Free Speech Flashcards
What is the Rule of 3 Free Speech Framework
- Is free speech implicated?
- What rules regulate the
infringement of speech? - Does the government’s action
meet the designated level of
scrutiny?
On exam what would opening the analysis under free speech look like?
The first potential constitutional issue is the _________. The First Amendment provides that
Congress (and the state and local governments through the due process clause of the 14th
amendment) shall make no law abridging the freedom of speech
what are some of the Keys to the
Rule of Three
in Free Speech Cases
- The issues that arise in
these cases often overlap
across the Rule of Three. - The Supreme Court is not
consistent in its analysis. - The Supreme Court’s
approach is changing and
often appears outcomebased.
What is the Free Speech framework STEP ONE. This is determined following addressing the issues and the rule of three. Essentially these are threshold issues that you want to pay attention to the facts.
- You must determine whether free
speech is implicated. (Threshold issue)
A. Has there been an infringement on
speech?
* In most cases, the infringement on
speech is evident.
B. Are we addressing conduct that communicates and, therefore, conduct
that would be subject to First
Amendment protection?
C. Is this a category of unprotected speech?
D. Are we addressing government
speech
What two-part test is applied for conduct that communicates?
When looking at whether the government is restricting conduct that communicates the court will apply a two part test. First, access whether the conduct is expressive? Is there an intent to convey a particularized message and (2) if it is likely that the message would be understood by others who view it.
Next they would look at is: are the restrictions constitutional?
Example: A group of students wearing black armbands to protest a government policy. This conduct (wearing armbands) is intended to communicate a message of protest and is likely to be seen as such, thus it’s protected under the First Amendment.
What are categories of unprotected speech?
To be constitutional, restrictions on the content of speech must be necessary to achieve a compelling government interest. The government has a compelling interest in the following categories of speech, which are deemed “unprotected speech” under the 1st Amendment: (1) incitement of illegal conduct; (2) true threats and fighting words; (3) obscenity; (4) defamatory speech; and (5) some commercial speech. Breakdown is to follow….
Inciting Imminent Lawless Action
Speech can be restricted if it creates a clear and present danger of imminent lawless action. It must be shown that: (1) imminent illegal conduct is likely; and (2) the speaker intended to cause it.
Here, _____[Discuss whether the regulation is targeting speech that incites imminent lawless action. If so, the regulation is likely unconstitutional.]
Hypothetical Example:
During a large protest, a speaker addresses an agitated crowd, saying, “We must storm the building now and stop the vote from happening!” The speaker points to a nearby government building where a contentious vote is taking place. The crowd appears ready to act on the speaker’s command.
Analysis:
Imminent illegal conduct: The speaker’s words are directing the crowd to immediately storm a building, which is illegal.
Intent to cause it: The speaker’s directive to “stop the vote” by storming the building, combined with the context of an agitated crowd, indicates an intention to cause the illegal action to happen.
In this scenario, the speaker’s speech is likely not protected under the First Amendment because it meets the criteria for inciting imminent lawless action. If a regulation targets this kind of speech, it is usually considered constitutional because it aims to prevent clear and immediate harm.
True threats and fighting words
Speech can be restricted if it constitutes a true threat or fighting words so long as the regulation is not designed to punish other viewpoints. Fighting words are personally abusive words that are likely to incite immediate physical retaliation in an average person (words that are merely insulting or annoying are not enough).
**Here, ______[discuss whether the regulation is targeting true threats or fighting words and whether the regulation is viewpoint neutral. If both are satisfied, the regulation is likely constitutional.]
Hypothetical Example:
At a public rally, an individual approaches someone from a rival political group and, standing nose to nose, loudly states, “I know where you live, and I will make sure you and your family suffer for your views.” This statement causes the listener to fear for their family’s safety.
Analysis:
True Threat: The statement “I know where you live, and I will make sure you and your family suffer” could be seen as a true threat because it is specific and personal, causing the listener to fear for their and their family’s safety.
Fighting Words: The statement is made in a confrontational manner, face to face, and in a context where it could lead to an immediate physical retaliation by an average person.
Viewpoint Neutral Regulation: If there is a regulation that prohibits such statements, it must apply to all individuals regardless of their political affiliation or the content of their views. The regulation should not be designed to suppress one particular viewpoint over another.
In this scenario, if the regulation targets statements that constitute true threats or are likely to incite immediate violence (fighting words) and applies to all individuals equally without regard to the viewpoint being expressed, then it is likely constitutional.
Obscenity: Miller Test
Speech can be restricted if it constitutes obscenity. Speech constitutes obscenity if it describes or depicts sexual conduct that, taken as a whole, by the average person: (1) appeals to the prurient interest in sex, using a community standard; (2) is patently offensive; and (3) lacks serious literary artistic, political, or scientific value, using a reasonable person standard.
Here, ____[Discuss whether the regulation is targeting speech that constitutes obscenity. If so, the regulation is likely constitutional.].
A bookstore in a conservative community prominently displays and sells a book with graphic images and detailed descriptions of sexual acts that are considered taboo by the community standards. The book does not contain any narrative or informational content — it is purely a compilation of such images and descriptions.
Analysis:
Prurient Interest: The book is designed to stimulate sexual excitement, which is evident from the graphic nature of the images and descriptions, and thus appeals to the prurient interest in sex by community standards.
Patently Offensive: The depictions are of sexual conduct that the average person in the community would find exceeds a reasonable limit of candor and is offensive.
Lacking Serious Value: The book lacks any narrative, artistic, political, or scientific context that could be deemed as serious value from a reasonable person’s perspective.
In this scenario, if there is a regulation that targets the sale or display of material that meets the criteria for obscenity as outlined above, then the regulation is likely constitutional because it aims to restrict speech that has been deemed not to have protection under the First Amendment.
Defamatory Speech
Defamatory speech involves making false statements about someone that damage that person’s reputation. To be considered defamatory, a statement must be presented as a fact rather than as an opinion, it must be false, and it must be harmful to someone’s reputation. Additionally, when the statement is about a public figure, there must also be malice involved — that is, the speaker must know the statement is false or act with reckless disregard for the truth.
Example: Imagine a local newspaper publishes an article falsely claiming that a teacher has been stealing school funds. The article presents this as a fact, even though it is false, and as a result, the teacher is shunned by the community and loses their job. This would constitute defamatory speech because the false statements have caused harm to the teacher’s reputation and livelihood. If a regulation targets this kind of false factual assertion that harms an individual’s reputation, it is generally deemed constitutional, provided it’s applied with the proper protections for free speech, such as the requirement for malice in cases involving public figures.
Government Speech
Here, the relevant threshold issue is the existence of government speech. Government speech is not subject to the First Amendment. There are exceptions,
however, (1) the government cannot violate the establishment clause; (2) the government is subject to statutory restrictions imposed by Congress; and (3) the political process sometimes serves as a check on government speech.
commercial Speech
Generally, commercial speech is afforded 1st Amendment protection if it is truthful. However, commercial speech that proposes unlawful activity or that is false, misleading, or fraudulent may be restricted as unprotected speech. Any other regulation of CS will be upheld if it: (1) serves a substantial government interest; (2) directly advances that interest; and (3) is narrowly tailored to serve that interest.
*if the regulation of CS is targeting wrongful speech
Here, ___–[identify that the regulation is targeting commercial speech that proposes unlawful activity or that is false, misleading, or fraudulent. In this case, the regulation is likely constitutional.
*if the regulation of CS is NOT targeting wrongful speech
Here, ___[identify that the regulation is not targeting commercial speech that proposes unlawful activity or that is false, misleading, or fraudulent.] Therefore, _____[Discuss whether all three elements are satisfied. If so, the regulation is constitutional.]
example
Hypothetical for Wrongful Commercial Speech:
A dietary supplement company advertises that its product can cure diabetes and cancer without any scientific evidence to support these claims. These claims are false and potentially dangerous as they might lead consumers to forego necessary medical treatment.
Analysis:
The regulation in question targets commercial speech that is false and misleading, as the product claims are unsubstantiated and could lead to harm. In this case, the regulation prohibiting such advertising is likely constitutional because it aims to prevent fraudulent commercial practices and protect public health, which is a substantial government interest.
Hypothetical for Non-Wrongful Commercial Speech:
A city enacts a law requiring all fast-food restaurants to display calorie counts on their menus to combat obesity, a significant health concern in the community.
Analysis:
Substantial Government Interest: The regulation serves the substantial interest of public health by informing consumers about the nutritional content of their food.
Directly Advances that Interest: By providing calorie information, consumers are better equipped to make healthier eating choices, which can reduce obesity rates.
Narrowly Tailored: The requirement is limited to providing factual information on menus and does not restrict what can be sold or advertised, making it narrowly tailored to the interest of informing consumers.
In this scenario, the regulation is not targeting commercial speech that is inherently wrongful but rather seeks to inform the public, and it satisfies the three-part test for constitutionality.
An infringement on speech can be found if …
a law forbids speech or if the government prohibits compensation, compels speech, imposes civil liability for speech, or if the government pressures people to refrain from speaking.
Law Forbids Speech
Law Forbidding Speech: A law or regulation that directly prohibits certain types of speech.
Example: A city ordinance that bans all public protests in an attempt to prevent disturbances. This is a direct prohibition on the freedom of speech and assembly.
government prohibits compensation
Prohibiting Compensation for Speech: A regulation that bans paying for certain types of speech.
Example: A state law that makes it illegal to pay for political endorsements in an attempt to prevent corruption. This would restrict someone’s ability to receive compensation for their speech.
Compelled Speech
Compelled Speech: When the government forces an individual or entity to express certain messages.
Example: A law requiring all businesses to post a sign stating “Shoplifting is a crime,” even if the business owner does not want to post this message. This compels speech from the business owners.
Imposing Civil Liability
Imposing Civil Liability for Speech: Laws that create the potential for lawsuits or penalties based on what an individual says.
Example: Defamation laws that allow individuals to sue if someone makes false and damaging statements about them. These laws impose civil liability for certain kinds of speech.
Government Pressures to Refrain from Speaking
Government Pressures to Refrain from Speaking: Actions by government officials that discourage or threaten individuals from exercising their right to speak.
Example: A mayor’s office that informally suggests local newspapers will not receive city advertising contracts if they publish negative stories about the mayor. This is a form of government pressure discouraging free speech.
The examples must be subject to what level of scrutiny
Each of these examples can raise significant First Amendment issues, and any law or policy fitting these descriptions would be subject to strict scrutiny in a constitutional challenge.
