#11332 - First Amendment - First Amendment

Speech

• Is it Constitutionally Protected Conduct?

• Is it Void for Vagueness? (Overbreadth? Over/under inclusive?)

• Chill speech?

• Is it outside the First Amendment?

  • Incitement, Obscenity, Libel, Fighting Words, …

• Tort

• Privacy

• Is the government acting as…

  • Employer

  • Educator

  • Patron ($$)

  • Speaker

• Is this Commercial Speech?

• Expressive Conduct? Spence test?

• Is this Content-Neutral?

  • Aimed at Speech: SS

  • Neutral: IS

  • Incidental: Rational Basis

• Is the statute part of a neutral, general regulatory scheme? (Wisconsin v. Mitchell, Glickman, RAV?)

• Public Forum:

  • Traditional

  • Designated

  • Limited

  • Non-public forum

• Time place and manner regulation – IS

• Does it involve:

  • Right not to speak

  • Right to speak anonymously

  • Right to expressive association

• Injunction as TPM? (Heffron)

Religion:

• Does it discriminate against religion?

• Is it about an exemption to a facially neutral rule? (FE)

• Does it Establish a religion:

  • Subsidies

  • Use of Public Spaces

  • Teachers

  • School Prayers

  • Curriculum

  • Public Displays

Unresolved issues:

Internet, Cyber-bulling, Political, New Categories, Balancing vs. Categories, Snowden (Holder, Pentagon Papers), Revenge Porn, Nude photos/videos w/o consent. Nudity (“Free the nipple”). Jennifer Lawrence “illegal to call people fat.”

Outside First Amendment

• Speaker and Audience on Same Side

  • Incitement (Brandenburg): (1) Specific Intent (Hand); (2) Grave harm imminent (Holmes C+PD); (3) Likelihood of causing illegal action (Schenck approach)

  • How to make a bomb (Progressive)

• Speaker and Audience on Opposite Side

  • Fighting Words (Chaplinsky)

  • Offensive Words (Cohen) – OK unless directed at a person and likely to provoke violent response)

  • Hostile Audience (Terminiello) – No Heckler’s Veto, audience cannot censor speaker

  • Permits need Standards (Kunz, Forsyth)

  • NO group libel (Beauharnais)

  • Hate speech protected (Collin in Skokie, Nazis)

  • Hate speech Statute must be neutral and narrow. Can’t viewpoint discriminate within statute. (RAV)

  • Hate CRIME statute ok, b/c not speech (WI v. Mitchell)

• Tort

  • Libel by Press requires (1) public official; (2) “actual malice”; (3) actual damages (NYT v. Sullivan)

    • Applies to Public figures (Curtis)

    • Private individuals must be (1) negligence; (2) false; (3) compensatory damages (malice -> + punitive) (Gertz)

  • IIED requires false statement + actual malice (Huster)

    • No IIED if matter of public concern (Snyder)

• Privacy

  • Privacy requires knowledge of falsity or reckless disregard (Time v. Hill)

  • No liability for broadcasting true information in the public record (Cox v. Cohn, Florida Star)

  • Even if information illegitimately acquired, still 1st Am protection (Bartnicki)

• Press

  • No special treatment in courts (Cohen v. Cowles)

  • Prior Restraint: High burden on government to prove (Pentagon Papers)

  • Jury gag order: must (1) otherwise jeopardize fair trial; (2) no other means; (3) would actually assure fairness (Stuart)

• Sex

  • Obscenity: (1) prurient interest; (2) patently offensive; (3) SLAPS (Roth)

  • Nudity

    • Can’t discriminate based on Nudity (Erzoznik)

    • Zone for diffusion (Young v. American Mini Theaters), for concentration (Renton), but needs evidence (Alameda)

  • Child porn illegal (Ferber, Osborne) but virtual/simulated OK (Ashcroft v. Free Speech Coalition)

  • Regulate Indecency:

    • OK in broadcasts (Pacifica); not Phone (Sable); not mail (Bolger); OK in leased cable operators (Denver v. FCC); not normal cable (Playboy); not the Internet (Reno v. ACLU) and must use least restrictive means possible (Ashcroft v. ACLU II)

  • No new categories (US v. Stevens – Crush videos)

Government as Actor

• Government as Educator: Generally OK to regulate classroom, less OK to regulate extracurricular

  • “It can hardly be argued that students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” – Tinker.

  • Has to be more than just uncomfortable (Tinker)

  • Disruptive, non-political speech OK to regulate (Bethel v. Fraser)

  • Can censor school newspaper – imprimatur of school (Hazelwood)

  • Field trips part of school day (Morse v. Frederick)

• Subsidies: Government is Patron

  • Fairness Doctrine: Yes to Broadcasters (Red Lion), no to newspapers (Tornillo editorial discretion). Moot after repealed by FCC

  • Conditions on Funding

    • Can Condition: tax code incentives (Regan v. TWR), Abortion gag rule (Rust), Discretionary artistic determinations (NEA v. Finley), Library Filters (US v. ALA)

    • Cannot Condition: 1A Violation (Speiser), Too much leverage (FCC v. LWV), View-point discrimination (Legal Services v. Velazquez)

• Government as Employer

  • Issues: Public v. Private Speech? Acting as employee or individual? Balancing interest of individual vs. employer. Public or non-public concern?

  • Can be fired for: criticizing boss within workplace (Connick); work memos (Garcetti); private conduct with a public concern (San Diego v. Roe)

  • Cannot be fired for: Public letter in newspaper (Pickering); political remarks (Rankin); speeches unrelated to job (US v. National Treasury Employees Union)

• Government as Speaker

  • Rust: abortion gag rule

  • Johanns: Ads

Commercial Speech

• Special Rules: (1) Requirement of truth, legal, and non-misleading; (2) No overbreadth issue; (3) Compelling warnings, etc., OK; (4) No worry of Chilling effects

• Central Hudson (1980):

  • (1) Not illegal, misleading;

  • + Intermediate Scrutiny: (2) Substantial government interest; (3) Directly advanced; (4) Narrowly tailored [Least restrictive? Alternative Channels?]

Content-Neutral vs. Content-Based Statutes

• O’Brien Tracks:

  • [Viewpoint Discrimination: Strict Scrutiny]

  • Track 1 Aimed at Speech: Strict Scrutiny

    • Almost all cases struck-down, except Burson (election integrity) and Humanitarian Law Project (terrorism)

  • Track 2 Content-neutral with incidental effects: Intermediate Scrutiny

    • Both Content-Neutral laws and TPM

  • Track 3 Speech implicated only in passing: Rational Basis

    • Arcara – bookstore with prostitution.

• Expressive Conduct

  • Spence Test: (1) Speaker’s Intent + Context indiciating that message would be understood as speech by the audience

  • Nude Dancing: Neutral-regulations that regulate nudity pass IS.

• Traditional Public Forum: Goals of Access and Non-Discrimination.

  • Streets and Parks (Hague)

  • Permits OK if standards/gov’t interest (Cox), not standardless discretion

  • Total Medium Bans less OK, but can be reframed as TPM (Watchtower, Ladue, Martin)

• TPM for Public Order/Safety generally ok

  • Apply intermediate scrutiny (Clark v. CCNV)

  • Aggregated effects into account (Heffron)

  • Not have to be least restrictive alternative (Ward)

  • Abortion Regulations OK for compelling state interests like privacy, anti-harassment, physical threat

• Non-Traditional Public Fora: See chart

  • If not a public forum, OK if reasonable and view-point neutral.

  • Four tiers of Public Forum (MF not like) (CLS v. Martinez)

    • Traditional PF – Streets and Parks (Summum)

    • Designated PF: same rules as traditional, b/c government opened it up

    • Limited PF: certain discussions, with reasonable and VP-neutral restrictions

    • Non-PF: No speakers.

  • Non-public: Military Bases (Greer), Jails/Prisons (Adderly), Mailboxes (Greenberg), Schools (Grayned), Government Offices (Cornelius), Airport terminals (ISKON v. Lee), Public TV (Forbes), Private shopping centers (Hudges), Government Property (Lehman)

Rights Subsidiary to Free Speech

• See Chart

• Right not to speak:

  • Yes: private property protests (Pruneyard), Fairness Doctrine (Red Lion), Cable stations carry local TV (Turner)

  • No: Walking government billboard (Wooley), Newspaper fairness (Tornillo), Utility company include critique (PG&E)

• Anonymity: Substantial relationship b/w disclosure requirement and important gov’t interest (Doe)

  • Yes Right: Membership Lists (NAACP v. AL); a teacher’s group membership (Shelton), Handbills (Talley), Campaign Literature (McIntryre); third party contributions (Brown v. Socialist Workers Party)

  • No: Referendum (Doe v. Reed); Political Contributions (Buckley)

• Expressive Association

  • No contributions to views that you don’t like (Abood), but OK for universities (Southworth)

  • Compulsory fees OK if part of a regulatory program (Glickman) or government speech (Johanns), but not just speech (United Foods)

  • Strong Right to Associate: Maintaining organization’s goals (Dale, Hurley)

  • Weak Right to Associate: Single-sex club (Jaycees), on-campus military recruiting (FAIR)

  • Leverage argument (MF for FAIR)?

Religion

• NO Laws Discriminating against Religion (Lukumi)

• Free Exercise

  • Smith Test: No exemptions to generally applicable law, except (1) hybrid cases; (2) Unemployment (individual assessment, no criminal component)

    • O’C: Compelling state interest balanced w/ interest of religion

  • Federal Government: Bound by RFRA (Strict Scrutiny)

  • State’s can implement RFRA, but Federal Government cannot force upon them (Boerne/Gonzales)

  • RLUIPA: Strict Scrutiny for state rules for Land Use, Zoning (all individual assessments!)

  • Gonzales v. O Centro Espirita: Gov’t must demonstrate compelling interest under RFRA to stop use of Schedule I Drug. Here, 130 members of UDV OK. Compare w/ 250k Native Americans who can now use Peyote. Hoasca.

• Establishment

  • TESTS

    • Lemon Test (1971): $ to schools for Salaries and books for secular topics

      • Secular legislative purpose; (Purpose Prong)

      • Not have the primary effect of either advancing or inhibiting religion; (Effect Prong)

      • Must not result in an "excessive...