Freedom Of Expression And Association Flashcards
What are the constitutional freedoms of expression and association?
In addition to the religious clauses, the First Amend provides that “congress shall make no laws abridging the freedom of speech, or of the press, or of the right of the people to peaceably assemble, and to petition the gov’t for a redress of grievances. These aspects of the first amend are applicable to the states via the Fourteenth Amendment.
Freedoms of expression is not absolute; while governmental regulation of the content of speech is severely constrained, governmental regulation of the time, place and manner of speech is subject to less restriction.
What is expressive conduct?
Protected speech can include not only written, oral and visual communication, but also activities such as picketing and leafleting. Expressive conduct (or symbolic speech) may be protected as speech, but it is subject to a lesser degree of protection.
How is expressive conduct regulated?
Governmental regulation of expressive conduct is upheld if:
- The regulation is within the government’s power to enact (e.g. through a local government’s police power)
- The regulation furthers an important governmental interest
- The governmental interest is unrelated to the suppression of ideas.
- The burden on the speech is no greater than necessary
EX: prohibition against burning draft cards upheld as furthering the important government interest in a smoothly functioning draft system.
EX: laws that have been upheld include a ban on public nudity, such as nude dancing in adult entertainment venues, pursuant to the important governmental interest in preventing the ‘harmful secondary effects’ of adult entertainment on neighborhoods, which is unrelated to the suppression of expression.
What are some examples of impermissible regulation of expressive conduct?
- A ban against students wearing black armbands to protest the war in Vietnam, b/c the gov’ts only interest in banning the conduct was prohibiting communication.
- A federal prohibition against burning the American flag because the law was intended to suppress messages of disapproval of governmental policy, rather than any conduct-related consequences of the burning.
- An ordinance prohibiting leafleting that results in littering on public streets, because the governmental interest in clean streets is insufficient justification, and such a ban on distribution is not narrowly tailored to protect the communication of information and opinion.
Is signing a petition expressive conduct?
Yes, the act of signing a petition constitutes expressive conduct. Public disclosures of the petition, and, thereby the names of the individuals who signed the petition does not violated the First Amend b/c such disclosure is substantially related to the important interest of preserving the integrity of the electoral process.
When is a law overbroad?
A law that burdens substantially more speech than is necessary to protect a compelling gov’t interest is overbroad and therefore void. A statute’s overbreadth must be substantial both in an absolute sense and relative to the statute’s plainly legitimate reach. The mere fact that some impermissible applications of a statute can be conceived of is not sufficient to render a statute overbroad.
How are overbroad statutes treated?
In order to prevent a ‘chilling effect’ on protected speech, overbroad statutes may be challenged as ‘facially invalid’ even by those who are validly regulated on behalf of those who are not.
EX: municipal ordinance requiring a permit in order to engage in door-to-door canvassing and solicitation violates free speech; an admin rule banning ‘all first amend activities’ in a large airport terminal held overbroad.
When is a statute void for vagueness?
A statute is ‘void for vagueness if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited.
As with overbreadth, vagueness is impermissible because it may chill protected speech. In addition, the void for vagueness doctrine is grounded in the due process requirements of notice. Under due process principles, laws that regulate persons or entities must give fair notice of conduct that is forbidden or required.
Statutes that tie criminal culpability to conduct that involves subjective judgments without providing statutory definitions, narrow context, or settled legal meanings have been struck down for vagueness.
How are prior restraints on speech treated?
A prior restrain is a regulation of speech that occurs in advance of its expression (publication/utterance). Prior restraints are generally presumed to be unconstitutional, with limited exceptions.
What are the exceptions to the general ban on prior restraints?
At a minimum:
- there is a particular harm to be avoided (like publication of troop movement)
- Certain procedural safeguards are provided to the speaker.
Examples of procedural safeguards include:
- the standards must be narrowly drawn, reasonable and definite
- The censoring body must promptly seek an injunction
- There must be a prompt and final judicial determination of the validity of the restraint.
Who holds the burden of proof in prior restraint cases?
The burden is on the government to prove that the material to be censored is not protected speech. Prior restraints have been rejected even when national security was at issue, and even when press coverage threatened the fairness of a trial because a prior restraint was not the only way to accomplish the goal.
is the gov’t allowed unfettered discretion in applying laws that restrict speech?
No; a law or regulation that permits a gov’t official to restrict speech (e.g. requires an official to issue a permit before a rally can be held) must provide definite standards as to how to apply the law in order to prevent government officials from having unfettered discretion over its application.
Such a law or regulation must be related to an important governmental interest and contain the procedural safeguards mentioned above. A statute that gives officials unfettered discretion is void on its face; speakers need not apply for a permit and may not be punished for violating the licensing statute.
What is the freedom not to speak?
The first amendment protects not only the freedom to speak but also the freedom not to speak. One such example is a child’s right not to recite the Pledge. Also, the private organizers of a parade cannot be compelled by the gov’t to include in a parade a group who espouses a message with which the organizers disagree.
Also: Gov’t cannot condition federal funding on recipients explicitly agreeing with the gov’ts policy to oppose prostitution and sex trafficking.
BUT: a state can compel a private entity like a shopping mall to permit individuals to exercise their own free-speech rights with the private entry is open to the public and the message is not likely to be attributable to the private entity.
Is compelled financial support permissible under the First Amend?
Although one can be compelled to join or financially support a group with respect to one’s employment, one cannot be forced to fund political speech by that group. (Abood; check to see if still good law). So a teacher is required to pay union dues
A student, however, CAN be required to pay a university activity fee even though the fee may support groups the student disagrees with. The fee must be allocated with a viewpoint-neutral scheme.
Is the gov’t constrained by the first amend?
No; when the gov’t speaks it is not constrained by the first mendment. Therefore, gov’t speech like PSAs, agricultural marketing campaigns, etc, need not be viewpoint neutral. However, this gov’t speech doctrine is still subject to the establishment clause.
How does the first amendment stand on monuments on public property?
the display of a monument on public property, even if the monument is donated by a private person, constitutes government speech. So gov’t could not display donated 10 commandments in park; gov’t may exercise selectivity with accepting a monument being offered by a private donor.
may the government fund private messages?
yes; gov’t may fund private messages. However, it must generally do so on a view-point neutral basis. EXCEPT when gov’t chooses to fund artists; the decision of which artist to fund is necessarily based on the content of the artist’s work.
How is speech by gov’t employees regulated?
Attempts to fire or penalize a gov’t employee for speech on matters of ‘public concern’ will be strictly scrutinized.
However, speech on matters of public concern made in furtherance of the public employee’s job functions receives less protection under the first than a person acting outside of his/her job.
Courts balance the first amend interest of the employee against the interest of the state as an employer in promoting the efficiency of the public services it provides through its employees.
Speech by a gov’t employee, including a petition for redress related to an employee’s job, is not protected.
How are political campaign contributions protected by the First Amend?
Statutes limiting campaign contributions are subject to intermediate scrutiny; they must be closely drawn to correspond with a sufficiently important interest.
May the gov’t limit contributions to candidates under the first amend?
Yes; the gov’t may limit contributions to individual candidates because excessive contributions to candidates create a danger of corruption and the appearance of corruption. Limits on campaign contributions to candidates for state office ranging from $275 to $1,000 have been upheld
BUT: the gov’t cannot set differential contribution limits that penalize a candidate who finances his own campaign.
How are contributions to political parties protected under the First Amend?
The gov’t may limit contributions to a particular political party that are used to expressly advocate for the election or defeat of a particular candidate (also known as hard money) as well as contributions that are used for other purposes (aka soft money).
Also, gov’t may require a political party to disclose contributions and recipients unless the party can show that such disclosure would cause harm to the party.
How are PACs regulated?
The gov’t may limit contributions to PACs
How are political campaign expenditures regulated? (contrasted with contributions)
Restrictions on expenditures by individuals and entities including corporations and unions on communications during an election campaign are subject to strict scrutiny. So long as the source of the funding is disclosed, there is no legal limit to the amount that corporations and unions may spend on electioneering communications. Also, expenditures by a candidate on her own behalf cannot be limited.
The gov’t’s ability to regulate the time, place and manner of speech varies with the forum in which the speech takes place. What are traditional versus designated forums?
A ‘public forum’ may be traditional or designated. Traditional public forums are those that are historically associated with expression, such as sidewalks, streets and parks. A designated or limited public forum is one that has not historically been used for speech-related activities, but which the gov’t has opened for such use, such as civic auditoriums, publicly owned theaters or school classrooms that the public is allowed to use after hours.
The practical difference between the two is that that gov’t can change a designated forum to a non-public forum but it cannot do the same with a traditional forum.
How can the government regulate speech in public forums (either kind)
In both traditional and designated forums, the gov’t may impose reasonable restrictions on the time, place and manner of protected speech within the follow guidelines:
Restrictions must be:
- Content-neutral as to both the subject matter and viewpoint (i.e. it is not necessary to ‘screen’ what is said in order to apply the regulation)
- Narrowly tailored to serve a significant governmental interest, and
- leave open ample alternative channels for communication of the information
However, additional restrictions, such as an absolute prohibition of a particular type of expression, will be upheld only if narrowly drawn to accomplish a compelling gov’t interest (i.e. STRICT SCRUTINY). Restrictions that are not content neutral are also subject to strict scrutiny.
How can speech in residential areas by regulated?
There is no right to focus picketing on a single particular residence. However, a person may solicit charitable funds in a residential area. Door-to-door solicitation does not require a permit, as long as the solicitation is for non-commercial or non-fundraising purposes.
How are injunctions on speech in public forums scrutinized?
Depends on whether the injunction is content-neutral or content-based. If an injunction is content neutral, then the test is whether it burdens no more speech than is necessary to achieve an important gov’t interest.
But if an injunction is content-based, it must be necessary for the gov’t to achieve a compelling gov’t interest.
How can schools regulate speech in their facilities (by the public after school hours)?
when a public school, as a designated/limited public forum permits the public to use its facilities, it cannot discriminate against organizations based on its beliefs, religious or political. Similarly, a public school may provide funding and other benefits like the free use of its facilities to student groups, but it must do so on a viewpoint-neutral basis.
EX: a university that provided funds to various student publications could not withhold funds from a student religious publication on the grounds that the publication espoused religion.
EX: A public law school could adopt an ‘all comers’ policy with which student groups must comply in order to receive school funding and other benefits. Application to religious groups constitutional b/c it is viewpoint neutral.
Now can expression be regulated in no public forums?
A non-public forum is essentially all public property that is not a traditional or designated public forum. Examples are: gov’t offices, schools, jails, and military bases. Sidewalks on postal service property and airport terminals are also considered non-public forums. The government may regulate speech-related activities on nonpublic forums as long as the regulation is 1. Viewpoint neutral and 2. Reasonably related to a legitimate governmental interest.
NOTE: a gov’t fundraising campaign is a nonpublic forum for the expression of speech. The decision to exclude some charities but not others cannot be made because the gov’t disagrees with a particular organization’s political views; such a decision must be ideologically neutral.
what is viewpoint neutral? (The standard for nonpublic forums)
The regulation need not be content-neutral, but it must be viewpoint-neutral. In other words, the government may prohibit speech on certain issues altogether, but it may not allow only one side of an issue to be presented. For example, while a restriction on all public speeches related to abortion on military bases would likely be upheld, a restriction on only pro-life speeches would not.
When is a restriction on expression on non-public forum property reasonable?
The restriction on expression in non-public forums must be only rationally related to a legitimate gov’t interest. For example, a city may sell commercial advertising space inside city buses but refuse to sell such space for political advertising in order to avoid the appearance of favoritism and imposition on a captive audience.
