations governed by Gertz need not prove actual malice (unless state law requires them to), their failure to do so limits the kind of damages they can recover. If the plaintiff does not prove actual malice, damages are limited to actual damages and cannot include presumed or punitive damages. If a Gertz plaintiff can prove actual malice (satisfy the New York Times v. Sullivan standard), the plaintiff can avoid the damage limitations that are part of the Gertz rule. Dunn & Bradstreet picks up where Gertz leaves off and covers cases where a non-public figure is involved in a non-newsworthy event (although there aren’t many libel cases falling into this category).

Question Four:
In the realm of reasonable time, place, manner regulations, is “format” the same as “manner”?  Format bans include focused picketing, lawn signs, leafleting, etc. The court said the first was an acceptable format ban, but the latter were not. Those regulations didn’t deal with time or place, so was it manner that they dealt with?

Answer Four: 
You are correct that format bans can be considered to be manner regulations. If a manner regulation is a total format ban, the key question will probably be whether there are ample alternative avenues of communication. The answer to that question will in turn depend on whether the court views the format as uniquely valuable.