American Constitutionalism in Historical Perspective (packet)

After the Fact Prosecutions: Have to determine the effect of TPM restriction on core speech. Prior restraint reasoning extended now to civil remedies and criminal prosecution after the fact (no prior restraint allowed in Cantwell and Edwards but allowed in Feiner.)

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   Kovacs v. Cooper, 1949: (before Brandenburg) upholds statute prohibiting a raucous sound as valid TPM restriction b/c only applied only loudspeakers emitting ‘loud and raucous noises’—not banning loudspeakers altogether. Rts of individuals in surrounding areas were violated by noise or any other aspect of the production. You’re not cutting out all speakers that can spread word through loudspeakers. D/n touch on content, not an absolute ban.
   
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      Dissent: reg results in an effective ban since left to law enforcement to decide what constitutes “loud and raucous.” More likely to restrict political speech, freeze out minority views. Issue of adequate alt forum: when cut off whole media such as loudspeakers cut off a whole category of speakers, usually the minority.
      
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   City of Ladue v. Gilleo, 1994: strikes down statute preventing D from putting up sign in her home window supportive of the gulf war. Private property owners have the right to do what they will on their own property. Property value concern c/n threaten free speech.
   
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   Cox v. Louisiana, 1965: (as applied) ct held that breach of the peace statute prohibiting obstruction of use of public street was unconstitutional. Not an appropriate TPM restriction b/c statute isn’t limited in any way. Legitimate regulation (govt. has duty to keep streets open and available) BUT applied discriminatorily: uncontrolled discretion. Has force of prior restraint b/c police would be using obstruction statutes to shut up legit protestors
   

Public solicitation

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   Schneider v. State: Invalidates ordinance prohibiting the distribution of leaflets due to littering probs b/c it stops all forms of comm. b/w willing ppl. Not allowing leaflets due to littering problems. There are less restrictive alternatives, this needs to be more narrowly tailored
   
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   Watchtower Bible & Tract Society v. Stratton: (2002) struck down ordinance req permit for door to door proselytizers b/c inhibited too much speech—was overbroad. Historical importance of door to door canvassing
   
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   Martin v. Struthers, 1943: court holds that states can’t stop Jehovah’s Witnesses from knocking on doors and giving out literature. State interest in fraud and crime prevention but it’s easy for people to take steps not to be disturbed. Homeowners can put up do not disturb signs that say no solicitation. Can yourself do it, but gov’t can’t do it for you.
   
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   Heffron v. Intl Society for Krishna Consciousness, 1981: court upheld statute preventing solicitation in aisles of the state fair (a public forum) as a permissible TPM restriction b/c of significant interest (privacy—d/n want to be accosted) evenhanded application, and presence of other alts to proselytize. But part of religion to proselytize and want direct access to connect w/ public. By cutting off proselytizers rt to confront you, law cuts off their religious liberty. Could only distribute or sell religious material and solicit money from the booth
   
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