Constitutional Law - FIRST AMENDMENT (part I) Speech Regulation

Question 1

General Rules pertaining to the Constitution’s protection of Free Speech

Answer 1

The First Amendment prohibits Congress from abridging the Freedom of Speech

In general, a regulation seeking to forbid communication of specific ideas (i.e CONTENT regulation) is LESS likely to be upheld than a regulation of CONDUCT incidental to speech

Major Categories:
Content-based regulations
content-neutral regulations

Question 2

CONTENT-BASED REGULATION

Answer 2

CONTENT-based restrictions on speech generally must meet STRICT SCRUTINY.
–That is, it is presumptively unconstitutional for the govt to place burdens on speech because of its content (must show that the reg or tax is NECESSARY to achieve a COMPELLING state interest)

CONTENT-BASED RESTRICTIONS - 2 kinds

(1) SUBJECT MATTER restrictions
- –e.g.judicial candidates get to speak, they cannot be restricted fro discussing certain issues - held unconstitutional under Strict Scrutiny
- –e.g.2 - state may NOT prohibit sale or rental of violent video games to minors
- -Note: ct has refused to add “violence” to areas of unprotected speech

(2) VIEWPOINT restrictions - application of the law depends on the ideology of the speech
- e.g. city says “pro-war” demonstrations are allowed in a park but not anti-war demonstrations - viewpoint based and fails strict scrutiny

Question 3

CONTENT NEUTRAL REGULATION

Answer 3

CONTENT NEUTRAL laws burdening speech generally need only meet INTERMEDIATE SCRUTINY -

ie regulation will be upheld if govt can show

(i) they advance IMPORTANT interests unrelated to the suppression of speech and
(ii) they do not burden SUBSTANTIALLY MORE SPEECH than NECESSARY to further those interests
e. g. City Ordinance prohibits ALL parades in a city park, no matter what the subject of the parade - this is CONTENT NEUTRAL and so it must meet INTERMEDIATE SCRUTINY

Question 4

PRIOR RESTRAINTS

Answer 4

Prior Restraints stop speech BEFORE it occurs

Court orders suppressing speech must meet STRICT SCRUTINY

BUT 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

Gag orders on the press to prevent prejudicial PRE-TRIAL PUBLICITY are NOT ALLEWED - it will be found unconstitutional, but again, press must comply at first or can’t challenge it

Question 5

LICENSES FOR SPEECH

Answer 5

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.

In addition, there must be PROCEDURAL SAFE-GUARDS such as prompt determination of requests for licenses and judicial review of license denials

Question 6

VAGUENESS

Answer 6

VAGUENESS - A law is unconstitutional if a reasonable person cannot tell what speech is prohibited and what is allowed

e.g. city law prohibiting sale of any book or magazine “tending to corrupt the morals of youth” held VIOD FOR VAGUENESS

Question 7

OVERBREADTH

Answer 7

OVERBREADTH - A law is unconstitutionally overbroad if it regulates SUBSTANTIALLY MORE SPEECH than the constitution allows to be regulated

e.g. “all live entertainment prohibited” used to shut down a nude dancing club – Sup Ct. says although nude dancing may or may not be protected, this law bars a bunch of stuff that IS protected - like concerts and plays, so it is UNCONSTITUTIONALLY OVERBROAD

Question 8

FIGHTING WORDS

Answer 8

Fighting words are not protected speech

but statutes attempt to punish the use of such words are often found to be VOID FOR VAGUENESS because it is difficult to describe what constitute “fighting words”

Question 9

SYMBOLIC SPEECH

Answer 9

The government may 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 goal

Specifically rulings

(1) Flag Burning is constitutionally protected speech
(2) Draft Card Burning is NOT protected, bc in case of ntnl emergency, govt needs to be able to get you
(3) Nude Dancing is NOT PROTECTED
(4) Burning a Cross IS protected UNLESS it is done with the purpose of threatening or intimidating
(5) Limits on election campaign contributions ARE allowed, but not limits on expenditures to get someone elected

Question 10

Contribution Limits on Election Campaigns

Answer 10

Contribution Limits in Election Campaigns ARE ALLOWED

BUT Expenditure Limits in Campaigns NOT ALLOWED

So the Government CANNOT limit the amount a person spends to get a candidate elected, as long as the expenditures are independent of the candidate and are not disguised contributions (Citizens United)

Thus, Corporations, Unions and Other Entities may spend whatever they wish to get a candidate elected

Question 11

ANONYMOUS SPEECH

Answer 11

Anonymous Speech IS PROTECTED by the First Amendment

A state’s interest in promoting transparency and accountability in elections IS SUFFICIENT to justify PUBLIC DISCLOSURE of the names and addresses of persons who sign a ballot petition

Question 12

GOVERNMENT SPEECH

Answer 12

Speech by the govt cannot be challenged as violating the First Amendment; generally govt speech and govt funding of speech will be upheld as long as it is RATIONALLY RELATED to a LEGITIMATE STATE INTEREST

ie govt speech gets rational basis review

but can’t run afoul of Establishment Clause or Equal Protection

Question 13

UNPROTECTED FORMS OF SPEECH

Answer 13

(1) INCITEMENT OF ILLEGAL ACTIVITY

(2) OBSCENITY

Question 14

INCITEMENT OF ILLEGAL ACTIVITY

Answer 14

(1) INCITEMENT OF ILLEGAL ACTIVITY - unprotected by 1st Amendment

Modern Test – govt may punish speech if there is a SUBSTANTIAL LIKELIHOOD of IMMINENT ILLEGAL ACTIVITY and if the speech is directed to causing IMMINENT ILLEGALITY

Question 15

OBSCENITY and sexually-oriented speech

Answer 15

OBSCENITY is unprotected speech

The test (PPL-Alps)
(i) the material must appeal to the PRURIENT INTEREST, or a "shameful or morbid interest in sex."

(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 as determined by a NATIONAL STANDARD

govt may use zoning ordinances to regulate the number or location of adult bookstores and movie theaters

Child Pornography may be completely banned, even if not obscene.
(to be child pornography, children must be used in PRODUCTION of the material)

Govt MAY NOT punish private possession of obscene materials; but the govt may punish private possession of CHILD PORNOGRAPHY

Govt May seize the assets of businesses convicted of violating OBSCENITY laws - can seize ALL assets even if only a few were obscene

Question 16

PROFANE AND INDECENT speech

Answer 16

Profane and Indecent Speech is generally protected by the First Amendment
-e.g. jacket said “Fuck the Draft”and guy was convicted of disturbing the peach, overturned by Sup Ct.

EXCEPTION: Free, over-the-air broadcast media (ie television and radio)

• e.g. George Carlin case (FCC v. Pacifica). Sup Ct. said can’t do it, radio is UNIQUELY INTRUSIVE into the home (kids can hear it)
• note: cable and satellite radio are different bc have a choice about letting that into your home (have to subscribe)

EXCEPTION: SCHOOLS
-e.g. Matthew Frazier case, gave speech at school assembly with sexual innuendo and was suspended from speaking at graduation. Sup Ct. said schools CAN punish profane and indecent speech, have an interest in teaching CIVILIZED DISCOURSE

Question 17

COMMERCIAL SPEECH

Answer 17

COMMERCIAL SPEECH - generally, regulation must meet INTERMEDIATE SCRUTINY - that is, Govt regulation of commercial speech must be NARROWLY TAILORED, but it does not need to be the LEAST RESTRICTIVE Alternative

e.g. NY dorm prohibited solicitors in state universities - solicitors objected saying not least restrictive means for safety of students, could make them wear name tags and check in etc. - SUP CT upheld , said doesnt need to be least restrictive means

Special areas:

ADVERTISING FOR ILLEGAL ACTIVITY, and false and deceptive ads are NOT protected by the First Amendment

Even true commercial speech that inherently risks deception can be prohibited

• -e.g. states may prevent professionals from advertising or practicing under a TRADE NAME
• -states may prohibit attorney, in-person solicitation of clients for profit

Note: Lawyers who advertise as DEBT RELIEF AGENCIES can be required to include information about their legal status and the nature of the assistance provided along with the possibility of the debtors filing for bankruptcy

the govt may not prohibit ACCOUNTANTS from in-person solicitation of clients for profit

OTHER COMMERCIAL SPEECH can be regulated by the govt if INTERMEDIATE SCRUTINY IS MET

Question 18

DEFAMATION - what are the 4 categories of potential plaintiffs? and what standard applies to each?

Answer 18

DEFAMATION rules

(1) PUBLIC OFFICIALS - if P is a PUBLIC OFFICIAL or running for public office, the P can recover for defamation ONLY by proving with CLEAR AND CONVINCING evidence
(i) the FALSITY of the statement and
(ii) ACTUAL MALICE, meaning that the D knew the statement was false or acted with RECKLESS disregard for the truth

(2) PUBLIC FIGURES - if P is a “public figure” can recover for Defamation by proving
(i) FALSITY and
(ii) ACTUAL MALICE

(3) PRIVATE FIGURE/PUBLIC CONCERN - if P is a “private figure” and the matter is of “public concern” a state may allow a P to recover compensatory damages for defamation by proving
(i) FALSITY of statement and
(ii) NEGLIGENCE by D that speaker was not careful as a reasonable speaker should have been
(iii) ACTUAL MALICE - to get PRESUMED or PUNITIVE damages, must show “actual malice”

(4) PRIVATE FIGURE/NOT PUBLIC CONCERN - if P is “private figure” and matter is not of “public concern” P can recover presumed or punitive damages without proving ACTUAL MALICE, so just need
(i) FALSITY
(ii) NEGLIGENCE

Question 19

Who counts as a “Public Figure” for Defamation purposes?

Answer 19

Basically, if name is well known in community

GENERAL FAME AND NOTORIETY - a person may be a public figure for all purposes and all contexts if he achieves “general fame or notoriety” in the community and pervasive involvement in the affairs of society

INVOLVEMENT IN PARTICULAR CONTROVERSY - a person may “voluntarily inject himself or be drawn into a particular controversy to influence the resolution of the issues involved” and thereby become a public figure for a limited range of issues

Question 20

Privacy and the First Amendment

Answer 20

(a) A state may NOT create liability for the truthful reporting of information that was LEGALLY OBTAINED from the government’s records
- –e.g. Rape Victim Identity - state law prohibited disclosure of identity of rape vics w/out consent, but reporters lawfully got access to names through police reports and published them, they were sued and reporters won bc “truthfully reported what was lawfully obtained”

(b) Media MAY NOT be held liable for broadcasting a tape of an ILLEGALLY INTERCEPTED and recorded call, so long as the media did not participate in the illegality and it involves a matter of PUBLIC IMPORTANCE
- –e.g. Teacher’s Union officials telephone convo illegally intercepted and recorded, and broadcast on radio - sued for invasion of privacy and sup ct ruled for radio station

(c) Govt MAY RESTRICT its OWN dissemination of information to protect privacy. The only instance where the public has a First Amendment right to attend government proceedings and have access to govt papers is for CRIMINAL TRIALS and CRIMINAL PRETRIAL PROCEEDINGS

Question 21

Speech by Government Employees

Answer 21

Speech by govt employees on the job in the performance of their duties is NOT protected by the First Amendment