First Amendment - First Amendment

1. Why Protect Speech?

A. Truth

1. Can’t punish false opinion

2. Ultimate good desired is better reached by free trade in ideas

B. Self-Government

1. Does it include art & literature?

C. Autonomy & Personal Development

1. Here art & literature are valuable to self & are included in free speech

2. Liberty is valued as ends and MEANS

3. Fosters individual self-realization and determination w/o interfering improperly with claims of others

1. Need open flow of info & opinion to help aid life decision making not only in political process but also in life decisions generally.

D. Negative Theory

1. Don’t trust your government censor

2. corrolary Rights

1. Freedom of Thought

1. Freedom to think, is absolute of its own nature

2. 1^st Amend freedoms in most danger when gov. seeks to control thought or to justify its law for the impermissible end.

3. Speech must be protected because it is the beginning of thought

2. Right to Distribute Information

1. Liberty of circulation is as essential to the freedom of speech as is the liberty of publishing; indeed w/o the circulation, the publication would be of little value

3. Right to Receive Information & Ideas

1. It is common practice to go door to door & invite to gatherings, give info, and communicate ideas

2. It is the master of the households decision/job to tell you to go away, not the governments business

3. Freedom embraces the right to distribute and so obviously the right to receive the distribution

4. UNINHIBITED, ROBUST, AND WIDE-OPEN DEBATE AND DISCUSSION IS WHAT IS CONTEMPLATED BY THE 1^ST AMENDMENT

4. Freedom to Associate

5. Freedom from Compelled Association

6. Freedom from Compelled Speech/Disclosure

3. Is this Speech? What is Speech?

1. Spence v. Washington (Symbolic Speech)

1. Facts: Spence hung flag upside down from window & had peace sign on the front & back

2. Question: is conduct/action of hanging flag upside-down speech?

3. Holding: Yes

4. RULE:

1. An intent to convey a particularized message in the surrounding circumstances

2. Likelihood great that the message would be understood by those viewing it

2. Hurley v. Irish-American GLIB (Compelled Speech)

1. Facts: Gay parade where GLIB wanted to keep out other people who did not have same views as them

2. Question: Is Parade Speech such that forcing group to allow someone else in the parade is compelling them to convey a message they disagree with?

3. Holding: Yes, parade group attempting to convey a certain message & could keep people out who clearly not favoring their private viewpoint

4. RULE:

1. A narrow and succinctly articulable message is not a condition of constitutional protection, which if confined to expression conveying a particularized message, would never reach certain examples of art

2. Symbolism is a primitive but effective way of communicating ideas

4. If Speech, is Restriction Content Neutral or Content Based?

1. Content Based v. Content Neutral

1. If the restriction focuses on the non-communicative aspects of the speech, and treats the speech the same regardless of what the speech says, the restriction is treated as Content-Neutral

2. Tests to see if Content-Based

1. Whether the “regulation is based on the content of the speech”, as opposed to being “applicable to all speech irrespective of content”

2. Whether the law’s application to speech “depends on the likely communicative impact” of the speech

3. Whether the legislature’s “predominate concerns” are “with the content of” speech as opposed to “with the secondary effects of” the speech

1. Tendency of speech to offend people is not a secondary effect and neither is the tendency of the speech to cause harms that flow from offense (like potential fights)

2. Even if restrictions core purpose is unrelated to content, eg. When newsrack ordinance limits newsracks on sidewalks to eliminate physical clutter—any content-based distinctions w/in the restriction make it content-based

4. Whether the legislature adopted the restrictions “because of disagreement w/ the message the speech conveys”

2. Content Neutral: Intermediate Scrutiny

1. Regular

1. Important government interest and the means are substantially related to that interest.

2. Symbolic Expression/Conduct: O’Brien Test (draft card burning)

1. W/in the constitutional power of the government

2. Substantial Purpose

3. Not aimed at suppression of expression

1. Rather purpose is say to maintain record system or to stop noise, traffic

2. If it is aimed at suppressing the speech, and it is protected category, then get off O’brien and apply Strict Scrutiny

4. Means are proportionate to the end: good fit

3. Time Place & Manner

1. Significant Purpose

2. Content Neutral

3. Must leave open ample alternative channels of communication

1. NOTE: when close off an entire medium of communication, even using content neutral, then level will be ratcheted up!

3. Content Based: Strict Scrutiny

1. Compelling Purpose & Least Restrictive Means/Alternative

1. NOTE: if law is OVER or under inclusive then usually trouble for the law under SS

2. Examples of Compelling interests:

1. Combating terrorism

2. Protecting physical & psychological well-being of minor’s (even from stuff that is protected as to adults)

3. Protecting voters from confusion, undue influence, intimidation at polling locations

4. Prevent vote-buying

3. Least Restrictive Means Elements:

1. Law must materially advance the interest asserted

2. Law cannot be over-inclusive: ie. ask if gov. can serve interest while burdening less speech, if yes then not narrowly tailored & fails

3. Law not narrowly tailored if there are less speech-restrictive means available that would serve interest as well: Restrict unprotected conduct, limit speech in some way rather than full bar

4. Law cannot be under-inclusive: ie. fail to restrict a significant amount of speech that harms the interest to same degree as that restricted

2. Can be Content Based if It Is:

1. Viewpoint (picks a side of an issue)

2. Subject-Matter (no labor speech)(only labor speech allowed)

3. Identity of Speaker (only teachers can speak)(lawyers cannot say/express this, employees)

3. Example Cases:

1. Snyder v. Phelps

1. Funeral protests at Military Funerals & dad sued for IIED and won

2. Court struck down jury decision as violating free speech

3. Fact that speech deeply offends someone is not enough to restrict it

4. Sometimes the location or period of time of when the speech is conducted, makes the expression exactly what the speaker is looking for, the impact is greater or the message means more

2. Cohen v. California

1. Fuck the Draft Jacket

2. Definitely expressive and was arrested for the words and the message sending not for actions

3. Texas v. Johnson

1. Flag Burning case

2. Gov. was regulating speech that was offensive to some; when does this almost always going to be invalid

3. Not fighting words here cause not directed to an individual and not incitement cause not directed to producing IMMINENT lawless action which also must be likely to produce such action

5. Content Based Regulation of Low Value Speech: Exception to Strict Scrutiny

1. Fighting Words

1. Definition:

1. Abusive epithets which, when addressed face-to-face to the ordinary person, are, as a matter of common knowledge, inherently likely to provoke a violent reaction.

2. Words that are likely to provoke the average person to immediate retaliation, and thereby cause a breach of peace

3. Must be directed to the person of the hearer (ie. personal insult)

4. Cohen v. California (fuck the draft)

2. Incitement

1. Definition:

1. Advocacy of the use of force or of law violation is unprotected incitement when it is

2. Directed to inciting or producing

3. Imminent lawless action

4. And is likely to incite or produce such action

2. Rule 2:

1. A proposal to engage in illegal activity, especially when focused on a particular piece of contraband, as opposed to the abstract advocacy of illegality is unprotected solicitation

3. Sample Cases: Brandenburg v. Ohio (governing case) & U.S. v. Williams (rule 2)

3. True Threats

1. Definition:

1. Threats of violence (maybe other illegal conduct)

2. Directed to a person or group of persons

3. With the intent of placing the victim in fear of bodily harm or death

2. Caveats:

1. Threats may NOT be punished if reasonable person would understand them as just hyperbole

2. Threats of ostracism & politically motivated boycotts (resulting in economic harm) are protected

3. Speech doesn’t lose protection just because it tries to pressure someone to do something

3. Question to ask is: Is the statement punishable threat OR protected speech, protected because hyperbole, threat of ostracism, or whatever else?

4. Obscenity

1. Miller Test:

1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest

2. Whether the work describes or shows the material in a patently offensive manner under applicable state law

3. Taken as a whole, the work lacks serious literary, artistic, political or scientific value as determined by a national standard

2. Note: what counts as obscene to children is different from what counts as obscene to adults so take into count the audience, and sometimes may be difficult to tell if aimed at kids or not

3. Must be like hard core sex, not just sexual depictions (so court will likely step in on the “prurient interest” prong rather than leave it to a jury to decide

4. Stanley v. Georgia: cannot use this test to get you for possession. You can possess regular obscene/hardcore porn in your house but no kiddy porn.

5. If not obscene as to adults, then use Strict Scrutiny

5. Child Porn

1. Definition:

1. Predominantly appeals to the prurient, shameful or morbid interest of minors,...