Freedom of Speech and Assembly

Question 1

What is the freedom of speech and assembly?

Answer 1

The First Amendment prohibits Congress from abridging the freedoms of speech and press or interfering with the right of assembly, or from establishing a religion, or interfering with the free exercise of religion (see Module 13). These prohibitions are applicable to the states through the Fourteenth
Amendment

Question 2

What is speech?

Answer 2

Speech includes words, symbols, and expressive conduct. Expressive conduct is any kind of conduct that is either inherently expressive or conduct that is:
• Intended to convey a message, and
• Reasonably likely to be perceived as conveying a message

Question 3

What is unprotected speech?

Answer 3

Some categories of speech, referred to as “unprotected” speech, lack First Amendment protection and generally may e censored. Certain categories (defamation and commercial speech) only receive partial protection. All other types of speech are protected speech.

Question 4

What is incitement?

Answer 4

Speech can be censored as incitement if it is (1) intended to produce imminent lawless action and (2) likely to produce such action.

Question 5

What are fighting words?

Answer 5

Speech can be censored if it constitutes fighting words (personally abusive words that are likely to incite immediate physical retaliation in an average person). Words that are merely annoying won’t do. a. True Threats
The First Amendment also does not protect true threats, which are words that are intended to convey to someone a serious threat of bodily harm. b. Statutes Can’t Be Viewpoint-Based
Even though fighting words are unprotected, the Supreme Court won’t allow fighting words statutes that are designed to punish only certain viewpoints (for example, prohibiting only fighting words that insult on the basis of race, religion, or gender).

Question 6

What is obscenity and what are the elements?

Answer 6

Obscene speech is not protected.
a. Elements
Speech is obscene if it describes or depicts sexual conduct specified by statute that, taken as a whole, by the average person:
• Appeals to the prurient interest in sex, using a contemporary community standard
• Is patently offensive under contemporary community standards AND
• Lacks serious value (literary, artistic, political, or scientific), using a national, reasonable person standar

Question 7

What else can be regulated under obscenity?

Answer 7

b. Private Possession of Obscene Material
Private possession of obscene material in the home cannot be punished (except for possession of child pornography). However, the protection does not extend outside the home.
c. Child Pornography
To protect minors from exploitation, the government may prohibit the sale or distribution of visual depictions of sexual conduct involving minors, even if the material would not be found obscene if it did not involve children.
Compare—Simulated Pictures of Minors
The government can’t bar visual material that only appears to depict minors engaged in sexually explicit conduct, but that actually uses young-looking adults or computer-generated images.
d. Obscenity Standard May Be Different for Minors
The state can adopt a specific definition of obscenity applying to materials sold to minors, even though the material might not be obscene in terms of an adult audience. However, the government can’t prohibit the sale or distribution of material to adults just because it’s inappropriate for children.
e. Land Use Regulations
A land use (or zoning) regulation may limit the location or size of adult entertainment establishments if the regulation is designed to reduce the secondary effects of such businesses (for example, to protect children and unwilling adults from exposure, or to prevent neighborhood crime and decay). However, these regulations can’t ban such establishments altogether.

Question 8

Can liquor be regulated?

Answer 8

Under the Twenty-First Amendment, states have broad power to regulate intoxicating beverages. Laws relating to this power that affect free speech rights generally will not be set aside unless they are irrational.

Question 9

What is defamatory speech?

Answer 9

Defamatory statements can be subject to tort liability. If the defamatory statement is about a public official or public figure or involves a matter of public concern, the First Amendment requires the plaintiff to prove all the elements of defamation plus falsity and some degree of fault in order to recover.

Question 10

What happens when a public official or public figure is suing?

Answer 10

If the plaintiff is a public official or figure, then regardless of whether the defamation is on a matter of public or private concern, the degree of fault the plaintiff must show is actual malice.

Question 11

What is actual malice?

Answer 11

To show actual malice, the plaintiff must prove by clear and convincing evidence that the alleged defamatory statement was made with:
• Knowledge that it was false or
• reckless disregard as to its truth or falsity

Question 12

Who are public officials?

Answer 12

Public officials include people (1) holding or running for elective office (at any level), and (2) public employees in positions of public importance (for example, prosecutor, school principal, police officer).

Question 13

Who are public figures?

Answer 13

Public figures are people who have (1) assumed roles of prominence in society, (2) achieved pervasive fame and notoriety, or (3) thrust themselves into particular public controversies to influence their resolution.

Question 14

What are matters of public concern?

Answer 14

Matters of public concern are issues important to society or democracy. The courts decide on a case-by-case basis whether the defamatory statement involves a matter of public concern, looking at the content, form, and context of the publication.

Question 15

What happens when a private figure sues on a matter of public concern?

Answer 15

If the plaintiff is a private figure and the defamatory statement involves a matter of public concern, the plaintiff can only recover actual damages if the plaintiff only shows negligence. To recover punitive damages or presumed damages they need to show actual malice.

Private Figure Suing on Matter of Private Concern If the plaintiff is a private figure suing on a matter of private concern, then the First Amendment is not involved. These plaintiffs can recover for any damages that state law allows, even if they can’t show actual malice.

Question 16

What is needed to show intentional infliction of emotional distress?

Answer 16

The Supreme Court has required proof of actual malice for recovery under the torts of intentional infliction of emotional distress and other torts (for example, invasion of the right to privacy) where the plaintiff is a public figure or official, or where the speech is on a matter of public concern.

Question 17

What is commercial speech?

Answer 17

Commercial speech (that is, advertisements, promotions of products and services, brand marketing) is not protected if it is (1) false, (2) misleading, or (3) about illegal products or services. Any other regulation of commercial speech will be upheld only if it:
• serves a substantial government interest,
Directly advances that interest, and
• Is narrowly tailored to serve that interest

Question 18

What else is happens with commercial speech?

Answer 18

a. Complete Bans
Complete bans on truthful advertisement of lawful products are very unlikely to be upheld due to a lack of a legitimate government interest.
b. Required Disclosures
The government may require commercial advertisers to make disclosures if the disclosures are not unduly burdensome and they are reasonably related to the state’s interest in preventing deception.

Question 19

What types of regulations are applied to speech?

Answer 19

Speech and assembly regulations can generally be categorized as either content-based or content-neutral.

Question 20

What are content-based regulations?

Answer 20

Content-based regulations are subject to strict scrutiny, and they are presumptively unconstitutional (unless they fall within one of the categories of unprotected speech, like obscenity). A regulation is content-based if it restricts speech based on the subject matter or viewpoint of the speech

Question 21

What are content-neutral regulations?

Answer 21

Content-neutral restrictions on speech (that is, restrictions that are both subject matter-neutral and viewpoint-neutral) generally are subject to intermediate scrutiny; that is, they must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary (or must be narrowly tailored) to further those interests. Oftentimes these are in the form of time, place, and manner restrictions (in other words, restrictions on the conduct related to speech). (The specific standards for time, place, and manner restrictions on government property are discussed in Section 12.4, infra.)

Question 22

What types of speech restrictions take place on government property?

Answer 22

The extent to which the government may regulate speech or expressive conduct on government property depends on whether the property involved is a public forum, a designated public forum, a limited public forum, or a nonpublic forum

Question 23

What are traditional public forums and designated public forums?

Answer 23

Public property (that is, government-owned property) that has historically been open to speech-related activities (for example, streets, sidewalks, and public parks) is called a public forum. Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy (for example, a town hall open for use by social, civic, or recreation groups), is called a designated public forum.

Question 24

What are the levels of scrutiny?

Answer 24

If the regulation on a traditional public forum or designated public forum is content-based, it will be subject to strict scrutiny. But if it’s content-neutral (again, both subject matter-neutral and viewpoint-neutral, usually going to the time, place, or manner of speech), it only needs to meet intermediate scrutiny, which in this context means it must:
• Be narrowly tailored to serve an important government interest (however, it need not be the least restrictive
means for accomplishing the interest) and
• Leave open alternative channels of communication

Question 25

What are injunctions against speech?

Answer 25

Injunctions against speech in public forums are treated the same as other speech restrictions. If the injunction is content-based, it must be necessary to achieve a compelling interest.
If the injunction is content-neutral, it must burden no more speech than is necessary to achieve an important government interest.

Question 26

What are limited public forums and nonpublic forums?

Answer 26

Speech and assembly can be more broadly regulated in limited public forums and nonpublic forums. Limited public forums are government forums not historically open generally for speech and assembly but opened for specific speech activity, like a school gym opened to host a debate on a particular community issue, or a public university’s funding of student publications. Nonpublic forums are government property not historically open generally for speech and assembly and not held open for specific speech activities, such as military bases or government workplaces. The government can regulate speech in such forums to reserve the forum for its intended use. In such locations, regulations are valid if they are:
• Viewpoint neutral and
• Reasonably related to a legitimate government purpose
If the regulation is viewpoint based, it will be subject to strict scrutiny

Question 27

What are speech restrictions in public schools?

Answer 27

Generally, public primary and secondary schools (that is, elementary, middle, and high schools) and school-sponsored activities in those schools are not public forums. Therefore, speech (and association) can be reasonably regulated in them
to serve the school’s educational mission (as illustrated below).

Question 28

How is personal student speech on campus regulated?

Answer 28

A student’s own personal speech (that is, their expression of themselves as individuals) on campus cannot be censored absent evidence of substantial disruption. Exception: Speech promoting illegal drug use does not require showing any disruption or credible threat of disruption.

Question 29

How is personal student speech off campus regulated?

Answer 29

When the student’s personal speech occurs off-campus, it will be harder to censor. Schools will be limited to restricting speech to prevent cheating, bullying, threats, and other speech where pedagogical or safety interests clearly outweigh the speech interests of students as private citizens.

Question 30

How is school speech regulated?

Answer 30

Restrictions on speech related to the school’s teaching (for example, speech by school faculty and by students as part of curricular or extracurricular activities) must be reasonably related to legitimate pedagogical concerns.

Question 31

Are there restraints on speech activities of government Employees?

Answer 31

Under the First Amendment, speech generally cannot be regulated or punished based on the content of the speech unless the regulation or punishment is necessary to achieve a compelling government interest. However, special rules apply when the government seeks to punish a government employee for speech or speech-related activities.

Question 32

What is unprotected employee speech?

Answer 32

If a government employee’s speech while at work involves a matter of private concern, the employer can punish the employee if the speech was disruptive of the work environment. A government employer may also punish a public employee’s speech whenever the speech is made on the job and pursuant to the employee’s official duties, even if the speech touches on a matter of public concern. There is no First Amendment protection in either situation.

Question 33

What is protected employee speech?

Answer 33

If the speech is on a matter of public concern but is not made pursuant to the employee’s official duties, the courts will use a balancing test. The courts must balance the value of the speech against the government’s interest in the efficient operation of the workplace. For speech on matters of private concern outside of the workplace, the test is unclear, but this speech appears protected absent a detrimental effect on the workplace.

Question 34

What happens when there is participation in political campaigns?

Answer 34

The federal government may prohibit federal executive branch employees from taking an active part in political campaigns

Question 35

What is the ban on receiving honoraria?

Answer 35

A provision banning government employees from accepting an honorarium for making speeches, writing articles, or making appearances was held to violate the First Amendment when applied to “rank and file” employees. Such a rule deters speech within a broad category of expression by a massive number of potential speakers and so can be justified only if the government can show that the employees’ and their potential audiences’ rights are outweighed by the necessary impact the speech would have on actual operation of the government.

Question 36

What is patronage?

Answer 36

A public employee may not be hired, fired, promoted, transferred, etc., based on party affiliation or political views except as to policymaking positions, where party affiliation and views are relevant.

Question 37

What are loyalty oaths?

Answer 37

The government can require employees to take loyalty oaths, as long as the oaths aren’t overbroad or vague.

Question 38

What is overbreadth in oath restrictions?

Answer 38

An oath can’t prohibit membership in the Communist Party or require abstention from advocating overthrow of the government as an abstract doctrine.

Question 39

What is an oath?

Answer 39

An oath requiring public employees to support the Constitution and to oppose the unlawful overthrow of the government is valid; but an oath requiring public employees to support the flag is invalid.

Question 40

What is the disclosure of associations?

Answer 40

The government may not force disclosure of every organizational membership or affiliation in exchange for a government employment or other benefit; it can only inquire into those activities that are relevant to the employment or benefit sought. Even here, however, a person can exercise their Fifth Amendment right to remain silent if the disclosure would be incriminating.

Question 41

What is the void for vagueness doctrine?

Answer 41

If a criminal law or regulation fails to give persons reasonable notice of what is prohibited (for example, a ban on “opprobrious and offensive” words), it may violate the Due Process Clause. This principle is applied more strictly when First Amendment activity is involved.

Question 42

When is an overbroad regulation invalid?

Answer 42

A regulation of speech or speech-related conduct will be invalidated as overbroad if it punishes substantially more speech than is necessary.

Question 43

What is the effect of overbroad regulation?

Answer 43

An overbroad regulation is facially invalid (that is, it may not be enforced against anyone—not even a person engaging in activity that is not constitutionally protected), unless a court has
limited construction of the regulation so as to remove the threat to constitutionally protected expression. If the regulation is not
substantially overbroad, it can be enforced against persons engaging in activities that are not constitutionally protected.

Question 44

What are prior restraints?

Answer 44

Prior restraints are court orders or administrative systems that prevent speech before it occurs, rather than punish it afterwards (for example, licensing systems, injunctions). They are not favored and are rarely allowed (especially if they’re content-based). There isn’t any special test for prior restraints—content-based ones are subject to strict scrutiny and content-neutral ones are subject to intermediate scrutiny—but the government’s burden in justifying a prior restraint is heavy. For exam purposes, you should ask whether there is some special societal harm that justifies the restraint.

Question 45

What are procedural safeguards?

Answer 45

To be valid, a system for prior restraint must provide the following safeguards:
• The standards must be narrowly drawn, reasonable, and definite,
• The injunction must promptly be sought (if the restraining body wishes to restrain the dissemination of certain speech), and
• There must be prompt and final judicial determination of the validity of the restraint (for example, a review of a permit denial).
A number of other cases, especially in the area of movie censorship, require that the government bear the burden of proving that the speech involved is unprotected.

Question 46

Can you give officials unfettered discretion?

Answer 46

As indicated above, a regulation cannot give officials broad discretion over speech issues; there must be defined standards for applying the law. Therefore, if a statute gives licensing officials unbridled discretion, it is void on its face and speakers don’t even need to apply for a permit. If the licensing statute includes standards (discussed above), a speaker can’t ignore the statute; they must seek a permit and if it is denied, they can challenge the denial on First Amendment grounds.

Question 47

What are the obscenity cases?

Answer 47

c. Obscenity Cases
Seizures of Books and Films
Seizures of a single book or film may be made with a warrant based on probable cause, although if the item is available for sale to the public, a police officer may purchase a book or film to use as evidence without a warrant. Large-scale seizures must be preceded by a full-scale adversary hearing and a judicial determination of obscenity.
Movie Censorship
The Court has found that time delays incident to censorship are less burdensome on movies than on other forms of expression. So, the Court allows the government to establish censorship boards to screen movies before they are released, as long as the procedural safeguards discussed above are followed.
Burden of Government
When the government adopts a content-based prior restraint of speech, the government has the burden of proving that the restriction is narrowly tailored to achieve a compelling interest (strict scrutiny) or that the speech is unprotected (for example, obscenity)

Question 48

What is freedom of the press?

Answer 48

Generally, the press (along with corporations, unions, and expressive associations, like a lobbying group) has no greater First Amendment freedom than does a private citizen. They are treated just like any individual speaker. Thus, the concepts already discussed apply.

Question 49

What happens with the publication of truthful information?

Answer 49

Generally, the press has a right to publish truthful information regarding a matter of public concern. Content-based restrictions on the press are subject to strict scrutiny

Question 50

Does the press have access to trials?

Answer 50

The First Amendment guarantees the public and press a right to attend criminal (and probably civil) trials. But, the right may be outweighed by an overriding interest stated in the trial judge’s findings (for example, to protect children who are victims of sex offenses). The right includes the right to be present at voir dire and at other pretrial proceedings unless the judge makes specific findings that closure was narrowly tailored to preserve a higher value.

Question 51

Does the press have to testify before a grand jury?

Answer 51

Members of the press may be required to testify before grand juries.

Question 52

Can the press interview prisoners?

Answer 52

The First Amendment doesn’t give journalists a right to interview specified prisoners of their choice or to inspect prison grounds.

Question 53

What is the business regulation or tax?

Answer 53

The press and broadcasting companies can be subjected to general business regulations or taxes but can’t be targeted for special regulations or taxes. A tax or regulation impacting on the press or a subpart of the press cannot be based on the content of a publication (for example, a tax exemption cannot be given to “medical journals”) absent a compelling justification

Question 54

What are broadcast regulations?

Answer 54

Radio and television broadcasting may be more closely regulated than the press. The government may protect viewers and listeners from indecent speech over the airwaves because of the uniquely pervasive and accessible nature of broadcasting. The government may also manage access and ownership of broadcast spectrum to promote the public interest in receiving information

Question 55

What is the fairness doctrine?

Answer 55

The First Amendment doesn’t require broadcasters to accept political advertisements. However, a radio station may constitutionally be required to offer free broadcasting time to certain individuals (for example, opponents of political candidates or views endorsed by the station, or persons who have been personally attacked in a broadcast).

Question 56

What are the internet and cable television regulations?

Answer 56

Cable and internet regulations get strict scrutiny if they are content-based and intermediate scrutiny if they are content-neutral.

Question 57

Does free speech apply to government speech?

Answer 57

The Free Speech Clause does not apply to government speech. Therefore, the government is generally free to express its views and to fund private speech that furthers its views while refusing to fund other private speech, absent some other constitutional limitation, such as the Establishment Clause. Generally, government funding of speech will be upheld if rationally related to a legitimate state interest.

Question 58

What are the limitations on government speech?

Answer 58

a. Compelling Private Speech
The freedom to speak includes the freedom not to speak. Thus, the government generally cannot require people to salute the flag or display other messages with which they disagree.
Mandatory Financial Support
Although the government can’t compel a person to express a message, it may tax people and use the revenue to express a message with which they disagree (for example, a beef producer can be required to pay an assessment to support government-sponsored generic advertising of beef even if the producer thinks generic advertising is a waste of money). However, people cannot be compelled to subsidize private messages with which they disagree (for example, although lawyers may be compelled to pay bar dues, non-union members cannot be compelled to pay union dues because the money may be used to support political views with which the non-union members disagree).
— Exception—University Activity Fees
The government can require public university students to pay a student activity fee even if the fee is used to support political and ideological speech by student groups whose beliefs are offensive to the student, as long as the program is viewpoint neutral

Question 59

What conditions can be attached to spending programs?

Answer 59

Spending programs may not impose conditions that limit First Amendment activities of fund recipients outside of the scope of the spending program itself. For example, the government can’t require recipients of federal funds given to organizations to combat HIV/AIDS to agree in their funding documents that they oppose prostitution.

Question 60

What happens when there is government funding of private speech?

Answer 60

c. Government Funding of Private Speech
When the government chooses to fund private messages (for example, college group newsletters), it generally must do so on a viewpoint-neutral basis.
Exception—Funding of the Arts
From a financial standpoint, the government can’t fund all artists, and choosing among those it will fund and those it will not inevitably must be based on the content of the art

Question 61

Is trademark protection government speech?

Answer 61

Trademark protection is not government speech, but rather it’s private speech. Thus, content-based restrictions on trademarks are subject to strict scrutiny.

Question 62

What is the freedom of association?

Answer 62

Although the freedom of association is not mentioned explicitly in the Constitution, it’s clearly implied from the rights that are explicitly noted. Pursuant to this freedom, the government may neither prohibit politically unpopular groups nor unduly burden a person’s right to belong to such groups. If the right to association is substantially burdened by a content-based regulation, strict scrutiny is triggered. But a content-neutral regulation that incidentally burdens association is only subject to intermediate scrutiny.

Question 63

What is the electoral process?

Answer 63

Laws regulating elections might impact on the First Amendment freedoms of speech, assembly, and association. The Court uses a balancing test to determine whether a regulation of the electoral process is valid: If the restriction on First Amendment activity is severe, it must be narrowly tailored to achieve a compelling interest (that is, strict scrutiny), but if the restriction is reasonable and nondiscriminatory, it generally will be upheld.

Question 64

What are the limits on contributions?

Answer 64

A statute limiting election campaign contributions is subject to intermediate scrutiny—it must be closely drawn to match a “sufficiently important interest.” To prevent corruption or the appearance of corruption, laws may limit the amount of money that a person, group, or corporation can contribute to a political candidate. But the government may not limit the amount of money that may be spent to support or oppose a ballot referendum.

Question 65

Can there be limits on aggregate contribution?

Answer 65

The government cannot limit the aggregate amount one person or entity contributes to political candidates or committees during an election, even though it can limit the amount given to a single candidate. Aggregate limits violate the First Amendment’s protection of political speech because unlike individual contribution limits, they do not further the government’s interest in preventing quid pro quo corruption or the appearance of such, and they seriously restrict participation in the democratic process.

Question 66

What are the limits on expenditures?

Answer 66

Laws may not limit the amount that a candidate spends on a political campaign. Neither may the government limit the amount that a person spends to get a candidate elected, as long as the expenditures are not contributed directly to the candidate nor coordinated with those of the candidate—that is, the expenditures must be independent of the candidate and not disguised contributions.

Question 67

What is the regulation of core political speech?

Answer 67

Regulation of “core political speech” (for example, electioneering, distributing campaign literature), rather than regulation of the process surrounding an election, will be upheld only if it satisfies strict scrutiny. Under this standard, a state may ban personal solicitation of campaign funds by judicial candidates because such a ban advances the state’s compelling interest in preserving public confidence in the integrity of the judiciary. An ad concerning a political issue will be considered protected core political speech unless it’s susceptible of no reasonable interpretation other than one as an appeal to vote for or against a particular candidate.