Unlock document.
This document is partially blurred.
Unlock all pages and 1 million more documents.
Get Access
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.
3-1
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
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
3-2
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
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
3-3
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
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.
3-4
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
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.
3-5
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
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
3-6
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
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.
3-7
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
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
3-8
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
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?
3-9
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
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.
3-10
© 2016 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not authorized for sale or distribution in any
manner. This document may not be copied, scanned, duplicated, forwarded, distributed, or posted on a website, in whole or part.
