General Exceptions to Freedom of Speech Protected speech —the level of scrutiny depends on whether the speech restriction is content-based Content-based restriction — strict scrutiny Occurs where govt. seeks to restrict speech b/c of its content Two alternative ways of finding that a law is contentbased: Subject Matter Restriction: application of the law depends on the topic of the message Viewpoint restriction: application of the law depends on the ideology of the message Vagueness Overbreadth Content-neutral restriction — intermediate scrutiny Occurs where a govt. restriction applies to all expression regardless of the content or viewpoint Symbolic Speech expressive or communicative conduct (i.e., conduct intended to convey a message) Test — govt. can regulate symbolic speech if: 1) The regulation furthers an important govt. interest; 2) That govt. interest is unrelated to suppression of the message; and If the restriction is aimed at speech more than conduct, it is likely unconstitutional 3) The impact on speech is no greater than necessary to further the important govt. interest law is unconstitutionally vague if a reasonable person can NOT tell what speech is prohibited and what is allowed a law is overbroad if it regulates substantially more speech than the Const. allows to be regulated • An overbroad law restricts unprotected speech, but in doing so also restricts protected speech E.g., law prohibiting all “live entertainment” may validly restrict obscenity, but also invalidly prohibits protected speech in concerts or theater • If a speech restriction is overbroad, it cannot be enforced against anyone, even one whose speech is not protected Violent Video Games A state may NOT prohibit the sale or rental of violent video games to minors. Violence is NOT an area of unprotected speech Examples: Burning U.S. flag — protected symbolic speech Burning a cross — protected unless intended to threaten Public nudity — not protected Government Speech speech by the gov can NOT be challenged as violating the First Amendment; generally gov speech & gov funding of speech will be upheld as long as it is rationally related to a legitimate state interest. • But, spending programs may NOT impose conditions that limit 1st Amendment activities of fund recipients outside the scope of the spending program itself The Speech or Debate Immunity Clause For any speech or debate in either House [members of Congress] shall not be questioned in any other place. Senators who make statements on the Senate floor have immunity from defamation suits, even if the defamation suit could otherwise overcome the high standard for suits against public figures • Protects legislators against criminal or civil proceedings for legislative acts Prior Restraints prior restraints are difficult to uphold Often arises as court order/injunction preventing speech Commercial Speech Govt. may regulate some commercial speech subject to a test similar to intermediate scrutiny strict scrutiny Requirements — to be valid, a prior restraint requires: Govt. interest — there must be at least some significant govt. interest justifying the restraint (i.e., a special societal harm) National security may be a sufficient harm/govt. interest, but the harm must be more than theoretical Procedural safeguards — for those whose speech is restrained Safeguard must ensure restraint is narrow, reasonable, and definite; and provides for prompt, final judicial determination Prior restraints involve a court order or other ban on speech or publication before it occurs Preliminary injunction — to prevent pretrial discussion in order to preserve a fair trial; only valid if it’s the only way of preserving a fair trial Note — P must comply with valid injunction until it is vacated or overturned; P cannot challenge a violated injunction Unprotected commercial speech Test — commercial speech is not protected if it is either: False, misleading, or deceptive, or Illegal or concerns illegal activity govt. may regulate unprotected commercial speech It is within a state or city's police power to prohibit billboards carrying commercial advertising under a highway safety rationale, as long as the city does not discriminate between different kinds of commercial messages on the basis of viewpoint Protected commercial speech — speech that concerns lawful activity and is not misleading Test — govt. can only regulate protected commercial speech if: 1) There is a substantial govt. interest in regulating the speech 2) The regulation directly advances that govt. interest; and 3) The regulation is not more extensive than necessary to serve that govt. interest A valid commercial speech regulation must be narrowly tailored, but not necessarily the least restrictive alternative • States may prevent professionals from advertising or practicing under a trade name • States may prohibit attorney, in person solicitation of clients for profit • Permits/licensing — govt. may require licenses or permits for speech only if it has a reasonable justification for doing so Requirements for permit/license must be similar to a “rubber stamp” process and must provide review for denied permits/licenses P can challenge a denial on constitutional grounds, even if violated Speech by Government Employees Speech by gov employees on the job in the performance of their duties is NOT protected by the 1st amendment. Gov may NOT prohibit accountants from in-person solicitation of clients for profit Other Commercial Speech can be regulated by the gov IF intermediate scrutiny is met Political speech: The state may limit political protest speech as long as the restriction is a reasonable time, place, and manner limitation that is not content based. Time, Place, and Manner Test Such as time, place, and manner Public Forums/Designated public forums Regulations must: 1) Be content neutral (subject matter neutral & viewpoint neutral) 2) Rationally related to a legitimate gov interest 3) Be narrowly tailored 4) Leave open alternative channels of communication Nonpublic Forums/Limited public forums Regulations must: 1) Be viewpoint neutral 2) Be reasonably related to legitimate gov purpose Non-Public Forums govt. property that can be closed to speech (e.g., military bases, airports) Test — govt. can regulate speech if the regulation is: Reasonably related to some legitimate purpose; and Viewpoint neutral Content-neutrality not required — govt. can allow speech on some subjects but not others, yet if it opens speech to a subject it cannot limit the speech to only one view • Speech in a nonpublic forum or limited public forum may be reasonably regulated but the regulation must be viewpoint neutral-it cannot permit presentation of one side of an argument and exclude the other. Ex: military bases, areas outside prisons/jails, schools, signs on public property, sidewalk outside post office, airports, shopping centers Public employee has 1st amendment right to speak on a matter of public concern & may NOT be discharged for that speech UNLESS the employee actions interfere with the functions of the gov Privacy & 1st Amendment A state may NOT create liability for the truthful reporting of information that was legally obtained from the gov records. Media may NOT be held liable for broadcasting a tape of an illegally-interception & recorded call, so long as the media did not participate in the illegality & it involves a matter of public importance. Gov may restrict its own dissemination of information to protect privacy. The only instance where the public has a 1st amendment right to attend gov proceedings & have access to gov papers is for criminal trials and most criminal pre-trial proceedings Permit Fees Statute or ordinance requiring a permit to exercise free speech in public is valid if: (1) it is content-neutral as applied and (2) is does NOT give the licensing officials unfettered discretion to determine who should receive a permit or amount of the fee • Permit fees that vary depending on the type of speech are content-based and unconstitutional Note — when held open for speech, restrictions on speech in limited public forums are analyzed as public forum restrictions • Laws & injunctions that set boundaries of a specified number of feet to ensure obstructed across and maintain public safety are generally found to be reasonable & content neutral. Public Forums Designated Public Forums Govt property that the gov could close off to speech, but chooses voluntarily to open to speech. Limited Public Forums • govt. properties that the govt. opens for speech, but can close at any time Test — same rules apply as for public forums, but only apply when the govt. property is open for speech E.g., must be content-neutral and strict scrutiny applies • When closed for speech or restricted to certain types of speech, analyze as a non-public forums Categories of unprotected speech: 1) 2) 3) 4) 5) 6) Speech advocating imminent lawlessness Fighting words Obscenity Child pornography False/deceptive advertising Defamation Incitement of Illegal Activity: UNPROTECTED by the 1st amendment Test — govt. may punish speech if: There is a substantial likelihood the speech will bring about imminent illegal activity; and The speech is aimed at causing imminent illegality Note — this test, often referred to as the “Clear & Present Danger test,” is difficult to satisfy; any law aimed at restricting incitement must be narrowly tailored Fighting words NOT protected speech, but statutes that attempt to punish the use of such words are often found void of vagueness need to pass the rational basis test to be constitutional. • True threats-statements meant to communicate an intent to place an individual or group in fear of bodily harm-may be punished; • Fighting words-words or epithets that, when addressed to an ordinary citizen, are inherently likely to incite immediate physical retaliation-may also be punished; and • Fighting words statutes are often struck down for overbreadth. The overbreadth problem arises because of the difficulty in precisely describing what is or is not a "fighting word." False Speech Falsity does NOT make speech unprotected. Where it is unprotected, it is based on the harm caused Obscenity & Sexually-Oriented Speech Obscene speech is NOT protected Speech may be punished or banned under the clear and present danger test whenever it is directed to producing or inciting imminent lawless action and is likely to produce such action. All three of the following requirements: Obscenity & Profanity Regulations Zoning — govt. may use zoning to regulate lewd speech or conduct if regulation is designed to combat secondary effects E.g., ordinance limiting strip clubs to a small city section can be valid if designed to combat a drop in property values or rise in crime Test — expression is obscene if: It appeals to prurient interests (sexually stimulating) Contemporary community standard It is patently offensive in its sexual portrayal • Material must offend community standards regarding portrayal of sexual matters • Any law prohibiting obscene material must specify what is deemed patently offensive (state statute) Taken as a whole, the material lacks serious literary, artistic, political, or scientific value • Determined based on national standard (not community standard, as is the case for first two prongs) Defamation 1st Amend. considerations arise when defamation involves a public official and/or a matter of public concern Public figures, public officials, and matters of public concern Public figure = one who has pervasive fame or notoriety or voluntarily assumes a central role in a particular public matter Public official = public office holder Matter of public concern = statement relates to a community interest or concern (includes national interests) Pornography — private possession is not punishable unless it involves child pornography Adult businesses: licensing scheme must provide applicants with prompt judicial determination of their claim in gov denying license Child pornography — may be punished b/c the underlying act is illegal (e.g., sex with minors) Child pornography = actual children are depicted Adults portraying children is not child pornography Profanity/indecent speech — generally protected Two exceptions — profane/indecent speech is punishable if either: Speech is aired over broadcast media (not cable), or Speech occurs in public schools Additional requirements — if defamation Damages involves a public figure, official, and/or Public figures or officials — compensatory damages public concern, P must prove: are presumed; punitive damages are available Falsity — P must prove the statement was Private figures — damages for actual injury only; P false must prove actual malice for compensatory or Fault — P must prove D was at fault; punitive damages standards differ for public vs. private figures: Public official or figure — actual malice Intentional Infliction of Emotional Distress standard (knowledge of falsity or reckless Liability for intentional infliction of emotional disregard as to truth) distress for defamatory speech must meet the Private figure — negligence of the defamation standards and can NOT exist for speech statement’s veracity otherwise protected by the 1st Amendment Freedom of Association Freedom of Association protects the right to participate in a gathering, club, or other organization to pursue 1st Amend.-protected goals (e.g., political advocacy) — strict scrutiny usually applies Laws criminalizing membership Political Membership Analysis — govt. interference with association is valid only if: 1) Govt. act is in pursuance of a compelling govt. interest; and 2) That interest cannot be achieved by less restriction means Note — this test is largely analogous to strict scrutiny Private organizations discriminating only trigger protection if there is state action Restrictions on group discrimination a govt. law or regulation may be invalid if it interferes with a group’s expressive activities Usually involves groups formed for expressive, nonintimate purposes (e.g., NAACP, KKK) E.g., KKK not required to accept non-white members b/c this exclusion is integral to its organizational message • Exception: intimate association (dinner party) • Exception: where discrimination is integral to the expressive activities of the group govt. must prove that D: 1) Actively affiliated with a group involved with illegal activities; 2) Had knowledge of the group’s illegal activities; and 3) Acted with the specific intent of furthering those activities Disclosure requirements strict scrutiny if chilling effect Laws requiring disclosure of group membership must meet strict scrutiny if disclosure would have the effect of chilling association (i.e., if it would inhibit the group’s ability or willingness to associate) The Free Exercise Clause can NOT be used to challenge a neutral law of general applicability. However, the Clause does NOT prohibit government from regulating general conduct, even if the regulation happens to interfere with a person’s ability to conform conduct to sincerely held religious beliefs. Thus, if it can be shown that the statute is not really a regulation of general conduct but rather is being applied only to interfere with religion, the convictions will be reversed. Political Membership an individual MAY NOT be denied/punished public employment based on political organization membership UNLESS (1) she is an active member of a subversive organization; (2) such membership is with knowledge of the illegal aims of the organization; and (3) she has a specific intent to further those illegal ends (violent overthrow of the government). if the position is a high-level policy-making position Gov MAY take the applicants’ political organization membership into account in making its hiring decision. Freedom of Religion The Free Exercise Clause Law impacting someone from exercising religion prohibits govt. from punishing someone solely on the basis of that person’s religious beliefs or conduct if the purpose of a govt. act is to limit or interfere with religious practice or beliefs (i.e., not designed to regulate or interfere with religion) Strict Scrutiny. • Govt. action must be necessary to achieve a compelling interest & narrowly tailored to advance that interest, but Court has never upheld religious punishment under this standard if the regulation just happens to interfere with a person’s ability to conduct their religions beliefs Rational Basis Review where an individual’s conduct is motivated by his religious beliefs, the state may regulate or prohibit the activity if the regulation is neutral in respect to religion and is of general applicability Benefits: The gov may NOT deny benefits to individuals who quit their jobs for religious reasons. Sincerity of Beliefs A court MAY assess the sincerity of a person’s religious beliefs when relevant to a particular case. Can NOT determine the truth or falsity of a person’s religion. A court may assess whether a person who says he acted based upon religious beliefs actually held the beliefs claimed • EXCEPTION: employment laws that impair churches from discriminating for the leaders/ministers Religious Members free exercise of religion allowed members of the clergy to hold government office. Holding Office • The Establishment Clause Gov is supporting or recognizing religion On its face prohibits Congress from establishing a religion Establishment clause via 14th Amendments Due Process Clause applies to local government Government Sponsored Religious Activity the appointment of a member of the clergy to a governmental agency or commission would NOT be per se violative of the Establishment Clause. The establishment clause along with the Free exercise clause compels the gov to pursue a course of neutrality toward religion. Government action challenged under the Establishment Clause will be found invalid unless the action: The three-part test: (Lemon Test) • There must be a secular purpose for the law • The primary effect must be neither to advance nor inhibit religion • There must not be excessive government entanglement with religion Religious Speech The gov can NOT discriminate against religious speech or among religions unless strict scrutiny is met Gov sponsored religious activity in public schools is unconstitutional. But religious student & community groups must have the same access to school facilities as non-religious groups. • School prayer, even if voluntary, is NOT allowed; not even a moment of silent prayer is allowed Parochial Schools Gov may give assistance to parochial schools, so long as it is NOT used for religious instruction. The gov may provide parents vouchers which they use in parochial schools (a private school supported by a particular church or parish)
