First Amendment

Question 1

First Amendment in general

Answer 1

The First Amendment prohibits Congress from abridging the freedoms of speech and press, or interfering with the right of assembly, or from establishing a religion or interfering with the free exercise of religion. These prohibitions are applicable to the states through the Fourteenth Amendment.

Question 2

1A Freedom of Speech

Answer 2

A restriction by the government on the content of free speech under the First Amendment is subject to strict scrutiny and presumptively invalid. However, not all speech is protected under the First Amendment.
Regulations that prohibit substantially more speech than is necessary will be invalid.
Regulations that fail to give persons reasonable notice of what is prohibited will be invalid.
Unprotected speech includes:
1. Incitement
2. Fighting words
3. True Threats
4. Obscenity

Question 3

Speech Defined

Answer 3

Speech includes words, symbols, and expressive conduct. Expressive conduct is:
1. Inherently expressive or
2. Intended to convey a message, and
3. Reasonably likely to be perceived as conveying a message

Question 4

Commercial Speech

Answer 4

Commercial speech(ads, promotions, marketing) is protected by the First Amendment. However, it is not protected if it is:
1. False
2. Misleading, or
3. About illegal products or services
Any other regulation of commercial speech must:
1. Directly advance a substantial government interest and
2. Be narrowly tailored to serve that interest
The regulation does not need to be least restrictive; it just needs to be a reasonable fit between the goal and means.
Complete bans on truthful ads of lawful products are not likely to be upheld due to lack of legitimate government interest.
The government may require commercial advertisers to make disclosures if the disclosures are not unduly burdensome and they are reasonably related to the state’s interest in preventing deception.

Question 5

Time, Place, and Manner Restrictions on Speech

Answer 5

Generally, the government may not regulate the content of speech. However, the government may regulate the conduct of speech with reasonable time, place, and manner restrictions. The extent to which the government may regulate is determined by the type of forum.

Question 6

TPM Restrictions in Traditional Public Forums

Answer 6

A traditional public forum are areas that are open to the public for free speech zones, such as sidewalks and parks.
If the time place and manner regulation is content neutral, it must:
1. Be narrowly tailored to serve a significant government interest, and
2. Leave open alternative avenues of communication. If the regulation is content based, it will be subject to strict scrutiny.
If the restriction is content-based it must:
1. Be necessary to serve a compelling government interest

Question 7

TPM Restrictions in Designated Public Forums

Answer 7

A designated public forum is a forum that is generally not available for the exercise of First Amendment speech or assembly rights, such as an after-hours school classroom. If the government opens the forum for public use, the forum becomes a designated public forum. Once opened for public use, any restriction by the government must
1. Be content neutral
2. Be narrowly tailored to serve a significant government interest, and
3. Leave open alternative avenues of communication. If the regulation is content based, it will be subject to strict scrutiny. A designated public forum may later be undesignated for public use.

Question 8

TPM in Nonpublic/Limited Use Forums

Answer 8

A nonpublic or limited use forum is government property not traditionally open for speech activities. A person does not have a right to access nonpublic forums for speech activities, and speech can be regulated in such forums by viewpoint neutral rules that are reasonably related to legitimate government purpose.

Question 9

Speech Restrictions in Public Schools

Answer 9

A student’s own personal speech on campus cannot be censored without evidence of substantial disruption. Speech promoting illegal drug use does not require showing any disruption or credible threat of disruption.
When the student’s personal speech occurs off campus, schools are limited to restricting speech to prevent cheating, bullying, threats, and other speech where pedagogical or safety interests clearly outweigh speech interests.
Restrictions on speech related to the school’s teaching must be reasonably related to legitimate pedagogical concerns.