978-0077733711 Chapter 3 Lecture Note Part 1

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Chapter 03 – Business and the Constitution

CHAPTER 03

BUSINESS AND THE CONSTITUTION

I. OBJECTIVES:

This chapter is meant to acquaint students with the most important business-related aspects of

constitutional law. We therefore do not attempt to cover constitutional law in its entirety. Instead,

the chapter focuses on the major constitutional bases of federal and state power to regulate

business, and the major constitutional checks on such regulation. After studying the material

presented in this chapter, the student should:

A. Understand the U.S. Constitution’s structure and the political ideas (separation of powers,

checks and balances, and federalism) embodied in that structure. The student should also

understand that the written Constitution sometimes is a poor guide to the content of

constitutional law and why this is so–like it or not.

B. Be aware that there are two general kinds of constitutional limits on government regulation of

business: those inherent in the constitutional grant of power on which the regulation is based

(e.g., the enumerated powers doctrine), and those placing independent checks on such a grant

of power.

C. Understand the main state and federal powers to regulate business (especially the state police

power and the federal commerce power) and how they work.

D. Be familiar with the main independent checks that apply to both state and federal regulation

of business: due process; equal protection; and the first amendment’s commercial speech

limitation. This, in turn, requires that students understand the incorporation doctrine, the state

action requirement, and the various levels of scrutiny that the constitutional provisions in

question impose.

E. Understand the main business-related independent checks restricting state regulatory power

alone: the burden-on-commerce doctrine; federal preemption; and the contract clause. Note:

For instructors with limited time to devote to the chapter, this material may be a candidate for

fairly abbreviated coverage.

F. Be cognizant of the Fifth Amendment’s Takings Clause and its general operation.

(See also the Learning Objectives that appear near the beginning of the chapter.)

II. ANSWERS TO INTRODUCTORY PROBLEM:

A. Coors was relying on the First Amendment.

B. Corporations have the same right to freedom of speech that individual human beings

have. The government has no greater latitude to regulate corporate speech than it does to

regulate speech by a non-corporate speaker.

C. Commercial speech receives a lesser degree of First Amendment protection than

noncommercial speech receives. In contrast with the “full” First Amendment protection

extended to noncommercial speech, commercial speech receives an intermediate level of

First Amendment protection if the commercial speech is nonmisleading and pertains to a

lawful activity. If commercial speech misleads or pertains to an unlawful activity, it

receives no First Amendment protection.

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Chapter 03 – Business and the Constitution

D. Coors won the case. Although the government possessed a substantial interest in

preventing “strength wars” among competing producers of beer, the government was

unable to prove that its speech restrictions directly advanced the underlying government

interest in a way that was no more extensive than necessary to achieve the interest. The

government thus failed critical portions of the applicable test required by Supreme Court

decisions.

E. In seeking to identify possible ethical issues, ask the class to consider the differences

between products such as alcohol or cigarettes and products such as canned vegetables.

Then ask the students whether those differences operate to shape our ideas of what an

ethical seller should or should not do. If so, how and why? If not, why not?

III. SUGGESTIONS FOR LECTURE PREPARATION:

A. Introduction

1. The opening subsection on the formal structure of the written Constitution is intended to:

(1) provide students with general knowledge about that structure; (2) introduce familiar

political ideas (separation of powers, federalism, and checks and balances) embodied in

the written Constitution; and (3) introduce some of the material to follow.

2. The next subsection’s statements regarding the Constitution’s malleability, the reasons for

this, and the role of the Supreme Court in producing constitutional change are mainly

descriptive, not prescriptive. Because these matters are inherently controversial,

instructors who disagree with what the chapter’s author has said should feel free to

suggest where they think the text has gone wrong.

3. Those who do not disagree with what is said in the introduction might want to structure

their presentation as follows:

a. Start off with the (apparently) prevalent notion that the Constitution’s provisions are

clear and unchanging, and that as a result, the Supreme Court’s main role is to

interpret it in passive fashion.

b. Then suggest some reasons why this is not so–for example: 1) the open-endedness of

many key constitutional provisions (e.g., due process and equal protection); 2) the

difficulty–suggested by the fate of the ERA–of using the formal amendment process

(which for better or worse has probably made the Court the Constitution’s principal

“amender”); and 3) the idiosyncrasies of judges, whose backgrounds, values, biases,

etc. inevitably influence the content of constitutional law. Because of factors such as

these, you might conclude, the Constitution is to a considerable degree what the

courts say it is. (This is especially true of the Supreme Court.) And this means that

the courts (through judicial review) have significant political power. This is why it

matters who is on the bench and why Supreme Court nominations often involve so

much political controversy. (Such nominees, as well as nominees to the federal courts

of appeal and the federal district courts, are subject to Senate confirmation.) Note that

recent years’ confirmations of Chief Justice Roberts and Justices Alito, Sotomayor,

and Kagan generated some controversy but not huge amounts thereof. President

Obama has appointed two justices. Will he get the opportunity to appoint another one

before the end of his second term in office? Of the presidents from Franklin D.

Roosevelt on, only President Carter served his years in office without being able to

appoint anyone to the nation’s highest court. You might also note that even though

they trigger less public attention than Supreme Court nominations, nominations to the

federal courts of appeal and the federal district courts allow Presidents a substantial

opportunity to shape their legacy. The second President Bush, for instance, appointed

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Chapter 03 – Business and the Constitution

many of the current court of appeals and district court judges—including many who

will be on the bench for many years to come. The same is true of President Obama’s

appointments to the federal district and appellate judegeships.

c. Next, suggest what all this might mean for the basic political ideas embodied in the

written constitution. For example, what does federalism mean today? And what

about the anti-majoritarian implications of unbridled judicial review?

d. Then pull back from the abyss by sketching the various restraints on courts. Note

how these tend to be grounded in the tension between majority rule and judicial

review.

4. Be sure to tell students how the chapter is organized, stressing the distinction between the

two kinds of constitutional limitations noted above. Note that these involve two different

ways of limiting governmental power. The enumerated powers doctrine limits that power

by restricting Congress to those powers listed in the Constitution (“Thou may do x, y, and

z; and only x, y, and z”). The independent checks limit Congress and/or the states by

imposing certain limits on how they may use any of their legislative powers (“In no event

shalt thou do a, b, or c”).

B. State Power to Regulate. Here, emphasize that: 1) even though state constitutions may

impose such limitations, the federal enumerated powers doctrine does not apply to the states;

2) various federal independent checks nonetheless do apply to the states; 3) the state police

power is both important and versatile; and 4) there is a wide range of areas in which both

Congress and the states can regulate (subject to federal supremacy).

C. Congressional Power to Regulate

1. The Commerce Power

a. This section covers not only the expansive view of the Commerce Clause that

developed during the 20th Century but also the Supreme Court’s reminders (in United

States v. Lopez (1995) and United States v. Morrison (2002), and National

Federation of Independent Business v. Sebelius (2012)) that the Commerce Clause is

not without limits. Lopez and Morrison are discussed in a text case, Gonzales v.

Raich (commented on below). The National Federation decision’s Commerce

Clause aspects are addressed in Figure 1. The other aspects of the decision appear in

the edited version that appears as a text case. (See later discussion.)

b. Note the original purpose underlying the Commerce Clause, as well as that clause’s

dual relevance for our purposes: its role as a source of congressional power, and its

role as a check on state power (to be discussed later).

c. Note the three categories of actions in which Congress may engage under the

Commerce Clause. Emphasize that the main doctrinal means for expanding the

Commerce Clause power has been the “affecting commerce” doctrine. This has been

read so broadly as to allow federal regulation of many intrastate matters. Prior to this

expansion, the clause had been extended to noncommercial, police power-type

matters through judicial decisions allowing Congress to regulate interstate commerce

in things with “police” implications–for example, prostitutes (the Mann Act), lottery

tickets, and impure food.

d. Also stress that prior to United States v. Lopez (1995), it had become questionable

whether the Commerce Clause had any meaningful limits–i.e., whether there was

any intrastate police matter it could not reach. (Of course, independent checks might

restrict Congress, but that is a different question.) In Lopez, the Supreme Court

struck down the Gun-Free School Zones Act and thus dramatically departed from its

decades-long habit of deference to assertions of congressional power under the

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Chapter 03 – Business and the Constitution

Commerce Clause. Perhaps the most significant feature of Chief Justice Rehnquist’s

opinion was its adoption of a requirement that, to be regulated under the commerce

power, intrastate activity must substantially affect interstate commerce. This test, of

course, is imprecise. In Lopez, however, the connection between the possession of

firearms within school zones and interstate commerce was on the insubstantial side.

The Lopez Court also took the position that almost everything would be within the

commerce power if the government’s arguments were accepted, but that such a state

of affairs would be inconsistent with the whole idea of enumerated powers. Lopez

receives further discussion in a text case, Gonzales v. Raich (p. 62).

e. In United States v. Morrison (2002), the Supreme Court relied heavily on Lopez. The

Court held in Morrison that § 13981 of the federal Violence Against Women Act,

which sought to provide a federal civil remedy for victims of gender-motivated

violence, could not be sustained under the Commerce Clause. These considerations,

derived in large part from the reasoning in Lopez, proved critical to the Court’s

analysis and ultimate decision: the non-economic nature of gender-motivated

violence; the lack of an express interstate element in the statute (i.e., the statute’s

terms did not require that the wrongdoer have crossed state lines to commit his acts);

and the attenuated connection between the criminal activity addressed by the statute

and interstate commerce. Morrison furnishes the basis for Problem #7 at the end of

the chapter.

f. Gonzales v. Raich (p. 62): The Supreme Court holds that the Commerce Clause is

not violated by the federal government’s enforcement of the federal Controlled

Substances Act against California residents who possessed, obtained, or grew

marijuana for medicinal purposes in accordance with California law.

Points for Discussion: Writing for the majority, Justice Stevens notes early on

that the issue isn’t whether Congress and federal enforcement authorities acted

wisely. Instead, the question is whether they acted constitutionally in making

marijuana a Schedule I drug and enforcing the Controlled Substances Act (CSA)

against medical marijuana users who were acting in accordance with California law.

Ask about the three bases the Court identifies for federal regulation pursuant to the

Commerce Clause and then ask which one provides the relevant test here. (The

“substantially affects commerce” basis.) Ask about Wickard v. Filburn and the

similarities the Court identifies between that case and this one. Note that in Wickard

and in this case, the Court believed that the locally grown and consumed product

could have a significant effect on the overall market for the product. Ask the students

whether they agree with this analysis. Ask how the Court distinguished this case

from Lopez and Morrison, two earlier decisions in which the Court took a narrower

view of the federal government’s Commerce Clause power. (Among other things, the

Court noted the more prominent economic character of the regulatory scheme at issue

in Gonzales v. Raich.) Note the Court’s discussion, near the end of the edited version

of the opinion, of concerns that the federal government might rationally have taken

into account in designing and enforcing the CSA as it did. Finally, note that Justice

Stevens closes by advising those disheartened by the outcome of the decision to

lobby Congress for an exemption from the CSA for medicinal marijuana users who

act in accordance with state law.

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Chapter 03 – Business and the Constitution

g. Figure 1 (pp. 65-66) deals with the Commerce Clause aspect of the widely publicized

Supreme Court decision in National Federation of Independent Business v. Sebelius. Note the

conclusion of five of the nine justices that the provision requiring almost everyone to have health

insurance in force or make a shared responsibility payment could not be justified by reference to the

congressional power to regulate interstate commerce. (Of course, however, the Court held that the

provision was a constitutionally permissible exercise of the taxing power possessed by Congress. See the

edited version of the decision at p. 67.) Note the five justices’ emphasis on what they regarded as the

unprecedented nature of what Congress had done in requiring a purchase from a private party. Moreover,

those justices considered it problematic that persons otherwise inclined not to engage in economic

activity were being required to do so. Ask the students about the significance of the Commerce Clause

aspect of the decision. In its context, the decision offers an important reminder that the congressional

power to regulate interstate commerce is not unlimited, but the context seems important. If Congress

were

again to require members of the public to purchase something from a private party, the same Commerce

clause concerns that persuaded five justices in National Federation would again become important and

the

decision would have a controlling effect. But if what Congress did in the Affordable Care Act was truly

unprecedented (as the justices suggested), Congress presumably had not previously been requiring

purchases from private parties and probably would not make a habit of using such an approach

anyway. So, National Federation is an important Commerce Clause decision in some respects, but it

probably did not significantly cut back on the broad commerce power contemplated by decisions such as

Gonzales v. Raich.

2. Note how the taxing power can be used as a regulatory tool. You might point out that tax

credits and deductions for favored activities also are common today.

a. National Federation of Independent Business v. Sebelius (p.67): A five-justice

majority of the Supreme Court hold that the congressional power to tax sustains,

against constitutional attack, the Affordable Care Act provision requiring almost

everyone to have health insurance in force or make a shared responsibility payment.

The Court also held that the statute’s Medicaid expansion provision amounted to

unconstitutional coercion of the states, and that the states therefore were not required

to expand Medicaid. Individual states could choose to do so on the terms outlined by

Congress, but they could not be required to do so.

Points for Discussion: Remind the students that despite the conclusion of five justices

that the Commerce Clause did not support the challenged provision, the Court

concluded that taxing power did support it. This was so even though Congress did

not use the term “tax” in referring to the so-called shared responsibility payment. The

Court determined that regardless of the label, the required payment functioned as a

tax. The decision suggests that the taxing power can be a broad regulatory device.

Work through the portion of the decision dealing with the Medicaid expansion

provision. Ask the students about the difference between that provision, which

amounted to unconstitutional coercion, and the drinking age/highway funding

measure addressed in South Dakota v. Dole (permissible inducement rather than

coercion). Note that after the Court’s decision, some states decided to expand

Medicaid and receive the federal funding contemplated in the statute, but many other

states declined to do so. More recently, some states that had declined to expand

Medicaid were giving thought to expanding it after all.

3. Point out the contrasting way that the spending power is used to regulate. The Court has

only recently enunciated the requirement that the regulation must be reasonably related to

the purpose underlying the federal expenditure. Also, see the Medicaid expansion aspect

of the National Federation decision.

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Chapter 03 – Business and the Constitution

4. Briefly note the Necessary and Proper Clause (discussed at p. 66).

5. You might note that the Tenth Amendment has not generally been a serious restriction on

congressional power to regulate. Will that change when the Supreme Court decides the

constitutional challenge to the Patient Protection and Affordable Care Act?

D. Independent Checks Affecting the Federal Government and the States

1. Introduction. Begin by noting what we are concerned with here: the Constitution’s Due

Process and Equal Protection Clauses, and certain aspects of the First Amendment’s

guarantee of free speech. Then note three matters that must be considered first: 1) the

incorporation doctrine; 2) the government action problem; and 3) the means-ends tests

courts often use when applying individual rights provisions of the sort we are examining

here.

a. The material on incorporation should be familiar to instructors. Walk the students

through the basics set out in the text.

b. Government Action (Federal, State, or Local Government Action)

1) Stress the confusion that has prevailed here. One early 1960s commentator

called government action “a conceptual disaster area.”

2) Note the “core” definition of government action that was effectively its only

definition prior to World War II: the activity of formal governmental bodies.

3) The text’s capsule discussions of Marsh, Shelley, and Burton are likely to be

familiar to most instructors. Although these decisions have never been overruled,

their significance appears to have been diminished–or they arguably have been

limited to their particular facts–by later Supreme Court decisions.

4) Why did the post-World War II expansion of government action occur? A

possible explanation that is structural in nature goes under the general name of

public-private blurring. Large corporations and other private groups, it is said,

exercise considerable power–power that occasionally rivals the power of

government. Also, government regulation and government funding have become

so pervasive that few activities can be regarded as unambiguously private. The

other–and more likely–explanation stresses the Supreme Court’s greater concern

with individual rights and with racial discrimination, and its consequent desire to

strike at formally private activities denying such rights or amounting to such

discrimination.

5) In the early 1970s, the Supreme Court began limiting the reach of government

action. Stress, however, that even though the Court has restricted the reach of

state action somewhat, the older expansive cases have not been overruled and

confusion still reigns. Why did this shift occur? Probably the best explanation is

the changed composition of the Court and the political views of the new justices.

Another possibility is that with the passage of innumerable laws regulating

private discrimination in various contexts, there was less need to

“constitutionalize” such activity in order to make it vulnerable to legal attack.

6) Note the text’s discussion of the Brentwood Academy case, which was decided in

2001. Later decisions may reveal whether the “entwinement” rationale of

Brentwood Academy leads to a renewed expansion of the government action

concept. Although Brentwood Academy seemed to take a broader view of

government action than had been seen in the Court’s government action decisions

over the preceding 30 years, one should remain mindful of the Court’s

admonition that government action decisions are highly fact-specific.

c. The material on means-ends tests introduces students to the general operation of tests

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Chapter 03 – Business and the Constitution

of constitutionality to which they will receive further exposure in the discussions of

the First Amendment and of the Due Process and Equal Protection Clauses. Note that

the text engages in some necessary oversimplification by sketching only three general

kinds of means-ends scrutiny. Make sure students understand that the more

important the right protected, the tougher the test of constitutionality applied to laws

alleged to have violated that right. Note that these tests have been formulated by the

Supreme Court–i.e., the tests do not appear in the Constitution’s literal language–and

that the Court decides which rights implicate a particular degree of scrutiny. This

means, of course, that the Court has considerable discretionary power in such cases.

2. Business and the First Amendment

a. Introduce the subject by pointing out that the chapter covers only selected aspects of

the First Amendment’s free speech and free press guarantees. (The chapter does not

address the First Amendment’s religion clauses and its provisions dealing with the

right of assembly and the right to petition the government for a redress of

grievances.) Mention the familiar “marketplace of ideas” concept that pervades the

free speech/free press material we will discuss.

b. Note that ever since First National Bank of Boston v. Bellotti (1978), it has been

settled that corporate political speech is entitled to full First Amendment protection

(i.e., some kind of full strict scrutiny)–the same First Amendment protection an

individual human being receives for his or her political speech. The Supreme Court’s

prior conclusion that corporate speakers possess First Amendment rights identical to

those of human speakers proved important to the Court’s 2010 decision in Citizens

United, the widely publicized text case to be discussed shortly.

c. “Full” First Amendment protection is not limited to political speech. As the text’s

expanded discussion of this subject reveals, full protection extends to a broad range

of noncommercial expression, whether political or not. When the government seeks

to regulate fully protected speech, the government will normally have great difficulty

satisfying the applicable full strict scrutiny test, which requires a demonstration that

the restriction on speech is necessary to the fulfillment of a compelling government

purpose. Examples: Problems #5 (if the speech at issue was noncommercial rather than commercial) and

#11.

d. Citizens United v. Federal Election Commission (p. 73): Overruling certain precedent

decisions dealing with campaign finance restrictions, the Supreme Court strikes

down, as violative of the First Amendment, federal laws restricting corporations and

unions from using general treasury funds for independent express advocacy or for

independent electioneering communications. Federal law allowed corporations and

unions to set up a separate funding mechanism known as a political action committee

(PAC) and seek contributions to it from stockholders and employees (or union

members, in the case of union PAC) in order to pay for express advocacy or

electioneering communications, but that avenue was held insufficient to enable the

previously mentioned restrictions to survive First Amendment scrutiny. The Court did

hold constitutional, however, certain disclaimer and disclosure requirements that

federal law required in regard to express advocacy and electioneering

communications.

Points for Discussion: Given the public attention this decision has received,

many students likely will have heard of it. Because of the importance of the decision

and the controversy it generated, the edited version of the majority opinion is lengthy

and a portion of the Stevens dissent has been included. The discussion notes here are

also more extensive than usual.

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Chapter 03 – Business and the Constitution

Trace, in general terms, the history of campaign finance restrictions prior to the

BCRA of 2002. Note these two major types of restrictions: restrictions on amounts

of direct contributions to candidates (upheld against constitutional attack in Buckley

v. Valeo); and restrictions on corporate use of treasury funds for express advocacy in

favor of or against a candidate, even when the advocacy was independent in the sense

of not being coordinated with the candidate’s campaign. (If coordination with the

candidate’s campaign did take place, a direct contribution effectively would be

present.) However, independent expenditures for express advocacy were permitted if

funded by a PAC (as explained above). The BCRA added a prohibition on use of

general treasury funds for engaging in independent electioneering communications

(though such communications funded by a PAC were permissible). The statutory

definition of electioneering communications appears in the statement of facts

preceding the edited version of the Supreme Court’s opinion. Work through that

definition with the students.

Ask the students about the particular speech at issue here (the Hillary movie) and

why, according to the Supreme Court, Citizens United’s specific plan to air it and pay

for doing so with treasury funds would violate the statutory restrictions on express

advocacy and/or electioneering communications. (Later, you might return to related

issues, including whether there were ways to reach the same outcome in the case by

determining that the plan to air the movie didn’t come within the statutory

restrictions.) Ask the students why campaign finance restrictions are regarded as

restrictions on speech and what the government must prove in order to establish that

a given campaign restriction should survive a First Amendment-based attack. (That

the restriction at issue was necessary to a compelling government purpose—the test

used when the government seeks to justify a restriction on fully protected political or

other noncommercial speech.) What is a compelling government purpose in this

context? One such interest is in preventing a quid-pro-quo effect in which an elected

candidate might be beholden to monied contributors to his or her campaign. This

interest gets at the danger of a corrupting effect, or the appearance of a corrupting

effect, on the electoral process. The quid-pro-quo concern has been held to help

sustain, against First Amendment challenges, limits on amounts of direct

contributions to candidates running for office, whether those contributions come from

individuals or from corporations. The BCRA provisions at issue in Citizens United

were provisions other than restrictions on direct contributions, so the direct

contribution limits sustained previously were not before the Court. (Figure 2, which

appears at pp. 78-79, also discusses the distinction between direct contributions and

independent expenditures.)

What did the Supreme Court think about whether the quid-pro-quo concern

would justify the independent expenditure restrictions actually at issue in Citizens

United? (That the quid-pro-quo concern did not fit well in that setting, as opposed to

the direct contribution limits setting.) What other government purpose had been

recognized as compelling in nature in the campaign finance context? (The anti-

distortion rationale stated in Austin and applied in McConnell as part of the

justification for upholding independent expenditure limitations established prior to

and in the BCRA.) What did the Court say about that purpose? (That it supposedly

was unsupported in the corporate speech cases that preceded Austin, that Austin was

an outlier in recognizing such an interest as compelling, and that Austin, as well as

the portions of McConnell that relied on Austin, should be overruled.) With the anti-

distortion rationale thus discarded, the court held that the limitations on using

treasury funds for independent express advocacy or electioneering communications

violated the First Amendment. Therefore, setting up a PAC for such purposes would

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Chapter 03 – Business and the Constitution

no longer be necessary. Note, however, the Court’s holding that the disclaimer and

disclosure requirements of the BCRA did not violate the First Amendment.

Accordingly, though treasury funds could be used for independent express advocacy

or electioneering communications, the corporation engaging in such expression

would have to comply with the disclaimer and disclosure requirements.

Here are additional questions to consider asking: Could the Court have avoided

the First Amendment question entirely–or resolved it more narrowly–and still have

reached the same result? Could the Court have concluded that the BCRA simply did

not apply to movies, as opposed to more typically encountered political advertising?

Could the Court have concluded that even if the BCRA did seem to apply to movies,

such an application of the statute would violate the First Amendment? Was the

Court’s concern about chilling speech in books and blogs justified? Was speech in

such contexts even reached by the BCRA? Did the Court dismiss the anti-distortion

rationale too easily? Even if corporate and individual speakers do generally have the

same First Amendment rights (a lesson some were surprised to learn from Citizens

United but which had actually been well-established in earlier corporate speech

cases), is the campaign finance situation different from other situations? Is there too

much of a danger that deep-pocketed corporate speakers could drown out those with

contrary views? With Citizens United being a non-profit organization, could the

Court have limited its holding to such organizations without lifting restrictions on

for-profit organizations? Couldn’t Citizens United have done exactly what it wanted

to do by funding it through its PAC? Why wasn’t the PAC alternative enough to save

the restrictions against being struck down? Will Citizens United lead to an eventual

reconsidering of whether previously upheld limits on direct contributions should go

by the wayside?

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Chapter 03 – Business and the Constitution

e. Figure 2 contains further discussion of the diffrerence between direct contributions

and independent expenditures and of what interests are—and are not—considered

compelling government interests. Work through Figure 2’s discussion of the 2014

McCutcheon decision, in which the Supreme Court held that the aggregate limits on

direct contributions violated the First Amendment. Be sure to distinguish between

the aggregate limits (which were struck down) and the base limits (which were not at

issue in McCutcheon and which remain—for now, at least—in force.)

f. Note the issues addressed in the Cyberlaw in Action box that appears on pp. 82-83.

Those issues center around whether certain types of speech fall outside the protective

scope of the First Amendment. As the Cyberlaw box states, speech amounting to

obscenity under the Supreme Court’s test is unprotected by the First Amendment.

Obscene speech can be the basis of a criminal prosecution. (The obscenity test is

discussed in the text’s Chapter 5, which deals with criminal law.) The same is true of

child pornography (no First Amendment protection and subject to criminal liability).

What about gratuitous depictions of violence in, say, movies or video games? Can

the government restrict such depictions without violating the First Amendment? The

answer is “no,” as revealed by the Entertainment Merchants Association case

(discussed in the Cyberlaw box). What do your students think of that decision?

Emphasize that according to many decisions over the years, a great deal of speech

that many may find highly offensive is protected by the First Amendment. In the

same vein, note another notorious case: the one that serves as Problem #11.

g. Various Supreme Court decisions have established that commercial speech does not

receive the full First Amendment protection extended to political speech and other

noncommercial expression. Commercial speech receives an intermediate level of

First Amendment protection if it (the commercial speech) pertains to a lawful activity

and is not misleading. Commercial speech that misleads or pertains to an unlawful

activity receives no First Amendment protection. (For a quick summary of the

applicable rules regarding restrictions on commercial and noncommercial expression,

see the Concept Review at p. 82.)

h. Stress, as the text points out, that the mere presence of a profit motive does not make

speech commercial in nature. Note the text’s explanation (see p. 73) of why books,

movies, newspapers, music, works of visual art, and the like are classified as

noncommercial expression for First Amendment purposes, despite the undeniable

presence of an underlying profit motive.

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