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Free Speech/1 st Amendment

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  1. Free Speech/1st Amendment Speech Begging Commercial Speech Signs as Speech

  2. BBC News Associated Press Photo from the San Francisco Chronicle Ladue v. Gilleo City of Ladue, et al., Petitioners v. Margaret P. Gilleo 114 S. Ct. 2038 (1994); 512 U.S. 43 (1994) U.S. Supreme Court Decision -- June 13, 1994

  3. BACKGROUND INFO. • Ladue = St. Louis suburb • St. Louis County, Missouri • Y2K Population = 8,625 • Willow Hill Subdivision • One of highest median household incomes in the U.S. & Missouri • Missouri’s best educated city, proportionately • Possible neighbors include: Former U.S. Senator John Danforth, William Bush and John F. McDonnell • 1st Persian Gulf War 1990-1991 (a.k.a. Operation Desert Storm) Margaret Gilleo, Entomologist, Active Environmentalist & Former Professor Photo from University of Maryville website St. Louis, MO

  4. St. Louis Metro Area Map from www.city-data.com

  5. The 1st Amendmentto the United States Constitution Congress shall make nolaw respecting an establishment of religion, or prohibiting the free exercise thereof ; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

  6. CaseHistory & Facts Gilleo stakes 24x36 -Inch anti-war sign in front yard Vandals steal sign & knock down a 2nd sign Gilleo reports to police who make her remove sign from yard due to city ordinance that prohibits residential signage other than for: 1) Residence Identification 2) “For Sale” 3) Safety Hazards Gilleo in front of her Ladue home in 1991 Copyright J. Aramberri Website 2003, Newspaper photo archives www.cd.sc.ehu.es/FileRoom/documents/Cases/390gulfsigns.html Gilleo’s petition for variance denied Gilleo sues City, the Mayor and City Council members for violation of her 1st Amendment rights

  7. Case History & Facts - Part 2 For PEACE in the Gulf District Court issues injunction Gilleo posts 8.5x11-Inch sign in 2nd story window City re-issues ordinance still prohibiting signs with all but 10 exceptions and policy statement limiting number & size of signs in private, residential, commercial, industrial and public areas b/c it…. “would create ugliness, visual blight and clutter, tarnish the natural beauty of the landscape as well as the residential and commercial architecture, impair property values, substantially impinge upon the privacy and special ambience of the community, and may cause safety and traffic hazards to motorists, pedestrians, and children.”

  8. So, What Happens In Court? • District Court and Court of Appeals find that the ordinance is unconstitutional b/c it is content-based • City of Ladue appeals to the U.S. Supreme Court Ladue City Hall Photo from City of Ladue Website

  9. Decision • A special respect for individual liberty in the home has long been part of our culture and our law, • That principle has special resonance when the government seeks to constrain a person's ability to speak there. • Most Americans would be understandably dismayed, given that tradition, to learn that it was illegal to display from their window an 8 by 11 inch sign expressing their political views. Whereas the government's need to • mediate among various competing uses, including expressive ones, for public streets and facilities is constant and unavoidable, its need to regulate temperate speech from the home is surely much less pressing • Ladue’s list of banned signs is over-inclusive

  10. Key Concepts • THINK OF SPEECH AS COMMUNICATION OF IDEAS • Content neutrality • Time, manner and place restrictions – not content • Incidental impact • Permissible suppression of speech • Misleading communication • Libelous communication • Obscene communication • Copyright or trademarked speech • Narrowly tailored

  11. Benefit v City of Cambridge • A 1994 Supreme Court Case about “begging” as a form of speech

  12. The Ordinance and Mr. Benefit • Persons wandering about from door to door in public places or private property for the purposes of begging or receiving alms, who are not licensed, may be imprisoned for up to six months. • Craig benefit sits on the streets holding up signs about peace, love, food, or other comments about the government • He talks to passers-by about his homelessness and makes suggestions about how government can help homeless people. He asks for money

  13. The Arrests and the Plea • Craig Benefit has been arrested at least three times for begging. He has been threatened by the police many times to leave Harvard Square. • Craig claims that his peaceful begging is expressive conduct because it is intertwined with his political discussions • The court rejects the state’s argument that there is a compelling need for this type of statute because people who beg are a “pestilence” in public places

  14. Conclusions • By prohibiting peaceful requests by poor people for personal financial aid, the statute directly targets the content of their communications, punishing requests by an individual for help with his or her basic human needs while shielding from government chastisement requests for help made by better-dressed people for other, less critical needs.

  15. The Redevelopment

  16. People, Planners & Projects

  17. And More People

  18. Enjoying Themselves

  19. Megan Roulette v City of Seattle • U.S. Circuit Court of Appeals – 1996 What is the controversy? – This Ordinance -------- • Prohibits people from sitting on lying on the public sidewalks in certain commercial areas between 7:00 am and 9:00 pm. There are no restricts about sitting of lying public parks, plazas, or sidewalks in non-commercial areas. The police must first give fair warning

  20. Megan’s Argument • The First Amendment protects not only the expression of ideas through printed or spoken words, but also symbolic speech -- nonverbal "activity . . . sufficiently imbued with elements of communication." Spence v. Washington, 418 U.S. 405, 409 (1974 • Sitting on the sidewalk might also be expressive, plaintiffs argue, such as when a homeless person assumes a sitting posture to convey a message of passivity toward solicitees.

  21. The Court’s Reasoning • In Answer to the direct, facial attack that the ordinance is an unconstitutional, on its face, violation of the 1st Amendment’s Right To Expression • It is possible to find some kernel of expression in almost every activity a person undertakes -- for example, walking down the street or meeting one's friends at a shopping mall -- but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. By its terms, the ordinance here prohibits only sitting or lying on the sidewalk. As we explained above, these are not forms of conduct integral to, or commonly associated with, expression. We therefore reject plaintiffs' facial attack on the ordinance

  22. Megan Again • Well then, the ordinance is a gross violation of my 14th Amendment Right to Due Process • THE CITY SAYS: "[a] downtown area becomes dangerous to pedestrian safety and economic vitality when individuals block the public sidewalks, thereby causing a steady cycle of decline as residents and tourists go elsewhere to meet, shop and dine."

  23. A Little Analysis Here • What is going to happen? • If you challenge a rule of law as unconstitutional “on its face you have to show that "no set of circumstances exists under which the statute would be valid." Megan concedes that "the city may prevent individuals or groups of people from sitting or lying across a sidewalk in such a way as to prevent others from passing.“ • Megan’s argument is tanked

  24. Class Discussion • Is this a thinly veiled aesthetic disguise to remove undesirables from the street • Or is a genuine state interests to promote public safety and economic vitality?????

  25. A Few Examples of Non Commercial Speech that is on the Border Line of the 1st Amendment • The General Rule is that government may regulate the: • Time • Manner • Place • BUT NOT THE CONTENT OF THE MESSAGE • Not All Speech is Protected • Copyright infringements • Misleading advertising • Libel – Treason • Fighting Words

  26. Insert One World – One Family “An ordinance prohibits the sale of merchandise on city streets. We must determine whether it may be constitutionally applied to bar non-profit organizations from selling message-bearing T-shirts” HAWAII - 1993

  27. Background • One World One Family Now and Bhaktivedanta Mission are non-profit corporations operating in Hawaii. Both sell T-shirts imprinted with various philosophical and inspirational messages, such as: • "Protect and Preserve the Truth • “ Beauty & Harmony of our Native Cultures" • Plaintiffs believe that selling T-shirts is a particularly effective way to communicate because those who buy and wear the T-shirts help spread the message.

  28. Controversy • The City and County of Honolulu began to hear from visitors and local residents who complained that the T-shirt tables were an obstruction and an eyesore. • Merchants with stores near the T-shirt tables also complained, citing a drop in their own sales of tourist-oriented merchandise, which they attributed to unfair competition from the sidewalk vendors.

  29. Response • The city notified the sidewalk vendors that they were violating Honolulu law which bans the sale of all "goods, wares, merchandise, foodstuffs, refreshments or other kinds of property or services . . . upon the public streets, alleys, sidewalks, malls, parks, beaches and other public places in Waikiki

  30. District Court • The district court held that the city was regulating the time, place and manner of speech pursuant to legitimate and significant interests, it refused to enjoin enforcement of the ordinance as to Kalakaua and Kuhio Avenues – in the heart of the business district.

  31. The Appeals Court • The Circuit Court of Appeals for Hawaii has already rejected San Francisco's contention that selling goods was unprotected conduct, we held that, when the sale of merchandise bearing political, religious, philosophical or ideological messages is "inextricably intertwined" with other forms of protected expression (like distributing literature and proselytizing), the First Amendment applies. • In other words selling T-Shirts that are used for communication is protected by the first amendment

  32. Content Neutrality • The district court found that the ordinance furthers three legitimate governmental interests: (1) "maintaining the aesthetic attractiveness of Waikiki," (2) "promoting public safety and the orderly movement of pedestrians," and (3)"protecting the local merchant economy.“ • None of these interests concerns the content of speech, and there's no evidence that "the ordinance was designed to suppress certain ideas that the City finds distasteful or that it has been applied to the plaintiffs because of the views that they express."

  33. Point by Point Examination • Aesthetics • Cities have a substantial interest in protecting the aesthetic appearance of their communities by "avoiding visual clutter." As the district court found, Honolulu's interest in eliminating the visual blight caused by unsightly vendor stands easily qualifies under this standard.

  34. Nexus • Traffic and Circulation • Likewise, cities have a substantial interest in assuring safe and convenient circulation on their streets. The district court found that Waikiki is the center of the state's tourism industry, receives as many as 60,000 visitors a day, and consequently has "a large concentration of vehicles and pedestrians which causes unique traffic problems."

  35. Density and Usage • Pedestrian control • Judged in light of "the characteristic nature and function of the particular forum involved," the city's interest in maintaining the orderly movement of pedestrians on Waikiki's crowded sidewalks is also substantial.

  36. Economic Argument • Honolulu has demonstrated a substantial interest in protecting local merchants from unfair competition. • A legitimate preoccupation of local government is to attract and preserve business. Cities rely on a prosperous, stable merchant community for their tax base, as well as for the comfort and welfare of their citizens. • Here, the district court found that "the tax-free and rent-free activities of the plaintiffs . . . have had a significant effect on the economy of the abutting shop owners on avenues whose taxes and rent contribute to the welfare and economy of this state." • This kind of unfair competition threatens to erode tax revenues and undermine the strength of its commercial life.* As amici remind us, plaintiffs can offer "remarkably low prices" in part because they pay no rent and aren't subject to various municipal regulations. Given the district court's findings, we must take seriously the concern that "[n]o ordinary merchant, forced to pay rent in Waikiki and comply with other applicable laws, possibly could compete

  37. Conclusion • Honolulu's peddling ordinance is narrowly tailored to serve these interests because they "would be achieved less effectively absent the regulation." Without the ordinance, sidewalk vendors (commercial and charitable alike) would be free to peddle their wares on Kalakaua and Kuhio avenues, undermining the city's efforts to provide a pleasant strolling and shopping area

  38. Commercial Speech Bridging To Personal Advertising

  39. As Personal Expression

  40. As Individual Expression Within A Commercial Billboard

  41. Public Art In Public Squares Renee Cox – Yo Mama’s Last Supper

  42. Sometimes Just Plain Funny

  43. The Message • The following cases deal specifically with commercial speech • Does commercial speech enjoy the same 1st Amendment protections as personal communications or: • The Press (Media) • Political speech • Religious Expressions • Artistic expression • Many of these questions will be covered in the section of Aesthetics and Signs

  44. Central Hudson Gas & Elec. V Comm. State of New York • A 1980 case that arises from an order of the State Regulatory Commission that bans (temporarily) all advertising that promotes the use of electricity • The order was based on the Commission’s finding that it did not have sufficient energy resources to supply electricity through the winters of 1975 – 1976 • This is a 3 year ban and the Regulatory Commission is considering extending it • Central Hudson complains that this violates their 1st Amendment rights.

  45. Commercial Speech • Courts have always allowed some degree of regulation in commercial speech • The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation • There is no objection to banning commercial speech (advertising) that is misleading or incomplete but the limitation or ban must be tailored to achieve the state’s goals

  46. Many Examples • Doctors could not advertise • Lawyers could not advertise • Hard liquors could not be advertised • Prescription drugs could not be advertised • Condoms could not be advertised nor could other birth control products

  47. Central Hudson Test • Court devises a 4 part test for protected commercial speech • It must concern lawful activity and not be misleading • The asserted government interest must be substantial • The regulation must directly advance the government interest asserted • Must not be more extensive that necessary to achieve the interest

  48. SO? • Lawful? • Nothing unlawful about advertising to use electricity but since the whole industry is regulated it does not result in any useful information • The court rejects this and says that Central Hudson has to compete with the home heating fuel industry and the natural gas producers • State’s Interest is Substantial • Fair and equitable utility rates • Energy conservation

  49. And! The Court Reverses the Ban • Regulation Must Directly Advance the State’s Interest • Connection between equitable rates, on and off peak usage and other cost basis arguments in tenuous • Connection between energy conservation is right on target and is a good reason to ban advertising • Must Not Be More Extensive Than Necessary • The total ban also prevents Central Hudson from advertising and promoting more efficient products for energy conservation (heat pumps) (well pumps). Therefore the total ban is more extensive than necessary