Chapter 5 Flashcards
First Amendment
“Congress shall make no law…abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble, and to petition the Government for redress of grievances.”
A Little History
In the years immediately following the adoption of the Constitution, the U.S. government was weak and vulnerable.
The economy was in disarray, Europe continued to pose a threat, and the ruling Federalist Party was the target of much political criticism.
When times are peaceful, secure, and prosperous, governments rarely resort to measures that curtail civil liberties.
Be ever vigilant when the Government feels under siege or pressured – this is the time to protect individual freedoms.
In response, Congress passed one of the most restrictive laws in American History – The Sedition Act of 1798.
Sedition Act of 1798
Made it a crime to write, print, utter, or publish malicious material that would:
- Defame the federal government, the president, or the members of Congress; or,
- Bring them into disrepute or excite hatred of the people against them.
Violations of the Act were punishable by imprisonment of up to two years. The Act expired in 1801 – WITHOUT ANY COURT CHALLENGES TO ITS VALIDITY.
Modern Tests and Constitutional Guidelines
The contemporary Supreme Court has borrowed elements from several tests that arose out of the internal security cases but has not fully endorsed any single one.
The Court has placed a high priority on the First Amendment’s “expression rights”, recognizing the fundamental position those freedoms of expression hold in an open society.
However, expression can be regulated by the state.
The Government’s ability to regulate expression depends not only on the words uttered but also on the circumstances under which the expression takes place and whether the speech results in substantive evils that the government has the authority to prevent.
The degree of protection offered by the First Amendment varies according to:
the nature of the speech,
the place in which the expression occurs,
the interest the government has in restricting it, and
the kind of restrictions the government imposes.
The modern Supreme Court makes a stark distinction between Content-Based and Content-Neutral restrictions.
Content-Based Restrictions: Regulations that impose restrictions on speech based upon subject matter of the message conveyed.
- Content-Based restrictions carry a presumption of unconstitutionality.
- Government cannot restrict speech based on the message, the ideas, subject matter, or content.
- If government regulations are found to restrict content or are content-based, the regulations are subject to strict scrutiny.
Strict Scrutiny: The Government’s regulations and restrictions must be narrowly tailored to serve a compelling state interest; i.e., the law should impose the least restriction of expression necessary for the government to achieve its compelling goals.
- Example: Viewpoint discrimination – allow demonstrations against anything, but those against the war.
Content-Neutral Restrictions: These restrictions do not take into account the subject matter of the expression, or the viewpoint expressed.
Court takes a much more lenient position on content-neutral regulations: Permits governments to impose reasonable time, place, and manner restrictions; if they are narrowly tailored to serve a significant governmental interest.
- Example: City ordinance that prohibits all door-to-door solicitation between 8:00 PM and 8:00 AM – not dependent on the view point or what is being expressed – bans all such speech to protect the public’s need to rest – a compelling state interest.
Court’s general reasoning
Hierarchy of Expression: The highest levels of protection are accorded to speech that centers on political and social issues.
The Constitution allows for much greater regulation of less important speech such as advertising and commercial speech.
Some forms of speech are entirely unprotected by the Constitution – obscenity, libel, some forms of criminal speech (conspiracy, perjury and inciting violence).
Location of Expression: The setting in which the expression occurs is also relevant. The Court has designated four categories where expression might occur (highest to lowest protection):
Traditional Public Forum: Refers to streets, sidewalks, parks and other areas where the public freely congregates and traditionally exchanges views. Speech that occurs in such places is given a high level of constitutional protection.
Designated Public Forum: Refers to city auditoriums and public meeting rooms – usually dedicated to organizational activities and related expression, but are places where reasonable government regulation is necessary.
Limited Public Forum: Refers to places that the government has opened for a specific purpose. For example, a public university may have opened a forum for students to post comments about the food in the cafeteria – comments unrelated to the food in the cafeteria may be taken down.
Nonpublic Forum: Refers to government facilities that traditionally have not been locations for public discourse – jails, defense plants, polling places, nuclear facilities, etc., and private property that the owner hasn’t given consent.
Allowed Speech Regulation
Violence: Government has authority to protect citizens from personal injury. If expression takes a violent form or incites others to violence, the government may regulate it.
Property Damage: Government has a legitimate interest in protecting private and public property from being destroyed or damaged.
Criminal Speech: Some forms of expression are crimes in and of themselves. Giving military secrets to the enemy during a time of war, expression that amounts to conspiracy to commit a crime or to violate the law, or lying under oath.
Encroaching on the Rights of Others: Freedom of expression does not provide a license to infringe on the rights of others. For example, blocking the entrance to a public place.
Burdens on Government Functions: Regulation is permissible if expression places a burden on a legitimate government function. For example, protestors lying down to block a bulldozer from doing its work to create a dam being built by the U.S. Army Corps of Engineers.
Trespass: Freedom of expression does not include the right to speak anywhere one wishes. Proper time, place, and manner restrictions are allowed.
Restraints on Government Regulation of Speech
Appropriate Purpose: Any government restriction on freedom of expression must have a clearly defined, valid governmental purpose. In some areas the Court has demanded that the government’s purpose be legitimate, in others a higher standard of a substantial and compelling interest.
Prior Restraint: Government may prosecute individuals who violate legitimate restrictions on expression (anti-espionage laws, laws against possessing certain secret materials, laws against disseminating such materials, laws against inciting violence) but, absent some extraordinary circumstances, may not intervene before the fact to prevent the speaker from expressing. For example, government may not ask a speaker for a copy of his speech before he gives it to prevent disclosure of secret materials, but may prosecute him for doing so.
Overly Broad: Any governmental regulation of expression must be narrowly tailored to meet the government’s objectives. Cannot be overly broach and must not go beyond what is necessary to deal with the legitimate governmental interest.
Vagueness: Laws restricting freedom of expression but be drafted with sufficient precision to give fair notice as to what is being regulated. If normally intelligent people have to guess about what is covered and are likely to come to different conclusions about what is prohibited, the statue is unconstitutionally vague.
Chilling Effect: A law intending to regulate certain forms of illegitimate expression cannot be written so as to make people fearful of engaging in legitimate activity.
6 Ways Speech is Regulated
Symbolic speech
Public forums
Hate speech
The right not to speak
Commercial speech
Freedom of association
U.S. v. O’Brien (1968)
Relevant Case Facts:
O’Brien and several others burned their draft cards on the steps of a South Boston courthouse. O’Brien was arrested and charged with violating the 1965 amendment to the Selective Service Act which made it illegal to “destroy or mutilate” draft cards.
Legal Question:
Does the anti-draft portion of the Selective Service Act violate the First Amendment of the constitution?
Holding:
No. By a vote of 7-1 the Court ruled in favor of the U.S.
Reasoning:
1. We cannot accept the view that a limitless variety of conduct will be considered speech, whenever the person intends to express an idea. It does not follow that the destruction of draft cards is a constitutionally protected activity.
2. We have held that when speech and non-speech elements are combined in the same course of conduct, a sufficiently important govt. interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms.
3. Governmental regulation is sufficiently justified if it is within the constitutional power of the government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
4. Draft cards serve a purpose such that if they are destroyed the purpose would be defeated. These include the fact that the card serves as proof of registration, that it fosters communication with the draft board, that it reminds you of a change of address, and helps fight forgery. These functions all suggest Congress has a legitimate interest in protecting the cards.
Texas v. Johnson (1989)
Relevant Case Facts:
During the 1984 Republican National Convention in Dallas protesters assembled outside. One of the protestors was Gregory Johnson who unfurled an American flag, doused it in kerosene, and set it on fire. Johnson was arrested and charged with violating the Texas flag desecration law. He was convicted and sentenced to one year in prison and a $2000 fine.
Legal Question:
Does a state law that prohibits the burning of the American Flag violate the First Amendment freedom of expression?
Holding:
Yes. By a vote of 5-4 the Court ruled in favor of Johnson.
Reasoning:
1. We must first determine if Johnson’s conduct is to be considered expressive conduct, allowing him to invoke the 1st amendment. If it was expressive, then need to decide if the state’s regulation is related to the suppression of free expression. If the state’s regulation is unrelated to expression, then the less stringent standard of U.S. v. O’Brien (for regulations of non-communicative conduct) controls. If it is related to expression, then Court outside of O’Brien’s test. It could also be that there is no state interest in flag burning.
2. Long recognized that speech includes more than just the spoken or written word. The test we use is whether an intent to convey a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it. It should be no surprise that we can identify an expressive element in the conduct here. Indeed. Johnson’s conduct was “sufficiently imbued with elements of communication” to implicate the 1st Amendment. The context here was key.
3. We have limited the O’Brien test to those cases in which “the governmental interest is unrelated to the suppression of free expression.” In so doing, we have highlighted the requirement that the governmental interest in question be unconnected to expression in order to come under O’Brien’s less demanding rule. If we find no state interest is implicated then need not ask whether O’Brien applies. The state argues that its interest is in preventing breaches of the peace and preserving the flag as a national symbol. The first argument is not implicated by the facts, and the second is related to the suppression of expression.
4. Johnson’s conduct also does not fall within that small class of fighting words. Thus, the state’s interest in maintaining order is not implicated by the facts.
5. The state then asserts that it has an interest in preserving the flag as a symbol of national unity. To assess this argument we subject it to the most exacting scrutiny. The bedrock principle underlying the First Amendment is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Nothing in our precedents suggests that a state may foster its own view of the flag by prohibiting expressive conduct relating to it.
Dissent (Rehnquist, White, O’Connor):
Public burning of the flag was no essential part of any exposition of ideas and at the same time had the tendency to incite a breach of the peace. Thus in no way can it be said that Texas is punishing Johnson because the hearers of his message were opposed to it. Rather, it was his particular symbol for which he was punished.
Chaplinsky v. New Hampshire (1942)
Relevant Case Facts:
Jehovah’s Witness member Walter Chaplinsky was selling material on a public street when he was attacked by a mob. The police arrived and handcuffed Chaplinsky. He then demanded to know why he was being arrested. After one of the officers told Chaplinsky to “shut up you damn bastard,” Chaplinsky called the officer a “damned fascist and a God damned racketeer.” For those words he was charged with breaking a law prohibiting the use of “any offensive, derisive, or annoying word to any other person who is lawfully in the street.”
Legal Question:
Does a state law which prohibits the use of offensive words to someone on the street violate the First Amendment right to freedom of speech?
Holding:
No. By a vote of 9-0 the Court ruled in favor of New Hampshire.
Reasoning:
1. The right of free speech is not absolute at all times and under all circumstances. Certain well defined types of speech can be regulated. These include the lewd and obscene, the profane and the libelous, and insulting or fighting words. Such utterances are no essential part to the exposition of ideas, and are of such little social value that the social interest in order and morality outweighs the right to use them indiscriminately.
2. The test that should be employed is whether men of common intelligence would understand as words likely to cause an average addressee to fight. The statute here does no more than prohibit face-to-face words plainly likely to cause a breach of peace by the addressee.
3. We are unable to say that the limited nature of the statute contravenes the Constitutional right of free expression. It is narrowly drawn an limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace.
Cohen v. California (1971)
Relevant Case Facts:
Someone wrote Fuck the Draft and Stop the War on Cohen’s jacket. The next day he entered a Los Angeles county courthouse with the jacket on, and knowing the message was there. Although Cohen removed the coat before he entered a courtroom a police sergeant had noticed it in the corridor. The officer asked the judge to hold Cohen in contempt, but the judge would not do so. The officer then arrested Cohen for “willfully and unlawfully and maliciously disturbing the peace and quiet by engaging in tumultuous and offensive conduct.”
Legal Question:
Does the First Amendment protect a person’s right to were a political statement on his clothing that includes obscene language?
Holding:
Yes. By a vote of 5-4 the Court ruled in favor of Cohen.
Ruling:
1. The only “conduct” which the state sought to punish was the fact of communication. The conviction rested solely upon “speech,” not upon any separately identifiable conduct.
2. The conviction here rests squarely upon his exercise of freedom of speech protected from arbitrary governmental interference by the Constitution and can be justified, if at all, only as a valid regulation of the manner in which he exercised that freedom, not as a permissible prohibition on the substantive message it conveys.
3. This is not an obscenity case, as the words used here will not conjure up psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket. The state can also prohibit fighting words, but these words do not fall in this class. In this case, the words on the jacket were not employed in a personally provocative manner—the words could not be construed as a direct personal insult. This is also not an instance where the speaker was trying to intentionally provoke a given group to hostile reaction.
4. The state argues that the expression here was thrust on unwilling viewers and it therefore has a legitimate interest to protect the sensitive from exposure to this form of protest. However, we are often captives outside the sanctuary of the home and subject to objectionable speech.
Public Forum and Abortion Protest.
Madsen v. Women’s Health Center Inc. (1994)
Upheld an injunction against protests within 36 feet of a clinic.
Upheld noise restrictions.
Struck down ban on protests within 300 feet of clinics.
Test: Does the provision of an injunction burden no more speech than is necessary to serve a legitimate governmental interest?
Hill v. Colorado (2000)
Relevant Case Facts:
Colorado passed a law placing restrictions on protestors within a radius of 100 feet of the entrance to any health care facility. Within this zone the law prohibited anyone from approaching, within eight feet of another person, without that person’s consent for the purpose of distributing literature, displaying a sign, or engaging in oral protest, education, or counseling. Violation of the law was punishable with a $50–$750 fine and up to six months’ imprisonment. Hill claims the law violates the First and Fourteenth Amendments on their face, and prohibits constitutionally protected speech in a public forum.
Legal Question:
Does a law which prohibits someone from approaching another person for the purposes of protest, education, or counseling violate the right to free speech in the 1st and 14th Amendments?
Holding:
No. By a vote of 6-3 the Court ruled in favor of Colorado.
Reasoning:
1. The first amendment interest of the petitioners is clear. First, they accurately explain that the areas protected by the law encompass all public ways within 100 feet of the entrance of every health care facility everywhere. Second, the communication is protected speech even if it offensive to their recipients. Third, sidewalks are the quintessential public forums. Finally, the ability to distribute leaflets is clearly lessened by the statute.
2. At the same time the state has the police power to protect the health and safety of its citizens. Additionally, this law only deals with the regulation of speakers who want to address an unwilling audience rather than speakers generally. Indeed, the protection of offensive messages does not always embrace offensive speech so intrusive that an unwilling audience cannot avoid it.
3. We have recognized the right to persuade, yet we continue to maintain that no one has a right to press even good ideas on an unwilling participant. It is this right of passage without obstruction that the state legislature sought to protect here.
4. The regulation here is simply a content neutral time, place, and manner regulation.
McCullen v. Coakley (2014)
Relevant Case Facts:
In 2007, Massachusetts amended its Reproductive Health Care Facilities Act. The amended version of the Act made it a crime knowingly to stand on a “public way or sidewalk” within thirty-five feet of an entrance or driveway to any “reproductive health care facility,” defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” (The original version of the law created six-foot no-approach zones within the eighteen-foot area.) Exempted from the 2007 act were four classes of individuals, including “employees or agents of such facility acting within the scope of their employment.” Another provision of the Act proscribed the knowing obstruction of access to an abortion clinic. McCullen, engaged in pro-life sidewalk counseling of those entering abortion clinics, and other pro-life activists sued the Massachusetts Attorney General Martha Coakley claiming the law violates the First Amendment and asking that the state be enjoined from enforcing it.
Legal Question:
Is the Massachusetts law content neutral, narrowly tailored, and written so that it leaves alternative channels of communication?
Holding:
No. The Chief Justice wrote for a unanimous Court.
Reasoning:
1. The Massachusetts Act regulates access to “public way[s]” and “sidewalk[s].” Such areas occupy a “special position in terms of First Amendment protection” because of their historic role as sites for discussion and debate. United States v. Grace (1983).
2. Consistent with the traditionally open character of public streets and sidewalks, we have held that the government’s ability to restrict speech in such locations is “very limited.” In particular, the guiding First Amendment principle that the “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content” applies with full force in a traditional public forum.
3. Even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information. While the parties agree that this test supplies the proper framework for assessing the constitutionality of the Massachusetts Act, they disagree about whether the Act satisfies the test’s three requirements.
4. Even though the Act is content neutral, it still must be “narrowly tailored to serve a significant governmental interest.” Ward [v. Rock Against Racism (1989)].
5. Here, the buffer zones impose serious burdens on petitioners’ speech. At each of the three Planned Parenthood clinics where petitioners attempt to counsel patients, the zones carve out a significant portion of the adjacent public sidewalks, pushing petitioners well back from the clinics’ entrances and driveways. The zones thereby compromise petitioners’ ability to initiate the close, personal conversations that they view as essential to “sidewalk counseling.”
