1st Amendment - Regulation of Speech Flashcards
Expressive Conduct
Protected speech can include not only written, oral, and visual communication, but also activities such as picketing and leafleting. Expressive conduct (or symbolic speech) may also be protected as speech, but it is subject to a lesser degree of protection
EC- Governmental regulation of expressive conduct is upheld if:
The regulation is within the government’s power to enact;
ii) The regulation furthers an important governmental interest;
iii) The governmental interest is unrelated to the suppression of ideas; and
iv) The burden on speech is no greater than necessary.
United States v. O’Brein
EC - Example of permissible regulation of expressive conduct
Upholding a ban on public nudity, such as nude dancing in adult entertainment venues, pursuant to the important governmental interest in preventing the “harmful secondary effects” of adult entertainment on neighborhoods, which is unrelated to the suppression of expression.
City of Erie v. Pap’s A.M
EC - Examples of impermissible regulation of expressive conduct
A ban against students wearing black armbands to protest the war in Vietnam, because the government’s only interest in banning the conduct was prohibiting communication, Tinker v. Des Moines Indep. Cmty. Sch. Dist.;
A federal prohibition against burning the American flag because the law was intended to suppress messages of disapproval of governmental policy, rather than any conduct-related consequences of the burning of a flag, United States v. Eichman
Overbreadth
A law that burdens a substantial amount of speech or other conduct constitutionally protected by the First Amendment is “overbroad” and therefore void
So, an individual whose own speech or conduct is prohibited may challenge a statute on its face because it also threatens others not before the court.
The challenger of a law bears the burden of establishing that substantial overbreadth exists
Vagueness
A statute is “void for vagueness” if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited
Freedom to Not Speak
The First Amendment protects not only freedom of speech, but also the freedom not to speak
One such example is a child’s right not to recite the Pledge of Allegiance. A state may not compel individuals to engage in involuntary expression. West Virginia State Board of Education v. Barnette
Similarly, the private organizers of a parade cannot be compelled by the government to include in the parade a group that espouses a message with which the organizers disagree. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston
However, a state can compel a private entity (e.g., a shopping mall) to permit individuals to exercise their own free-speech rights when the private entity is open to the public and the message is not likely to be attributable to the private entity. Pruneyard Shopping Center v. Robins
Government Speech
When the government itself speaks, it is not constrained by the Free Speech Clause of the First Amendment. Therefore, government speech need not be viewpoint-neutral
GC Example: Monuments on public property
The display of a monument on public property, even if the monument has been donated by a private person, constitutes government speech.
Pleasant Grove City v. Summum, government installed a Ten Commandments monument donated by a private person in a public park; the Court held that governmental entities may exercise “selectivity” in choosing a monument being offered by a private donor)
GC Example: Flagpoles on public property
Whether flags flown from flagpoles outside of a government building constitute government speech is determined based on an analysis of the totality of the circumstances. If the government entity has regularly allowed private groups to fly their flags on the flagpole, then it is likely that the flags do not constitute government speech, but rather the free expression of the citizens. Denying one group the right to display their flag would, in that case, be a violation of the group’s right to free speech.
Shurtleff v. City of Boston, city’s refusal to fly a religious organization’s flag depicting a cross on a city flagpole where city had not denied any other group the right was a free-speech violation.
