The First Am. - Free Speech Flashcards
The First Amendment
(1) Freedom of Religion – in two parts: Disestablishment and free exercise
(2) Freedom of Speech and Press
(3) Freedom of Assembly and Petition
Free Speech
The Supreme Court has adopted a series of overlapping but distinct categorical distinctions to help shape analyses of when governments can and can’t constitutionally restrict an individual’s speech. Also, the nature of the forum in which the speech takes place affects the restrictions that governments may impose.
Content-based
Content-neutral
Content-Based
The principle at the heart of the Supreme Court’s modern understanding of the First Amendment is that content-based restrictions on speech are presumptively invalid and will only be upheld if the underlying speech is itself unprotected, or if the restrictions can be shown to be narrowly tailored to satisfy a compelling government interest, that is, if they survive strict scrutiny. A content-based restriction is any law that treats speech differently based on its substance or the viewpoint it reflects.
Forums Generally
As the Supreme Court has recognized, not all public forums are equal, and the restrictions that governments may impose on speech vary based on the nature of the forum in which the speech takes place. To guide First Amendment analysis, the Court has identified four different types of forums:
(1) Public forums
(2) Designated public forums
(3) Limited public forums
(4) Nonpublic forums.
Forum: Public
Ex: Streets/parks.
A public forum is government property that the government must make available for constitutionally protected speech, including places like sidewalks and public parks. In these places, the Supreme Court has imposed three requirements in addition to content neutrality.
(1) First, the regulation must be a reasonable time, place, or manner restriction that leaves open adequate alternative places for speech.
(2) Second, if the government requires a license or permit for speech in the public forum, that requirement must serve an important government purpose, provide objective criteria to govern the awarding of licenses, and create a procedural mechanism for prompt resolution of disputes over a permit or license refusal.
(3) Third, the regulation must be narrowly tailored to achieve the government’s purpose, although it needn’t be the least-restrictive alternative. For example, in Ward versus Rock Against Racism, the Court upheld a New York City ordinance requiring the use of city personnel and equipment for all concerts held in the Central Park bandshell, where the government’s interest was noise reduction.
(a) Government may not prohibit all communication. i.e., a right of access exists.
(b) Gov’t can discriminate on the basis of content only if it has can demonstrate that it has compelling interest and that the regulation is narrowly drawn to achieve that interest.
(c) Gov’t may enforce content-neutral, TPM restrictions that are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.
Forum: Designated Public
Ex: Gov’t has opened “public property for use by the public for expressive activity.”
A designated public forum is somewhere that the government chooses to open to all speech but doesn’t necessarily have to, such as public university buildings. Once the government chooses to allow all speech in these contexts, any regulation of speech is subject to the same exacting rules that apply to public forums. A government’s decision to open property to speech doesn’t automatically make that property a designated public forum.
(a) There is no right of access in the public to the forum until Gov’t opens the forum.
(b) Once opened – it is treated as a traditional public forum for purposes of FA, until closed.
Forum: Limited Public
Ex: A public forum may be created for a limited purpose, such as expression by a certain class of speakers or the discussion of certain topics.
The government can choose to open property to only some speech, which creates a limited public forum. In these circumstances, the government’s choice to limit speech to certain messages will be upheld if it is viewpoint neutral and reasonable given the forum’s purpose. For example, the Court struck down a public elementary school’s refusal to allow a religious group to use school property after hours for religious activities when the school had allowed nonreligious groups to use the same property for nonreligious activities.
(a) The limitations on use of the forum by speakers or by topic must be reasonably related to the purpose of the forum, and
(b) Government may not deny access to the forum on the basis of viewpoint.
Forum: Nonpublic
Ex: Jails/public schools/military bases. Government property that is a non-public forum is property that is not opened for the purpose of expressive activity and is instead reserved for its intended purpose even though accomplishing that purpose may (usually does) involve expressive activities.
Governments may categorically prohibit speech in a nonpublic forum if the prohibition is viewpoint neutral and reasonable. Although the Court hasn’t exhaustively defined the category of nonpublic fora or the criteria that separate them from public fora, it has applied nonpublic-forum rules to laws prohibiting speech outside prisons, on public areas of military bases, on public utility poles, and in airports. Among the factors the Court has identified in deciding whether a forum is public or nonpublic are whether the type of forum has traditionally been available for speech, the degree to which speech is compatible with the forum’s ordinary functioning, and whether the forum’s primary purpose is to facilitate speech. Thus, the stronger the government’s justification for closing a particular space to speech that hasn’t historically been open to it, the more likely the place will be deemed a nonpublic forum.
Commercial Speech & Expressive Conduct
For these types of speech, the Court has recognized that the speech should be protected but also that the government may have greater justification for interfering with some categories of speech over others. Restrictions on these forms of speech have thus been subjected to different forms of intermediate scrutiny.
Commercial Speech
Is speech that has three characteristics.
(1) First, it’s an advertisement of some form.
(2) Second, it refers to a specific product.
(3) And third, the speaker has some kind of economic interest in the speech. The First Amendment does protect commercial speech, but to a lesser degree than other constitutionally protected expression.
In Central Hudson Gas and Electric Corporation versus Public Service Commission of New York, the Supreme Court identified a four-factor test for deciding when local, state, or federal laws interfering with commercial speech will nevertheless be upheld:
(1) First, is the advertising false or deceptive, or suggestive of illegal activities, all of which involve speech the First Amendment does not protect?
(2) Second, if not, is the government’s restriction justified by a substantial government interest?
(3) Third, if so, does the law directly advance the government’s proffered interest?
(4) And fourth, if so, is the regulation of speech no more extensive than necessary to achieve the government’s interest?
Expressive Conduct
Communication is not always carried out through pure speech. The Supreme Court has long recognized that the freedom of speech protected by the First Amendment safeguards more than just literal words. For example, the right to free expression that the Free Speech Clause protects includes a freedom of expressive conduct. Whether particular expression triggers First Amendment analysis turns on (1) whether the conduct intended to convey a specific message and, if so, (2) whether there is a substantial likelihood that those receiving the message would understand it.
The question then becomes the extent to which governments may regulate this type of conduct.
Expressive conduct can be regulated so long as the government has an important interest unrelated to the suppression of the conduct’s message. The effect on speech must also be no greater than necessary to achieve the government’s objection. This form of intermediate scrutiny is controversial because, unlike commercial speech, expressive conduct often far more closely resembles core political speech.
Bowser’s Analysis:
1. Did the defendant engage in “expressive conduct?”
2. Did the defendant intend to convey a particularized message, and
Was there a great likelihood that the message would have been understood by those who viewed it?
3. Was the State’s regulation of the action related to the suppression of expression?
If YES, Strict Scrutiny applies.
If NO, then O’Brien:
(1) Does the regulation further an important/substantial governmental interest?
(2) Is the incidental impact on free speech no greater than is essential to further that interest?
Unprotected Speech
With respect to some categories of speech, the Supreme Court has held that the First Amendment doesn’t apply at all.
(1) Incitement
(2) Fighting Words
(3) True Threats
(4) Subversive Advocacy
(5) Obscenity
(6) Child Pornography
(7) Defamation
(8) Crime Facilitating Speech
Unprotected Speech: Subversive Advocacy
Constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action AND is likely to incite or produce such action.”
Unprotected Speech: Obscenity
The basic guidelines for the trier of fact must be:
(1) Whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest;
(2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;
- Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
- Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals; and
(3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Unprotected Speech: Child Pornography
Thus, laws restricting the exhibition, sale, or distribution of child pornography have generally been upheld, so long as children are actually involved in the pornography’s creation - narrowly defining child pornography to require the subject to be a minor child.
