American Constitutionalism in Historical Perspective (packet)

Lawyer Advertising: most regulation in this area has been struck down. Concerned about face to face interactions, less concerned about letters the client can throw out. (Ohralick, Primus). Not privileging public interest over that of attorneys, just concerned about the nature of the interaction.

Vice Exception: (narrow)

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   Posadas de Puerto Rico v. Tourism, 1986: c/n outlaw casino gambling but have rt to regulate advertising to limit its effects. Substantial Purpose: protecting the residents, encouraging temperance. Reasonably Tailored: can achieve temperance by regulating ads
   
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   Rubin v. Coors Brewing, 1995 and 44 Liquormart v. Rhode Island, 1996: court strikes down ad restrictions in both cases. Substantial Purpose: temperance is legitimate. Narrowly Tailored: have to show that by limiting alcohol ads actually get temperance. This fails to show causality. Could meet the same needs by increasing taxation, c/n’ censor speech. If this were not speech, would have been allowed under rational basis analysis.
   
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   Greater New Orleans: court struck down federal law that prohibited casino gambling ads.
   

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   Symbolic Speech (pp. 1212-1234)
   
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      Background: increasing skepticism about categories of protected speech. Limiting legit state power in the area of speech. Questioning the line between action and speech. Since WWII, acts traditionally regarded as action have become protected as speech. Actions may be motivated by religion and conscience, lessening the mind/body distinction.
      
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      Political Dissent: draft cards and flag burning.
      
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         U.S. v. OBrien, 1968: D convicted under fed statutes that forbid draft card non-possession and destruction. Congress’ motive in passing the legislation was intimidation of dissent and censoring the views of dissenters. Warren announces a 4 part test which finds what Congress did was act, not speech based and therefore constitutional. Finds that dominant congressional purpose was not to intimidate speech. Warren straining to find const congressnl purpose so d/n have to intervene in marginal cases. Widely criticized decision, using a dominant purpose test but proposing a hypothetical purpose.
         

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