Categories of Semi-Protected Speech Flashcards
Wholly Unproscribable Speech (Burden is on the Plaintiff)
Speech which may be bad but still gets First Amendment protections.
Examples:
Hate Speech
Commercial Speech
First Amendment Protected Commercial Speech only relates to “lawful activity that is not misleading.”
SOR - Intermediate scrutiny. Although, there is a movement to give additional protection to wholly proscribable speech, which would place the burden on the government to pass strict scrutiny.
History of Commercial Speech Regulations
Valentine v. Chrestensen – commercial speech gets no protection because the government is free to regulate the economy. Can’t mix it with political messages to evade regulation.
Rationale – Retreat from Lochner era – deferential to legislature for economic issues.
After Roe – Court held that the government cannot restrict abortion-provider’s ability to advertise their services. Eventually expanded to protecting bodily autonomy in the prescription advertisement case.
Current Commercial Speech Regulation Test - SUNY v. Fox
COMMERCIAL SPEECH PROPOSES A COMMERCIAL TRANSACTION AND GETS INTERMEDIATE SCRUTINY
Determine whether commercial speech is present: the definition is any speech that proposes a commercial transaction. Even if mixed with other speech.
Once commercial speech is present, the test for a government restriction on it asks:
1) Whether the speech is MISLEADING or FALSE. If so, it is fraud and unprotected.
2) If that speech is not false, ask if the concerted government INTEREST is SUBSTANTIAL (i.e. intermediate scrutiny).
3) If it is lawful and not misleading and gov has substantial interest, does the regulation DIRECTLY ADVANCE the government interest and
4) is it NOT MORE EXTENSIVE THAN NECESSARY to achieve that interest? If so, the restriction is legit.
“Not more extensive than necessary” sounds like SS but it’s not. It just means “not substantially broader than necessary” in other words, a pretty good fit. It can be a little overinclusive.
The burden is on the gov for all these questions, like to show substantial interest and that the rule is not broader than necessary.
Example of Commercial Speech that can be banned: Drug Adverts with Pricing.
Grey Areas of Commercial Speech
Issues Ads - I.e., PhRMA trying to talk about the great work the pharmaceutical industry has done in the recent past. Ostensibly its not related to a commercial transaction even if that’s the logical outcome and benefit.
Speech as an Employee -
Connick v. Myers & Garcetti v. Ceballos
Connick - Employees whose speech does not relate to a matter of public concern, do not obtain First Amendment Protections. If Prof. A starts talking shit about Prof. B, he gets no First Amendment protections.
Garcetti - Employees get no First Amendment protections when they speak in their capacity as an employee and that speech was required by their job duties. I.e., The White House Press Officer can be fired for not saying what the President tells her to say. Rationale: the gov is hiring you to do a job and if speech is part of that job, then they are basically firing you for not doing your job (which includes speech).
Flowchart for Government Employee Speech - Threshold Question
Is the speech within the scope of your employment (job-performing speech)? This is determined by conducting a facts and circumstances test - (i.e., look at the situation as a whole to determine if it implicates an issue arising out of employment).
Any issue arising out of job-performing speech gets zero protection.
Option 1) Government Employee Speech - Speech Not In Performance of Their Job Duties (I.e., as a citizen)
If an individual is speaking and it is not job-performing speech, and the speech is neither INCITEMENT, FIGHTING WORDS, or a THREAT, then it’s in their private capacity and the employee might get some 1A protection.
Option 2) Government Employee Speech - Job-Performing Speech (I.e., as an employee)
Is the private capacity speech addressing a matter of PUBLIC or PRIVATE concern:
1) If private, there is no protection.
2) If public (a matter of public concern), apply the Pickering Balancing Test.
Determining What is a “Public Concern”
The key to a public concern is that it would be a SUBJECT OF LEGITIMATE NEWS INTEREST. Not a moral, but an empirical question!
The lady in Connick was complaining about getting transferred and most of her poll complaints were private concerns (omg, Joe is a meanie). However 1 of her poll questions addressed a public concern issue (fraud, competence, corruption of District Attorney etc).
City of San Diego Case: the question is not - when he spoke, was that event newsworthy? That’s too meta. Rather, the question is whether the thing the employee spoke about that got him adversely affected was itself newsworthy (and therefore a matter of public concern).
The cop in the San Diego case was not speaking about anything newsworthy because him being jacking off is not newsworthy, therefore it is not a matter of public concern. This is despite the fact that we might colloquially call that event “newsworthy” because it was a cop doing it and may reflect poorly on the police etc etc.
What happens if someone is testifying? - This is unanswered. Some gov employees have the job to testify, like cops, so that’s arguably job-performing speech. But this is debatable.
Pickering Balancing Test:
Test - An issue receives First Amendment protection by weighing:
1) the employee’s interest in speaking on a matter of public concern and the public’s interest in hearing it;
against
2) the government’s interest in running an efficient workplace.
How do we weigh the Pickering Balancing Test sides?
This is an apples to oranges comparison.
But view #1 through a common sense lens and consider how important the employee’s interest is and how much the public would care about it.
View #2 through the lens of: is the employee’s speech, despite being on a matter of public concern and non-job-performing, corrosive to the workplace? Does it make him worse at his job? Think of the teacher in Pickering but twist the facts such that he wrote a scathing critique of his supervisor. That would be corrosive and probably turn the balancing test against him.
Rationale for Job-Performing Speech Rule
Basic Rule: Job-Performing Speech of public employees is not protected by First Amendment.
Rationales:
1) Administrability
2) Gov gets the speech it’s paying for
Austin’s Flowchart for Government Employee Speech
Threshold Question:
Is the speech within the scope of your employment (job-performing speech)?
Determined by conducting a facts and circumstances test - (i.e., look at the situation as a whole to determine if it implicates an issue arising out of employment).
…If YES, you get ZERO protection.
…If NO it is not job-performing speech, then ask, is the speech INCITEMENT, FIGHTING WORDS, or a THREAT.
…/… If NO, then it’s in their private capacity and the employee might get some 1A protection.
…/…/…Is the private capacity speech addressing a matter of PUBLIC or PRIVATE concern?
…/…/…If private, there is no protection.
…/…/…If public (a matter of public concern), apply the Pickering Balancing Test.
Pickering Balancing Test:
Weigh 1) the employee’s interest in speaking on a matter of public concern and the public’s interest in hearing it vs. 2) the government’s interest in running an efficient workplace.
