THE MO DOCTRINE

("Mo" is a nickname of mine)

1) The United States should only get involved in conflicts abroad where there is a direct and imminent threat to the nation and its security. 

2) The United States should stay out of civil wars.

3) If war is declared upon us, CRUSH, and I mean like Hiroshima-Nagasaki  C-R-U-S-H, the enemy. 

4) Fight to win or stay home.  

5) The United States has an abysmal record of siding with despots and propping up tinpot dictators. Know your enemy, your "ally," recognise self-determination, and MYOB.  

6) Unless the United States is under attack or imminent threat of attack, the President must get Congressional approval for all actions involving military operations abroad pursuant to Art. I, Sec. 8, Clause 11 and the War Powers Resolution Act.  

 7) When people want to kill each other, LET THEM.

QUESTION TIME WITH MO: WOULD A WEALTH TAX BE CONSTITUTIONAL?

Q: "I'm saying let's have a flat tax instead of one that allows the rich to pay less in proportion to their net worth than the middle class pay. Yes, you heard me - let's get rid of income tax - and have a FLAT TAX on NET WORTH. No tax increase, JUST A FLAT FAIR TAX on NET WORTH instead of the backward one we have. No deductions, no loopholes."

The Constitution would have to be amended in order for the federal government to do that which you propose. The Sixteenth Amendment only permits the taxation of income. The federal government is prevented from taxing land and, by extension, wealth. The Constitution's Article I, Section VIII, gave the federal government power to levy taxes, duties, imports and excises, as “indirect” taxes, requiring only that the duties, imposts and excises be “uniform throughout the United States.” The 16th Amendment authorized a “direct” tax on “incomes, from whatever source derived.” The intent of the Founding Fathers—almost all large landholders—was to prevent the new federal government from using land as a tax base. The Sixteenth Amendment exempted income taxes from the constitutional requirements regarding direct taxes, after income taxes on rents, dividends, and interest were ruled to be direct taxes in Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895).

In the United States, Article I, Section 9 of the Constitution requires that direct taxes imposed by the national government be apportioned among the states on the basis of population.  The direct tax provisions appear in Article I of the Constitution.  Section 2, clause 3 provides that “direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers.” U.S. Const., art. I, § 2, cl. 3.  In section 9, clause 4, the Constitution elaborates on the direct tax requirements, explaining that “[n]o Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”  Id. art. I, § 9, cl. 4.  The Constitution treats excise taxes differently, stating that  “Duties, Imposts and Excises shall be uniform throughout the United States.”  Id. art. I, § 8, cl. 1.  Neither the record of the constitutional convention nor the state ratification debates defines with any clarity the meaning of the term “direct tax” in the context of personal property.  See Bruce Ackerman, Taxation & the Constitution, 99 Colum. L. Rev. 1, 9-11 (1999); see also 2 The Records of the Federal Convention of 1787, at 350 (Max Farrand ed., Yale Univ. Press, 1966) (Aug. 20, 1787) (“Mr. King [a delegate to the constitutional convention] asked what was the precise meaning of direct taxation? No one answ[ere]d.”).  Over the years, litigants have frequently challenged specific taxes as unapportioned direct taxes in violation of Article I, sections 2 and 9.

The Constitution’s contrast of direct taxes with excise taxes has generally provided the framework for constitutional analysis in this area.  The term direct tax generally means a tax paid directly to the government by the persons on whom it is imposed.  An excise tax is an indirect tax, meaning that the producer or seller who pays the tax to the government is expected to try to recover the tax by raising the price paid by the buyer (that is, to shift or pass on the tax). Excises are typically imposed in addition to another indirect tax such as a sales tax or VAT.

The federal Constitution prohibits a direct tax on individuals. Article I, Section 9 reads: "No Capitation, or other direct, Tax shall be laid, unless in proportion to the Census." It took the 16th Amendment to authorize a DIRECT INCOME TAX. Seemingly, therefore, Congress cannot directly tax individuals based on their wealth. (The estate tax was upheld by the courts on the grounds that the government was not taxing a person's wealth as such but focusing on a specific event, namely the death of the individual, as the basis for the tax. It is an indirect tax.)

Traditionally, a direct tax in the constitutional sense means a tax on property "by reason of its ownership" (such as an ordinary real estate property tax imposed on the person owning the property as of January 1st of each year) as well as a capitation (a "head tax").

The first direct tax case to come before the Supreme Court was Hylton v. United States, 3 U.S. 171 (1796), which upheld an unapportioned tax on carriages.  3 U.S. (3 Dall.) at 171.  The statute at issue in Hylton, Act of June 5, 1794, ch. 45, 1 Stat. 373 (repealed 1796), imposed a tax “upon all carriages for the conveyance of persons, which shall be kept by or for any person, for his or her own use, or to be let out to hire, or for the conveying of passengers.”  The Court rejected the plaintiff’s challenge to the carriage tax as an unapportioned direct tax, holding that the carriage tax was indirect.

The Court again made clear that its reasoning reached only general taxes on personal property.  In Union Electric Company v. EPA 427 U.S. 246 (1976), the Court approvingly quoted Alexander Hamilton’s definition of direct taxes, which he championed in his successful litigation of Hylton:

"The following are presumed to be the only direct taxes.  Capitation or poll taxes.  Taxes on lands and buildings.  GENERAL ASSESSMENTS, WHETHER ON THE WHOLE OF INDIVIDUALS, OR ON THEIR WHOLE REAL OR PERSONAL ESTATE; all else must of necessity be considered as indirect taxes."

The Court has never overruled Hylton.  In fact, in the years since Hylton, the Court has repeatedly cited Hylton with approval in rejecting direct tax challenges.  See, e.g., Fernandez v. Wiener, 326 U.S. 340, 353 (1945); Bromley v. McCaughn, 280 U.S. 124, 136 (1929); Thomas v. United States, 192 U.S. 363, 370 (1904); Springer v. United States, 102 U.S. 586, 599-601 (1881).

What does Hylton portend for a wealth tax?:

1)  Taxes on land and buildings are unconstitutional direct taxes.  (That would knock out real property in a wealth tax).

2)  General assessments on personal property are unconstitutional.  (That knocks out stock, bonds, jewelry, art, etc.).

In the late 1800s, the federal courts also began to treat an income tax on income from property, such as rental payments, as a direct tax. In constitutional law, an "indirect tax" or "excise" is an "event" tax, an overt act must occur such as the sale of a product subject to a VAT tax. In this sense, a transfer tax (such as gift tax and estate tax) is an indirect tax. Income taxes on income from personal services such as wages are also indirect taxes in this sense.

  After the 1895 Pollock ruling (essentially, that taxes on income from property should be treated as direct taxes), this provision made it difficult for Congress to impose a national income tax that applied to all forms of income until the 16th Amendment was ratified in 1913. After the Sixteenth Amendment, no Federal income taxes are required to be apportioned, regardless of whether they are direct taxes (taxes on income from property) or indirect taxes (all other income taxes).

The Sixteenth Amendment: "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration." 

Although the Eisner v. Macomber, 252 U.S. 189 (1920), Court acknowledged the power of the Federal Government to tax income under the Sixteenth Amendment, the Court essentially said this did not give Congress the power to tax — as income — anything other than income, i.e., that Congress did not have the power to re-define the term income as it appeared in the Constitution:

“Throughout the argument of the Government, in a variety of forms, runs the fundamental error already mentioned—a failure to appraise correctly the force of the term "income" as used in the Sixteenth Amendment, or at least to give practical effect to it. Thus, the Government contends that the tax "is levied on income derived from corporate earnings," when in truth the stockholder has "derived" nothing except paper certificates which, so far as they have any effect, deny him [or "her" — in this case, Mrs. Macomber] present participation in such earnings. It [the government] contends that the tax may be laid when earnings "are received by the stockholder," whereas [s]he has received none; that the profits are "distributed by means of a stock dividend," although a stock dividend distributes no profits; that under the Act of 1916 "the tax is on the stockholder's share in corporate earnings," when in truth a stockholder has no such share, and receives none in a stock dividend; that "the profits are segregated from his [her] former capital, and [s]he has a separate certificate representing his [her] invested profits or gains," whereas there has been no segregation of profits, nor has [s]he any separate certificate representing a personal gain, since the certificates, new and old, are alike in what they represent—a capital interest in the entire concerns of the corporation.”

Holding:

"A pro rata stock dividend where a shareholder received no actual cash or other property, and retained the same proportionate share of ownership of the corporation as was held prior to the dividend, was not taxable income to the shareholder within the meaning of the Sixteenth Amendment, and that an income tax imposed by the Revenue Act of 1916 on such dividend was unconstitutional, even where the dividend indirectly represented accrued earnings of the corporation."

Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955), was an important income tax case before the United States Supreme Court. The Court held as follows:

"Congress, in enacting income taxation statutes that comprehend "gains or profits and income derived from any source whatever," intended to tax all gain except that which was specifically exempted.

Income is not limited to "the gain derived from capital, from labor, or from both combined."

Although the Court used this characterisation in Eisner v. Macomber, it "was not meant to provide a touchstone to all future gross income questions."

Instead, income is realised whenever there are "instances of

1) undeniable accessions to wealth

2) clearly realised, and

3) over which the taxpayers have complete dominion."

All of the precedent requires that there be a "taxable event" on income "derived from real property" before the federal government can tax. Gift and estate taxes are indirect taxes. Direct taxes are only permissible on taxable events that give rise to income whether through salary, bonus, dividend, capital gain, etc. There is no taxable event on wealth. The appreciation after a sale and income are taxable, but other than that, there is no taxable event. The wealth is stationary.

Free Speech In The Workplace

The First Amendment protects workplace speech from government abridgment, so long as the communications "do not contain a `threat of reprisal or force or promise of benefit.´" "[A]n employer's free speech right to communicate his views to his employees is firmly established and cannot be infringed"; and likewise, courts of appeals have held, for employees' free speech rights. See: NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 618 (1969) (employer speech); NLRB v. Local Union No. 3, 828 F.2d 936 (2d Cir. 1987) (applying Gissel to union speech); Hospital & Serv. Employees Union, Local 399 v. NLRB, 743 F.2d 1417, 1428 n.8 (9th Cir. 1984) (subjecting regulation of union speech to strict First Amendment scrutiny). Though the National Labor Relations Act has a specific proviso that guarantees both employer and employee free speech, 29 U.S.C. § 158(c) (1988), the free speech rights established by Gissel are based not on this proviso, but on the First Amendment itself. "[Section] 8(c) . . . merely implements the First Amendment by requiring that the expression of `any views, argument, or opinion´ shall not be `evidence of an unfair labor practice,´ so long as such expression contains `no threat of reprisal or force or promise of benefit.´" Gissel, 395 U.S. at 617.

Unless an employee is working pursuant to an employment contract with a morals clause or similar restriction, employers, including governments, cannot infringe upon their employees First Amendment rights provided that the speech is not made during the course of employment or under colour of law. In fact, governments have to be very careful in this area because infringing on the constitutional rights of employees or ordinary citizens can trigger a 1983 suit (deprivation of constitutional rights by government or its agents acting under colour of law).

I agree with Justice Souter, who wrote in his Garcetti dissent, "[T]his ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to official duties.’”

I think that Souter perfectly presents the potential problem. In Garcetti, a Deputy DA was contacted by defence counsel on the issue of a challenge to a search warrant because of alleged inconsistencies in the proffered affidavit of police. Ceballos conducted his own investigation during the course of his employment and concluded that the defence counsel was correct. He prepared a memo and sent it to Gil Garcetti (DA of OJ Simpson fame). His superiors dismissed his claims and continued to prosecute the criminal case. Ceballos later sued claiming that the DA's office had retaliated against him.

The Court held that statements made by public employees pursuant to their official duties are not protected by the First Amendment from employer discipline. Yet, this holding flies in the face of the holdings in whistleblower cases. We should want more speech, not less. We should want whistelblowers and professors that challenge the status quo.

In order for a law or code restricting speech to be constitutional, it must survive strict scrutiny. Along with the lower standards of rational basis review and exacting or intermediate scrutiny, strict scrutiny is part of a hierarchy of standards employed by courts to weigh an asserted government interest against a constitutional right or principle that conflicts with the manner in which the interest is being pursued, United States v. Carolene Products Company, 304 U.S. 144 (1938). Strict scrutiny is applied based on the constitutional conflict at issue, regardless of whether a law or action of the Federal government, a state government, or a local municipality is at issue. For a law or code restricting speech to survive strict scrutiny and be upheld as constitutional it must be 1) narrowly-tailored, 2) the state must also have a compelling governmental interest, and 3) the law or policy must be the least restrictive means for achieving that interest.

In order for a university to succeed in limiting the speech of its employees in the classroom or elsewhere, it is going to have to satisfy all three prongs and I don't see how it can. What is the compelling governmental interest in preventing types of speech on campus?

The most common government interests cited are "harassment," "workplace environment," etc. We start from the position that free speech is the ideal. Then, we have to weigh the rights of others against those of the speaker. We might agree that an individual has the right to condemn soldiers, Christians, Jews, etc., but that doesn't mean that he has a protected right to speak thusly at his place of employment. These cases are usually fact-specific and require the least onerous infringement. 

The First Amendment & Snyder v. Phelps

"Congress shall make no law...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." -- The First Amendment

Restrictions on freedom of speech always authorise the government to decide how, and against whom, the restrictions should apply. The more authority the government has, the more it will use that authority to suppress unpopular minorities, criticism and dissent. Because freedom of expression is so basic to a free society, it should 'never' be abridged by the government.

Let’s start with some case law:

Free speech issues did not reach SCOTUS until 1919. That year, the Court dealt with free speech for the first time in the case of Schenck v. United States, 249 U.S. 47 (1919). Schenck, a member of the Socialist Party, had been convicted of violating the Espionage Act for mailing anti-war leaflets to draft-age men during WWI. SCOTUS unanimously upheld his conviction. The prevailing legal view at the time was that any speech that had a "tendency" to cause a violation of law could be punished.
 
The 'Schenck' case was quickly followed by others that ended in decisions equally contemptuous of First Amendment freedoms. Among them was the case of Jacob Abrams, Abrams v. United States, 250 U.S. 616, convicted under the Sedition Act of 1918 (which was repealed in 1920) for distributing leaflets that criticized the American military. However, even though SCOTUS upheld Abrams' conviction, the decision in his case was a watershed: Justices Oliver Wendell Holmes and Louis D. Brandeis dissented, stating that speech could not be punished unless it presented "a clear and present danger" of imminent harm. The Holmes-Brandeis dissent marked the beginning of modern First Amendment theory.

SCOTUS declared the inviolability of First Amendment rights for the first time in 1925 in Gitlow v. New York, 268 U.S. 652 (1925), a case that challenged the conviction of a communist revolutionary under New York's Criminal Anarchy law. Although the Court affirmed the conviction, it announced that freedom of speech and press were protected by the First Amendment from federal encroachment, and "are among the fundamental personal rights and 'liberties' protected by the states." This holding paved the way for the Court in Stromberg v. California, 283 U.S. 359 (1931), to rule that States cannot infringe on the First Amendment right to freedom of speech and expression.

Finally, the Court ruled, in Brandenburg v. Ohio, 395 U.S. 444 (1969), that “mere advocacy of the use of force, or of violation of law (in this case, by a Ku Klux Klan leader) is protected by the First Amendment free speech clause. Only inciting others to take direct and immediate unlawful action would be without constitutional protection.

The 'Brandenberg' test is the law today.

Can free speech be limited in any way? Yes.

The government may place "time, place and manner" restrictions on speech as long as they are "reasonable." For example, requiring people to obtain a permit to hold a meeting in a public building, or to conduct a demonstration that may interfere with traffic, constitutes a justifiable regulation. You can read the plethora of case law on TPM restrictions here: http://www.firstamendmentcenter.org/faclibrary/libraryexpression.aspx?topic=time_place_manner

But restrictions that are overly burdensome or are directed at specific groups or individuals (see: KKK, Nazi groups, or think Phelps) violate the First Amendment. For example, during the 1960s, officials in Southern cities frequently required civil rights activists to apply for permits in order to hold demonstrations, and then granted or denied the permits arbitrarily. Shuttlesworth v. Birmingham, 394 U.S. 147 (1969), is an excellent case to read to understand what fact pattern can cause licencing schemes to be ruled unconstitutional.

Are any forms of expression not protected by the First Amendment? Yes.

SCOTUS has established several limited exceptions to the First Amendment's protections. Here are a couple to consider:

FIGHTING WORDS:

In the 1942 case of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), SCOTUS held that so-called "fighting words...which by their very utterance inflict injury or tend to incite an immediate breach of the peace" are not protected by the First Amendment and can be punished. The Court based its decision on the concept that such utterances are of "slight social value as a step to truth."  While many may see Snyder v. Phelps as a case open to the Fighting Words Doctrine, such is not the case due to the fact pattern.  (Also, see discussion below)

SLANDER, LIBEL, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:

In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court held “the First Amendment, as applied through the Fourteenth, protected a newspaper from being sued for libel in state court for making false defamatory statements about the official conduct of a public official, because the statements were not made with knowing or reckless disregard for the truth.”

In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), a public figure shown in a parody must show actual malice to claim he is libeled to prove a case of intentional infliction of emotional distress.  Held:  Parodies of public figures, which could not reasonably be taken as true, are protected against civil liability by the First Amendment, even if intended to cause emotional distress.

In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Court held that “the First Amendment permits states to formulate their own standards of libel for defamatory statements made about private figures, as long as liability is not imposed without fault.”

In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), the Court held that “an individual or group can be held civilly liable for ordinary and punitive damages for publishing false assertions about another individual or group, which is not a public figure.” Dun & Bradstreet does stand for the proposition that “context” must be considered. But, “context” must also be within outrageous and personal conduct.


Let’s look at the actual facts in Snyder v. Phelps :

The hideous Phelps family did secure the requisite permits to protest the funeral. The police were well aware that they were there and had insured that the protesters stood outside of the barrier as proscribed in Maryland’s TPM restrictions. No signs were directed, specifically, at Matthew Snyder. In fact, the clan used the same signs that very day in 2 other protests: In Annapolis and at the State Capitol.

The most important facts to keep in mind:

1. The Snyder family did NOT personally see the Phelps family or their signs before, during, or after the funeral. They were told about the protesters’ presence afterward at a family gathering.

2. At the family gathering, the family was told that the Phelps protesters had posted an “Epic” on the internet depicting their protest at the funeral. The Snyder family ELECTED to view the “Epic” on the internet.

3. Petitioner ADMITTED that the Phelps family did not violate Maryland’s TPM restrictions nor did it violate any other criminal statutes, including the State’s funeral protest law that was passed subsequent to the Snyder funeral.

4. None of the signs were directed, specifically, to Matthew Snyder or the Snyder family. As Justice Alito recognised in argument, the “You” in the signs and in the Epic was generic in nature and not directed at any individual or group. It is crucial to bear in mind that not one sign named Snyder. All signs were to the effect: “God Hates F@gs!” (generic and plural), “Get Out Of Iraq!” (political), “God Hates You!” (non-specific), “You’re Going To Hell! (generic), etc.

5. Mr Summers, counsel for the Petitioner, Albert Snyder, argued that neither Sullivan nor Falwell applied because Matthew Snyder was not a public figure (true, but the estate of a decedent cannot sue for defamation).

ISSUES:

1. Can a person or group put anything on the internet?

Mo: Yes, but not without the possibility of liability. One cannot post copyrighted material. One can also not post defamatory statements directed specifically at private individuals. If I post an article that claims, for example, that my neighbour, John Adams, has been embezzling funds from the Co-op Building Fund and such are untrue, I can be sued for defamation. On the other hand, if I post an article that claims, for example, that Obama has sent stimulus funds to a personal offshore bank account and such are untrue, it is highly unlikely that I cannot be sued because he is a public official and he must prove that I posted information that I knew to be false and did so maliciously. An opinion is not defamation – for either private or public persons. If my opinion is that you are fat and I say so, I have not defamed you. You may be hurt, but you have no cause of action. This is even more the case for public figures.

2. Can a person put anything on television, even if it is obnoxious, about a private individual?

Mo: See #1.

3. Does it make a difference if the public comments about political issues are directed to public or private individuals?

Mo: I argue “No.” If I approach a returning soldier and accuse him of participating in an “illegal war” and say that soldiers are “baby killers”, while such behaviour would be despicable, it is permissible and because it is my opinion on a political issue and such matters not whether directed at Obama or G.I. Joe. (Mo: I am not applauding such. Just arguing the law.) On the other hand, the late John Murtha's claims that SPECIFIC soldiers were murderers WAS ALMOST CERTAINLY DEFAMATION, as the facts of the case did not support his statement.

4. To what extent, can a political opinion on a public issue (homosexuality, war, etc.) become the intentional infliction of emotional distress when it is directed at private individuals?

Mo: If my statement is “God Hates F@gs!” and is generic, even if directed at an individual, I do not believe that such can be proscribed by the government or give rise to a tort. Also, this would create a VERY SLIPPERY SLOPE. What if I say “Mohammed was a pervert and all of his followers are hated by the ‘real’ God”? Should the government be able to censor such? No. Should Muslims be able to sue me for intentional infliction of emotional distress? No.

5. Can there be intentional infliction of emotional distress when an individual makes an obnoxious, but generic statement, about another individual or group (soldiers) in an effort to raise public consciousness?

Mo: No.

6. And, most importantly, under what theory of the First Amendment stand for the proposition that public speech or speech on a public or political matter be treated differently depending upon the recipient of the speech?

Mo: There is no First Amendment theory to support such.  Where the public speech is on a public or political matter, there can be no intentional infliction of emotional distress. It is free speech and is protected. It cannot matter who receives or hears the speech. If I am standing in Central Park and speaking out against the war or homosexuality and the parent on a dead soldier or a homosexual hears me, there is no INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. (There are cases in Britain that criminalise speech against gays, so be careful). On the other hand, TPM restrictions can be imposed that would proscribe my speech inside of a funeral service, for example. Those are legal.

The Phelps family is disgusting. It should be shunned. Its protests should be met with larger protests. That said, hate speech should never be recognised as a crime or tort. To do so, would eventually result in the government deciding what citizens may or may not say. Do not forget: The government once held this power and it was less than a century ago.

I encourage you all to either listen to the oral arguments here.


Update:  On 2 March 2011, the Supreme Court ruled 8-1 (Justice Alito dissented) in favour of Westboro Baptist Church although I would like to see it as they stood up for the First Amendment.  You can read the decision here.

Question Time With Mo: Are Speech Codes Constitutional?

The Federal government and state governments are broadly forbidden by the First Amendment of the Constitution from restricting speech. See, e.g., Gitlow v. New York, 268 U.S. 652 (1925), De Jonge v. Oregon, 299 U.S. 353 (1937), Wolf v. Colorado, 338 U.S. 25 (1949), and Gideon v. Wainwright, 372 U.S. 335 (1963).  Generally speaking, the First Amendment prohibits governments from regulating the content of speech, subject to a few recognized exceptions such as defamation and incitement to imminent lawless action.  Even in cases where speech encourages illegal violence, instances of incitement qualify as criminal only if the threat of violence is imminent. This strict standard "prevents prosecution of many cases of incitement, including prosecution of those advocating violent opposition to the government, and those exhorting violence against racial, ethnic, or gender minorities." See, e.g., Yates v. United States, 354 U.S. 298 (1957), Brandenburg v. Ohio, 395 U.S. 444 (1969).

In the 1980s and 1990s, more than 350 public universities adopted "speech codes" regulating discriminatory speech by faculty and students. These codes have not fared well in the courts, where they have been frequently overturned as violations of the First Amendment. See, e.g., Doe v. Michigan, 721 F. Supp. 852 (1989), UWM Post v. Board of Regents of University of Wisconsin, 774 F. Supp. 1163 (E.D. Wis. 1991), Dambrot v. Central Michigan University, 839 F. Supp. 477 (E.D. Mich. 1993), aff'd, 55 F.3d 1177 (6th Cir. 1995), Corry v. Stanford, No. 740309 (Cal. Super. Ct. Feb. 27, 1995).

Governmental restrictions, including those imposed by an institution or entity receiving public monies, on constitutional rights that undergo strict scrutiny are most commonly, but not invariably found invalid.  Debate over the restriction of the nebulous definition of "hate speech" in public universities continues to resurface periodically with the adoption of anti-harassment codes covering discriminatory speech.  While the Court has refused to grant certiorari to any case involving speech codes and has allowed the rulings of the appellate courts to stand, the common position of the bar is that, eventually, the Court will rule on whether speech can be censored on campuses.  There are few other issues that aim straight at the heart of the Republic than the idea of parameters being placed on what constitutes permissible, protected speech and how those limits might be defined.  Broadly speaking, the Court has allowed restrictions where there exists speech that has a great possibility of inciting imminent lawless action, i.e., a riot.  Never has the Court restricted speech based on how words or expressions might affect the recipient of same.  Such a reconfiguration of how speech is determined to be legal based on the feelings of others will be a step toward the type of hate speech crime laws that have had an Orwellian effect on the people of Britain, Canada, and Europe.  As an aside, I ask you to familiarise yourself with the broad laws of those nations and imagine how they would play in the United States.  What would it mean to our political discourse bearing in mind that political speech, above all else, is the most critical to the continuance of the United States as a free society where the government serves at our pleasure?  Can you imagine being prosecuted for hate speech crimes because your scholarly work on, say, the demographic impact of Muslim immigrants in Michigan has offended a radical imam at a mosque in Dearborn?  Not only could it happen, it has in Toronto, Canada.

In order for a law or code restricting speech to be constitutional, it must survive strict scrutiny. Along with the lower standards of rational basis review and exacting or intermediate scrutiny, strict scrutiny is part of a hierarchy of standards employed by courts to weigh an asserted government interest against a constitutional right or principle that conflicts with the manner in which the interest is being pursued, United States v. Carolene Products Company, 304 U.S. 144 (1938). Strict scrutiny is applied based on the constitutional conflict at issue, regardless of whether a law or action of the Federal government, a state government, or a local municipality is at issue.  For a law or code restricting speech to survive strict scrutiny and be upheld as constitutional it must be 1) narrowly-tailored, 2) the state must also have a compelling governmental interest, and 3) the law or policy must be the least restrictive means for achieving that interest.

Strict scrutiny arises in two basic contexts: when a "fundamental" constitutional right is infringed, particularly those listed in the Bill of Rights and those the Court has deemed to be a fundamental right protected by the "liberty" or "due process" clause of the Fourteenth Amendment; or when the government action involves the use of a "suspect classification" such as race or, sometimes, national origin that may render it void under the Equal Protection Clause.  See Carolene, supra, at FN4.

Let's take each of the prongs and consider them in greater detail:

FIRSTLY, any restriction must be justified by a compelling governmental interest. While the Court has never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.  For an idea of what constitutes a bright-line test, see Miranda v. Arizona 384 U.S. 436 (1966), Goldberg v. Kelly, 397 U.S. 254 (1970), S.E.C. v. Chernery Corporation, 332 U.S. 194 (1947), Heckler v. Campbell, 461 U.S. 458 (1983), Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988), Sameena, Inc. v. U.S. Air Force, 147 F.3d 1148 9th Cir. (1998). 

SECONDLY, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (Overbreadth Doctrine) or fails to address essential aspects of the compelling interest (Under-Inclusive Doctrine), then the rule is not considered narrowly tailored. 

Overbreadth Doctrine.  A statute doing so is overly broad if, in proscribing unprotected speech, it also proscribes protected speech. Overbreadth is closely related to vagueness; if a prohibition is expressed in a way that is too unclear for a person to reasonably know whether or not their conduct falls within the law, then to avoid the risk of legal consequences they often stay far away from anything that could possibly fit the uncertain wording of the law. The law's effects are thereby far broader than intended or than the Constitution permits, and hence the law is overbroad.  The esteemed constitutional scholar, Lewis Sargentich, first analysed and named the doctrine in his famous note in the Harvard Law Review, The First Amendment Overbreadth Doctrine (83 Harv. L. Rev. 844). Then, citing Sargentich's note, the Court in Broadrick v. Oakland, 413 U.S. 601, explicitly recognized the doctrine in 1973. 

Under-Inclusive Doctrine.  An under-inclusive law is not necessarily unconstitutional or invalid. The Court has recognised that all laws are under-inclusive and selective to some extent. If a law is substantially under-inclusive, however, it may be unconstitutional.  If a law infringes on constitutionally protected free speech, press, or associational rights, it may be unconstitutionally under-inclusive if it is based on the content of the speech or somehow regulates ideas. In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the Court struck down a hate speech ordinance that prohibited "the display of a symbol which one knows or has reason to know 'arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.'" A youth in St. Paul, Minnesota, had been prosecuted under the ordinance for burning a cross in the yard of an African-American family. The Court held that the law was unconstitutionally under-inclusive under the First Amendment because it punished only certain speech addressing particular topics; the law addressed the content, rather than the manner, of the speech.

A law is not necessarily invalid just because it is under-inclusive. For example, a statute that prohibited the use of loudspeaker systems near a hospital might be under-inclusive for failing to prohibit shouting or the use of car horns in the same area. This type of under-inclusiveness concerns only the manner of delivering speech, however, and is therefore more likely to pass constitutional scrutiny than a statute that prohibits speech on particular subjects. 

THIRDLY AND FINALLY, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.  The "least restrictive means," or "less drastic means," test is a standard imposed by the courts when considering the validity of legislation that touches upon constitutional interests. If the government enacts a law that restricts a fundamental personal liberty, it must employ the least restrictive measures possible to achieve its goal. This test applies even when the government has a legitimate purpose in adopting the particular law. The "Least Restrictive Means Test" has been applied primarily to the regulation of speech. It can also be applied to other types of regulations, such as legislation affecting interstate commerce.

In Shelton v. Tucker, 364 U.S. 479 (1960), the Court applied the least restrictive means test to an Arkansas statute that required teachers to file annually an Affidavit listing all the organisations to which they belonged and the amount of money they had contributed to each organisation in the previous five years. B. T. Shelton was one of a group of teachers who refused to file the affidavit and who, as a result, did not have their teaching contract renewed. Upon reviewing the statute, the Court found that the state had a legitimate interest in investigating the fitness and competence of its teachers, and that the information requested in the affidavit could help the state in that investigation; however, according to the Court, the statute went far beyond its legitimate purpose because it required information that bore no relationship to a teacher's occupational fitness. The Court struck down the law because its "unlimited and indiscriminate sweep" went well beyond the state's legitimate interest in the qualifications of its teachers.

Two constitutional doctrines that are closely related to the least restrictive means test are the Overbreadth Doctrine, supra, and Vagueness Doctrine. These doctrines are applied to statutes and regulations that restrict constitutional rights. 

The least restrictive means test, the Overbreadth Doctrine, and the Vagueness Doctrine all help to preserve constitutionally protected speech and behaviour by requiring statutes to be clear and narrowly drawn, and to use the least restrictive means to reach the desired end. 

Legal scholars, including judges and professors, often say that strict scrutiny is "strict in theory, fatal in fact," because popular perception is that most laws subject to this standard are struck down. An empirical study of strict scrutiny decisions in the federal courts, however, conducted by Adam Wrinkler found that laws survive strict scrutiny over 30% of the time. In one area of law, religious liberty, laws survived strict scrutiny review in nearly 60% of applications.

Three Landmark Cases:

Students' free speech rights sometimes clash with schools' interest in maintaining control of public education. Students' First Amendment liberties were affirmed by the Court in the landmark case, Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). In Tinker, the Court ruled that public school students could not be penalised for wearing symbols, such as black armbands, to protest the Vietnam War. Such bans violated the free speech and expression rights of the students.

In two subsequent cases that dealt with censorship, the Court took a more restrictive judicial view of students' right to free expression where funding for school newspapers was provided by the institution. In Hazelwood School District v. Kuhlmeier, 484 U.S. 260, (1988), the Court ruled in favour of a public school principal, who removed several articles from a student newspaper. The articles dealt with a teen's pregnancy and her feelings about her parents' divorce. The Court held that a school newspaper is not a public forum. Since it is not a public forum and funding comes from the institution, school officials have the right to determine what type of student speech is appropriate and it may regulate such speech.

In Planned Parenthood v. Clark County School District, 941 F.2d 817 (1991), the court used Hazelwood to uphold the school's ban of advertisements from Planned Parenthood in a public high school newspaper.

The latter two holdings are, primarily, based on the fact that the school funds the newspapers. They are in contrast to Tinker that saw a prohibition in a school's dress and behaviour code struck down as unconstitutional because it failed to survive strict scrutiny and infringed on a student's free speech and expression rights.

As mentioned in the introduction, the Supreme Court has yet to grant certiorari for a case involving speech codes or hate speech in an educational institution.  If and when the Court agrees to hear a speech code or hate speech case, I think that it will likely build on Hazelwood, supra, and Planned Parenthood, supra, by adding Christian Legal Society v. Martinez, 08-1371 (2010). Christian Legal was a recently decided case involving a Christian law student group at Hastings Law School. Homosexuals wanted to be admitted to the group, but did not wish accept the tenets of the Christian faith as they apply to homosexuality. Furthermore, the gay students were offended by the religious scriptures against homosexuality and the personal faiths of the heterosexual students.  The Court ruled that, not unlike in Hazelwood, as long as a student group is getting funding from the university, the educational institution can decide what speech or practises that may be discriminatory it will allow.  The student group must abide by the speech and behaviour code of the educational institution. The Court focused on funding, not freedom of speech or religion.

Before we move on, I would like to comment on the ruling in Christian Legal Society. The holding in the case has troubled many of us, who specialise in constitutional law.  The qualms raised are not necessarily fact specific to the instant case; instead, the possible implications for future proceedings are unknown and troubling.

Probably one of the most difficult positions in which we find ourselves in the law and one that we, needless to say, try to avoid is a situation where it is necessary to either balance competing constitutional rights or to elevate one individual's rights over that of another.  In Christian Legal Society, the first set of rights to evaluate is that belonging to the Christian students.  Obviously, they have rights of freedom of speech, religion, and association.  Had the group raised its own funding for its meetings, literature, etc., the Court would have likely found for the religious group.  Because the university funded the group, however, it had the right to mandate the rules for sanctioned groups.  Hastings Law School has both a non-discrimination policy and speech code.  For this reason, the meetings must be open to all students.  Now, this case applies to other university funded groups, as well.  The LGBT group must admit Christians.  The school's chapter of NOW must admit the Muslim Men's Society.  That's the law.  Hopefully, the competing groups will remember that just because you can do something doesn't mean that you should.  On a more serious note, let us hope that the Court maintains the funding basis for this decision.  If funding foundaton is ever stripped away, the fears all of us that cherish the First Amendment and, indeed, the Constitution as a whole, will become very real, very quickly.  And, for those that dream of speech codes to prevent the feelings of some from being hurt, you seek that which you do not know and you will rue the day that you find it.

Speech Codes and Behavioural Policies and the Workplace:

One final area that we must address is how speech codes or behavioural policies affect employees.  Obviously, each place of employment will have its own rules and regulations and one must familiarise herself with what is expected of her while on the job and, in some cases, outside of the workplace.  Having said this, two areas are of special importance and must be considered.

One of the areas where the government, including public universities, has wide latitude in censoring speech and information involves the internet. In 1996, Virginia became the first state to pass a law that “restricts access by state employees to lascivious sexually explicit material on computers owned or leased by the state.” In Urofsky v. Gilmore, 216 F.3d 401 (2000), the 4th U.S. Circuit Court of Appeals held that the speech at issue — “access to certain materials using computers owned or leased by the state for the purpose of carrying out employment duties” — was clearly made in the employee’s role as employee. Therefore the statute “does not affect speech by [the professors] in their capacity as private citizens on matters of public concern” and thus “does not infringe the First Amendment rights of state employees.” 

One caveat to the general rule that speech is unrestricted and protected can be found in Title VII of the Civil Rights Act of 1964. Employers may sometimes be prosecuted for tolerating "hate speech" by their employees, if that speech contributes to a broader pattern of harassment resulting in a "hostile or offensive working environment" for other employees. See, e.g., Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), Patterson v. McLean Credit Union, 491 U.S. 164 (1989).  These cases do happen frequently and you should be very familiar with the policy of your workplace and, as an employer, it is critical that you protect both your employees and your business.



Related Reading:

The Illiberal, Liberal Left Smashes Liberty In The UK

British Speech Nannies and the Respectable Tendency

For Whom Does The Bell of Freedom Toll?  It Tolls For Thee 

Beware of the New Elites

Will the Press Feel That It Can Ever Rely On Muffin Cameron Again?

Mayor Nutter, The First Amendment, Ant That "National Conversation on Race"

Question Time With Mo: Are Speech Codes Constitutional?

The Speech Police Eats Its Own


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