Freedom of Speech Part 2

Question 1

Content-Based Regulations

Answer 1

• subject to strict scrutiny
• presumptively unconstitutional (unless they fall within one of the categories of unprotected speech)
• reg is content-based if it restricts speech based on subject matter or viewpoint of the speech

Question 2

Content-Neutral Regs

Answer 2

• BOTH subject matter-neutral and viewpoint-neutral
• generally subject to intermediate scrutiny -> must advance important interests unrelated to the suppression of the speech and must not burden substantially more speech than necessary (or must be narrowly tailored) to further those interests
• often in form of time, place, and manner restrictions

Question 3

Speech Restrictions on Gov Property

Answer 3

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

Question 4

Traditional Public Forums - Definition

Answer 4

• public property (i.e. gov-owned property) that has historically been open to speech-related activities
  -> ex: streets, sidewalks, public parks

Question 5

Designated Public Forum - Definition

Answer 5

• public property that has not historically been open to speech-related activities but which the gov has thrown open for such activities on a permanent or limited basis, by practice or policy
  -> ex: a town hall open for use by social, civic, or recreational groups

Question 6

Traditional and Designated Public Forums - Level of Scrutiny

Answer 6

• if reg on one of these forums is content-based, it will be subject to strict scrutiny
• if content-neutral, only needs to meet intermediate scrutiny -> must:
  -> be narrowly tailored to serve important gov interest (though need not be the least restrictive means here) AND
  -> leave open alternative channels of communication

Question 7

Traditional and Designated Public Forums - Injunctions

Answer 7

• injunctions against speech in public forums are treated the same as other speech restrictions
• if injunction is content-based, must be necessary to achieve a compelling interest
• if content-neutral, must burden no more speech than necessary to achieve important gov interest

Question 8

Limited Public Forums - Definition

Answer 8

• gov forums not historically open generally for speech + assembly but opened for specific speech activity
  -> ex: school gym opened to host a debate on a particular community issue or public university’s funding of student publications

Question 9

Nonpublic Forums - Definition

Answer 9

• gov property not historically open generally for speech + assembly and not held open for specific speech activities (ex: military bases, gov workplaces)

Question 10

Regulation of Speech in Nonpublic and Limited Public Forums

Answer 10

• gov can regulate speech to reserve the forum for its intended use
• regs are valid if they are:
  a) viewpoint neutral AND
  b) reasonably related to a legitimate gov purpose
• BUT if reg is viewpoint based, will be subject to strict scrutiny

Question 11

Speech Restrictions in Public Schools - Overview

Answer 11

• generally, public primary + secondary schools + related school-sponsored activities aren’t public forums
  -> speech can be reasonably regulated n these forums to serve the school’s educational mission

Question 12

Personal Student Speech On Campus

Answer 12

• student’s own personal speech (expression of self as individual) on campus CAN’T 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 13

Personal Student Speech Off Campus

Answer 13

• speech off campus harder to censor
• schools limited to restricting speech to prevent cheating, bullying, threats, + other speech where pedagogical or safety interests clearly outweigh speech interests of students as private citizens

Question 14

School Speech

Answer 14

• restrictions on speech related to the school’s teaching must be reasonably related to legitimate pedagogical concerns
  -> ex: speech by school faculty and by students as part of curricular or extracurricular activities

Question 15

Restraints on Speech Activities of Gov Employees

Answer 15

• special rules apply when gov seeks to punish gov employees for speech or speech-related activities

Question 16

Gov Employees - Unprotected Speech

Answer 16

• if gov employee’s speech while at work involves a matter of private concern, employer can punish employee if the speech was disruptive of the work environment
• gov employer may also punish a public employee’s speech whenever made on job + pursuant to employee’s official duties, even if the speech touches on a matter of public concern
• no 1st Am protection in either situation

Question 17

Gov Employees - Protected Speech

Answer 17

• if speech on a matter of public concern but not made pursuant to employee’s official duties, courts will use a balancing test
  -> balance value of the speech against gov’s interest in efficient operation of the workplace
• for private concerns outside workplace, test unclear but appears protected absent detrimental effect on workplace

Question 18

Gov Employees - Participation in Political Campaigns

Answer 18

• fed gov MAY prohibit fed exec branch employees from taking an active part in political campaigns

Question 19

Gov Employees - Honoraria

Answer 19

• a provision banning gov employees from accepting honoraria for making speeches, writing articles, or making appearances was held to violate 1st Am when applied to rank and file employees
• deters speech w/in a broad category of expression by a massive number of potential speakers -> can be justified only if gov can show that the employees’ + their potential audiences’ rights are outweighed by necessary impact the speech would have on actual operation of gov

Question 20

Gov Employees - Patronage

Answer 20

• public employee may not be hired, fired, promoted, transferred ,etc based on party affiliation or political views except as to policy-making positions, where party affiliation and views are relevant

Question 21

Gov Employees - Loyalty Oaths

Answer 21

• gov can require employees to take loyalty oaths, as long as NOT overbroad or vague
• oath can’t prohibit membership in the Communist Party or require abstention from advocating overthrow of the gov as an abstract doctrine
• oath CAN require employees to support Con + oppose UNLAWFUL overthrow of gov
• can’t require employees to support the flag

Question 22

Gov Employees - Disclosure of Associations

Answer 22

• gov may not force disclosure of every org membership or affiliation in exchange for gov employment or other benefit
• can only inquire into those activities that are relevant to the employment or benefit sought
• person can exercise 5th Am right to remain silent if disclosure would be incriminating