BAR FLASHCARDS - CL Part 5_ First Amendment
FIRST AMENDMENT FREEDOMS
The First Amendment prohibits Congress from establishing a religion or interfering with the free exercise of religion, abridging the freedoms of speech and press, or interfering with the right of assembly. These prohibitions are applicable to the states through the Fourteenth Amendment.
1st Amendment
limits government regulation of private speech
Content-Based Restrictions vs Content-Neutral Restrictions
a. Content-based restrictions on speech generally must meet strict scrutiny. It is presumptively unconstitutional to place burdens on speech because of its content (except for certain categories of speech, such as obscenity and defamation).
Two types of content-based laws (both get STRICT Scrutiny):
— subject matter restrictions (application of the law depends on the topic of the message)
— viewpoint restrictions (application of the law depends on the ideology of the message)
b. Content-neutral laws burdening speech generally need only meet intermediate scrutiny.
Content-Based Restrictions—
Content-Based—Strict Scrutiny: Content-based restrictions on speech generally must meet strict scrutiny. It is presumptively unconstitutional to place burdens on speech because of its content (except for certain categories of speech, such as obscenity and defamation).
There are two types of content-based laws (both warrant strict scrutiny):
• Subject matter restrictions (application of the law depends on the topic of the message)
• Viewpoint restrictions (application of the law depends on the ideology of the message)
Content-Neutral
What test?
Content-Neutral—Intermediate Scrutiny: Generally, content-neutral speech regulations are subject to intermediate scrutiny. Thus, they must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary (or must be narrowly tailored) to further those interests.
Prior restraints - court order
A prior restraint is a judicial order or an administrative system that stops speech before it occurs.
a. Court orders suppressing speech must meet strict scrutiny. Procedurally proper court orders must be complied with until they are vacated or overturned. A person who violates a court order is barred from later challenging it.
Prior restraints - LICENSING and PERMITS.
The government can require a license for speech only if…. (3)
b. The government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review
- Important reason for licensing
- Clear critera + almost no discretion
- procedural safegaurds
Procedurally proper court orders must be…
Procedurally proper court orders must be complied with until they are vacated or overturned. A person who violates a court order is barred from later challenging it.
A person who violates a court order is…
A person who violates a court order is barred from later challenging it.
Reasonableness of Regulation
(4)
Void for Vagueness Doctrine
Overbroad Regulation invalid
Fighting words
Cannot give officials unfettered discretion
Void for Vagueness Doctrine
A law regulating speech is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
No magazines capable of corrupting youth - vague
Overbroad Regulation Invalid
(3 examples)
A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.
A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated. Thus, if a regulation of speech or speech-related conduct punishes substantially more speech than is necessary to achieve a legitimate purpose, then the regulation is facially invalid. This means it may not be enforced against anyone—not even a person engaging in activity that is not constitutionally protected—unless a court has limited construction of the regulation so as to remove the threat to constitutionally protected expression.
Examples include a prohibition against all live entertainment, a regulation outlawing all First Amendment activity in an airport terminal, and a regulation prohibiting all canvassers from going onto private residential property to promote any cause without first obtaining a permit.
If the regulation is not substantially overbroad, it can be enforced against persons engaging in activities that are not constitutionally protected.
Fighting words laws
Fighting words laws are ALWAYS unconstitutionally vague and overbroad.
Words directed at another that are likely to provoke a violent response. Unprotected category of speech, but ALWAYS vague and overbroad so unconstituioanl.
Cannot Give Officials Unfettered Discretion
A regulation cannot give officials broad discretion over speech issues; there must be defined standards for applying the law. If a statute gives licensing officials unbridled discretion, it is void on its face and speakers need not even apply for a permit. If the licensing statute includes standards, a speaker may not ignore the statute; they must seek a permit and, if it is denied, challenge the denial on First Amendment grounds.
Symbolic speech
The government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government’s purpose.
The freedom of speech can extend to symbolic acts (that is, conduct) undertaken to communicate an idea.
The government can regulate expressive conduct if the regulation seeks to serve an important interest unrelated to the suppression of the message (in other words, independent of the speech aspects of the conduct) and if the impact on communication is no greater than necessary to achieve the government’s purpose.
Examples of symbolic speech include…
Examples of symbolic speech include flag burning, draft card burning, nude dancing, burning a cross, and making campaign contributions.
–flag burning
–flag burning is constitutionally protected speech
–draft card burning
–draft card burning is not constitutionally protected speech –local governments may prohibit nude dancing
–nude dancing
local governments may prohibit nude dancing
–burning a cross
–burning a cross is protected speech unless it is done with the intent to threaten
–contribution limits in election campaigns
–contribution limits in election campaigns are generally constitutional, but expenditure limits are unconstitutional. both for individuals and CORPORATIONS
content regulations vs conduct regulations
Speech and assembly regulations can generally be categorized as either content regulations (regulations forbidding communication of specific ideas) or conduct regulations (regulations of the conduct associated with speaking, such as the time, place, or manner of the speech). Different standards are used to assess the validity of a regulation within each category.
Compelled speech
Compelled speech violates the First Amendment. The freedom to speak includes the freedom not to speak. Thus, the government generally cannot require people to salute the flag or display other messages with which they disagree (for example, a person need not display the state motto “live free or die” on a license plate).
BUT: Gov can make mandatory financial support…
Compelled speech - Mandatory Financial Support
Although the government may not compel a person to express a message, it may tax people and use revenue from the tax to express a message with which they disagree (for example, a beef producer can be required to pay an assessment to support government-sponsored generic advertising of beef even if the producer thinks generic advertising is a waste of money). However, people cannot be compelled to subsidize private messages with which they disagree. Thus, while lawyers may be compelled to pay bar dues, non-union members cannot be compelled to pay union dues because the money may be used to support political views with which the non-union members disagree.
Exception—University Activity Fees
The government can require public university students to pay a student activity fee even if the fee is used to support political and ideological speech by student groups whose beliefs are offensive to the student, as long as the program is viewpoint neutral.
Anonymous speech
Anonymous speech is protected. Anonymous speech (that is, the right to speak without disclosing one’s identity) is protected by the First Amendment.
Speech by the government
Speech by the government cannot be challenged as violating the speech clause of the First Amendment.
Government speech cannot be challenged as violating the Free Speech Clause of the First Amendment. The Free Speech Clause restricts government regulation of private speech; it does not require the government to aid private speech or restrict the government from expressing its views. Absent some other constitutional limitation, such as the Establishment Clause or Equal Protection Clause, the government is generally free to voice its opinions and to fund private speech that furthers its views while refusing to fund other private speech. Because government speech does not implicate the First Amendment, it is not subject to the various levels of scrutiny that apply to government regulation of private speech.
Generally, government speech and government funding of speech will be upheld if it is rationally related to a legitimate state interest.
Government Speech: Limitation—Not All Speech Activity on Government Property Is Government Speech
Limitation—Not All Speech Activity on Government Property Is Government Speech
Determining whether speech, particularly speech that occurs on government property, is government speech requires a holistic approach. While this review is context-driven and not mechanical, some factors that may be relevant include:
• The history of the expression at issue
• The public’s likely perception as to who (government or private person) is speaking
• The extent to which the government has shaped the message
Government Speech: A city’s placement of a permanent monument in a public park
A city’s placement of a permanent monument in a public park is government speech and thus is not subject to Free Speech Clause scrutiny, even if the monument is privately donated.
Government Speech: When a city did not exercise meaningful control over the flags flown on a particular flagpole outside City Hall
When a city did not exercise meaningful control over the flags flown on a particular flagpole outside City Hall, did not shape the messages the flags sent, and had previously granted all flag-raising requests without exception, the flags were private—not government—speech. Therefore, the First Amendment applied.
Government speech: Spending Programs
Spending programs may not impose conditions that limit First Amendment activities of fund recipients outside of the scope of the spending program itself. For example, the government cannot require recipients of federal funds to combat HIV/AIDS to state in their funding documents that they oppose prostitution.
Government speech: Government Funding of Private Speech
When the government chooses to fund private messages (for example, public college group newsletters), it generally must do so on a viewpoint-neutral basis.
Exception—Funding of the Arts: From a financial standpoint, the government cannot fund all artists. Choosing who will receive funding will inevitably involve the content of the art—doing so is not unconstitutional.
Government speech: Trademark Protection
Trademark protection is not government speech, but rather it is private speech. Thus, it is subject to strict scrutiny.
PRIOR RESTRAINTS
Prior restraints are court orders or administrative systems that prevent speech before it occurs, rather than punishing it afterwards. They are rarely allowed.
Strict scrutiny applies to prior restraints and the government must show that some special societal harm would result absent the restraint.
Note: If a person violates an unconstitutional statute or ordinance, they can argue that it’s unconstitutional as a defense. This is not true for court orders—procedurally proper court orders must be complied with until vacated or overturned. If somebody violates a court order, they are barred from later challenging it.
Example: A city required parade permits. Under the permit ordinance, officials could deny permits if they judged that the parade would go against public welfare, safety, and peace—a clear violation of the First Amendment. Hearing that a civil rights group intended to hold a march without a permit, the city obtained an injunction against prohibiting the group from holding the march. The group marched anyway, despite knowing of the injunction and members of the group (including Dr. Martin Luther King Jr.) were arrested and held in contempt. At their contempt hearings, the marchers were prohibited from raising allegations regarding the constitutionality of the ordinance as a defense to violating the injunction.
Procedural Safeguards for Licensing Systems
The government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority.
Licensing schemes must contain the following procedural safeguards:
• The standards must be narrowly drawn, reasonable, and definite
• It must be possible for an injunction to be promptly sought
• There must be prompt and final determination of the validity of the restraint.
A number of other cases, especially in the area of movie censorship, require that the government bear the burden of proving that the speech involved is unprotected.
Licensing schemes must contain the following procedural safeguards:
Licensing schemes must contain the following procedural safeguards:
• The standards must be narrowly drawn, reasonable, and definite
• It must be possible for an injunction to be promptly sought
• There must be prompt and final determination of the validity of the restraint.
Prohibiting publishing of troop movements in times of war
valid
Enforcing contractual prepublication review of CIA agent’s writings
Valid
Prohibtting publication of the Pentagon papers bc it might have an effect on the Vietnam war
Invalid
Prohibing grand jury witness from ever disclosing testimony
Invalid
a prior restraint for a court trial will be upheld only if…
a prior restraint will be upheld only if it is the only sure way of preserving a fair trial for the defendant. Although prejudicial publicity can pose a serious problem, the Supreme Court held that it virtually always should be dealt with by means other than prior restraints.
Inciting Imminent Lawless Action/Incitement of illegal activity.
The government may punish speech if there is a substantial likelihood of imminent illegal activity and the speech is directed at causing imminent illegality.
Unprotected by 1A:
- Substantial likelihood of imminent illegal activity, AND
- Speech directed at causing imminent illegal activity.
Fighting Words
True threats (for example, cross-burning carried out with an intent to intimidate) are not protected by the First Amendment. Speech also can be burdened if it constitutes fighting words (personally abusive words that are likely to incite immediate physical retaliation in an average person). Words that are merely annoying are not sufficient.
Thus, calling someone a “mother f**” to their face constitutes fighting words but wearing a jacket that say “F the Draft” does not. Likewise, burning a cross at a Ku Klux Klan rally does not qualify as a true threat but burning a cross in a Black neighbor’s yard does.
The Supreme Court will not tolerate fighting words statutes that are designed to punish only certain viewpoints (for example, proscribing only fighting words that insult on the basis of race, religion, or gender).
Fighting Words as a practical matter
While this classification of punishable speech exists in theory, as a practical matter, statutes that attempt to punish fighting words are usually vague or overbroad (see supra). Thus, on the examination, they typically will be invalid.
Obscenity
Obscene speech is not protected.
Obscenity and sexually-oriented speech: The test
i. The material must appeal to the prurient interest
ii. The material must be patently offensive under the law prohibiting obscenity
iii. Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value
Obscenity elements:
Speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person:
• Appeals to the prurient interest in sex (based on a community standard)
• Is patently offensive (based on contemporary community standards) AND
• Lacks serious literary, artistic, political, or scientific value (using a national reasonable person standard)
Appeal to the prurient interest and offensiveness are judged by ___ standards, but value is judged ___.
Appeal to the prurient interest and offensiveness are judged by contemporary community standards (local or statewide, not necessarily
national standards), but value is judged on a national reasonable person basis.
Appeal to the prurient interest standard is based on…
Community/local standard
Patently offenseive standard is based on…
State or local law
artisitc, literary, policital, or scientific value standard is based on…
National standard
Obscenity - zoning ordinances
Erogonous zonign is permissible!
The government may use zoning ordinances to regulate the location of adult bookstores and movie theaters.
Zoning Regulations
A land use (or zoning) regulation may limit the location or size of adult entertainment establishments if the regulation is designed to reduce the secondary effects of such businesses (for example, increased crime rates or decreased property values). However, regulations may not ban such establishments altogether.
A zoning ordinance prohibiting the location of adult bookstores and theaters in areas close to residential zones and restricting such theaters to a limited area of the city is permissible if it is designed to promote substantial government interests (e.g., property interests) and does not prohibit all such entertainment in the community.
Child Pornography
To protect minors from exploitation, the government may prohibit the sale or distribution of visual depictions of sexual conduct involving minors, even if the material would not be found obscene if it did not involve children.
Child pornography may be completely banned, even if not obscene. (To be child pornography, children must be used in production of the material.)
Compare—Simulated Pictures of Minors
The government may not bar visual material that only appears to depict minors engaged in sexually explicit conduct, but which actually uses young-looking adults or computer-generated images.
Sale to Minors
A state can adopt a specific definition of obscenity applying to materials sold to minors, even though the material might not be obscene in terms of an adult audience.
However, government may not prohibit the sale or distribution of material to adults merely because it is inappropriate for children.
private possession of obscene materials
The government may not punish private possession of obscene materials; but the government may punish private possession of child pornography.
Private possession of obscene material in the home cannot be punished (except for possession of child pornography). However, the protection does not extend outside the home.
The government may seize the assets of businesses convicted of violating obscenity laws
TRUE
Profane and indecent speech
Profane and indecent speech is generally protected by the First Amendment
i) Exception: over the broadcast media
ii) Exception: in schools
Seizures of Books and Films
Seizure of a single book or film may be made with a warrant based on probable cause. If the item is available for sale to the public, a police officer may purchase a book or film to use as evidence without a warrant. Large-scale seizures must be preceded by a full-scale adversary hearing and a judicial determination of obscenity.
f. Profane and Indecent Speech
Profane and indecent speech is generally protected by the First Amendment. But there are exceptions allowing for regulation of broadcast media and in schools.
g. Movie Censorship
The Court has found that time delays incident to censorship are less burdensome on movies than on other forms of expression. Thus, the government can establish censorship boards to screen movies before they are released, as long as the procedural safeguards discussed above are followed. (See 16.2., supra.)
Commercial Speech
As a general rule, commercial speech is afforded First Amendment protection if it is truthful.
a. Advertising for illegal activity, and false and deceptive ads are not protected by the First Amendment
b. True commercial speech that inherently risks deception can be prohibited
i. The government may prevent professionals from advertising or practicing under a trade name
ii. The government may prohibit attorney, in-person solicitation of clients for profit
iii. The government may not prohibit accountants from in- person solicitation of clients for profit
c. Other commercial speech can be regulated if intermediate scrutiny is met
d. Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative.
Commercial speech - False and Deceptive Speech or Illegal Activity
False and Deceptive Speech or Illegal Activity
The government can prohibit commercial speech that proposes unlawful activity or that is inherently misleading or fraudulent.
Commercial speech - Risk of Deception
Risk of Deception
True commercial speech that inherently risks deception can be prohibited. For example:
• The government may prevent professionals from advertising or practicing under a trade name
• The government may prohibit attorney, in-person solicitation of clients for profit
• The government may not prohibit accountants from soliciting clients in-person
Commercial speech -Other Commercial Speech
Other commercial speech can be regulated if intermediate scrutiny is met. Specifically, any other regulation of commercial speech will be upheld only if it:
• Serves a substantial government interest;
• Directly advances that interest; and
• Is narrowly tailored to serve that interest.
Commercial speech - Complete Bans
Complete bans on truthful advertisement of lawful products are very unlikely to be upheld due to a lack of tailoring.
Commercial speech - Required Disclosures
The government may require commercial advertisers to make disclosures if the disclosures are not unduly burdensome and they are reasonably related to the state’s interest in preventing deception.
Defamation and intentional infliction of emotional distress
.
Defamation - Public Officials, Public Figures, or Public Concern
If the defamatory statement is about a public official or public figure or involves a public concern, the First Amendment requires the plaintiff to prove all the elements of defamation plus falsity and some degree of fault.
If the plaintiff is a public official or public figure, that degree of fault is actual malice.
Actual malice will be found where the statement was made with knowledge that it was false or with reckless disregard as to whether it was false.
If the plaintiff is a public official or running for public office, the plaintiff can recover for defamation by proving…..
If the plaintiff is a public official or running for public office, the plaintiff can recover for defamation by proving falsity of the statement and actual malice, with CLEAR AND CONVICNING EVIDENCE.
If the plaintiff is a “public figure” the plaintiff can recover for defamation by proving….
If the plaintiff is a “public figure” the plaintiff can recover for defamation by proving falsity of the statement and actual malice
Piublic figure
those who thrust themselves into the limelight and who likely have access to media to respond to the attack.
Defamation - Private Figures and PUBLIC Concerns
If the plaintiff is a “private figure” and the matter is of “public concern,” that state may allow the plaintiff to recover compensatory damages for defamation by proving falsity and negligence by the defendant.
However, the plaintiff may recover presumed or punitive damages only by showing actual malice.
Defamation - Private Figures and Non-Public Concerns
If the plaintiff is a “private figure” and the matter is not of “public concern,” the plaintiff can recover presumed or punitive damages without showing actual malice.
SC never made standard for compensatory damages.
Matter of public concern
public has a legitamte concern.
Liability for intentional infliction of emotional distress for defamatory speech must….
Liability for intentional infliction of emotional distress for defamatory speech must meet the defamation standards and cannot exist for speech otherwise protected by the First Amendment
If the PLAINTIFF is PUBLIC OFFICIAL, what is the
LIABILITY STANDARD,
DAMAGES
, BURDEN OF PROOF?
LIABILITY STANDARD: Actual Malice
DAMAGES: Compensatory Presumed/Punitive
BURDEN OF PROOF: Plaintiff Must Prove Falsity
If the PLAINTIFF is PUBLIC FIGURE, what is the
LIABILITY STANDARD,
DAMAGES
, BURDEN OF PROOF?
LIABILITY STANDARD: Actual Malice
DAMAGES: Compensatory Presumed/Punitive
BURDEN OF PROOF: Plaintiff Must Prove Falsity
