Freedom of Speech

Question 1

what are the primary categories of speech? how is each protected?

Answer 1

o (a) pure speech – protected

o (b) symbolic speech/expressive conduct – O’Brien test
 **this speech gets 1st Am protection if:
• (1) the expression/conduct is intended to convey a message, AND
• (2) there is a great likelihood that the message would be understood by those who viewed it

o (c) non-speech conduct – not protected

Question 2

what is the test for determining if govt regulation of speech is content-based?

Answer 2

o Test (Reed): gov’t regulation of speech is content-based if:
 (1) the law applies to particular speech because of the topic discussed or the idea/message expressed
 (2) the law cannot be justified without reference to the content of the regulated speech, AND
 (3) the law was adopted by the govt because of the message the speech conveys

Question 3

what are our 6 categories of “low value speech”? will the court be open to adding more?

Answer 3

incitement of immediate crime
true threats
obscenity
child pornography
indecent speech
fighting words

the court will not add more unless that kind of speech has never been protected by the courts

Question 4

what is the test for govt regulation of incitement of immediate crime? what is the carveout?

Answer 4

low value speech category

• modern test: the gov’t cannot forbid or prevent advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action (Brandenburg v Ohio)

carveout: when speech is international and made in conjunction with (not just in support of) terrorism - unprotected regardless of whether it is likely to incite imminent violence

Question 5

what is a true threat? what is one common area misconceived as a true threat?

Answer 5

• definition: those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group (Virginia v Black)
o **key point (intent): although the speaker need not actually intend to carry out the threat, the speaker must intend to place the person in fear with his words (i.e. manifest his intent)

common misconception: political hyperbole

Question 6

what is the test for govt regulation of obscenity?

Answer 6

• modern test (Miller v CA):
o (a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest

o (b) whether the work depicts/describes, in a patently offensive way as assessed by contemporary community standards, sexual conduct specifically defined by the applicable state law, AND

o (c) whether the work, taken as a whole, lacks serious literary, artistic, or scientific value (RPP standard, NOT community standard)
 the court may step in on behalf of the jury and determine this element

Question 7

what is the rule on child pornography? what must be present in order to apply the rule?

Answer 7

• general rule: production and distribution of child pornography is not constitutionally protected and does not require a Miller showing (NY v Ferber)
• rule: for the Ferber and Osborne rules to apply, actual minors must be involved in the production of the pornography (Ashcroft v Free Speech Coalition)

Question 8

what are the two key points of govt regulation of indecent speech?

Answer 8

• rule: the govt has greater latitude in regulating broadcast media to prevent exposure of children to indecent material (unwilling captive audience) (FCC v Pacifica)
o thus, the govt may impose restrictions upon indecent speech communicated via broadcast media at times of day when there is a reasonable risk that children may be in the audience

• rule: more restrictive standards (including applying a definition that excludes materials that would not be obscene as applied to adults) can be applied by states to prevent sales to minors without violating 1st Am protections so long as the restriction does not prevent adults from accessing the materials (Ginsberg v NY)

Question 9

what are fighting words? what is the test for their regulation by the govt?

Answer 9

• definition: those words which by the very utterance inflict injury or tend to incite an immediate breach of the peace (Chaplinsky)
o words that are likely to provoke the average person to retaliation and thereby cause a breach of the peace (TX v Johnson)

•	Elements
o	(1) provocative personal insult,
	i.e. concerning the listener
o	(2) direct tendency to cause immediate violence,
o	(3) face-to-face utterance, AND
o	(4) directed at an individual

Question 10

what is the void for vagueness test in the free speech context?

Answer 10

• void for vagueness test: when speech is involved, rigorous adherence to the DP requirements (notice and clarity) is necessary to ensure that ambiguity does not chill protected speech (FCC v Fox)

Question 11

what is the general rule for govt regulation of offensive speech? what is the hostile audience rule and its caveat?

Answer 11

o general rule: this is NOT a low value speech category – so no special protection (Cohen)
 ex) Cohen’s jacket – because “fuck the draft” on the back of the jacket didn’t fall into a low value category, it was deemed permissible

o hostile audience rule: you don’t get to restrict the idea/speech just because you or someone else find it offensive or derogatory or it incites anger (Terminello)

 the exception: when clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace or order appears, the power of the State to prevent or punish is obvious (Feiner v NY)

Question 12

what is the general rule regarding content/viewpoint discrimination of low value speech? what is the exception (4 categories)

Answer 12

low value speech categories are still safe from content/viewpoint-based discrimination (RAV v St. Paul – cross burning case)
• i.e. you can’t ban certain fighting words when banning them all would be just as effective

•	the exception: content discrim with regard to low value speech is only permissible in three situations:
o	(1) when the basis for the content discrim consists entirely of the very reason the entire class of speech at issue is proscribable,
	i.e. the basis for content discrim against obscenity is because it is obscenity (and only because of that)

o	(2) when the subclass of the prohibited speech is based upon secondary effects of the speech not justified by the content of the speech, OR
	mainly adult content

o	(3) when a particular content-based subcategory of a proscribable class is swept up incidentally within the reach of a statue directed at conduct rather than speech
	i.e. when the law is aiming at the conduct and happens to hit some true threats, it’s not going to trigger content-based review

o (additionally, no neutral criteria are necessary for justifying content discrim with regard to low value speech where there is no realistic possibility that official suppression of ideas is afoot)

Question 13

what does a plaintiff need to show in a defamation suit? what are the five gertz categories?

Answer 13

 general rule: plaintiff must demonstrate (1) false facts and (2) fault (negligence or actual malice depending on the plaintiff’s status)

 (1) public officials
• the public official designation applies at the very least to those among the hierarchy of gov’t employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of govt’l affairs
• actual malice: must demonstrate that the statement was made with knowledge that it was false or with reckless disregard as to whether it was false or not
o mere negligence or genuinely not knowing that the statement was false is insufficient (thus actual malice is not shown)

 (2) all-purpose public figures
• persons who occupy positions of such persuasive power and influence that they are deemed public figures for all purposes; individuals with significant fame and notoriety; household names
• actual malice standard applies in suits brought by these figures regarding any matter of their lives

 (3) limited-purpose public figures
• persons who have thrust themselves to the forefront of particular public controversies or the vortex of a public issue in order to influence the resolution of the issues involved, and in doing so, have assumed roles of especial prominence in the affairs of society
• speech on a matter of public concern + public figure for this issue = a limited-purpose public figure; and actual malice standard will apply for defamation limited to this issue

 (4) involuntary public figures
• persons who are drawn into a particular public controversy and become a public figure through no purposeful action of their own
• invariably a matter of public concern will be implicated, and the actual malice standard will apply (doesn’t look much different than “limited purpose” to me)

 (5) private individuals
• if the speech regarding a private individual is on a matter of public concern, plaintiff must prove damages and negligence (not actual malice)

Question 14

what are our two key rules for IIED claims?

Answer 14

 rule: public figures and officials may not recover for IIED without showing actual malice (so same as defamation standard) (Falwell)

 rule: regardless of whether  is a public official, public figure, or private person, she cannot recover for IIED if the IIED claim is predicated on speech that is upon a matter of public concern and addressed to the public unless  can show a false statement of fact which was made with actual malice (Snyder)

Question 15

what is our analysis for govt regulation of commercial speech?

Answer 15

o The Central Hudson Test
 step 1: is this commercial speech?
 step 2: is the commercial speech deceptive or related to an illegal activity?
• if so, it is outside the protections of the 1st Am
• if not, move to step 2
 step 2: for the speech to be restricted:
• (a) the govt interest must be substantial,
• (b) the restriction must directly advance the state’s interest, AND
• (c) the regulation must not be more extensive than necessary to achieve the state interest
o consider if a more limited restriction on the speech would serve the interest as well
o **here, courts have been reluctant to uphold total advertising bans

**need not be the least restrictive means!

Question 16

what is our test for assessing content-neutral regulations on speech? whats the biggest red flag in this area?

Answer 16

o Time, Place, and Manner (TPM) test (Ward)
 a govt’l restriction is constitutional:
• (1) if it is content and viewpoint neutral,
o this acts as a “switching function” -if the govt interest is content/viewpoint based, we will not look to this test
• (2) if it furthers a significant govt interest,
• (3) if it is narrowly tailored, AND
o i.e. not substantially broader than necessary to achieve the govt’s objective
• (4) if it leaves open ample alternatives for communication
o think of Gilleo where the state was preventing all people from putting up all signs in their yards was a TPM restriction, but it was invalid because Gilleo had no reasonable alternative – what was she supposed to do, buy a billboard?

o red flag: courts will be reluctant to permit prohibitions foreclosing entire media

Question 17

what is our general rule and test for govt regulation of symbolic speech/expressive conduct?

Answer 17

rule: a sufficiently important govt interest in regulating the non-speech element of the conduct can justify incidental limitations on the speech aspect of the conduct

 O’Brien Test – a govt’l restriction is constitutional:
• (1) if it is within the constitutional power of the govt,
• (2) if it furthers an important or substantial govt interest,
• (3) if the govt interest is unrelated to the suppression of free expression, AND
• (4) if the incidental restriction on alleged 1st Am freedoms is no greater than is essential to the furtherance of that interest

Question 18

what does the secondary effects doctrine say?

Answer 18

 rule: strict scrutiny will not be applied if the regulation is being driven not by the content but instead by the secondary effects of the content (Renton)

Question 19

what is our rule regarding free speech on public ppty? what are the three designated public forums and their related standards of review?

Answer 19

• rule: the existence of a right of access to public ppty and the standard by which limitations upon such a right must be evaluated differ depending on the character of the ppty at issue (Perry Education Assn)

• (1) traditional public forums
o places that have long been immemorially held in trust for the use of the public in assembly, communicating thoughts between citizens, and discussing public questions (Hague)
o SOR: strict scrutiny for content-based; TPM test for content-neutral

• (2) Designated Public Forums
o those areas intentionally created and designated by the gov’t as open for expressive use by the public

o (a) open – “designated public forum”
 a forum the govt has opened to speech on a broad range of topics
 SOR: strict scrutiny for content-based; TPM test for content-neutral

o (b) limited – “limited public forum”
 a forum that was opened for public forum expression of particular kinds or by particular groups
 SOR:
• content discrimination in this area is not necessarily subject to strict scrutiny – the court will instead assess the govt’s intent with the forum, the nature of the forum, and its compatibility with the speech at issue
• TPM restrictions in this area need only be reasonable and viewpoint neutral

• (3) Non-Public Forums
o government ppty that is neither traditionally a public forum nor which has been opened by the govt as a designated public forum
o SOR: the govt may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and viewpoint neutral

Question 20

what is our general rule and three categorical exceptions for free speech in the public school context?

Answer 20

 general rule: schools can impose restrictions where the forbidden conduct/speech would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school (Tinker)
• **undifferentiated fear of a disturbance is insufficient to overcome 1st Am protections

• categorical exclusions
o schools can prohibit lewd or vulgar speech (Bethel)
 **but merely “offensive speech” is not proscribable (Frederick)
o as long as their actions are “reasonably related to legitimate pedagogical concerns,” educators are entitled to exercise editorial control over school-sponsored expressive activities such as school publications or theatrical productions (Hazelwood)
o schools can restrict speech that can be reasonably regarded as promoting illegal drug use (Morse)

Question 21

what is our test for regulation of active political speech by public employees?

Answer 21

• test: for a government employee to prevail, she must demonstrate that:
o (1) she is not making the statement pursuant to her official duties (Garcetti);
o (2) the speech is on a matter of public concern rather than personal concern (Pickering & Connick); AND
o (3) the speech motivated the termination/sanction/reassignment
o if the employee makes this showing, then the burden shifts to the government to satisfy the Pickering-Connick balancing test:
 the government must demonstrate that its need to efficiently run its operations outweighs the interests of the employee in commenting on matters of public concern
 **note: the government may also prevail by showing that it would have taken the same action irrespective of the employee’s speech

Question 22

what is our general rule and exception for govt regulation of political affiliations of public employees?

Answer 22

• rule: in general, the govt may not make hiring/firing, promotion/demotion, or transfer decisions based upon an employee’s political association or political beliefs (Elrod/Branti/Rutan)
o **does not apply to employment positions where political affiliation or beliefs are an appropriate requirement for the position – burden is on the govt to prove the connection between job efficacy and party affiliation

Question 23

what is our rule and exception for govt limitations on publicly sponsored speech?

Answer 23

 rule: the govt may speak through professional employees and if the government is paying the professional to deliver a certain message then the government may confine the employee to that message irrespective of whether it may be in violation of the employee’s professional norms and obligations (Rust)

• **however if the government is paying for the professional services of the employee but not a specific message then the speech of the employee may not be limited in a manner inconsistent with professional norms and obligations (Velasquez)

Question 24

what is an overbreadth challenge to govt regulation of speech? what are the elements you need to show?

Answer 24

 rule (Jews for Jesus): an overbreadth challenge in the context of the First Amendment is a facial attack upon a speech restriction, arguing the government regulation restricts constitutionally protected speech – in order to be found unconstitutional pursuant to an overbreadth challenge, the measure must:
• (1) sweep within its ambit some constitutionally protected speech, AND
• (2) be substantially overbroad (that is sweep within the reach of the restriction a significant amount of constitutionally protected speech)
o how substantial the overreach has to varies depending upon whether the measure is primarily a limitation upon speech (less needed to be deemed substantial) or conduct (more required for a court to invalidate under the overbreadth doctrine)

Question 25

what are our two primary concerns and our test for vagueness challenges to laws restricting speech?

Answer 25

 rule: the void for vagueness doctrine addresses at least two connected but discrete due process concerns:
• (1) that regulated parties should know what is required of them so they may act accordingly, and
• (2) precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way.
• test: when speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech (Jordan)

Question 26

what is the difference between a prior restraint and regulation on speech?

Answer 26

• prior restraint: “you can’t say that in the first place” like “you can’t publish your newspaper”
• typical regulation upon speech: “you can say that, but you will be subject to penalties in these limited areas where you are not protected by the first amend” like “you can publish your newspaper, but if its libel, you can be sued”

Question 27

what is the general rule regarding injunctions as prior restraints on speech? when will these injunctions be invalidated? what is one area of the law where narrowly-drawn restraints will be upheld?

Answer 27

• collateral bar rule: a court order must be obeyed until it is set aside, and persons subject to the order who disobey it may not defend against any ensuing charge of criminal contempt for violation of the court order on the ground that the order was erroneous or even unconstitutional

o note: this rule will not apply where the court order is transparently unconstitutional, and a good faith appeal is made (Near) because only the most dire of situations justifies a prior restraint

• what makes a court order a “transparently unconstitutional prior restraint”?
o (1) heavy presumption that prior restraints are unconstitutional,
o (2) no statutory authorization to impose this prior restraint,
o (3) does not involve protection in an area identified by the US Supreme Court as a basis for prior restraint (neither national security nor a fair trial right) – privacy interest at stake here insufficient, AND
o (4) unlikely that the injunction would be effective

**national security is a more protected area

Question 28

what are some limitations to the govt imposing licensing requirements (prior restraints) on speech?

Answer 28

• as part of imposing TPM speech restrictions, governmental entities can impose permitting requirements, but their ability to do so is limited in important ways:
o cannot impose permitting systems that do not provide guidance to the permitting decision-maker (unguided discretion is impermissible)
o permitting decisions must be reached utilizing neutral criteria (should be objective not subjective in nature)
o cannot require permits for individuals to engage in door-to-door advocacy
o permitting requirements imposed on individuals and small groups are more likely to be struck down as unconstitutional than those imposed upon large gatherings
o can charge fees but the fees must be content/viewpoint-neutral
 if more than a nominal amount is charged, it must be reasonably related to the expenses incident to the administration of the ordinance and to the maintenance of public safety and order, and must be determined using objective and definite criteria
 additionally, the fees cannot be so excessive as to suppress or unduly burden such activities
o cannot require an unreasonable length of notice prior to event
o cannot unreasonably delay in making decisions regarding permitting
o strict limitations upon mandatory disclosure of all identifying participants, supporters, associated organizations for events

Question 29

what is our analysis for infringement on freedom of association?

Answer 29

1) does the group engage in expressive association?
o the expression can be public or private, need not be a public advocacy group
o if not, then 1st First Amendment protections are not implicated
o if so, move to Step 2

• (2) the court must consider whether a forced inclusion or an impact on the group’s ability to communicate would significantly affect the group’s ability to advocate public or private viewpoints
o (a) the court must assess the nature of the group’s message to determine whether it is implicated by forced inclusion of the member or members
o (b) the court must determine whether the forced inclusion would significantly burden the group’s message
 while the mere assertion by a group that acceptance of the member would significantly burden its message is insufficient, courts should be deferential to a group’s view of what would impair its expression

• (3) if (1), (2)(a), AND (2)(b) are satisfied, then the court conducts a strict scrutiny analysis considering whether the government has a compelling interest, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms

Question 30

what is our “freedom NOT to associate” rule?

Answer 30

 rule: neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay (Janus)

Question 31

when is compelled speech unconstitutional?

Answer 31

 rule: compelled speech/subsidies can be unconstitutional:
• (1) where an individual is obligated by the government to personally express a message with which she disagrees, or
o however, it is constitutional for the govt to speak on its own in a manner with which a citizen disagrees b/c it is govt speech
 ex) having “In God We Trust” on currency is govt speech
• (2) where an individual is required by the government to subsidize a message with which she disagrees that is expressed by a private entity
o however, it is constitutional for the govt to fund such speech through taxation either paid to the general fund or obtained via targeted assessments

Question 32

can the govt regulate campaign contributions?

Answer 32

 rule: Congress can limit the amount of money someone contributes to a campaign, but Congress cannot limit one’s expenditures of their own money to promote that candidate using their own methods (where there is no coordination) (Buckley)
• this rule applies to expenditures of independent political action committees as well (free to spend as much as they want to on their own, but limited in contributions) (California Medical Assn)

Question 33

can the govt regulate party expenditures?

Answer 33

 rule: Congress cannot limit expenditures of a political party that were made independently of that candidate, but Congress can set limits on party spending in coordination with that candidate (CRFCC)

Question 34

can the govt regulate independent expenditures towards campaigns by corps?

Answer 34

 rule: restrictions on independent expenditures by corporations to expressly advocate for or against a political candidate are unconstitutional (Citizens United)
• this is the Hillary: The Movie case
• **court draws a distinction:
o pocket to pocket contributions (business to candidate) may be regulated under Buckley
o but independent expenditures (business running its own ad) may NOT be regulated
o gov’ts interest in preventing corruption does not outweigh the corporation’s free speech interest