First Amendment: freedom of expression

Question 1

Regulation of content

Answer 1

Laws regulating expressive conduct are upheld if:

(1) They further an important interest;
(2) That interest is unrelated to the suppression of expression; and
(3) The burden on expression is no greater than necessary.

For example, laws against flag burning are unconstitutional whereas laws against public nudity might pass muster (public order; unrelated to speech).

Question 2

Regulation of content: vagueness and overbreadth

Answer 2

Vague laws are ones that give no clear notice of what is prohibited—in violation of due process.

Overbroad laws burden substantially more speech than is necessary to protect a compelling interest—in violation of the First Amendment.

Question 3

Prior restraints

Answer 3

Prior restraints are especially disfavored and will be struck down even when other forms of regulation might be upheld.

It is almost impossible to get injunctions against speech.

Question 4

Time, place, and manner regulations

Answer 4

Content neutral, such regulations principally apply in a public forum.

Public forums are places traditionally reserved for speech activities, including streets, parks, and public sidewalks around public buildings.

Question 5

Time, place, and manner: requirements

Answer 5

In a public forum, regulation must:

(1) Be content neutral, both on its face and as applied. It cannot allow executive discretion;
(2) Leave alternative channels of communication open; and
(3) Narrowly serve a significant state interest.

The interest need not be compelling; consequently, most content-neutral time-place-manner regulations are upheld.

Question 6

Nonpublic forums

Answer 6

Nonpublic forums include all kinds of government property that are not a public forum: courtrooms, offices, jails, power plants, and military bases.

The government may regulate speech-related activities in nonpublic forums as long as the regulation is:

(1) viewpoint neutral and
(2) reasonably related to a legitimate governmental interest.

Question 7

Limited public forums

Answer 7

Limited (or designated) public forums are a narrow category of places that are not traditional public forums but are opened to all comers by the government—for example, a municipal theater that anyone can rent.

A school auditorium is not a limited public forum.

In limited public forums, just as with public forums, only time-place-manner regulations are allowed.

Question 8

Commercial speech

Answer 8

Most regulations of commercial speech are struck down.

The test is whether the regulation directly advances a substantial government interest and is narrowly tailored to that interest.

So long as advertising is truthful and information, it must be allowed, but false or misleading commercial speech—unlike misleading political speech—can constitutionally be prohibited.

Question 9

Prior restraints: burden of proof

Answer 9

In prior restraint cases, the burden is on the government to prove that the material to be censored is not protected speech.

Question 10

Prior restraints: procedural safeguards

Answer 10

Prior restraints on speech may be permitted when:

(1) there is a particular harm to be avoided; and
(2) certain procedural safeguards are provided to the speaker, e.g.:
(a) An opportunity to be heard before an injunction on speech issues;
(b) A definite term for the restraint.

Question 11

Limited public forums: public schools

Answer 11

When a public school, as a designated (limited) public forum, permits the public to use its facilities:

• It cannot discriminate against organizations based on beliefs;
• It may provide funding and other benefits to student groups but must do so on a viewpoint-neutral basis.