Content Neutral Restrictions

Question 1

Generalized Principles

Answer 1

While municipalities may impose reasonable restrictions and time requirements for soliciting and canvassing on public property, the First Amendment does not permit them to restrict these activities entirely in public places.

Question 2

Schneider

Answer 2

bar handing out of leaflets on streets) Authorities can keep the streets safe as long as legislation to that end does not abridge the constitutional liberty of one rightfully upon the street to impart info through speech or the distribution of literature.
While municipalities may impose reasonable restrictions and time requirements for soliciting and canvassing on public property, the First Amendment does not permit them to restrict these activities entirely in public places.

Question 3

Kovacs:

Answer 3

bar sound trucks) Permissible exercise of legislative discretion to bar sound trucks, amplified to a loud and raucous volume, from the public ways of municipalities. As long as the ideas are not suppressed, the legislature may tell people how they deliver those ideas.

Question 4

Metromedia:

Answer 4

ban of all billboards) Assess the substantiality of the governmental interests asserted and whether those interests could be served by means that would be less intrusive on activity protected by the 1st amendment

Question 5

Laude:

Answer 5

(city prohibited home owners from handing signs on their property) Adequate substitutes do not exist for the important medium of speech that the ordinance has closed off. More temperate measures could satisfy their needs.

Question 6

Bartnicki

Answer 6

(Vopper obtained a phone recording that was retrieved by someone else unlawfully. He played it. The message was a matter of public concern.) If a newspaper unlawfully obtains truthful info about a matter of public significance that gov. Officials may not constitutionally punish publication of the info. Publishing matters of public importance are very important.

Question 7

Content Neutrality Analysis

Answer 7

Content Neutrality Analysis:

1. Is it content based? Or Is it content neutral?  - is the law justified without reference to the content of the regulated speech

PRACTICE QUESTION REVIEW

	RULE	
	        • Will be a statute or common law rule 
Content Based 		Content-Neutral
LIBEL 		
INCITEMENT 		
FIGHTING WORDS 		
COMMERICAL SPEECH 		
OBSENITY 		
TRUE THREAT 		
OVERBROAD? 		
VAGUE 		
PRIOR RESTRAINT

Question 8

Speech on Public Property The Public Forum

Answer 8

Streets & Parks:
Davis (1897) : A preacher was preaching on publicly owned property. He was convicted under an ordinance that forbade any public address on publicly owned property. The constitution does not have the effect of creating a particular and personal right in the citizen to use public property in defiance of the constitution and laws of the state. The state has the authority to determine under what circumstances such use may be availed of. (the state asserts the prerogatives traditionally associated with the private ownership of land)
Hague: An ordinance forbidding all public meeting in the streets and other public places without a permit. Use of the public streets for assembly, communicating between citizens, and discussing public questions is a part of the privileges, immunities, rights and liberties of citizens. This right can be regulated but not denied.
Hague “time out of mind” theory
Davis Theory (all places not under Hague theory)

Question 9

The Public Forum: Other publicly Owned Property

Answer 9

Adderley v. Florida
Facts: Florida A&M students marched to the county jail to protest. The Sheriff told them to move away from the entrance. He then told them to leave the property or he would arrest them. They were convicted under a statute declaring unlawful “every trespass upon the property of another, committed with a malicious and mischievous intent.”
Holding: The sheriff, the jail custodian, had power to direct the large crown to get off of the grounds. He only objected because the jail grounds were for jail uses. He didn’t care about their content.
Dissent: Most people have limited types of access to public officials. It was simply a petition for redress of grievances, no violence was planned. This is a public place owned by the government.

Question 10

Three Types of Public Forums

Answer 10

The way a government can regulate speech will depend on the forum.

Traditional:
→ Streets, parks, public sidewalks
→ These are spaces are held in trust for people to express themselves. Least amount of regulation. The courts are not open to expanding this list. Time, place, and manner restrictions must narrowly tailored to achieve an important government interest. Adequate alternative channels to communicate.

Designated:
→ Public property that the state has voluntarily opened for use by the public as a place for expressed activity-community center
→ Same rules that apply to traditional public forums apply to designated public forums

Non Public:
→ Public property that is not by traditional a public forum for discussion. The state may impose restrictions as long as the regulation is reasonable and not intended to suppress speech

Examples:

1. Grounds of state capital: Traditional 
2. Meeting rooms in public library: Designated  Military Base: Non Public

Question 11

Government Funded Speech & Expressive Conduct
Content Neutrality: Government Funded Speech

Rust v. Sullivan
Legal Services v. Velazquez

Answer 11

Rust v. Sullivan
Facts: Title X of Public Health Service Act has condition that forbids the use of federal funds to be connected with abortion in any way.
Issue: Are the conditions unconstitutional?
Holding: The government may make a value judgment favoring child birth over abortion and implement that judgment by the allocation of public funds. Here, the government is subsidizing family planning services while declining to promote or encourage abortion. The government can selectively fund a program to encourage certain activities that it believes to be in the public’s interest, without at the same time funding an alternate program which seeks to deal with the problem in another way. It is okay to fund one activity to the exclusion of the other. The government can refuse to fund activities which are specifically excluded from the scope of the project funded.
Dissent: These are clearly viewpoint restrictions. Doctors must be able to give patients the full range of information and options regarding their health and reproductive freedom. These conditions do not pass the strict scrutiny test.
Legal Services v. Velazquez
Facts: LSC created by Congress to distribute funds to eligible organizations for the purpose of providing financial support for legal assistance in noncriminal proceedings to persons financially unable to afford legal assistance. There is a restriction prohibiting LSC lawyers from challenging the legality or constitutionality of existing welfare laws.
Issue: Is the restriction unconstitutional?
Holding: Yes, viewpoint restrictions are not proper when the government does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of view from private speakers. The LSC program was designed to facilitate private speech, not to promote a government message. Restricting LSC attorneys in advising their clients and in presenting arguments and analyses to the courts, distorts the legal system. It prohibits speech & expression upon which courts must depend for the proper exercise of the judicial power. If an attorney withdraws, it is very likely no other attorney will be procured. No programmatic message of the kind recognized in Rust.
Dissent: This is the same statutory scheme as Rust. A federal subsidy program does not restrict speech. No litigant who would bring a suit challenging existing welfare law is deterred from doing so by the Act.

Question 12

Content Neutrality: Expressive Conduct

The two part test

Answer 12

1. The speaker has to intend to convey a message
   
   2. The circumstances must show that it was likely other would understand the messsge
      United States v. O’Brien
      -Here the court assumes that the conduct was expressive
      F: O’Brien and 3 companions burned their Selective Service registration certificates on the steps of the South Boston Courthouse because of “his beliefs.” FBI agents witnessed the act. O’Brien said he burned the certificates publicly to get people to look at things the way he does. O’Brien was convicted.
      §462(b)(3): an offense is committed by any person who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate.
      COA: section is unconstitutional because the acts punished by the section were already punishable by the non-possession act, therefore it has no valid purpose. Also, the section now seems to be directed at public as distinguished from private destruction. It singles out persons engaged in protests for special treatment.
      I: Whether the amendment to the act is constitutional as applied and as enacted.
      H: The section is constitutional. It does not deal with speech or expression, but with the knowing destruction of certificates issued by the Selective Service System. It does not distinguish between public and private destruction, and does not punish only destruction engaged in for the purpose of expressing views.
      As Applied Challenge: When speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest (must be compelling, substantial, paramount, strong) in regulating the non-speech element can justify incidental limitations on 1st amendment freedoms. Regulation must be within the governments power, further an important gov. interest, gov. interest must be unrelated to the suppression of free speech, the incidental restriction on alleged 1st amendment freedoms must by no greater than is essential to the furtherance of the interest. This case: constitutional power to raise armies, the issuance of certificates indicating registration is a substantial administrative aid in functioning the system, legislation to insure the continued availability of the certificates serves a substantial purpose in the system’s administration. Because of the many functions of the certificates, Congress has a substantial interest in preventing their wanton and unrestrained destruction by punishing those who knowingly destroy them. The continuing availability to each registrant of his Selective Service certificates substantially furthers the smooth and proper functioning of the system that Congress has established to raise armies and that the Amendment specifically protects this substantial governmental interest. There are no better means of protecting this interest. They only convict because of non-communicative impacts. Intermediate test.
      As Enacted Challenge: Only three people in the Senate and House spoke about the bill before it was passed. That is not enough to say what all of the politicians passed the bill for. The reports say they want to ban destruction that would disrupt the smooth functioning of the Selective Service System.
      Dissent: The underlying and basic issue in the case is whether conscription is permissibly in the absence of a declaration of war. Action is often a method of expression and within the protection of the 1st amendment.

Question 13

Test for Expressive Conduct

Answer 13

FIRST: Is this expressive conduct? And is it likely to be understood?
Second: Apply O’Brien Test:
1. Within the government’s power
2. Furthers a substantial government interest
3. Gov. regulation unrelated to free expression
4. Restriction on 1st amendment is no greater than essential

Question 14

Barnes v. Glen Theatre

Strip Club

Answer 14

F: Two strip clubs brought suit to enjoin enforcement of a public indecency statute which prohibits any person to appear in a state of nudity in any public place.
I: Is this statute unconstitutional?
H: nude dancing at these clubs is expressive conduct within the outer perimeters of the 1st amendment.
Four Part O’Brien Test Analysis:
-statute is within the constitutional power of the state (police power)
-furthers substantial governmental interests: public health, safety, and morals, sexual assault, prostitution
-interest is unrelated to the suppression of free speech: only addressing public nudity, not an erotic message
Dissent: These are paying consenting adults, no harm is being done.

Question 15

City of Erie v. Pap’s A.M.

Answer 15

F: ordinance banning public nudity in response to a recent increase in nude live entertainment within the city, which activity adversely impacts the public health, safety and welfare.
I: Is the ordinance unconstitutional?
H: still a general prohibition of public nudity. State’s interest in preventing secondary effects is not related to the suppression of expression. It satisfies the O’Brien test.
Dissent: preamble shows its purpose is to limit a protected form of speech. A play with nudity was allowed to go on, but not the strip club.

Question 16

Content Neutrality: Political Contributions

Buckley v. Valeo

McConnell v. FEC

Citizens United v. FEC

Answer 16

Buckley:
All of the provisions are constitutional besides the federal election commission and the limitations on expenditures.
General Principles: The interest in regulating the alleged conduct of giving or spending money arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful. The expenditure of money involves speech, however if you say it does not, it still does not pass the O’Brien Test. A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. Restrictions could have a severe impact on political dialogue if the limitations prevent candidates from amassing the necessary resources for effective advocacy.

McConnel:
F: The government wanted to limit “soft money” contributions because they were being solicited for favors in the future.
I: Whether large soft money contributions to national party committees have a corrupting influence or give rise to the appearance of corruption.
H: Yes, they do. The candidates increase their prospects of election and the donors create a debt on the part of officeholders, with the national parties serving as willing intermediaries.
D: Buckley only undue influence by the reference to the presence of quid pro quo involvement by an officeholder. The court wants to allow regulation not just of quid pro quo but of any conduct that wins goodwill from or influences a Member of Congress.

Citizens United:

F: corporations are prohibited from using general treasury funds to make independent expenditures that expressly advocate the election or defeat of a candidate. Electioneering communication is also prohibited.
I: Are these prohibitions constitutional?
H: No, they are not. The anti-distortion rationale holds no weight. The government has no interest in equalizing the relative ability of individuals and groups to influence the outcome of elections. The speech they are trying to forbid is public, and all can judge its content and purpose. This speech does not create corruption. However, the government may suppress political speech on the basis of the speaker’s corporate identity.
Scalia Con: To exclude or impede corporate speech is to muzzle the principal agents of the modern free economy.
Con/Dis: In election speech, the distinction between corporate and human speakers is significant. Corporations are not actually members of society. Identity Based Distinctions: In a variety of contexts, we have held that speech can be regulated differently on account of the speaker’s identity. We have always treated corporations and individuals differently. In a functioning democracy, the public must have faith that its representatives owe their positions to the people, not the corporations. Regulating corporation speech takes nothing away from individual speech. Acceptable governmental interests are anti-corruption and corporate expenditure regulation. These expenditures are related to anti-distortion which is an interest in protecting against improper influences on office holders that debilitate the democratic process. Some shareholders may think that they are paying for the corporation to undermine their political convictions.

Question 17

Content Neutrality: Right of Association/Freedom of the Press

Answer 17

Right of Association
Hatch Act (Government Interests > Individual Interests): prohibits federal employees from soliciting contributions for a partisan political purpose, taking an active part in a political campaign, soliciting votes for any candidate, or endorsing any candidate
H: the Hatch Act was found to be constitutional: partisan political activities by federal employees must be limited, if the government is to operate effectively and fairly. These restrictions apply to all partisan activities. Government employees should administer the law in accordance with the will of Congress. Also, the expanding government work force should not be employed to build a powerful corrupt machine. It lets government officials to vote any way that they want.
Pickering (Individual Interests > Government Interests): a teacher wrote a letter which was critical of the Board and superintendents. He was fired by the board.
H: The letter was not directed at an individual. No discipline or relationship fixing was needed. Personal loyalty is not necessary for the proper functioning of their positions. No proof of false statements either.
Elrod (Individual Interests > State Interests): Elrod, a democrat, replaced a republican Sheriff. The remaining republican employees were fired by Elrod because of their political status.
H: This move was unconstitutional. Dismissing employees on a partisan basis is one form of political patronage.
State Interests:
-to insure effective government and efficiency of public employees X Alternative means: there are other ways to keep up efficiency i.e. fire for good cause.
-need for political loyalty of employees to implement policies X Alternative means: limiting patronage dismissals to policy making positions is sufficient.

Question 18

Litigation, Association, and the Right Not to Speak

NAACP v. Button

NAACP v. Alabama

Boy Scouts

Answer 18

NAACP v. Button (Individual Interests > State Interests)
F: Virginia statute that prohibited any organization to retain a lawyer in connection with litigation to which it was not a party and in which it had no pecuniary right or liability.
H: This statute is unconstitutional. Litigation is a means for achieving equality of treatment for blacks. There is a danger of smothering all discussion looking to the eventual institution of litigation on behalf of the rights of members of an unpopular minority. This statute is a weapon of oppression.
Virginia’s Interests:
-regulate illegal practices of barratry (vexatious litigation) and maintenance X Litigation is a form of political expression and association.
Dissent: This content neutral statute is justified by valid governmental interests. The NAACP’s rights are not substantially impaired.
Ohralik (car accident, State Interests > Individual Interests)
F: A lawyer solicited work. However, that is illegal under a statute.
H: This regulation did not involve political expression or an exercise of associational freedom to secure constitutionally guaranteed civil rights. This regulation regarded commercial expression.
NAACP v. Alabama (Individual Interests > State Interests)
F: Statute required out-of-state corporations to qualify before doing business in the state. Members that are from Alabama must disclose their names and addresses.
H: This statute is unconstitutional. There is a vital relationship between freedom to associate and privacy in one’s associations. This is a restraint on freedom of association.
Roberts (State Interests > Individual Interests)
F: Jaycees accepts regular membership only to men aged 18-35. Associate membership is offered to older men and women. Associate members cannot vote or hold office. Jaycees is sued because their rules violate the Minnesota Human Rights Act for discrimination based on sex.
I: Does the lower courts ordering that Jaycees admit women and older men as regular members, because of the Minnesota Human Rights Act that prohibits discrimination based on sex, violate their 1st amendment freedom of speech clause rights.
H: These rules are unconstitutional. The interest is eradicating discrimination of women. This interest is compelling, unrelated to suppression, and there are no less restrictive means.
Boy Scouts (Individual Interests > State Interests)
F: Dale was a openly gay adult scoutmaster. He was fired for that reason. The firing is challenged by a NJ law that prohibits discrimination based on sexual orientation.
I: Does the lower courts ordering that the Boy Scouts couldn’t fire Dale because of his sexual orientation, because of NJ’s public accommodation law which prohibits discrimination based on sexual orientation, violate their 1st amendment freedom of speech clause rights.
H: This law is unconstitutional. Forced inclusion in a group infringes the group’s freedom of expressive association if the presence of that person affects the ability for that group to advocate viewpoints. Boy Scouts engage in expressive association.
Does forcing the Boy Scouts to hire Dale affect the ability to advocate their viewpoint? Yes, it forces the Boy Scouts to send a message that they accept homosexual conduct as legitimate.
Does forced inclusion run afoul of the Boy Scouts’ freedom of expressive association? Yes.
D: there is no license to act on any discriminatory impulse. You must show the party has adopted and advocated an unequivocal position inconsistent with a position advanced by the person sought to be excluded. The notion that the Boy Scouts endorses the views of all of its millions of members is dumb.