No
Is the regulation overly broad, vague, or
an illegitimate prior restraint?
What type of speech is being regulated?
Protected or Unprotected?
Protected
Content-neutral
Content-selective
If the speech is protected by the FA,
and the regulation is content selective,
the government will only be able to
regulate it if its regulation can pass
strict scrutiny
If the speech is
protected, but the
regulation is contentneutral, the government
can regulate the time,
place, and manner of the
speech if the regulation
can meet intermediate
scrutiny (see below,
“Government – It’s a
content-neutral
regulation of protected
speech.
Yes
Then the regulation is
likely facially invalid, and
there’s no need to go to
the merits of the
regulation’s application to
this plaintiff.
Unprotected
If the speech is unprotected, the government can
regulate the speech on the basis of its content
under rational basis scrutiny – note that the
government still must do it’s regulating in a
content-neutral way.
Government – It hits unprotected speech
The government will try to argue that the regulation attaches sanctions only to unprotected speech, and as such, the First Amendment’s
protections are not implicated. Unprotected speech, such as violence advocacy, incitement, fighting words, obscenity, child pornography, and
libel, are all proper targets of government regulation – the government can regulate these forms of speech on the basis of their content under
rational basis scrutiny just like they can regulate assault and battery. Note that it’s not totally “unprotected” speech – the government still must
regulate the content in a content-neutral way.
Plaintiff – It hits protected speech
Plaintiff will argue that the government is regulating a form of protected speech, and as such, the First Amendment’s protections are implicated
and the Court should view the regulation through the lens of strict scrutiny – the government needs to show a compelling objective for the
regulation and that the regulation is necessary (i.e. the least speech-restrictive alternative) to achieve that objective. When strict scrutiny is
invoked, the government’s regulation will rarely be sustained.
Government – It’s a content-neutral regulation of protected speech
The government will argue that the regulation is content-neutral – that it is aimed at something other than the communicative impact of the
expression, though it may have the effect of burdening expression. A content-neutral regulation will be upheld as constitutional if the Court finds
the regulation to serve a significant government interest, to be narrowly tailored (that is, narrowly drawn so that the means fit well with the end)
to serve that interest, and that the government left open alternative channels for that communication. The court looks behind the language of the
statute and seeks to find the government’s motive for enacting the regulation – what did they really intend to do with this statute? Restrict speech,
or avoid a legitimate harm?
Plaintiff – It’s a content-selective regulation
Plaintiff will argue that the regulation is content-selective – that the government is aiming at the very communicative impact of the expression. If
the regulation is content-selective and attacks protected speech, the regulation will be presumed to be unconstitutional. It will be subject to strict
scrutiny and will only be sustained if government can show that it serves a compelling government interest AND that it is necessary (that is, it’s
the least restrictive alternative) to achieve that objective. If, on the other hand, the regulation is content selective and attacks unprotected speech,
the government can ban that speech almost completely based on the content, as long as it does so in a content neutral manner – that is, it’s
constitutional to prohibit fighting words as long as the regulation attaches to all fighting words and not just to fighting words directed at the
listener’s race.
How can we tell if it’s content-based or content-neutral?
Is it content-based or content neutral? One way to figure it out – would the harm the government is trying to prevent exist to the same degree if
the listeners or readers did not understand English? If not, it’s probably content based. For instance, assume the state didn’t allow sound trucks
to broadcast at over 100 decibels within neighborhoods. That harm (disruption of the peace of the neighborhood) exists when loud noises happen
whether the inhabitants speak English or not – thus, it’s a content-neutral regulation. But if the regulation prohibited all broadcasts about abortion
in neighborhoods, that “harm” they were trying to avoid likely only hits those who understand the language of the speaker. As such, the
regulation is content-based.
Plaintiff – It’s overly broad
Plaintiff will argue that the statute as worded is overly broad, and as such, is facially invalid. Overbreadth is a procedural doctrine that limits the
manner in which government can regulate speech – it says that the government went about regulating speech in the wrong way, even though they
could have constitutionally reached that speech had the regulation been worded differently! Specifically, overbreadth says that the speech was
proscribable, but the statute was worded in such a way that it swept into it’s reach protected speech. Overbreadth runs counter to the doctrine of
“cases and controversies” because the speaker doesn’t need to have had his own constitutional rights violated. We allow any person to attack the
constitutionality of an allegedly overly broad regulation of speech. This is because the existence of a law that sweeps protected speech into its
sights may prevent third parties from engaging in constitutionally protected speech for fear of prosecution. By allowing laws to be shot down as
overly broad, we err on the side of an expansive view of free speech – we’d rather let speech that is constitutionally able to be regulated go
unregulated than to allow the government to deter protected speech. Courts like to use the procedural check of overbreadth to invalidate speech
regulations because in overbreadth analysis, the court doesn’t even reach the question of whether the challenger’s speech is constitutionally
protected. Rather, the court is allowed to strike the law down entirely because it might be applied to others who are not before the court whose
activities are constitutionally protected. That is, the doctrine of overbreadth enables the court to avoid defining the precise contours of protected
speech – it’s a procedural escape hatch to avoid going to the substantive merits of the case at bar. Further, it allows for “judicial modesty” – the
court is able to avoid rewriting state law or carving out exceptions that the state’s legislature may or may not have intended. Instead, it says “this
statute isn’t ok, but feel free, state legislature, to write a better one and try again.” In this manner, it’s also showing respect for the federal system
of government in relation to state laws, all the while respecting the boundaries of federalism.
Government – It’s not overly broad
The government will counter that overbreadth has been limited in its application be several cases. First, the overbreadth alleged must be
substantial in order to warrant facial invalidation of the regulation. There’s no exact definition of “substantial,” but there must be a realistic
danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court. Second,
overbreadth analysis is less applicable when the challenged statute involves the regulation of conduct rather than speech – thus, the government
has an interest in spinning the statute as a regulation of conduct rather than speech. Third, the government is allowed to make statutes that cover
vast amounts of unprotected speech even when they sweep in a little protected speech – when the legitimate reach of the statute dwarfs the
arguably impermissible applications, it’s probably ok. Finally, if the government can spin the speech being regulated as commercial speech
(difficult to define, but defined in Hudson as expression related solely to the economic interest of the speaker and its audience), then the regular
rules of standing will apply. That is, this speaker will have to show how he was harmed by the overbreadth, not just that some speech might be
harmed.
Plaintiff – It’s vague
The plaintiff will argue that the law doesn’t convey sufficiently definite warning as to the proscribed conduct when measured by common
understanding and practices – that is, it’s “vague.” A law will be void on its face if persons of common intelligence must necessarily guess at the
law’s meaning and differ as to its application. We allow laws to be shot down for vagueness in an effort to force legislators to set clear guidelines
for enforcement of the laws they write. Further, vague laws invite discriminatory enforcement, and that it something the court has an interest in
eliminating. Key – vagueness challenges result in facial invalidation of the law. That is, it’s not an “as-applied” inquiry – it’s irrelevant that the
plaintiff was or wasn’t harmed by the vagueness. If it’s vague, it’s facially invalid.
Government – It’s not vague
The government will argue that the law is not vague – that it is very clear about what speech it sweeps into it’s targets – as such, the Court should
continue beyond the procedural, facial inspection of the law and look at the merits of the case at bar. That is, the court should focus on the law
“as-applied,” not just on it’s face. Further, the vagueness doctrine does not apply to conditions on public subsidies, nor to “access to status” laws.
Plaintiff –It’s a prior restraint
The plaintiff will argue that the government regulation amounts to a prior restraint on speech, which brings with it a presumption against
constitutional validity. By requiring the prior approval of the government, and by punishing the failure to acquire approval, even when the
speech in question would have been approved had the speaker asked for it, the government’s regulation is almost doomed for failure. The fear is
that by requiring licenses or approval, the government will basically force citizens to self-censor to get the approval in the first place, or that
administrators responsible for giving the approval will engage in content-based censorship/denial of the approval. If this is protected speech
(which plaintiff will argue it is), it is not subject to any sort of prior restraint at all. But if it is unprotected speech, the regulation must meet the
four prongs of Freedman in order to survive the facial challenge. Plaintiff will then argue that 1) the standards for denial/granting the approval
for the speech are less than narrow, unreasonable, and indefinite, 2) the government censor does not seek injunctions when the permit is denies
(the government flexes it’s muscle without judicial intervention, such that the burden unfairly shifts to the speaker to gain the very ability to
speak) 3) the censor is not required to prove that the speech is unprotected speech, OR 4) there is no provision for prompt judicial intervention
when approval is denied. If the plaintiff is right any of these, the prior restraint is invalid and will be struck down as unconstitutional.
Government – It’s not a prior restraint, or it’s a legal prior restraint
Government will argue that the regulation only attacks unprotected speech, and that in requiring a license, the government is simply regulating
the time, place, and manner of the speech. The government will show that the regulation scheme complies fully with Freedman, and as such isn’t
compromising the method of speech unjustly. The government will try to demonstrate not only that the burden on speaker was light in order to
gain access to speak, but that the interests of the community were so strong so as to warrant such a prior restraint – such as, the interest in
providing adequate security for the speaker and the public, the interest in assuring fair access to all groups in a safe and orderly manner (trying to
avoid a guaranteed conflict when possible between rival, known-to-be violent groups), etc.
Government is seeking an injunction
In order to get an injunction against a speaker, the government will need to show that grave and irreparable damage will immediately occur if the
speech goes forward. The key is, that if the government could have legally written a statute to require prior restraint, they can generally win an
injunction against the speaker.
Plaintiff’s possible rebuttals to government’s proposed injunction
Plaintiff will argue that the information plaintiff plans to disseminate (or is already disseminating) is purely historical fact, such that its
dissemination cannot cause grave and irreparable harm now. Further, the plaintiff will argue that it would take thousands of listeners not only
agreeing with the plaintiff, but following the advice of the plaintiff with action, in order for the words of the plaintiff to cause any harm – as such,
there is no immediacy of harm to the government. Finally, the plaintiff will argue that the government could not have legally instituted a statute
requiring speaker to gain the prior approval of the government for this speech, and as such, they likewise cannot get an injunction to stop the
speaker from freely speaking.
Government – Speaker is advocating violence
Government will argue that the speaker is advocating the use force or violation of the law, such that the speech is directed to inciting or producing
imminent lawless action AND the speech is likely to incite or produce such an action. In order to prevail, government will need to show first that
the speaker intended to incite imminent lawless action with his speech. Second, the government will need to show that the very words, when
looked at in a vacuum devoid of circumstances or actual outcome, urged imminent lawless action. Finally, the government must show that the
speaker urged imminent lawless action under circumstances that were likely to produce such imminent lawless action. To win on the
circumstances prong, the government can look to several factors, such as the location of the speaker in proximity to the evil he was urging, the
seriousness of the evil that the government was seeking to prevent, the historical setting of the speaker, the specificity of the evil and the words
speaker used to urge that evil, the natural tendency of the audience vis-à-vis the reasonable and probable effects of the speakers words, the
relationship between the speaker and the audience (organizational, familial, social, recreational, etc.), and finally, the actual reaction of the
audience. The key is that the government cannot just presume an entire category of speech is dangerous without proving that the
circumstances/individual context in which they were spoken was indeed imminently dangerous. If the government succeeds in proving that the
speech at bar was violence advocacy, that is “unprotected speech,” such that the First Amendment’s protections do not reach it. The government
can regulate this form of speech on the basis of its content under rational basis scrutiny just like they can regulate assault and battery. Note that
it’s not totally “unprotected” speech – the government still must regulate the content in a content-neutral way. That is, the government must ban
all violence advocacy on the basis that in content, it is violence advocacy – the government cannot ban simply violence advocacy aimed at a
religious group, or violence advocacy when uttered by white men, etc.
Speaker – I wasn’t “advocating violence”
Speaker will argue that his speech was not directed to inciting or producing imminent lawless action, nor was his speech likely to produce such an
action. First, the government cannot prove that the speaker intended to incite or produce imminent lawless action. Second, the speaker’s words,
when taken in a vacuum, devoid of the circumstances surrounding them and the ultimate result, were not advocating imminent lawless action.
Third, the government cannot prove that the speech was uttered under circumstances that were likely to produce imminent lawless action – i.e.,
all the above factors say no. If the speaker can establish that the government fails any of those prongs, the speech is not violence advocacy, and is
protected under the First Amendment. Further, the speaker may be able to establish that he was merely teaching an abstract philosophy, as
opposed to literally preparing a receptive group for violent action and steering the group immediately toward the culmination of that action. The
state cannot punish the speaker merely because his words had the tendency to produce violence – the government must show all the specific
circumstances above. Finally, the speaker might be able to show that the ban on violence advocacy reached only certain types of violence
advocacy such that it regulated unprotected speech (as it’s allowed to do) in a content-specific way (which it cannot do). The bottom line is that
this is a very pro-speaker test, and the government is very unlikely to prevail absent very specific showings that are rarely easy to prove up at
trial.
Government – Speaker was a member of a violence-advocating group
The government will argue that the speaker was a member of a violence-advocating group such that the government can punish him for his mere
membership. They will seek to show that the speaker had knowing and active membership in the violence-advocating group with specific intent
to further the unlawful goals of that group.
Speaker – I was a lesser member of a group like that
The speaker will argue that he held innocent membership, “knowing but passive” membership, or “knowing and active membership with no
specific intent to further the unlawful goals of the group.” As an innocent member, the speaker is pleading that he is an idealist member who had
no knowledge of the willingness of the organization to resort to violence to achieve its goals. If he’s an innocent member, he cannot be punished
for his membership in the group. As a “knowing but passive” member, the speaker is pleading that he was a dues paying member with
knowledge of the willingness of the group to resort to violence to achieve its goals, but he had no plans to participate in such actions. Whitney
held that this was enough to punish the member, but Whitney has been overruled, in favor of more pro-speech rules. As a “knowing and active
member” without specific intent to further unlawful goals, the speaker is arguing that he was active in the peaceful activities of the organization
and knew that violence was resorted to in the organization, but had no intent to be a part of it. The key is, that under Scales, the only way
membership can ever attach punishment is if the government can show the member was knowing, active, and had specific intent to further the
unlawful acts of the group. Anything short of that, speaker wins. Further, the government must show that the group advocated action, not
abstract doctrine – if the government can’t show that, speaker wins.
Government – This is a regulation of fighting words
The government will argue that the words of the speaker had a direct tendency to cause acts of violence by the person at whom, individually, the
speech was addressed. As such, the government can regulate this unprotected speech under rational basis scrutiny. To prove the speech is indeed
“fighting words,” the government will need to prove 3 prongs. First, the speaker needs to have specifically intended that the words would be
received negatively by the individual to whom the words were addressed. Second, the speaker must have uttered individually targeted epithet.
Third, the government must show that the speech was uttered under circumstances that would reasonably cause a person in the position of the
addressee to react violently. Circumstances that will help the government show this are geographical proximity of the speaker to the target, the
physical sizes of the speaker and addressee, the provocative nature of the epithet, the status of the addressee (was the addressee a person trained
not to react or a drunk guy in a bar known for raucous fights?), and the sexes of the speaker and addressee (there’s a gender bias against males
hurling epithets at females). The payoff? If the government can prove all of this, the speech fits into the category of “fighting words,” it’s
unprotected speech, and the government can regulate it on the basis of it’s content as such so long as it does so in a content-neutral way (i.e. the
government must ban all fighting words, not just those uttered about race or by women against men, etc.)
Speaker – I was not uttering “fighting words”
In addition to attacking each of the elements the government will forward, the speaker will argue that he simply uttered words to make the
crowd/addressee angry, and that is never enough. The crowd must be made so angry that they are likely to fight, and that wasn’t the case here.
Further, the speaker may argue that it was his mere identity, or maybe his legal acts, that angered the crowd. That’s never enough either – it must
be the speaker’s threatening words at that time that drive the crowd to violence. If the speaker can rebut the government’s assertions that his
words were fighting words, the speech is protected and the government cannot regulate it
Speaker – My words were simply “offensive language”
My speech was simply offensive language, which is protected by the First Amendment. The government is free to regulate, in a content-neutral
manner, the time, place, and manner in which I utter my offensive speech, but they may not regulate the very content of my speech or the manner
in which I express it.
Government’s rebuttal – Your “offensive language” rose to the level of being fighting words.
Government will argue that what you phrase as “offensive language” met the standards for being fighting words, which is unprotected speech,
allowing the government to regulate it on the very basis of its content under rational basis scrutiny, just as they could regulate conduct, so long as
they regulate it in a content-neutral way (i.e. they regulate all fighting words, not just those uttered by black men or against the Catholic church).
Speaker – the government was obligated to protect me from the hostile audience
The speaker will argue that the audience was provoked either by the form of the speaker’s message or by the message itself – the speaker clearly
didn’t utter fighting words or advocating imminent lawless action, but nonetheless, it may have been at least offensive and likely invited dispute.
Assuming the speaker was lawfully allowed to speak where he was speaking and speaking within a protected area of speech, the speaker is
constitutionally protected, and the government is obligated to control the audience, not the speaker. The government is required to protect the
speaker and fend off those who’d disrupt him. Key: one important of free speech is to invite dispute such that the marketplace of ideas will
flourish and the “truth” will rise to the surface.
Government’s rebuttal to that “hostile audience” argument
That obligation we have to control the audience is not absolute. We are constitutionally allowed to silence a speaker when his speech creates a
clear and present danger of a serious substantive evil that rises beyond public inconvenience or annoyance. There comes a point when speech so
aggravates a hostile crowd that the police (the government) better serve the safety of the community by removing the speaker than by attempting
to control the crowd.
Government – The regulation attacks hate speech
The government will argue that the regulation in question attacks speech that is perceived as harmful and offensive to racial and religious
minorities or other historically disempowered groups, apart from the tendency of those words to incite immediate lawlessness. The regulation
seeks to ban all hate speech on the basis of its content as hate speech.
Speaker – Your hate speech regulation is simply attacking my word form choice
The government is declaring my speech is “hate speech,” in order to make my speech regulable under rational basis scrutiny, but in reality, they
are simply prohibiting the words I’ve chosen. The substantive idea I’ve expressed is fine, but because I’ve phrased it in “the wrong way,” the
government seeks to punish me. The Supreme Court has declared that word form offensiveness is not sufficient to render my speech unprotected
by the First Amendment. As such, my speech is protected by the First Amendment, and the government can only regulate it if their regulation
can survive strict scrutiny, which the regulation at bar cannot. The government would have to show compelling reasons for regulating my word
form choice, and that the means chosen by the government to reach that compelling end must be necessary to reach it – that is, there must be no
less strict alternatives available. Government will almost always lose when this is invoked, as it is here.
If in a traditional public forum where the speaker is entitled to be, the government cannot stop the speaker merely for either word form
offensiveness nor for idea offensiveness. Those offended bear the burden of averting their eyes.
Speaker – Your hate speech regulation is simply attacking the ideas I am stating
The government is attacking my speech as “hate speech” because they seek to suppress my viewpoint and my ideas. The Supreme Court has
declared that an offensive or unpopular viewpoint/idea alone is not enough to render the speech unprotected. More so, government cannot
regulate my idea on the basis of what that idea is, because to do so is a content-selective regulation, which will rarely, if ever, be upheld – the
government would have to show compelling reasons and the means chosen by the government to reach that compelling end must be necessary to
reach that end – that is, there must be no less strict alternatives available. Government will almost always lose when this is invoked, as it is here.
If in a traditional public forum where the speaker is entitled to be, the government cannot stop the speaker merely for either word form
offensiveness nor for idea offensiveness. Those offended bear the burden of averting their eyes.
Government – The regulation is attacking obscene speech
This regulation attaches penalties only to obscene speech. This speech is obscene because 1) the average person applying today’s local
community standards would find that the work as a whole “appeals to the prurient interests” (that is, it has the tendency to excite lustful
thoughts), 2) in the view of the average person in the local community, the work describes or depicts in a patently offensive way particular types
of sexual conduct as defined by state law, and 3) the work, when taken as a whole, lacks serious literary, artistic, political, or scientific value (not
looking from local standards). Obscenity is unprotected speech, and as such, the government can regulate it under rational basis scrutiny, just as
it could regulate conduct, so long as it does so in a content-neutral manner. The government has a definite interest in regulating obscenity – it
offers little to society as a whole, it erodes the moral tone of society, it erodes the individual morals of the citizenry, it leads to criminal conduct,
it degrades women, it encourages sexual harassment, and it harms youth and unconsenting adults. Since the government clearly, as demonstrated,
has a legitimate objective, and this regulation is rationally related to the achievement of the government’s objective, the regulation should survive
rational basis scrutiny, and the speaker will have the burden of showing that the regulation is completely arbitrary and irrational in order to
prevail. Note that government almost always wins once rational basis scrutiny is invoked.
Speaker’s rebuttals to the obscenity charge
The speaker will try to prove that his speech is not obscene, but is actually just erotic, sexually explicit material that doesn’t meet Miller’s
definition of “obscenity.” As such, it is protected speech and the government can only regulate it by surviving strict scrutiny -- The government
would have to show compelling reasons for regulating my expression, and that the means chosen by the government to reach that compelling end
must be necessary to reach it – that is, there must be no less strict alternatives available. Government will almost always lose when this is
invoked, as it is here.