Con Law - Speech Related Topics Flashcards
When the government relies on private parties to relay a particular message:
The government speech doctrine even extends to when the government receives private assistance in helping deliver a government controlled message.
The First Amendment did not prohibit the compelled fee of advertisements promoting the sale of beef because the underlying message of the advertisements was “effectively controlled” by the government.
Why?
Because compelled funding of government speech does not raise 1st A concern and therefore the government could not be sued.
Government speech doctrine
What does it mean?
The government is entitled to say what it wishes and to select views that it wants to express.
When the government speaks, the government is not barred by the Free Speech Clause of the First Amendment from determining the content of what it says and can engage in viewpoint discrimination.
The following First Amendment challenges have been rejected by SCOTUS relying on the government speech doctrine:
(1) regulations prohibiting recipients of government funds from advocating, counseling, or referring patients for abortion;
(2) disciplinary actions taken as a result of statements made by public employees pursuant to their official duties;
(3) mandatory assessments made against cattle merchants when used to fund advertisements whose message was controlled by the government;
(4) a city’s decision to reject a monument for placement in a public park; and
(5) a state’s decision to reject a design for a specialty license plate for an automobile.
Are trademarks government speech?
No, why?
unlike license plates, states do not historically use trademarks to convey government messages and the public does not closely identify license plate designs with the state and the government does not maintain effective control over the messages conveyed in trademarks
What is the test for government speech?
(1) states historically use this function to convey a government message;
(2) the public closely identifies the thing (monument, license plates) with the state;
and
(3) the state maintains “effective-direct” control over the messages conveyed
Public colleges & free speech clause
“limited open [public] forum” principles apply to public high schools
Why? Public colleges may not be required to open its facilities generally for use by student groups.
BUT once it has done so it must justify any discrimination and exclusions under applicable constitutional norms, such as those developed under the public forum doctrine.
Distinguish between —- sworn testimony by a public employee
wholly unprotected “employee speech” and quasi-protected “citizen speech” (Pickering-Connick balancing test is applied if citizen speech)
- Sworn testimony by a subpoenaed public employee made outside the scope of his ordinary job duties is to be treated as speech by a citizen.
WHAT TEST IS APPLIED?
- Pickering-Connick balancing test.
However, it is public employee speech if it is limited to speech made in accordance with an employee’s official job duties and does not extend to speech that merely concerns information learned during that employment.
Government as Employer: Free Expression
Public employee speech
There is no protection—Pickering balancing is not to be applied— when public employees make statements pursuant to their official duties, even if those statements are about matters of public concern.
Example: a deputy district attorney had presented his supervisor with a memo expressing his concern that an affidavit that the office had used to obtain a search warrant contained serious misrepresentations.
Versus:
Another employee in the office, with different duties, might have had a First Amendment right to utter the speech in question, and the deputy district attorney himself might have had a First Amendment right to communicate the information that he had in a letter to the editor of a newspaper. In these two instances, a court would apply Pickering balancing.
If the speech (1) relates to a matter of public concern and (2) was made by an employee pursuant to his official job duties – Pickering’s balancing test is applied, with the governmental interests in efficiency, workplace harmony, and the satisfactory performance of the employee’s duties balanced against the employee’s First Amendment rights.
Government as Employer: Free Expression
Does the termination of independent government contractor, presumably as a result of his criticisms, constitute a violation of his First Amendment freedom of speech?
This is like a trash collector for the state.
Yes, the First Amendment’s guarantee of freedom of speech shielded the independent government contractor, as a government employee, from termination due to things he might have said about the government (state, commissioner, mayor).
Government as Educator —
This is the case where:
High school principals had banned the wearing of black armbands by students in school as a symbol of protest against United States’ actions in Vietnam.
What is the test applied and rationale?
Restriction on expression by school authorities is only permissible to prevent disruption of educational discipline.
In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.
Why? because there was no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school the prohibition cannot be sustained.
Government as Regulator of the Electoral Process: Elections and Referendums. —
General rule: The government is not permitted to bar or penalize political speech directly.
- A state cannot make a law that prohibits candidates for judicial election from announcing their views on disputed legal and political issues.
- A state cannot make a law that prohibits candidates from offering material benefits to voters in consideration for their votes.
- A state cannot make a law that prohibits official governing bodies of political parties from endorsing or opposing candidates in primary elections.
- Congress can impose a regulation that: imposes limitations on contributions to political campaigns, as well as disclosure of most contributions and expenditures.
BUT Congress cannot impose regulation limitations on expenditures because it implicates fundamental First Amendment interests.
example: Congress makes a law restricting the aggregate expenditure anyone could make to advocate the election or defeat of a “clearly identified candidate” to $1,000 a year.
prohibiting solicitation of votes and distribution of campaign literature within 100 feet of the entrance to a polling place; plurality found a “compelling” interest in preventing voter intimidation and election fraud).
- Congress can impose a regulation that: imposes limitations on contributions to political campaigns, as well as disclosure of most contributions and expenditures.
BUT Congress cannot impose regulation limitations on expenditures because it implicates fundamental First Amendment interests.
- The government cannot make a law that places limitations upon the amount of funds a candidate could spend out of his own resources or those of his immediate family because a candidate, has a First Amendment right to advocate.
- The government may not limit the amount that a candidate may spend out of his own resources.
- The government may not penalize the candidate by authorizing the candidate’s opponent to receive individual contributions at higher than the normal limit.
What does this mean: the limits on the amount an individual can give in one campaign cycle.
This provision is unconstitutional: a provision that limited independent political committees to expenditures of no more than $1,000 to further the election of any presidential candidate who received public funding.
“clearly identified candidate”
Whether the government violates the First Amendment rights of a candidate running a privately funded campaign when it provides public “equalization” funds to opposition candidates?
A state law that said - a State voluntary public financing system which granted an initial allotment to the campaigns of candidates for state office who agreed to certain requirements and limitations. In addition, matching funds were made available to the campaign if the expenditures of a privately financed opposing candidate, combined with the expenditures of any independent groups supporting that opposing candidacy, exceeded the campaign’s initial allotment.
Unconstitutional, the matching funds scheme violated the First Amendment therefore is Unconstitutional, because
the matching funds provision substantially burdened the speech of privately financed candidates and independent expenditure groups without serving a compelling state interest.
Citizen initiative -
When a state has a citizen’s initiative process - the state practices an initiative-petition process in which citizens can make laws directly through balloting initiatives.
Acting on behalf of ballot petitioners, the American Constitutional Law Foundation (Foundation) challenged the constitutionality of six limitations imposed by STATE on the petitioning process.
Did the State’s LIMITATIONS of: [imposition of name, badge, and financial disclosure requirements, on initiative-petition proponents and their circulators], violate the First Amendment’s freedom of speech protections?
Unconstitutional
Yes, the name, badge, and disclosure requirements to be unconstitutional. Weighing the states need to protect the integrity of the initiative-petition process against the burdens that its guidelines placed on political expression, the Court found that the latter outweighed the former.
State statute/requirement:
If a state statute requires [ballot-initiative proponents, if they pay circulators, to file reports disclosing circulators’ names and addresses and the total amount paid to each circulator].
Limitations:
The second required [paid circulators to wear identification badges with their names, status as “volunteer” or “paid,” and if the latter then their employer’s phone number].
The third required [initiative proponents to report names, addresses, and registration voting counties for all paid circulators, as well as salary per petition signature, and each circulator’s total salary. Proponents also had to report, on a monthly basis, all proponent names, names and addresses of circulators, circulators’ monthly salary and debt totals, and the name of each proposed ballot measure].
Unconstitutional
However, a requirement that each circulator submit an affidavit setting out, among several particulars, his or her name and address is okay.
A city council passed an ordinance providing: “No person may contribute more than $100 annually to any group organized for the specific purpose of supporting or opposing referenda to be voted on by the city electorate or regularly engaging in such activities.”
The federal court should strike the law as unconstitutional, because it violates First Amendment rights of Free Speech and Freedom of Association
The first statute prohibits ‘‘all speech making, picketing, and public gatherings of every sort on the Capitol steps in front of the main entryway between 7:45 a.m.– 8:15 a.m., 11:45 a.m.– 12:15 p.m., 12:45 p.m.– 1:15 p.m., and 4:45 p.m.– 5:15 p.m., on Capitol working days.’’
If the owner is prosecuted under the ‘‘Capitol steps’’ statute and defends on constitutional grounds, which of the following best describes the proper burden of proof?
ANSWER:
The state would have to prove that it had a compelling need for this statute and that there were no less restrictive means by which it could satisfy that need.
When the law places a restriction on speech in a public place.
To avoid strict scrutiny and be upheld, government regulations on speech and assembly in public forums must be content neutral and narrowly tailored to serve an important government interest and must leave open alternative channels of communication.
The law limits the First Amendment, the fundamental right to free speech in a public place — the capitol steps.
What is the level of scrutiny and the party on which the burden of proof is placed?
The right to such speech is not absolute; it can be limited, for instance, by valid “time, place, and manner” regulations.
In order to be valid as such a regulation:
- The law must be neutral as to the content of the speech;
- It must further a significant government interest that is not capable of accomplishment by less restrictive means; and
- There must be alternative media of communication available.
When regulation is content-neutral, the Court applies intermediate scrutiny.
Content-neutral means: the government is regulating expression for reasons unrelated to the speech’s communicative content.
Burden: on the government
Intermediate scrutiny applied —
The regulation must: 1) be narrowly tailored to serve a significant government interest; and 2) leave open alternative channels for communication of the information.
Question:
The burning of money is expressive conduct protected by the First Amendment, because the speaker intends the burning to communicate a message, and in context the audience is likely to receive the message.
The speaker is convicted of violating a local ordinance against starting an open fire in a public place without a permit from the fire department.
What is the level of scrutiny and the party on which the burden of proof is placed? Intermediate and the burden is on the government.
How should the court rule?
ANSWER:
The ordinance is constitutional, because it is narrowly tailored to further a significant government interest that is unrelated to the suppression of free expression, and individuals have other ways of communicating their messages.
When is a regulation overbroad?
A regulation is overbroad when it restricts substantially more speech than the First Amendment allows to be restricted.
Time, place, and manner regulations
Example 1: The law limits the First Amendment, the fundamental right to free speech in a public place — the capitol steps.
Speech not expressive conduct, and the statute prohibits “all speech making, picketing, and public gatherings of every sort on the Capitol steps in front of the main entryway between certain times, on Capital working days”
Example 2: A speaker at a rally in a public park argued about a Federal Law and the speaker set fire to a pile of money. Expressive conduct, and the ordinance prohibits starting an open fire in a public place without a permit.
The burning of money is expressive conduct protected by the First Amendment, because the speaker intends the burning to communicate a message, and in context the audience is likely to receive the message.
Difference in question type example 1 and example 2:
example 1 - is not content neutral.
The question asks for the burden of proof and level of scrutiny. The answer choice states: the state would have to prove that it has a “compelling need” and that there are no less restrictive means by which it could satisfy that need.
example 2: the general rule for evaluating time, place, and manner regulations.
Commercial Speech test:
If the speech regulated concerns a lawful activity and is not misleading or fraudulent, the regulation will be valid if it (i) serves a substantial government interest, (ii) directly advances the interest, and (iii) is narrowly tailored to serve the substantial interest.
The test does not require that the least restrictive means be used, there must be a reasonable fit between the legislation’s end and the means chosen
