Chapter 06 – The Constitution
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the stores where the alcohol is sold. State law bans such advertising “outside the
licensed premises.” 44 Liquormart, Inc., a licensed retailer, ran a newspaper ad
stating the low prices at which peanuts, potato chips, and Schweppes mixers were
being offered, identifying various brands of packaged liquor, and including the word
“WOW” in large letters next to pictures of vodka and rum bottles. As a result of this
ad, the Rhode Island Liquor Control Administrator assessed 44 Liquormart a fine of
$400. Liquormart paid the fine and sought a declaratory judgment in Federal District
Court that the Rhode Island law prohibiting off-premise advertising was in violation
of the First Amendment’s free speech protection.
Issue: Is the Rhode Island limitation on alcohol pricing advertisements
unconstitutional?
perhaps more effective, methods of regulating the use of alcohol. A ban on truthful,
non-misleading commercial speech is not supported under these facts.
3. Rubin v. Coors Brewing Co., 63 U.S.L.W. 4319 (1995)
The Federal Alcohol Administration Act prohibits beer labels from displaying the
alcohol content. Coors proposed to include such content on its label, and the Bureau
of Alcohol, Tobacco and Firearms refused to grant Coors’s application for this label.
Issue: Is this restriction a violation of Coors’s First Amendment rights?
other ways. Thus the label restrictions are in violation of the First Amendment.
4. Levron v. National Railroad Passengers Corp., 115 S.Ct. 961 (1995)
The National Railroad Passenger Corporation (Amtrak) refused to accept Lebron’s
billboard display for an Amtrak-owned billboard in Penn Station. Amtrak’s reason
for refusing this ad was due to its political nature. (This ad was an electronic
billboard criticizing Coors Brewing Company involvement in supporting the
Nicaraguan Contras.)
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Issue: Is Amtrak a governmental agency support to the First Amendment?
Held: Yes. Amtrak is an agency or instrumentality of the United States for the
purpose of individual rights guaranteed by the Constitution.
Freedom of the Press
Emphasize:
That the publishing business is the only organized private business that is given
explicit constitutional protection.
Sidebar 6.10—“WikiLeaks, Edward Snowden, and the freedom of the press”
What defamation and libel means.
The contrast between prior restraint and the impositions of sanctions for publishing
material in violation of law.
Cases for Discussion:
1. Arkansas Writers’ Project, Inc. v. Ragland, 107 S.Ct. 1722 (1987)
The Arkansas sales tax applies to general interest magazines but exempts newspapers
2. Philadelphia Newspapers, Inc. v. Hepps, 106 S.Ct. 1558 (1986)
A newspaper published a series of articles suggesting that plaintiff had ties to
organized crime. Plaintiff, the principal stockholder of a corporation that franchises
convenience stores, brought a defamation suit against the newspaper.
Issue: Should a private figure plaintiff involved in matters of public concern show
that the alleged defamatory statements were false and the defendants were at fault?
Chapter 06 – The Constitution
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damages.
3. Seattle Times Co. v. Rhinehart, 104 S.Ct. 2199 (1984)
A newspaper, which was defending a libel suit filed against it by a religious
organization, was prohibited from publishing information it obtained during
discovery relating to the foundation’s members and donors.
Issue: Is this prohibition constitutional?
Litigants have no First Amendment right of access to information made available
only for the purpose of trying a lawsuit. Such protective orders, however, apply only
to information obtained through discovery and do not preclude the litigant from
disseminating identical information obtained through different channels.
Examples of Laws Violating Free Speech:
1. Community cannot ban use of residential signs. City of Ladue v. Gilleo, 114 S.Ct.
2038 (1994).
2. A local ordinance in Forsyth County, Ga., required permit applicants to pay fees of as
much as $1,000, based on the estimated police and administrative costs associated
3. A St. Paul ordinance made it a crime to burn a cross or do other acts that can arouse
“anger, alarm or resentment” on the basis of race, religion, or gender. The law
4. Congress enacted a total ban on indecent dial-a-porn messages—that is, sexually
explicit or suggestive messages provided for a fee over the telephone. Congress may
ban dial-a-porn telephone messages that are “obscene,” but that lawmakers went too
far in also totally banning phone communications deemed merely “indecent.” Sable
Communications of California Inc. v. Federal Communications Commission, 109
S.Ct. 2829 (1989).
Examples of Law That Do Not Violate Free Speech:
1. Farmers can be required to contribute financially to the costs of generic advertising.
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Glickman v. Wileman Brothers & Elliott, Inc., 117 S.Ct. 2130 (1997).
2. States may bar nightclub-style nude dancing under a public-indecency law. It is not
3. State universities may ban commercial solicitation in student dormitory rooms.
Governmental regulation of commercial speech does not have to be accomplished by
3028 (1989).
Second Amendment: The Right to Possess Guns
Emphasize:
That in 2008 the U.S. Supreme Court addressed the meaning of the Second
Amendment as it applies to the maintenance of a militia versus an individual’s right
to possess and use guns in their homes.
The case of District of Columbia v. Heller in which the Supreme Court upheld the
right of individuals to have handguns in their homes. See Sidebar 6.11 discussing the
Heller case.
Additional Matters for Discussion:
Explain that striking down the District of Columbia’s ban on possession of handguns
does not necessarily mean other restrictions on the possession of guns are
unconstitutional.
Use current examples (perhaps from the students’ local newspaper) concerning gun
controls and the controversy created.
The Fifth Amendment
Emphasize:
That the takings clause recognizes the existence and importance of private
ownership, but allows the government to “condemn” and take specific private
resources for money under the power called eminent domain.
Public Use
Emphasize:
That over the years public use has come to mean public purpose.
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That a number of states have passed laws preventing the units of government (cities
and counties) from taking private land for private development purposes.
Just Compensation
Emphasize:
That the government can only take what belongs to private owners upon payment of
“just compensation.”
That when the state decides to take an owner’s resources, it is determining that the
right of property in these resources no longer serves the common good and that the
greater common good requires that the resources be taken.
Case 6.3: Kelo v. City of New London, Connecticut, 125 S.Ct. 2655 (2005)
The Fourteenth Amendment: Equal Protection and Due Process of Law
Emphasize:
That two of this amendment’s provisions are of very special importance to
businesspeople—the due process clause and the equal protection clause.
That the Fourteenth Amendment restricts actions by state and local governments.
B. Due Process of Law
Emphasize:
The definition of due process as fundamental fairness and decency.
That procedural due process cases involve whether proper notice has been given and a
proper hearing has been conducted.
Cases for Discussion:
1. BMW of North America, Inc. v. Gore, 116 S.Ct. 1589 (1996).
Dr. Ira Gore purchased in Birmingham, Alabama, a new BMW automobile for
$40,750.88. After nine months, Dr. Gore noticed that the paint was flawed. He was told
by the proprietor of “Slick Finish” that his car had been repainted. Upon inquiring at the
BMW dealership where he purchased the car, Dr. Gore was told that his car had been
repainted prior to its sale. BMW acknowledged that it had a nationwide policy that if the
cost of repairing damages done during manufacturing or transportation did not exceed
3% of the retail value, the car was sold as new. If such repairs exceeded the 3% figure,
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3% stated in BMW’s policy, the car was sold as new, and Dr. Gore was not informed of
the repairs. Feeling that he had been defrauded, Dr. Gore filed a lawsuit against BMW.
A jury awarded Dr. Gore $4,000 in compensatory damages and $4 million in punitive
damages. BMW appealed the award of punitive damages and argued that this amount
was constitutionally excessive. The Alabama Supreme Court reduced the punitive
damages by half but upheld an award of $2,000,000.
Issue: Is this award of punitive damages unconstitutional?
comparable sanctions in similar cases. Under these standards, the Alabama courts’
award is unconstitutionally excessive.
2. Connecticut v. Doehr, 111 S.Ct. 2105 (1991).
A Connecticut law allows a court to put a prejudgment lien on an individual’s home
3. Tulsa Professional Collection Services v. Pope, 108 S.Ct. 1340 (1988)
An Oklahoma law required contract creditors of deceased persons to file claims within 2
months of the publication of a notice advising creditors of probate proceedings.
Issue: Is this State action a denial of due process?
probate procedures are state action.
Incorporation Doctrine