Freedom of expression/association

Question 1

Regulation of speech

Answer 1

1. Expressive conduct (symbolic speech)—Regulation upheld if
   • It is within the government’s power to enact
   • It furthers an important governmental interest
   • Interest is unrelated to suppression of ideas, and
   • Burden on speech no greater than necessary
2. Overbreadth
   • Void if burdens a substantial amount of speech or constitutionally protected conduct
   • A few possible impermissible applications of statute not sufficient to make it overbroad
   • Overbroad statutes may be challenged as “facially invalid” to prevent chilling effect on protected speech
3. Vagueness
   • Statute void for vagueness if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited
4. Prior restraints (regulation of speech in advance of its expression)
   • Invalid unless there is a particular harm to be avoided and certain procedural safeguards are provided to the speaker, for example
   o Narrowly drawn/reasonable/definite standards
   o Promptly sought injunction
   o Prompt/final decision on validity of restraint
   • Burden on government to prove censored material not protected speech
5. Unfettered discretion
   • Statute giving officials unfettered discretion is void on its face; speakers need not apply for permit and may not be punished for violation
   • Statute must provide definite standards to officials on how to apply the law to restrict speech
   • Statute must be related to important governmental interest and contain aforementioned procedural safeguards
6. Freedom not to speak
   • Cannot be forced to speak
   • Cannot be forced to fund political speech by a group one is compelled to join with respect to one’s employment
7. Government speech
   • Need not be viewpoint-neutral, but is subject to the Establishment Clause
8. Campaign related speech
   • Statutes limiting campaign contributions subject to intermediate scrutiny
   • Restrictions on campaign expenditures on communications during election campaign regarding a candidate subject to strict scrutiny

Question 2

Time/place/manner of expression

Answer 2

1. Public forum
   • Traditional—historically associated with expression (e.g., sidewalks, streets or parks)
   • Designated (limited)—not historically used for speech-related activities but which government has opened for such use (e.g., civic auditoriums, publicly owned theaters, or school classroom off-hours)
   • Restrictions must be
   o Content-neutral as to both subject matter and viewpoint
   o Narrowly tailored to serve a significant governmental interest, and
   o Leave open ample alternative channels for communication
   • Subject to strict scrutiny if not content-neutral
   • Injunction in public forum
   o Content-neutral—Must not burden more speech than is necessary to achieve an important governmental interest
   o Content-based—Must be necessary for the government to achieve a compelling governmental interest
2. Nonpublic forum
   • Definition—All public property that is not a traditional or designated forum
   • Regulation—Must be viewpoint-neutral and reasonably related to a legitimate governmental interest
   o Viewpoint-neutral—Government may prohibit speech on certain issues altogether but can’t allow only one side of issue to be presented
   o Reasonable—Restriction only needs to satisfy rational basis test
   • Speech on one’s own private property—regulations rarely upheld

Question 3

Regulation of content

Answer 3

Whether content-based on its face or in application, generally subject to strict scrutiny, except

1. Obscenity and child pornography not protected by 1st Amend.
   • Obscenity test—Average person, applying contemporary community standards, must find that material taken as a whole
   o Appeals to the prurient interest
   o Depicts sexual conduct in a patently offensive way, and
   o Lacks serious literary, artistic, political, or scientific value (national standards)
2. Incitement to violence—State may forbid speech advocating use of force or unlawful action if:
   • Speech is directed to inciting or producing imminent lawless action, and
   • It is likely to incite or produce such action (a clear and present danger)
3. Fighting words—Words that by their very nature are likely to incite an immediate breach of the peace
   • Annoying/offensive words not enough
   • Must be genuine likelihood of imminent violence by hostile audience
4. Defamation
   • If P is public figure, or statement involves matter of public concern, P must prove fault and falsity in addition to prima facie case
   o Public figure—if P known to general public or voluntarily injects herself into public eye, must prove D acted with actual malice
   o Public concern—if P is private figure but statement is matter of public concern, need only prove negligence with respect to falsity
5. Commercial speech—Restrictions subject to four-part test
   • Commercial speech must concern lawful activity and be neither false nor misleading
   • Asserted governmental interest must be substantial
   • Regulation must directly advance asserted interest
   • Regulation must be narrowly tailored to serve interest (meaning a “reasonable fit” between government’s ends and means chosen to accomplish them)

Question 4

Regulation of media

Answer 4

General considerations
• Regulation of right to publish matters of public concern subject to strict scrutiny
o Gag orders—Subject to prior restraint analysis and rarely upheld
o Attending trials—Right to attend may be outweighed by overriding interest that can’t be accommodated by less restrictive means
o Illegally obtained private info—Permitted to publish if 3rd party (unknown to publisher) obtained info and involves matter of public concern
o No constitutional right to protect source

1. Broadcast
   • Greater responsibility to public, thus more closely regulated than print and other media
2. Cable television
   • Content-based regulations subject to strict scrutiny
3. Internet
   • Any regulation of content subject to strict scrutiny

Question 5

Regulation of association

Answer 5

1. Freedom of association protects right to form or participate in any group, gathering, club, or organization virtually without restriction, but right not absolute
   • Infringement may be justified by compelling state interest
   • Deprivation of public employment based on political association is allowed if
   o Person is active member of subversive organization
   o Has knowledge of organization’s illegal activity, and
   o Has specific intent to further those illegal objectives