Freedom of Speech Part 3

Question 1

Void for Vagueness Doctrine

Answer 1

• if a criminal law or reg fails to give persons reasonable notice of what is prohibited (ex: ban on “opprobius and offensive” words), it may violate the Due Process clause
• principle gets applied more strictly when 1st Am activity is involved

Question 2

Speech and Overbroad Regs

Answer 2

• reg of speech invalid if punishes substantially more speech than necessary
• overbroad reg = facially invalid (can’t enforce against anyone) unless court has limited construction of the reg to remove the threat to constitutionally protected expression
  -> BUT courts consider invalidation severe -> will only impose if the unconstitutional applications of the law are realistic and substantially disproportionate to the statute’s lawful sweep
• if reg not substantially overbroad, it can be enforced against persons engaging in activities that are not constitutionally protected

Question 3

Prior Restraints

Answer 3

• court orders or administrative systems that prevent speech before it occurs, rather than punish afterwards
• not favored + rarely allowed
• no special test (content-based ones subject to strict scrutiny + content-neutral ones subject to intermediate scrutiny) but gov bears heavy burden
  -> on exam, ask if there’s some special societal harm that justifies the restraint

Question 4

Prior Restraints - Procedural Safeguards

Answer 4

To be valid, a system for prior restraint must provide the following safeguards:
- standards must be narrowly drawn, reasonable, + definite
- injunction must promptly be sought AND
- must be prompt + final judicial determination of the validity of the restraint

• a number of other cases, especially in area of movie censorship, require that gov bear burden of proving that the speech involved is unprotected

Question 5

Prior Restraints - Discretion of Officials

Answer 5

• need definite standards for applying prior restraint laws-> officials can’t have broad discretion over speech issues
• means that a statute is void on its face if it gives licensing officials unbridled discretion
  -> vs. if a licensing statute includes standards, speaker can’t ignore the statute -> must seek a permit + can challenge denial on 1st Am grounds if denied

Question 6

Prior Restraints - Obscenity wrt Books and Films

Answer 6

• seizure of a single book or film may be made w/ a warrant based on probable cause
  -> if the item is available for sale to public though, police officer may purchase book or film to use as ev w/o warrant
• large-scale seizures must be preceded by a full-scale adversary hearing + a judicial determination of obscenity

Question 7

Movie Censorship

Answer 7

• time delays incident to censorship are considered less burdensome on movies than on other forms of expression -> SCOTUS allows gov to established censorship boards to screen movies before they’re released, as long as procedural safeguards for prior restraints are followed

Question 8

Prior Restraint - Gov’s Burden

Answer 8

• when gov adopts a content-based prior restraint of speech, gov has burden of proving that the restriction is narrowly tailored to achieve a compelling interest (strict scrutiny) or that the speech is unprotected

Question 9

Freedom of the Press

Answer 9

• press generally has no greater 1st Am freedom than a private citizen
  -> treated like any individual speaker + all above concepts apply

Question 10

Press - Publication of Truthful Info

Answer 10

• press generally has right to publish truthful info regarding a matter of public concern
• content-based restrictions on press are subject to strict scrutiny

Question 11

Press - Access to Trials

Answer 11

• 1st Am guarantees public + press right to attend criminal (and probably civil) trials
• right may be outweighed though by overriding interest stated in the trial judge’s findings
• right includes right to be present at voir dire and at other pretrial proceedings, unless judge makes specific findings that closure was narrowly tailored to preserve a higher value

Question 12

Press - Grand Juries

Answer 12

• members of the press may be required to testify before grand juries

Question 13

Interviewing Prisoners

Answer 13

• 1st Am doesn’t give journalists a right to interview specified prisoners of their choice or to inspect prison grounds

Question 14

Press - Business Regulation or Tax

Answer 14

• press + broadcasting cos can be subjected to general business regs or taxes but can’t be targeted for special regs or taxes
• tax or reg impacting press can’t be based on content of a publication absent a compelling justification

Question 15

Broadcasting Regs

Answer 15

• radio + tv broadcasting may be more closely regulated than the press
• gov may protect viewers from indecent speech over airwaves b/c of uniquely pervasive + accessible nature of broadcasting
• gov may also manage access + ownership of broadcast spectrum to promote pub interest in receiving info

Question 16

Fairness Doctrine

Answer 16

• 1st Am doesn’t require broadcasters to accept political ads
• radio station may constitutionally be required to offer free broadcasting time to certain indivs (ex: opponents of political candidates or views endorsed by the station or persons personally attacked in a broadcast)

Question 17

Internet + Cable TV Regs - Standards of Review

Answer 17

• strict scrutiny if content-based + intermediate scrutiny if content-neutral

Question 18

Government Speech

Answer 18

• can’t be challenged as violating Free Speech Clause of 1st Am
  -> doesn’t require gov to aid private speech or restrict gov from expressing own views
• absent other con limit (ex: Establishment Clause or Eq Prot), gov generally free to express own views
• can also fund private speech that furthers its own views while refusing to fund others
• not subject to any higher scrutiny -> upheld if rationally related to a legitimate state interest

Question 19

Gov + Compelling Private Speech

Answer 19

• freedom of speech includes freedom not to speak -> gov can’t require people to salute the flag or display other messages with which they disagree
• BUT may tax people + use the revenue to express a gov message even if taxpayer disagrees with the message
  -> still can’t compel people to subsidize private messages they disagree with though

Question 20

University Activity Fees

Answer 20

• exception to rule against compelled speech
• gov can require public university students to pay student activity fee even if fee used to support political + ideological speech by student groups whose beliefs are offensive to the student, as long as program is viewpoint neutral

Question 21

Public Accommodation Laws

Answer 21

• states can’t use public accommodation statutes to deny speakers right to choose content of own messages
  (pub acc laws prohibit certain forms of discrimination when businesses offer goods + services to public -> website designer can’t be compelled to design expressive content w/ message she disagrees w/)

Question 22

1st Am + Spending Programs

Answer 22

• spending programs can’t impose conditions that limit 1st Am activities of fund recipients outside the scope of the spending program itself

Question 23

Gov Funding of Private Speech

Answer 23

• when gov funds private messages (ex: college group newsletters), generally must do so on a viewpoint-neutral basis
• exception: funding for the arts can be based on content of the art

Question 24

Evaluation of Whether or Not Something is Government Speech

Answer 24

• not all speech activity on gov property = gov speech -> deciding what does + doesn’t count requires holistic approach

Factors that may be relevant include:
- history of the expression at issue
- public’s likely perception as to who (gov or private person) is speaking
- extent to which gov has shaped the message

Question 25

Trademark Protection

Answer 25

• NOT gov speech -> counts as private speech
• content-based restrictions on trademarks are subject to strict scrutiny