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.
Free Speech framework STEP TWO
- Once you have determined the First Amendment applies, you need to engage in
further analysis to determine what rules regulate the government’s actions:
A. Implication of location on speech rights.
B. Distinction between content-based and
content-neutral laws.
C. Is the law unduly vague or substantially overbroad?
D. Prior restraints are strongly disfavored.
Implication of Location on Speech Rights
Implication of Location on Speech Rights: Of importance here is the location of the speech. Depending on the location of the speech,
different rules apply. There are four potential locations: (a) public forum;
(b) designated public forum; (c) limited public forum; and (d) non-public forum. (these were addressed in this exam)
The location, or “forum,” can affect the degree of protection speech is afforded.
Example: A city park, as a traditional public forum, has strong protections for speech. A protest there would be highly protected. Conversely, a military base, as a nonpublic forum, may have strict limitations on speech activities.
Content Based and Content Neutral Restrictions
Content-based restrictions: are those that make distinctions based on subject matter or viewpoint. Is the regulation of speech is targeting what is being said. It is presumptively unconstitutional to place burdens on speech because of its content, except for certain categories of unprotected speech. Content-based restrictions are subject to strict scrutiny review.
Here, ______[Discuss whether the governments regulation of speech is content-based. If it is, and the speech does not fall under a category of unprotected speech, it is presumptively unconstitutional and subject to strict scrutiny.]
[if the regulation of speech is content based, but targeting a category of unprotected speech]
Example: A law that prohibits all outdoor advertising of tobacco products is content-based and must pass strict scrutiny. A law that imposes noise restrictions on all public demonstrations, regardless of the message, is content-neutral and is evaluated with intermediate scrutiny.
what is vagueness
Vagueness: A law is vague if it is not clear enough for a person of ordinary intelligence to understand what behavior is prohibited.
Example: A law that prohibits “annoying behavior” in public spaces. The term “annoying” is subjective and can be interpreted in many ways, making the law vague.
What is overbreadth
Overbreadth: A law is overly broad if it prohibits not only unprotected speech but also a substantial amount of protected speech in relation to its legitimate sweep.
Example: A law banning all demonstrations near government buildings, regardless of their size, purpose, or the likelihood of disruption. While the government might have a legitimate interest in restricting some demonstrations for security reasons, the law is overbroad because it prohibits all demonstrations, including those that would not pose any threat.
Prior Restraints
Prior Restraints are Strongly Disfavored: Prior restraints involve government actions that prevent speech before it occurs, like requiring a permit to publish certain materials. They are presumed unconstitutional unless the government can show a justification of the highest order.
Example: A city ordinance requiring organizers to obtain a permit before holding a protest could be seen as a form of prior restraint. The government must show that this permit system is justified and narrowly tailored to serve a significant government interest, like public safety.
STEP THREE RULE OF THREE FS
- Once you have determined that the First
Amendment applies and considered any applicable rules, you need to determine
whether the government has met the appropriate level of judicial review.
A. Consider the three traditional levels of
review:
i. Strict scrutiny review
ii. Intermediate scrutiny review
iii. Rational basis review
B. But note: sometimes the Court is not clear
on which level of judicial review is
appropriate or whether it is using a distinct
approach to assess constitutionality.
Three Levels of Judicial Scrutiny
Rational Basis, IS, SS
Rational Basis
- Government is pursuing
a legitimate government
interest. - Law is rationally related
to that interest. - Challenger has the
burden of establishing that
government does not meet
this test.
Intermediate Scrutiny
- Government is pursuing
a significant (or important)
government interest. - Law is substantially
related to that interest. - Law is narrowly tailored
to achieve that interest. - Government has the
burden of establishing that
its actions meet this test.
Strict Scrutiny
- Government is pursuing
a compelling government
interest. - Law is necessary to
achieve that interest. - Law is narrowly tailored
(least restrictive means) to
achieve that interest. - Government has the
burden of establishing that
its actions meet this test.
Examples of Classic Speech
Written communication; Oral communication
Laws that require communications
Laws that prohibit communications
Relationship between content based and viewpoint based restrictions
Example:
Prohibition on
political speech. Content based
Example:
Prohibition on
speech by
Green Party
candidates viewpoint based
both require application of SS
what are the definitions of content based and content neutral; viewpoint speech
Content-Based Regulation: This targets speech based on the topic or the subject matter of the expression.
Example: A law that prohibits advertising alcohol but allows advertising for other products. This law is content-based because it specifically targets the content (alcohol advertising).
Content-Neutral Regulation: This applies to speech without regard to the subject matter or message. It’s typically justified by a government interest unrelated to the suppression of expression.
Example: A city ordinance that restricts the use of loudspeakers in residential areas after 10 PM. This regulation applies regardless of what the loudspeakers are used to say; it’s based on the time and manner of expression, not the content.
Viewpoint Discrimination:
Viewpoint Discrimination: This occurs when the government regulates speech based on the ideology or perspective of the speaker.
Example: A public university that funds all student magazines except those promoting conservative viewpoints. This is viewpoint discrimination because the exclusion is based on the ideological stance of the magazines.
Different Types of Government Property
Public forum, designated public forum, limited public forum, non public forum
Public forum
Location that has long been open
and accessible to expression.
Traditional rules on contentbased/
content-neutral
assessments apply.
Example: streets; sidewalks; parks
- Designated Public
Forum
Location that has not been open
and accessible to expression but
that government makes available.
Traditional rules on contentbased/
content-neutral
assessments now apply.
Example: use of auditorium in
public school on weekends
limited public forum
Location that has not been open and
accessible to expression but that
government makes available to certain
groups.
Government imposes some limits on
content.
Content-based restrictions are
permissible if they are reasonable and
viewpoint neutral.
Example: specialized use of school
auditorium in public school; student
organization status at public school
Non public forum
Location that has not been open and
accessible to expression.
Government may limit or prohibit speech.
Example: prison; military facility;
courthouse
Distinction Between Facial Challenge
and As-Applied Challenge
Facial challenge
- Asserts that law is
unconstitutional as written. - A successful facial
challenge means the law is
invalid in all cases. - Because a facial
challenge is considered
“strong medicine,” it
imposes a heavy burden on
those who bring such
claims.
As applied challenge
- Asserts that law is
unconstitutional as applied
to a particular case. - A successful as-applied
challenge means the law
cannot be applied to the
particular case, but the law
remains valid for
application in other cases.
Unprotected
and Less
Protected
Speech
A. Incitement of Illegal Conduct
* Brandenburg v. Ohio
* Holder v. Humanitarian Law Project
B. Fighting Words, the Hostile Audience,
and True Threats
* Chaplinsky v. New Hampshire
* Gooding v. Wilson
* Virginia v. Black
C. Obscenity
* Roth v. United States
* Paris Adult Theatre I v. Slaton
* Miller v. California
Free speech simplified framework
- Is speech implicated?
- What rules regulate the
infringement of speech? - Does the government’s action
meet the designated level of
scrutiny?
Why is
freedom of
speech
important?
Promotes democracy and
self-governance
Essential for the
discovery of truth
Advances autonomy and
personhood
Promotes tolerance
Unprotected Speech
*
- Unprotected speech is subject to regulation because it is considered to have no
redeeming social value. - When you determine speech falls within an unprotected category, it is not subject to
protection under the First Amendment (speech clause). - There are several forms of unprotected speech:
- incitement of illegal conduct
- fighting words
- hostile audience
- true threats
- obscenity
- These categories are defined based on the subject matter of the speech and thus
represent an exception to the rule about content-based restrictions. - There are three exceptions to the “unprotected” status of this speech:
- Content-based distinctions within unprotected speech must meet strict scrutiny.
- Vagueness and overbreadth challenges can be brought.
- Unprotected speech is still subject to substantive due process protection through
rational basis review.
- Unprotected speech is still subject to substantive due process protection through
The Key to Understanding
Unprotected Speech
You have to “read,” “watch,” or
“listen” to the speech to determine
whether it is unprotected.
Thus, these categories of speech
are defined based on the subject
matter of the speech.
But this remains a threshold issue:
is this considered protected or
unprotected speech?
Why Regulate
Racial Hate Speech?
- It acknowledges the common thread
of racial terror in history and its
harmful impact. - Slavery
- Segregation and Racial Terror
- Jim Crow laws
- “Separate but equal” laws
- Racial Terror campaigns
- KKK
- White supremacy groups
- Modern Racism
- Structural inequality
- Explicit discrimination and implicit
bias - Abuse of force
Consider the
common
threads of
racism, racial
terror, and
discrimination.
- Dred Scott v. Sandford (1857)
- Plessy v. Ferguson
- Shelley v. Kraemer
- Brown v. Board of Education
- Burton v. Wilmington Parking
Authority - Loving v. Virginia
- Brandenburg v. Ohio
- Moose Lodge No. 107 v. Irvis
- Virginia v. Black
*Walker v. Texas Division, Sons of
Confederate Veterans (2015)
Does the SC have limited prior restraints?
Yes, to either licensing/permitting regimes or court orders.
