PART FIVE: FIRST AMENDMENT FREEDOMS - FREEDOM OF SPEECH AND ASSEMBLY

Question 1

GENERAL PRINCIPLES

Answer 1

• The freedoms of speech & assembly protect free flow of ideas, a most important function in a democratic society.
• Thus, whenever gov seeks to regulate these freedoms, Ct will weigh the importance of these rights against interests/policies sought to be served by regulation.
• When analyzing regulations of speech & press, keep the following guidelines in mind:

Question 2

Government Speech

Answer 2

• Free Speech Clause: restricts gov regulation of private speech; it does not require gov to aid private speech nor restrict gov from expressing its views.
• Gov generally is free to voice its opinions & fund private speech that furthers its views while refusing to fund other private speech, absent some other constitutional limitation, such as Establishment Clause/Equal Protection Clause.
• B/c gov speech does not implicate 1st Amend, it is not subject to the various levels of scrutiny that apply to gov regulation of private speech (see infra).
• Generally, gov speech & gov funding of speech will be upheld if it is RATIONALLY RELATED to a LEGIT STATE INTEREST

Question 3

Conditions in Spending Programs

Answer 3

• Spending programs may not impose conditions that limit 1st Amend activities of fund recipients outside of scope of spending program itself.
• Ex. while gov could prohibit use of fed funds to advocate for/support abortion, it could not require recipients of fed funds given to orgs to combat HIV/AIDS to agree in their funding docs that they oppose prostitution.

Question 4

Public Monuments

Answer 4

• A city’s placement of a permanent monument in a public park is gov speech & thus is not subject to Free Speech Clause scrutiny.
• This is true even if monument is privately donated.
• By displaying monument, gov is spreading a message, & message is not necessarily message of donor(s).
• As a result, gov cannot be forced to display a permanent monument w/ message w/ which gov disagrees, & gov’s refusal to display a proposed monument is not subject to Free Speech Clause scrutiny.

Question 5

Compare—Government Funding of Private Messages

Answer 5

• In contrast to gov funding of speech for purpose of promoting its own policies, when gov chooses to fund private messages, it generally must do so on a viewpoint neutral basis.
• Ex. state university exclusion of religious magazine from program financially supporting many other types of student publications violates 1st Amend

Question 6

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Answer 6

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Question 7

Exception—Funding of the Arts

Answer 7

• From a financial standpoint, gov cannot fund all artists, & choosing among those it will fund & those it will not inevitably must be based on content of art.

Question 8

Limitation—Not All Speech Activity on Government Property Is Government Speech

Answer 8

• To determine whether speech, particularly speech that occurs on gov property, is gov speech, one must use a holistic approach.
• While this review is context-driven & not mechanical, some factors that may be relevant include:
  (1) history of the expression at issue;
  (2) public’s likely perception as to who (gov/private person) is speaking; and
  (3) extent to which gov has shaped message.

Question 9

Trademark Protection

Answer 9

• Trademark protection is not gov speech, thus, it is subject to strict scrutiny.
• Trademarks are private speech b/c they are produced by private individuals & merely protected by gov

Question 10

Content vs. Conduct

Answer 10

• A regulation seeking to forbid communication of specific ideas (content regulation) is less likely to be upheld than a regulation of conduct incidental to speech.

Content
- It is presumptively unconstitutional for gov to place burdens on speech b/c of its content.
- To justify such content-based regulation of speech, gov must show that regulation (or tax) passes strict scrutiny
- Ex. striking a law requiring that proceeds to criminals from books & other productions describing their crimes be placed in escrow for 5 years to pay claims of victims of the crimes]

Question 11

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Answer 11

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Question 12

Exception—Unprotected Categories of Speech

Answer 12

• Certain categories of speech (obscenity, defamation, & “fighting words”) generally are prohibited despite 1st Amend.
• Even in these cases, however, Ct is less likely to uphold a prior restraint (regulation prohibiting speech b/f it occurs) than a punishment for speech that has already occurred.

Question 13

Falsity in and of Itself Does Not Make Speech Unprotected

Answer 13

• A statute criminalizing speech merely b/c it is false is a content regulation.
• And while some categories of false speech are unprotected (defamation, false advertising, fraud, & perjury), those categorical exceptions are based on the harm caused.
• Speech is not unprotected merely for being false.
• Ex. Stolen Valor Act making it a crime to falsely claim to have received military decorations is unconstitutional; while the government may have a compelling interest in maintaining the integrity of military honors, nothing indicates that the law here is necessary to that purpose]

Question 14

Content-Neutral Speech Regulations

Answer 14

• While content-based regulation of speech is subject to strict scrutiny, content-neutral speech regulations generally are subject to intermediate scrutiny
• They will be upheld if gov can show that:
  (1) they advance important interests unrelated to the suppression of speech, and
  (2) they do not burden substantially more speech than necessary/are narrowly tailored to further those interests.

Question 15

Conduct

Answer 15

• Ct has allowed gov more leeway in regulating conduct related to speech, allowing it to adopt content-neutral, time, place, & manner regulations
• Regulations involving public forums (forums historically linked w/ exercise of 1st Amend freedoms) must be NARROWLY TAILORED to achieve an IMPORTANT GOV interest (prohibition against holding a demonstration in a hospital zone).
• Regulations involving nonpublic forums must be REASONABLE RELATED to a LEGIT REGULATORY PURPOSE (law prohibiting billboards for purposes of traffic safety).

Question 16

Reasonableness of Regulation
a.
Overbroad Regulation Invalid

Answer 16

• A regulation will not be upheld if it is overbroad (prohibits substantially more speech than is necessary).
• If regulation of speech/speech-related conduct punishes a substantial amount of protected speech, regulation is facially invalid (it may not be enforced against anyone—not even a person engaging in activity that is not constitutionally protected) unless a ct has limited construction of regulation so as to remove threat to constitutionally protected expression.
• If regulation is not substantially overbroad, it can be enforced against persons engaging in activities that are not constitutionally protected.

Question 17

Burden on Challenger

Answer 17

• Person challenging validity of the regulation has burden of showing substantial overbreadth.

Question 18

Void for Vagueness Doctrine

Answer 18

• If a criminal law/regulation fails to give persons reasonable notice of what is prohibited, it may violate DPC.
• Vagueness issues most often arise in relation to content regulations, but same principles would apply to time, place, & manner restrictions.

Question 19

Funding Speech Activity

Answer 19

• Lack of exactness is allowed when gov acts in funding speech activity than when enacting criminal statutes/regulatory schemes
• Ex. requirement that NEA consider standards of “decency” & “respect for values of American people” is not invalid on its face

Question 20

Cannot Give Officials Unfettered Discretion

Answer 20

• Regulation cannot give officials broad discretion over speech issues; there must be defined standards for applying the law.
• This issue usually arises under licensing schemes established to regulate time, place, & manner of speech.
• To be valid, such licensing schemes must be RELATED to an IMPORTANT gov interest, contain procedural safeguards & not grant officials broad discretion.

Question 21

Unlimited Discretion—Void on Face

Answer 21

• If a statute gives licensing officials unlimited discretion, it is void on its face, & speakers need not even apply for a permit.
• They may exercise 1st Amend rights even if they could have been denied a permit under a valid law, & they may not be punished for violating licensing statute.

Question 22

Statutes Valid on Face

Answer 22

• If licensing statute is valid on its face, a speaker may not ignore statute, but must seek a permit.
• If he is denied a permit, even if he believes denial was incorrect, he must then seek reasonably available administrative/judicial relief.
• Failure to do so precludes later assertion that his actions were protected

Question 23

Scope of Speech
a.
Includes Freedom Not to Speak

Answer 23

• Freedom of speech includes not only right to speak, but also right to refrain from speaking/endorsing beliefs w/ which one does not agree—the gov may not compel an individual personally to express a message w/ which he disagrees.

Question 24

Mandatory Financial Support

Answer 24

• Although gov may not compel a person to express a message, gov may tax people & use revenue to express a message w/ which people disagree

Question 25

Government Speech

Answer 25

• Compelled support of gov speech does not raise 1st Amend concerns.
• Ex. beef producers can be required to pay an assessment to support generic advertising of beef approved by a semi-governmental producers’ board & ultimately by Secretary of Agriculture—even if they think generic advertising is a waste of money—b/c the ads are gov speech]

Question 26

Compare—Private Speech

Answer 26

• On the other hand, people cannot be compelled to support private messages w/ which they disagree.

Question 27

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Answer 27

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Question 28

Exception—University Activity Fees

Answer 28

• Gov can require public university students to pay a student activity fee even if fee is used to support political & ideological speech by student groups whose beliefs are offensive to the student, if program is viewpoint neutral

Question 29

State Can Require Shopping Center to Permit Persons to Exercise Speech Rights

Answer 29

• Freedom not to speak does not prohibit a state’s requiring a large shopping center (that is open to the public) to permit persons to exercise their speech rights on shopping center property—if particular message is not dictated by the state & is not likely to be identified w/ owner of shopping center.

Question 30

Includes Symbolic Conduct

Answer 30

• Speech includes not only verbal communication, but also conduct that is undertaken to communicate an idea.
• Not all regulation of symbolic conduct is prohibited.
• Ct will uphold a conduct regulation if:
  (1) regulation is w/in constitutional power of gov;
  (2) it furthers an important gov interest;
  (3) gov interest is unrelated to suppression of speech; and
  (4) incidental burden on speech is no greater than necessary.
• Ex. upholding a prohibition against burning draft cards to protect gov’s important interest in smooth functioning of draft system]
• Note, however, that a regulation is not invalid simply b/c there is some imaginable alternative that might be less burdensome on speech.
• Ex. statute requiring schools of higher education to grant military access to recruit on campus is not invalid merely b/c military could take out ads in newspapers, on television, etc.]

Question 31

Excludes Freedom to Bar Military Recruitment

Answer 31

• Requiring schools of higher education to allow military recruiters to recruit on campus/risk losing federal funding does not implicate free speech rights
• This is so even if schools disagree w/ military’s ban against homosexuals.
• School recruitment receptions are not inherently expressive from schools’ standpoint; they are merely a way to help students obtain jobs.
• Schools are not being asked to say/refrain from saying anything, & neither are they being asked to associate w/ military in any significant way.
• Moreover, there is little chance that a person would attribute military’s positions to schools.
• Therefore, there is no First Amendment violation

Question 32

Prison Speech

Answer 32

• A regulation concerning activities of prison inmates, including any 1st Amend speech activities, is governed by a different standard in order to facilitate prison order:
• Regulation will be upheld if it is reasonably related to legit penological interests.
• Thus, a restriction on incoming mail will be upheld if it is rational; a restriction on outgoing mail must be narrowly tailored b/c there is less of a penological interest involved.

Question 33

TIME, PLACE, AND MANNER RESTRICTIONS—REGULATION OF CONDUCT

Answer 33

• All speech is conveyed through physical action (talking, writing, distributing pamphlets, etc.), & while freedom of belief is absolute, freedom to convey beliefs cannot be.
• The extent to which gov may regulate speech-related 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 34

Public Forums and Designated Public Forums

Answer 34

• Public property that has historically been open to speech-related activities (streets, sidewalks, public parks & internet) is called a public forum.
• Public property that has not historically been open to speech-related activities, but which gov has opened for such activities on a permanent/temporary basis, by practice/policy (school rooms that are open for after-school use by social, civic, or recreation groups), is called a designated public forum.
• Gov may regulate speech in public forums & designated public forums w/ reasonable time, place, & manner regulations.

Question 35

Test

Answer 35

• To avoid strict scrutiny, gov regulations of speech & assembly in public forums & designated public forums must:
  (i) Be content neutral (SM neutral & VP neutral);
  (ii) Be narrowly tailored to serve important gov interest; and
  (iii) Leave open alternative channels of communication.
• Remember: Even if a regulation meets the above conditions, it might still be struck down on other grounds (e.g., overbreadth, vagueness, unfettered discretion;

Question 36

Content Neutral

Answer 36

• Regulation cannot be based on content of speech—i.e., it must be SM neutral & VP neutral—absent substantial justification

Question 37

Narrowly Tailored

Answer 37

• Regulation must be narrowly tailored (i.e., it may not burden substantially more speech than is necessary to further the significant gov interest).
• However, regulation need not be least restrictive means of accomplishing goal.

Question 38

Note:

Answer 38

A regulation that is not narrowly tailored might also fail on overbreadth grounds.

Question 39

Important Interest

Answer 39

• Regulation must further an important gov interest.
• Ex: traffic safety, orderly crowd movement, personal privacy, noise control, litter control, aesthetics, etc.

Question 40

Alternative Channels Open

Answer 40

• Law must leave open alternative channels of communication; i.e., other reasonable means for communicating the idea must be available.

Question 41

Examples—Residential Areas

Answer 41

Targeted Picketing
- SC upheld statute preventing focused residential picketing (picketing in front of a single residence).
- The street/sidewalk involved was a public forum, but ordinance passed 3-part test:
(1) it was content neutral b/c it regulated location & manner of picketing rather than its message;
(2) it was narrowly tailored to important interest of protecting a homeowner’s privacy (b/c it applied only to focused picketing); and
(3) alternative means of communications were available b/c protesters could march through neighborhood in protest.

Question 42

Charitable Solicitations

Answer 42

• Charitable solicitations for funds in residential areas are w/in protection of 1st Amend.
• However, they are subject to reasonable regulation.

Question 43

Permits

Answer 43

• State may not require people to obtain permits in order to solicit door to door for noncommercial/ nonfundraising purposes

Question 44

Example—Buffer Zones

Answer 44

• Laws & injunctions restricting expression w/in so-called “buffer zones” are often found in context of cases dealing w/ demonstrations on streets & sidewalks outside abortion clinics.
• These laws typically set boundaries of a specified distance from clinic entrances w/in which anti-abortion protesters may not approach women entering clinics, in order to ensure unobstructed access & maintain public safety & free flow of vehicular & pedestrian traffic

Question 45

Content-Neutral/Important Government Interest

Answer 45

• For the most part found buffer-zone law are reasonable, content-neutral regulations of speech that further important state interest of preserving access to healthcare facilities & maintaining public order.

Question 46

Narrowly Tailored

Answer 46

• Under 2nd prong of time, place, & manner test, buffer-zone laws will be upheld only if they burden no more speech than necessary to achieve purpose of protecting access to healthcare facilities & maintaining order on public rights-of-way.
• Moreover, right of access does not amount to a right to be free from all communication in the vicinity of a facility that might be unwelcome.
• Court decisions in this area tend to be very fact-specific, & Ct has indicated it is more likely to find a buffer-zone law narrowly tailored if state has first tried less-restrictive measures to address the problems created by anti-abortion protests.

Question 47

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Answer 47

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Question 48

Example—Designated Public Forum

Answer 48

• Schools generally are not public forums.
• However, if a public school/university allows private orgs & members of the public to use school property for meetings when school programs/classes are not in session, property is a designated public forum for that time, & school cannot deny a religious org permission to use property for meetings merely b/c religious topics will be discussed.
• Such a restriction would be content discrimination.

Question 49

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Answer 49

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Question 50

Injunctions

Answer 50

• The test to be used to determine whether an injunction that restricts speech/protest is constitutional depends on whether injunction is content neutral.
  1) Content Based—Necessary to a Compelling Interest
• If injunction is content based, it will be upheld only if it is NECESSARY to achieve COMPELLING gov interest.
  2) Content Neutral—Burdens No More Speech than Necessary
• If injunction is content neutral, it will be upheld only if it burdens no more speech than is NECESSARY to achieve IMPORTANT gov purpose.

Question 51

Limited Public Forums and Nonpublic Forums

Answer 51

• Other than streets, sidewalks, parks, & designated public forums, most public property is a limited public forum (gov property opened up for a specific speech activity, such as a school gym opened on a particular night to host a debate on a particular community issue) or a nonpublic forum.
• Gov can regulate speech in such forums to reserve them for their intended use.
• Gov regulations of speech & assembly in limited public forums & nonpublic forums will avoid strict scrutiny if they are:
  (i) Viewpoint neutral; and
  (ii) REASONABLE RELATED to a LEGIT gov purpose.

Question 52

Viewpoint Neutral

Answer 52

• Regulations on speech in nonpublic forums need not be content neutral; i.e., gov may allow speech regarding some subjects but not others.
• However, to avoid strict scrutiny, such regulations must be viewpoint neutral; i.e., if gov allows an issue to be presented in a nonpublic forum, it may not limit presentation to only one view
• Similarly, gov may discriminate based on identity of speaker in nonpublic forums (e.g., a school board might limit speakers to licensed teachers).

Question 53

Reasonableness

Answer 53

• Regulation of speech & assembly in nonpublic forums need only be RATIONALLY RELATED to a LEGIT gov objective.

Question 54

Significant Cases

Answer 54

• Military bases are not public forums; thus, on-base speech & assembly may be regulated, even during open houses where public is invited to visit.
• However, if military leaves its streets open as through route, they will be treated as public forums.

Question 55

Schools

Answer 55

• Generally, schools & school-sponsored activities are not public forums.
• Thus, speech (& association) in schools may be reasonably regulated to serve school’s educational mission.
• Schools generally cannot restrict student’s off-campus speech, unless restriction is related to a regulatory interest like preventing cheating, harassment, or bullying.
• Ex. school’s suspension of a student from cheerleading team due to use of profanity in a social media post that criticized the school & team violated 1st Amendment, considering the language occurred off campus & outside school hours & did not cause school disruption/lower team morale

Question 56

Government Workplace or Charity

Answer 56

• Neither a gov workplace (including a ct building & its grounds) nor a gov controlled charity drive constitutes a public forum.

Question 57

Postal Service Property

Answer 57

• Although sidewalks generally are public forums, sidewalks on postal service property are NOT public forums

Question 58

Signs on Public Property

Answer 58

• City ordinance can prohibit posting signs on public property (including sidewalks, crosswalks, street lamp posts, fire hydrants, & telephone poles), even if sign is temporary in nature & could be removed w/o damage to public property.

Question 59

Airport Terminals

Answer 59

• Airport terminals operated by a public authority are not public forums.
• Thus, it is reasonable to ban solicitation w/in airport terminals, since it presents a risk of fraud to hurrying passengers.
• However, it is not reasonable to ban leafletting w/in multipurpose terminals having qualities similar to a shopping mall; although such leafletting can still be subject to reasonable time, place, & manner regulations

Question 60

Candidate Debates on Public Television

Answer 60

• A public tv station debate for congressional candidates from major parties/who have strong popular support is not a “public forum” b/c such debates are not open to a class of speakers (all candidates), but rather to selected members of the class.
• Exclusion of candidates who are not from a major party & who lack popular support is permissible b/c these criteria are
  (1) viewpoint neutral and
  (2) reasonable in light of the logistics for an educationally valuable debate.

Question 61

Mailboxes

Answer 61

• Letter/mailbox at a business/ residence is not a public forum.
• Gov may prohibit placing of unstamped items in post boxes to promote efficient mail service.

Question 62

Polling Places

Answer 62

• Polling place is not a public forum
• State may reasonably decide that interior of polling place should reflect that distinction by excluding some forms of advocacy from polling place.

Question 63

UNPROTECTED SPEECH—REGULATION OR PUNISHMENT BECAUSE OF CONTENT

Answer 63

• Restrictions on the content of speech must be necessary to achieve a compelling government interest.
• As indicated above, very few restrictions on the content of speech are tolerated.
• The Ct allows them only to prevent grave injury.
  -The following is a list of the only reasons for which Ct has allowed content-based restrictions on speech (unprotected speech):
  (i) It creates a clear & present danger of imminent lawless action.
  (ii) It constitutes “fighting words” as defined by a narrow, precise statute.
  (iii) The speech, film, etc., is obscene. (includes “child pornography.”)
  (iv) The speech constitutes defamation, which may be the subject of a civil “penalty” through a tort action brought by the injured party in conformity w/ rules set out infra.
  (v) The speech violates regulations against false/ deceptive advertising—commercial speech is protected by 1st Amendment & it cannot be proscribed simply to help certain private interests.
  (vi) Gov can demonstrate a “compelling interest” in limitation of 1st Amendment activity.
• Recall that even if a regulation falls within one of the above categories, it will not necessarily be held valid; it might still be held to be void for vagueness/ overbreadth

Question 64

Clear and Present Danger of Imminent Lawlessness

Answer 64

• State cannot forbid advocating use of force/of law violation unless such advocacy
  (1) is directed to producing/inciting imminent lawless action, and
  (2) is likely to produce/incite such action

Question 65

Allows for Sanctions Against Speech

Answer 65

• The test allows for sanctions against speech causing demonstrable danger to important gov interests.
• Disclosure of U.S. intelligence operations & personnel is “clearly not protected” speech

Question 66

Compelling Justification Test

Answer 66

A similar test—one of “compelling justification”—was employed to hold unconstitutional the Georgia legislature’s refusal to seat Julian Bond, an elected black representative, where Bond’s speeches, critical of United States policy on Vietnam and the draft, led the legislature to doubt his fitness and his ability to take the oath of office in good faith

Question 67

Fighting Words

Answer 67

• 1st Amend does not protect “true threats”—statements meant to communicate an intent to place an individual or group in fear of bodily harm.
• Ex: a state may ban cross burning done with an intent to intimidate; because of cross burning’s long history as a signal of impending violence, the state may specially regulate this form of threat, which is likely to inspire fear of bodily harm

Question 68

States May Ban Words Likely to Incite Physical Retaliation

Answer 68

• States are free to ban the use of “fighting words,” i.e., those personally abusive epithets that, when addressed to the ordinary citizen, are inherently likely to incite immediate physical retaliation (narrowly read)
• Ex: the Court held the state may not punish D for wearing a jacket reading “Fuck the Draft,” pointing out that “while the four-letter word displayed by Cohen in relation to the draft is commonly employed in a personally provocative fashion, in this instance, it was clearly not directed to the person of the hearer.”

Question 69

Statutes Regulating Fighting Words Tend to Be Overbroad or Vague

Answer 69

• While this classification of punishable speech continues to exist in theory, the Court rarely upholds punishments for the use of such words.
• Statutes that attempt to punish fighting words will tend to be overbroad or vague;
• the statute will define the punishable speech as “opprobrious words,” “annoying conduct,” or “abusive language.”
• Such statutes will fail, as their imprecise terms could be applied to protected (nonfighting words) speech
• Such a statute could not be used to punish a person for saying to a police officer, “White son of a bitch, I’ll kill you.”

Question 70

Statutes Cannot Be Viewpoint-Based—Limits Hate Crime Legislation

Answer 70

• Court generally will not tolerate in fighting words statutes restrictions that are designed to punish only certain viewpoints (i.e., proscribing fighting words only if they convey a particular message).
• Ex: ordinance that applies only to those fighting words that insult/provoke violence on the basis of race, religion, or gender is invalid

Question 71

Compare—Punishing Racially Motivated Conduct

Answer 71

• 1st Amend does not protect conduct simply b/c it happens to be motivated by a person’s views/beliefs
• Thus, a state can increase a convicted D’s sentence for aggravated battery based on the fact that D selected vic of his crime b/c of vic’s race.
• However, punishment may not be increased merely b/c of D’s abstract beliefs.
• Ex: unconstitutional to increase d’s sentence merely b/c it was proved that he belongs to an org that advocates racism

Question 72

Obscenity

Answer 72

• Obscenity is not protected speech.
• Court has defined “obscenity” as a description/ depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards:
  (i) Appeals to the lustful interest in sex;
  (ii) Portrays sex in a clearly offensive way; and
  (iii) Does not have serious literary, artistic, political, or scientific value—using a national, reasonable person standard, rather than the contemporary community standard.

Question 73

Elements
1)
Appeal to Prurient Interest

Answer 73

• The dominant theme of material considered as a whole must appeal to the prurient interest in sex of the average person.
• Includes that which appeals to shameful/morbid interests in sex, but not that which incites lust (insofar as lust may include a normal interest in sex).
• Mere portrayals of nudity do not appeal to the prurient interest & are not obscene.

Question 74

Average Person

Answer 74

• Both sensitive & insensitive adults may be included in determining contemporary community standards, but children may not be considered part of the relevant audience

Question 75

Material Designed for Deviant Group

Answer 75

• Where the allegedly obscene material is designed for & primarily distributed to a clearly defined deviant sexual group (e.g., sadists), rather than to the public at large, the prurient appeal requirement is satisfied if the dominant theme of the material, taken as a whole, appeals to the prurient interest of that group

Question 76

Patently Offensive

Answer 76

(1) Community Standard
- The material must be patently offensive in affronting contemporary community standards regarding the description or portrayal of sexual matters.

(2) National Standard Not Required
- A statewide standard is permissible but not mandatory.
- A juror may draw on knowledge of the community/ vicinity from which he comes, & the court may either direct the jury to apply “community standards” w/o specifying the “community,” or define the standard in more precise geographic terms.

Question 77

Lacking in Serious Social Value

Answer 77

• The fact that the material may have some redeeming social value will not necessarily immunize it from a finding of obscenity.
• It must have SERIOUS literary, artistic, political, or scientific value, using a national standard

Question 78

Standard May Be Different for Minors

Answer 78

• 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, gov may not prohibit the sale/distribution of material to adults merely b/c it is inappropriate for children.

Question 79

Pictures of Minors

Answer 79

• To protect minors from exploitation, gov may prohibit the sale/distribution of visual depictions of sexual conduct involving minors, even if the material would not be found obscene if it did not involve children.
• Gov may also prohibit offers to provide (& requests to obtain) material depicting children engaged in sexually explicit conduct when the prohibition requires intent/knowledge & does not criminalize a substantial amount of protected speech.
• Such offers of material that is unlawful to possess have no 1st Amend protection

Question 80

Compare—Simulated Pictures of Minors

Answer 80

• Gov may not bar visual material that only appears to depict minors engaged in sexually explicit conduct, but that in fact uses young-looking adults/computer-generated images.
• A holding otherwise would bar speech that is not obscene under the Miller test and that does not involve the exploitation of children as in Ferber

Question 81

Question of Fact and Law
1)
Jury Question

Answer 81

The determination of whether material is obscene is a question of fact for the jury. Of course, the judge can grant a directed verdict if the evidence is such that a reasonable, unprejudiced jury could not find that all parts of the test have been met.

Question 82

Independent Review by Appellate Court

Answer 82

Appellate courts will conduct an independent review of constitutional claims, when necessary, to assure that the proscribed materials “depict or describe patently offensive ‘hard core’ sexual conduct.”

Question 83

Evidence of Pandering

Answer 83

In close cases, evidence of “pandering”—commercial exploitation for the sake of prurient appeal—by the defendant may be probative on whether the material is obscene. Such evidence may be found in the defendant’s advertising, his instructions to authors and illustrators of the material, or his intended audience. In effect, this simply accepts the purveyor’s own estimation of the material as relevant

Question 84

Evidence—Similar Published Materials Not Automatically Admissible

Answer 84

• The state need not produce expert testimony.
• Evidence that similar materials are available on community newsstands, or that the publication has acquired a 2nd-class mailing privilege, does not necessarily show that the material is not obscene & hence is not automatically admissible.
• Nor is there any automatic right to have other materials held not to be obscene admitted into evidence

Question 85

Statutes Must Not Be Vague
150. CONSTITUTIONAL LAW

Answer 85

Attempts to define obscenity broadly have encountered difficulties before the Court.

Question 86

Construction May Save Vague Statute

Answer 86

• A state statute will be upheld if it meets the tests as construed by the courts of the state.
• Thus, a seemingly vague obscenity statute may be saved by a state supreme court opinion that limits it to a proscription of depictions of specific types of sexual conduct

Question 87

Land Use Regulations

Answer 87

• A land use (or zoning) regulation may limit the location/size of adult entertainment establishments (i.e., businesses that focus on sexual activities) if the regulation is designed to reduce the secondary effects of such businesses (e.g., rise in crime rates, drop in property values and neighborhood quality, etc.).
• However, regulations may not ban such establishments altogether.

Question 88

Liquor Regulation

Answer 88

• 21st Amend grants states more than the usual regulatory authority with respect to intoxicating beverages.
• Therefore, regulations prohibiting explicit live sexual entertainment & films in establishments licensed to sell liquor by the drink, even though proscribing some forms of visual presentation that would not be obscene under Miller, do not violate 1st Amend if they are not “irrational.”

Question 89

Display

Answer 89

• Ct has suggested that the state may regulate the display of certain material, to prevent it from being so obtrusive that an unwilling viewer cannot avoid exposure to it.

Question 90

Private Possession of Obscenity

Answer 90

• Private possession of obscenity at home cannot be made a crime b/c of the constitutional right of personal privacy.
• However, the protection does not extend beyond the home.
• Thus, importation, distribution, & exhibition of obscene materials can be prohibited.

Question 91

Exception—Child Pornography

Answer 91

• The state may make private possession of child pornography a crime, even private possession for personal viewing in a residence

Question 92

Defamatory Speech

Answer 92

When a person is sued for making a defamatory statement, the First Amendment places restrictions on the ability of the government (through its tort law and courts) to grant a recovery where the person suing is a public official or public figure, or where the defamatory statement involves an issue of public concern. In these cases, the plaintiff must prove not only the elements of defamation required by state law, but also that the statement was false and that the person making the statement was at fault to some degree in not ascertaining the truth of the stateme

Question 93

Falsity

Answer 93

At common law, a defamatory statement was presumed to be false; to avoid liability for an otherwise defamatory statement on the ground that it was true, the defendant had to assert truth as an affirmative defense. The Supreme Court has rejected this presumption in all public figure or public concern cases. In these cases, the plaintiff must prove by clear and convincing evidence that the statement was false.

Question 94

Requirement of Factual Statement

Answer 94

To be defamatory, the false statement must be viewed by a reasonable person as a statement of fact, rather than as a statement of opinion or a parody. Furthermore, a public figure cannot circumvent the First Amendment restrictions by using a different tort theory to collect damages for a published statement about him that is not a false statement of fact.

Question 95

Note:

Answer 95

The fact that a publisher labels a statement as “opinion” will not provide First Amendment protection if the statement would reasonably be understood to be a statement of fac

Question 96

Fault

Answer 96

At common law, a defendant who had no reason to know that the statement he was making was false and defamatory could still be liable for defamation. Now, however, a plaintiff in a public figure or public concern case must prove fault on the part of the defendant. The degree of fault required is higher when the plaintiff is a public official or public figure than when the plaintiff is a private person suing on a matter of public concern.

Question 97

Public Official or Public Figure—Actual Malice Required

Answer 97

A public official may not recover for defamatory words relating to his official conduct or a matter of public concern without clear and convincing evidence that the statement was made with “actual malice” (defined below). [New York Times v. Sullivan, 376 U.S. 254 (1964)] This rule has since been extended to public figure plaintiffs. (Note that while the Supreme Court has not specifically held that all statements regarding public officials or public figures necessarily involve matters of public concern, a case to the contrary should be rare.)

Question 98

Actual Malice Defined

Answer 98

Actual malice was defined by the Supreme Court in New York Times v. Sullivan as:
(i) Knowledge that the statement was false, or
(ii) Reckless disregard as to its truth or falsity.
The plaintiff must show that the defendant was subjectively aware that the statement he published was false or that he subjectively entertained serious doubts as to its truthfulness.

Question 99

Actual Malice in False Quotation Cases

Answer 99

Proof that a defamation plaintiff was inaccurately quoted does not, by itself, prove actual malice, even if the quotation was intentionally altered by the defendant. If the published “quotation” is substantially accurate, the plaintiff may not collect damages. To show actual malice, the public figure plaintiff must prove that the
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defendant’s alteration of the quotation materially changed the meaning of the actual statements made by the plaintiff. [

Question 100

Permitted Inquiries by Plaintiff

Answer 100

In attempting to prove knowing or reckless disregard of the truth, the plaintiff may inquire into the state of mind of those who edit, produce, or publish (i.e., conversations with editorial colleagues).

Question 101

Petition Clause Does Not Protect Defamatory Statement Made with Actual Malice

Answer 101

The First Amendment guarantees individuals the right to “petition government for a redress of grievances.” However, this right to petition the government does not grant absolute immunity to persons who make defamatory statements about public officials or public figures in their communications with government officials. The defamed individual may prevail by meeting the New York Times requirements.

Question 102

Two Ways to Become a Public Figure

Answer 102

(1)
General Fame or Notoriety
A person may be a public figure for all purposes and all contexts if he achieves “general fame or notoriety in the community and pervasive involvement in the affairs of society,” although “a citizen’s participation in community and professional affairs” does not render him a public figure for all purposes.

Question 103

Involvement in Particular Controversy

Answer 103

A person may “voluntarily inject himself or be drawn into a particular controversy to influence the resolution of the issues involved” and thereby become a public figure for a limited range of issues. [Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)]
Note that Gertz appears to allow for the possibility of a person’s being an involuntary public figure for a limited range of issues, although such a case would be “exceedingly rare.”

Question 104

Examples of Persons Not Deemed Public Figures
.

Answer 104

(1)
Spouse of Wealthy Person
Marriage to an extremely wealthy person and divorcing such a person does not amount to voluntarily entering the public arena, even though press conferences are held by the plaintiff, because
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going to court is the only way she could dissolve her marriage

Question 105

(2)
Person Engaging in Criminal Conduct

Answer 105

A person who engages in criminal conduct does not automatically become a public figure even when the defamatory statements relate solely to his conviction

Question 106

Scientist in Federally Funded Program

Answer 106

A behavioral scientist engaged in federally funded animal research studies is not a public figure because he applies for federal grants and publishes in professional journals

Question 107

Who Are Public Officials?

Answer 107

Public officials for defamation purposes include (1) those 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 108

Private Individual Suing on Matter of Public Concern—At Least Negligence Required

Answer 108

When a private individual is defamed, there is less of a need to protect freedom of speech and press and more of a need to protect private individuals from injury from defamation because they do not have opportunities as effective for rebuttal as public figures. Accordingly, defamation actions brought by private individuals are subject to constitutional limitations only when the defamatory statement involves a matter of public concern. And even in those cases, the limitations are not as great as those established for public officials and public figures. [Gertz v. Robert Welch, Inc., supra] When the defamatory statement involves a matter of public concern, Gertz imposes two restrictions on private plaintiffs: (1) it prohibits liability without fault, and (2) it restricts the recovery of presumed or punitive damages.

Question 109

No Liability Without Proof of at Least Negligence

Answer 109

The plaintiff must show that the defendant was negligent in failing to ascertain the truth of the statement. If the plaintiff establishes negligence but not actual malice, which is a higher degree of fault, he also has to provide competent evidence of “actual” damages. (This changes the common law rule that damages would be presumed by law for injury to reputation and did not need to be proved by the plaintiff.)
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Actual damages may be awarded not only for economic losses but also for injury to the plaintiff’s reputation in the community and for personal humiliation and distress.

Question 110

Presumed or Punitive Damages Allowed Only If Actual Malice Established

Answer 110

If the plaintiff establishes that the defendant made the statement with actual malice, the actual damage requirement is extinguished. The plaintiff can recover whatever damages are permitted under state law (usually presumed damages and even punitive damages in appropriate cases). In other words, there is no constitutional protection for statements made with actual malice, even though a matter of public concern is involved.

Question 111

What Is a Matter of Public Concern?

Answer 111

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 112

Intentional Infliction of Emotional Distress

Answer 112

Damage actions by private individuals for intentional infliction of emotional distress are subject to the First Amendment rights of defendants if the speech relates to a matter of public concern, despite its “outrageous” and “particularly hurtful” quality. [Snyder v. Phelps, supra—peaceful picketing accompanied by signs critical of government policy regarding the political and moral conduct of the United States and homosexuality in the military that was conducted in a public place near, but not visible from, nor disruptive of, a military funeral is protected speech]

Question 113

Private Individual Suing on Matter Not of Public Concern

Answer 113

The Supreme Court has not imposed constitutional restrictions on
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defamation actions brought by private individuals that do not involve a matter of public concern. Hence, presumed and punitive damages can be recovered even if actual malice is not established.

Question 114

Procedural Issues

Answer 114

1)
Federal Summary Judgment Standard
When ruling on a motion for summary judgment in a federal court defamation action in a case involving an issue of public concern, a judge must apply the clear and convincing evidence standard (i.e., the judge should grant the motion unless it appears that the plaintiff could meet his burdens of proving falsity and actual malice at trial by clear and convincing evidence). However, the Supreme Court has not clearly held that state courts must follow this practice under similar circumstances

Question 115

Judicial Review

Answer 115

An appellate court must review a defamation case by conducting an independent review of the record to determine if the finder of fact (the jury) could have found that the malice standard was met in the case.

Question 116

Recovery for Depiction in a False Light

Answer 116

To recover damages for depiction in a false light (as opposed to a defamatory injury to reputation) arising out of comments directed at activities of public interest, an individual must establish falsity and actual malice whether or not he qualifies as a public figure under Time, Inc. v. Hill, 385 U.S. 374 (1967). However, it is assumed that the Court would now modify this to mirror the Gertz negligence rule for private plaintiffs.

Question 117

True Privacy Actions

Answer 117

1)
Publishing True Fact of Public Record
A newspaper or broadcaster cannot be sued for publishing a true fact once it is lawfully obtained from the public record or otherwise released to the public. [Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)—rape victim’s name already in court records open to the public; The Florida Star v. B.J.F., 491 U.S. 524 (1989)—rape victim’s name inadvertently given to the press by police]

Question 118

Publishing Name of Juvenile Charged with Crime

Answer 118

A state cannot require judicial approval before the media can print the name of a juvenile charged with murder where the name of the juvenile was obtained through legal means (reporter heard name of defendant over police frequency radio and questioned witnesses to the crime).

Question 119

Publishing Information on Judge’s Competency

Answer 119

A state cannot make it a crime to publish information, released in a confidential proceeding, concerning the competency of members of the state judiciary.

Question 120

Commercial Privacy—Disclosing a Private Performance Can Violate “Right to Publicity”

Answer 120

In Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), the Court held that state law could award damages to an entertainer who attempted to restrict the showing of his act to those who paid admission, when a television station broadcast his entire act. Here the “human cannonball” had his entire 15-second act broadcast over his objection.

Question 121

Copyright Infringement

Answer 121

The First Amendment does not require an exception to copyright protection for material written by a former President or other public figures. Magazines have no right to publish such copyrighted material beyond the statutory fair use exception. [

Question 122

Some Commercial Speech

Answer 122

False advertising is not protected by the First Amendment, although commercial speech in general does have some First Amendment protection. In determining whether a regulation of commercial speech is valid, the Supreme Court asserts that it uses a four-step process. However, it may be easiest to think about this as an initial question followed by a three-step inquiry. First, determine whether the commercial speech concerns a lawful activity and is not misleading or fraudulent. Speech proposing an unlawful transaction (e.g., “I will sell you this pound of heroin for X dollars”) and fraudulent speech may be outlawed. If the speech regulated concerns a lawful activity and is not misleading or fraudulent, the regulation will be valid only if it:
(i) Serves a “substantial” government interest;
(ii) “Directly advances” the asserted interest; and
(iii) Is narrowly tailored to serve the substantial interest. This part of the test does not require that the “least restrictive means” be used. Rather, there must be a reasonable fit between the legislation’s end and the means chosen. [

Question 123

Complete Bans

Answer 123

Complete bans on truthful advertisement of lawful products are very unlikely to be upheld due to a lack of tailoring. Thus, the Court has struck down total bans against advertising:
(i) Legal abortions;
(ii) Contraceptives;
(iii) Drug prices;
(iv) Attorneys’ services; and
(v) Liquor prices.
Note that the Twenty-First Amendment—giving states the power to regulate liquor commerce within their borders—does not give states power to override First Amendment protections.

Question 124

Commercial Sign Regulation

Answer 124

It is unclear whether billboards may be totally banned from a city. However, they can be regulated for purposes of traffic safety and aesthetics.

Question 125

Blockbusting

Answer 125

A town could not prohibit the use of outdoor “for sale” signs by owners of private homes as a way of reducing the effect of “blockbusting” real estate agents (i.e., encouraging homeowners to sell at reduced prices because of the threat of a sudden influx of minorities).

Question 126

Required Disclosures

Answer 126

Commercial speech is protected largely because of its value to consumers. Thus, the government may require commercial advertisers to make certain disclosures if they are not unduly burdensome and they are reasonably related
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to the state’s interest in preventing deception. [See, e.g., Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229 (2010)—advertisements by lawyers (and others) as debt relief agencies may be required to include information about their legal status and the nature of the assistance provided, as well as the possibility of the debtor’s filing for bankruptcy]

Question 127

Special Attorney Advertising Rules

Answer 127

The Court has upheld prohibitions against in-person solicitation by attorneys for pecuniary gain [Ohralik v. Ohio State Bar, 436 U.S. 447 (1978)—state interest in protecting laypersons from fraud and overreaching is substantial, and prohibition here is narrowly tailored and directly advances that interest] and sending mail solicitations to accident victims and their relatives within 30 days following an accident [Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995)—state interest in protecting lawyers’ reputation is substantial, and ban here is narrowly tailored and directly advances that interest].

Question 128

PRIOR RESTRAINTS

Answer 128

A prior restraint is a court order or administrative system that keeps speech from occurring (e.g., a licensing system, a prohibition against using mails, an injunction). Prior restraints are not favored in our political system; the Court would rather allow speech and then punish it if it was unprotected. However, the Court will uphold prior restraints if some special harm would otherwise result. As with other restrictions on speech, a prior restraint must be narrowly tailored to achieve some compelling or, at least, significant governmental interest. The Court has also required that certain procedural safeguards be included in any system of prior restraint.

Question 129

Sufficiency of Governmental Interest

Answer 129

The Supreme Court has not adopted a brightline standard for determining when a prior restraint is justified, but it has said that the government’s burden is heavy. For exam purposes, you should ask whether there is some special societal harm that justifies the restraint.

Question 130

National Security

Answer 130

National security is certainly a sufficient harm justifying prior restraint. Thus, a newspaper could be prohibited from publishing troop movements in times of war. [Near v. Minnesota, 283 U.S. 697 (1931)] However, the harm must be more than theoretical. Thus, the Court refused to enjoin publication of The Pentagon Papers on the basis that publication might possibly have a detrimental effect on the Vietnam War.

Question 131

Preserving Fair Trial

Answer 131

Preserving a fair trial for an accused might be a sufficient basis for prior restraint. However, the restraint will be upheld only if it is the only sure way of preserving a fair trial.

Question 132

Compare—Grand Jury Prior Restraint

Answer 132

A state law prohibiting a grand jury witness from ever disclosing the testimony he gave to the grand jury (even after the grand jury term had ended) violates the First Amendment. Such a law is not narrowly tailored to a compelling interest, since any such interest that the government may have in protecting the grand jury process can be protected by a nonpermanent prohibition.

Question 133

Contractual Agreements

Answer 133

The Supreme Court has held that prior restraint is permissible where the parties have contractually agreed to the restraint. [Snepp v. United States, 444 U.S. 507 (1980)—CIA agent contractually agreed to give agency a prepublication review of any item related to his employment]

Question 134

Military Circumstances

Answer 134

The Supreme Court has held that the interests of maintaining discipline among troops and efficiency of operations on a military base justify a requirement that persons on a military base obtain the commander’s permission before circulating petitions.

Question 135

Obscenity

Answer 135

The Court has held in a number of cases that the government’s interest in preventing the dissemination of obscenity is sufficient to justify a system of prior restraint.

Question 136

Procedural Safeguards

Answer 136

The Supreme Court has held that no system of prior restraint will be upheld unless it provides the persons whose speech is being restrained certain procedural safeguards. The safeguards arose in the context of movie censorship for obscenity, but the court has held that similar safeguards must be provided in all prior restraint cases:
a.
The standards must be “narrowly drawn, reasonable, and definite,” so as to include only prohibitable speech (e.g., improper to permanently enjoin witness from disclosing grand jury testimony; government interest can be protected by nonpermanent injunction [Butterworth v. Smith, supra]);
b.
If the restraining body wishes to restrain dissemination of an item, it must promptly seek an injunction (e.g., improper to allow 50 days before seeking injunction [Teitel Film Corp. v. Cusack, 390 U.S. 139 (1968)]); and
c.
There must be a prompt and final judicial determination of the validity of the restraint (e.g., improper to leave an injunction in place pending an appeal that could take up to a year; government must either lift the injunction or expedite the appeal [National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977)]).
CONSTITUTIONAL LAW 161.
A number of other cases, especially in the area of movie censorship, also provide that the government bears the burden of proving that the speech involved is unprotected

Question 137

Injunctions as Prior Restraints

Answer 137

If a court issues a procedurally proper preliminary injunction limiting speech activities (effectively, a prior restraint), the order must be complied with until it is vacated or overturned. This is true even if the government conduct in the underlying case is almost certainly unconstitutional; the apparent unconstitutionality of the government’s action in the underlying case cannot be used as a defense in a contempt of court proceeding for violating a procedurally proper court order.

Question 138

Obscenity Cases

Answer 138

Much of the case law in the area of prior restraint has arisen in connection with banning obscenity.
a.
Seizure of Books and Films
As with any seizure by the government, seizures of books and films may be
162. CONSTITUTIONAL LAW
made only upon probable cause that they contain obscenity or are otherwise unlawful.

Question 139

Single Seizures

Answer 139

Seizures of a single book or film (to preserve it as evidence) may be made only with a warrant issued by a neutral and detached magistrate. And even here, a prompt post-seizure determination of obscenity must be available. If other copies of a seized film are not available to the exhibitor, he must be allowed to make a copy so that he may continue showing the film until a final determination has been made. [Heller v. New York, 413 U.S. 483 (1973)] Of course, if the materials are available for sale to the general public, an officer may enter into the establishment and purchase the book or film to use it as evidence in a later prosecution without obtaining a warr

Question 140

Large Scale Seizures

Answer 140

“Large scale” seizures of allegedly obscene books and films—“to destroy them or block their distribution or exhibition”—must be preceded by a full adversary hearing and a judicial determination of obscenity

Question 141

Forfeiture of Business

Answer 141

The First Amendment does not prohibit forfeiture of a defendant’s adult entertainment business after the defendant has been found guilty of violating the Racketeer Influenced and Corrupt Organizations Act and criminal obscenity laws, even though the business assets included nonobscene books and magazines, where the entire business was found to be part of the defendant’s racketeering activity.

Question 142

Injunction

Answer 142

After seizing material, the government may enjoin its further publication only after it is determined to be obscene in a full judicial hearing

Question 143

Movie Censorship

Answer 143

The Court has noted that movies are different from other forms of expression, and that time delays incident to censorship are less burdensome for movies than for other forms of expression. Thus, the Court allows governments to establish censorship boards to screen movies before they are released in the community, as long as the procedural safeguards mentioned above are followed. The censor bears the burden of proving that the movie is unprotected speech.

Question 144

Burden on Government

Answer 144

When the government adopts a content-based, prior restraint of speech, the government has the burden of proving that the restriction is the least restrictive alternative to accomplish its goal. [Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004)—upholding a preliminary injunction against enforcement of a statute requiring age verification for access to Internet websites with sexually explicit material, and criminalizing the failure to obtain age verification, because less restrictive alternatives (e.g., parents installing filters) are available]

Question 145

FREEDOM OF THE PRESS

Answer 145

As a general rule, the press has no greater freedom to speak than does the public. However, a number of issues have arisen in the freedom of press context.

Question 146

Publication of Truthful Information

Answer 146

Generally, the press has a right to publish information about a matter of public concern, and this right can be restricted only by a sanction that is narrowly tailored to further a state interest of the highest order. The right applies even if the information has been unlawfully obtained in the first instance, as long as (1) the speech relates to a matter of public concern, (2) the publisher did not obtain it unlawfully or know who did, and (3) the original speaker’s privacy expectations are low.

Question 147

Access to Trials

Answer 147

The First Amendment guarantees the public and press a right to attend criminal trials. But the right may be outweighed by an overriding interest articulated in findings by the trial judge. [Richmond Newspapers v. Virginia, 448 U.S. 555 (1980)—no majority opinion] The right probably applies to civil trials, although the Supreme Court has not conclusively resolved that issue

Question 148

Access to Voir Dire Examination

Answer 148

The First Amendment guarantee of public and press access to criminal trials also includes access to proceedings involving the voir dire examination of
164. CONSTITUTIONAL LAW
potential jurors. In Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), the Court found that a trial court could not constitutionally close voir dire examination of potential jurors without consideration of alternatives to closure even though, in some circumstances, there may be a compelling interest in restricting access to such proceedings to protect the privacy of potential jurors or the fairness of the trial.

Question 149

Access to Other Pretrial Proceedings

Answer 149

Pretrial proceedings are presumptively subject to a First Amendment right of access for the press and public. Thus, a law requiring that all preliminary hearings be closed to the press and public violates the First Amendment. [El Vocero de Puerto Rico (Caribbean International News Corp.) v. Puerto Rico, 508 U.S. 147 (1993)—per curiam] If the prosecution and defense counsel seek to have a judge close pretrial proceedings, the judge would have to make specific findings on the record demonstrating (1) that closure was essential to preserve “higher” or “overriding” values, and (2) that the closure order was narrowly tailored to serve the higher or overriding value. [Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986)]
If the prosecution seeks to have a pretrial hearing or trial closed to the public and the defendant objects to the closure, there will be a Sixth Amendment violation if the judge excludes the public and the press from the hearing or trial without a clear finding that a closure order was necessary to protect an overriding interest.

Question 150

Compelling Interest in Protecting Children

Answer 150

The government has a compelling interest in protecting children who are victims of sex offenses. Portions of trials wherein such children testify may be closed to the public and press, but only if the trial court makes a finding that such closure is necessary to protect the child in the individual case. A state statute, however, violates the First Amendment if it requires closure of the trial during testimony of a child victim of a sex offense without a finding of necessity by the trial judge.

Question 151

Protective Order in Publishing Information Gained in Pretrial Discovery

Answer 151

The Supreme Court has upheld a state trial court “protective order” prohibiting a newspaper defendant in a defamation suit from publishing, disseminating, or using information gained through pretrial discovery from the plaintiff in any way except where necessary for preparation for trial.

Question 152

Requiring Members of the Press to Testify Before Grand Juries

Answer 152

In Branzburg v. Hayes, 408 U.S. 665 (1972), the Court held that requiring a journalist to appear and testify before state or federal grand juries does not abridge freedom
CONSTITUTIONAL LAW 165.
of speech or press, despite the claim that such a requirement would so deter the flow of news from confidential sources as to place an unconstitutionally heavy burden on the First Amendment interest in the free flow of information to the public. The Court’s opinion refused to create—and even rejected—a conditional privilege not to reveal confidential sources to a grand jury conducting a good faith inquiry.

Question 153

Interviewing Prisoners

Answer 153

Although the First Amendment protects prisoners, and especially those corresponding with them by mail, from a sweeping program of censorship [Procunier v. Martinez, 416 U.S. 396 (1974)], it does not permit journalists to insist upon either interviewing specified prisoners of their choice [Pell v. Procunier, 417 U.S. 817 (1974)] or inspecting prison grounds

Question 154

Business Regulations or Taxes

Answer 154

Press and broadcasting companies can be subject to general business regulations (e.g., antitrust laws) or taxes (e.g., federal or state income taxes). Thus, a tax or regulation applicable to both press and non-press businesses will be upheld, even if it has a special impact on a portion of the press or broadcast media, as long as it is not an attempt to interfere with First Amendment activities. However, no tax or regulation impacting on the press or subpart of the press may be based on the content of the publication absent a compelling justification

Question 155

Monetary Damages for Failure to Keep Identity Confidential

Answer 155

When a reporter or publisher promises a “source person” to keep his identity confidential and then publishes the source person’s name, state contract law or promissory estoppel law may allow the source person to recover from the reporter or
166. CONSTITUTIONAL LAW
publisher any damages caused by the publication of his identity

Question 156

Broadcasting Regulations

Answer 156

Radio and television broadcasting may be more closely regulated than the press. Rationale: Due to the limited number of frequencies available, broadcasters have a special privilege—and, consequently, a special responsibility to give suitable time to matters of public interest and to present a suitable range of programs. The paramount right is the right of viewers and listeners to receive information of public concern, rather than the right of broadcasters to broadcast what they please

Question 157

Fairness Doctrine

Answer 157

Accordingly, the Court has upheld, under a regulatory “fairness doctrine” (which is no longer enforced), FCC orders requiring a radio station to offer free broadcasting time (1) to opponents of political candidates or views endorsed by the station, and (2) to any person who has been personally attacked in the course of a broadcast, for a reply to the attack.

Question 158

Compare—Grant of Equal Newspaper Space

Answer 158

A statute granting political candidates a right to equal space to reply to criticism by the newspaper violates First Amendment freedom of the press. Decisions respecting size and content of a newspaper are forbidden to government.

Question 159

Newspaper Ownership of Radio or TV Station

Answer 159

Similarly, to promote the diversity of information received by the public, the FCC may forbid ownership of a radio or television station by a daily newspaper located in the same community.

Question 160

Prohibiting Indecent Speech

Answer 160

Because of a broadcast’s ability to invade the privacy of the home, the First Amendment does not forbid imposing civil sanctions on a broadcaster for airing a full monologue (in contrast to isolated use of a few such words) of “patently offensive sexual and excretory speech,” even though it is not “obscene”—at least at those times when children are likely to be listening

Question 161

Political Advertisements

Answer 161

The First Amendment does not require broadcasters to accept political advertisements.

Question 162

Elimination of Editorial Speech from Stations Receiving Public Grants
Congress violated the

Answer 162

First Amendment when it forbade any noncommercial
CONSTITUTIONAL LAW 167.
educational station receiving a grant from the Corporation for Public Broadcasting from engaging in “editorializing.” [FCC v. League of Women Voters, 468 U.S. 364 (1984)] This was the suppression of speech because of its content; the elimination of editorial speech from stations receiving public grants of this type was not narrowly tailored to promote an overriding government purpose regarding the regulation of broadcasting in general or noncommercial broadcasters in particular. Congress could deny persons receiving the federal funds the right to use those funds for editorial activities, but it could not condition the receipt of those funds upon a promise not to engage in any such speech.

Question 163

Cable Television Regulation

Answer 163

While generally regulations of newspapers are subject to strict scrutiny, and regulations of the broadcast media are subject to less critical review, regulations of cable television transmissions are subject to review by a standard somewhere between these two. Rationale: The physical connection to a viewer’s television set makes the cable subscriber a more captive audience than a newspaper reader and distinguishes cable from newspapers, which cannot prevent access to competing newspapers. On the other hand, unlike broadcast media, which is limited to a small number of frequencies (see 7., supra), there is no practical limitation on the number of cable channels; thus, the government’s interest in protecting viewers’ rights is weaker with regard to cable.

Question 164

Compare—Content-Based Cable Broadcast Regulations

Answer 164

A content-based cable broadcast regulation will be upheld only if it passes muster under the strict scrutiny test. [United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000)—law requiring cable operators to limit “sexually oriented” programs to after 10 p.m. is invalid because of the less restrictive alternative of enabling each household to block undesired channels]

Question 165

Internet Regulation

Answer 165

The strict standard of First Amendment scrutiny, rather than the more relaxed standard applicable to broadcast regulation, applies to regulation of the Internet. Rationale: In contrast to broadcasting, there is no scarcity of frequencies (see 7., supra) on the Internet and little likelihood that the Internet will unexpectedly invade the privacy of the home