Freedom of Speech- How Government Restricts Speech-Modes of Abridgment & Standards of Review
There are ways to do it and ways not to!
Section 1. Distinction between Content-Based & Content-Neutral Regulations
Content neutral: usually get intermediate scrutiny
Content-based: usually strict scrutiny
If gonna have/argue RTPM then it must be content neutral
Viewpoint restrictions:
Paradigm violation of 1st Amend. – def get strict scrutiny
Subject Matter Restrictions:
Generally given SS
Police Dept. v. Mosely
All ideas are neutral, & can’t choose one or the other
Gov. can’t select which issues are worth discussing or debating in public facilities
If gonna regulate picketing, don’t give exceptions, regulate all picketing equally
Simon & Schuster v. NY State Crime Board
The law was VERY content based, restricted/prevented criminals from profiting from books written about the crime
If interest was to compensate victims then should go after the criminals assets not income derived solely from expressive activities
The law, even if compelling interest, must be narrowly tailored which this wasn’t, & it must be not under or over inclusive
Burson v. Freeman
Tenn. had restriction on picketing, handing out political info, etc w/in 100 feet of a polling location
The gov. interest of protective voters from intimidation is compelling
Plurality said passed SS
Dissent;
Said was content based & shld have failed SS where disallowed only political expression not other subj, matters like religion, art, etc.
Republican Party of Minnesota v. White
Minn. had a law which forbade judges running for office to express legal or political views
Obviously content-based & so get SS, but was a close vote
CANT RESTRICT ANYONE FROM SPEAKING OUT POLITICALLY
Speaker Restrictions: not always considered the practical equivalent of content restrictions, so long as the ground on which speakers are classified can be described as related to some aspect of their status independent of their beliefs or points of view
Communicative Impact on the Audience
Boos v. Barry
Good case for definition of “secondary effects”
It is not about the effect on the immediate listener or their reaction to the speech- it is futher down the line
Content-Neutral Laws
2 Types:
Law aims at conduct, not speech, but may have the effect of suppressing speech when applied to a “symbolic” or “expressive” version of such conduct
Law aims at expression, but for reasons unrelated to its content. “Reasonable Time Place Manner” regs of speech in public forum most common
Total Medium Bans
Are content-neutral but can end up suppressing all speech and can be problematic but some have been upheld and some shot down
Content-Neutral Regulation & Symbolic Conduct
United States v. O’brien STYLE (Cantrell says good test but wrongly decided)
Draft-Card burning case
1965 Amend said had keep draft card on you (which if didn’t could be prosecuted) but it also allowed punishment for the burning, destroying of ANY draft card.
2 Questions Here:
Does the conduct constitute “symbolic speech”?
If yes then have to do following analysis:
A gov regulation is sufficiently justified if:
It is w/in the const. power of gov
It furthers an important or subst. intst
If the gov. interest is unrelated to the suppression of free expression; AND
If related to suppression of FREE PROTECTED expression then get Strict Scrutiny (unless unprotected speech)
If the incidental restriction on alleged 1st amend expression is no greater than is essential to the furtherance of that interest (not LRMs)
Use O’brien test where the regulation is NOT targeting speech.
If yes and protected speech, then get off O’Brien and apply SS
Holder v. Humanitarian Law Project
Case was abt giving aid by means of speech (advice, training) to foreign terrorist groups
Law aimed at conduct (which can turn into speech)
Both Majority & Dissent used SS cause the law targeted conduct which was speech
Even if you goal is not to advance the terrorists by giving aid if frees up other resources which does further illegal terrorit aims so upheld.
Dissent:
Argued compelling interest would have required proof of “intent to further the illegal aims’ before prosecute
Just wanted more proof on furthering the compelling interest
Flag Desecration
3 “S” Cases: Spence, Street, Smith
Laws written about what doing to a symbol
“every time the court struck down a conviction & law based on flag burning
Doesn’t seem like can ever have a valid law banning flag burning cause can’t articulate a sufficient gov. interest
Spence v. Washington
Definition of Symbolic Speech:
An intent to convey a particularized message was present (trying say something by my conduct, an audience involved)
Likelihood that the message would be understood by those who viewed it
Ask if the conduct is symbolic 1st, if yes then use Obrien Test which will determine if it is protected or not
Texas v. Johnson
TX should have prosecuted him under theft & arson, not for the Texas “flag desecration” law
Gov. on safest base when it attempts to regulate conduct because of its characteristics (ie. act of burning), but gov. can’t prohibit or regulate conduct because of its expressive nature/content.
Gov. Asserted Interests:
Preventing breach of peace (absurd, nothing happened)
Preserving the Flag as a symbol of nationhood & national unity
So this is obviously an interest which is related to expression & so fail 2nd prong of Obrien and get SS
The law was out to punish expressive speech; and it was content based- it adopted a particular point of view
Gov cant punish ideas which offend
Gov can’t prescribe what shall be orthodox, and what we should believe or feel
Bedrock 1st Amend Principals;
“marketplace of ideas”: you can question the national unity, it’s a part of the freedom...
Buy the full version of these notes or essay plans and more in our Constitutional Law Outlines.