Pg 36 Flashcards
Is it possible for a law to be content neutral on its face but then treated like it’s content-based under free-speech?
Yes if the government only enforces it to stop one viewpoint or content (meaning the law is enforced in a discriminatory way).
Ie: if The city bans all signs on private property, but the plaintiff puts up a “vote for Jean“ sign and gets charged, if he can show that the police didn’t charge other people that had signs to vote for Bob, then the law as applied was content-based and will be invalidated under strict scrutiny.
When is a government usually allowed to use time, place, and manner restrictions?
- On public property
- when it is narrowly drawn
- and a reasonable content-neutral regulation of time, place, or matter
- and meant to promote valid local interests such as the flow of traffic or public safety
If in a city Council meeting the guards will not let anybody bring signs in because it will block the TV cameras, is that content regulation or TPM?
That is TPM because it is not related to the content of the signs.
If it is required by the government that you get a permit to have a parade, and there are only 10 permits given out per year on a first come first served basis, is that a content control or TPM?
That is TPM because the government is neutral and has a need to control parades, but it isn’t controlling based on content
If the Hare Krishnas at the county fair are required to have a booth like everybody else, is that content control or TPM?
That is TPM because the government wasn’t using discretion, they just needed orderly conduct and they required it of everyone
Is it possible to require a buffer zone at an abortion clinic that says that protesters cannot come within 10 feet to leaflet?
Yes, that is considered to be a TPM control because it’s not based on content since it applies to everyone around the clinic, it is narrowly tailored, and there are other ways for protesters to get their message out
How do you know if something is a TPM regulation?
If you don’t have to look at something to decide if it falls into the category of speech, it is usually viewpoint and content neutral.
I.e.: banning decals on windows. It doesn’t matter what they say, the rule is that no stickers can be on a car window because of safety issues. That is content neutral.
If the law banned certain kinds of decals, that would be a speech issue. The government can regulate where a decal is put, and how many decals can be on a vehicle, but once the government targets a speech component, it is not allowed
How do you justify a TPM regulation from the government?
If it furthers an important government interest, the interest is unrelated to suppression of free expression, and the incidental restriction on first amendment freedom is no greater than what is essential to further that interest
If the government has the discretion to set fees for parades depending on how much security is needed for the event, is that constitutional under the first amendment?
Oh no, because it puts discretion about freedom of expression in the mayor’s hands. Unfettered discretion cannot be vested in public officials for activities that regard speech and expression
What does the zoning for adult entertainment/secondary effects principle say?
Laws can establish separate zoning areas in cities for adult entertainment and they are still considered to be content neutral. This is a legal fiction that is justified by the government saying that adult content of speech affects government interests that are unrelated to the suppression of expression. I.e.: property values around sex stores drop, and it has secondary economic effects.
Is it possible for a government to regulate sound and noise?
Yes, there can be clear ordinances that stop sound trucks or devices from emitting loud or raucous noises
Is it possible for a government to regulate non-speech under the first?
Yes, if these things are present:
– the regulation furthers an important or substantial government interest
– the government interest is unrelated to suppression of free expression
– incidental restriction on the alleged freedom cannot be greater than what is essential to further the interest
What is the clear and present danger doctrine?
If words are in such circumstances to create a clear and present danger that they will bring about substantive evils that Congress has the right to protect, then the government can suppress speech.
I.e.: screaming fire in a crowded theatre
What are the elements that have to be met in order to prove clear and present danger doctrine?
– Reasonable grounds to believe that the danger or lawless action is imminent
– probability of serious danger to the state is likely
Test: the court asks if the gravity of the evil, discounted by improbability, justifies the invasion of free-speech and is necessary to avoid danger
What is symbolic speech or conduct?
This is called speech plus. It is conduct or nonverbal activity that is counted as speech when the conduct is the message itself.
I.e.: if it is understood that waving a red flag is a call to action, then doing that is a form of speech.
