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Law Outlines First Amendment Outlines

First Amendment Outline

Updated First Amendment Notes

First Amendment Outlines

First Amendment

Approximately 6 pages

A robust "short" outline, helpful as an attack sheet for an in-class or take-home First Amendment exam. Does not include extensive descriptions of facts of the case, but distills important holdings for each case, organized by topic. Articulates special rules for each area of law....

The following is a more accessible plain text extract of the PDF sample above, taken from our First Amendment Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:



  • 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)


  • 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.”


Pure Speech Expressive Speech, TPM, Commercial Pure Conduct Unprotected Speech
SS IS Rational Basis Never allowed

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...

Buy the full version of these notes or essay plans and more in our First Amendment Outlines.