1A Freedom of Speech/Assembly - Regulation of Content Flashcards
Does First Amendment include right to show movies?
Yes, First Amendment’s right of freedom of speech includes the right to show movies.
What does the First Amendment protect?
Establishment Clause: Prohibits Congress from establishing religion
Free Exercise Clause: Prohibits Congress from interfering with free exercise of religion
Freedoms of speech/press + Right of assembly
Note: Speech and assembly regulations are generally categorized as:
* Content regulations (regulations on communication of specific ideas)
* Conduct regulations (regulations on time, place, or manner of speech)
Freedom of Speech/Assembly - Content Regulations
Describe the two content regulations on speech:
* Content-Based Restrictions
* Content-Neutral Restrictions
(as opposed to conduct regulations on speech)
Content-Based Restrictions: Use strict scrutiny
* Presumptively unconstitutional to place burdens on speech on basis of its content (exceptions - obscenity/defamation)
* Viewpoint vs. Subject Matter restrictions
Content-Neutral Restrictions: Use intermediate scrutiny
* Ends: Important government interests unrelated to suppression of speech
* Fit: Must be narrowly tailored to further interests (not substantially burden more speech than necessary)
Regulation must NOT be vague or overbroad
Generally, any regulation of speech, at a minimum, must be to achieve important gov interests and must be narrowly tailored to those interests.
If the regulation of speech is based on its content, much higher standard of strict scrutiny.
Freedom of Speech/Assembly - Content Regulations
What are the two types of content-based restrictions?
- Subject Matter restrictions: depends on topic of message
- Viewpoint restrictions: depends on ideology of message
What does protected “speech” include?
- Symbolic Speech (conduct used to communicate an idea)
- Anonymous Speech
- Profane and indecent speech (but not in schools or broadcast media)
- Freedom not to speak - government can’t compel speech (ex. salute flag/display state motto on license plate)
Symbolic Speech standard:
* Ends: Important interest (unrelated to suppressing speech)
* Fit: Impact on speech is no greater than necessary to achieve ends
Symbolic speech that can’t be banned
* Flag burning
* Cross-burning by itself
* Contribution limits in election campaigns
Symbolic speech that can be banned
* Burning draft cards
* Nude dancing, if necessary to control secondary effects
* Cross-burning with intent to convey threat
* Expenditure limits for election campaigns
When is a law regulating speech considered unconstitutionally “vague”?
Reasonable person can’t tell what speech is prohibited and what’s allowed
When is a law regulating speech unconstitutionally “overbroad”?
Law cannot punish substantially more speech than is necessary to achieve a legitimate purpose
* If law is substantially overbroad, it can’t be enforced even against a person engaging in activity that’s not constitutionally protected
Ends: Legitimate purpose
Fit: Doesn’t punish substantially more speech than necessary
Ex. of “overbroad” - prohibition against
* all live entertainment
* all First Amendment activity at airport terminal
* all canvassers from going on private residential property to promote cause without getting a permit
Fighting words laws are ALWAYS unconstitutionally vague and overbroad
Can a regulation give officials broad/unlimited discretion over speech issues?
NO, there must be defined standards for applying the law
* If statute gives licensing officials unlimited discretion, it is void and speakers don’t need to apply for permit
* If statute does include standards, speaker must seek permit and if it’s denied, then challenge it on 1st Amendment grounds
What are the rules around contribution/expenditure limits in an election campaign?
CAN set contribution limits
CANNOT set expenditure limits
Can gov tax people and use tax revenue to express a message with which people might disagree?
YES
But people can’t be compelled to subsidize private messages with which they disagree (but OK for university activity fees for program that’s viewpoint-neutral)
Does the First Amendment regulate government speech?
1st Amendment does NOT restrict government speech (gov is free to voice opinions and fund private speech that furthers its views)
* Rational basis standard (gov speech OK if rationally related to legitimate state interest)
Gov funding of private speech
* Must be viewpoint-neutral
* Gov can’t fund ANY artists
Example of gov speech:
* Permanent monument placed in public park by city (doesn’t matter that it was donated)
Can gov impose First Amendment restrictions to recipients of gov spending programs?
No, if the restrictions are outside the scope of the funding program.
Ex. Gov can’t require recipients of federal funds to combat malaria to state in funding docs that they oppose prostitution
What is a prior restraint?
Judicial order/administrative system that stops speech before it occurs
Compliance with procedurally proper court orders is MANDATORY
* If someone violates court order, they’re BARRED from challenging it later (cannot raise constitutionally of the law as a defense to violating an injunction)
What standard is used to evaluate prior restraints?
Strict Scrutiny: Gov must show a special societal harm would result without the content-based prior restraint of speech
* Means: Achieve compelling interest
* Ends: Narrowly tailored
Valid Prior Restraints
* Prohibiting publishing of troop movements during war
* Enforcing contractual prepublication review of CIA agent’s book
Invalid Prior Restraints
* Prohibiting publication of Pentagon Papers because it might affect Vietnam War
* Prohibiting grand jury witness from ever disclosing testimony
When can government require a license for speech?
If there is important reason for licensing and there is clear criteria (leaving almost no discretion to licensing authority)
* Standards must be narrowly drawn, reasonable, and definite
* Must be possible to seek injunction promptly
* There must be prompt/final determination of validity of grant
