1ST AMENDMENT- FREE SPEECH Flashcards
right to criticize the govt
Feiner v. NY (1951) - facts and question
Facts: P is convicted of disorderly conduct for standing on a corner yelling remarks concerning the gov. Officers stepped in to prevent a fight & asked him to stop many times. He did not stop.
Question: Does police violate a defendant’s first amendment right to free speech by stopping speech that breaches the peace and attempts to incite a crowd to riot? NOPE!
Feiner- Analysis
- Police can step in when the speaker passes the bounds of argument or persuasion and undertakes incitement to riot.
- The cities interest in maintaining the peace does not encroach on an individuals 1st.
- IN THIS CASE, the officers watched Feiners speech incite certain audience members to riot against public order and was angering others to point where they might have attacked him.
Cantwell v. Connecticut - full
Facts: People selling religious literature that criticized/attacked catholic religion.
Rule: A state cannot punish conduct that is protected by the 1st when that conduct presents no clear and present danger to public safety or welfare.
Analysis: No fighting words here, he was just persuading his religion which is permissible.
Texas v. Johnson - facts and issue
Facts: Johnson burns flag and is charged for desecrating a flag in violation of Texas law.
Issue: Whether conviction for burning a flag violate the 1st? RULE- Yes!
Texas- Analysis
- We must consider: (1) whether burning the flag is expression, (2) whether the state regulation is related to the suppression of free expression.
o IF the regulation is not related to expression then a less stringent standard applies; if it is related to expression then more stringent standard will apply. - HERE, it was an expression- not just words that are protected.
o What comes under protection- if there is an intent to convey a particularized message and whether there was a great likelihood that the message would be understood by those who viewed it.
o Thus, the law here is deemed to be related to the suppression of free expression.
Texas- mention of the obrien draft cart case
if you do something that effects both speech and non-speech elements of an action, then sometimes the non-speech element can restrict the speech element- but this is not at issue here.
Vidal v. Elster- trump too small
- Lanham Act (which prohibited the registration of a trademark that uses the name of another living person without the individual’s permission) stopped trademarks about Trump. A unanimous decision that held that this rule did not violate First Amendment since it is not a viewpoint-based rule since it does not favor one viewpoint over the other. It is not about speech suppression here, just about what can be trademarked
Lindke and O’Connor Ratcliffe Cases (gov criticism)
test for when a govt official can block someone who criticizes them.
- Public official who had a private fb account and was getting criticized, so the question was what can an official do with a private page.
o Test- Ask (1) did the official have authority to speak on behalf of the state on a particular matter, and (2) was the official purported to exercise that authority in the relevant posts.
RAV (1992) - facts
Facts: Petitioners burn a cross on a black family’s lawn.
* Charged under a bias-motivated crime ordinance that criminalized placing on private or public property a symbol that “one knows/ has reasonable grounds to know arouses anger, alarm, or resentment in others on basis of race, color, creed, religion, or gender.”
* Petitioner argued that the ordinance was substantially overbroad and impermissibly content-based.
RAV- Rule
Under the first, states may not regulate categories of unprotected speech, such as “fighting words” on the basis of content.” No content/viewpoint discrimination.
RAV- Reasoning
- Content-based regulations on free speech are presumptively invalid.
- Some types of speech, because they add little or no value to societal discussions or truth-seeking, may be more susceptible to regulation. However, even these types of low-value speech cannot be regulated in a discriminatory way. The government cannot selectively restrict speech based on disagreement with the viewpoint it represents.
- Here, St. Paul’s ordinance applied only to a subset of fighting words implicating race, religion, or gender. Protecting groups that have been discriminated against is compelling, however content-based restrictions are not narrowly tailored to serve that interest bc an ordinance banning ALL fighting words would be equally effective.
- The First Amendment does not permit the city to impose special prohibitions on those speakers who express views on disfavored subjects.
so what is content based?
you are focused on the what is being said.
rav is a good example because it involves an ordinance that applied only to a subset of fighting words implicating race, religion, or gender.
Matal - 2017 facts and issue
Facts: Band applies for a fed trademark registration of the name “slants” which the PTO denies based on a law prohibiting registration of trademarks that disparage or disrepute persons.
Issue: Does the law violate the first? Yup!
Matal- analysis
Reasoning: Alito, Roberts, Kennedy, RBG, Breyer, Sotomayor, Kagan, Thomas
* Speech may not be banned on the ground that it expresses ideas that offend.
* Trademarks are private speech. This is a big section of the decision- Gov speech is a narrow category of speech that is exempt from 1st amendment scrutiny. The court holds that trademarks are NOT gov speech and it would be dangerous and an infringement on the first if they concluded it was.
* Here, the law does not serve a substantial interest and is not narrowly drawn.
Matal- concurrence
Concurrence: Kennedy, RBG, Breyer, Sotomayor, Kagan
* This is viewpoint disc because you are telling people they can have a pro view and not an anti view.
Matal- thomas concurrence
- Whenever the gov seeks to restrict truthful speech in order to suppress ideas, strict scrutiny is appropriate, whether or not it is commercial.
What does matal tell us-
commercial speech is one area of speech that is protected by the first, but it less than strictest scrutiny.
Levels of Scrutiny for content based and neutral
Content Based = strict scrutiny.
Content neutral = intermediate scrutiny.
Reed v. Town of Gilbert (2015)
facts and rule
facts- Gilbert AZ has a law that restricts certain signage- different restrictions are in place, one category of stricter restrictions is for temporary directional signs relating to a qualifying event (signs directing the public to a meeting of a nonprofit)
rule- Categorizing signs based on their purpose is content-based regulation and will be subject to strict.
Reed- 2015 ; rationale
Rationale: Thomas, CJR, Scalia, Kennedy, Alito, Sotomayor
* Content-based regulations are presumptively unconst and must be evaluated under strict. (restriction must further a compelling interest and must be narrowly tailored).
* Here, the regulation is content-based bc it talks about temporary directional signs, political signs, and ideological signs. These are different kinds of content and by distinguishing different content-based signs, then the gov has made a content-based dist
o Did not survive strict- town argued this regulation for safety and aesthetics, but Thomas says this is not enough to survive strict.
Reed- concurrences
Concurrence: Alito, Sotomayor, Kennedy
* Gives examples of what regulations would be ok- location of signs, size, number,
Concurrence: Breyer
* Content disc, should be a rule of thumb which is used to determine the strength of a justification, does not always have to be subject to strict scrutiny.
* Let’s examine the seriousness of the harm of speech.
Concurrence: Kagan, RBG, Breyer
* Are we the Supreme Court of sign review??
City of Austin v. Reagan National Advertising (2022)- facts and rule
Facts: the city regulates off-premises signs to protect the aesthetic value and protect public safety. Only on-premises signs could be digitized.
Rule: A regulation may be content- neutral even if it requires a decision-maker to examine the content of speech to determine whether the regulation applies.
city of austin- rationale
Rationale: Sotomayor, CJR, Kagan, Kavanaugh, Breyer
* Holding that a regulation is immediately content-based just bc you had to read a sign is too extreme of an interpretation of Reed.
* The city’s off-premises distinction requires examination of speech only in service of drawing neutral, location-based lines.
* This nation has a history of regulating off-premises signs.
* Analysis does not stop ^, we have to ask if there is evidence that an impermissible purpose or justification behind it and whether it passes intermediate (narrowly tailored to serve a significant gov interest- DIFF WORDING THAN GENDER)
o We must reverse and remand so lower court can do intermediate test.
City of austin- alito concurrence and dissent
- Agrees that should be remanded, but believes that the court id not get this fully right since there are some signs of discrimination.
- Makes comments on facially unconstitutional- (fill in)
