1ST AMENDMENT- FREE SPEECH

Question 1

right to criticize the govt

Feiner v. NY (1951) - facts and question

Answer 1

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!

Question 2

Feiner- Analysis

Answer 2

• 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.

Question 3

Cantwell v. Connecticut - full

Answer 3

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.

Question 4

Texas v. Johnson - facts and issue

Answer 4

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!

Question 5

Texas- Analysis

Answer 5

• 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.

Question 6

Texas- mention of the obrien draft cart case

Answer 6

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.

Question 7

Vidal v. Elster- trump too small

Answer 7

• 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

Question 8

Lindke and O’Connor Ratcliffe Cases (gov criticism)

test for when a govt official can block someone who criticizes them.

Answer 8

• 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.

Question 9

RAV (1992) - facts

Answer 9

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.

Question 10

RAV- Rule

Answer 10

Under the first, states may not regulate categories of unprotected speech, such as “fighting words” on the basis of content.” No content/viewpoint discrimination.

Question 11

RAV- Reasoning

Answer 11

• 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.

Question 12

so what is content based?

Answer 12

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.

Question 13

Matal - 2017 facts and issue

Answer 13

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!

Question 14

Matal- analysis

Answer 14

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.

Question 15

Matal- concurrence

Answer 15

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.

Question 16

Matal- thomas concurrence

Answer 16

• Whenever the gov seeks to restrict truthful speech in order to suppress ideas, strict scrutiny is appropriate, whether or not it is commercial.

Question 17

What does matal tell us-

Answer 17

commercial speech is one area of speech that is protected by the first, but it less than strictest scrutiny.

Question 18

Levels of Scrutiny for content based and neutral

Answer 18

Content Based = strict scrutiny.
Content neutral = intermediate scrutiny.

Question 19

Reed v. Town of Gilbert (2015)
facts and rule

Answer 19

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.

Question 20

Reed- 2015 ; rationale

Answer 20

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.

Question 21

Reed- concurrences

Answer 21

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??

Question 22

City of Austin v. Reagan National Advertising (2022)- facts and rule

Answer 22

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.

Question 23

city of austin- rationale

Answer 23

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.

Question 24

City of austin- alito concurrence and dissent

Answer 24

• 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)

Question 25

City of austin- Thomas, gorsuch, ACB dissent

Answer 25

• Under reed, the regulation is content-based.
• Not only does the regulator need to know where the sign is, but what it says.

Question 26

Vullo supplement

Answer 26

Facts: head of dept of fin tell company no supporting the NRA or she will end business. NRA argues that she undermined their First Amendment right to free speech by telling the company that they couldn’t support the NRA.
Rule: gov officials cannot attempt to coerce private parties to try and punish or suppress views.

Question 27

Elenis 2023 supplement

Answer 27

Facts: wedding website homophobe does not want to design websites for gay couples. This is a problem bc Colorado has public accommodation laws that say that when you do business you cant discriminate against customers.

Question 28

Elenis- majority + analysis

Answer 28

Analysis: Gorsuch, Kavanaugh, CJR, Thomas, ACB, Alito
* Colorado is using its law to coerce individuals into creating speech she does not believe in which violates the first. Public accommodation law does not govern, free speech does.

Question 29

elenis- dissent

Answer 29

3 girlies

• for the first time in history, the court grants a business open to the public a constitutional right to refuse services to members of a protected class. a business that chooses to serve the public has a duty to serve the public.

Question 30

INCITEMENT

Brandenburg v. Ohio 1969
got rid of the clear and present danger test

Answer 30

Facts: KKK member invites reporter to film group. Ohio charged Thomas for violating Ohio Criminal Syndicalism Act.

Rule: Under the 1st amendment, a state may not outlaw speech unless the speech is directed to inciting violence and imminently likely to do so.

Analysis: law is far too broad. State needs to protect the peace at some level, but there needs to be a real threat of violence before you go criminalize speech in this manner.

Question 31

Brandenburg- incitement test

Answer 31

• INCITEMENT TEST: The state may regulate speech that advocates for violence only if that speech is (1) intended to and (2) likely to incite illegal crime.
• Applied to case - court stated that he was saying horrific things but it was not like he was carrying a weapon. He was just conveying a message that was not directed at a specific person and it was just a statement of his personal belief.

Question 32

DEFAMATION

NY Times- rule

Answer 32

if the plaintiff is a public official or is running for public office, he or she can recover damages for defamation only by proving with clear and convincing evidence the falsity of the defamatory statements and the presence of actual malice in the speaker.

Question 33

what is actual malice

Answer 33

when the person knows or lacks with reckless disregard of the statement’s truth or falsity.

Question 34

thomas’ opinion on NY Times. (mkee)

Answer 34

: not on the court during NYT but he hasn’t been shy that he wants to overrule it.
- McKee- he objects to NYT in McKee and says he does not like the actual malice standard bc it is not grounded in the const. In McKee, the p had become a public figure so now her burden became higher, the problem of meeting malice is that now her burden is higher than the con law standard that applied to normal people. Thomas said the const did not intend for figures to meet this tougher standard.

Question 35

alito and thomas in berisha

Answer 35

THOMAS and GORSUCH- Berisha: G joined T and notes that the media is a lot different than it was during NY Times.
- They stress that NY times needs revaluating since everyone has platforms with the internet and information is no longer filtered.

Question 36

sexual images of children

Ferber

Answer 36

Facts: nasty man selling child porn argues that it was his first amendment right.
Rule: the first amendment does not protect the distribution of child porn, even if it doesn’t qualify as obscene under Miller. Miller had specific factors.

Question 37

Ferber - analysis

Answer 37

Reasoning:
* States get more leeway in regulation of child porn.
* The law must be adequately defined and must be limited to visual displays.

O’Connor Concurrence:
* Materials with serious literary, scientific or education value may be protected.
Brennan and Marshall Concurrence in Judgment:
* Depictions as a serious contribution to art or literature is ok.

Question 38

COMMERCIAL SPEECH

Virginia Pharmacy - facts and rule

Answer 38

Facts: Virginia passed a law that prohibited pharmacists from advertising prices.

Rule: Commercial speech isn’t completely outside the protection of the first amendment and a state can’t suppress the dissemination of truthful information about a lawful activity on the basis of fear of that information’s effect on people.

Question 39

Virginia Pharmacy- rationale

Answer 39

Rationale: commercial speech does not lose its First Amendment protection just bc a person has a purely economic or commercial interest in conveying it.

• However, there are certain types of commercial speech regulations that are permissible: NEXT CARD.
  1. Time, place, and manner restrictions.
  2. False or misleading speech.

Question 40

commercial speech

Types of commercial speech regulations that are permissible:

Answer 40

1. Time, place, and manner restrictions.
2. False or misleading speech.