First Amendment: Freedom of Expression Flashcards
Free Expression
The First Amendment’s Free Speech Clause prohibits the federal and state governments from enacting laws that unduly restrict an individual’s right to freely communicate information, ideas, and opinions through speech or conduct.
Analysis
- Determine the category of the speech: Pure or symbolic?
- Determine the forum of the speech
- Determine the type of regulation
- Determine and apply the appropriate standard of review.
Prior Restraint, Vagueness, and Overbreadth
Most often, a plaintiff will challenge a law as applied, meaning that the law violates the First Amendment as enforced under the facts of the plaintiff’s case. These doctrines also permit facial challenges, i.e., claims that the law as written is so flawed that it must be struck down regardless of any factual context.
Prior Restraint
A prior restraint is a law that prohibits speech before it can take place. Prior restraints are highly disfavored. (injunctions and licensing).
Vagueness
A law is unconstitutionally vague if people of common intelligence are forced to guess as to its meaning.
Overbreadth
An overbreadth claim asserts that a law, as written, will chill or deter constitutionally protected expression by parties not before the court. A facially overbroad law will be held unconstitutional.
Content-Based Regulation
Regulation applicable to a particular speech because of the topic discussed or the idea or message expressed.
Test for Content based restrictions: Content based regulations are presumed to be invalid unless the government meets the strict scrutiny test.
Content-Neutral
Content-neutral regulation must pass intermediate scrutiny. The government has the burden of proof and must prove:
- The law advances a significant government interest, and
- The means are narrowly tailored.
- The law leaves open alternative channels for communicating the information.
Government as a speaker
When the government is a speaker, the First Amendment does not apply to it.
The government can engage in content-based choices when it is acting as the speaker (It can favor a position). (Note: License plates are a form of government speech).
Prior Restraint: Licensing
Criteria that must be met for licensing to be constitutional:
- There must be an important reason for the licensing.
- There must be clear criteria leaving almost no discretion to the licensing authority.
- There must be procedural protections (Prompt decision making, as to whether the speech will be allowed; Adversarial hearings before speech is prevented, and; Judicial Review.
Imminent lawless action test
Under the First and Fourteenth Amendments, a state may only regulate speech that advocates violence if the speech is intended and likely to incite imminent illegal activity. 3 Elements:
- Intent to incite illegal action
- The imminence of the illegal action, and
- Likelihood of actual incitement.
True Threats
True threats are unprotected by the First Amendment and can be criminalized.
Occurs when an individual communicates to a particular individual or group of individuals a serious expression of an intent to commit an act of unlawful violence against them.
Requirements:
- There must be a specific target,
- Intent to threaten that person, and
- Targeted person needs to know of the threat and feel threatened.
Non-Protected Speech
- Incitement of illegal activity.
- Fighting words.
- True Threats
- Obscenity
- Child pornography.
Less-Protected Speech
- Defamation
- Commercial speech
- Sexually oriented speech.
Symbolic Speech
When conduct is communicative. Factors to determine when conduct is communicative:
- Intent to convey a message
- Likelihood that the message would be understood by those receiving it.
Examples: Wearing an armband, flag burning, nude dancing, spending money on a political campaign.
