1A expression and religion ONLY Flashcards
What is speech? And how does the Spence speech-conduct dichotomy work?
Speech is
- words
- symbols
- expressive conduct
Barbri MBE:
also REFUSAL to speak
also REFUSAL to provide financial support
[note people and corps cannot be compelled to speak, but they can be forced to pay taxes even if those taxes later get used to fund speech they oppose]
also typing
also protest
Expressive Conduct is:
* Conduct…
* that is inherently expressive
* OR
* Conduct…
* intended to convey a particularized message + reasonably likely to be perceived as conveying a message by an onlooker (analysis option starting on plaintiff side) (Spence Johnson)?
- flag burning is speech
- art is speech
- laser light shows are speech
- nude dancing is speech
- wearing clothing MAYBE speech depending on context
- arson alone is NOT speech
- note “particularized message” does NOT not have to be directed at a particular person (contrast to Fighting Words implications).
- Govt will argue it is conduct. Plaintiff will argue it is speech.
- This speech-conduct dichotomy is generally disfavored by 1A scholars
- It is like an unnecessary STEP ZERO
- by combining the two, it undervalues speech.
- JE: although this test is good to be able to apply from the expressive side if you don’t know what the govt purpose is or can’t find anything to support your content-based argument? Can preclude govt interest?
If pure conduct, you will hit dead end with 1A.
If expressive conduct aka symbolic speech, you will be kicked over to Traditional 1A analysis below to examine GITSS
Tip: If the statute limited CONDUCT (e.g. burn ban, sleeping in park ban) seems to have NO speech component at all, think through creatively whose WORDS/SYMBOLS/EXPRESSIVE CONDUCT might be impacted - burn FLAGS as expression…park OCCUPATIONS as expression
Content Based Vs. Viewpoint Neutral
Content-Neutral = neutral on SUBJECT MATTER
Viewpoint-Neutral: neutral as to POSITION or ARGUMENT
A ban on political signs = content-based BUT viewpoint neutral
A ban on politcial signs of conservatives = content-based AND viewpoint non-neutral
Viewpoint Neutral is PRIME
What are the elements of IILA?
(3 elements)
Brandenburg-Hess Test
1) Directed to inciting, or is producing (intent-ish element?)
conditional language by defendant e.g. saying to crowd “if the govt does xyz…” disfavors this element
2) IMMINENT lawless action (action by others, not the speaker) (time-ish element?)
*IMMINENT MEANS WHAT?
* TEMPORAL CONNECTION between direction AND incitement- not simply at indefinite time in future
* SCOTUS has not settled on a specific time window between direction and incitement
* immediacy/imminency makes USA different from other countries, which use anti-glorification laws that would fail Brandenberg-Hess
* “Brandenberg-Hess defense” (for lack of imminence) is often used for torts defenses e.g. Tupac case – Davidson
AND
3) Is LIKELY to incite or produce such action (causation-ish element)
Yes it is: “fck the police” yelled by performers at concert
Yes: “take action” yelled in circumstances of angry KKK mob in front of black rape suspect’s house
Maybe: Jan 6 speech (split scholars)
No: “we will take the fucking street again” (Hess case itself)
What are the elements of Fighting Words?
ELEMENTS
Words spoken such that average listener WOULD immediately respond with violence
OR
Words that “cause breach of peace”
Notes:
Aka Words by their nature that “by their very utterance inflict injury”
Words directed at police have HIGHER BAR to cross - police are trained for verbal abuse
Words directed at military do NOT have higher bar to cross
Case law largely ignores FWs except for racist slurs
Note HATE CRIME type fighting words statutes are probably VIEWPOINT SANCTIONS therefore invalid
Examples of Fighting Words
* [getting someone’s face when saying the words, makes it MORE likely to be FWs]
* Racial slurs
* Profanity at someone’s family members i.e. “motherfckr” in someone’s face
* unprotected conduct: Spitting Cases
* Emanual Flashcards: “you goddamn fascist” HAVE BEEN HELD as fighting words but not since 1940s
* Hudson hypo that IS FW:
* Man nearly chest bumps members of Armed forces,
* Man points at his own t-shirt which reads “Fuck the Military”
* Man curses at the two men
* melee ensues, in which all three parties are injured.
* (I thinkt the melee means it is “breach of peace” i.e. second prong violated)
Examples of NOT Fighting Words
* Def burned American flag: “[n]o reasonable onlooker…regard…generalized expression of dissatisfaction with the policies of the Fed Govt as direct personal insult or an invitation to exchange fisticuffs.
* Bumper Stickers
* passing out pamphlets and calling organized religion a “racket”
* Wearing F*ck the draft jacket in corridors of CA courthouse (Cohen) NEITHER OBSCENE nor FIGHTING WORDS
* ordinance prohibited verbal challenging of police action “criminalizes a substantial amount of constitutionally protected speech” City of Houston v. Hill - (1987 Social Justice) –
What are the elements of True Threats (which Barbri calls a TYPE of fighting words)?
a serious expression of an intent to commit an act of unlawful violence
nuance: expression of intent to commit, not necesssarily actual intent to commit
Level of Intent in that expression?
some states: reckless is sufficient intent
some states general or specific is necessary
[some subjective understanding that their threats were of a threatening nature]
Watts Factors for “serious expression”:
a) political debate comments (PDC) comments made during political debate
–PDC disfavors TT
b) conditional (if you do XYZ I will kill you) vs. explicit (I will kill you) nature of threat
–conditional disfavors TT
–explicit favors TT
c) context - listeners to Watts’ speech responded with laughter
–laughter disfavors True TT
defendant Watts spoke about “putting LBJ in his scope” Watts won b/c of rhetorical hyperbole
TO
a particular individual or group of individuals (not necessarily violence to the listener or listeners)
Virginia v. Black (2003)
held unconstitutional:
statute banning cross burning unaccompanied by evidence of intent to intimidate b/c cross burning itself creates prima facie evidence of intent to intimidate
held constitutional:
statute banning cross burning if accompanied with evidence of intent to intimidate
e.g. KKK cross burning at rally: not TT
e.g. KKK cross burning in black neighbor’s yard: yes TT
e.g. bullet in mail, or severed horse head in bed: yes TT
What are the elements of Obscenity?
Narrow Category - hard to satisfy
Does Apply to sale, purchase, distribution
Does Not Apply to at-home consumption (except: chld prn at-home consumption)
Chld prn def’n : VISUAL depiction of sexual conduct as defined by state lawinvolving ACTUAL minors
* exception: young-LOOKING adults
* exception: computer generated simulations
* govt can prohibit on grounds of protection of the actual minors, even if NOT meeting “obscene” definition
Miller Test
1. Appeals to Prurient Interest: (i.e. trying to turn on excessive interest in sex, unwholesomely) –
by AVERAGE person in community/citizens of the state/contemporary community standards i.e. by jury + expert
AND
2. Patently Offensive:
(i.e. far beyond customary limits of candor) -
AVERAGE person in community/citizens of the state/contemporary community standards: by jury + expert
AND
3. No SLAPS (serious literary, artistic, political, scientific) value taken as whole: NOT by community standards: by judge using national RPP standard <–to keep puritanical communities from overcriminalizing
- Evaluate the work as a whole, not just one scene of a movie
- If the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. - don’t mix up with SLAPP (strategic lawsuit against public participation)
- therapeutic value, or discusses censorship
- SLAPS is NOT as low a bar as “utterly without redeeming social value” test
- depiction of sex, not violence
- statute must list specific acts banned
What are elements of defamation?
key: falsity of stmt!
damaging but true is NOT defamation, but it could hit Invasion of Privacy maybe Public Disclosure of Private Facts
[Interesting PDFs Don’t Fly] (like paper airplane)
Identification
P must show audience could reasonably identify the plaintiff.
Actual name of P need not been expressed - “colloqium” is available.
P must be alive at time of statement. <–If the person allegedly defamed at is DEAD at the time of the statement, game over. No defamation.
The larger the spoken-about group, the less likely audience could reasonably identify plaintiff out of that spoken-about group.
Publication (min reasonably foreseeable that others would hear/see!)
P must show statements were intentionally disseminated or negligently disseminated (not necessarily formally published - min is REASONABLY FORESEEABLE) to a 3P who understands. Not just 1 on 1. Negligent publication (i.e. accidentally leaving on speakerphone) is indeed publication.
The more 3Ps, the larger damages.
Each actual publication is a defamation (Exception” where state has “single publication” rule for hard copy magazines/newspapers).
Shopkeeper yelling “thief” w/ other people in store IS publication
Shopkeeper yelling “thief” w/ no people in store IS NOT publication
Defamatory Meaning - context is critical
P must show the statement is “factual assertion reflecting adversely P’s reputation or character”
“lawyer cum fixer” IS INDEED defamatory in context of accusing judge
Simple epithet, name calling is not defamatory
Tricky when double meanings: “inducement and innuendo”
Falsity
P has burden of proving falsity of the stmt. Note that the D’s knowingness of the falsity goes to FAULT below.
Yes that means damaging but true is NOT defamation, but it could hit Invasion of Privacy maybe Public Disclosure of Private Facts
Statement of Fact
NOT just pure opinion (in many states)
Milkovich v. Lorain
Stmt of opinion CAN be stmt of fact if it IMPLIES an assertion of objective facts (i.e. you can’t just slap “I think” in front of assertion of objective fact to make it non-stmt-of-fact)
Damages/Harm
Stmt must CAUSE harm to P’s reputation, injury or special damages (i.e. easily ascertained) to plaintiff
[harm to reputation is ZERO if all the listeners KNEW it was false. But you still could have other injury like emotional distress damages, humiliation damages]
With “Per se” showing (libel per se, slander per se, defamation per se) automatically satisfies “harm to reputation” element w/o separate showing. (many state variations) by establishing that Defendant claimed Plaintiff…
**
- did Criminal Behavior OR
- did Professional occupational Misconduct OR
- has Communicable Disease OR
- did Serious Sexual Misconduct**
Without “per se” showing
libel action: non-econ damages are presumed, no need to show special damages (econ or consequential)
slander action: must show special damages (econ or consequential) UNLESS PER SE (see below)
Fault i.e. Awareness by D of falsity (2 types)
Policy: avoid chilling free speech
**if P is private figure alleging defamation on issue of private concern?
Fault standard is NEGLIGENCE by defendant i.e. D failed to factcheck. D didn’t know it was a false statement.
if P is public official or public figure or limited public figure?
Higher bar!
Fault standard is beyond mere negligence …ACTUAL MALICE: KNOWING of falsity or RECKLESS DISREGARD of falsity by defendant
public officials: running for, or in elected office
public officials: principals, police officers, DAs
limited public figures: private person thrust themselves into limelight and stmt is ABOUT the reason for limited publicity
e.g. of Reckless Disregard: source told reporter a different important fact that reporter ignored: obvious source of info reporter did not pursue and it would have led to different story
[note Actual Malice is C and CE above and beyond Normal Malice and ill will]
Fault if P is private figure alleging defamation on issue of public concern (important to society or democracy at local, state, or national level)
Two tiers:
P must show NEGLIGENCE by D to recover actual damages
P must show ACTUAL MALICE by D to recover punitive or presumed/statutory damages
e.g. Actual Malice was NOT deemed to be satisfied by Westboro Baptist Church funeral signage
What are defenses to Defamation?
Substantial Truth (in states where falsity is not elements of Defamation)
As long as “gist” of story is true
Consent: Complete Defense to Defamation (same rules as IT Consent)
person was already dead at time of stmt
P must be alive at time of statement. <–If the person allegedly defamed at is DEAD at the time of the statement, game over. No defamation.
PRIVILEGE
Statements between Spouses
Absolute Privilege: Statements by govt officers in duties of govt
administrative
official legislative duties, e.g. reading an article into the legislative record
judicial proceedings (judicial = not just a trial…more like ALJ) (includes attorneys, witnesses)
Absolute Privilege: Fair reporting or fair comment
Reporting on deliberations of public body <–criminal trial is NOT deliberations of public body
Qualified Privilege: Common Interest Privilege
Policy: where public interest in candor is important AND defendant made good faith to be accurate
presumption of privilege but can be rebutted
former EE/tenant etc. need recommendations, references.
stmts to parole board.
Stmts made to defend OWN actions/property/reputation.
IF the report is accurate and complete or a fair abridgement of the occurrence reported
Libel Proof Plaintiff
Cannot harm already horrible reputation, e.g. someone convicted of armed robbery and murder – at that point has already horrible reputation
Rhetorical Hyperbole
Sports Columnist - more leeway for figurative
Politicians
Overlap with Con Law True Threat: Crude Political Hyberbole
Hustler v. Falwell
Undeniable errors in ad - NYT v. Sullivan opinion and defamation
Brennan: state libel law (torts) MUST meet First Amendment Standard <–ie state tort law must comply with 1A and other constitution pieces (ie “constitutionalizing” tort). “Giving voice to ppl criticizing officials opposing civil rights”
Brennan: sometimes false speech is protected! Punishing critics of public officials for ANY FACTUAL errors would chill speech
Xavier Alvarez case - inveterate liar and STOLEN VALOR ACT
RETRACTION STATUTE (vary by state)
Completely insulating –prevent recocvery
Defenant retracts, takes back, apoligizes for stmt <–apology must be placed as prominent as original comment
TN version: insulate from punitive, does NOT insulate from compensatory
Commercial Speech: “less protected” i.e. not protected, not unprotected
What is the Central Hudson test to see if a content-based (as opposed to content-neutral) regulation of commercial speech complies with 1A?
QUICK: 3 thresholds, 3 elements, 3 notes
3 thresholds, PC LA T/PM
note: attorney advertising has smaller T/PM window
note: fail PC or fail LA? zero protection, no more 1A analysis, i.e. speech advocating crimes and speech of lies are unprotected categories
3 elements SI NT DMA
note: overbreadth doctrine does not apply
___________________
Yes, the LA and T/PM thresholds are confusing. Pre Central Hudson, govt could regulate commercial speech to its heart’s content.
Post Central Hudson, govt can regulate commercial speech ONLY if
the regulation is directed at (pure commercial + Legal activity + t/pm) speech
and
the regulation satisfies SI NT DMA.
So, some protection.
Note: regulating speech of illegal activity, regulating F/CM speech gets no Central Hudson analysis…so it GETS NO 1A protection i.e. CRIMES AND LIES are like an Unprotected Category <–Lucia 4/23/24 Therefore states CAN and DO ban ads that are false or clearly misleading, ads that are of illegal products.
Threshold 1: is it regulating speech that is purely commercial speech and no more?
- If yes, continue. If no, regular 1A analysis.
- Purely commercial speech = purely advertising, X product for Y price
If “speaker’s underlying “motivation” = pecuniary, probably commercial speech
Threshold 2: is it regulating speech that is promoting legal activity?
- If yes, continue. If no, no 1A protection at all.
Threshold 3: is it regulating speech that is true/potentially misleading OR regulating speech that is false/clearly misleading?
- if true/potentially misleading, continue.
- If false/clearly misleading, no 1A protection.
Note that attorney speech has a smaller T/PM window and larger F/CM window than other professions:
- Prof. Hudson: More limited than other professions! B/c established lawyers do not want to give up piece of the pie.
- Atty Advertising: I won million-dollar lawsuits (truth: did not at all): Clearly Misleading (even with disclaimer)
- Atty Advertising: I won million-dollar lawsuits (truth: only initiated and lost such lawsuits): maybe Possibly Misleading (if there is disclaimer)
- Atty Advertising: I am experienced litigator (truth: I have had 1 trial): Clearly Misleading
can be cured by disclaimer = true/potentially misleading, and the court court can actually mandate a disclaimer (rational basis)
Intermed-ish Scrutiny 3 Elements:
- Govt must have substantial interest e.g. CRIME PREVENTION/PRIVACY/CONSUMER PROTECTION
AND
- Regulation is NT
Narrowly Tailored (NOT necessarily least restrictive…but still watch for BANS on advertising on a topic…that is too much)
“A complete ban on topic xyz advertising will NEVER be found to be narrowly tailored”
AND
-
Regulation is DMA
Directly and Materially Advance the Substantial Interest
e.g. ban on in-person solicitation of legal services for pay (not free)? Survives SI-NT-DMA
SI: consumer protection from ambulance chasing
NT: ads at distance still allowed
e.g. compelled disclosure of drug side effects
Survives SI-NT-DMA
e.g. complete ban on truthful price advertising? (Liquormart)
Fails SI-NT-DMA, not narrowly tailored
SI: Govt has no SI in preventing such info
e.g. ban
Note: overbreadth doctrine does NOT apply b/c commercial speech is UNLIKELY to be chilled
How does the content-based v. content-neutral analysis work for 1A?
General:
* catch-all, residue
* does NOT apply to Speaker-Based approach
Tip: If the statute limited CONDUCT (e.g. burn ban, sleeping in park ban) seems to have NO speech component at all, think through creatively whose WORDS/SYMBOLS/EXPRESSIVE CONDUCT might be impacted
Note: overbreadth doctrine does apply
CONTENT-NEUTRAL
aka “time place manner” aka “not viewpoint, not subject matter”
e.g. ban on decibel level at park concerts - (WORDS of performers is speech possibly affected)
e.g. ban on burning stuff in summer - (EXPRESSIVE CONDUCT of flag burners is speech possibly affected)
e.g. ban on sleeping in park - (WORDS of protestors in park is speech possibly affected)
- Intermediate Scrutiny
- important government interest
- means narrowly tailored: not perfect fit, but no greater restriction than essential to furtherance of govt interest…leave alternative means for plaintiff.
- e.g. burn ban ALL YEAR in Seattle is NOT narrowly tailored…b/c it could be IN SUMMER dry season only….aka overbroad
- note secondary effects can bump content based down to content neutral (e.g. adult business regulation via property values/crime as secondary effects…BUT must leave ample locations for adult business alternatively)…
- “effects on listener” is NOT a secondary effect
CONTENT-BASED
aka “viewpoint OR subject matter”
e.g. ban on sale of violent video games IS content-based
e.g. ban on flag burning is content-based
e.g. allowing some leaflets but NOT other leaflets likely is content based
- Strict Scrutiny Compelling Interest, Very Narrowly Tailored
- unless falling in Unprotected Category in which case it will do categorical approach
- Note: O’Brien test…is the government interest in SUPPRESSING speech - look at govt purpose wrt regulation itself! Is it trying to suppress speech? If yes, then it is content-based
Exceptions to Content-Based
-
Government Speech Doctrine
Monument in public park = GOVT SPEECH not public forum host - Pleasant Grove. No 1A analysis. - Government Funding of Speech Promoting Its Own Policies
- Government MAY, via rational basis, discriminate against specialty plate bearing state name (Walker v. Son of Confed Division)
Exception: Vanity plates
Exception to Exception: Vanity plates in TN - Government MAY, via rational basis, discriminate funding artists whose work it finds offensive (NEA v. Finley)
- Government MAY, via rational basis, discriminate against permanently, privately donated monument in public park (Pleasant Grove)
- Note: Establishment Clause NOT violated in PG b/c there were 15 other such monuments in the public park
-
Government Funding of Speech Promoting Private Messages
Government MAY NOT deny derogatory trademarks like “The Sl*nts” band name (Matal v. Tam)
Note: trademarks are private messages merely protected by government
Note: surprisingly Alito wanted to guard against “capacious use” of Government Speech Doctrine
How may the govt regulate speech in special settings where govt. is sovereign and property owner?
Note the traditional content-based v. content neutral approach does NOT apply to special settings (but it’s here!!)
Note:
A ban on political signs = content-based BUT viewpoint neutral
A ban on politcial signs of conservatives = content-based AND viewpoint non-neutral
1) Traditional Public Forum: By tradition open generally
Ex: public (truly public) streets, public parks
- SS for content based, IS for content neutral + ample channels
2) Designated Public Forum: By policy being held open to public use in “designated time windows”
Ex. town hall
Ex. classrooms avaiable after school
Think: Apply TPF during “designated time windows”
- SS for content based, IS for content neutral + ample channels
(layers!: denying religious sexist school group to school classrooms while others have access IS content based. BUT it addressing sexist discrimination IS a compelling interest and narrow drawln so maybe ok!)
Establishment Clause is NOT violated by allowing relig group to use same afterschool rooms as nonrelig group (Good News Club)
3) Limited Public Forum: Not by tradition or policy open generally, but open for particular topics or particular speakers
Ex:
school board meeting rooms
public university meeting rooms
municipal owned theater
court rooms.
Note: judge forbidding press from attending or publishing about a trial is a prior restraint on their 1A rights. Stewart (1976), the Supreme Court made it clear that a prior restraint will be upheld only if it is the only sure way of preserving a fair trial for the defendant. Much better to sequester/screen jury or delay trial.
- Govt can restrict speech “reasonably to preserve purpose of the property” using viewpoint neutral approach.
- If viewpoint-based, SS is triggered
- No obligation to keep open, but if open to speaker X must be equally open to speaker Y
4) Non-Public Forum: Not by tradition or policy open generally, not for particular topics or nor particular speakers. Here speech is INCIDENTAL.
Ex:
Sidewalk outside post office
Inside School Building
Inside courthouse
outside courthouse but on grounds,
court steps
Teacher Mailboxes
Airport terminal
street-light posts
prisons
military bases
school gymnasiums
polling places
mayor office
Almost Everything Else Govt – Owned!!!
- Govt can restrict speech “reasonably to preserve purpose of the property” using viewpoint neutral approach.
- If viewpoint-based, SS is triggered
- No obligation to keep open, but if open to speaker X must be equally open to speaker Y
i.e. ban sit-ins in mayor office might be ok, but ban sit-ins in mayor office by conservatives is not ok prob failing under SS
[e.g. restricting speech “that might improperly influence the judicial proceedigns” is acceptable restriction to preserve purpose of a courthouse property which is to have fair processes]
Heffron principle: speakers in 1A law often do not get to speak at their desired location IF there are other avenues…but doesn’t apply if the law is so FATALLY FLAWED
How may the govt regulate speech when acting as sovereign and educator (public K-12)?
For public universities, use Forum Doctrine
Note the traditional content-based v. content neutral approach does NOT apply to special settings
SCHOOL SPEECH
Covers: teacher speech, admin speech, student speech as part of lesson or extracurrucilar activity
General Rule:
Restriction must have some legit pedagogical concerns, educational objectives [generally deferential to school]
e.g. School newspaper part of journalism class, since it bears school imprimatur, CAN be regulated
e.g. school underground newspaper?, since it does NOT bear school imprimatur, NO
PERSONAL STUDENT SPEECH on CAMPUS
General Rule (Tinker)
Can only regulate personal student speech if such speech
i) “reasonably forecast to substantially disrupt”
OR
ii) “substantially disrupt” <–met by passing notes/texting in class
OR
iii) “impinge on other students’ rights”
Cannot regulate personal student speech if such speech
i) Causes “undifferentiated fear”
Exception (Fraser)
Can regulate personal student speech if such speech is
- vulgar, lewd, offensive
AND
- is ON campus
Exception (Morse)
Can regulate personal student speech if such speech is
- at or across street from schooll
AND
- reasonably viewed as promoting illegal drug use
Cf - promoting legalization of drugs <–student wins
PERSONAL STUDENT SPEECH off CAMPUS
High bar - can regulate if safety/educational concerns outweigh SPEECH INTERESTs of students as private citizens
prevent bullying, cheating, threats
Mnemomic where school loses CVSBUS
CRT books on bookshelves not vulgar/unsuitable just b/c school dislikes CRT message (Pico)
Vietnam armbands (Tinker)
Sports clothing (Jeglan)
Banner (theoreticall) off campus at student event advocating LEGALIZATION of weed (Alito concurrence – Morse)
Underground newspaper (Hazelwood)
Social media posts off campus (Mahanoy)
Note:
prior restraint IS important in free expression context generallly
prior restraint IS iLESS mportant in free expression context of student speech
How may a govt acting as sovereign + employer regulate employee speech?
**
unprotected….protected
in scope of employment vs. as citizen
at workplace vs. at outside workplace
on matters of private concern vs. on matters of public concern**
note “matters of public concern” is BROAD [Rankin v. McPherson] and include an EE making a blog about fed agency HR policies…even that is public
Note the traditional content-based v. content neutral approach does NOT apply to special settings
Unprotected
Statements made by public employees
+
in scope of their official duties (i.e. memo written by govt atty breaking office policy)
Unprotected
Statements made by public employees at workplace
+
on matters of private concern (i.e. dirty jokes at work)
Balance govt interest in efficient workplace vs. value of speech
Statements made by public employees at workplace or outside workplace
AS
Private citizen: NOT in scope of official duties
ON
Matters of public concern
e.g. teacher letter to editor about govt spending, and no workplace disruption was risked: PROTECTED
e.g. public employee talking about POTUS at water cooler, and no workplace disruption was risked: PROTECTED
[in fact, public EEs speaking on matters of public concern is VALUABLE SPEECH]
Protected, absent detrimental effect on efficient workplace
Statements made by public employee outside workplace
AS
Private Citizen: NOT in scope of official duties
ON
NOT matters of public concern
What is the secondary effects doctrine of 1A?
SECONDARY EFFECTS RATIONALE (Young v. American Mini 1976, Renton):
A zoning law or something NOT targeting speech itself, but targeting SECONDARY EFFECTS of that speech…allows otherwise content-based to be treated as content neutral as long as government allows ample alternatives.
Created b/c govt was losing OBSCENITY cases for adult entertainment.
Since Young:
* Legit Secondary Effects: Adult businesses: crime/poverty supposedly resulting from adult business
* Legit Secondary Effects: Adult businesses: harm to kids supposedly resulting from dress code
* Legit Secondary Effects: Adult Other: harm to kids supposedly resulting from noise
* Legit Secondary Effects: Adult Other: effects of gambling, competition in the video-programming market, sexual arousal of readers, and harm to children
* Renton (1986) does not require a city…produce evidence independent of…that produced by other cities [as long as that other] evidence is reasonably relevant to the problem that the city is trying to address
*
Potter Stewart dissent in Young—Secondary Effects runs roughshod over cardinal principles of 1A law – b/c the govt was targeting non-obscene adult business
**Hudson: Secondary effects are Legal fiction! **
Listener’s Reaction: O’Connor said in Boos v. Barry that listener’s reaction is primary effect. Dissent said that listener’s reaction is NOT a primary effect and she is expanding the secondary effects doctrine. Hudson: listener’s reaction is NOT a valid secondary effect
BUT Reed (2015) seems to kill Secondary Effects AND Commercial Speech doctrines “A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech”
HUDSON 4/24/24 - BOTH Secondary Effects AND Commercial Speech doctrines still apply!
What is the overbreadth and vaguenes doctrine?
If a criminal law or regulation fails to give persons reasonable notice of what is prohibited, it may violate the Due Process Clause.
Even stricter in 1A, because of chilling possibility.
Overbreadth exists in a 1A challenge if, in proscribing unprotected speech, the challeged statued also proscribes protected speech. An overly broad law may deter constitutionally protected speech, the overbreadth doctrine allows a party to whom the law may constitutionally be applied to challenge the statute on the ground that it violates the First Amendment rights of others
e.g. All Speech at LAX - not just solicitation, but talking to agents etc
Vagueness doctrine: Due Process requires NOTICE and vagueness kills notice
e.g. “indecent speech” <–what does that mean?? too vague to apply (J. Stevens)
e.g. “loitering” too vague
