The First Amendment (Government Speech) Flashcards
The First Amendment
“Congress shall make no law (i) respecting an establishment of religion, (establishment clause) or prohibiting the free exercise thereof (free exercise clause); (ii) or abridging the speech (speech clause), (iii) or of the press (press clause), (iv) or the right of the people peaceably to assemble (assembly clause), (v) or to petition the government for a redress of grievances (petition clause)”.
Content -Based Restrictions
Government restrictions on speech that are content-based on their face are subject to SS. (Alvarez). To survive strict scrutiny must show compelling interest + sufficiently narrowly tailored. (Reed). In Reed, the sign classifications were found to be unconstitutional and the town’s interests for traffic safety and aesthetic purposes were not compelling enough to justify the restrictions on the signs. In Alvarez, the Stolen Valor Act, which criminalized untruthful speech regarding winning the congressional medal of honor, was held to be unconstitutional.
Content-Neutral Restrictions
In contrast, content-neutral restrictions apply to all speech regardless of what the message is. Content neutral restrictions may escape strict scrutiny if the law is a valid time, manner, and place restriction and is motivated by a neutral, non-speech purpose. Instead, it will be upheld if there is a (1) substantial government interest; and (2) there are reasonable alternatives of communication (City of Renton)..
City of Renton v. Playtime Theaters (1986)
In Renton, a zoning restriction prohibiting adult movie theaters within 1,000 ft. of any residential housing, church, or park, and within 1 mile of any school was found to be constitutional. The Court found that the zoning ordinance did not ban adult movie theaters throughout the city, but only restricted them in certain places in order to target the harmful, secondary effects of adult theaters near the designated areas. (Counter argument: this is content-based).
Viewpoint Based Restrictions
Government restrictions on speech that are viewpoint-based must survive strict scrutiny. (Matal v. Tam). In Matal, a Lanham Act provision that prohibited any trademarks that disparage any person, alive or dead, was found to be unconstitutional. The Court held that the government’s reasons for keeping an orderly flow of commerce by preventing anyone from being offended by disparaging trademarks was not compelling. Trademarks are private speech and are entitled to First Amendment protections.
Subject Matter Restrictions
Government restrictions on subject matter are subject to strict scrutiny. To survive strict scrutiny, the government must show a compelling interest that is narrowly tailored to that interest. (Carey/Simon & Schuster) - Williams-Yulee v. Florida).
Carey v. Brown (1980)
Holding/Rule: Ordinance prohibiting all residential picketing except those related to labor disputes was a subject matter restriction and did not survive SS.
Simon and Schuster v. Members of NY State Crime Victims Board (1991)
State law prohibiting crime victims from profiting from their crimes was a subject matter restriction and did not survive SS.
Williams - Yulee v. Florida Bar → Survives SS
Facts: FL prohibits individuals running for judicial office from personally soliciting campaign contributions.
Holding/Rule: The law is constitutional. The state’s interest is compelling and their law is sufficiently narrowly tailored to survive SS. States may regulate judicial elections differently from how they regulate political elections.
Government Speech
When the gov makes a choice among speakers, it is permitted to make this distinction on the basis of content but it is NOT permitted to make a decision on the basis of viewpoint (National Endowment for the Arts). When a government entity is speaking for itself, no speech restrictions apply because there is no public forum for private speech so forum analysis is not needed (however Establishment Clause violations still apply). (Summum). When the gov speaks it is permitted to engage in content-based speech (Walker). When determining whether the gov has engaged in its own speech or the regulation of private speech the court should consider three factors: (1) The history behind speech decision; (2) Public’s perception of who is speaking; (3) The extent to which the gov. Has exercised control over speech (Shurtleff).
National Endowment for the Arts v. Finley
In National Endowment for the Arts v. Finley, a provision that allowed government officials to take “general standards of decency and respect for the values of the American public” into account when evaluating which art would receive government funding was constitutional. The Court held that when a government must make a choice among speakers, it is permitted to make this distinction on the basis of content, but not on viewpoint. The government was not discriminating on viewpoint by choosing to fund one piece of artwork and not another.
Pleasant Grove v. Summum
In Summum, the government excluding from a public park an application for a monument from the religion of Summum while allowing a monument featuring the ten commandments was constitutional. The Court held that when the government speaks for itself, speech clause restrictions don’t apply (but establishment clause violations do).
Walker v. TX Division
In Walker, the DMV’s denial of an application to put a confederate flag on a license plate was constitutional. The court held that a government can engage in content based speech without surviving strict scrutiny.
Shurtleff v. Boston
In Shurtleff, the Court held that a government who refused to permit a Christian group from raising their flag in front of city hall was unconstitutional because the government was not speaking and historically did not exercise control over the flags being raised. The Court held that the government (1) had a long established practice of accepting all flag requests without exception and regardless of viewpoint (2) it was unclear whether the public viewed flags flying on the third pole as government speech or private speech (3) the city made no effort to control which flags were raised or to guide the messages sent by the flags.
