First Amendment

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7 Essentials for Regulation Speech
o 1. Laws must avoid vagueness by providing a standard for implementation and enforcement
o 2. Laws must avoid overbreadth: regulating too much speech
 Laws cannot effect a prior restraint
 Injunctions against future speech carry a presumption of invalidity
 Substantial Overbreadth is a law that court cannot cure
 Partial invalidation is the normal cure
 Courts should avoid total invalidation unless:
o Legislative intent is total hostile
o Troublesome provisions nonseverable
o So poorly written that overbreadth is “real and substantial” when law is
enforced
o 3. Laws must further a compelling interest if content based
o 4. Laws must further an important interest if content neutral
 Content neutral time, place, and manner laws must be narrowly tailored to service a significant
government interest
 Legitimate Content Neutral Government Interests
 Crime
 Litter
 Noise
 Congestion
 Traffic
 Safety
o 5. Ample, alternative channels or adequate substitutes must exist for the medium of speech regulation
o 6. Streets, parks, and sidewalks must be open for speech on a content neutral basis
 Government cannot close the public forum to expression
o 7. Other government property is presumed closed to speech
Public Nuisance
o Activities:
 Prostitution
 Gambling
 Controlled substances
 Unlicensed and unlawful sales of alcoholic beverages
 Firearms
 Any condition which unreasonably annoys, injures or endangers the safety, health, morals,
comfort, or response of any considerable number of members of the public
 A malicious, scandalous, and defamatory newspaper, magazine or other periodical
o Free Speech Exception to Nuisance Abatement
 Courts may not issue injunctions against the publication of newspapers, magazines, or other
periodicals deemed to be malicious, scandalous, and defamatory as such a court order would
constitute a prior restraint on the freedom of the press protected by the 14th Amendment
 The First Amendment prohibits municipalities from requiring registration and a permit for doorto-door advocacy by groups engaging in religious proselytizing, anonymous political speech, and
the distribution of handbills
 Requiring a canvasser to be named in a permit application violates society’s interest in
preserving citizens’ anonymity and privacy
 The permit constitutes an objective burden on the speech of citizens holding religious or
patriotic views that lead them to disfavor applying for a government permit to engage in
speech
 A significant amount of spontaneous speech is effectively banned by the ordinance
 Parades, Demonstrations and Advance Notice Provisions
 Generally less than a week upheld
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A fee requirement without a waiver for the poor is unconstitutional
Public Forum
o Traditional Public Forum:
 Streets, parks, and sidewalks held in trust for expression
 Content neutral regulation trigger intermediate scrutiny
 Narrowly tailored
 Significant government interest
 Ample alternative channels open for speech
 Content Neutral Rule
 Government may impose reasonable restrictions on the time, place, or manner of
protected speech, provided the restrictions
o Are justified without reference to the content of the regulated speech
o Are narrowly tailored to serve a significant governmental interest
o Not Government Speech
 Religious expression cannot violate the Establishment Clause where it:
 1. Is purely private
 2. Occurs in a traditional public forum
 No more Endorsement Test even though its done on government property if the government
property had been opened to the public for speech on the same terms required of other private
groups, publicly announced and open to all one equal terms
 The Government’s own speech is exempt form First Amendment scrutiny
 Permanent monuments in parks are viewed as a form of government speech and Free
Speech does not apply
o A park is a traditional public forum for speeches and other transitory expressive
acts
o Special Standards for Injunctions: Intermediate + Least Restrictive Means
 Greater risk of censorship
 Greater risk of discriminatory application
 When evaluating a content-neutral injunction we must ask instead whether the challenged
provisions of the injunction burden no more speech than necessary to serve a significant
government interest = least restrictive means element
Closed Public Forum
o Closed Forum is public property dedicated for a specific purpose, like a school or jail
 When the government acts as a proprietor in managing its internal operations, its action will not
be subjected to the heightened review to which its actions as a lawmaker may require.
 Presumed closed unless “designated public”
 Government may limit its property to use by certain groups or dedicate the forum solely to the
discussion of certain subjects
 A speaker may be excluded from a close forum if she is not a member of the class of
speakers or whose especial benefit the forum was created
 Exception: Officials cannot use closed forum to punish speakers with whom they
disagree
 Restrictions on speech in the closed forum must be reasonable and viewpoint neutral. The
restriction need not the most reasonable for the only reasonable limitation
 An express prohibition against all First Amendment speech that is not subject to a
limiting construction is facially unconstitutional as overbroad.
o Standard of Review
 Rational Basis if Viewpoint Neutral
 Reasonably consistent enforcement in light of the government interest in preserving the
site for its primary purpose
 Need only be reasonable, as long as its not an effort to suppress due to disagreement
with the speakers view
 Strict Scrutiny if not viewpoint neutral
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Employees
 When public employees make statements pursuant to their official duties, the employees are
not speaking as citizens for First Amendment purposes, and the Constitution does not insulate
their communications from employer discipline
Private Forum
o Narrow Focus on: Nature of the government interest and alternative channels of communication
 Is the nature of the government interest legit?
 If its legit, does it regulate too much?
 If it regulates too much, are there alternative channels of communication?
o Broadens definition of content-neutrality to prevent 1st Amendment from complicating land use
regulations
o Secondary Effects
 Regulation of expression is not content based if government has legitimate interest in
minimizing secondary effects
 Aimed not at the content, but at the secondary effects on surrounding community
 State bears the initial burden of providing evidence that supports a link because speech and
asserted secondary effects
 Then plaintiff must offer not merely evidence, but actual and convincing evidence
contradicting government’s evidence
 Such evidence must do more than challenge the government’s rationale, it must
convincingly discredit the foundation upon with the government’s justification rests
 What Court looks for:
 So long as there are sufficient number of suitable relocation sites, the ordinance could
stand
 Whether the ordinance will impose a material inconvenience on speech
 Whether the ordinance advances a substantial government interest
Symbolic Speech
o A generally applicable regulation that furthers a substantial governmental interest but places an
incidental burden on expressive activity does not violate the First Amendment guarantee of freedom of
expression.
 A sufficiently important government interest in regulating the non-speech element can justify
incidental limitations on the First Amendment freedoms
o O’Brien test: Mid Tier Scrutiny: Government interest unrelated to the suppression of expression
 1. Within the power of the government
 2. Furthers substantial interest
 3. Content Neutral
 4. Narrowly tailored
 Satisfied so long as the regulation promotes a substantial government interest that
would be achieved less effectively absent the regulation
 Least restrictive means is not required
o If government interest is related to the suppression of expression, strict scrutiny applies
o What qualifies as “speech?”
 1. Whether or not an intent exists to convey a particularized message
 2. Whether in the surrounded circumstances the likelihood was great that the message would
be understood by those who viewed it
o Public School Setting
 School officials may only regulate students’ speech if they do so evenhandedly without regard to
the content of speech
 A student may express his opinions if he does so without materially and substantially interfering
with the requirements of appropriate discipline in the operation of the school and without
colliding with the rights of others
o Flag Burning
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Concerned flag burning would lead people to believe either that the flag does not stand for
nationhood and national unity, or that the concepts reflected in the flag do not actually exist
(the nation is not unified) = suppression of speech
o Public Nudity
 Not intended to limit erotic expression
 It is a generally applicable law to further state substantial interest in protecting order and
morality
 The fact that the law has an incidental burden on nude dancing does not invalidate it
 The Supreme Court has made clear that the traditional police power of the States is defined as
the authority to provide for the public health, safety, and morals.
The Right of Association
o Freedom of Association
 The right protects “intimate” association: the close ties between individuals
 The right protects “expressive” association
 The right protects the decision not to associate
o Two Types:
 Intimate, close relationships
 Familial + small, selective relationships
 Not private social clubs
o The State has a compelling interest in eradicating discrimination based on
gender
 For the purpose of engaging in protected expression: political, social, economic, educational,
religious, cultural
 Must be expressive
 Must be lawful activity
 Must involve protected speech
o Civil liability may not be imposed merely because an individual belonged to a group, some members of
which committed act of violence
 For liability to be imposed by reason of association alone, it is necessary to establish that the
group possessed unlawful goals
 Liability emerges from conduct, not speech, like violence
o Expressive Association
 To determine whether a group is protected by the First Amendment’s expressive associational
right, we must determine whether the group engages in “expressive association.”
 Protection of expressive association is not reserved for advocacy groups
 But to come within its ambit, a group must engage in some form of expression, whether it be
public or private
o Protection Against Forced Inclusion
 The forced inclusion of an unwanted person infringes if the presence of that person affects in a
significant way the group’s ability to advocate public or private viewpoints
 Public laws are invalid:
 When the forced inclusion must modify or muddle or frustrate the group’s advocacy
o Student Groups
 May a public school condition its official recognition of student group on the requirements that
the group open eligibility for membership and leadership to all students?
 Court finds the policy is a reasonable, viewpoint neutral condition on access to the
student organization forum
o Must apply to all organizations on campus, not just select few
 First Amendment protects group against state prohibition of the organization’s
expressive activity, however exclusionary that activity may be but it then enjoys no
constitutional right to state funding of its selectivity
o Right of Association can be manipulated in the closed forum
o Compelled Speech
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Rule: A law that forces individuals to participate in speech must serve a compelling state interest
that cannot be achieved through means significantly less restrictive of associational freedoms.
 Prevents the government from compelling individuals to express certain views
 Prevents the government from compelling certain individuals to pay subsidies for
speech to which they object
 Public sector unions are constitutionally prohibited from using the fees of objecting
nonmembers for ideological purposes that are not germane to the union’s collective bargaining
duties
 It does not violate the First Amendment for a state to require its public-sector unions to
receive affirmative authorization form a non-member before spending the nonmember’s agency fees for election related purposes
 Non-union non-members should be sent a notice giving them the chance to “opt in” to the
special fees
 Personal assistants are much different from public employees. Unlike full-fledged public
employees, PAs are almost entirely answerable to the customers and not to the State, do not
enjoy most of the rights and benefits that inure to state employees
 The scope of collective bargaining on their behalf is sharply limited
 Here the union has no authority with respect to a personal assistant’s grievances against
a customer
o Government Speech Cases
 The federal program requiring mushroom farmers to subsidize generic advertising violates the
dissenting farmers’ free speech rights under the First Amendment
 Mandatory assessments on beef producers that were used to disseminate the advertisement,
“Beef, it’s what’s for dinner,” did not violate the First Amendment because the advertisement
constituted government speech
 A federal statute authorizing the speech, accompanied by government control of the message,
renders the advertisement government speech
 Citizens have no First Amendment right to not fund government speech
Unprotected Speech
o 5 Categories
 1. Defamatory Speech
 2. Sexually Oriented Speech
 Obscenity
 Pornography
 Child Pornography
 3. “Fighting Words” and Offensive Speech
 4. Commercial Speech
 5. Advocacy of Illegal Conduct
 Clear and Present Danger Test
o Unprotected Speech categories are no essential part of any exposition of ideas, have no social value, and
benefit that may be derived from them is outweighed by the social interest in order and morality
o Major Concerns
 Precise definitions and avoid of overbreadth
 Avoid chilling effect on protected forms of speech
o Unprotected Sexually Oriented Expression
 Categories:
 1. Obscenity
 2. Child Pornography
 3. “Offers” to provide or requests to obtain child pornography
 Obscenity
 State needs to show that:
o 1. Appeals to the prurient interest (community standard)
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2. Depicts or describes sexual conduct in a patently offensive way (community
standard)
o 3. Lacks serious value (taken as a whole)(national standard = reasonable person)
 Obscene material has no protection under the First Amendment, and states have a
legitimate interest in regulating commerce in obscene material and in regulating
exhibition of obscene material in places of public accommodation.
 Consenting Adult Exception Rejected
o There are legitimate state interests at stake in stemming the tide of
commercialized obscenity
 Quality of life
 Tone of commerce
 Community environment
 Public safety
 Prosecution for the sale or exposure of obscene materials if these materials depict or
describe patently offensive “hard core” sexual conduct specifically defined by the
regulating state law, as written or construed
o Regulatory Checklist: Works which taken as a whole:
 Appeal to the prurient interest in sex
 Which portray sexual conduct in a patently offensive way and
 Miller examples: Ultimate sexual acts, masturbation, excretory
functions, lewd exhibition of genitals
 Mere nudity not enough
 Pornography is protected
 Which, taken as a whole, do not have serious literary, artistic, political,
or scientific value
o No National Standard
 Role of the Jury: Determine local appetite for sexual expression
 A jury should apply the standard of the average person,
applying contemporary community standards in their state
 But do not have complete discretion in determining what is
patently offensive
 To clarify standards, does not mean that there are fixed, uniform
national standards of precisely what appeals to the “prurient interest”
or is “patently offensive”
Child Pornography
 Pornography showing minors can be regulated and punished
 Standard independent of the Miller Test, doesn’t matter if its obscene or not
o State interest in protecting children from exploitation, abuse and endangerment
 Adults depicting children (not using real children) is not obscene under Miller or child
pornography under Ferber
 Federal Protect Act of 2003
o Punishes offers to provide or requests to obtain child porn
o Valid- offers/requests are not protected speech
 No social value and thus, like obscenity, enjoy no 1A protection
o Narrow: Scienter requirement for both speaker and listener = belief that the
material is child pornography
 Telecommunications Act of 1996
o Applies basic free speech rules and fails because Government fails to show that
the law is the least restrictive means for addressing a real problem
o Approach in which viewers could order signal blocking on a household by
household basis would be an effective and less restrictive means
 Child Online Protection Act
o Criminalized material displayed online that is:
o
 Made for commercial use and
 Harmful to minors
o Miller Test used to define: Harmful to minors
 Miller test valid because analogous to definition of obscenity
o Burden on Government to:
 Prove validity of statute
 Show less restrictive alternatives are not effective
o Here, internet content filters are more effective than enforcement of COPA
restrictions and porn is protected
 Broadcasting and Special Congressional Power
o Congress has special power (over radio and TV) to regulate indecent broadcasts
 Limited spectrum management
 Pervasive presence
 Accessible to children
 Government interest in protecting children
 Obscenity Summary
 Test designed to discourage regulation
 Porn exception controls doctrine
 Broadcasting and Control of Content: lessens as tech offers more viewer control
 Internet and Control of Content: noninvasive in form + limited spectrum
 Violence
 Animal cruelty speech is protected
 Violent video games are protected
o Speech about violence is not obscene
o Strict Scrutiny applies
o Government must establish a causal link
 Problem with Internet Regulations to protect minors
 In order to deny minors access to potentially harmful speech, government may
effectively suppress a large amount of speech that adults have a right to receive
 Porn cases
o Porn regulations trigger strict scrutiny
o Technology offers less restrictive alternatives
o Cannot restrict what is available to adults to protect children
o Cannot change definition of pornography to protect adults
Offensive Speech
 Single most important element: Public or Private Subject
 Whether the 1A prohibits offensive speech turns largely on whether that speech is of
public or private concern as determined by all the circumstances of the case
 Speech on public issues occupies the highest rung of the hierarchy of 1A values and is entitled to
special protection
 Speech is of public concern when it can be fairly considered as relating to any matter of
political, social, or other concern to the community
 1A must be taken to disable the States from punishing public utterances
 Outrage irrelevant: A statement arguably “inappropriate or controversial character is
irrelevant to the question whether it deals with a matter of public concern”
 Clear and Present Danger Test
 When a clear and present danger of riot, disorder, interference with traffic upon the
public streets, or other immediate threat to public safety, peach, or order appears, the
power of the state to prevent or punish is obvious
 Fighting Words
 1A permits states to ban “true threats”
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Protects individuals from fear of violence, the disruption that fear engenders, as
well as from the possibility that the threated violence will occur
Intimidation is a type of true threat
Defined:
 Statements where the speaker means to communicate a serious
expression of an intent to commit and act of unlawful violence to a
particular individual or group of individuals
 The speaker need not actually intend to carry out the threat
Cases:
 Cantwell: Fighting words are a “breach of the peace using words likely
to produce violence to others
 Chaplinski: Face to face words plainly likely to cause a fight
 Hill: A significant amount of verbal criticism directed at others
City of Seattle v. Camby: Three Steps
 1. The words must be directed at a particular person or group of
persons
 2. The words themselves must be “those personally abusive
epithets which, when addressed to the ordinary citizen, are, as a
matter of common knowledge, inherently likely to provoke
violence reaction”
 3. The Court must look at the words in the context of situation
in which they were made
 We find an intoxicated defendant being escorted out of a restaurant by
a mild mannered, unaroused doorman-host with a police officer
present. Given the specific context in which the words were spoken, it
was not plainly likely that a breach of the peace would occur.
Police Officers
 1A protects a significant amount of verbal criticism and challenge
directed at police officers
 Police officers may reasonably be expected to exercise a high degree of
restraint than the average citizen. In the fact of verbal challenges to
police action, officers must respond with restraints
 We have repeatedly invalidated laws that provide police with
unfettered discretion to arrest individuals
Comments on Fighting Words
 FW are difficult to standardize because direct insults are contextual
 FW recognizes the power of symbolic speech as a direct personal insult
 Burning cross, burning flag
 The line between FW and offensive speech is narrow
 Depends entirely on the focus of the comment (public speech v.
personal comment)
 Public Officials are expected to exhibit more restraint (within scope)
 Government may not exhibit viewpoint-bias in FW regulations
Symbolic Speech Fighting Words
 Targeted symbolic speech (directed at a person) deemed the equivalent
of “fighting words”
 State can punish threats that create fear of violence, but speaker must
intend to threaten.
 Must be viewpoint neutral. Law must make all attempts at cross burning
to intimidate actionable, not just disfavored motivations
Commercial Speech
 Definition: Speech that advertises a product or service for sale
 Rules:
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o
1. The Government may regulate commercial speech that is false or misleading or which
advertises illegal conduct
 2. Laws regulating lawful, truthful commercial speech, must be narrowly tailored to
further a substantial government interest
 Nature of Commercial Speech
 Freedom of speech supposes a willing listener, commercial speech proposes a
commercial transaction
 It is less necessary to tolerate inaccurate statements
 Rules of Overbreadth do not apply
o Not needed since advertisers (information about products and services) not
susceptible to being “crushed by an overbroad regulation.
 There is little likelihood of a chilling effect because:
o Greater objectivity of its truthfulness
o Will always occur in the form of advertising
 Permissible Regulations:
 Time, Place and Manner
 Ban on false and misleading ads
 Form restrictions
 Mandated disclaimers
 Mandated warnings
 Required additional information
 If there is a kind of commercial speech that lacks all First Amendment protection…it must be
distinguished by its content
 The free flow of commercial information is indispensable to intelligent private economic
decisions in a free enterprise economy
 Central Hudson Test:
 1. Is it lawful, truthful speech?
 2. Does the Government have a substantial interest?
 3. Does the law directly further that interest?
 4. Is the law narrowly tailored?
 The protection turns on the nature both of the expression and of the governmental interests
 There can be no constitutional objection to the suppression of commercial messages
that do not accurately inform the public about lawful activity
 If the communication is neither misleading nor related to unlawful activity,…[t]he State
must assert a substantial interest to be achieved by restrictions on commercial speech
 It [cannot] completely suppress information when narrower restrictions on expression
would serve its interest as well
Illegal Advocacy
 Clear and Present Danger Test
 When a clear and present danger of riot, disorder, interference with traffic upon the
public streets, or other immediate threat to public safety, peace, or order, appears, the
power of the state to prevent or punish is obvious.
 Advocacy of violence is protected as long as the speech does not provoke people to
imminent action
 Brandenburg Test: Advocacy of violence is protected as long as the speech does not provoke
people to imminent action
 Government must prove
o That the speaker intended to incite the audience
o That the words were likely to produce imminent lawless action
o That the words urged the action
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A federal law that prohibits individuals and groups from giving “material support” to certain
foreign organizations designated as engaging in terrorist activities does not violate the First
Amendment.
 However, the statute does not prohibit independent advocacy or other expression of
any kind. Plaintiffs are free to say what they want about the PKK and LTTE. They are also
free to become members of the organizations. Congress has not sought to suppress
ideas or opinions.
 Rather, it has prohibited “material support” which often does not take the form of
speech at all.
 If Plaintiffs’ speech to those entities communicates a “specific skill” or some “specialized
knowledge” then it is barred.
 There is evidence in the record to conclude that the PKK and LTTE are deadly groups—
each accounting for thousands of deaths abroad. Provision of “material support” to
these groups can be in the form of money, arms, supplies, and even training and
education through verbal instruction. Congress has concluded that providing terrorist
groups with material support, in any form, furthers terrorism overall.
Government only wins when not overly vague or broad
 Cannot punish speech before the utterance
 Cannot censor, punish after the fact
 Keep narrowing definition of "material support" as a good faith effort to keep this
narrow and have it only apply to national security
 National Security Exception
o Requires more seamless way to prevent terrorism
o Doesn't need imminence like in Brandenburg
Why the Federal Law is Valid
 Congress has not, therefore, sought to suppress ideas or opinions in the form of "pure
political speech"
 Rather, Congress has prohibited "material support," which most often does not take the
form of speech at all
 And when speech is punished, the statute is carefully drawn to cover only a narrow
category of speech to, under the direction of, or in the coordination with foreign groups
that the speaker knows to be terrorist organization
Material Support
 Any property, tangible or intangible, or service, including currency or monetary
instruments or financial securities, financial services, lodging, training, expert advice or
assistance, safehouses, false documentation or identification, communications
equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more
individuals who may be or include oneself), and transportation….”
 The statute reaches only material support coordinated with or under the direction of a
designated foreign terrorist organization. Independent advocacy that might be viewed
as promoting the group's legitimacy is not covered.
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