The First Amendment (Government Property and Speech) Flashcards
Davis v. Massachusetts - BAD LAW
Holding/Rule: The gov may exclude all speakers from government property
Hague v. Committee for Industrial Organization
Holding/Rule: Ordinance restricting speech on public property impermissible (overturning Davis)
Schneider v. NJ
Holding/Rule: Ordinances against littering cannot be used to prohibit disfavored speech, and the government must balance the First Amendment against the need to preserve order.
Public Forum General Rule
If there are any content-based restrictions in a public forum, then the restrictions must (i) survive strict scrutiny (compelling gov interest, narrowly tailored) + (ii) be the least restrictive alternative means ( alternative channels must be left open). (Mosley). If there are any content-neutral restrictions in a public forum, then they will survive as long as there is a (i) substantial government interest, (ii) the restriction is narrowly tailored to advance that interest, and leaves alternative channels of speech open. (Krishna Consciousness) (Hill). A facially neutral law does not become content-based because it burdens more speech than others. (Coakley). A government does NOT need to show that a content-neutral law is the least restrictive alternative. (Ward v. Rock Against Racism).
Public Forums + Licensing + Permitting
YES so long as (i) gov has important reason for licensing; (ii) the licensing scheme has clear criteria that leaves little room for discretion; (iii) there are procedural safeguards in place (i.e., judicial review); (iv) any permitting fee is nominal (although court has never defined what that would look like)
Police Dept. of the City of Chicago v. Mosley (1972) → Unconstitutional (public forum)
In Mosley, a city ordinance that prohibited picketing near schools in certain time periods but excluded certain labor-related speech was unconstitutional.
Heffron v. International Society for Krishna Consciousness (1981) → Constitutional (public forum)
In Heffron v. Int’l Society for Krishna Consciousness, a state fair that prohibited distributing literature except at a fair booth was constitutional because it was a valid time, place, and manner restriction with a substantial government interest (preventing congestion at the fairgrounds), that was narrowly tailored to advance that interest and left open alternative channels of communication. alternative channels of communication.
Hill v. Colorado (2000) → Constitutional (public forum)
General Rule: If there are any content-based restrictions in a public forum, then the restrictions must (i) survive strict scrutiny (compelling gov interest, narrowly tailored) + (ii) be the least restrictive alternative means ( alternative channels must be left open). (Mosley). If there are any content-neutral restrictions in a public forum, then they will survive as long as there is a (i) substantial government interest, (ii) the restriction is narrowly tailored to advance that interest, and leaves alternative channels of speech open. (Krishna Consciousness) (Hill) (Coakley) (Ward).
McCullen v. Coakley (public forum)
In McCullen v. Coakley, a law that created a 35 foot buffer zone around an entrance and parking lot of a facility that performed abortions with an exemption for employees of those facilities and their agents was unconstitutional. The Court held that the law was content neutral even though it burdened more speech than others, but it was not narrowly tailored since there were other ways to accomplish safety of medical facilities without burdening speech (like a criminal law against harassment).
Ward v. Rock Against Racism (1989) → Constitutional (Public forum)
In Ward v. Rock Against Racism, a NYC law that required that performers at a bandshell in Central Park use equipment and sound tech provided by the city, was constitutional. The Court held that if a restriction was content-neutral, the government DOES need to show it is narrowly tailored, but it doesn’t need to show that it is the least restrictive alternative. New York City’s substantial interest in limiting sound volume is served in a direct and effective way by the requirement of using the city’s sound technician during performances. The city’s interest would have been less served without this requirement, as is evidenced by the complaints about excessive noise generated by past concerts. Finally, the city’s guidelines leave open ample alternative channels of communication. The requirements do not attempt to ban any particular manner or type of expression at a given place or time. Rather the guidelines continue to permit expressive activity in the bandshell and have no effect on the quantity or content of that expression beyond regulating the extent of amplification
Designated Public Forum General Rule
If there are any content-based restrictions in a designated public forum, then the restrictions must (i) survive strict scrutiny (compelling gov interest, narrowly tailored) + (ii) be the least restrictive alternative means (alternative channels must be left open). If there are any content-neutral restrictions in a public forum, then they will survive as long as there is a (i) substantial government interest, (ii) the restriction is narrowly tailored to advance that interest, and leaves alternative channels of speech open (NOT least restrictive alternative).
Licensing and permitting in Designated Public Forum
YES so long as (i) gov has important reason for licensing; (ii) the licensing scheme has clear criteria that leaves little room for discretion; (iii) there are procedural safeguards in place (i.e., judicial review); (iv) any permitting fee is nominal (although court has never defined what that would look like)
Knight v. Trump (2019)
Facts: Pres Trump blocks ppl on Twitter in response to the criticisms of his policies. They bring a First Amendment challenge.
Holding/Rule: Gov officials’ social media accounts may be considered designated public forums. Trump’s twitter account is a designated pub forum and by blocking dissenters, he impermissibly engaged in viewpoint-based discrimination.
Garnier v. O’Connor-Ratcliff (2022)
Facts: Two school board trustee’s establish twitter and FB pages where they conduct official business. Two parents leave long and repetitive comments expressing their displeasure with the trustee and the school board. The trustees block the parents from accessing their social media pages.
Holding/Rule: Gov officials social media accounts may be considered designated public forums. The school media pages are designated public forums. The decision to block the parents violated the First Amendment because it did not advance a substantial government interest and was not sufficiently narrowly tailored.
Limited Public Forum Rule
Any restrictions are allowed so long as they are reasonable and viewpoint neutral. (Christian Legal Society of UC Hastings v. Martinez). In Christian Legal Society of UC Hastings v. Martinez, a Christian legal society was denied registration and formal school org and the school’s denial was unconstitutional. The Christian legal society had rules that conflicted with the law school’s nondiscrimination, “all-comers” policy, but their denial was constitutional because the law school created a limited public forum and the all comers policy was both reasonable and viewpoint neutral.
